Telangana High Court
Managing Committee Bismilla Mosque vs The Andhra Pradesh State Wakf Board, on 27 June, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 1144 OF 2013
ORDER:
The 1st respondent - Waqf Board, by order dated 04.01.2023, superseded the petitioner Managing Committee of Bismilla Masjid situated at Metpally Village and Mandal, Karimnagar District. Stating that it is nothing but arbitrary, illegal and violative of the principles of natural justice, petitioner is before this Court
2. Petitioner Managing Committee claims to be supervising the mentioned waqf institution and they had spent more than two lacs from their pockets and constructed a shed, to provide shelter and place to persons who attend Namaz prayers. It is stated, through order dated 03.04.2012, the Board directed petitioner to clear waqf fund of Rs.51,639/-, but no time limit was mentioned.
It is contended that the 1st respondent under the influence of Janab Asaduddin Owaisi, Member of Parliament of MIM, ignoring the fact that budget of waqf institution would be submitted every year, directed petitioner on 29.08.2012 to submit explanation as to why they failed to remit Rs.51,639/-, for which, petitioner is stated to have submitted explanation on 12.09.2012 stating that amounts which they got are not at all 2 sufficient to manage day to day affairs of masjid and madarsa, however, the Managing Committee decided to pay the remaining waqf fund by contributing from their pockets if 15 days' time is provided. The main grievance of petitioner is the 1st respondent did not follow the procedure under Sections 67(2) and 70 of the Waqf Act and without looking into the legal positon and without conducting any enquiry and assigning any valid reasons and without looking into the fact that they were appointed only on 03.04.2012, the impugned proceedings were issued superseding the petitioner Managing Committee under the Presidentship of Janab Khaja Moinuddin and ten others under Section 67 of the Act. The Inspector Auditor Waqfs, Kareemnagar District was directed to take the subject institution under direct management of Board and the Inspector Auditor Waqfs should conduct election as per G.O.Ms.No. 74, dated 15.02.2010 immediately and he should attend day to day affairs of the institution till then.
3. By order dated 18.01.2013, this Court observed that as seen from the order impugned, there seems to be no enquiry conducted, hence, interim suspension of the impugned proceedings was ordered.
4. The Chief Executive Officer, Waqf Board filed the counter stating that a complaint was received that the Managing 3 Committee of petitioner was constituted without election, as such, the then Deputy Secretary was deputed to Metpallly to conduct an enquiry. The said Deputy Secretary reported that Managing Committee is guilty of certain lapses and they failed to pay waqf fund. According to this respondent, petitioner without taking permission, which they are supposed to, constructed, if at all they had carried out any construction. Subsequently, on the recommendations made by Sri Asaduddin Owaisi being a Member of Parliament on receipt of representation from local people, this respondent deputed a responsible officer to conduct enquiry into the affairs of the institution, the Board got conducted enquiry by the Deputy Secretary, who submitted report on 03.07.2012 pointing out certain irregularities. It is stated that show cause notice was issued on 29.08.2012, so far petitioner did not submit a reply except an interim request for 15 days so as to submit a final reply. The impugned orders were issued on 04.01.2013 about four months thereafter, but petitioner did not choose to submit detailed reply as assured by him.
It is contended by the respondent Board that petitioner has got remedy under Section 67(4) of the Act which says that any person aggrieved by such an order may make an appeal to the Tribunal constituted under Section 83 within sixty 4 days from the date of orders. However, without availing such remedy, petitioner rushed to this Court. The Hon'ble Supreme Court had repeatedly held that Waqf Tribunal has jurisdiction in all matters pertaining to waqfs and as such, a suit should be filed in the first instance before the waqf Tribunal constituted under Section 83 and no such matter should be entertained under Article 226 of the Constitution.
5. Heard Sri K. Venumadhav, learned counsel for petitioner as well as Sri Naseem Ara Mir Masood Khan, learned Standing Counsel for Waqf Board.
6. On a perusal of the material on record and after hearing learned counsel on either side, it is conspicuous that these are all disputed questions of fact, which this Court in exercise of jurisdiction under Article 226 cannot go into. The Hon'ble Supreme Court also in Rashid Wali Beg v. Farid Pindari 1 observed that the Act makes a reference to three types of remedies, namely, that of a suit, application or appeal before the Tribunal, in respect of the following matters:
54. In sum and substance, the Act makes a reference, to 3 types of remedies, namely, that of a suit, application or appeal before the Tribunal, in respect of the following matters:
54.1. Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) & 7(1)].
54.2. A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)].
54.3. Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)].1
(2022) 4 SCC 414 5 54.4. Challenge to an order for restitution/restoration of the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)].
54.5. Conditional attachment of the property of a mutawalli or any other person [Section 35(1)].
54.6. Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)].
54.7. Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)]. 54.8. Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)] 54.9. Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)].
54.10. Challenge to an order for delivery of possession of a property issued by the Collector [Section 52(4)].
54.11. Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property [Section 54(3)]. 54.12. Challenge to the removal of mutawalli from office [Section 64(4)]. 54.13. Challenge to an order superseding the Committee of Management [Section 67(4)]. 54.14. Challenge to the removal of a member of the Committee of Management [Section 67(6)].
54.15. Challenge to any scheme framed by the Board for the administration of waqf, containing a provision for the removal of the mutawalli and the appointment of the person next in hereditary succession [Section 69(3)]. 54.16. Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)]. 54.17. Any dispute, question or other matter relating to a waqf [Section 83(1)]. 54.18. Any dispute, question or other matter relating to a waqf property [Section 83(1)]. 54.19. Eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property [Section 83(1) after its amendment under Act 27 of 2013]. 54.20. Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].
The subject lis falls under para 54.13. In view of the settled legal position, this Court finds no reason to go into merits of matter. Further, the Hon'ble Supreme Court as well as this Court in a catena of judgments had reiterated the necessity to avail the alternative remedies wherever they are available. At the first instance, in all matters pertaining to waqfs, the parties have to 6 approach the Waqf Tribunal constituted under Section 83 of the Act and no such matter should be entertained under Article
226. In this case, as rightly pointed out by the learned Standing Counsel, petitioner without availing the said remedy, straight away approached this Court, hence, the Writ Petition is liable to be dismissed.
7. Accordingly, the Writ Petition is dismissed. No costs.
8. Consequently, the miscellaneous Applications, if any shall stand closed.
--------------------------------------
NAGESH BHEEMAPAKA, J 27th June 2024 ksld