Andhra Pradesh High Court - Amravati
Syed Dada Basha vs The State Of Ap on 2 February, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
IN THE HIGH COURT OF ANDHRA PRADESH::AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
I.A.No.2 of 2020
In/And
WRIT PETITION No.2980 of 2020
Between:-
Syed Dada Basha
....Petitioner.
And
The State of Andhra Pradesh Rep. by its
Principal Secretary to Government,
Minorities Welfare (Waqf) Department and
others.
.... Respondents
Counsel for the Petitioner : Mr.S.M.Subhani, on behalf of
Mr.Abdus Saleem
Counsel for the Respondents: G.P. for Minorities & Welfare
Mr.Shafath Ahmed Khan (R3)
Mohd.Gayasuddin (R2)
ORDER:
The present Writ Petition is filed seeking to declare the
action of the 2nd respondent Waqf Board in not handing over the
charge of the Waqf institution viz., Dargah Hzt Minullah Saheb
(RH), situated at Ponnakal Vilalge, Gudur mandal, Kurnool
District, having been appointed the petitioner as Mutawalli and
having received a representation dated 12.12.2019, as illegal,
arbitrary and amounts to dereliction of duties, contrary to the
provisions of the Waqf Act, 1995 (hereinafter referred to as "the
Act")
2) Learned counsel for the petitioner referring to the
averments made in the affidavit filed in support of the Writ
Petition, inter alia, submits that the father of the petitioner was
notified as Mutawalli of the subject matter Waqf institution till the
date of his death on 09.02.1997 and thereafter, the petitioner's
brother one Mr.Akbar Hussain worked as de facto Mutawalli till
his death on 07.10.2011. He submits that thereafter, the
petitioner applied for hereditary Mutawalli and the 2nd respondent
Waqf Board after following the due procedure as per the Waqf Act
recognized the petitioner as Mutawalli and issued proceedings
dated 22.02.2019. He submits that the said proceedings were
published in the Government Gazette dated 17.04.2019. However,
as the petitioner is not allowed to perform the duties of Mutawalli
by the wife of the earlier Mutawalli (brother of the petitioner) on
the premise that the Waqf Board has not handed over the charge.
He further submits that the 2nd respondent having recognized the
petitioner as Mutawalli of the subject matter Waqf institution and
issued proceedings to that effect is under a legal obligation to
ensure that the charge is handed over to the petitioner and
despite approaching the 2nd respondent by making
representations, no action has been taken by the 2nd respondent
and in those circumstances, the petitioner is constrained to
approach this Court.
3) In so far as the proposed respondent (implead petitioner)
is concerned the learned counsel submits that the 2nd respondent
Waqf Board by following due procedure contemplated under the
Act i.e., by conducting enquiry and calling for objections
recognized/appointed the petitioner as Mutawalli as no objections
were received from any person, including the proposed
respondent. He further submits that the proceedings dated
22.02.2019, referred to above, are in force and in view of the
same, the proposed respondent cannot make any legitimate claim
for managing the subject matter Waqf institution. Stating that
Section 25 (c) of the Waqf Act empowers the Chief Executive
Officer to seek police aid for handing over the charge of the Waqf
institution to the petitioner, learned counsel seeks appropriate
directions to enable the petitioner to discharge the functions as
Mutawalli.
4) Learned standing counsel appearing for the 2nd
respondent, while not denying the proceedings recognizing the
writ petitioner as Mutawalli of the Waqf institution, made
submissions to the effect that any dispute with regard to the
management of the affairs of the Waqf institution has to be
agitated before the Waqf Tribunal under Section 83 of the Act.
5) Mr.Shafath Ahmed Khan, learned counsel appearing for
the proposed respondent No.3, made submissions through online.
Learned counsel contends that originally one Mr. Syed Masoom
Basha was Hereditary Mutawalli and Sajjadanasheen of the
subject matter Dargah and as he became very old, he trained one
Mr.Syed Akbar Hussaini Chisthi @ Niamathullah Hussaini Chishti
for the religious post of Sajjadanasheen. He further submits that
Mr. Syed Masoom Peer Hussaini, father of said Mr. Syed Akbar
Hussaini Chishti was kept as in-charge, to help the hereditary
Mutawalli, however, in view of the complaints from various
devotees, the said Mr.Syed Masoom Peer Hussaini was removed
from all duties and Mr.Syed Akbar Hussaini Chisthi was installed
as Hereditary Mutawalli and Sajjadanasheen by observing all the
formalities on 07.07.1976. Referring to the suit filed by the said
Mr.Syed Akbar Hussaini Chisthi against Mr.Syed Masoom Peer
Hussaini, vide O.S.No.220 of 1978 on the file of Judicial
Magistrate of First Class and Addl.Munsif, Kurnool, seeking
permanent injunction he submits that the said suit was decreed
and the matter was carried by way of appeals and the same ended
against the said Mr.Syed Masoom Peer Hussaini. The learned
counsel submits that after the death of Mr.Syed Akber Hussaini
Chisthi, the proposed respondent who is his son, was notified as
Mutawalli and Sajjadanasheen and performing the functions as
such from 07.10.2011 onwards. He further submits that the
petitioner without disclosing correct facts had secured orders
dated 22.02.2019 and without impleading the proposed
respondent as a party, filed the present proceedings with oblique
motive. Learned counsel has also drawn the attention of this
Court to the averments in counter affidavit filed on behalf of the
2nd respondent, more particularly para-5, wherein it was stated
that the writ petitioner has suppressed the background of the
litigation and the Board was misguided in the appointment of the
petitioner as Mutawalli. Stating that the proposed respondent is
in absolute management of the affairs of the subject matter
Durgah as Mutawalli and Sajjadanasheen, he seeks to allow the
implead petition and dismiss the writ petition as the writ
petitioner has no right to manage the affairs of the subject matter
waqf institution.
