M/S Sai Saran Nivas Plots Owners ... vs The State Of Andhra Pradesh,
2022 Latest Caselaw 5149 AP

            HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                   MAIN CASE No: W.P.No.25214 of 2022

                             PROCEEDING SHEET
Sl.                                                                         OFFICE
        DATE                             ORDER
No                                                                  NOTE.
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2.    12.08.2022 NJS, J                                            rred to
                                  I.A.No.1 of 2022                 io
                                                                   folder
                        Heard learned counsel for the petitioners, before
                                                                   correcti
                 learned Government Pleader for Social Welfare
                                                                   ons.
                 representing respondent No.1 and learned Standing B/o.

Counsel for respondent Nos.2 and 3.

The present Writ Petition is filed challenging the Enquiry Notice dated 27.07.2022 issued by the 2nd respondent on various grounds.

Learned counsel for the petitioner, inter alia, contends that the State Government has not issued any Gazette Notification for the purpose of conducting preliminary survey as contemplated under Section 4 of the Waqf Act, 1995 and on the basis of a Memo dated 30.12.2021, impugned Notice was issued and therefore, the same is not sustainable in Law. It is also his submission that unless the property is registered under Section 36 of the Waqf Act, the question of invoking the provisions of the Act would not arise at all.

While drawing the attention of this Court to the Judgment in O.S.No.43 of 1969, dismissing the suit filed by the Waqf Board in respect of the property in question, learned counsel submits that the respondents having lost the matter before the competent Civil Court, is not entitled to re-agitate the issues by issuing a notice. He also submits that even as per the decision of the Hon'ble Division Bench in W.P.No.989 of 2007 dated 20.06.2011, the respondent-Board is not authorized to pursue the proceedings under the Act against the petitioners, on the assumption that the schedule property

belongs to the Waqf until a formal and lawful declaration of the property being waqf property is re-notified in accordance with Law.

Learned Government Pleader, on the other hand, while vehemently opposing the submissions made by the learned counsel for the petitioners, contends that the Writ Petition is not maintainable against impugned Notice. Submitting that the petitioners have ample opportunity to file objections to the notice, learned Government Pleader states that the notice was issued in terms of the liberty granted to the respondents in the earlier round of litigation i.e., in W.P.No.987 of 2007 dated 20.06.2011 as also W.A.Nos.394 and 291 of 2022 dated 08.07.2022.

In support of his contention that the Writ Petition is not maintainable, the learned counsel places reliance on the decision of the Hon'ble Division Bench in Shakti Me-Dor Limited and another v. Commissioner of Customs Central Excise and Service Tax and Commissionerate and another, reported in 2011(1) ALT 354 and also the judgment of Hon'ble Supreme Court in Special Director and Another v. Mohd. Ghulam Ghouse and another reported in 2004(3) SCC 440 and New India Assurance Company Limited v. Rula, reported in (2000) 3 SCC 195 etc. Learned Government Pleader also seeks to rely on the Written Instructions furnished by the 1st respondent.

Learned Standing Counsel supported the arguments of the learned Government Pleader and contends that the Writ Petition may be dismissed.

This Court has considered the submissions made by both the learned counsel, as also the material on record. Though, there is no dispute with regard to the legal position as submitted by the

learned Government Pleader, this Court finds merit in the submissions made by the learned counsel for the petitioners that in the absence of issuing of any Gazette Notification, preliminary enquiry as contemplated under Section 4 of the Waqf Act, and the issuance of Notice dated 27.07.2022 is not sustainable. Further, the order of the Hon'ble Division Bench dated 20.06.2011 makes it abundantly clear, no proceedings under the Act can be taken on the assumption that the property belongs to the Waqf Board until a formal and lawful declaration of the property being waqf property is re-notified in accordance with Law. No such notification has been placed before this Court.

In such circumstances, there shall be interim stay of all further proceedings pursuant to the Notice dated 27.07.2022.

List this case after four (4) weeks for filing counter.

_____ NJS, J BLV