Khadim Shaik Asif vs Andhra Pradesh State Waqf Board
2022 Latest Caselaw 2359 AP

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     HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
              WRIT PETITION No.6554 of 2022
ORDER :

This Writ Petition is filed questioning the intimation

dated 02.03.2022 issued by the 2nd respondent pursuant to a

resolution dated 28.02.2022 in seeking a direction to the

respondents to consider the representation dated 10.03.2022.

This Court has heard Sri V.S.R.Anjaneyulu, learned

senor counsel appearing for the petitioner, learned Additional

Advocate General for Waqf Board and the learned Government

Pleader for Social Welfare.

The petitioners before this Court as per the learned

senior counsel are the lineal descendants of a holy saint over

whose grave a Dargah was constructed. Their forefathers were

supposedly performing the duties of Muzawars. Petitioners

made a representation to the respondents to consider their

case for appointment as Muzawars. The matter was not

considered. Therefore, a writ petition came to be filed and

ultimately on 28.02.2022 in a meeting of the Waqf Board it was

decided not to accede to the petitioners' request and the same

was communicated to the petitioners. Questioning the letter of

intimation the present Writ Petition is filed.

Learned senior counsel points out that the refusal is

totally contrary to law. He submits that Board directed the

petitioners to obtain a succession certificate. According to him

a succession certificate cannot be obtained for the rights

claimed by the petitioners to be appointed as Muthavalli and it

is only granted by a competent Court for realization of debts,

for movables etc. It is his contention that the impugned order

is contrary to law and it directed the petitioners, among other

things, to obtain No Objection Certificate from the other

members of the family along with additional documents.

Learned senior counsel points out that out of 15 members who

are the successors of the original Muthavalies eight members

have given No Objection Certificate for the appointment of the

petitioners as Muthavallies, therefore, there is no "dispute" per

se which needs a judicial intervention of a decision. Therefore,

learned senior counsel submits that the Board should be once

again directed to consider the representation made and pass

appropriate orders thereon. The contentions of the petitioners

are reiterated in the fresh representation of 10.03.2022, by

which a review is sought by the Board.

Appearing for the Waqf Board the arguments were

advanced by the learned Additional Advocate General. It is

submitted that the issue of succession is a complicated issue

on facts and law. It needs to decide in an appropriate Court.

In addition, it is also submitted that the resolution of the

Board, dated 28.02.2022, is not actually challenged and the

consequential letter by which intimation was sent, is the

subject matter of the challenge. It is also argued that unless

and until a challenge is mooted to the Board resolution and the

same is set aside no relief can be granted to the petitioners. It

is also argued that apart from the issue of succession certificate

the claim of the petitioners were negatived on other grounds

also and therefore the petitioners cannot seek a review of the

earlier order. Reliance is also placed on the Division Bench

Judge in Writ Appeal No. 85 of 2022, wherein the Division

Bench clearly held that the entitlement of the petitioner to be

appointed as Muthavalli has to be determined by a civil Court

or by a Tribunal having jurisdiction. For all these reasons it is

submitted and argued that the petitioner has not made out a

case for interference.

This Court after considering all the facts and

circumstances and the submissions notices that the resolution

dated 28.02.2022 has relied upon seven different points /

issues before coming to a conclusion that the petitioners'

representation dated 20.03.2022 or 09.03.2022 does not merit

consideration. Certain factual and legal issues are also raised

including waiver, limitation and an enquiry to be conducted

before deciding the issue. While the point about succession

certificate is appreciated, the Board resolution also says that it

cannot decide who is the "heir" of the deceased. It is also

pointed out that there is no correlation between Muthavalies

mentioned in the report dated 02.05.1963 and the genealogical

certificate submitted by the petitioners. Therefore, this Court

has to agree that there are issues of fact and law which have to

be pleaded and proved and then decided based upon the

evidence introduced. The petitioners are claiming declaration

of their status and right to be appointed as Muthavallies. In

the opinion of this Court in the writ jurisdiction under Article

226 this Court cannot enter into these areas of dispute. The

further prayer to consider the representation once again is also

a relief that cannot be granted by this Court. Unless there is a

duty cast upon the respondents and a right in the petitioner to

seek the enforcement of the said duty a mandamus cannot be

granted. The Supreme Court of India has commented time and

again for the practice of disposal of representations under

Article 226 of the Constitution of India should not be

encouraged. Lastly, this Court also agrees with the submission

of the learned for the respondents that the original Board

notification should also be challenged and the consequential

intimation by itself cannot be challenged.

This Court notices that on 28.02.2022 the resolution of

the Board was passed negativing the petitioners' claim.

Thereafter on 10.03.2022 a fresh representation is given and

on 14.03.2022 the present Writ Petition has been filed. The

prayer is to reconsider and review the decision of 28.02.2022.

Review is not a right that is vested in the petitioners. Even for

a civil court or the Writ Court the right of review is very limited.

Special circumstances as mentioned in the relevant statute

should exist before a review is claimed. In addition, this Court

while exercising the power under Article 226, in the absence of

any proof of mala fides cannot set aside the said decision or

direct the Board to review the decision granted earlier.

This Court is of the firm opinion that the petitioners will

have to establish their rights to be appointed as Muthavallies

by seeking an appropriate relief either in a Court or duly

constituted Tribunal. The Division Bench judgment in the Writ

Appeal mentioned above squarely applies to the facts and

circumstances of this case. This court is bound to follow the

same.

Therefore, for all the above mentioned reasons, the Writ

Petition is dismissed leaving it open to the petitioners to seek

their redressal in appropriate forum. There shall be no order as

to costs.

Consequently, the Miscellaneous Applications pending,

if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU,J Date:05.05.2022 Ssv