ORDER
P.S. Narayana, J.
1. The matter is coming up for admission. Heard the learned Government Pleader for Revenue representing the revision petitioners, Sri P. Veera Reddy, learned Counsel representing the first respondent-petitioner-plaintiff and Sri M.A. Rafi, learned Standing Counsel representing the 2nd respondent.
2. This Court on 20-11-2008 made the following order:
Assailing the order dated 27-11-2007, passed by the. A.P. Wakf Tribunal, in I.A. No. 548 of 2007 in O.S. No. 106 of 2007, as irregular and contrary to the provisions of the Wakf Act, 1995 and the Land Acquisition Act, 1894 and consequently to set aside the same, the petitioners-Government, filed the present writ petition.
The writ petition was admitted and unofficial respondent No. 2 also filed counter.
The learned Counsel appearing on behalf of the respondent No. 2 placing reliance on the judgment of this Court in Mohd Abdul Kareem v. A.P. State Wakf Board : 2004 (3) ALT 254, submitted that the present writ petition, filed by the petitioners against an interlocutory order passed by the Wakf Tribunal, is not maintainable, and the remedy of the petitioners is to file revision before the High Court as available to them under Section 83(9) of the Wakf Act, 1995.
However, having regard to the fact that respondent No. 2 has already filed counter, the learned Government Pleader for Revenue appearing on behalf of the petitioners submitted that the writ petition be converted into revision. The learned Counsel for respondent No. 1 expressed no objection.
Hence, the Registry is directed to convert this writ petition into a revision under Section 83(9) of the Wakf Act, and list the matter before the Court having provision to hear the C.R.Ps.
3. In pursuance of the said order, W.P. No. 2932 of 2008 was converted into C.R.P under Section 83(9) of the Wakf Act, 1995 (hereinafter for short referred to as 'the Act' for the purpose of convenience) and thus the matter is coming up for admission. The learned Government Pleader for Revenue representing the revision petitioners, Sri P. Veera Reddy, learned Counsel representing the first respondent and Sri M.A. Rafi, learned Standing Counsel representing the 2nd respondent made submissions in elaboration and further made a request for final disposal of the C.R.P., itself and thus the C.R.P., is being disposed of finally even at the stage of admission. As referred to supra, by virtue of the direction made by this Court on 20-11-2008, W.P. No. 2932 of 2008 is converted into the present civil revision petition.
4. The learned Government Pleader for Revenue representing the revision petitioners had taken this Court through the contents of the impugned order under challenge and would maintain that even if the reasons recorded by the Andhra Pradesh Wakf Tribunal, Hyderabad, (hereinafter for short referred to as 'the Tribunal' for the purpose of convenience) if to be carefully examined the first respondent-petitioner-plaintiff was unable to establish strong prima facie case, balance of convenience or irreparable loss and having held that it is not a fit case for temporary injunction as prayed for to be granted, granting an order of status quo to be maintained by the parties, cannot be sustained. The learned Counsel also pointed out to the relevant portions of the findings recorded relating to the proceedings relied upon by the parties and the memo which had been referred to in the course of the order under challenge and would further maintain that even in the light of the voluminous material which had been placed before this Court in W.P. No. 2932 of 2008 wherein the respective counter affidavits had been filed and in the light of the objection taken the same had been converted into the present C.R.P., it is clear that there is no strong prima facie case established by the first respondent-petitioner-plaintiff. The learned Counsel also pointed out how the request was made on the ground that this property under encroachment by the concerned wakf itself even in the year 2006 and how possession had been taken and the learned Government Pleader for Revenue also specifically pointed out to the report of the commissioner wherein clear observation had been made that certain constructions already had been raised and further would maintain that in the absence of the beneficiaries, making an order of status quo which in away would affect the beneficiaries also, cannot be sustained. The counsel also would maintain that it is not as though these documents are being relied on for the first time, at the stage when the W.P. No. 2932 of 2008 was filed, these documents had been relied on even before the Tribunal, but, however, without considering all these documents and even without marking the documents on which the parties relied on, this order had been made as though it would be in the interest of protecting the interests of the beneficiaries as well and this approach adopted by the Tribunal, cannot be sustained. The learned Government Pleader for Revenue also had drawn attention of this Court to the relevant provisions of the Act and also pointed out to certain provisions of the Code of Civil Procedure in this regard as well.
