Shagulam Nakshband Hafeez Pasha vs The State Of Andhra Pradesh
2022 Latest Caselaw 1586 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                   W.P.No.20296 of 2021
ORDER:

This writ petition is filed for a Mandamus declaring the

proceedings dated 25.08.2021 issued by the second

respondent as one without jurisdiction, illegal and arbitrary.

This Court has heard learned senior counsel Sri

M.V.S.Suresh Kumar, appearing for the petitioner, Sri Shaikh

Karimullah, learned standing counsel for the Waqf Board, Sri

Prabhakar Sripada, appearing for the unofficial respondents

and also the Government Pleader for Minority Welfare.

Learned senior counsel essentially argues that the

impugned letter dated 25.08.2021 is issued without any

power or authority. He contends that it is absolutely without

jurisdiction and the Chief Executive Officer cannot issue such

a letter. He points out that on the basis of a complaint made

to an Hon'ble Minister, which is forwarded to the Chief

Executive Officer, he was directed his subordinates to

conduct an enquiry and send a report taking necessary

action. He points out that the complaint is about providing

an equal share to the unofficial respondents along with the

petitioner as per a "registered agreement" executed by late

Gouse Mohiddin and to cancel the proceedings of the

appointment of the petitioner as Dargah Mutawalli and to

appoint a Towliath Committee. It is also urged that the

petitioner is not following the religious traditions of the

Dargah. Learned senior counsel submitted that the complaint

of the unofficial respondents is based upon two documents

said to have been executed, according to which, unofficial

respondents have a share in the proceeds of the Dargah and

also have a claim over the same. Learned senior counsel

points out that the petitioner has denied both the documents

on which the unofficial respondents relied upon and once the

said documents are denied they had to be pleaded and proved

in an appropriate forum and the writ Court is not the forum

for the same. It is also submitted that what the unofficial

respondents are seeking is a declaration of their status as the

legitimate heirs of late Gouse Mohiddin and for cancelling the

appointment of the petitioner. He submits that these sort of

reliefs, including the declaration of status, cannot be granted

in writ proceedings. Relying upon the provisions of law,

learned senior counsel submitted that none of these sections

of the Waqf Act, 1995 (for short 'the Act'), confer power on the

second respondent for granting such relief. He submits that

the Government is only empowered to give general or special

directions under section 97 of the Act and to the Board and

only after such directions are given to the Board, the question

of compliance would arise.

In the case on hand, he submits that merely writing a

letter to the Deputy Chief Minister, who forwards the same

will not amount to issuance of directions by the State

Government. Drawing the attention to Section 25 of the Act,

which is relied upon by the learned counsel submits that

powers of the Chief Executive Officer are subject to the

provisions of the Act and the rules made thereunder only.

These powers are limited by what is mentioned in section 25

(a), (b) and (c) of the Act. He submits that the present issue

does not fit or fall within section 25 (a), (b) and (c) of the Act.

Coming to Section 33 of the Act, learned senior counsel

submits that if there is failure or negligence on the part of the

petitioner in the performance of his duties and any loss or

damage has been caused, the Chief Executive Officer with the

prior written approval of the Board can inspect all the

properties.

In the case on hand, he submits that without any loss

or damage being established, including failure or negligence

to perform his duties, the present enquiry has been initiated.

Learned senior counsel also draws the attention of this

Court to the various orders that were passed by Courts of

competent jurisdiction, including the High Court in

recognizing the petitioner's status as a Mutawalli. He draws

the attention to the Gazette notification issued on 01.03.2019

by which the petitioner is recognized as the hereditary

Mutawalli. Learned senior counsel, therefore, submits both

on law and fact, the petitioner has made out a case and that

without any jurisdiction, the impugned order is issued.

Learned counsel also argues that once the order is without

basic jurisdiction, the existence of an alternative remedy is

not very material and that the judgment cited by him in the

case of Gosula Ramulu and others v. A.P.Wakf Board,

Hyderabad1 is squarely applicable to the facts and

circumstances of the case.

Respondent:

The standing counsel argued on behalf of the first

respondent. According to him, the writ is not maintainable

and that the Chief Executive Officer has the power and

authority to issue the proceedings. He points out that the

power can be transferable. He was also submits that the

petitioner was hostile and non-cooperative with the Officials

of the Board. He was also engaged in conflicts with his own

family members and number of complaints and FIRs are also

filed and pending. He relies upon pages 6 and 7 of his

counter affidavit. Coming to the representations submitted

by the petitioner's brothers and sisters (unofficial

respondents), the learned standing counsel submits that the

representation is given by the unofficial respondents as

members of the general public to the Government, which in

turn forwarded the same to the Chief Executive Officer.

Therefore, in order to avoid the internal disturbances, the

officials of the Waqf Board have taken up the matter for

investigation. Therefore, learned standing counsel relying on

2017 (5) ALD 298

Sections 25 and 97 of the Act clearly argues that the

impugned proceedings are correct and that the action taken

is also valid.

