Sri C Parvez Ahmed Afroz vs The A.P. State Waqf Board
2022 Latest Caselaw 1590 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                    W.P.No.3938 of 2021
ORDER:

Heard learned counsel for the petitioner and learned

standing counsel for the Waqf Board and Sri S.M.Subhani,

learned counsel for the 3rd respondent.

Learned counsel for the petitioner is questioning the

initiation of the proceedings by notice dated 03.12.2020 and

the notice dated 30.12.2020. Admittedly, he has submitted

his explanation on 22.12.2020. Prior to this, there were

notices in December, 2017, which did not lead to any further

action. The essence of the case of the petitioner to the notices

is the judgment and decree in O.S.No.136 of 2005 dated

12.06.2017 passed by the A.P.State Waqf Tribunal. Learned

counsel points out that the 3rd respondent in the writ petition

is the second plaintiff. He draws the attention of the Court to

the findings of the Tribunal, wherein it is clearly held that the

plaintiffs therein miserably failed to prove that the property is

waqf property. Admittedly, against this order, CRP.No.1158

of 2018 is still pending. Therefore, learned counsel states

that the order of the Tribunal is still in force and therefore,

initiation of the further proceedings is contrary to law.

Learned standing counsel urges that since the petitioner

has already submitted an explanation, the same will be

considered and as per the provisions of section 54 (3) of the

Waqf Act, 1995 (for short 'the Act') and thereafter an order

will be passed. He, therefore states that keeping the writ

petition pending is not called for

Sri S.M.Subhani, learned counsel for the 3rd respondent

draws the attention of this Court to the schedule in the suit

which is as follows:

SCHEDULE OF PROPERTY

All the part and parcel of t mises bearing No.44/54-D-1, situated Opp., Roza Dargah, Roza Street, Kunool adm., 10 cents (which is allotted S.No.18/2B by sub-dividing the original S.No.18/2) out of total extent of 30 cents in Sy.No.18/2 of Roza (V), Kurnool (i.e., service inam property of Dargah Hzt., Ishaq Sanaullah Qadri, which is also commonly known as Dargah Syed Miyan Sahab Qadri (Roza Dargah)), bounded by:

North : Remaining part of S.No.18/2 (encroached by B.Mohd.Ali Khan & Linga Reddy, which is allotted S.No.18/2A by sub-dividing the original S.No.18/2)

South : S.No.17

East : S.No.18/3 & remaining part of S.No.18/2 (encroached by Mrs.Syeda Maimuna Bee which is allotted S.No.18/2C by sub-dividing the original S.No.18/2) West : S.No.14

(More specifically shown in the rough sketch annexed to this

plaint edged with red colour)

PRESIDING OFFICER, A.P. STATE WAKF TRIBUNAL, HYDERABAD.

He points out that the notice in question refers to the

land measuring Acs.1.00 cents in Sy.No.3/2, Ac.0.25 in

Sy.No.18/2 & Ac.1.50 cents in Sy.No.18/3. Therefore,

learned counsel points out that the issue raised in the

current notices that were issued in December, 2020 are not

covered by the judgment of the Wakf Tribunal. Alternatively,

he also submits that there is no threat to immediate eviction.

He draws the attention of the Court section 54 (3) and (4) of

the Act, to submit that only after an enquiry is conducted,

the Chief Executive Officer will have to make an application

before the Waqf Tribunal for eviction and thereafter, the

Tribunal shall make an order for eviction. Therefore, he

contends that there is no immediate or imminent threat of

eviction.

This Court after hearing the learned counsel notices

that what is stated by the counsel for the petitioner as far as

the proceedings in OS.No.136 of 2005 is correct. However, it

is apparent that the Waqf Board is not a party to the

proceedings. In the reply submitted, the petitioner has

already raised the issue about the binding nature of this

judgment and also states that the issue cannot be reopened

once again. This is a matter which in the opinion of this

Court has to be determined by the Chief Executive Officer.

Even otherwise, the schedules as pointed out by Sri

S.M.Subhani are different. The property covered by the

proceedings of the Tribunal is not the exact property which is

the subject matter of the current notice. This is also an issue

which has to be decided by the Chief Executive Officer basing

on records. Therefore, this Court is of the opinion that

keeping the writ petition pending is not called for.

The Chief Executive Officer is therefore directed to

consider the explanation that is submitted; the legal and

factual issues raised therein and take a decision in

accordance with law within a period of eight (8) weeks from

the date of receipt of a copy of this order. If the petitioner or

the respondents wish to make a representation or be heard

through a learned counsel, they should be given an

opportunity so also the respondents.

As far as the fear of eviction is concerned, this Court is

of the opinion that considering the provisions of section 54(3)

and (4) of the Act, there is no immediate threat of eviction.

The respondents are directed not to forcefully evict the

petitioner and if the 2nd respondent comes to a conclusion

that petitioner is in fact an encroacher, he is directed to follow

the due process of law which is stipulated under Section 54

(3) and (4) of the Act.

With these observations, the writ petition is disposed of.

No order as to costs. As a sequel, the miscellaneous

petitions if any shall stand dismissed.

_________________________ D.V.S.S.SOMAYAJULU, J

Date : 31.03.2022 KLP