Telangana High Court
Mohd. Baquer Hussain Zama vs The Chief Executive Officer, on 27 June, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 28587 OF 2023
ORDER:
Proceedings of Respondents 1 and 2 dated 07.06.2022 whereby and whereunder the 3rd respondent was appointed as Mutawalli under Section 63 of the Waqf Act, 1995 (for short, 'the Act') for a period of three years in respect of waqf institution namely 1) Masjid, 2) Dargah Bazrath Rouzatul Hadees, 3) Dargah Hussain Zamana Mohd. H.No. 17-2-964 with attached house No. 17-2-939, 17-2-938, 17-2-938/1, 17-2- 938/2, 17-2-938/3, 17-2-938/4, 17-2-932, 17-2-933, 17-2- 929, 17-2-963, graveyard and library and also one house without No., one library to an extent as per plan 6547 square yards situated at Rein Bazar, Hyderabad, is questioned in this Writ Petition by the petitioner, who claims to be the caretaker of the above institution.
2. The case of petitioner is that since the Waqf Board is not looking after the subject institution, they themselves got registered a Society on 02.11.2022 with the Registrar of Societies, Hyderabad (South) and petitioner being the President along with other members several times represented to the Waqf Board to approve the said Society, but no steps have been taken so far. While so, petitioner is stated to have filed an on line 2 application dated 20.10.2022 requesting to appoint him as Mutawalli of the said waqf institution on the ground that he himself has been looking after its affairs and his four fathers had also looked after the affairs for the last seventy years; further previously, he was also recommended by the Inquiry Officer of the Waqf Board to be appointed as Khadim and Nigrankar of the subject institution.
It is the further case of petitioner that recently, he came to know that Respondents 1 and 2 vide impugned proceedings, appointed the 3rd respondent, who is in no way concerned with the waqf institution as mutawallia without conducting any enquiry and without considering his on line application. Petitioner avers that the 3rd respondent used to create nuisance by shouting and misbehaving with the visitors and Namzis for which one of the frequenters to the waqf institution, filed O.S. No. 93 of 2022. In the said suit, the Waqf Tribunal passed the order dated 13.11.2002 directing the respondents to maintain dignity and respect prayers till 30.12.2022 and the said order is in force, however, Respondents 1 and 2 intentionally and deliberately not referred the said case in the impugned proceedings, which, itself, proves that they suppressed the facts of the matter. Petitioner also is stated to 3 have reported the matter to Respondents 1 and 2 on 25.05.2022, but in vain.
Petitioner states that himself as Nigrankar and caretaker of the institution appointed Pesh Imam, Mouzan for the Masjid and he used to perform Urs ceremonies every year duly taking permission from Respondents 1 and 2 with police aid peacefully, however, the latter, without considering the services rendered by him, clandestinely appointed the 3rd respondent as Mutwallia through impugned proceedings, which petitioner requests this Court to set aside
3. While issuing notice before admission, on 18.10.2023, this Court directed both the parties to maintain status quo obtaining as on that day in all respects and the said order is extended from time to time.
4. The Chief Executive Officer of the Waqf Board filed the counter-affidavit denying the averments of the Writ Petition. It is stated that their office received representation dated 23.03.2021 from the 3rd respondent to appoint her as Muthawallia for the subject waqf institution. The I.A. Waqf reported vide report dated 16.08.2022 that the 3rd respondent is performing duties in place of her husband who died on 21.02.2019 under the supervision of I.A. Waqf with the support / help of petitioner till now and suggested to consider the 4 request of the 3rd respondent. While contending that the Waqf Board followed the procedure in appointing the 3rd respondent, hence, no exception can be taken to the same, submits that petitioner has efficacious alternative remedy before the Waqf Tribunal under Section 83 of the Act, as such, Writ Petition is not at all sustainable and is liable to be dismissed.
5. Heard Sri Syed Kareemuddin, learned counsel on behalf of petitioner as well as Sri Farah Azam Khan, learned Standing Counsel for Respondents 1 and 2 and Sri Mohd. Adnan, learned counsel on behalf of the 3rd respondent.
6. On a perusal of the material on record and after hearing learned counsel on either side, it is very clear 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 Pindari1 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:
54.1. 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 54.12. In view of the settled legal position, this Court finds no reason to go into merits of matter. Moreover, the Hon'ble Supreme Court as well as this Court time and again has reiterated that in all matters pertaining to waqfs, parties have to approach the Waqf Tribunal constituted under Section 83 of the Act and no such matter should be entertained 6 under Article 226. In this case, petitioner without availing the said remedy, straight away approached this Court, hence, the Writ Petition is liable to be dismissed.
7. This Court is not inclined to go into merits of matter also for the reason that the Hon'ble Supreme Court in United Bank of India v. Satyawati Tondon 2, has heavily come down on the High Courts stating that whenever there is efficacious and alternative remedy available, the party has to be relegated to the said remedy and the High Courts in exercise of jurisdiction under Article 226 of the Constitution, shall be slow in entertaining the Writ Petitions.
8. Hence, the Writ Petition is dismissed, however, petitioner is at liberty to avail the appropriate remedy before the Waqf Tribunal, under Section 83 of the Act. No costs.
9. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 27th June 2024 ksld 2 (2010) 8 SCC 110 7