Syeda Kaneezesakina Moosavi vs Telangana State Waqf Board, Razack ... on 10 July, 2025

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Telangana High Court

Syeda Kaneezesakina Moosavi vs Telangana State Waqf Board, Razack ... on 10 July, 2025

Bench: B. Vijaysen Reddy

         HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY

                   C.R.P. Nos.1394 & 1392 OF 2022
                                 AND
                W.P. Nos.15769, 18513 & 19649 OF 2021

COMMON ORDER :

1. All these matters arise out of the disputes relating to the Wakf Institution viz., Bargah-e-Hazrath-e-Abbas (AS), Deevan Devdi, Hyderabad (hereinafter referred to as 'Wakf Institution'), in connection with appointment of Mutawalli to the Wakf Institution and other common issues, as such, they are being disposed of by this common order.

2.1. Both C.R.P. Nos.1394 and 1392 of 2022 are filed by Mir Hyder Ali Moosavi challenging the common judgment dated 03.12.2021 in O.A. Nos.34 and 49 of 2021 passed by the learned Telangana State Wakf Tribunal, Hyderabad (for short 'Wakf Tribunal'). The said O.As. were filed under Section 83(2) of the Wakf Act 1995 (for short 'Wakf Act') challenging the order in F.No.02/Z1/T/HYD/ 2015 dated 01.07.2021 passed by respondent No.1 - the Telangana State Wakf Board, Hyderabad (for short 'Wakf Board'), whereby he (respondent No.2 - Mir Hyder Ali Moosavi) was 2 BVRJ CRP No.1392 of 2022 & Batch appointed as Mutawalli of the Wakf Institution under Section 42 of the Wakf Act, only for specific period i.e., from 01.07.2021 to 30.06.2022.

2.2. W.P. No.15769 of 2021 is filed by Syeda Kaneez-e-Sakina Moosavi challenging the very same proceedings i.e., Memo in F.No.02/Z1/T/HYD/2015 dated 01.07.2021.

2.3. W.P. No.18513 of 2021 is filed by Mir Jaffar Ali Moosavi Alias Mir Abbas Ali Moosavi challenging the action of respondent No.2 - Wakf Board in appointing respondent No.4 - Mir Hyder Ali Al Moosavi as Mutawalli of the Wakf Institution without considering his objections and representations dated 16.04.2021 and 10.06.2021 as violative of Articles 14 and 21 of the Constitution of India and provisions of the Wakf Act.

2.4. W.P. No.19649 of 2021 is filed by Syeda Kaneez-e-Sakina Moosavi challenging the highhanded action of respondent Nos.1 to 4 and 6 to 9 in evicting her and her family members from the 'Ladies Room' admeasuring 120 square feet in the Wakf Institution, wherein she along with her family members has been residing for over fifty-five (55) years, without issuing any prior notice, and also the inaction of respondent Nos.4 and 5 on the complaint dated 10.08.2021 3 BVRJ CRP No.1392 of 2022 & Batch lodged by her sister Sahana Moosavi, as arbitrary, illegal, unjust, violative of principles of natural justice and contrary to the provisions of the Wakf Act and the Rules made thereunder; and for a consequential direction to the respondents to put the petitioner and her family members back in possession of the 'Ladies Room' and direct respondent Nos.4 and 5 to take appropriate action on the complaint dated 10.08.2021.

C.R.P. Nos.1394 & 1392 of 2022 :

3. For convenience sake, the parties herein are hereinafter referred to as they are arrayed before the Wakf Tribunal.

4. As the main dispute centres around the appointment of Mutawalliship to the Wakf Institution which is the subject matter in O.A. No.34 of 2021 before the Wakf Tribunal, the facts therein are referred to which are as under:

5.1. O.A. No.34 of 2021 was filed by the applicant - Syed Hadi Ali Moosavi aggrieved by the order of the Wakf Board in F.No.02/Z1/T/HYD/2015 dated 01.07.2021 whereby respondent No.2 (Mir Hyder Ali Moosavi) was appointed as Mutawalli to the Wakf Institution.

BVRJ CRP No.1392 of 2022 & Batch O.A. No.49 of 2021 was also filed by the same applicant - Syed Hadi Ali Moosavi aggrieved by the proceedings of the Wakf Board in F.No.02/Z1/T/ HYD/2015 dated 01.07.2021 whereby he was rejected for the post of Mutawalli to the Wakf Institution.