5. On the contrary, Sri P. Veera Reddy, learned Counsel representing the first respondent-petitioner-plaintiff would maintain that the alleged consent had been withdrawn subsequently and even otherwise the interest of the institution always to be protected and when this land was given by a pious Muslim for a specified purpose, even if the Government is interested in providing house sites, there are several other alternative lands and not choosing any other lands and choosing this land alone for extraneous reasons would normally reflect the mala fide intention of the Government. The learned Counsel also pointed out that even otherwise the procedure to be followed had not been followed and these are prima facie findings recorded by the Tribunal while making an order of status quo in the interests of the concerned parties, that too with a direction to expedite the disposal of the suit itself, when that being so, to disturb the order of status quo at this point of time, that too after sufficient lapse of time, may not be in the interests of any of the parties, in the light of the same, it may be just and appropriate to dispose of the civil revision petition with a direction to the Tribunal to expedite the trial and complete the trial at the earliest point of time. While further elaborating his submissions the learned Counsel also pointed out to Section 83 of the Act dealing with the constitution of Tribunals etc., and specifically had drawn attention of this Court to Section 83(5) and (6) of the Act in particular and would maintain that in the light of Section 83(6) of the Act, the Tribunal may follow such procedure as may be prescribed. But, the learned Counsel in all fairness would maintain that in this regard as on today no rule had been framed and no separate procedure as such had been prescribed, but, however, inasmuch as in the course of order the proceedings had been referred to, it cannot be said that such procedure adopted by the Tribunal would suffer from any illegality whatsoever and hence on this ground the order under challenge needs no disturbance at the hands of this Court.
6. Sri M.A. Rafi, learned Standing Counsel representing the 2nd respondent had explained certain subsequent events and subsequent changes relating to the constitution of the Board and would further maintain that the interest of the institution to be protected at any cost. The learned Counsel also made certain submissions that an order of status quo had been granted to protect the interests of the parties concerned and since it is a just and an equitable order, such order need not be disturbed. On the contrary, if the said order of status quo to be vacated by setting aside the order made by the Tribunal and if the alleged beneficiaries, no doubt who are not parties, to be permitted to proceed with the further construction, the institution would be put to serious loss.
7. Heard the counsel.
8. As already specified above, initially challenging the order made in I.A. No. 548 of 2007 in O.S. No. 106 of 2007 on the file of the Tribunal, W.P. No. 2932 of 2008 was filed and by virtue of the order dated 20-11-2008 the same was permitted to be converted into C.R.P. Thus the C.R.P., is coming up for admission before this Court. The said application was filed by the first respondent-petitioner-plaintiff under Order 39, Rules 1 and 2 read with Section 151 of the Civil Procedure Code (hereinafter referred to for short as 'the Code' for the purpose of convenience) praying for granting ex parte temporary injunction as against respondents 1, 2 and 3 restraining them and their subordinates and alleged beneficiaries and their supporters and any others who put forward claim under the alleged illegal pattas said to have been granted to such persons by respondents 1,2 and 3 and from entering into the plaint scheduled property or any part thereof and interfering with the peaceful possession and enjoyment of the property by the Wakf Institution Jamia Mosque, Noonepally, pending disposal of the suit and to pass such other suitable orders. On 14-11-2007 the Tribunal made an ex parte interim injunction order as against respondents 1, 2 and 3, who are the present revision petitioners. Later the said respondents 2 and 3 i.e., petitioners 2 and 3 in the present C.R.P., filed a common counter. The 2nd respondent herein shown as 4th respondent in the said application being a formal party had not chosen to file any counter. The learned Tribunal had referred to the averments made in the affidavit filed in support of the application at para 2 and the stand taken in the counter by respondents 2 and 3 - revision petitioners 2 and 3 herein in para 3 and formulated the points for consideration at para 4. The Tribunal also while answering the points recorded reasons in detail referring to the relevant provisions of the Act and also different proceedings, recorded findings at para 7 and ultimately without making temporary injunction as absolute as prayed for, it was observed by the Tribunal, in the larger interest, exercising inherent powers the parties be directed to maintain status quo till the disposal of the suit and the main suit itself be disposed of at the earliest point of time. The said order is challenged before this Court. The Tribunal had referred to certain decisions and also had referred to Sections 51 and 91 of the Act and further referred to the memo No. 332/Wakf-A/A2/2007, dated 11-9-2007 and the letter No. LA/56/KNL/2006 dated 8-1-2007 and certain other proceedings as well and further had taken the balancing factors and the interest of the so-called beneficiaries as well and ultimately made the said order.
