Telangana High Court
Mohammed Abdul Sattar vs The State Of Telangana on 21 March, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 20048 OF 2023
ORDER:
Petitioner claims to be the Mutawalli of the Wakf Institution Edgah Kalabgore situated at Sangareddy Town, previously Medak District along with its attached properties vide proceeding F.No.4/MDK/C/2011/Z-II dated 11.05.2012 and since then, he is discharging his legitimate duties without any complaint from any quarter. He highlights his tenure as Mutawalli since 2012, without any complaints, emphasizing his legitimate duties. Petitioner challenges the legality of the proceedings dated 26.06.2023 which constituted a Managing Committee consisting of Respondents 4 to 10 issued by the 2nd respondent, contrary to the provisions of the Wakf Act, 1995 (for short, 'the Act').
Petitioner states that the Waqf Institution is a registered and notified property, as documented in the A.P. Gazette No.48-A dated: 29.11.2001 at Sl. No. 19797. He disputes the allegations in the impugned proceedings, asserting that no opportunity for explanation was provided, rendering constitution of Managing Committee invalid. He points out his consistent performance of duties, including organizing prayers 2 for Eid-ul-Fitr and Eid-ul-Adha, without complaints. It is argued that in the absence of any proceedings initiated against him under Section 64, the 2nd respondent lacks the authority to constitute a Managing Committee without his removal.
Referring to the established legal precedent, petitioner contends that a Managing Committee cannot be formed while petitioner - Mutawalli is actively discharging his duties. According to petitioner, he managed the Wakf Institution duly adhering to Muslim law customs and practices since 2012. He therefore, seeks to declare the proceedings F.No. 04/MDK/C/2011/Z-IV dated 26.06.2023 issued by the 2nd respondent constituting the Managing Committee consisting of Respondent No. 4 to 10 in respect of the Wakf Institution as illegal, void, ultra vires, unconstitutional and contrary to the provisions of the Act and Rules made thereunder and also in violation of the principles of natural justice.
2. The 2nd respondent Waqf Board filed counter- affidavit stating that the Waqf Institution is officially designated as a notified Waqf Property in AP. Gazette No. 48-A dated 29- 11-2001 at Sl. No. 19797. The Waqf Board appointed a Mutawalli to oversee its daily affairs. The report submitted by the Inspector Auditor Waqf on 17.03.2020, recommended constitution of managing committee following a representation 3 by Syed Zakir Hussain, General Secretary. Subsequent investigations revealed the absence of Mutawalli, who had not visited the Eidgah for several years, delegating responsibilities to another individual without proper accounting or fund allocation. Local reports indicate Mr. Ghouse (alias Doctor) circulating pamphlets and declaring himself as the working president of Eidgah, further highlighting irregularities.
It is stated that show cause notice was issued to the Mutawalli on 15.11.2022 by the Telangana State Waqf Board- Towliath Section, prompting a response regarding non-payment of Waqf funds and failure to submit annual budgets.On 28.02.2023, the Inspector Auditor Waqf Sangareddy reported Mutawalli's absence and recommended action be taken. It is stated that matter is placed before the Chairperson of Telangana State Waqf Board where Resolution was passed on 26.06.2023 whereunder Adhoc Committee for Eidgah Kalabgore Sangareddy Town and District was constituted for a period of three years under Section 18 of the Act with the following members ie. Respondent No. 4 to 10.
S.No. NAME DESIGNATION
1 Janab Mohammed Ghouse President
2 Janab Nohammed Khaja Vice President
3 Janab Syed Zakir Hussain General Secretary
4 Janab Hafiz Qutub Ur Rahman Treasurer
4
5 Janab Mohammed Shafi Member
6 Janab Mohammed Atheequddin Member
7 Janab Shujauddin Member
It is stated that since the Act contains provisions for removal of Mutawalli, certain grounds have been laid down under Section 64 of the Act.
It is stated that in Dargah Hz. Shaik Sha Vali and Hazrath Vs State of Andhra Pradesh (Writ Petition No. 38632 of 2018) it is decided that " Having regard to the view taken by the Court with reference to availability of effective and efficacious remedy under Section 83 of the Act, the Court is not expressing any opinion on all other contentions argued by the learned counsel for petitioner. Suffice to note that even the observations on the scope of Section 38 of the Act 1995, the competency of chairperson to appoint the Executive Officer and the power of the Board to deny financial powers to Mutawalli are only incidentally referred to and dealt with to test the contention on validity of those orders as per se vitiated and not compel the petitioner to go before the Waqf Tribunal."
In Board of Wakf, West Bengal v. Anis Fatima Begum 1, on construing the relevant provisions of Wakf Act, the Hon'ble Supreme Court held:
" In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. "1
(1997) 3 SCC 261 5 In Akkode Jumayath Palli Paripalana Committee vs. P.V.Ibrahim Haji 2, the Hon'ble Apex Court held that Waqf Tribunal is competent to go into dispute with regard to management and peaceful enjoyment of the mosque and Madarsa and the assets which relate to waqf.
