Andhra HC (Pre-Telangana)
Managing Committee, Wakf vs State Of Andhra Pradesh And Ors. on 21 September, 2000
Equivalent citations: 2000(5)ALT626
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. The petitioner in the instant writ petition challenges the validity of G.O. Ms. No. 136, Minorities Welfare (Wakf-I) Department, dated 13-7-2000 issued by the first respondent-State Government. The same shall hereinafter be referred as the impugned order.
2. In the affidavit filed in support of the writ petition it is stated that originally the Jamia Mosque, Jaggayyapet. (hereinafter referred as 'the Institution') is a notified Wakf under the Towliath of one Mohd. Rafiuddin. The notified Mutawalli Mohd. Rafiuddin died on 19-10-1989 leaving behind him three daughters. The Wakf Inspector having inspected the Institution on 6-11-1993 submitted a report in this regard. The President of the Krishna District Wakf Committee by his report dated 5-1-1990 reported to the Wakf Board stating that the notified Mutawalli died without any male issue. It is stated that late Mohd. Rafiuddin made a declaration to the effect that the succession in the office of the Mutawalli would be by way of election. Accordingly, a Committee was elected on 18-12-1992 consisting of seven members.
3. The Wakf Board by an order dated 5-1-1994 took the Mosque and the Ashoorkhana and its attached movable and immovable properties under its direct management.
4. It appears that after the death of Mohd. Rafiuddin, his son-in-law Mohd. Abdul Sattar Saheb applied for Towliathship of the registered wakf, but the Board in view of the fact that Mohd. Abdul Sattar was not a resident of Jaggayyapet and not a Musalli of the registered Wakf, rejected his request. However, he was appointed as treasurer of the Managing Committee under the provisions of the Wakf Act, 1995 {for short 'the Act').
5. Be that as it may, the third respondent herein submitted an application dated 8-11-1999 for his appointment as Mutawalli of the Institution as successor-in-interest of late Mohd Rafiuddin, the notified Mutawalli of the Jamia Mosque. In the said application, the third respondent herein claimed that Rafiuddin Saheb was his maternal grand-father who died leaving behind him three daughters including his mother and that he had executed a registered Will dated 21-9-1982 in his favour as successor to be appointed as Mutawalli of the Institution. It is the case of the third respondent that he was minor at the time of execution of the Will and late Rafiuddin had appointed M.A. Sattar who is no other than his father as his guardian. The said M.A. Sattar submitted an application on 4-12-1989 to appoint the third respondent herein as Mutawalli. According to the third respondent, the application filed by his father was kept pending for a very long time even though his father has complied with all the objections and requirements for sanction of towliath. The fact remains that no orders were passed on the application dated 4-124989.
6. The State Wakf Board appears to have made an elaborate enquiry to decide the claim of the third respondent herein. The Wakf Board came to the conclusion that the third respondent herein cannot be appointed as Mutawalli considering the fact that in the Gazette notification the rule of succession to the office of the Mutawalli is mentioned as 'elective'. The Wakf Board, in the circumstances, rejected the claim of the third respondent herein by an order dated 9-2-2000.
7. The third respondent herein preferred an appeal before the first respondent-Government under Sections 65(2), 66 and 97 of the Act. The first respondent-Government through the impugned order appointed the third respondent herein as Mutawalli of Jamia Mosque, Jaggayyapet, Krishna District with effect from 12-8-2000.
8. In this writ petition, the said order is impugned by the petitioner on various grounds: It is contended by the learned Counsel for the petitioner that the Government has no jurisdiction whatsoever in law to entertain the appeal preferred by the third respondent herein. The order passed by the Wakf Board dated 9-2-2000 rejecting the request of the third respondent herein for being appointed as Mutawalli, if at all, could be challenged only before the Tribunal constituted under the Act. It is also submitted that the order passed by the first respondent-Government does not disclose any reason whatsoever, and therefore, suffers from non-application of mind. The learned Counsel further submits that the impugned order passed by the Minister for Municipal Administration and Urban Development under the influence of one Nettem Raghuram, ex-Minister hailing from Jaggayyapet. It is alleged that the said Nettem Raghuram developed "unfounded and unwanted" animosity towards the petitioner-Managing Committee and he has been interfering with the administration of the Mosque. It is alleged that the said Nettem Raghuram contested the elections from Jaggayyapet Assembly Constituency on behalf of the Telugu Desam Party and lost the elections.