9. No doubt, Sri P. Veera Reddy, learned Counsel representing the first respondent-petitioner-plaintiff had raised an objection that the documents filed by the revision petitioners in W.P. No. 2932 of 2008 would not form part and parcel of the record of the present C.R.P., and hence those documents cannot be looked into. It is, however, brought to the notice of this Court that the report of the commissioner would form part and parcel of the record and the other documents relied upon also had been placed by the revision petitioners, the contesting respondents even before the Tribunal. But, however, though certain proceedings had been referred to in the course of the order, none of the said proceedings had been marked. Equally several documents which had before the Court while filing the writ petition which are said to have filed even before the Tribunal had not been marked.
10. Section 83(5) of the Act specifies that 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, while trying a suit, or executing a decree or order. It is also true that Sub-section (6) of Section 83 of the Act specifies that notwithstanding anything contained in the Code of Civil Procedure, 1908, the Tribunal shall follow such procedure as may be prescribed. As on to-day, no such procedure had been prescribed by formulating the necessary rules. Rule 60 of the A.P. Civil Rules of Practice dealing with proof of facts by affidavits specifies any fact required to be proved upon an interlocutory proceeding shall unless otherwise provided by these rules, or ordered by the Court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment. Rule 113(7) of the aforesaid Rules deals with marking and certifying of exhibits. Rule 115 of the said Rules deals with marking of exhibits. It is no doubt true that in the light of Sub-section (6) of Section 83 of the Act notwithstanding anything contained in the Code of Civil Procedure, 1908 the Tribunal shall follow such procedure as may be prescribed. It is not in controversy that as on to-day no such procedure had been prescribed. It is also made clear that while making an order even while disposing of an interlocutory application the Tribunal is expected to mark the relevant documents relied upon by both the parties in seriatim and discuss the said documents in the course of the order even for the purpose of convenience. For the reasons best known, the Tribunal had not followed such procedure in the present case. It is needless to say that the report of the commissioner forms part of the record and such report also may have to be considered while deciding the application. It is also brought to the notice of the Court that several of the documents which are being relied upon at this stage also had been placed before the Tribunal and they were not marked. This Court is not inclined to express any opinion whether all the documents now relied upon by the learned Government Pleader for Revenue in W.P. No. 2932 of 2008 had been produced before the Tribunal or not. But, however, liberty is given to the petitioners and also the respondents as well to place all the other additional relevant material if the parties choose to do so and on such production of such additional material also let the learned Tribunal follow the procedure of marking those documents in seriatim, appreciate the rival contentions of the parties concerned and decide the matter afresh in accordance with law. This Court is conscious of the fact that Sub-section (6) of Section 83 of the Act specifies notwithstanding anything contained in the Code of Civil Procedure, 1908 the Tribunal shall follow such procedure as may be prescribed. It is made clear that even in future the Tribunal is expected to follow this procedure, till such procedure as may be prescribed is brought into existence in pursuance of Sub-section (6) of Section 83 of the Act. Accordingly, the impugned order is set aside and the matter is remitted to the learned Tribunal to decide the matter afresh in accordance with law as specified supra. Since the order of status quo had been there, till the disposal of the application afresh by the Tribunal at the earliest point of time in view of the urgency pleaded by the learned Government Pleader for Revenue, status quo obtaining as on to-day to be maintained.
11. In the light of the fact that the matter is being remitted and the order of status quo is being granted by this Court, the Tribunal is expected to decide the application afresh not being influenced by the interim order of status quo granted for the limited period by this Court. Let the learned Tribunal expedite the hearing of the application and dispose of the matter within a period of two months from the date of receipt of a copy of this order.
12. The civil revision petition is allowed to the extent indicated above. No order as to costs.