5.2. As per the Muntaqab dated 19.04.2002 in File No.H1/61/93, the Wakf Institution is in an extent of 1344 square yards. This Wakf Institution was founded by Hazrath Syed Noor-ul-Huda Saheb Qibla about 450 years back. Syed Noor-ul-Huda Saheb Qibla also dedicated other properties for religious and pious purposes. This Wakf Institution was founded with an intention to standardise the sacred relics in the form of alams for the purpose of mourning in continuous commemoration of grief for martyrs of Karbala. In view of the same, one such alam was also installed on every Thursday and laid to rest on Friday apart from annual muharram alams erection, processions and laying to rest. Hzt. Syed Noor-ul-Huda Saheb Qibla died issueless survived by his brother Hazrath Mir Meeran Sab Qibla who continued and managed the Wakf Institution. He was succeeded by a male child in every generation for next six generations. 5

BVRJ CRP No.1392 of 2022 & Batch 5.3. Thereafter, in the seventh generation, successor Hazrath Syed Sardarul Hussaini had two sons viz., (1) Hakeem Mir Dawar Ali and (2) Syed Noorul Huda Sani and also two daughters. Both the sons jointly succeeded their father and jointly performed the duties of the Wakf Institution without any interference of their sisters. The younger brother Syed Noor-ul-Huda Sani, who has no issues, pre-deceased his brother Hakeem Mir Dawar Ali. Thus the succession devolves only on Mir Dawar Ali till his death on 11.06.1969. Mir Dawar Ali was survived by two sons and three daughters viz., Mir Abdul Qasim Moosavi, Syed Askari Hussain Moosavi, Hussaini Begum, Zainab Begum and Zahra Begum.

5.4. It was contended that office of Mutawalliship of the Wakf Institution was only amongst the male members of the family as the religious ceremonies, such as installation of alams, taking out processions, resting of alams, reciting of verses and Nauhas, offering Fateha and many other ceremonies of the Wakf Institution, have to be performed by male members only and the female members cannot perform the same.

BVRJ CRP No.1392 of 2022 & Batch 5.5. The disputes arose among the male members. Two sons of Mir Dawar Ali Moosavi filed suits in O.S. No.250 of 1972 and 152 of 1973 on the file of the learned Junior Civil Judge, City Civil Court, Hyderabad, seeking injunction against each other. After a long time, the dispute was decided in favour of the applicant's father. Challenging the same, two appeals were preferred and the same were disposed of by the common judgment permitting the appellants to the Mutawalliship on rotation basis every year; the common judgment was challenged by both sides in the second appeals i.e., S.A. Nos.116, 117, 127 and 153 of 1983 wherein this Court passed a common judgment dated 04.10.1983.

5.6. It is submitted that the father of the applicant Syed Askari Hussain Moosavi, died on 02.12.1989, who was declared as Joint Mutawalli by this Court in the second appeals. Mir Baqar Ali Moosavi being the son of one of the Joint Mutawallis, applied for recognition of Mutawalliship in the place of his father by filing representations dated 24.07.1993 and 11.01.1993, however, as the same were not considered, he filed W.P. No.3391 of 1994 and pending the same, the applicant along with other brothers rendering services of alambardari etc. Consequent to issuance of notifications in Gazette, I.A. No.1012 of 7 BVRJ CRP No.1392 of 2022 & Batch 2001 in O.S. No.80 of 1994 was filed seeking amendment of plaint by questioning the gazette notification and appointment of Syed Taqiya Moosavi as Mutawallia. The said application was allowed on 04.09.2001. Challenging the same, C.R.P. No.3161 of 2003 was preferred and the same was dismissed by this Court on 26.10.2005 granting liberty to the petitioner in C.R.P. to work out the remedies available under the Wakf Act. However, owing to ill health, Mr. Baqar Ali Moosavi could not follow the C.R.P. and the orders therein in his favour or brought the same before the trial Court, and ultimately the Original Suit was dismissed for default on 27.02.2006. However, on coming to know about the same, he filed O.A. No.19 of 2010 before the Wakf Tribunal challenging appointment of Taqia Moosavi and for other reliefs. Pending O.A., Baqar Ali Moosavi died in 2011.

5.7. It is submitted that the Wakf Board by the proceedings dated 15.03.1994 has taken the Wakf Institution under its direct management by appointing an Enquiry Officer to conduct enquiry by issuing proceedings dated 05.05.2000. However, the enquiry officer did not conduct enquiry in a fair manner; contrary to the record and by misinterpretation of Shia Law and contrary to various other provisions of the Wakf Act, the enquiry officer filed his report in favour of the 8 BVRJ CRP No.1392 of 2022 & Batch daughter of Mir Abdul Qasim Moosavi viz., Syeda Taqiya Moosavi and she was appointed as Mutawallia vide proceedings No.251/L4/ HYD/96 dated 11.08.2000. The enquiry officer ignored the fact that the custom in respect of the Wakf Institution is that only male members are entitled to be appointed as Mutawalli. Hussaini Begum, daughter of Mir Dawar Ali Moosavi, was impleaded in the appeals, but her claim was rejected by the learned Assistant Judge and also by the learned Chief Judge, City Civil Court in A.S. Nos.365 and 382 of 1981. Hence, the applicant and his brother Mir Akbar Ali Moosavi jointly filed O.A. No.10 of 2016 before the Wakf Tribunal seeking to suspend operation of the proceedings dated 11.08.2000 appointing Syeda Taqiya Moosavi as Mutawallia and to direct the Wakf Board to take the Wakf Institution under its direct management. The appeal is pending for adjudication.

