Andhra Pradesh High Court - Amravati
Shagulam Nakshband Hafeez Pasha vs The State Of Andhra Pradesh on 31 March, 2022
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.20296 of 2021
ORDER:
This writ petition is filed for a Mandamus declaring the proceedings dated 25.08.2021 issued by the second respondent as one without jurisdiction, illegal and arbitrary.
This Court has heard learned senior counsel Sri M.V.S.Suresh Kumar, appearing for the petitioner, Sri Shaikh Karimullah, learned standing counsel for the Waqf Board, Sri Prabhakar Sripada, appearing for the unofficial respondents and also the Government Pleader for Minority Welfare.
Learned senior counsel essentially argues that the impugned letter dated 25.08.2021 is issued without any power or authority. He contends that it is absolutely without jurisdiction and the Chief Executive Officer cannot issue such a letter. He points out that on the basis of a complaint made to an Hon'ble Minister, which is forwarded to the Chief Executive Officer, he was directed his subordinates to conduct an enquiry and send a report taking necessary action. He points out that the complaint is about providing an equal share to the unofficial respondents along with the petitioner as per a "registered agreement" executed by late Gouse Mohiddin and to cancel the proceedings of the appointment of the petitioner as Dargah Mutawalli and to appoint a Towliath Committee. It is also urged that the 2 petitioner is not following the religious traditions of the Dargah. Learned senior counsel submitted that the complaint of the unofficial respondents is based upon two documents said to have been executed, according to which, unofficial respondents have a share in the proceeds of the Dargah and also have a claim over the same. Learned senior counsel points out that the petitioner has denied both the documents on which the unofficial respondents relied upon and once the said documents are denied they had to be pleaded and proved in an appropriate forum and the writ Court is not the forum for the same. It is also submitted that what the unofficial respondents are seeking is a declaration of their status as the legitimate heirs of late Gouse Mohiddin and for cancelling the appointment of the petitioner. He submits that these sort of reliefs, including the declaration of status, cannot be granted in writ proceedings. Relying upon the provisions of law, learned senior counsel submitted that none of these sections of the Waqf Act, 1995 (for short 'the Act'), confer power on the second respondent for granting such relief. He submits that the Government is only empowered to give general or special directions under section 97 of the Act and to the Board and only after such directions are given to the Board, the question of compliance would arise.
In the case on hand, he submits that merely writing a letter to the Deputy Chief Minister, who forwards the same will not amount to issuance of directions by the State 3 Government. Drawing the attention to Section 25 of the Act, which is relied upon by the learned counsel submits that powers of the Chief Executive Officer are subject to the provisions of the Act and the rules made thereunder only. These powers are limited by what is mentioned in section 25
(a), (b) and (c) of the Act. He submits that the present issue does not fit or fall within section 25 (a), (b) and (c) of the Act. Coming to Section 33 of the Act, learned senior counsel submits that if there is failure or negligence on the part of the petitioner in the performance of his duties and any loss or damage has been caused, the Chief Executive Officer with the prior written approval of the Board can inspect all the properties.
In the case on hand, he submits that without any loss or damage being established, including failure or negligence to perform his duties, the present enquiry has been initiated.
Learned senior counsel also draws the attention of this Court to the various orders that were passed by Courts of competent jurisdiction, including the High Court in recognizing the petitioner's status as a Mutawalli. He draws the attention to the Gazette notification issued on 01.03.2019 by which the petitioner is recognized as the hereditary Mutawalli. Learned senior counsel, therefore, submits both on law and fact, the petitioner has made out a case and that without any jurisdiction, the impugned order is issued. Learned counsel also argues that once the order is without 4 basic jurisdiction, the existence of an alternative remedy is not very material and that the judgment cited by him in the case of Gosula Ramulu and others v. A.P.Wakf Board, Hyderabad1 is squarely applicable to the facts and circumstances of the case.
Respondent:
The standing counsel argued on behalf of the first respondent. According to him, the writ is not maintainable and that the Chief Executive Officer has the power and authority to issue the proceedings. He points out that the power can be transferable. He was also submits that the petitioner was hostile and non-cooperative with the Officials of the Board. He was also engaged in conflicts with his own family members and number of complaints and FIRs are also filed and pending. He relies upon pages 6 and 7 of his counter affidavit. Coming to the representations submitted by the petitioner's brothers and sisters (unofficial respondents), the learned standing counsel submits that the representation is given by the unofficial respondents as members of the general public to the Government, which in turn forwarded the same to the Chief Executive Officer. Therefore, in order to avoid the internal disturbances, the officials of the Waqf Board have taken up the matter for investigation. Therefore, learned standing counsel relying on 1 2017 (5) ALD 298 5 Sections 25 and 97 of the Act clearly argues that the impugned proceedings are correct and that the action taken is also valid.
