Andhra HC (Pre-Telangana)
Adapapa Venkata Reddy (Died) By Lrs. And ... vs Revenue Divisional Officer And ... on 5 February, 2004
Equivalent citations: 2004(3)ALD105, 2004(3)ALT486
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. In all these three writ petitions the order dated 9-4-1997, issued by the Revenue Divisional Officer and Sub-Divisional Magistrate, Gudur, Nellore District-1st respondent, is in challenge. Hence, they are disposed of through this common order.
2. Petitioners are in possession of various extents of land in Sy.No.135, at present in Ward No. 13, Bazar Street, Venkatagiri Town. They claim to have made constructions on the said plots. The land in an extent of 102 Ankanams is said to have been gifted by Venkatagiri Raja to the Wakf Board to be used as 'Agnigundam' (Akva Site) during the Moharmm celebrations. A notification in the A.P. Gazette was issued on 23-1-1992, declaring it as 'Wakf Property'.
3. Petitioners were served with the copy of the order dated 9-4-1997. It discloses that the Chief Executive Officer of the A.P. Wakf Board-3rd respondent found the Wakf property to have been encroached by various individuals including petitioners and in exercise of power under Section 54 of the Wakf Act, 1955 (hereinafter referred to as 'the Act') issued notices requiring the encroachers to vacate the land within ten days from the date of receipt of a copy of that order. It is further stated that since petitioners did not either submit their explanation or vacate the land, the 3rd respondent issued a requisition to the 1st respondent to evict the encroachers and in pursuance of the same, the 1st respondent issued the impugned order requiring petitioners to vacate the place within seven days from the date of receipt of a copy of the order.
4. Petitioners contend that they have not received any notices said to have been issued by the 3rd respondent, much less, the order passed directing their eviction. They contend that the very notification of the land as belonging to the Wakf Board cannot be sustained in law. It is pleaded that unless they were served with notices and an order was passed under Sub-section (3) of Section 54 of the Act, the impugned order cannot be sustained.
5. In the counter-affidavit filed by the 1st respondent, the circumstances under which the impugned order came to be passed have been stated. It is alleged that the Raja of Venkatagiri filed a writ petition challenging the claim of the Wakf Board in respect of the land and that the same was dismissed by this Court, It is also stated that petitioners have an alternative remedy by way of filing suits before the A.P. Wakf Tribunal.
6. Heard the learned Counsel for petitioners, the learned Government Pleader for Revenue and the learned Standing Counsel for A.P. Wakf Board.
7. Petitioners challenge the order dated 9-4-1997, passed by the 1st respondent. This order is said to have been passed by the 1st respondent in exercise of power under Section 54 of the Act. The Act provides for eviction of encroachers from Wakf properties. In addition to adjudication of such claims by the Wakf Tribunal, under Section 83 of the Act, the Act confers powers on the 3rd respondent under Sections 54 and 55 of the Act, to cause eviction of the encroachers. Sub-section (1) of Section 54 of the Act contemplates issuance of a notice directing the encroachers to remove encroachments or submit explanation within a specified time. Sub-section (2) of Section 54 of the Act provides for the method of service. The 3rd respondent is empowered to pass order under Sub-section (3) in pursuance of the notice issued by him under Sub-section (1). If any explanation is submitted, he is required to take the same into account and pass appropriate orders. Axiomatically, if no explanation is submitted, he is required to pass orders almost repeating his own viewpoint on the matter. Either way, the 3rd respondent is under obligation to pass orders under Sub-section (3) of Section 54 of the Act requiring the encroachers to vacate the land or premises.
8. Sub-section (4) provides for a remedy of suit to the persons, who are served with the orders of eviction passed under Sub-section (3). If the persons, who are served with the orders of eviction do not either file a suit or vacate the premises or land, the 3rd respondent is empowered to requisition the services of the Sub-Divisional Magistrate, to order eviction of the encroachers, under Section 55 of the Act. This being the scheme under the Act, it needs to be seen as to whether the same has been followed in the present case.
9. While respondents assert that the notices issued by the 3rd respondent was served upon petitioners, the latter seriously dispute the same. Even if it is assumed that notices are served upon petitioners, it has to be seen as to whether an order was passed by the 3rd respondent as contemplated under Sub-section (3). Neither respondents assert nor the record j discloses that such an order was passed. The lapse is sought to be explained away on the ground that the recipients of notices have not responded with any explanations. As observed earlier, even if the persons were served with the notices do not submit explanations, the obligation of the 3rd respondent to pass orders under Sub-section (3) of Section 54 of the Act does not disappear.
10. It is settled principle of law that where law requires a thing to be done in a particular manner, it shall be done in that manner or not at all. Once it has emerged that the 3rd respondent has not passed any order under Sub-section (3) of Section 54 of the Act, the occasion to requisition the 1st respondent to evict the encroachers does not arise. On this ground alone the impugned order is liable to be set aside. Hence, the writ petitions are allowed and the impugned order is set aside.
11. Since it has come on record that the 3rd respondent has already issued notices to petitioners, they are given 15 days time from today, to submit their explanations to the show-cause notice. On receipt of the same, the 3rd respondent shall pass appropriate orders under Sub-section (3) of Section 54 of the Act. Depending on the nature of the orders that may be passed, it shall be open to petitioners to pursue their remedies or for the 3rd respondent to take further recourse under Section 55 of the Act, as the case may be.
No costs.