Telangana High Court
Managing Committee Of Sarai Tipu Khan, vs A. P. State Wakf Board on 7 June, 2024
1
LNA, J
CRP.No.947 of 2017
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.947 of 2017
ORDER:
This Civil Revision Petition is filed against the order dated 21.01.2017 passed by the Telangana State Waqf Tribunal, Hyderabad (for short, 'Tribunal') in O.A.No.20 of 2016 (old O.A.No.21 of 2010).
2. The petitioners herein are the applicants and the respondents herein are the respondents in the said O.A. For convenience, hereinafter the parties are referred to as they are arrayed in the O.A.
3. By the Impugned Order, dated 20.01.2017, the Tribunal dismissed the O.A. filed by the applicants under Section 82 (2) of the Waqf Act, 1995 (hereinafter referred to as 'the Act') seeking to set aside the proceedings vide F.No.02/Z1/T/Hyd/2009, dated 02.07.2010, issued by 1st respondent-Waqf Board.
4. The facts giving rise to filing of the present Civil Revision Petition in brief are that 1st applicant was appointed as Managing 2 LNA, J CRP.No.947 of 2017 Committee of Sarai Tippu Khan, Nampally, and Masjid Tipu Khan, Chatta Bazaar, for a duration of two years, under Section 18 of the Act vide Proc.No.62/K/Hyd/2005/C1, dated 30.12.2005, by 1st respondent.
4.1. Subsequently, 2nd respondent made a representation, dated 16.01.2009, to the 1st respondent seeking appointment as Mutawalli, enclosing a copy of the Judgment passed in O.S.No.2692 of 2009, dated 26.11.2009 by III Junior Civil Judge, City Civil Court, Hyderabad, wherein himself and his mother were declared as legal heirs of late Mohd. Mohsin Hussain Khan. 4.2. With regard to the said representation, 2nd applicant filed two objection letters, dated 04.02.2010 and 18.03.2010 respectively, requesting the 1st respondent to reject the representation filed by the 2nd respondent, contending that after the death of his father-Nawab Mohd.Pasha Nizamuddin Khan, he has been performing the duties of the Secretary of the Managing Committee of Sarai Tipu Khan, Nampally, and Masjid 3 LNA, J CRP.No.947 of 2017 Tipu Khan, Chatta Bazar, Hyderabad and he has also been paying the Waqf Fund to 1st respondent.
4.3. The Waqf Board, vide its resolution No.82/2010, dated 03/04.02.2010 referred the matter to Towliath Committee, which in turn vide proceedings No.33/10, dated 22.03.2010 communicated its recommendations to respondent No.1-Waqf Board.
4.4. Subsequently, pursuant to its unanimous resolution vide No.317/2010, dated 29.05.2010, respondent No.1 issued appointment letter, vide F.No.02/Z1/T/Hyd/2009, dated 02.07.2010, appointing the 2nd respondent as Mutawalli for the five Waqfs endowed by Tipu Khan Bahadur, under Section 42 of the Act, without specifying his tenure.
4.5. Aggrieved by the proceedings dated 02.07.2010, of respondent No.1-Waqf Board, the applicants filed O.A.No.20 of 2016 (old O.A.No.21 of 2010) under Section 82(2) of the Act before the Tribunal. The Tribunal, vide Order, dated 20.01.2017, dismissed the O.A.No.20/2006, confirming the proceedings of 4 LNA, J CRP.No.947 of 2017 respondent No.1-Waqf Board, which was based on two key documents i.e., the Endowment deed and Towaliat and the Order dated 26.11.2009 passed in O.S.No.2692/2009 on the file of III Junior Civil Judge, City Civil Court, Hyderabad.
5. Heard Sri Abdul Mateem Qureshi, learned counsel for the petitioners, and Sri Mohd. Veqar Hussain, learned counsel for 2nd respondent. None appeared for the 1st respondent despite granting opportunity.
6. Learned counsel for the petitioners contended that 1st respondent constituted a Managing Committee for overseeing the Waqf of Masjid-e-Tipu Khan, Chatta Bazaar. However, after completion of the tenure of the Managing Committee, the Waqf Board did not renew or reconstitute the Managing Committee, instead appointed the 2nd respondent as Mutawalli in violation of Section 18 of the Act.
