Andhra Pradesh High Court - Amravati
C Fakruddin vs The State Of Andhra Pradesh on 27 February, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No:W.P.No.3846 OF 2023
PROCEEDING SHEET
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3. 27.02.2023 Sri K.Devi Prasanna Kumar, learned counsel
for the petitioners representing M/s. OMR Law Firm
submits that the challenge to the impugned order
dated 22.12.2022 by the Chief Executive Officer,
A.P State Waqf Board is on the ground that the
Board has no jurisdiction to constitute the Managing
Committee for Jamiya Mosque, Opposite to National
Highway Road in Old Sy.No.485 and New
Sy.No.1609 of Yadiki Town and Mandal,
Anantapuramu District, which is the Waqf by user,
but not registered in the Register of Auqaf under
Section 37 of the Waqf Act. Consequently, his
submission is that Section 18 is not attracted.
2. He further submits that the petitioner as
President, along with others got the Jamiya Masjid
Committee, Yadiki registered under the Andhra
Pradesh Societies Registration Act, 2001 and the
Certificate of Registration dated 22.11.2022 was
issued, Ex.P3. He submits that the Local M.L.A vide
letter dated 05.11.2022 requested the Chief
Executive Officer of the Board to constitute the
Managing Committee of 15 members as mentioned
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in his letter, of which 4 names from Sl.Nos.12 to 15
were excluded by the Board vide its Resolution
dated 08.12.2022. The order has been passed with
respect to the other members from Sl.Nos.1 to 11
constituting the Managing Committee.
3. Sri S.M.Subhani, learned Senior Advocate,
assisted by Sri G.Suryam, learned counsel for the
respondent No.5 raises an objection that the
Committee constituted by order dated 22.12.2022, has not been impleaded, which is a necessary party. Sri S.M.Subhani, placed reliance in the case of Alhaj Mohd. Quadeeruddin vs. Anjuman-e- Rifah-al Fuqra Biyabani Dargha Hazrath Khaja Hassan Bahraina Shah Shabeb Kibla, Hyderabad and others1 in support of this submission.
4. With respect to the jurisdiction of the Board, to constitute the Committee, learned counsels appearing for the respondents placing reliance on Section 3 (r) (i), Section 18 and Section 37 of the Waqf Act, submit that it being a case of a 'Waqf by user' and covered under the expression 'Waqf', even if the same is not included in the Register of Auqaf under Section 37, the Board has the power & jurisdiction to appoint the Committee of Management.
1
2014 (3) Andh LD 613
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5. Learned counsel for the petitioners submits that he has impleaded the respondent Nos.5 to 11, out of the Members in the Committee as constituted by the impugned order, by name, excluding those names, who were in the Committee as registered under the Societies Registration Act. He further submits that since he is challenging the Constitution of the Committee itself being without jurisdiction passed under the orders of Chief Executive Officer of the Board, which order itself is without authority, the petitioner has not impleaded the Committee nor the respondent Nos.5 to 11 by designation.
6. So far as the impleadment of the other members of the Managing Committee constituted by the impugned order is concerned the matter will be considered on the next date, though the question with respect to the jurisdiction of the Board to appoint the Managing Committee with respect to the Waqf by user in question, can be considered and decided even in the absence of those members who have not been impleaded. Prima facie, in Alhaj Mohd (supra) the jurisdiction of the Board to appoint committee of Management under Section 18, was not in issue.
7. Matter requires consideration.
8. Issue notice to respondent Nos.6 to 11.
9. Let the counter affidavit be filed within a period of two (02) weeks.
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10. If counter affidavit is filed, the
reply/rejoinder affidavit, if any, may be filed within a further period of one (01) week.
11. List on 20.03.2023.
12. A bare reading of Section 18 of the Waqf Act, shows that the Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of Auqaf". Section 18 uses the expression 'Auqaf'. Section 37 provides for the 'Register of Auqaf'. Sub-section (1) provides that the Board shall maintain a Register of Auqaf which shall contain in respect of each Waqf, copies of the Waqf deeds, when available as also to register the details as specified under Sub-section (1). A bare reading of Section 37 also shows that the 'Register of Auqaf' shall be in respect of each Waqf.
13. Consequently, this Court is of the view, prima facie, that the Waqf by user, also being a Waqf is to be in the Register of Auqaf, under Section 37 for the purposes of Constitution of its Committee of Management under Section 18 of the Act.
14. It is undisputed that 'Jamiya Mosque' is not in the register of Auqaf.
15. Prima facie, this Court is of the view that the Board has no jurisdiction to appoint the Committee SL. DATE ORDER OFFICE NO. NOTE of Management, with respect to the Waqf by user' in question, under Section 18 of the Act.
16. Till the next date of listing, the operation of the impugned order shall remain stayed.
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