Andhra Pradesh High Court - Amravati

Dara Prakash Rao vs The State Of Ap on 1 April, 2024

Author: R. Raghunandan Rao

Bench: R. Raghunandan Rao

    IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
                                 &
           HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO

                   WRIT APPEAL No.298 of 2024


Between:

Dara Prakash Rao,
S/o. Dara Narasaiah, aged about 73 years,
R/o.Damaramadugu Village,
Buchireddy Palem Mandal,
SPSR Nellore District & 9 others.

                                                   ...Appellants
                               Versus

The State of Andhra Pradesh
Minority Welfare Department
Secretariat, Velagapudi, Amaravathi,
Guntur District.
Rep. by its Principal Secretary & 21 others.
                                                   ...Respondents


Counsel for the Appellants          :Sri O. Manoher Reddy, the
                                   learned     Senior     Counsel
                                   represented on behalf of Sri C.
                                   Subodh.

Counsel for respondent No.1      : G.P for Social Welfare
Counsel for Respondent No.2      : Sri Mohammad Gayasuddin
Counsel for Respondent No.3      :Sri Shaik Rafi
Counsel for Respondent No.4      : Sri S.M. Subhani
Counsel for Respondent Nos.5 to 13: Sri G. Suryam

                             JUDGMENT

Dt:. 01.04.2024

(per Hon'ble Sri Justice R.Raghunandan Rao)

HCJ&RRR,J

Heard Sri O. Manoher Reddy, learned Senior Counsel

represented on behalf of Sri C. Subodh, learned counsel for

appellants, the learned Government Pleader for Social Welfare,

appearing for respondent No.1, Sri Mohammed Gayasuddein,

learned counsel appearing for respondent No.2, Sri Shaik Rafi,

learned counsel appearing for respondent No.3, Sri S.M. Subhani,

learned counsel appearing for respondent No.4 and Sri

Gannavarapu Suryam, learned counsel appearing for respondents 5

to 13.

2. It is the case of the appellants that they are tenants of

land admeasuring Ac.32.20 cents in different survey numbers of

Damaramadugu Village, Buchireddypalem Mandal, SPSR Nellore

District belonging to Mohiddinia Masjid, Damaramadugu Village. It

is contended that the ancestors of the petitioners and subsequently

the petitioners have been cultivating these lands from the year

1970 onwards and have been paying rent to the Managing

Committee of the said Masjid.

3. The District Wakf Officer proposed to conduct an

auction of the leasehold rights of these lands through a notification

dated 11.08.2021 and the same came to be challenged by the

petitioners, in a writ petition. This writ petition was allowed vide

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order dated 10.05.2023, after which a subsequent auction notice

was again issued on 21.09.2023, proposing to conduct an auction

on 28.09.2023, for the leasehold rights of the aforesaid lands.

4. This auction was again challenged, by way of

W.P.No.25493 of 2023. The grounds on which the auction

proceedings have been challenged are: under Section 32(2)(j) of

the Wakf Act, only the Wakf Board is competent to sanction the

lease of any immovable property of a Wakf; the present proposal to

auction leasehold rights is by way of impugned auction notification,

issued by the 4th respondent-Managing Committee which is

incompetent to issue such a notification; the proceedings under

which the 4th respondent sought to conduct the auction of leasehold

rights is by way of a proceeding under Section 27 of the Wakf Act,

issued by the Administrative Officer of the Wakf Board; such

authorization, amounting to delegation of powers of the Board

under Section 27 of the Act is impermissible as the Wakf Board can

delegate its power only to Chair Person or any other member of the

Wakf Board of the Chief Executive Officer and such delegation

cannot be made to a committee; the Wakf lease Rules permit lease

of lesser than one year to be given by Muthavalli or the Wakf Board

whereas the lease was sought to be granted by the committee

appointed by the Wakf Board and the same is not permissible; and

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the notification was issued in the name of Secretary Masjid

Managing Committee whereas the Managing Committee, appointed

by the Wakf Board does not have any person designated as

Secretary of the Masjid Committee and such notification would

have to fail.

5. The learned Single Judge after hearing both sides had

held that the Administrator of the Wakf Board, in the absence of

any existing Wakf Board, would be entitled to authorize the auction

of the leasehold rights of a Wakf institution and had dismissed the

Writ Petition.

6. Aggrieved by the same, the appellants have moved this

Court, by way of the present Writ Appeal.

7. Sri O. Manoher Reddy, the learned Senior Counsel

appearing for Sri C. Subodh, learned counsel for the appellants

would contend that the Wakf Board had ceased to exist and the

Special Officer appointed for managing the affairs of the Wakf Board

had also been removed by virtue of an order of this Court dated

21.08.2023 in W.P.Nos.9030 and 13875 of 2023. He would submit

that the Administrator appointed under this order would not stand

in the place of the Wakf Board and as such, cannot grant necessary

approvals or permissions required under the Wakf Act, for auction

of the leasehold rights of the immovable property of a Wakf

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Institution. He would further submit that, assuming without

admitting that such an Administrator has the authority to exercise

the powers and functions of the Wakf Boards, the Managing

Committee of the 4th respondent Institution cannot grant lease of

the Wakf lands as such lease can be granted only by a Muthavalli or

the Wakf Board; the Wakf Board is required to give previous

sanction for the grant of any lease, under Section 52 of the Wakf

Act and no such previous sanction has already been given for grant

of lease hold rights in the present case. Due to which, the Managing

Committee of the 4th respondent-Institution is incompetent to

undertake any exercise of grant of lease hold rights.