On behalf of unofficial respondents, Sri V.V.Satish

argues on similar lines. He submitted that there are serious

issues about the manner in which the petitioner is

conducting his duties as a Mutawalli. Initially, at the

petitioner's request the respondents did not raise any issue

with the hope that he would adhere to the document dated

30.03.2020 and give an equal right to the unofficial

respondents. But, as the petitioner showed his true colours

and behaved in a manner detrimental to the interests of the

respondents, they were compelled to approach the Deputy

Chief Minister. It is submitted that the petitioner is over

looking and ignoring the wishes of the parents. Learned

counsel also relies upon various provisions of the Act and in

particular section 25 of the Act to argue that the action taken

by the second respondent is valid. It is the contention of the

learned counsel as stated in paragraph 23 of his counter

affidavit that issues relating to appointment of Mutawalli,

removal/disqualification and the exclusive rights etc., claimed

by the petitioner as Mutawalli while ignoring the other

siblings are matters on which the Waqf Board and the Chief

Executive Officer can decide.

In rejoinder, learned senior counsel submits that there

is no provision under the Act for complaint being filed before

the Deputy Chief Minister nor the Chief Executive Officer or

can the Government direct action to be taken on the basis of

a complaint of kith and kin of Mutawalli. Sections 24 and 25

of the Act, as per the learned senior counsel would authorize

provided there is prior approval of the Board.

It is also submitted that the dispute now is between a

registered nomination deed (executed by the father of the

petitioner and of the unofficial respondents) on 04.11.1999

nominating the petitioner as Mutawalli and a document said

to be executed later. It is argued vehemently that once the

letter/documents are denied as forgeries and creations, the

writ Court or the Chief Executive Officer do not have the

power or authority to go into these disputed questions of fact.

Learned senior counsel points out that both the documents

dated 11.07.2019 allegedly executed by the mother and the

agreement dated 30.03.2022 allegedly executed by the father

are denied as created and false documents. He points out

that in paras 3, 5 and 7, the specific plea is taken that these

are fabricated documents. He also points out that when the

petitioners sought to joint and implead themselves in

O.S.No.50 of 1913, claiming to be male siblings of the original

Sajjada Nasheen, the Principal Senior Civil Judge, Nellore

dismissed the application stating that they can move a

separate petition at the appropriate time before the competent

authority/forum. Therefore, learned counsel argues that the

respondents will have to prove the lineal descendant and

secure some documents. Hence he submits that the entire

action taken is contrary to law.

COURT:

The genesis of this dispute starts with the complaint

that is given by the unofficial respondents. This complaint or

representation by whatever name is called is addressed to the

Deputy Chief Minister of the State. It is signed by the

unofficial respondents and it relies upon an agreement of

2002 and a clarification said to have been issued on

11.07.2019. In this representation/complaint, the prayer of

the parties is to set aside the order dated 08.02.2019 issued

in favour of the petitioner appointing him as Mutawalli and to

grant rights, authority with privileges to the unofficial

respondents and also to appoint 'Towliath Committee'. This

is the sum and substance of the prayer made.

Pursuant to this, the impugned proceedings were

issued. In fact, the impugned proceedings talks of this issue

in para 1 itself, wherein the prayer to cancel the proceedings,

appointing the petitioner and to appoint a new committee is

highlighted. Thereafter, a direction was issued to conduct

spot inspection and to send detailed report immediately.

This Court also has to notice that the documents on

which the unofficial respondents rely upon have been

expressly denied as false and incorrect and a seriously

disputed fact is there about the 2002 and 2019 documents.

This Court cannot enter into the disputed area of fact while

acting under section 226 of the Constitution of India.

The counter filed by the unofficial respondents also

recognizes the fact that the subject waqf property is earlier

managed and administered under a Court scheme, framed by

the additional Senior Civil Judge, Nellore in O.S.No.50 of

1913. Later, impleadment applications were sought to be

made by some people claiming the post of 'Sajjada Nasheen'

or the 'Mutawalli'. The Principal Senior Civil Judge, Nellore

by his order dated 06.01.2017 dismissed the said

applications directing the petitioners therein to establish their

claim before competent forum or authorities. In the very

same proceedings the Court has held that the present

petitioner can be recognized as 'Mutawalli' of the institution.

The administration was directed to handover possession of

the institution to the present petitioner who was to act as the

Mutawalli. The Court recognized the deed of nomination

dated 04.11.1999 which is a registered document.

In addition, this Court notices the order dated

17.01.2007 passed in E.A.No.136 of 2000 in the same suit

OS.No.50 of 1913. This application is a letter/document

executed by Ghouse Mohiddin, the father of the present

petitioner informing the Senior Civil Judge, Nellore that he

had executed a nomination deed dated 04.11.1999

nominating his elder son, the petitioner, as the Mutawalli.

