Andhra Pradesh High Court - Amravati
S.Jaleel Ahmed vs State Of Andhra Pradesh on 23 October, 2019
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.31743 of 2018
ORDER :
This writ petition is filed by the petitioner seeking a writ in the nature of Mandamus declaring the eviction notice issued by respondent No.3 pursuant to the letter issued by respondent No.2 dated 14.03.2018 as illegal and arbitrary.
This Court has heard Sri S.M.Subhani, learned counsel for the petitioner and Government Pleader for Revenue and Sri S.Arifullah, learned standing counsel appearing for the Waqf Board.
The respondents have appeared and have contested the matter.
The essential grievance of the petitioner in this writ petition is that he is being evicted from the petition schedule property without due notice or enquiry. The petitioner's case is that the schedule property is not Waqf property and that it is the private property which was purchased by him under a document dated 12.07.2007. Learned counsel submits that petitioner's predecessors in title have been in possession and enjoyment since more than 60 years. Apart from that, learned counsel submits that it is only the "Board" that can conduct an enquiry and then direct the District Collector to take action to vacate the petitioner from the property assuming it is Waqf property. The grievance of the petitioner 2 is that same is not followed. Learned counsel for the petitioner points out that the impugned letter dated 27.08.2018 is addressed to him to vacate the property within 10 days. The earlier letter dated 14.03.2018 is addressed to the Tahsildar, Kunool by the District Collector to take possession of the shop bearing No.9/215. Learned counsel for the petitioner points out that neither of the letters refers to any enquiry nor is an order enclosed to show that by following the due process an enquiry was held and the petitioner was found to be an encroacher of Waqf property. The order dated 17.07.2008 which is issued by the District Collector also refers to a requisition received from the CEO. Learned counsel drew the attention of the Court to the said proceeding and argued that there is no reference to an enquiry being held and that in the absence of an enquiry, no order of eviction can be passed. According to him, both Rule 22 of the Waqf Act, 1995 (for short 'the Act) and Section 52 of the Act deal with the enquiry. Therefore, he argues that the CEO or any other person cannot make a requisition for eviction of the petitioner. Therefore, it is his submission that the entire action in this case is vitiated and that the petitioner is entitled to protection from forceful eviction by declaring that the proceedings dated 27.08.2018 and 14.03.2018 as un-constitutional.
In reply to this contention that the writ is not maintainable, learned counsel for the petitioner relies upon 3 State of Madhya Pradesh v. Sanjay Nagayach1, Mariamma Roy v. Indian Bank2 and Harbanslal Sahnia v. Indian Oil Corporation Ltd.,3. He argues that a writ is maintainable, even if the submission of the learned counsel for the respondent is to be accepted about the need for the petitioner to apply to the Waqf Board Tribunal.
Learned standing counsel for the Waqf Board relied upon his counter affidavit and argued that the property is a Waqf property. He points out initially that when the publication was made in 1963, the property was not shown as Waqf property and thereafter, a errata GO was issued in 1995 by which the property bearing Dr.No.9/215 at Kurnool was specifically notified. A copy of the errata notification is also filed by the learned counsel for the petitioner. Item.No.9 in the errata notification is the property concerned in this writ petition. Apart from that, the learned counsel for the respondent submits that a notice was already given to the petitioner on 14.11.2007 and that as the petitioner did not reply to the same, the Waqf Board took further steps as contemplated under law. This is spelt out in para 5 of the writ affidavit. He submits that thereafter action was taken to address the letters to the District Collector and others to take possession of the property. Therefore, learned counsel 1 (2013) 7 SCC 25 2 (2009) 16 SCC 187 3 (2003) 2 SCC 107 4 submits that the due process of law was followed in this case and then only the impugned orders came to be passed which are in the nature of execution orders after due enquiry.
