Andhra Pradesh High Court - Amravati
D.Md Ashfaq vs The State Of Andhra Pradesh on 30 April, 2022
1
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.1449 of 2021
ORDER:
This Writ Petition is file questioning the proceedings dated 25.07.2019, by which the 3rd respondent appointed the 5th respondent as Care Taker of the Dargah Hazrath Shah Ali Akber @ Mastan Vali Dargah of Guntakal Town, Anatapur District. It is stated to be in violation of Section 64(6) and Section 38 of the Waqf Act, 1995 (Hereinafter called as "the Act").
This Court has heard Sri Shafath Ahmed Khan, learned counsel for the petitioner, learned Government Pleader for social welfare appearing for the 1st respondent, Sri Shaik Karimullah, learned Standing counsel for A.P. State Waqf Board appearing for respondents 2 to 4 and Sri O. Manohar Reddy, learned counsel for the 5th respondent.
Learned counsel for the petitioner submits that the appointment of the 5th respondent as a Caretaker is not correct and that it is not in accordance with the Waqf Act, 1995. He submits that there is no provision om the Act for appointment of a Care Taker. Even otherwise, learned counsel submits that the Waqf Board can take over management of a Waqf for a maximum period of five years in aggregate as per Section 65 (1) of the Act. He submits that the 5th respondent was appointed on 09.06.2014 and therefore, the five-year period elapsed on 08.06.2019. He also 2 argues that it is only the Chief Executive Officer or an Inspector who can manage the Waqf but the appointment of Caretaker is not dealt with anywhere in the Act. Learned counsel submits that as per Section 24 of the Act the Board shall be assisted by officers and staff as may be necessary for the performance of its functions which, however, shall be determined by the Board in consultation with the State Government. Therefore, he questions the appointment of a Caretaker by the CEO. Relying upon Section 38 (2) of the Act learned counsel submits that the CEO can only be appointed if the income is above Rs.5,00,000/-. Even otherwise if there is a need or necessity to takeover the Board he submits that under Section 64 (6) of the Act an application can be made to the Waqf Tribunal to appoint a receiver to manage the Board. He also relies upon the Rule 32 of the Waqf Rules, 2000 to argue that any person appointed by the Board should satisfy the requisites of Rule 32 and the cadre strength should be fixed. Therefore, learned counsel argues that the appointment of the 5th respondent is totally contrary to the terms of the Act. Serious allegations were also made by the petitioner about the functioning of the 5th respondent. Therefore, he prays for an order.
On behalf of the Board the learned standing counsel argues and justifies the action taken. As per him at that point of time the Waqf Board was not functioning and in those circumstances Chief Executive Officer has discharged his 3 functions. He also relies upon Section 25 (1) (c) of the Act gives general powers to the CEO to act for the control, maintenance and strengthening of the Board. Learned standing counsel also relies upon Section 25 (3) of the Act which gives the CEO all the necessary powers to act. Therefore, the action is justified by the learned standing counsel.
Sri O.Manohar Reddy, learned counsel for the 5th respondent by relying upon the impugned order points out that the 5th respondent was appointed as a Caretaker on 28.03.2017, and it was extended in 2018 and 2019. He draws the attention of this Court to the proceedings which are dated 28.03.2017. Learned counsel submits that the petitioner in this case challenged the 2019 extension order in the year 2021 without challenging the original order of appointment. Learned counsel submits that, therefore, on this ground itself the Writ has to fail. It is also argued that the 5th respondent is not a regular employee and there is no need for the Government concerned for appointment of a Caretaker. The allegations on the 5th respondent acted contrary to appointment etc., are very strongly denied. It is stated that the 5th respondent has limited duties and it is the Inspector of Auditor, who is discharging bulk of the duties. It is also argued that there are no merits in the allegations.
The short and simple question that arise for consideration is whether the CEO in the absence of the Board 4 could have appointed a Caretaker or not. It is settled law that a statute cannot visualize and envisage every contingency that will arise in the future or to provide for the same. Therefore, the purposive interpretation is necessary. If the purpose of the Act is seen it is clearly visible that the Act is provided for better administration of the Waqf and the matters thereto. Under section 25 of the Act CEO is given the power to do "generally such things" as may be necessary for control, maintenance and superintendency of the Waqf. He is also empowered to exercise such powers and do such duties as assigned to him under Section 25 of the Act. Similarly, under Section 27 of the Act also powers can be delegated to him. Under Section 29 of the Act he has the power to inspect any record, register or other documents etc. Therefore, it is seen that a Chief Executive Officer has been given ample powers under the Act subject to limitation that he should exercise his powers in accordance with the Act. Similarly, under Section 33 of the Act also the CEO is given the power to inspect the movable and immovable properties with the sanction of the Board. It is also to be kept in mind that the purpose of appointment of an officer, like CEOs is to ensure that the administration is carried out smoothly. Therefore, if there is a situation warranting action, the CEO can act depending on the situation. In the opinion of this Court it is not necessary that every action should necessarily be traced to statutory provision, if by necessary implication and by a 5 purposive interpretation the action is necessary or is justified. In the case on hand it is clear that the initial appointment of the 5th respondent was on 28.03.2017. He was appointed purely on temporary basis. The said order has been periodically reviewed. It was in force when the Writ was filed in 2021. The situation warranted it as there was no "Board" at that time.
This Court also has to agree with the submission of the 5th respondent that the initial order on 28.03.2017, by which the 5th respondent was appointed in the first instance, should have been challenged. But the extension order alone is being challenged. Therefore, this Court agrees with the submission of Sri O.Manohar Reddy that the challenge to the extension without questioning the initial appointment is bad.
However, this Court also notices that reading of the statutory provisions makes it clear that even if the Board is functional it can at best takeover direct management after issuing a gazette notification for a maximum period of 5 years only. The purpose behind this cannot be lost sight of. A certain amount of autonomy and freedom has to be given to the Muthavallies who will be appointed to discharge their functions as Muthavalies of a Waqf. The Board by itself cannot discharge all these functions. Similarly, a temporary appointee like Caretaker cannot also discharge all these functions for a period of more than "five" years. In the opinion of the Court the extension cannot be given to the 5th 6 respondent in perpetuity. It must only be for a short period and to meet some unforeseen situations / exigencies.
Keeping all these in view while dismissing the Writ Petition, this Court directs the 3rd respondent to take action immediately to rectify the defect pointed out in this case and take appropriate steps for appointment of an appropriate Muthavali or Managing Committee etc., for the institution strictly in accordance with the Act. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, shall also stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:30.04.2022 Ssv