9. The learned Counsel for the third respondent supported the impugned order under which the third respondent herein is appointed as Mutawalli of the Institution. It is submitted that the Towliath of Jamia Mosque has been by succession only and not by election. The learned Counsel for the third respondent relied upon the fact that after demise of late Mohd. Rafiuddin on 19-10-1989, his son-in-law who is no other than the father of the third respondent has continued as Mutawalli of the Mosque. It is submitted that as the maternal grand son of Mohd. Rafiuddin, the third respondent is entitled to be appointed as Mutawalli of the said Mosque. The Government's power to interfere with the order passed by the Wakf Board rejecting the request of the third respondent for being appointed as Mutawalli is traceable to Sections 65, 66 and 97 of the Act, according to the learned Counsel for the third respondent. It is submitted that the impugned order dated 13-7-2000 does not suffer from any legal infirmity so as to be corrected by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
10. The learned Government Pleader adopted the submissions made by the learned Counsel for the third respondent. However, the learned Standing Counsel for the Wakf Board supported the decision of the Wakf Board and contended that the Government has no jurisdiction whatsoever in law to interfere with the order passed by the Wakf Board rejecting the claim of the third respondent.
11. The question that arises for consideration is as to whether an appeal against the order passed by the Wakf Board rejecting the claim of the third respondent herein as Mutawalli lies to the Government.
12. Section 32 of the Act confers power of general superintendence of all wakfs in a State in the Board established in the State. The Board is duty bound to exercise its powers under the Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended. Section 32(2)(g) confers power upon the State Wakf Board to appoint and remove mutawallis in accordance with the provisions of the Act. Section 63 of the Act confers powers upon the Wakf Board to appoint mutawallis when there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed. Such appointment to act as Mutawalli may be for a specified period subject to such terms and conditions as the Wakf Board may think fit and proper in the circumstances of the case.
13. According to the State Government the appeal preferred by the third respondent is entertained under Section 65(2) of the Act. Section 65 (1) of the Act deals with assumption of direct management of certain wakfs by the Board. Sub-section (2) of Section 65 confers power upon the State Government to call for the records of any case for the purpose of satisfying itself as to the correctness, legality or propriety of the notification issued by the Board under sub-section (1) of Section 65. Suffice it to observe that Section 65 does not deal with the power of the Wakf Board to appoint the Mutawallis. Therefore, sub-section (2) of Section 65 of the Act does not confer any jurisdiction whatsoever upon the first respondent-Government to entertain an appeal against the order passed by the Wakf Board rejecting the claim of an applicant for being appointed as Mutawalli.
14. Likewise, Section 66 of the Act has no application whatsoever and the same does not confer any jurisdiction whatsoever upon the State Government to interfere with an order passed by the State Wakf Board rejecting the claim of an applicant for appointment as Mutawalli. Section 66 of the Act confers jurisdiction upon the State Government to appoint or remove a mutawalli or settle or modify any scheme of management of any wakf whenever a deed of wakf or any decree or order of a Court or any scheme of management provides that a Court or any authority other than a Board may exercise such powers. That is not the situation with which we are concerned for the present in this writ petition. There is no deed of wakf or decree or order of a Court providing for the appointment or removal of a mutawalli and which excludes the power of the Board in that regard. Only in such a situation, the State Government may exercise the power of appointment and removal of mutawallis notwithstanding anything contained in such deed of wakf, decree, order or, scheme. Therefore, the plea taken by the State Government that it had passed the order in exercise of the power under Sections 65(2) and 66 of the Act is absolutely untenable and devoid of any merit.
15. The learned Counsel for the third respondent, perhaps, having realized the difficulty to sustain the impugned order of the State Government under Sections 65(2) and 66 of the Act, made an attempt to trace the power of the State Government under Section 97 of the Act. Section 97 of the Act empowers the State Government to give to the Board such general or special directions as the State Government thinks fit and correspondingly an obligation is imposed upon the Board to comply with such directions in the performance of its functions. In my considered opinion, the State Government in purported exercise of power under Section 97 of the Act cannot give any direction whatsoever in a particular case and compel the Wakf Board to decide its statutory duties and obligations in a particular manner. Any reading of Section 97 of the Act, as suggested by the learned Counsel for the third respondent, would amount to conferring jurisdiction upon the State Government to interfere in day-to-day administration and management of the Wakf Board. The statutory power and authority conferred upon the Wakf Board under the provisions of the Act cannot be allowed to be guided or structured by the State Government in an individual case or issue as the same would amount to controlling or guiding the statutory power of the Wakf Board by the State Government. This Court in Markaz Constructions v. S.H. Mirza Wakf, 1996 (1) An. W.R. 278 = 1996 (1) ALD 952 (DB). approvingly referred to the decision of Karnataka High Court in Masjid-E-Islammabad v. Karnataka Board of Wakf, . observed:
"Once it is accepted that the Board is the statutory authority for giving such sanctions, it is axiomatic that such a statutory power cannot be subject to any control or guidance by any other extraneous authority, even though Section 63 enables the Government to give directions in respect of the functions of the Board such Government supervision would be limited to general functions of the Wakf Board and cannot take any specific statutory power to be exercised by the Wakf Board in its own discretion."
