WP/26394/2006 of S.T. Maqbool Vs The Andhra Pradesh State Wakf Board , on 26 December 2006

ORDER:

This writ petition is filed challenging the order of the firstrespondent dated 25.9.2006 whereunder the petitioner was directed tovacate the land admeasuring Acs.0.03 in survey No.275 situated atDhone village and Mandal in Kurnool District (hereafter called, thesubject land) and deliver vacant possession to Inspector/Auditor,Wakfs, Kurnool District, within 15 days from the date of receipt of thesaid proceedings.

The case of the petitioner in brief is as follows. Petitioner’sfather, Ismail, purchased subject land under a registered sale deedbearing document No.721/82 and after obtaining permission fromDhone Gram Panchayat vide permit B.A.No.30/88-89, dated02.8.1988, he constructed a house. After death of the father, petitionersucceeded to the property and was in possession of the same. Thefirst respondent issued notice dated 03.6.2006 to the petitioner, whichwas served on him on 12.7.2006, directing him to show cause as towhy an order, to remove the encroachment, under Section 54(3) of theWakf Act, 1995 (the Act, for brevity) should not be passed. Thepetitioner was asked to submit explanation within 15 days from thedate of receipt of the notice. He submitted explanation through hisAdvocate denying the contention that the property under hispossession is wakf property. The first respondent however passedimpugned order observing that the petitioner failed to submitexplanation within the stipulated time.

At the stage of admission itself, the first respondent has filedcounter affidavit. The writ petition is opposed as not maintainable inview of availability of alternative remedy before the State WakfTribunal. The title of the petitioner to the subject land is denied. It isfurther stated that the land in survey No.275 is the wakf belonging toDhone Ashoorkhana and the same was published in GazetteNotification No.Part.II, dated 02.5.1963 at serial No.1959. Thepetitioner and others encroached upon the wakf property and,therefore, action was initiated under Section 54 of the Act. Thepetitioner has not submitted explanation though the show cause noticeunder Section 54(1) of the Act is served on 12.7.2006. All otherallegations in the writ affidavit are denied.

Conclusion

Heard learned Counsel for the petitioner and learned StandingCounsel for A.P. State Wakf Board, who maintained their position as inthe pleadings. As there is a dispute regarding the submission of reply/explanation by the petitioner, this Court directed the learned StandingCounsel to produce the file. Accordingly FileNo.M7/15/Prot/KNL/2003-Z.IV dealing with unauthorized occupation ofwakf property in Dhone village, has been produced before this Court. A perusal of the Note File would show the following. After receivingthe show cause notices, six encroachers submitted explanationsthrough their Advocates. The office of the first respondent Board putup a note (pp.15-16-NF) for necessary orders as to conductingsummary enquiry under Section 54(3) of the Act. The Special Officerpassed orders to that effect. An Enquiry Officer was appointed byorder dated 20.9.2006. Then the file was sent to the Enquiry Officer,who started separate Note File. On 01.12.2006, the Enquiry Officerdirected to issue notice to K.Rathangapani Reddy, learned Counsel forthe petitioner, to attend enquiry on 16.12.2006 at 11.00 am. It isobserved from the note file that as Executive Officer was deputed witheffect from 10.11.2006 to 25.11.2006, fresh notice may be necessary. The note file in the main file or the separate note file maintained bySpecial Officer/Chief Officer does not contain minutes of firstrespondent to pass orders on 25.9.2006. An inference can thereforebe drawn that even before the enquiry is completed, the impugnedorder came to be passed in total ignorance of the earlier proceedings. The fact that notice was directed to be ordered to learned Counsel forthe petitioner itself would show that though it is not found, explanationsubmitted by the petitioner was received by the first respondent.

Indeed, it is also evidenced by Xerox copy of the acknowledgementdated 02.8.2006. The impugned order, therefore, is passed in grossviolation of principles of natural justice, without application of mind. Therefore, impugned order is liable to be set aside.

In the result, the writ petition is allowed. The impugned order isset aside and the matter is remanded to the first respondent to giveliberty to the petitioner to participate in the summary enquiry underSection 54(3) and pass appropriate orders. After perusing the file, thisCourt is of considered opinion that this is a case where the firstrespondent should be mulcted with exemplary costs quantified atRs.2,000/- (Rupees Two thousand only). There shall be order to thateffect.

The writ petition is accordingly allowed with costs.

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December 26, 2006. (V.V.S.RAO,J)YS