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Judgment
Ms.Niyatha, learned counsel for the appellants; Mr. Abu Akram, learned Standing Counsel for Telangana State Wakf Board represents respondent No.1 (briefly ‘the Wakf Board’ hereinafter); and Mr. Ali Faraz Farooqui, learned counsel for respondent No.2-Jama Masjid Hazrat Omer Faroq Razizllahutala Anhu (briefly ‘the Masjid’ hereinafter).
This intra court appeal is filed against order dated 28.04.2014, passed by a learned Single Judge by which a writ petition preferred by appellant No.1 (original petitioner) viz., W.P.No.29937 of 2013 has been dismissed.
Facts leading to filing of this appeal briefly stated are that the employees of Osmania University, who were the members of Osmania University Employees Cooperative Housing Society Limited (briefly ‘the Society’ hereinafter), needed land for construction of their houses.Thereupon, the General Administration Department of the erstwhile Government vide G.O.Ms.No.232 dated 18.03.1981 directed Hyderabad Urban Development Authority (HUDA) to acquire Acs.65.07 cents of land at Shaikpet Village in Hyderabad bearing Survey Nos.320/1/A, 320/1AA, 320/2, 324, 326/1 and 2. Proceedings under the Land Acquisition Act, 1894 were set in motion and an award was passed. Thereafter, the land was allotted to the Society. The Society carved out the plots and allotted the same to its members. One K.Praveen, who was a member of the Society, was allotted plot No.351/3 admeasuring 179 square yards (briefly ‘the subject plot’ hereinafter). Thereafter, the original petitioner-S.Manikya Reddy purchased the said plot vide sale deed dated 05.03.2011.
It is the case of the original petitioner that respondent No.2 along with some antisocial elements tried to encroach on the subject plot. Thereupon, the original petitioner filed a complaint, which resulted in registration of F.I.R.No.19 of 2012. The original petitioner also filed O.S.No.1341 of 2012 seeking the relief of permanent injunction. It has been averred in the petition that an interim order of injunction was granted in favour of the original petitioner on 18.06.2012, which was made absolute on 16.07.2012.
Thereafter, the aforesaid Masjid filed O.S.No.45 of 2013 before the Wakf Tribunal seeking the relief of declaration that the schedule property admeasuring 360 square yards, which forms part of Survey Nos.320/1A and 320/1AA bearing house No.8-1-284/OU/30/10, is a wakf property. In the aforesaid civil suit, a declaration was also sought that the sale deed executed in favour of the original petitioner was null and void. The Masjid also claimed the relief of possession by removing the encroachment and for grant of injunction. The Wakf Tribunal by ad interim order dated 10.04.2013 granted an ex parte order of injunction.
Thereupon, the original petitioner filed the writ petition questioning the validity of the order dated 10.04.2013 passed by the Wakf Tribunal inter alia on the ground that the Wakf Tribunal has no jurisdiction as the subject property is not a wakf property 7. Learned Single Judge, by order dated 28.04.2014, examined the contentions urged on behalf of the original petitioner and dismissed the writ petition. In the aforesaid factual background, this intra court appeal has been filed.
During the pendency of the instant appeal, the original petitioner sold the subject plot vide registered sale deed dated 19.05.2014 to appellant No.2, who is prosecuting this appeal.
Learned counsel for the appellants submitted that the procedure prescribed under Sections 4, 5, 6 and 36 of the Wakf Act, 1995, has not been followed and therefore, the subject property is not a wakf property.
On the other hand, learned counsel for respondent No.2 submits that the Masjid has already initiated a proceeding before the Wakf Tribunal in which a declaration has been sought that the subject property is a wakf property and that the sale deed executed in favour of the original petitioner is null and void. It is also pointed out that the sale deed executed in favour of appellant No.2 has also been challenged by way of amendment. It is further pointed out that appellant No.2 is a party in the proceeding instituted by the Masjid before the Wakf Tribunal and has been arrayed as defendant No.6. Lastly, it is contended that Wakf Tribunal has jurisdiction to ascertain whether or not the subject property is wakf property. It is fairly contended by learned counsel that the appellants are at liberty to urge all contentions before the Wakf Tribunal as the issues in the said proceeding have already been framed.
We have considered the rival submissions made on both sides.
The issue whether the subject property is a wakf property in the facts and circumstances of the case is a mixed question of law and fact. The issue with regard to validity of the sale deeds executed in favour of original petitioner and subsequently in favour of appellant No.2 cannot be gone into in a writ proceeding. It is pertinent to note that the Masjid had initiated the proceeding on 08.04.2013 before the Wakf Tribunal. In the aforesaid proceeding, the following issues had been framed:
“1. Whether the suit property is waqf property ?
Whether the registered Sale deed document No.1070/2011 dt. 15.04.2011 and document No.507/2011 dated 05.03.2011 are null and void and not binding on the plaintiff ?
Whether the defendants are liable to handover the vacant possession of the suit Mosque by demolishing/removing the unauthorised encroachment along with the illegal structure, if any ?
Whether the plaintiff is entitled for perpetual injunction restraining defendants from changing the nature of suit schedule property in any manner ? and
To what relief ?”
It is also not in dispute that the present appellants are parties to the proceeding before the Wakf Tribunal and have filed the written statement. Therefore, in the peculiar facts and circumstances of the case, we deem it appropriate to dispose of the Writ Appeal with the liberty to the parties to raise all such contentions as are permissible to them in law in the proceeding before the Wakf Tribunal. Needless to state that the Wakf Tribunal shall decide the issue whether the subject property is a wakf property or not without being influenced by the observations made by the learned Single Judge in the order dated 28.04.2014, passed in W.P.No.29937 of 2013.
To the aforesaid extent, order dated 28.04.2014, passed by the learned Single Judge in W.P.No.29937 of 2013, is modified.
Accordingly, the Writ Appeal is disposed of. No costs.
As a sequel, miscellaneous petitions, pending if any, stand closed.