Therefore, the first respondent-Government in purported exercise of the power under Section 97 of the Act cannot interfere with an order passed by the Wakf Board in exercise of its statutory power under Section 32 of the Act.
16. For the aforesaid reasons, I do not find any difficulty whatsoever to hold that the first respondent-State Government has no jurisdiction or authority of law to set aside the order dated 9-2-2000 passed by the Wakf Board rejecting the request of the third respondent herein for appointment as Mutawalli of the institution in question.
17. The impugned order does not disclose any reason whatsoever in support of its decision to set aside the order dated 9-2-2000 issued by the Wakf Board. It merely says that "after careful examination of the issue have decided that Sri M.A. Kaleem S/o. Shri M.A. Sattar being the grand son of the Registered Muthawalli (late Sri Rafiuddin) is fully qualified for being appointed as Muthawalli." On what basis, the first respondent-Government has arrived at such a conclusion is not discernible from the order. The order is ipse dixit in nature. It is well settled that the conclusions by an authority reached in exercise of statutory power are required to be supported by the reasons.
18. But the actual order, which is not carried out in the authenticated copy of the order communicated to the parties, would make an interesting reading. That the Minister concerned having gone through the record while passing the orders appointing the third respondent herein as mutawalli of the Institution observed that "though the appointment of Mutawalli is not hereditary the present applicant Sri M.A. Kaleem is having knowledge of the affairs of the mosque being the family member (grand son) of the registered Mutawalli Sri Rafiuddin." It is also observed that "the applicant Sri M.A. Kaleem is having interest in the Wakf property and the property of the Mosque in question being the family member, grand-son of the registered Mutawalli Sri Rafiuddin..........I find that the present applicant Sri M.A. Kaleem is fully qualified for being appointed as Mutawalli." A reading of the said order would disclose as if the Minister exercised the original jurisdiction which otherwise vested in the Wakf Board. In the order itself, it is conceded that the appointment of Mutawalli in respect of the Institution in question is not hereditary. Having observed that the appointment of Mutawalli in respect of the Institution in question is not hereditary, the first respondent could not have placed any reliance whatsoever upon the will purported to have been executed by late Rafiuddin. In the order, which remained uncommunicated the Minister traced the power of the Government under Section 65 of the Act. I have already dealt with the scope of Section 65 of the Act, which has no application whatsoever to the facts on hand. The reasons, which remained uncommunicated, given in support of the conclusion to appoint the third respondent herein as Mutawalli are wholly irrelevant and extraneous. The third respondent herein could not have been appointed as Mutawalli as a person interested in the Wakf property. Section 65 of the Act, upon which the reliance is sought to be placed, does not confer any such authority or jurisdiction upon the first respondent-Government.
19. In the affidavit filed in support of the writ petition, it is stated in categorical terms that one Mr. Nettem Raghuram Ex-Minister has instigated the third respondent herein to apply for being appointed as Mutawalli of the Mosque and he manipulated a representation through some of his henchmen to the Hon'ble Minister for Wakf Mr. N. Md. Farooq and the Hon'ble Minister endorsed on such a representation a "mandatory direction" that the tenure of the present committee shall not be extended. It may be appropriate to refer the pleadings in this regard as narrated in the affidavit.
