Telangana High Court
Syed Maqbool Hussain Jaffery vs Telangana State Wakf Board on 25 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No.19523 OF 2023
ORDER:
The 2nd respondent - Chief Executive Officer, Telangana State Waqf Board issued Proceedings F. No. 299/TOW/NLG/2015/Z- III-VOL-II, dated 15.06.2023 appointing the 3rd respondent as Muthawalli of Ashoorkhana-e- Shazada Qasim along with Graveyard & Karbala Maidan in Survey Nos. 315, 462, 463, 467, 470 and 471 comprising an extent of Ac.10.12 guntas (dry) and Ac.5.20 guntas (West) totalling an extent of Ac.15.22 guntas situated at Kondamadugu Village, Bibinagar Mandal, Yadradri Bhuvanagiri District. Alleging the said proceedings as illegal, arbitrary and against the principles of natural justice, this Writ Petition is filed.
2. It is the case of petitioner that he has been taking care of Ashoorkhana-e-Shazada Qasim and performing muharram rituals and duties every year continuously with great spiritual and devotional interest to the full satisfaction of one and all in our village and also neighboring villages along with his brother Syed Muzafar Hussain Jaffery. It is stated that on his application, the 2nd respondent initially appointed petitioner as Muthawalli under Section 63 of the Waqf Act, 1995 (for short, 'the Act') for one year vide Proceedings dated 30.04.2013 and 2 thereafter, he was made permanent Muthawalli vide order dated 13.12.2013.
It is stated initially, father of petitioner was Muthawalli of the said Ashoorkahana. While so, the 2nd respondent on receipt of certain complaints from unconcerned persons, initiated inquiry which is subject matter of O.A. No. 5 of 2016. On 21.05.2014 the lower division clerk of the Tribunal made the following observation as "....... Jashan and Nazro Niaz in the Ashoorkhana, he also not paid the electricity bill and there is a power cut in Ashoorkhana since then. There have been repeatedly increased of work of plotting on the left out wakf land of Ashoorkhana without any prior permission of wakf board of Ex-Mutawalli. The applicant request to take the Ashoorkhana in the direct management of AP State Wakf Board under Section 65 of the Wakf Qct 1995 earliest as possible" to which the special officer on 29.05.2014 endorsed 'take it under DM"
It is also stated that after appointment of petitioner as Muthawalli, paternal cousin of petitioner i.e. late Syed Raza Hussain and Syed Hyder Hussain Jaffery (father of the 3rd respondent) lodged a complaint dated 30.04.2012 against petitioner before the 2nd respondent alleging that he sold lands of the institution; enquiry was conducted and Enquiry Officer submitted report dated 04.08.2015 resulting in consequential 3 proceedings dated 22.01.2016 whereunder, the 1st respondent had taken Ashoorkhana under the direct management of Waqf Board till further orders. Challenging the same, petitioner filed O.A. Nos. 100 and 101 of 2016 on the file of the Wakf Tribunal, Hyderabad which are pending adjudication. Petitioner further filed Writ Petition No. 12431 of 2016 challenging the action of Respondents 1 and 2 in taking the institution under the direct management of Wakf Board vide order dated 02.06.2014, 17.07.2014 and the said Writ Petition is pending. The 2nd respondent by proceedings dated 25.03.2014 kept petitioner in abeyance under Section 42 of the Act. However, the 2nd respondent vide proceedings dated 19.09.2014 stated that revised order dated 17.07.2014 was not complied with and directed petitioner to continue as Muthwalli of Ashoorkhana, hence, petitioner has been discharging the duties as Muthawalli.
The 1st respondent vide Memo dated 31.05.2023 directed petitioner to submit budget estimates for 2020-21, 2021-22 in respect of Ashoorkhana and also waqf fund with arrears up to 2022-2023. According to petitioner, the said memo itself speaks that petitioner is still discharging the functions as Muthawalli. As things stood thus, the 2nd respondent issued impugned proceedings duly appointing the 3rd respondent as muthawalli of Ashoorkahan. Petitioner was 4 therefore, stated to have submitted several representations to Respondents 1 and 2 to continue him as muthawalli, but so far, the same were not considered. The grievance of petitioner is that the 2nd respondent without passing any order under Section 63 of the Act, issued the impugned proceedings which is illegal, arbitrary. It is stated that the 3rd respondent is not even native of Kondamadugu Village and for the present, he is out of country and in view of holy period of Moharram, it is just and necessary to set aside the impugned proceedings, for effective and smooth functioning of Ashoorkhana.