8. The relevant provisions, for the purpose of this case are

Sections 32(2)(j) and Section 56 of the Wakf Act read with Rules 4

& 5 of Wakf Properties Lease Rules, 2014. Section 32(2)(j) of the

Wakf Act empowers the Wakf Board to sanction lease of any

immovable property of a Wakf Institution in accordance with the

provisions of the Wakf Act and the Rules made there under. Section

56 of the Act imposes restrictions on the grant of lease of Wakf

property. Under this provision, leases of any immovable property of

a Wakf Institution, exceeding 30 years, is void. Similarly, lease of

any immovable Wakf property which is an agricultural land, for a

period exceeding three years is void. Section 56(2) of the Wakf Act

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permits a lease of immovable property between the periods of one

year to 30 years, if such is granted with the previous sanction of the

board. This provision, by implication permits the grant of lease of

Wakf property, which is either agricultural or non agricultural, for

a period of less than one year without the previous sanction of the

board. Rules 4 & 5 of the Wakf Property Lease Rules, 2014 also

direct that a Muthavalli or the Wakf Board can give on lease, Wakf

property for any period less than one year. However, any lease

beyond one year and not exceeding 30 years has to be given only

after appropriate publicity for grant of such lease is given by

publication in regional or local news papers setting out the details

of the property which is sought to be leased out.

Consideration of the Court:

9. In the present case, the 4th respondent-Managing

Committee has been constituted by the existing Wakf Board on

11.10.2022 and consequential proceedings dated 14.10.2022 have

been issued by the Chief Executive Officer of the Wakf Board,

stipulating the terms and conditions under which the Managing

Committee was to carry out its duties.

10. It is the contention of the appellants that the Managing

Committee-4th respondent Trust could not have conducted auction

of the leasehold rights as necessary previous sanction required

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under Section 56 of the Wakf Act had not been obtained by the

Committee and in any event the Committee, even if such approval is

given, is incompetent to undertake this exercise.

11. The appellants contend that the previous sanction, said

to have been given on 14.09.2023, vide Memo

F.No.59/Lease/NLR/2020 is an invalid authorization as the said

authorization is being given by the Administrator of Andhra

Pradesh State Wakf Board and not the Wakf Board itself. It is

contended that there is no existing Wakf Board today and the

Administrator appointed in the place of the Andhra Pradesh State

Wakf Board cannot be equated with the Wakf Board, for the purpose

of Section 56 of the Wakf Act.

12. Sri S.M. Subhani, the learned counsel appearing for 4th

respondent would submit that the auction of the leasehold rights of

the land in question is only for a period of 11 months and

consequently permission or previous sanction of the Wakf Board is

not required as such sanction is required only when the lease is

given for a period of exceeding one year. Apart from this, he would

also submit that a Special Officer had been appointed in exercise of

powers under Section 99 of the Wakf Act, 1995 in the place of the

defunct Wakf Board. This appointment was challenged in

W.P.No.9030 and 13875 of 2023. A learned Single Judge of this

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Court had upheld the said challenge and had set aside the

appointment of the Special Officer. However, the learned Single

Judge of this Court had in the very same order, appointed the

Principal Secretary, Government of Andhra Pradesh, Department

of Minority Welfare as the Administrator of the Wakf Board to

manage day to day affairs of the Board, till the Wakf Board is

constituted. He would submit that in such circumstances, the

Administrator appointed by the learned Single Judge, would be

empowered to grant necessary sanction for grant of lease.

13. The lease in question is for a period of less than one

year. In such circumstances, the requirement of previous sanction

from the Wakf Board under Section 56 does not arise. Rule 4 of the

Wakf Lease Rules, stipulate that even a Muthavalli is entitled to

grant leases of less than one year. Section 3(i) of the Wakf Act

defines Muthavalli to include any Person, Committee, or

Corporation for the time being Managing or administrating any

Wakf property. As the Managing Committee of the 4th respondent

has been appointed by the Wakf Board for such purpose, the said

Managing Committee would be deemed to be the Muthavalli of the

4th respondent and would be entitled to grant leases below one year.

14. Sri O. Manoher Reddy, the learned Senior Counsel had

also pointed out that the Managing Committee of the 4 th

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respondent-Wakf Institution had been appointed with the clear

restriction that the Managing Committee should not grant any lease

without previous permission of the Wakf Board. The proceedings of

14.09.2023, which have been impugned in the Writ Petition, record

that the Administrator of the Wakf Board had passed orders

authorizing the Managing Committee to go for fresh auction for a

period of 11 months. This authorization is, in principle, a sanction

to the managing Committee to give a lease of less than one year to

the successful auction bidder. It would only be hairsplitting to

contend that the authorization cannot be equated to sanction. The

grant of authorization is itself a recognition by the Administrator of

the Wakf Board that the Managing Committee intends to lease out

the agricultural lands of the 4th respondent-Masjid for a period of

11 months and grant of authorization would have to be treated as

previous permission given to the managing Committee to grant

lease of the property for 11 months.