5.8. It is submitted that Mutawallia Syeda Taqiya Moosavi died on 09.04.2021 and the applicant has filed application dated 15.04.2021 seeking to appoint him as Mutawalli of the Wakf Institution. The Wakf Board without conducting enquiry, without following due process of law, in violation of the provisions of the Wakf Act and without giving opportunity of being heard, passed the order dated 9 BVRJ CRP No.1392 of 2022 & Batch 01.07.2021 appointing Mir Hyder Ali Moosavi as Mutawalli of the Wakf Institution by rejecting the request of the applicant.

5.9. It is submitted that :

(1) The Wakf Board has not followed the procedure as laid down under Sections 42 and 63 and other provisions of the Wakf Act.

(2) The Wakf Board did not look into the father of the applicant Syed Askari Hussain Moosavi who was the Joint Mutawalli and the applicant is the alambardar of the Wakf Institution.

(3) Respondent No.2 failed to prove his succession to the Mutawalliship.

(4) The applicant is son of one of the Joint Mutawallis, as such, he is entitled to be appointed as Mutawalli to the Wakf Institution.

6.1. Respondent No.2 filed counter affidavit in O.A. No.34 of 2021 contending that the applicant along with his brothers and sisters executed the 'Affidavit of No Objection dated 14.01.1990' in respect of Towliath (Mutawalliship) in favour of his father late Mir Baqer Ali 10 BVRJ CRP No.1392 of 2022 & Batch Al Moosavi. Thus, the applicant gave up his rights to claim Mutawalliship in respect of the Wakf Institution, as such, the original application is not maintainable. It is submitted that his great grandfather viz., late Hakeem Mir Dawar Ali, during his lifetime, prescribed the line of succession by executing the Will Deed dated 19.06.1953 which was subject matter of the legal proceedings filed by his grandfather viz., late Syed Askari Hussain Al Moosavi against his brother late Mir Abul Qasim in O.S. Nos.250 of 1972 and 152 of 1973 on the file of the learned IX Assistant Judge, City Civil Court, Hyderabad, in A.S. Nos.365 of 1981 and 382 of 1981 on the file of the learned Chief Judge, City Civil Court, Hyderabad, and in S.A. Nos.116, 117, 127 and 153 of 1983 of this Court.

6.2. Late Syed Askari Hussain Al Moosavi, grandfather of respondent No.2 was joint Mutawalli and executed documents styled as 'Nomination of Tauliath dated 29.08.1989' in favour of the father of respondent No.2 Mir Baqer Ali Al Moosavi Bargahi.

6.3. The civil dispute between the late Mir Abul Qasim and grandfather of respondent No.2 late Syed Askari Hussain Al Moosavi with regard to the claim of Mutawalliship was ended by the common 11 BVRJ CRP No.1392 of 2022 & Batch judgment dated 04.10.1983 wherein both Mir Abul Qasim and grandfather of respondent No.2 were appointed as Joint Mutawallis, one among them to function every alternative year. The implead application filed by late Hussaini Begum to get herself impleaded as defendant No.2 in both the suits claiming herself to be the rightful Mutawallia of the Wakf Institution was rejected. Thus, the question of female member holding the office of Mutawalli does not arise.

6.4. The grandfather of respondent No.2 expired on 02.12.1989 and during his lifetime, he has nominated and appointed the late father of respondent No.2 as Mutawalli of the Wakf Institution and he continued as Mutawalli. Other family members including brothers and sisters of the father of respondent No.2 recognised him as Mutawalli. They have executed the affidavit dated 14.01.1990 furnishing 'No Objection' in respect of Towliathship of the Wakf Institution in favour of respondent No.2 and he had been in continuous and uninterrupted Mutawalli of the Wakf Institution.

7. Heard Mr. P. Gangaiah Naidu, learned senior counsel, appearing for Mr. Shafath Ahmed Khan, learned counsel for respondent No.2 (revision petitioner in both the C.R.Ps.); Mr. Vedula 12 BVRJ CRP No.1392 of 2022 & Batch Srinivas, learned senior counsel, appearing for Mrs. Vedula Chitralekha, learned counsel for the applicant (respondent No.1 in both C.R.Ps.); Mr. Farhan Azam Khan, learned Standing Counsel for the Telangana State Wakf Board; and Ms. Nafisa, learned counsel for respondent No.3 (implead petitioner) in both the revision petitions; and perused the material on record.