"While things stood thus during the last Assembly elections a Telegu Desam Candidate Mr. Nettam Raghuram contested the Jaggayyapet Assembly constituency and he lost the elections in favour of the Congress-I Candidate. It is declared on oath that the Mosque Committee has no political leanings nor any affiliation to any political party, but unfortunately Mr. Nettam Raghuram had developed unfounded and unwanted animosity towards the present committee and he has been interfering with the administration of the Mosque. It is highly unreasonable and contrary to law that the management of the minority religious institution especially of a Mosque is being interfered with by a person who is neither a Mussalli nor a person interested as defined under the Wakf Act. The interference of Mr. Raghuram has been so much that he instigated the grand son of Late Mohd. Rafiuddin who is the 3rd respondent to apply for being appointed as Mutawalli of the Mosque. It is submitted that he manipulated a representation through some of his henchmen who are neither the Mussallians nor residents of Jaggayyapet to the Hon'ble Minister for Wakf Mr. Md. Farooq and the Hon'ble Minister endorsed on such a representation a mandatory direction that the tenure of the present committee shall not be extended. It is humbly submitted that we are pointing out these unwanted interference into the affairs of the Mosque with a view to showing to this Hon'ble Court as to how the affairs of the Mosque administration are being mauled by those who have no say nor interest in the wakf. We do not seek any action against them nor have any intention to seek any relief against them. Our object is to point out how the impugned proceedings are vitiated by extraneous considerations and how they have been issued without considering the interests of the Mosque."
20. In the counter-affidavit filed by the third respondent herein, there is no denial of his approaching the said Mr. Nettem Raghuram, Ex-Minister. The interference in the administration of the Wakf by the said Mr. Nettem Raghuram is not even denied. The representation made to the Wakf Minister through the said Mr. Nettem Raghuram is not even denied. The counter affidavit filed by the first respondent-Government herein does not advert to this aspect at all. The allegations made in the affidavit referred to hereinabove undoubtedly are serious in nature. Such allegations are not even denied by the first respondent. May be the petitioner herein does not seek any relief as such against the Minister for Wakf and the former Minister who are alleged to have interfered in the day-to-day management and administration of the Institution concerned. But these allegations are required to be taken into consideration for deciding as to whether any extraneous considerations have crept into the decision making process. I have no doubt in my mind that such extraneous consideration as pleaded in the affidavit filed in support of the writ petition certainly played a vital role in the decision making process by the first respondent.
21. It is true that the record of the first respondent-Government made' available does not disclose any representation stated to have been made by the said Mr. Nettem Raghuram, former Minister for Prohibition addressed to the Minister for Municipal Administration, recommending the case of the third respondent for being appointed as Mutawalli of the Jamia Mosque, Jaggayyapet. But the record made available by the State Wakf Board would reveal a letter dated 10-11-1999 written by the said Mr. Nettem Raghuram, former Minister for Prohibition to the Hon'ble Minister for Municipal Administration, Urban Development, Wakfs requesting the Hon'ble Minister to give suitable orders to the concerned for appointment of the third respondent as Mutawalli of the Jamia Mosque. The said letter speaks of enclosure of a copy of the application filed by the third respondent herein for appointment as Mutawalli. The Hon'ble Minister made an endorsement on the said letter to the following effect:
"Secretary, Wakf Please see Mr. Kaleem appointment for Mutawalli above the Mosque immediately.
Sd/-, 10-11-1999 N. Md. Farook, Minister for Municipal Admn. and Urban Development, Govt. of Andhra Pradesh, Secretariat, Hyderabad."
22. It is, however, interesting and gladdening to notice that the Wakf Board in discharge of its statutory duty remained uninfluenced by such directions of the Hon'ble Minister. The Wakf Board having considered the application of the third respondent on merits rejected his claim for being appointed as Mutawalli of Jamia Mosque, Jaggayyapet. It is thus clear that the Wakf Board remained uninfluenced and unguided in deciding the application of the third respondent and accordingly passed the order on merits in accordance with law.
23. The third respondent preferred the so called appeal under Sections 65(2), 66 and 97 of the Act against the order passed by the Wakf Board before the first respondent and the said appeal is taken up for consideration and disposal by the Hon'ble Minister for Municipal Administration. It is the same Hon'ble Minister who had already expressed his desire to see that the third respondent herein is appointed as Mutawalli of the Mosque in question. I have already referred to the endorsement dated 10-11-1999 made by the Hon'ble Minister. Obviously, the Hon'ble Minister reiterated his intention of appointing the third respondent as Mutawalli of the Mosque, and accordingly disposed of the so-called appeal preferred by the third respondent. The facts on hand clearly suggest that the decision making process is vitiated. It is clear even to a naked eye that extraneous considerations prevailed in the decision making process. The facts speak for themselves.
24. I do not wish to further make any deep probe into the matter since the petitioner has not impleaded all the concerned as eo nomine parties. Suffice it to hold that the whole decision making process is vitiated.
25. For all the aforesaid reasons, the impugned order is set aside. The writ petition is accordingly allowed with costs.