7. Learned counsel further contended that the Tribunal has failed to consider the objections filed by the 2nd applicant with regard to the representation made by the 2nd respondent, thereby 5 LNA, J CRP.No.947 of 2017 violating the principles of natural justice; that the Tribunal ought to have appreciated the fact that respondent No.1-Waqf Board did not have powers to appoint a person as Mutawalli under Section 42 of the Act; and that, even if it is presumed that the appointment was made under Section 63 of the Act, 1st respondent did not stipulate the tenure of Mutawalli, which is violative of Section 63 of the Act.
8. Furthermore, it was contended that the Tribunal has relied upon the Judgment dated 26.11.2009 passed in O.S.No.2692/2009 on the file of III Junior Civil Judge, City Civil Court, Hyderabad, but the aforementioned document was not marked as an exhibit. By contending thus, learned counsel prayed to allow the Revision Petition.
9. In support of his contentions, learned counsel for the petitioners relied upon the following judgments:
i) A.P. State Wakf Board v. Mir Qamar Hasan Razvi1,
ii) State of Andhra Pradesh v. Hafiz K.M. Amjad Basha Siddiqui and another 2, 1 2012 SCC Online AP 699 2 2008 SCC Online AP 808 6 LNA, J CRP.No.947 of 2017
iii) Decision of this Court in C.R.P.No.4557 of 2011, dated 30.11.2022 (Gulam Mohammed Mir Hassan Ali Zubair v.
Towliath Committee Dargah Hazrath & Anr).
iv) Shaik. Ghouse Mohiuddin v. A.P. State Wakf Board and others3
10. Learned counsel for the 2nd respondent submitted that the Tribunal had followed the due procedure and passed a reasoned order by taking into consideration the deed of endowment which shows that Haji Mohammed Tipu Khan Bahadur, S/o Mohd. Noor Khan, endowed his properties including subject Waqfs and as per one of the clauses in the Deed of Endowment, the administrator and Mutawalli shall be Mohammed Waris Khan and his issues. He further contended that by the Judgment passed in O.S.No.2962/2009 on the file of III Junior Civil Judge, City Civil Court, Hyderabad, 2nd respondent, who is the great grandson of Alhaj Waris Khan, and his mother were declared as legal heirs of Mohd. Mohsin Hussain Khan, who is the grandson of Mohammed Waris Khan-the original administrator and Mutawalli.
3 2001 SCC Online AP 1143 7 LNA, J CRP.No.947 of 2017
11. In support of his contentions, learned counsel for respondent No.2 relied upon the decision of the High Court of Kerala at Ernakulam in T.P.Kunhikoyamutty Secretary & Ors. v. A.P.Muhammed Kutty and another 4 to the effect that if the waqf is created by a deed or instrument, the rule of succession to the office of mutawalli provided in such deed or instrument should be followed while making appointment to that office. He further relied upon the decision in Shaik Ghouse Mohiuddin's case (cited supra), which is also relied upon by the learned counsel for petitioners.
Consideration:
12. The present Revision Petition is filed primarily contending that despite the representation given by the petitioners, 1st respondent-Waqf Board did not constitute a Managing Committee; that appointment of 2nd respondent as Mutawalli by the 1st respondent is contrary to Section 18 of the Act; and that 1st respondent has no power to appoint Mutawalli under Section 42 4 2017 SCC Online Ker 17220 8 LNA, J CRP.No.947 of 2017 of the Act and that while appointing Mutawalli, tenure was not specified as per Section 63 of the Act.
13. During the course of hearing, learned counsel for the petitioners strenuously contended that the Tribunal has failed to follow the guidelines framed by the erstwhile High Court of Andhra Pradesh in Hafiz K.M. Amjad Basha Siddiqui's case (cited supra) case and thereby, the Tribunal committed error in not marking the documents as exhibits while passing the order though the same were referred to and discussed by it in the impugned order.
14. In support of the above contention, learned counsel for the petitioners specifically referred to the decisions in Hafiz K.M.Amjad Basha Siddiqui's case (cited supra) and Gulam Mohammed Mir Hassain Ali Zubair's case (cited supra).