6) This Court has considered the submissions made and
perused the material on record.
7) At the outset, it may be noted that there is no dispute
with regard to the appointment / recognition of the petitioner as
Mutawalli of the subject matter Waqf institution and the
Notification dated 17.04.2019 published in the Andhra Pradesh
Gazette. It is also not in dispute that the appointment has not
been questioned by any aggrieved party. Unless the proceedings
issued in favour of the petitioner are invalidated by a competent
Court, he is entitled to discharge the functions of Mutawalli of the
subject matter Waqf institution. On the strength of the
proceedings of appointment / recognizing the petitioner as
Mutawalli, learned counsel for the petitioner contended that the
2nd respondent is under a legal obligation to ensure that the
charge in respect of the subject matter Waqf institution is handed
over to the petitioner. On a perusal of the provisions of the Act,
Section 68 of the Act deals with the issue of handing over of
charge that too where any Mutawalli or Committee of management
has been removed by Waqf Board in accordance with the
provisions of the Act or any scheme made by the Board. Section
68(4) of the Act contemplates taking over of charge and possession
of records with the aid of police in the circumstances stated
therein.
8) However, in the present case, a perusal of the material on
record would make it clear that the petitioner has been appointed
/ recognized as Mutawalli of the subject matter institution, but no
proceedings of removal of any Mutawalli or Committee of
management have been issued. In such circumstances, Section
68 of the Act would not attract.
9) At this juncture it may also be relevant to mention here
that though the learned counsel for the proposed respondent
contended that the father of the proposed respondent functioned
as Mutawalli and Sajjadanasheen of the subject matter Waqf
institution till 07.10.2011 and thereafter the proposed respondent
is functioning as Mutawalli and Sajjadanasheen, no material is
filed, except the copies of the common judgment and decree
passed in O.S.No.220 of 1978; O.S.No.221 of 1978 and common
judgment in S.A.No.567 of 1989 and S.A.No.683 of 1989. No
proceedings of the A.P. Waqf Board recognizing the 3 rd respondent
as Mutawalli and Sajjadanasheen of the subject matter Waqf
institution have been filed. In fact Section 42 of the Act
contemplates that whenever there is change in the management of
auqaf due to the death or retirement or removal of the Mutawalli,
the incoming Mutawalli shall forthwith and any other person may
notify the change to the Board. However, the proposed
respondent's claim that the writ petitioner had not disclosed the
relevant facts, including the judgment and decree passed in favour
of the proposed respondent's father gains support from the
averments made in the counter affidavit of the 2 nd respondent.
Further, in the counter affidavit opposing the implead petition, it
is averred that the proposed respondent and his mother are
obstructing the writ petitioner from entering into the Dargah to
perform his duties as Mutawalli. Therefore, the proposed
respondent is a proper and necessary party to the litigation.
Accordingly, I.A.No.2 of 2020 is allowed.
10) Coming to the relief sought for by the petitioner, it is
needless to state that so long as stated earlier the proceedings
issued appointing / recognizing the petitioner as Mutawalli and
Sajjadanasheen of the subject matter Waqf institution remain in
force, he is entitled to discharge the functions as Mutawalli and
Sajjadanasheen. However, if some third parties, including the 3rd
respondent, is coming in the way of the petitioner discharging his
functions, in the considered opinion of this Court, the petitioner
has to approach the Waqf Tribunal and seek appropriate relief
against the parties, who are not allowing him to discharge his
functions. Section 83 of the Act provides for determination of any
dispute, question or other matter relating to a Waqf or Waqf
property. In the light of the said comprehensive provision, the
submission of the learned counsel that under Section 25 (c) of the
Act the CEO of the Waqf Board can seek police aid for handing
over the charge of the affairs of the subject matter Waqf institution
merits no acceptance. The said Section 25 (c) of the Act with
reference to the functions of the CEO of the Board provides for
doing generally of such acts as may be necessary for the control,
maintenance and superintendence of auqaf. Even where the
Mutawalli or a Committee on removal refuses to handover charge,
the CEO is not empowered to take any action, muchless with the
aid of police. No provision of Law which contemplates handing
over of the charge by the CEO is brought to the notice of this
Court. Therefore, no relief in terms of the prayer made in the Writ
Petition can be granted.
11) In the aforesaid view of the matter, the Writ Petition is
disposed of, leaving it open to the petitioner to avail the remedies
before the Waqf Tribunal for adjudication of the disputes for
smooth running of the affairs of the management of the subject
matter Waqf institution. There shall be no order as to costs.
12) Consequently, Miscellaneous Applications pending, if
any, shall stand closed.
________________________
NINALA JAYASURYA, J
Date:02.02.2024.
Ssv