8. Mr. P. Gangaiah Naidu, learned senior counsel appearing for the respondent No.2 (revision petitioner), submitted that the Wakf Tribunal has exceeded its jurisdiction in passing the impugned order. The Wakf Board conducted enquiry and appointed Mutawalli. The power to appoint Mutawalli is in the exclusive domain of the Wakf Board in terms of Section 3(i) and 32(g) of the Wakf Act. The appointment was not under Section 63 of the Wakf Act. The Wakf Tribunal cannot decide the tenure of Mutawalliship and transgress the power of the Wakf Board. Under Section 42 of the Wakf Act, change of the office of Mutawalli has to be notified and appointment of respondent No.2 (revision petitioner) was strictly in accordance with the Wakf Act. Thus the impugned order is liable to be set aside.

BVRJ CRP No.1392 of 2022 & Batch

9. Mr. Farhan Azam Khan, learned standing counsel for the Wakf Board, submitted that the Wakf Tribunal has usurped the power of the Wakf Board. Only if there is prima facie illegality, the Wakf Tribunal can interfere with the order or decision of the Wakf Board. There is no dispute herein about violation of principles of natural justice. The Wakf Board has power to appoint Mutawalli on the basis of Wakf Nama or in accordance with the provisions of the Wakf Act. The appointment of a Mutawalli is purely the discretion of the Wakf Board as per Section 63 of the Wakf Act. Female family member cannot be appointed as a Mutawallia as a matter of right. The Wakf Board has discretion and the Wakf Tribunal cannot step into the shoes of the Wakf Board and the order of the Wakf Tribunal is not only contrary to the provisions of the Wakf Act but also Articles 9(6) and 25(2) of the Constitution of India.

10. Mr. Vedula Srinivas, learned senior counsel appearing for the applicant (respondent No.1), in both the civil revision petitions, submitted that findings in S.A. Nos.116, 117, 127 and 153 of 1983 have attained finality. Respondent No.2 (revision petitioner) has not cited any provision to show that the findings given in the earlier round of litigation by a Civil Court or High Court will be wiped out by virtue 14 BVRJ CRP No.1392 of 2022 & Batch of provisions of the Wakf Act. The judgment of this Court in Second Appeal continues to operate. Merely, because there is change in the Wakf Act, the judgment in the second appeals cannot be ignored. The Wakf Tribunal has merely given effect to the binding decision of the High Court in the second appeals. Thus, the revisions are liable to be dismissed.

11. Ms. Nafisa, learned counsel appearing for respondent No.3 (implead petitioner), submitted that the female family member continued as Mutawallia for 21 (twenty one) years. There is no embargo for women to be appointed as Mutawallia. A person who is not a party to the original application can prefer appeal or file implead application. Wakf Tribunal's order is in favour of the applicant, and thus she has locus standi to support the order of the Wakf Tribunal. The application of respondent No.3 for appointment of Mutawallia was not considered by the Wakf Board and the Wakf Tribunal has rightly interfered with the decision of the Wakf Baord to give effect to the judgments in Exs.P-5 to P-7. Section 63 of the Wakf Act is not attracted in the instant case.

BVRJ CRP No.1392 of 2022 & Batch CONSIDERATION OF THE COURT :

12. Based on the pleadings of the parties, the Wakf Tribunal framed the following issues:

"1. Whether the impugned proceedings dt.1-7-2021 is liable to be set aside?

2. Whether the impugned memo dt.1-7-2021 is liable to be set aside? and

3. To what relief?"

13. The Wakf Tribunal has set out the manner in which the Wakf Institution was established and notified, and also the genealogical tree of the family of the Mutawalli. The litigation arising out of the suit in O.S. Nos.250 of 1972 and 152 of 1973 which culminated in common judgment in S.A. Nos.116, 117, 127 and 153 of 1983 was also discussed by the Wakf Tribunal.

14. In paragraph No.28 of the order of the Wakf Tribunal, the following observations of this Court in Exs.P-5 to P-7 are extracted:

"1) That it is be and hereby declared that the plaintiff and the 1st defendant are the joint Mutawallis of the suit Dargah;

BVRJ CRP No.1392 of 2022 & Batch

2) That Sri Mir Abdul Qasim shall hold the post of Mutawalli for the suit Dargah during the Hijri year 1404 and thereafter in each alternate even Hijri year during his life time;

3) That Syed Askari Hussain shall function as Mutawalli during the Hijri year 1405 and thereafter in alternate odd Hijri year during his life time;

4) That the office of the Mutawalli shall devolve on the survivor of them for the rest of his life time;

5) That the said Syed Askari Hussain will be restrained by an injunction from interfering with the Dargah during the even Hijri years in which said Mir Abdul Qasim shall function as Mutawalli;