Objections were invited to the same. The Court considered

the documents filed including the nomination deed dated

04.11.1999 which is marked as Ex.A.2. The document writer

was examined to prove the contents of Ex.A.2 and the attestor

was examined as PW.3. After, considering the evidence and

the objections raised, the learned senior Civil Judge held that

the nomination made by P.W.1 cannot be questioned.

Ultimately, the nomination dated 04.11.1999 executed by the

father in the petitioner's favour was upheld.

As pointed out earlier, the unofficial respondents are

relying upon the clarification document said to be signed by

the mother and an agreement of March, 2020. Both these

documents are expressly denied and are stated to be forgeries

and fabricated. As mentioned earlier, this is a very seriously

disputed question of fact. In addition, once the Court in the

implead application directed the unofficial respondents to file

an appropriate application before the competent forum or

authority, they cannot file a writ for the said relief. These are

matters of evidence have to be pleaded and proved.

Apart from all of the above, this Court also finds that

there is force in what is submitted by the learned senor

counsel. Section 25 gives power to the Chief Executive Officer

to investigate into the waqf properties. A reading of section

25 of the Act makes it clear that the power is given to the

Chief Executive Officer to investigate the nature and extent of

the properties. He can make inventory of the properties, call

for the accounts and information. However, these are subject

to the provisions of the Act and the directions of the Board.

Similarly, even under section 33 of the Act, if there is a failure

or negligence on the part of the Mutawalli, in the performance

of his duties and any loss or damage has been caused to the

waqf or waqf property, the Chief Executive Officer does have

the power to enquire. Further examination of the Act shows

that under Section 70 of the Act, any person can make a

complaint to the Board supported by an affidavit to institute

an enquiry relating to the administration of the Waqf. This is

to be read along with the Rules 24 and 24(a) of the Waqf

Rules 2000. It is clear that such an application for an

enquiry should be submitted by an affidavit accompanied

with fee of Rs.50/- for summoning respondents, witnesses

etc. Time should also be given to the respondents to file

written objections and statements. Right of a counsel to

appear is also there. Rule 24(a) also details the procedure to

be followed to conduct the enquiry. Even if the argument of

the respondents is accepted and Section 25 conferred power

on the Chief Executive Officer to hold an enquiry, it is clear

that from a reading of very same section that it would always

be subject to the provisions of the Act and all the Rules made

thereunder. Therefore, if the Chief Executive Officer wishes to

act upon a complaint given by a third party into the affairs of

the administration of waqf, he should follow the procedure

stipulated in sections 70 and 71 of the Act and the rules

made thereunder.

A reading of the entire Act does not show that there is a

power given to the Chief Executive Officer to determine the

"status" of the unofficial respondents or to hold that the deed

of nomination is later modified by the two documents' which

the unofficial respondents are relying upon. As mentioned

earlier, these documents are denied as false and fabricated.

In the opinion of this Court, the Waqf Board or the Chief

Executive Officer does not have a right to enquire into these

matters with a view to remove the petitioner from the post of

Mutawalli and to appoint a Towliath Committee as prayed for

by the unofficial respondents. These are matters which are

essentially to be decided by a competent Court or Tribunal as

held by the Senior Civil Judge, Nellore in O.S.No.50 of 1913

in the order referred to above.

Therefore, this Court holds that the impugned action

taken is incorrect and contrary to law and is patently without

jurisdiction. Since it is patently without jurisdiction, this

Court has the necessary authority to exercise power under

Article 226 of India. The Hon'ble Supreme Court of India in

the case of Whirlpool Corporation v. Registrar of Trade

Marks, Mumbai and Ors.2 has held that where the

proceedings are wholly without jurisdiction, the writ Court

has the power to interfere even if there is an alternative

remedy. Learned single Judge of the combined high Court in

(1998) 8 SCC 1

the case of Gosula Ramulu's case (1 supra) has considered

the judgment of the Supreme Court in Whirlpool

Corporation (2 supra) and thereafter in para 77 has come to

the conclusion that this Court is not precluded from

entertaining and deciding the writ petition even if there is an

alternative remedy.

In a recent judgment, the Division Bench of this high

Court in the case of A.P.State Waqf Board, Krishna

District v. Shaik Ismail and others3 held that the issue as

to the entitlement of the writ petitioner to be appointed as

Mutawalli has to be decided by a Civil Court or Tribunal

having jurisdiction.

In the light of all of the above, the writ petition is

allowed and the proceedings dated 25.08.2021 issued by

respondent No.2 are held to be without jurisdiction.

It is made clear that this order will not preclude either

the 2nd respondent or other statutory authorities from taking

any action against the petitioner, provided the same is strictly

in accordance with the Act and the Rules framed thereunder.

Similarly, the unofficial respondents are also have the liberty

to establish their "claim" if any before the appropriate forum.

No order as to costs.

3 2022 (2) ALD 211

As a sequel, the miscellaneous petitions if any shall

stand dismissed.

_________________________ D.V.S.S.SOMAYAJULU, J

Date : 31.03.2022 KLP