Telangana High Court

Syed Alamdar Hussain vs The State Of Telangna on 26 April, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

             WRIT PETITION No. 1215 OF 2019

ORDER:

Action of Respondents 3 and 4 - Waqf Board and Station

House Officer in interfering with the construction activities of

petitioner over House bearing Municipal No. 22-3-420 (old No.

1107) admeasuring 180 square yards situated at Kaman Elchi

Baig, near Mandi Mir Alam, Hyderabad is challenged in this

Writ Petition.

2. Petitioner is stated to have purchased the above

mentioned property for a valid sale consideration on 03.06.2015

from Iqbal Chand Vigg S/o Late Nirannjan Lal Vigg and since

then has been in possession and enjoyment of the same. After

obtaining permission from Greater Hyderabad Municipal

Corporation on 30.06.2018, petitioner had been proceeding with

construction of house. While so, Respondents 3 and 4 started

interfering with construction activities and threatened to stop

construction claiming the property to be of the 3rd respondent -

Waqf Board. Petitioner is stated to have produced link

documents along with sale deed.

It is stated that before Respondents 3 and 4,

petitioner explained that subject house property was never

endowed as waqf as it is in possession and enjoyment of private

persons and they are paying municipal tax, electricity bill and

water bill to establish the property in occupation of the private

persons, but the 4th respondent did not heed his request and

stopped construction activities. Hence, petitioner is before this

Court.

According to petitioner, the 4th respondent ought to

have verified the documents produced by the 3rd respondent.

Survey was conducted at the behest of Mirza Abed Ali Baig who

has nothing to do with the subject property. It is contended

that Respondents 3 and 4 failed to see that subject property was

endowed by the person who did not have right. The father of

person who endowed the property lost his rent control case as

per the judgment in R.A.No. 946 of 1971 on the file of the Chief

Judge, City Small Causes Court, Hyderabad, hence, the survey

report which was the basis for issuing Gazette is bad in law.

3. While admitting the Writ Petition, vide order dated

18.02.2019, this Court directed that if petitioner is in

possession of subject property, he shall not be dispossessed

without following the provisions of the Waqf Act, 1995.

Thereafter, on 01.12.2022, it was observed that 'the survey

report is in respect of house No. 4-3-419, but instead of

notifying the said property, respondents have notified the same

as house No. 4-3-420 in the impugned Gazette Notification No.

11-A dated 16.03.1989, hence, directed the learned Standing

Counsel to get specific instructions. On 07.12.2022, learned

Standing Counsel represented that record room of Waqf Board

is under lock and as of now, the record placed before the Court

by petitioner is only available. In those circumstances, in I.A.No.

2 of 219, pending further orders, interim direction was granted.

4. Counter-affidavit was filed on behalf of the Waqf

Board, wherein it was stated that Iqbal Chand Wig had no title

to execute any sale deed favouring petitioner in respect of

subject house. It is stated that construction permission was

obtained by suppressing the facts and the same is liable to be

set aside and not binding on the Waqf Board.

It is stated that Wakf Institution known as Alawa

Bibi Sakina bearing Door No. No. 22-3-420, old No. 1107,

situated at Kaman Alchi Baig near Mandi Meer Alam,

Hyderabad is a registered and notified Wakf Property published

in the Official Gazette No. 11-A, dated 16.03.1989 and Sl. No.

76 at Page No. 20 comprising extent of 205.05 square yards, in

respect of the said property, the Board issued notice under

Section 54 (1) of the Act against the encroacher Smt. Shahzadi

Begum and after following the procedure contemplated

thereunder, the Revenue Divisional Officer, Hyderabad passed

orders under Section 55 for her eviction.

It is further stated that Gazette notification has

become final and the same can be challenged before the Wakf

Tribunal within one year of publication of notification in the

Gazette and there is an alternative remedy available to

petitioner under Section 83 of the Act. Hence, the present Writ

Petition is time barred as such, the same is liable to be

dismissed.

The Waqf Board is stated to have initiated steps in

accordance with law for protection of Waqf property and the

present writ petition is an attempt to prevent the Board from

taking action against petitioner in accordance with law.

Therefore, this respondent seeks to dismiss the Writ Petition.

5. The 4th respondent also had come up with the

counter stating that on 16.01.2019, they received a complaint

from the 3rd respondent i.e. Chief Executive Officer, Telangana

State Waqf Board stating that petitioner and others have taken

up construction over Waqf property and also damaging the Waqf

Property, basing upon which, they registered FIR No. 11 of 2019

for the offences under Section 52-A of the Act on 17.01.2019 at

16.00 hrs. During the course of investigation, it is disclosed that

petitioner and others illegally and unauthorizedly taken up

construction over the waqf property; subsequently, this

respondent had also addressed a letter to the Sub-Registrars

concerned with a request to furnish certain information /

certified documents of the subject property.

