Telangana High Court
Managing Committee vs The State Of Telangana on 3 May, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 32223 OF 2023
ORDER:
The 1st petitioner claims to be a Musallie of Masjid Nallagutta and asserts that he is a 'person interested' under Section 3(k) of the Wakf Act, 1995 (for short, 'the Act'). Petitioners challenge constitution of Managing Committee consisting of Respondents 4 to 12 by the 2nd respondent - Waqf Board through proceedings F. No. 03/Sec-bad/C/2023/Z-I dated 04.10.2023 for Masjid Nallagutta, Ramgopalpet, Secunderabad alleging it to be illegal, void, ultra vires, unconstitutional, and contrary to the provisions of the Act and the Andhra Pradesh Wakfs Managing Committee, Constitution, Functions, Regulations 2009 (for short, 'the Regulations').
2. Facts narrated in the affidavit are: Masjid Nallagutta along with its attached properties, is a registered and notified Waqf, as per A.P. Gazette No. 6-A dated 09.02.1989. Petitioners have been managing the said Institution for 13 years. While so, the 2nd respondent officially constituted petitioners' Managing Committee vide proceedings F.No. 95/Sec'bad/C1/2000 dated: 19.07.2017 for a period of two (2) years and thereafter, extended the same for a further period of 2 two years vide proceedings F.No. 95/Sec'bad/C1/2000/Supple dated 04.02.2020. Though petitioners are stated to have submitted representation on 06.01.2022 to the 2nd respondent for further extension, the same was not considered, and constituted new Managing Committee, which is nothing but violation of Regulations 5 to 10 of the Regulations.
Petitioners argue that their Managing Committee is entitled for renewal under Regulation 22, as there are no complaints against them and no dues of waqf fund remain unpaid. It is stated that the 2nd respondent formed the new Managing Committee consisting of Respondents 3 to 12 for a term of two years under Section 18 of the Act and the Regulations, 2009. They further argue that formation of Managing Committee by the 2nd respondent deviates the prescribed procedures. According to Regulations 5 to 10, when the office of the 2nd respondent receives more than two panels from Musallies, election should be conducted among them to constitute the Managing Committee. However, in this case, no such election transpired. The impugned proceedings, as delineated in F. No. 03/Sec-bad/C/2023/Z-1, dated 04.10.2023, are said to have contravened the aforementioned Regulations.
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Petitioners rebut the assertions made by the Inspector Auditor Waqf Circle Nos.5 and 7 regarding management of Masjid. They point out the contradictory nature of reports submitted on 10.12.2019 and 11.05.2023, highlighting discrepancies in assessments. According to petitioners, the allegations made against them lack substance and were made without affording an opportunity for explanation. It is contended that constitution of new Managing Committee by the 2nd respondent violates the principles of natural justice and the Regulations. Hence, petitioners are before this Court.
3. Notice before admission was ordered in this case on 01.12.2023, but no interim order was granted.
4. On receipt of notice, the 6th respondent - General Secretary of Masjid Nallgutta filed the counter stating that the 1st petitioner is no longer President of the Managing Committee of Masjid-e-Nallagutta. The 2nd respondent on 04.10.2023 appointed the Committee and on 09.11.2023 their officials immediately after Namaz-e-Zohar (prayer in the afternoon) in the presence of all the mussallis including petitioners handed over charge of the Committee and petitioners also has handed over keys of the lockers and they have been continuously 4 looking after the day-to-day affairs without any hindrance including handling of bank accounts of the Masjid.
It is stated that there is no violation of Regulations 5 to 10 or any Act and the present Writ Petition is not maintainable on the following grounds:
a) This respondent has already taken charge pursuant to the orders dated 09.11.2023 and discharging their duties since then.
b) There are disputed questions of fact and law which can be adjudicated only after evidence and pleadings are complete.
c) Petitioners have an effective, alternative and statutory remedy under the provisions of the Act particularly Section 83 of the Act which reads as follows:
" The State Government shall by notification in the official gazette, constitute as many tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessors and the lessee of such property, under this Act and define the local limits and jurisdiction of such tribunals".
The Tribunal has already been constituted.
d) Suspension / setting aside of the order impugned would revive/ restore an illegal and improper action by continuing petitioners which would be contrary to law.
e) Petitioners have played fraud upon the waqf institution and did not act in accordance and committed act of misfeasance and misappropriation, they also failed to pay the waqf funds to the 2nd respondent.
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It is stated that petitioners never used to properly maintain the Masjid and also did not pay the waqf funds to the 2nd respondent, hence, they were called upon to produce entire accounts in this regard. Submission of petitioners' representation for extension is not within their knowledge and in any event, will not confer any right upon them.
5. Heard learned counsel for petitioner Sri N. Sameena and Sri Abu Akram, learned Standing Counsel for the Waqf Board and Sri Aziz Hussain, learned counsel for the 6th respondent.
6. The contention of the 6th respondent is that petitioners have an effective and alternative remedy under Section 83 of the Act. In this connection, it is appropriate to note that the Hon'ble Supreme Court in Rashid Wali Beg v. Farid Pindari 1 dealt with, in detail, the issue of jurisdiction of Waqf Tribunal to determine 'any dispute', question or other matter relating to a waqf and waqf property. In the said judgment, it has been held as under:
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)].1
(2022) 4 SCC 414 6 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)].
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)].
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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].
7. Since the challenge in this Writ Petition is to the constitution of Managing Committee in respect of subject waqf without considering the representation dated 06.01.2022 of the petitioners for further extension of their term as Managing Committee, in view of the aforesaid judgment, the remedy is before the Tribunal.
8. Hence, without going into merits of the matter, the Writ Petition is disposed of directing the petitioners to approach the Waqf Tribunal under Section 83 of the Act, for redressal of their grievance. No costs.
9. Consequently, the miscellaneous Applications, if any shall stand closed.
-------------------------------------- NAGESH BHEEMAPAKA, J 03rd May 2024 ksld