On behalf of unofficial respondents, Sri V.V.Satish argues on similar lines. He submitted that there are serious issues about the manner in which the petitioner is conducting his duties as a Mutawalli. Initially, at the petitioner's request the respondents did not raise any issue with the hope that he would adhere to the document dated 30.03.2020 and give an equal right to the unofficial respondents. But, as the petitioner showed his true colours and behaved in a manner detrimental to the interests of the respondents, they were compelled to approach the Deputy Chief Minister. It is submitted that the petitioner is over looking and ignoring the wishes of the parents. Learned counsel also relies upon various provisions of the Act and in particular section 25 of the Act to argue that the action taken by the second respondent is valid. It is the contention of the learned counsel as stated in paragraph 23 of his counter affidavit that issues relating to appointment of Mutawalli, removal/disqualification and the exclusive rights etc., claimed by the petitioner as Mutawalli while ignoring the other siblings are matters on which the Waqf Board and the Chief Executive Officer can decide.
In rejoinder, learned senior counsel submits that there is no provision under the Act for complaint being filed before 6 the Deputy Chief Minister nor the Chief Executive Officer or can the Government direct action to be taken on the basis of a complaint of kith and kin of Mutawalli. Sections 24 and 25 of the Act, as per the learned senior counsel would authorize provided there is prior approval of the Board.
It is also submitted that the dispute now is between a registered nomination deed (executed by the father of the petitioner and of the unofficial respondents) on 04.11.1999 nominating the petitioner as Mutawalli and a document said to be executed later. It is argued vehemently that once the letter/documents are denied as forgeries and creations, the writ Court or the Chief Executive Officer do not have the power or authority to go into these disputed questions of fact. Learned senior counsel points out that both the documents dated 11.07.2019 allegedly executed by the mother and the agreement dated 30.03.2022 allegedly executed by the father are denied as created and false documents. He points out that in paras 3, 5 and 7, the specific plea is taken that these are fabricated documents. He also points out that when the petitioners sought to joint and implead themselves in O.S.No.50 of 1913, claiming to be male siblings of the original Sajjada Nasheen, the Principal Senior Civil Judge, Nellore dismissed the application stating that they can move a separate petition at the appropriate time before the competent authority/forum. Therefore, learned counsel argues that the respondents will have to prove the lineal descendant and 7 secure some documents. Hence he submits that the entire action taken is contrary to law.
COURT:
The genesis of this dispute starts with the complaint that is given by the unofficial respondents. This complaint or representation by whatever name is called is addressed to the Deputy Chief Minister of the State. It is signed by the unofficial respondents and it relies upon an agreement of 2002 and a clarification said to have been issued on 11.07.2019. In this representation/complaint, the prayer of the parties is to set aside the order dated 08.02.2019 issued in favour of the petitioner appointing him as Mutawalli and to grant rights, authority with privileges to the unofficial respondents and also to appoint 'Towliath Committee'. This is the sum and substance of the prayer made.
Pursuant to this, the impugned proceedings were issued. In fact, the impugned proceedings talks of this issue in para 1 itself, wherein the prayer to cancel the proceedings, appointing the petitioner and to appoint a new committee is highlighted. Thereafter, a direction was issued to conduct spot inspection and to send detailed report immediately.
This Court also has to notice that the documents on which the unofficial respondents rely upon have been expressly denied as false and incorrect and a seriously disputed fact is there about the 2002 and 2019 documents. 8 This Court cannot enter into the disputed area of fact while acting under section 226 of the Constitution of India.
The counter filed by the unofficial respondents also recognizes the fact that the subject waqf property is earlier managed and administered under a Court scheme, framed by the additional Senior Civil Judge, Nellore in O.S.No.50 of 1913. Later, impleadment applications were sought to be made by some people claiming the post of 'Sajjada Nasheen' or the 'Mutawalli'. The Principal Senior Civil Judge, Nellore by his order dated 06.01.2017 dismissed the said applications directing the petitioners therein to establish their claim before competent forum or authorities. In the very same proceedings the Court has held that the present petitioner can be recognized as 'Mutawalli' of the institution. The administration was directed to handover possession of the institution to the present petitioner who was to act as the Mutawalli. The Court recognized the deed of nomination dated 04.11.1999 which is a registered document.
In addition, this Court notices the order dated 17.01.2007 passed in E.A.No.136 of 2000 in the same suit OS.No.50 of 1913. This application is a letter/document executed by Ghouse Mohiddin, the father of the present petitioner informing the Senior Civil Judge, Nellore that he had executed a nomination deed dated 04.11.1999 nominating his elder son, the petitioner, as the Mutawalli. Objections were invited to the same. The Court considered 9 the documents filed including the nomination deed dated 04.11.1999 which is marked as Ex.A.2. The document writer was examined to prove the contents of Ex.A.2 and the attestor was examined as PW.3. After, considering the evidence and the objections raised, the learned senior Civil Judge held that the nomination made by P.W.1 cannot be questioned. Ultimately, the nomination dated 04.11.1999 executed by the father in the petitioner's favour was upheld.