15. In Hafiz K.M. Amjad Basha Siddiqui's case (supra), the erstwhile High Court of Andhra Pradesh held as under:
"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 9 LNA, J CRP.No.947 of 2017 specifies that notwithstanding anything contained in the Code of Civil Procedure, 1908, the Tribunal shall follow such procedure as may be prescribed. As on today, 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 today 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."
16. In Gulam Mohammed Mir Hassan Ali Zubair's case (cited supra), this Court observed as under:
"10. Though this court has made it clear that till the procedure as may be prescribed is brought into existence in pursuance of S.83(6) of the Waqf Act, 1995, the Tribunal was directed to follow the above judgment for exhibiting the documents, regrettably, the order impugned was passed without making any documents. The Tribunal failed to follow the principles laid in the above decision. Therefore, in such facts and circumstances, this court is not inclined to express any opinion on the merits or otherwise of the order impugned including the documents that are relied upon in view of the fact that they were not exhibited, as it is felt necessary to remit the matter to the Tribunal for fresh consideration. Accordingly, the matter is remitted to the Learned Tribunal to decide afresh in accordance 10 LNA, J CRP.No.947 of 2017 with authoritative pronouncement of this Court in State of Andhra Pradesh v. Hafiz K.M. Amjad Basha Siddiqui, 2008 SCC OnLine AP 808 case."
17. In Hafiz K.M. Amjad Basha Siddiqui's case (supra), it is made clear that till a procedure as may be prescribed is formulated as per/under sub-section (6) of Section 83 of the Act, the Tribunal shall follow the procedure contemplated under Code of Civil Procedure while passing the 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 for the purpose of convenience and discuss the said documents in the course of the order. However, the Tribunal passed the impugned order without marking the documents referred to and thus, the Tribunal failed to follow the principles laid down in the above judgment.
18. Further, this court in Gulam Mohammed Mir Hassan Ali Zubair's case (cited supra), in similar circumstances and identical facts, by relying upon the decision in Hafiz K.M. Amjad Basha Siddiqui's case (cited supra), remanded the matter to the Tribunal for fresh adjudication, 11 LNA, J CRP.No.947 of 2017
19. In the case on hand, the Tribunal referred to and discussed the Deed of Endowment, Towliat of Haji Mohammed Tipu Khan Bahadur, the Judgment in O.S. No.2692/2009 on the file of III Junior Civil Judge, City Civil Court, Hyderabad and the proceedings issued by the 1st respondent vide F.No.02/Z1/T/Hyd/2009, dated 02.07.2010, apart from the objection letters filed by the 2nd applicant, dated 04.02.2010 and 18.03.2010, to the representation of 1st respondent, etc. However, the Tribunal did not mark the same as exhibits in the said O.A. and proceeded to discuss about the same contrary to the guidelines framed by the erstwhile High Court of Andhra Pradesh in Hafiz K.M. Amjad Basha Siddiqui's case (supra) with regard to marking of the documents.
20. Therefore, in the facts and circumstances of the case and the legal precedents, this Court is not inclined to express any opinion on the merits of the case including the documents that are relied upon by the parties and deems it appropriate to remand the matter to the Tribunal for fresh consideration. 12
LNA, J CRP.No.947 of 2017
21. In the result, the Civil Revision Petition is allowed by setting aside the impugned order, dated. 20.01.2017 in O.A.No.20 of 2016 (old O.A.No.21 of 2010), and the matter is remanded to the Telangana State Waqf Tribunal, Hyderabad, with a direction to adjudicate the said O.A. afresh duly following the guidelines framed in Hafiz K.M. Amjad Basha Siddiqui's case (supra) and pass appropriate orders in accordance with law. The Tribunal shall make every endeavor to expedite the hearing of the O.A. and dispose of the matter as expeditiously as possible. It is made clear that the observations made by this Court in this Order are only for the purpose of disposing the present Revision and the Tribunal shall not be influenced by the observations made, if any. However, in the circumstances of the case, there shall be no order as to costs.
22. Pending miscellaneous applications, if any, shall stand closed.
_________________________________ LAXMI NARAYANA ALISHETTY,J Date: 07.06.2024 Kkm/dr