Andhra HC (Pre-Telangana)
Syed Muneer vs Chief Executive Officer And 5 Ors. on 15 June, 2001
Equivalent citations: 2001(4)ALD430, 2002(1)ALT386, 2001(2)LS321
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
S.B. Sinha
1. The question which arises for consideration in this appeal which is preferred from a Judgment and Order dated 16.4.2001 passed by a learned single Judge of this Court in W.P.No.7058 of 2001 is as to whether the writ petition should be entertained despite the fact that an alternative remedy is available under Section 83 of the Wakf Act, 1955 on the ground that the wakf in question is not a registered one.
2.The fact of the matter lies in a very narrow compass. One Sri Syed Burhanuddin Ali Shah who was also known as Hazrat Syed Burhanullah Shah and who led his life as a Sofi died a century back leaving behind him inam land to an extent of 21 Acres 14 Guntas in S.No.139 situated at Zaheerabad, Medak district which is called Dargah Hazarat Burhan Ali Shah and Graveyard. He had two sons namely Syed Mohiuddin Ali Shah and Syed Nadeemullah Shah. While the appellant-writ petitioner belongs to the branch of Syed Nadeemullah Shah, 4th respondent herein belongs to the branch of Syedl Mohiuddin Ali Shah.
3.The case of the appellant is that the aforementioned property is the only source of livelihood of their family. Out of the total extent of Ac.21.14 gts., an extent of 16 acres was developed by digging an irrigation well making the land suitable for cultivation. The remaining area is covered by huge tamarind trees and it is partly used as family grave yard from the two generations and the other part is used as residential quarters of the family members. The appellant alleges that the 4th respondent taking advantage of his position as the head of family being the eldest male member and with an evil intention to deprive the members of Syed Nadeem Ali Shah's branch of their right to have a share in the property filed a suit being OS.No.15 of 1982 on the file of Court of District Munsif, Zaheerabad against the descendants of Syed Nadeem Ali Shah's branch for injunction restraining them from interfering with his possession of the property in question. Ultimately, the parties entered into a compromise and accordingly a compromise decree was passed dismissing the suit to the extent of 8 acres, half share in the area under cultivation and the other non-agricultural land was kept as common undivided property. Respondent No.4 filed another suit being O.S.No.21 of 1992 on the file of the court of the Court of District Munsif for an injunction restraining the appellant and others from alienating their share of property on the ground that it is an inam land. The suit was dismissed as barred by res-judicata on 28.2.1995. A.S.No.12 of 1995 preferred thereagainst before the District Judge, Sangareddy was dismissed on 31.3.2000. and Second Appeal No.532 of 2000 preferred thereagainst was also dismissed by this Court on 13.12.2000.
While things stood thus, the Inspector of the Wakf Board made an inspection of the wakf property on 24.1.2001 along with the Mandal Revenue Inspector and Mandal Surveyor and conducted panchananama in the absence of their family members declaring to have taken possession of the land under the orders issued by the 1st respondent dated 17.12.2000 which were challenged in the Writ Petition.
4.The learned single Judge by the order under appeal dismissed the writ petition on the ground that the appellant had an alternative remedy available under Section 83 of the Wakf Act..
5.The order dated 17.12.2000 passed by the Chief Executive Officer, A.P. State Wakf Board, Hyderabad reads thus:
On receipt of the representation from the M.L.A. Zahirabad and the Dy. Executive Engineer, Panchayat Raj Department, the Executive Officer, A.P. State Wakf Board has been deputed along with Surveyor to Zhaheerabad for conducting spot inspection and to submit detailed report in this matter. The Executive Officer and Surveyor have conducted joint inspection on 5.12.2000 and submitted their report on 8.12.2000.According to the said report, the registered Muthawalli is S. Mahaboob Ali and S. Ahmed as shown in the report of Survey Commissioner expired long back and their legal heirs are managing the affairs of Dargah Hzt. Burhan Ali Shah and Graveyard which are existing in Sy.No.139 for which the total area is Ac.20,25 guntas. The entire land is kept vacant due to inferior quality of land and that it is found to be uncultivable. The area of Dargah and Graveyard including houses of legal heirs are earmarked up to 5.00 acres of land and the remaining land is found vacant. After expiry of original inamdars, the L. Rs did not approach to the competent authority for granting succession/towliath and their activities are found to be illegal. Moreover, the LRs are indulged in Court cases on one pretext or other.
In view of the report of Executive Officer, the matter was placed before the Board meeting held on 14.12.2000 and the Board have unanimously resolved to take the institution along with its Inam land attached to the Institution under the direct management of the Wakf Board till the succession or Towliath is granted by the competent authority to safeguard the wakf property.