As pointed out earlier, the unofficial respondents are relying upon the clarification document said to be signed by the mother and an agreement of March, 2020. Both these documents are expressly denied and are stated to be forgeries and fabricated. As mentioned earlier, this is a very seriously disputed question of fact. In addition, once the Court in the implead application directed the unofficial respondents to file an appropriate application before the competent forum or authority, they cannot file a writ for the said relief. These are matters of evidence have to be pleaded and proved.
Apart from all of the above, this Court also finds that there is force in what is submitted by the learned senor counsel. Section 25 gives power to the Chief Executive Officer to investigate into the waqf properties. A reading of section 25 of the Act makes it clear that the power is given to the Chief Executive Officer to investigate the nature and extent of the properties. He can make inventory of the properties, call for the accounts and information. However, these are subject 10 to the provisions of the Act and the directions of the Board. Similarly, even under section 33 of the Act, if there is a failure or negligence on the part of the Mutawalli, in the performance of his duties and any loss or damage has been caused to the waqf or waqf property, the Chief Executive Officer does have the power to enquire. Further examination of the Act shows that under Section 70 of the Act, any person can make a complaint to the Board supported by an affidavit to institute an enquiry relating to the administration of the Waqf. This is to be read along with the Rules 24 and 24(a) of the Waqf Rules 2000. It is clear that such an application for an enquiry should be submitted by an affidavit accompanied with fee of Rs.50/- for summoning respondents, witnesses etc. Time should also be given to the respondents to file written objections and statements. Right of a counsel to appear is also there. Rule 24(a) also details the procedure to be followed to conduct the enquiry. Even if the argument of the respondents is accepted and Section 25 conferred power on the Chief Executive Officer to hold an enquiry, it is clear that from a reading of very same section that it would always be subject to the provisions of the Act and all the Rules made thereunder. Therefore, if the Chief Executive Officer wishes to act upon a complaint given by a third party into the affairs of the administration of waqf, he should follow the procedure stipulated in sections 70 and 71 of the Act and the rules made thereunder.
11
A reading of the entire Act does not show that there is a power given to the Chief Executive Officer to determine the "status" of the unofficial respondents or to hold that the deed of nomination is later modified by the two documents' which the unofficial respondents are relying upon. As mentioned earlier, these documents are denied as false and fabricated.
In the opinion of this Court, the Waqf Board or the Chief Executive Officer does not have a right to enquire into these matters with a view to remove the petitioner from the post of Mutawalli and to appoint a Towliath Committee as prayed for by the unofficial respondents. These are matters which are essentially to be decided by a competent Court or Tribunal as held by the Senior Civil Judge, Nellore in O.S.No.50 of 1913 in the order referred to above.
Therefore, this Court holds that the impugned action taken is incorrect and contrary to law and is patently without jurisdiction. Since it is patently without jurisdiction, this Court has the necessary authority to exercise power under Article 226 of India. The Hon'ble Supreme Court of India in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors.2 has held that where the proceedings are wholly without jurisdiction, the writ Court has the power to interfere even if there is an alternative remedy. Learned single Judge of the combined high Court in 2 (1998) 8 SCC 1 12 the case of Gosula Ramulu's case (1 supra) has considered the judgment of the Supreme Court in Whirlpool Corporation (2 supra) and thereafter in para 77 has come to the conclusion that this Court is not precluded from entertaining and deciding the writ petition even if there is an alternative remedy.
In a recent judgment, the Division Bench of this high Court in the case of A.P.State Waqf Board, Krishna District v. Shaik Ismail and others3 held that the issue as to the entitlement of the writ petitioner to be appointed as Mutawalli has to be decided by a Civil Court or Tribunal having jurisdiction.
In the light of all of the above, the writ petition is allowed and the proceedings dated 25.08.2021 issued by respondent No.2 are held to be without jurisdiction.
It is made clear that this order will not preclude either the 2nd respondent or other statutory authorities from taking any action against the petitioner, provided the same is strictly in accordance with the Act and the Rules framed thereunder. Similarly, the unofficial respondents are also have the liberty to establish their "claim" if any before the appropriate forum. No order as to costs.
3 2022 (2) ALD 211 13 As a sequel, the miscellaneous petitions if any shall stand dismissed.
_________________________ D.V.S.S.SOMAYAJULU, J Date : 31.03.2022 KLP