Lastly, learned counsel submits that any dispute about the property and the title to the property can only be decided by a Waqf Tribunal and not by the writ Court. He points out that the assertion of the petitioner that the property is a private property is not a matter that can be decided in this writ petition and that as issues on fact are involved, the proper remedy for the petitioner is to approach the Waqf Tribunal alone. Learned counsel relies upon D.Venkata Krishna Rao v. Government of A.P., rep., by Principal Secretary, Revenue Department, Hyderabad4 for the two propositions that (a) the errata notification relates back to the date of initial notification. (b) the question whether the property is a Waqf property or not is to be adjudicated by the Tribunal in a suit instituted for that purpose and that writ petition is not a proper remedy. He also relies upon Rajasthan Waqf Board v. Devki Nandan Pathak5, wherein the Hon'ble Supreme Court clearly held that a question whether the property is a Waqf property or not can only be decided by the Tribunal. To the same effect is the judgment of the Hon'ble Supreme Court of India reported in Board of 4 2012 (6) ALT 379 5 2017 (4) ALD 106 5 Waqf, West Bengal v. Anis Fatma Begum6. Therefore, learned counsel contends that this Court has no jurisdiction to entertain this writ in view of the statutory bar and also states that disputed questions of fact and law cannot be decided in a writ petition.
Learned Government Pleader for Revenue essentially supports the argument advanced by the learned standing counsel for the Waqf Board.
The two questions that arise in this writ petition are about the assertion of the petitioner that the property is a private property and the consequential denial of the same. As per the respondent the property is Waqf property, whereas the petitioner claims title to the property to a registered sale deed. As per the case laws cited by the learned counsel for the respondent it is the Waqf Tribunal alone that can grant a proper relief in this case. The assertion of the petitioner that the property is a private property that it has been in possession and enjoyment of his predecessors since 60 years is not born out from the record. But in view of the assertion of title and the denial, in the opinion of this Court, this is a matter of evidence and appreciation of the same. The writ Court cannot go into this disputed questions of fact. The case law cited by the counsel for the respondent are very clear. Whether a particular property notified by the Waqf Board as 6 2011 (1) ALD 61 6 Waqf property or not is to be adjudicated by the Waqf Tribunal only in a properly instituted proceeding before it. This Court cannot enter into that area of dispute. The Division Bench judgment and the judgments of the Hon'ble Supreme Court of India are very clear on the subject. Apart from this, the question whether the respondent can be lawfully evicted or not is also dependent upon the said finding.
Therefore, this Court without going into other issues that are raised holds that the petitioner should approach the Waqf Tribunal and establish his title to the property. As rightly pointed out by him, the respondents have not filed any document to show that a "due" enquiry was held under the relevant provisions of the statute before they approached the District Collector for eviction of the respondents. The counter affidavit filed does not refer to any enquiry report.
The counsel for the respondent argued that in reply lawyers notice, there is a reference to a report. However, a reading of the lawyer's notice dated 28.05.2018 shows that the learned counsel who gave the notice said that the alleged enquiry and report are all false and that his client is planning to approach the High Court against the orders of the District Collector. Therefore, on this sole basis, it cannot be said that there was an enquiry held. Even the conclusion part of the 7 notice refers to the fact that there is no finding on merits with a proper enquiry.
In that view of the matter, while holding that in the absence of any proof of enquiry being held, the respondents cannot directly approach the Collector, and for the reasons mentioned above this Court holds that it is only the Waqf Tribunal which can decide about the claim of the petitioner in this case.
The judgments cited by the learned counsel for the petitioner are on the general question of maintainability of writ petition in the presence of an alternative remedy.
In view of the clear and categorical pronouncements by the High Court and the Hon'ble Supreme Court on the subject of the jurisdiction of the Waqf Tribunal, this Court is of the opinion that the petitioner is not entitled to any relief.
Hence, the writ petition is dismissed. No order as to costs.
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
________________________ D.V.S.S.SOMAYAJULU,J Date :23.10.2019 KLP