In view of the facts, the Dargah Syed Burhan Ali Shah Quadri, Graveyard and Musafirkhana situated in Sly.No.139 of Zahirabad (Village) and town together with its landed property admeasuring Ac.20.25 guntas is hereby ordered to taken under direct management of Wakf Board as per the provision laid down under Section 65 of Wakf Act, 1995.
The Inspector Auditor Wakf is hereby directed to take the above Institution under the direct management of the Wakf immediately and report compliance.
6.Section 83 of the Wakf Act reads as follows:
Constitution of Tribunals, etc. :- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating a Wakf or Wakf property under this Act define the local limits and jurisdiction under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a Wakf or any other person aggrievedby an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf.
(3) Where any application made under sub-section (1) relates to any Wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawalli of the Wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribiunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the Wakf or any other person interested in the Wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Wakf for Wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is transferred shall deal with the application from the stage, which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.
(4) Every Tribunal shall consist of one person, who shall be member of the State Judicial Service holding a rank, not below that of a District Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
(6) Notwithstanding any thing contained in the Code of Civil Procedure 1908, the Tribunal shall follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court.
(8) The execution of any decision of the Tribunal shall be made by the Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908.
(9) No appeal shall lie against any decision or order whether interim orothe4wise, given or made by the Tribunal.
Provided that a High Court may, ion its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.
7.The learned counsel appearing on behalf of the appellant inter alia submitted that the order of the learned single Judge to the effect that there exists an effective alternative remedy under section 83 of the Wakf Act must be held to be erroneous having regard to the fact that the wakf property being not a registered one, the provisions of the Act were not attracted. The learned counsel in support of the said contention, placed strong reliance on the decision of this Court in Wakf Board v. Parvathi Bai1. In that case, the Court upon consideration of the phraseology used in Sections 44 and 45 of the Wakf Act, 1954 held that even when the Board commences a suo motu enquiry under section 45, the inquiry must necessarily be confined to matters relating to the administration of the wakf and cannot travel beyond the scope of the provision. In other words, the Board has no power to decide anything apart from matters relating to the administration of the wakfs.
8.In the instant case, as noticed hereinbefore, the 1st respondent has proceeded on the basis that after expiry of the original registered Muthavallis, the legal representatives did not approach the competent authority for grant of succession/towliath and the entire land was kept vacant. It is also evident from the order impugned in the writ applicant that the authority had proceeded on the basis that the wakf is a registered one. Since the appellant herein had submitted himself to the jurisdiction of the statutory authority and as the foundational fact has been found against him, he can certainly question the correctness or otherwise thereof before the Tribunal as provided under Section 83 of the Act.
9.In T. Shivalingam v. A.P. Wakf Tribunal2, a learned Judge of this Court clearly held that Section 83 confers jurisdiction upon the Tribunal to entertain any dispute with regard to wakf property and also other disputes in relation thereto are triable by it, particularly in view of the fact that Section 85 of the Act bars the jurisdiction of the Civil Court to decide any dispute relating to wakf property.
10.Yet again in Chowk Mosque, Nandyal v.P.V.H. Maqbul Basha3, it has been held:
Section 6 of the Act makes it clear that if any question arises whether a particular property specified as Wakf Property in the list of Waks is wakf property or not, then a suit should be instituted in the Tribunal constituted under Section 83 of the Act. In other words, if there is a dispute as to the nature of the property namely whether it is a wakf property or not or whether it is Shia or Sunni Wakf, then such dispute shall be resolved by the Tribunal constituted under the Act. If there is no dispute as to the nature of the property i.e., whether it is a wakf or whether it is Shia or Sunni wakf then the Tribunal has no jurisdiction deal with it. Admittedly, on the facts of the present case, there is no dispute as to the nature of the property as it is admitted by both the parties that it is a wakf property. Therefore, the question of instituting a suit in the Tribunal does not arise. Since, in this case there is no dispute regarding the nature of the property and the only dispute is whether the defendants are entitled to interfere with the construction of shops in the mosque premises, it is a civil dispute and the Civil Courts alone have jurisdiction and not the Tribunal constituted under Section 83 of the Act.
Assuming that in the writ petition a jurisdictional fact is required to be gone into, the same can also be directed to be gone into by the Tribunal at the first instance.
11.In Express Newspapers (P) Ltd. v. The Workers4, the Apex Court.:
The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But, would it be proper for the High Court to adopt such a course unless the ends of justice seem to make is necessary to do so? Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule; whether or not even the preliminary facts should be tried by a High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. . . . . .
12.In view of the aforementioned pronouncements, we are of the opinion that the learned single Judge cannot be said to have committed any error in directing the appellant to take recourse to alternative remedy available to him in law.
The Writ Appeal, therefore, fails and it is accordingly dismissed. There shall be no order as to costs.