It is emphatically stated that this respondent

threatened petitioner to stop construction. It is further stated

that with regard to the dispute in title of subject property, it is

between petitioner and the 3rd respondent, as such, they have

nothing to do with the same.

6. Petitioner also filed a reply-affidavit stating that

subject property was in the name of Syed Abbas Hussain Naqvi,

S/o. Syed Vilayath Hussain Naqvi. The said property was

succeeded from his father Syed Vilayath Hussain Naqvi. The

same was sold out to Mayadevi under registered Doc. No.9 of

1976 as such Mayadevi was absolute owner and possessor of

the said house. The 3rd respondent has not disclosed how the

subject house was made as waqf; in fact, as per the Act, for

creating a valid waqf, declaration of dedication should be made

by contemporaneously with act of dedication. The Waqf must

divest himself of the ownership of the property, the three

essentials of valid waqf are, 1) Perpetuity, 2) Irrevocability and

3) Inalienability.

It is further stated that Gazette Notification is also

issued under the repealed Act of 1954, as such it is crystal clear

that the subject property does not belong to the 3rd respondent

and it is purely a private property. It is relevant to mention here

that Mayadevi had constructed the said house with the

permission granted in her favour by the competent authority of

MCH, as such the claim of the 3rd respondent is baseless and

without any valid and substantial documents.

It is relevant to mention that subject property is

never shown as waqf property even in MCH office and more so

the house property is being shown in the town survey as private

property as such there is no valid reasons to believe that

petitioner house property is waqf property and it was not

created by the owner of the property.

It is respectfully stated that the 3rd respondent is

stated to have issued notice under Section 54 (1) of the Act to

the encroacher Smt. Shahzadi Begum, however, no such person

is residing in their house and they were not issued any notice or

called for any explanation under the provisions of the Wakf Act

and the 3rd respondent does not have any business to declare

house property of petitioner as waqf nor produced any valid

documents as such the subject property of the petitioner does

not fall under the provisions of the Act.

According to petitioner, petitioner had made a

request on 12.02.2020 to the 3rd respondent to furnish

information in creating waqf against his house property and

also requested to furnish the names of the persons who created

waqf and their title, but the 3rd respondent is not in a position

to furnish the same, as such there is no reason to believe that

the subject house property belongs to the 3rd respondent.

It is finally stated that the 3rd respondent could not

establish their claim against petitioner's house property and

more so the Gazette Notification itself is illegal and

unsustainable in the eye of law. Hence, it is not necessary to

give weightage to the notification for treating petitioner's house

property as waqf and notification itself is a mistake of fact.

7. Heard learned counsel for petitioner Sri Jalli

Kanakaiah, Sri Abu Akram, learned Standing Counsel for the

Waqf Board and learned Government Pleader for Home and

perused the material on record.

8. The averments and counter-averments mentioned

supra clearly disclose that there is title dispute with regard to

subject property. Further, this Court on 01.12.2022, noticed

that survey report is in respect of house No. 4-3-419, but

instead of notifying the said property, the Waqf Board had

notified the same as House No. 4-3-420 in the Gazette

Notification dated 16.03.1989. When directed, learned Standing

Counsel failed to get instructions and it is represented that the

record room of the Waqf Board is under lock and key. All these

circumstances would show that there are disputed questions of

fact.

9. When a statutory forum or Tribunal is specially

created by a statute for redressal of specified grievances of

persons on certain matters, the High Court should not normally

permit such persons to ventilate their grievances before it by

entertaining petitions under Article 226, is a legal position

which is too well-settled. The Hon'ble Supreme Court in M/s

South Indian Bank Ltd. V. Naveen Mathew Philip (Civil

Appeal No. 2861-2862 of 2023) decided on 17.04.2023,

observed as under:

" When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ court. A litigant cannot avoid the non-compliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative.

.........

While doing so, we are conscious of the fact that the powers conferred under Article 226 of the Constitution of India are rather wide but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal."

10. In United Bank of India v. Satyawati Tondon 1,

the Hon'ble Supreme Court, while deciding on the question of

interference of High Court under writ jurisdiction when an

effective and alternative remedy is available, observed as under:

" It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."

11. Recently, the Division Bench of this Court in Writ

Appeal No.1480 of 2009, vide order dated 27.02.2024, while

observing that 'the Writ Petition filed by respondent No.1

involves adjudication of the disputed questions of fact which

could not have been gone into in a summary proceeding under

Article 226 of the Constitution of India, disposed of the Appeal.

However, liberty is reserved to respondent No.1 to take recourse

to such remedy as may be available to him before an

appropriate forum where the disputed questions of fact can be

adjudicated.'

(2010) 8 SCC 110

12. In view of the settled legal position highlighted