Mohammed Mahaboobi vs The State Of Ap
2021 Latest Caselaw 3324 AP

              HIGH COURT OF ANDHRA PRADESH


MAIN CASE No:W.P.No.19002 of 2021

                       PROCEEDING SHEET

Sl.                                                                             OFFICE
       DATE                                   ORDER
No.                                                                             NOTE.
01    02.09.2021   AVSS, J
                                        W.P.No.19002 of 2021
                        Rule Nisi. Call for records.
                        Notice returnable in four weeks.
                        Learned Government Pleader for Minority
                   Welfare, Sri T.N.M.Ranga Rao, takes notice for
                   R1; Sri K.Asad Ahmed Khan, learned Standing
                   Counsel for the State Wakf Board, takes notice
                   for R2 and R5; learned Government Pleader for
                   Revenue takes notice for R3 and Sri Manohar
                   Reddy     Mallasani,      learned    Standing    Counsel,
                   takes notice for R4.
                                          I.A.No.01 of 2021
                        According to the petitioners, they have been
                   in occupation of an extent of 48 sq.yards of land
                   consisting      of     asbestos     shed     situated   in
                   T.S.No.978 of Eluru Town, East Godavari District.
                   First petitioner herein is the mother of the second
                   petitioner and third petitioner is the brother of
                   the second petitioner. It is further stated that the
                   second       respondent-Wakf         Board      instituted

O.S.No.94 of 1971 before the Court of the Subordinate Judge, Eluru against 33 defendants for declaration of title and for recovery of possession of 'A' schedule agricultural property and 'B' schedule residential property. In the said suit, the grand father of the third petitioner, one Sri M.A.Rahaman, was arrayed as defendant No.13. The learned Subordinate Judge, on

W.P.No.19002 of 2021

22.12.1976, decreed the suit to the extent of 'A' schedule property in favour of the Wakf Board and declined the relief to the extent of 'B' schedule residential property. Felt aggrieved by the said decree, the Wakf Board as well as the defendants in the suit preferred two independent

of 1977 respectively on the file of the composite High Court of A.P., Hyderabad. The composite High Court vide common judgment, dated 02.09.1985, dismissed the said appeals and confirmed the decree rendered by the trial Court.

The Wakf Board-second respondent herein vide proceedings in F.No.26/Prot/WG/2010, dated 06.05.2019, issued a show cause notice under Section 54 (1) of the Wakf Act, 1995 (for brevity, 'the Act'), calling upon the first petitioner herein to show cause as to why action should not be initiated. In response to the said show cause notice, first petitioner herein submitted explanation on 11.02.2020. It is further stated that a Memo was also filed before the second respondent by the learned counsel for the petitioners, enclosing the tax receipts and the judgment rendered by the composite High Court in A.S.No.283 of 1977 and 1629 of 1985. Thereafter, vide final enquiry notice issued under Section 54 (2) of the Act, dated 06.08.2021, second respondent herein called upon the petitioners to appear before the second respondent in order to answer all the questions pertaining to the matter along with the evidence. Subsequently, on 21.08.2021, petitioners herein claim to have submitted a representation,

W.P.No.19002 of 2021

reiterating their stand which was already made clear vide explanation, dated 11.02.2020.

According to the learned counsel for the petitioners, the very initiation of proceedings, under the provisions of Section 54 of the Act, on the ground of alleged encroachment, cannot be sustained in the eye of law nor the same is permissible in view of the decree rendered by a competent civil Court i.e. the Court of the Subordinate Judge, Eluru in O.S.No.94 of 1971, which attained finality in view of the common judgment rendered by the composite High Court of A.P., in A.S.No.1629 of 1985 and 283 of 1977, dated 02.09.1985. It is further submitted by the learned counsel that, in the name of taking action under Section 54 of the Act, the second respondent authorities cannot nullify the decree rendered by a competent civil Court.

On the other hand, it is submitted by Sri K.Asad Ahmed Khan, learned Standing Counsel for the State Wakf Board, that there is absolutely no illegality nor there is any contravention of the procedure stipulated under the statute, as such, the present Writ Petition is not maintainable before this Court.

In the considered opinion of this Court, a prima facie case is made out for grant of interim orders in favour of the petitioners herein.

For the aforesaid reasons, there shall be interim order as prayed for.

Post this application after eight weeks.

_________ AVSS, J Tsy