3. The 3rd respondent filed the counter-affidavit which runs into 16 pages, the gist of which is that petitioner admittedly challenged the impugned proceedings in O.A. Nos. 100 and 101 of 2016 wherein no interim order was passed, and now the same cannot simultaneously be challenged before this Court. For this reason alone, the instant writ petition is liable to be dismissed in limini. It is also stated that petitioner has also challenged the appointment notification of the 3rd respondent in Writ Petition No. 28264 of 2022 and also filed Writ Petition No. 12431 of 2016 contesting the office memo dated 17.07.2014 issued by the 1st respondent which sought to take the subject Ashoorkhana into direct management.
It is also stated that Writ Petition is liable to be dismissed for suppressing the fact that subject waqf institution 5 was already under the direct management of Telangana State Waqf Board vide proceedings, dated 05.02.2015 and under proper punchanama dated 28.04.2015, which remained unchallenged by petitioner. The 3rd respondent states that on receipt of various complaints about mismanagement and alienation of waqf property belonging to subject waqf, the 2nd respondent initiated action in accordance with law adhering to the procedure as contemplated therewith. The proceedings were issued after the removal/completion of the fixed tenure of the petitioner and completion of detail enquiry under Sections 70 and 71 of the Act.
The subject Waqf Institution is presently under the direct management of the Telangana State Wakf Board, vide proceeding dated 05.02.2015 the order was implemented under proper panchnama by the Waqf Board officials on 02.05.2015. It is stated that within six months of appointment of petitioner, the 2nd respondent took up the matter as additional item No. 38 vide Resolution No. 934 of 2013, dated 09.12.2013 to incorporate the name of petitioner as Muthawalli under Section 42 of the Act. Accordingly, proceedings dated 13.12.2013 were issued, later the said proceeding were kept in abeyance vide proceedings dated 25.03.2014. Petitioner was never made or appointed as a permanent Mutawalli (Manager) of the Subject Institution. The concept of permanent Mutwalli is unknown and 6 legally untenable under the Act. The said abeyance proceedings were never challenged by petitioner, hence they become absolute and final). It is emphasized that there is no pending case before the Tribunal in O.A. No. 5 of 2016 concerning the subject matter. The petitioner's reference to the said O.A. appears to be an attempt to mislead this Court.
4. Heard Sri K.S. Samuel, learned counsel for petitioner, Sri Ashutosh Joshi, learned Standing Counsel for Waqf Board and Sri Syed Najmal Hasan Badri, learned counsel for the 3rd respondent.
5. Having perused the material on record, it is clear that petitioner filed O.A. No. 101 of 2016 before the Waqf Tribunal for declaration of enquiry report dated 04.08.2016 pertaining to Ashoorkhana Shazada e Qasim, Nalgonda District convicting petitioner for selling waqf land of subject institution as illegal. He filed another O.A.No. 100 of 2016 for declaration of proceedings dated 22.01.2016 pertaining to his termination from the position of Mutawalli of subject institution. Both the said Applications were dismissed by the Waqf Tribunal on 22.02.2024. The Waqf Board incorporated the name of the 3rd respondent under Section 42 of the Act as Mutawalli of the subject institution. In this Writ Petition, the 3rd respondent has filed a detailed counter along with all necessary proceedings from appointment of petitioner to his termination as Mutawalli. 7 Petitioner has filed Writ Petition No. 28264 of 2022 challenging the appointment notification of the 3rd respondent as Mutawalli and the said Writ Petition is pending. Writ Petition No. 12431 of 2016 filed by petitioner questioning the action of the Waqf Board taking the Ashoorkhana under direct management is pending. From the above, it is clear that petitioner had already availed alternative remedy before the Telangana State Wakf Tribunal, though unsuccessfully and on suffering adverse orders, he approached this Court belatedly with ulterior motive and unclean hands. In view of the same, this Court is not inclined to entertain this Writ Petition and the same is therefore, liable to be dismissed.
6. The Writ Petition is accordingly, dismissed. No costs.
7. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 25th July 2024 ksld