6) That the said Mir Abdul Qasim is likewise restrained by an injunction from interfering with the Dargah during the odd Hijri years in which the said Syed Askari Hussain functions as Mutawalli;

7) That the parties, in the circumstances, do bear their respective costs throughout;

8) That this decree will be subject to any final orders which may be passed by the Waqf Board concerning the proper management of the Dargah by either the plaintiff or the 1st defendant;"

BVRJ CRP No.1392 of 2022 & Batch

15. While adverting to the contention raised by the applicant (respondent No.1 in the revision) that respondent No.2 (revision petitioner) was appointed as Mutawalli without conducting enquiry, the Wakf Tribunal held that the Inspector, Auditor, Wakf Circle, enquired with all the applicants and submitted his report dated 16.06.2021 which was placed before the Board in its meeting held on 21.06.2021 and the Board passed the Resolution dated 01.09.2021 unanimously. Thus, the Wakf Tribunal held that the proceedings under challenge before it to the extent of conducting enquiry by the Auditor Inspector and passing resolution by the Wakf Board are correct. However, so far as legality of the impugned proceedings are concerned, the learned Wakf Tribunal held that appointment of respondent No.2 (revision petitioner) as Mutawalli under the impugned proceedings under Section 42 of the Wakf Act is not legal.

16. The Wakf Tribunal referred to the judgment of the erstwhile High Court of Andhra Pradesh in A.P. State Waqf Board v. Mir Qamar Hasan Razvi 1 and an unreported decision in Ibrahim Bin Abdullah v. A.P. State Waqf Board2, wherein it was held that appointment of Mutawalli under Section 42 of the Wakf Act is not 1 2012 (3) ALT 791 2 W.A. No.213 of 2014 dated 04.03.2014 18 BVRJ CRP No.1392 of 2022 & Batch permissible. The Wakf Tribunal also referred to the decisions of the erstwhile High Court of Andhra Pradesh in W.A. No.539 of 1996 dated 04.04.2000 and W.P. No.5757 of 1994 dated 04.04.2000 wherein it was observed that as per the provisions of Section 63 read with Section 65 of the Wakf Act, if the Mutawalli of a wakf institution dies, it is for the Wakf Board to decide and give appropriate declaration or pass appropriate orders in accordance with law with respect to the Mutawalliship of the institution.

17. In paragraph No.37 of the impugned order, by relying on Ex.P-7, judgment of the erstwhile High Court of Andhra Pradesh in Second Appeal Nos.116, 117, 127 and 153 of 1983 dated 04.10.1983, it was held as under:

"... ... ... The substance of Ex.P5 to Ex.P7 is that Syed Askari Hussain Moosavi was to function as Mutawalli for a particular Hijri year and then his elder brother Syed Qasim Moosavi was to perform as Mutawalli of the subject Dargah for aparticular Hijri year. This indication equally applies to the progeny of these two brothers. The daughter of Mir Qasim Moosavi worked as Mutawallia and she died recently. Naturally now the turn comes to any of the eligible children of Askari Moosavi. The applicant is junior paternal uncle of respondent No.2."

BVRJ CRP No.1392 of 2022 & Batch

18. While dealing with the argument of the learned counsel for respondent No.2 (revision petitioner) that mere mentioning of Section 42 of the Wakf Act in the impugned proceedings and not mentioning of Section 63 of the Wakf Act is not material, the Wakf Tribunal held that under Section 42 of the Wakf Act, changes are only to be intimated to the Wakf Board about the Mutawalli of a Wakf Institution. Further, if any Mutawalli is appointed under Section 63 of the Wakf Act, it is for a specific period. When there is a dispute under Section 63 of the Wakf Act, Mutawalli can be appointed. Once Mutawalli is appointed under Section 42 of the Wakf Act, he may continue forever unless there are restrictions imposed under the Wakf Act; ultimately, it was held that purpose of these two provisions i.e., Sections 42 and 63 of the Wakf Act is diametrically opposite to each other.

19. In paragraph No.44 of the impugned order, it was held that though the procedure followed by the Wakf Board in appointing respondent No.2 (revision petitioner) as Mutawalli of the Wakf Institution to the extent of conducting enquiry etc., are as per law, since the provision of law is not correctly mentioned which affects the applicant (respondent No.1), the impugned proceedings are liable to be set aside; ultimately, the Wakf Tribunal directed to set side the 20 BVRJ CRP No.1392 of 2022 & Batch impugned memo and directed the Wakf Board to issue modified proceedings mentioning the correct provision of law as Section 63 of the Wakf Act restricting the period with effect from 01.07.2021 to 30.06.2022. Accordingly, O.A. No.34 of 2021 was allowed directing as under:

"46. In the result, the Original Application No.34/2021 is allowed in part. The impugned proceedings in F.No.01/Z1/T/HYD/2015, dt.01-07-2021 is set aside. Respondent No.1 is directed to issue modified proceedings appointing respondent No.2 as Muttawalli of the subject Dargah for a period of one year w.e.f. 01-07-2021 to 30-6- 2022. Thereafter respondent No.1 shall appoint the next Muttawalli of the subject Dargah after due enquiry from among the progeny of Syed Abdul Qasim and Syed Askari Hussain including the applicant, unless he is convicted and sentenced to any offence, and others who are eligible and willing, as far as possible fixing he period of one year and giving opportunity to the daughters of Syed Qasim Moosavi and Syed Askari Hussain alternately, especially keeping in view the guidelines mentioned in Ex.A5 to A7, common judgment in S.A. No.116, 117, 127 and 153/1983, dt.04-10- 1983 and also common order in W.A. No.539/96 and W.P.No.5757 / 94 and the Act."

BVRJ CRP No.1392 of 2022 & Batch

20. It is relevant to note that none of the learned senior counsel appearing for respondent No.2 (revision petitioner) or the applicant or respondent No.3 or the Wakf Board attacked the findings recorded by the Wakf Tribunal to the extent of enquiry conducted by the Auditor Inspector which culminated in the Wakf Board meeting held on 21.06.2021 and its Resolution dated 01.09.2021. The only objection of respondent No.2 (revision petitioner) that the common order passed by the Wakf Tribunal to the extent of holding his appointment as Mutawalli of the Wakf Institution under Section 42 of the Wakf Act is not legal, is erroneous. It is contended that Section 42 of the Wakf Act is applicable as there is no dispute for the claim of Mutawalli Ship. Therefore, Section 42 of the Wakf Act is applicable and not Section 63 of the Act. Further, the Wakf Tribunal does not have any jurisdiction to modify the proceedings of the Wakf Board dated 01.07.2021 by appointing respondent No.2 as Mutawalli with effect from 01.07.2021 to 30.06.2022.

BVRJ CRP No.1392 of 2022 & Batch 21.1 The learned standing counsel for the Wakf Board relied on the following decisions:

1. Dadi Jagannadham v. Jammulu Ramulu 3

2. Faqruddin v. Tajuddin 4

3. V.K. Ashokan v. Assistant Excise Commissioner 5

4. State of Tamilnadu v. K. Shyam Sunder 6

5. S V Cheriyakoya Thangal v. S V P Pookoya 7 21.2. In Dadi Jagannadham's case (Supra 3), the Hon'ble Supreme Court held as under:

"13. We have considered the submissions made by the parties. The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature's defective 3 (2001) 7 SCC 71 4 (2008) 8 SCC 12 5 (2009) 14 SCC 85 6 (2011) 8 SCC 737 7 2024 Law Suit (SC) 1156 23 BVRJ CRP No.1392 of 2022 & Batch phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.

21.3. In Faqruddin's case (Supra 4), the Hon'ble Supreme Court held as under:

"36. It is beyond any doubt or dispute that a mutawalli is the temporal head. He is the manager of the property ... ... ...

51. A jurisdictional fact would not attract the principles of estoppel as there can be no estoppel against the statute.

57. The question came up for consideration in Gnanasambanda Pandara Sannadhi v. Velu Pandaram [(1899-1900) 27 IA 69 :

ILR (1899) 23 Mad 271] wherein the Judicial Committee held as under: (IA p.77).

"Their Lordships are of opinion that there is no distinction between the office and the property of the endowment."

21.4. In V.K. Ashokan's case (Supra 5), the Hon'ble Supreme Court held as under:

"36. The very fact that the State in exercise of its rule-making power amended the Rule in terms whereof the original clause (b) was deleted is a clear pointer to 24 BVRJ CRP No.1392 of 2022 & Batch show that a conscious step was taken not to take recourse of forfeiture of deposit in a case where licence is cancelled in terms of Rule 6(30). The principles contained in Heydon's rule shall squarely be attracted in this case.

37. It is a settled principle of interpretation of statute that when an amendment is made to an Act, or when a new enactment is made, Heydon's rule is often utilised in interpreting the same. [See Philips Medical Systems (Cleveland) Inc. v. Indian MRI Diagnostic and Research Ltd. [(2008) 10 SCC 227 : (2008) 3 SCC (Cri) 764 :

(2008) 13 Scale 1]] For the purpose of construction of Rule 6(30), as it stands now, the Court is entitled to look to the legislative history for the purpose of finding out as to whether the mischief prior to such amendment is sought to be rectified or not. Applying Heydon's rule, we have no other option but to hold that such was the intention on the part of the rule-making authority."