In Bhanwar Lal vs. Rajasthan Board of Muslim Wakf 3, the Supreme Court observed that the suit was instituted in Civil Court much prior to coming into force of Wakf Act, 1995, it is, therefore, held that Civil Court jurisdiction is not ousted. Incidentally, Supreme Court also observed that suit pertaining to renewal of trustees and rendition of accounts would fall within the domain of the Tribunal.
This respondent argues that availability of alternative remedy typically bars entertainment of a writ petition, except in cases of incompetency, malice, lack of natural justice, or blatant illegality. None of these conditions apply here. Furthermore, the existence of a specialized judicial forum ie. Wakf Tribunal for adjudicating issues arising from the Waqf Act 1995, makes the pursuit of a Writ Petition unnecessary, as established by the Supreme Court in several cases. 2 AIR 2013 SSC 3530 3 AIR 2014 SCC 758 6
3. The President, Edgah Kalabgore, Sangareddy, the 4th respondent and Treasurer, the 7th respondent filed their respective counters stating that the Chief Executive Officer, Telangana State Waqf Board constituted committee of Edgah Kalabgore by proceedings dated 26.06.2023 and he is the President of Ad hoc Committee. It is stated that petitioner has not availed the remedy under Section 83 of the Act. This counter is almost on similar lines with that of the Waqf Board.
4. Petitioner filed the reply affidavit concerning Para No. 4, the representation dated 04.12.2021 referenced by the 6th respondent is stated to be unknown to him. Additionally, a report submitted by the Inspector Auditor Waqf dated 17-03- 2020, predating the representation, is cited. It is argued, citing a judgment in Md. Saleem Ur Rahman Vs A.P. State Wakf Board (2007 (4) ALD 527) held that "...The appointment of a Committee arises only when the Waqf does not have a Muthawalli. Conversely, no Committee can be appointed as long as the Muthawalli functions for a Wakf", as such the representation and report cannot sustain in the eye of law.
It is stated, the judgment relied on by the 2nd respondent is not applicable to the facts of the case. The impugned proceedings was issued by the 2nd respondent 7 without giving notice to petitioner and without following due process of law. It is well settled law that the High Court can entertain the Writ petition directly in at least three contingencies (i) for enforcement of any fundamental rights, (ii) Violation of principles of natural justice and (iii) Proceedings are wholly without jurisdiction or virus of the Act challenged.
It is stated that Madras High Court in Khadar Shariff Vs T.N. State Wakf Board 4 held that "after considering the arguments of learned counsel on both sides, we are of the opinion that the provisions of the Act do not empower the Wakf Board to appoint either a committee or an Executive Officer to manage the Wakf when a mutawalli is in charge of the management and administration of the Wakf. In our view, neither S.15(1) nor S.15(2)(o) authorises the Board to take a drastic step, which will virtually eliminate the muthawalli from the management of Wakf. Though it is contended by the respondents that the Executive Officer and the committee appointed by the Board are only to function along with the mutawalli and, not as superior officers to him, it is quite evident that the mutawalli's power of taking decisions with regard to the management of, wakf has been taken away. Whether the Executive Officer and the committee are superior to the Mutawalli or not, the mutawalli 4 1987 0 AIR(Mad) 40 8 has to consult them for each and every thing as he is made to work along with them by the order of the Board. Interposition of the Executive Officer or the committee of management will certainly tantamount to deprivation of the mutawalli of his powers of, management. We agree with the decision of the Andhra Pradesh High Court in Andhra Pradesh Wakf Board v. Mohd. Hidayatullah, AIR 1974Andh Pra 287 referred to earlier that the Board has no power to interfere with the management of the mutawalli as long as there are no proceedings pending against him. We also approve of the reasoning of Ismail, J. (as he then was) in Mohammed Shareef v. Superintendent (Wakf), AIR 1971 Mad 243 to the similar effect".
5. Heard Sri Mohd. Naseeruddin, learned counsel for petitioner as well as learned Standing Counsel for Waqf Board.
6. The case of petitioner is that Managing Committee cannot be formed while petitioner - Muthawalli is actively discharging his duties, whereas the case of respondent is that report submitted by the Inspector Auditor Waqf on 17.03.2020 recommended constitution of Managing Committee following a representation by Syed Zakir Hussain, General Secretary on the ground that mutawalli had not visited Eidgah for several years delegating responsibilities to another. These are all the disputed 9 questions of fact which this Court exercising the writ jurisdiction cannot decide. It is well-settled that Waqf Tribunal is competent to go into the dispute with regard to management and peaceful enjoyment of mosque and Madarsa and the assets relate to Waqf. The Division Bench of this Court also in Writ Appeal No. 1480 of 2009 by its judgment dated 27.02.2024 held that adjudication of disputed questions of fact could not have been gone into in a summary proceeding under Article 226 of the Constitution of India and they have to be adjudicated in terms of Section 83 of the Act.
7. In view of the settled legal position, the Writ Petition is dismissed, however, liberty is reserved to petitioner to take recourse to such remedy as may be available to him before an appropriate Forum where the disputed questions of fact can be adjudicated. No costs.
8. Consequently, the miscellaneous Applications, if any shall stand closed.
-------------------------------------- NAGESH BHEEMAPAKA, J 21st March 2024 ksld