21.5. In K. Shyam Sunder's case (Supra 6), the Hon'ble Supreme Court by referring to the following observations made by the Hon'ble Supreme Court in A. Manjula Bhashini v. A.P. Women's Co-operative Finance Corporation Limited [(2009) 8 SCC 431 : (2009) 2 SCC (L&S) 441] , SCC pp. 465-66, para 68)];

"64. "68. ... the legislature cannot by bare declaration, without anything more, directly overrule, reverse or 25 BVRJ CRP No.1392 of 2022 & Batch override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based.";

held as under:

"65. In view of the above, the law on the issue can be summarised to the effect that a judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can reframe the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional."

21.6. In S V Cheriyakoya Thangal's case (Supra 7), the Hon'ble Supreme Court held as under:

"10. The word 'competent authority' as mentioned in the definition clause contained in Section 3(i) makes the position further clear that it is the Waqf Board which has got the jurisdiction and not the Waqf Tribunal. After all, the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal with any issue pertaining to administration. The power of superintendence cannot be confined to routine affairs of a Waqf but it includes a situation where a dispute arises while 26 BVRJ CRP No.1392 of 2022 & Batch managing the property and that would certainly include a right of a person to be a Mutawalli after all, it is the Mutawalli who does the job of administering and managing the Waqf."

21.7. The aforesaid decisions relied upon by the learned standing counsel for the Wakf Board are not applicable to the present case. None of these decisions deal with a situation wherein the judgment in the earlier round of litigation rendered by a competent civil Court or High Court, as the case may be, in a matter relating to appointment of Mutawalli is not binding on the Wakf Board. So also, the principle of "no estoppel against the statute" is also not applicable to the present lis. The other judgments of the Hon'ble Supreme Court relied upon by the learned standing counsel for the Wakf Board in Raza Buland Sugar Company Limited v. Municipal Board, Rampur 8 dealing with interpretation of statutes, and the judgment in Mamleshwar Prasad v. Kanhaiya Lal (dead) through L.Rs. 9 dealing with the principle of judgment per incuriam are not relevant to the facts of the present case.

8 1964 LawSuit(SC) 276 9 (1975) 2 SCC 232 27 BVRJ CRP No.1392 of 2022 & Batch

22. Mr. Vedula Srinivas, learned senior counsel appearing for the applicant (respondent No.1), relied on the decision of the Hon'ble Supreme Court in Telangana State Wakf Board v. Mohamed Muzafar10, wherein it was held as under:

"17. In that regard it would be appropriate to refer to the decision of this Court in Kiran Devi v. Bihar State Sunni Wakf Board [(2021) 15 SCC 15 : 2021 SCC OnLine SC 280] which was authored by one of us (Hemant Gupta, J.) wherein the scope of jurisdiction to be exercised under Section 83 of the Wakf Act is crystallised as follows : (SCC p. 26, para 22) "22. Therefore, when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub- section (9) of Section 83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by 10 (2021) 9 SCC 179 28 BVRJ CRP No.1392 of 2022 & Batch the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court."

23.1 Ms. Nafisa, learned counsel for respondent No.3, relied on the following decisions of the Hon'ble Supreme Court and an unreported decision of the Division Bench of this Court:

1. Ouseph Mathai v. M. Abdul Khadir 11

2. Kokkanda B. Poondacha v. K.D. Ganapathi 12

3. Hindustan Petroleum Corporation Limited v.

Dilbahar Singh 13 23.2. In Ouseph Mathai's case (Supra 11), the Hon'ble Supreme Court held as under:

"4. It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said article as a matter of right. In fact power under this article casts a duty upon the High Court to keep the inferior 11 (2002) 1 SCC 319 12 (2011) 1 SCC 600 13 (2014) SCC 78 29 BVRJ CRP No.1392 of 2022 & Batch courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.

5. In Waryam Singh v. Amarnath [AIR 1954 SC 215 :

1954 SCR 565] this Court held that power of superintendence conferred by Article 227 is to be exercised more sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This position of law was reiterated in Nagendra Nath Bora v. Commr. of Hills Division & Appeals [AIR 1958 SC 398 : 1958 SCR 1240]. In Babhutmal Raichand Oswal v. Laxmibai R. Tarte [AIR 1975 SC 1297 : (1975) 1 SCC 858] this Court held that the High Court could not, in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. After referring to the judgment of Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw [AIR 1952 1 All ER 122 : (1952) 1 KB 338 (CA)] (All ER at p. 128) this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] held: (SCC p. 460, para 20)] 30 BVRJ CRP No.1392 of 2022 & Batch "20. It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence.

The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice (see Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide, [(1977) 2 SCC 437]. Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the Appellate Bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error." 31

BVRJ CRP No.1392 of 2022 & Batch 23.3. In Kokkanda B. Poondacha's case (Supra 12), the Hon'ble Supreme Court held as under:

"8. In Surya Dev Rai case [(2003) 6 SCC 675], the two- Judge Bench, after a detailed analysis of the various precedents on the scope of the High Court's powers under Articles 226 and 227 of the Constitution culled out nine propositions including the following: (SCC p. 695, para 38) "38. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When [the] 32 BVRJ CRP No.1392 of 2022 & Batch subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction."

23.4. In Dilbahar Singh's case (Supra 13), the Hon'ble Supreme Court held as under:

"42. The observation in Ramdoss v. K. Thangavelu, [(2000) 2 SCC 135] that the High Court in exercise of its revisional jurisdiction cannot act as an appellate court/authority and it is impermissible for the High Court to reassess the evidence in a revision petition filed under Section 25 of the Act is in accord with Rukmini Amma Saradamma v. Kallyani Sulochana, [(1993) 1 SCC 499] and D. Sankaranarayanan v. Punjab National Bank, [1995 Supp (4) SCC 675]. Its observation that the High Court can interfere with incorrect finding of fact must be understood in the context where such finding is perverse, based on no evidence or misreading of the evidence or such finding has been arrived at by ignoring or overlooking the material evidence or such finding is so grossly erroneous that if allowed to stand, will occasion in miscarriage of justice.

Ramdoss v. K. Thangavelu, [(2000) 2 SCC 135] does not hold that the High Court may interfere with the findings of fact because on reappreciation of the evidence its view is different from that of the first appellate court or authority. 33

BVRJ CRP No.1392 of 2022 & Batch The decision of this Court in V.M. Mohan v. Prabha Rajan Dwarka, [(2006) 9 SCC 606] is again in line with the judgment of this Court in Rukmini Amma Saradamma v. Kallyani Sulochana, [(1993) 1 SCC 499] .

43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High 34 BVRJ CRP No.1392 of 2022 & Batch Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."

24. It is clear from the decisions cited by the learned senior counsel appearing for the applicant (respondent No.1) and the learned counsel for respondent No.3 that this Court in exercise of the jurisdiction under Articles 227 and 227 of the Constitution of India can interfere with the decision of the trial Court or Tribunal only if the findings are perverse or based on no evidence or misreading of evidence; that this Court would not interfere with the decisions of the Tribunals merely because another view is possible and this Court in exercise of revisional jurisdiction cannot act as an appellate Court.

25. It needs to be noted that appointment of Mutawalli by hereditaryship for the subject Wakf Institution has been settled by this Court by issuing directions / guidelines in Exs.P-5 to P-7 by the 35 BVRJ CRP No.1392 of 2022 & Batch common judgment in S.A. Nos.116, 117, 127 and 153 of 1983 dated 04.10.1983 and in W.A. No.539 of 1996 and W.P. No.5757 of 1994.

26. Though the learned Standing Counsel for the Wakf Board vehemently submitted that the common judgment in S.A. Nos.116 of 1983 and batch dated 04.10.1983 is not binding on the Wakf Board by virtue of enactment of the Wakf Act 1995, he has not brought to the notice of this Court any provision of law under the Wakf Act 1995 or judicial precedent which says that decision given by the competent Court with regard to Mutawalli rights under the provisions of the old Wakf Act (1954) would become inoperative by virtue of enactment of the Wakf Act 1995.

27. According to Mr. P. Gangaiah Naidu, learned senior counsel appearing for respondent No.2 (revision petitioner), when appointment of Mutawalli was made under Section 42 of the Wakf Act, which was the question before the Wakf Tribunal and it was held that appointment is not legal and should have been made under Section 63 of the Act, it would have been appropriate for the Wakf Tribunal to remand the matter to the Wakf Board.

BVRJ CRP No.1392 of 2022 & Batch

28. However, as discussed above, by reiterating that the guidelines / directions issued in Exs.A-5 to A-7 are holding the field in respect of Mutawalliship of the subject Wakf Institution, the Wakf Tribunal chose to modify the proceedings of the Wakf Board by confining the appointment of respondent No.2 (revision petitioner) as Mutawalli for a period of one year, and thereby, directing Mutawalli to be appointed in accordance with the guidelines mentioned in Exs.P-5 to P-7. Such exercise in the opinion of this Court cannot be said to be illegal, erroneous or perverse.

29. In the above backdrop of events and circumstances, specifically rights of the parties having been settled under Exs.P-5 to P-7 judgments, it cannot be said that the Wakf Tribunal has exceeded its jurisdiction in modifying the order of the Wakf Board. Thus, there are not merits in these revisions.

30. For the aforesaid reasons, both the civil revision petitions are dismissed. No order as to costs.

BVRJ CRP No.1392 of 2022 & Batch W.P. Nos.15769, 18513 & 19649 OF 2021

31. In view of dismissal of C.R.P. Nos.1394 and 1392 of 2022, no orders are required to be passed in these writ petitions. Therefore, these writ petitions are disposed of. No order as to costs.

______________________ B. VIJAYSEN REDDY, J July 10, 2025.

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