Telangana High Court
Anjumanealavi vs State Of Telangana on 23 December, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 16996 OF 2023
O R D E R:
Petitioner, a Society registered under the Andhra Pradesh (Telangana Areas) Public Societies Act, 1350, challenges the proceedings issued by the 2nd respondent-Wakf Board dated 01.06.2023 as being illegal, arbitrary, violative of principle of natural justice and violative of Article 14 of the Constitution of India.
2. The case of the petitioner, succinctly stated, is as follows:
Two individuals, namely, Mr. Syed Abbas Hussain, and Mr. Mir Ahmed Ali Zaidi, (hereinafter be referred to as 'Wakifs'), during their lifetime, dedicated the under Municipal Nos 22-2-638 to 644 situated at Darulshifa, Hyderabad for the purposes of Ibadat Khana, through a Wakf Deed dated 15.02.1953 which was Gazetted vide Notification dated 16.03.1989. The Wakifs envisaged that property would be used for conducting Majlis, Jashans and other Ibadaat for the benefit of Shia community. Thereafter, the Wakifs, apart from themselves, nominated eight other persons, thereby formed a Mutawalli Committee to execute the Wakf Deed. The Wakf Deed 2 specified that committee members can exercise their right of succession but they have not named their successors, and over the time, they all expired without nominating the successive Mutawalli Committee. Thereafter, after a gap of 41 years, the 2nd respondent vide Proceedings dated 04.07.1994, exercising powers under Section 42 of the Waqf Act, 1954 (for short, 'the 1954 Act'), constituted a Committee without specifying its term.
The 10 individuals in the Committee constituted by the Wakf Board vide Proceedings dated 04.07.1994 also expired, thereby there was no Committee for Ibadat Khana. The committee under Sec 42 of 1954 Act is constituted only when there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed. This itself shows that the 10 members appointed in 1953 did not exercise their right to appoint their successors.
Thereafter, the 2nd respondent vide Proceedings No. F.No.97/Hyd/C1/06 dated 05.10.2007 appointed one Mr. Syed Alamdar Hussain Moosvi as President, Mutawalli Committee without mentioning the names of other members, stating him as a successor of the original committee as the proceeding was issued under Section 42 of the Wakf Act 1995 (for short, 'the 3 1995 Act') which comes into play only when there is continuous succession since 1953. But the 1994 proceeding issued as per section 42 of the old Act comes into play only when there is vacancy and there is no one to be appointed under the terms of the Wakf Deed or the right of any person to act as Mutawalli is disputed. Under Law when Section 42 of the 1954 Act (now Section 63 of the 1995 Act) has been pressed for constituting a Committee, there could not have been a committee under Section 42 of the 1995 Act complying by informing the changes to the Waqf Board from past more than 54 years. It is also alleged that 2nd respondent after 41 years ie. in 1994, issued proceedings under Section 42 of the old Act which corresponds to Section 63 of the 1995 Act constituting a committee which means that there was vacancy in the office of mutawalli Committee and there was no one to be appointed under the waqf deed. Again after 13 years from 1994, in 2007, the 2nd respondent surprisingly issued proceedings as per Section 42 of the new Act stating that from past 54 years, Mutawalli Committee was notifying the changes in the management to the 2nd respondent when a proceeding in past was issued under Section 42 of 1954 Act in 1994 when there was no one to be appointed as per the Waqf deed since all the original Mutawalli 4 Committee members died without nominating their successors. It Is alleged by petitioner that the impugned proceeding is issued after a gap of 16 years from issuing the proceeding of 2007. It is also alleged that the impugned proceeding is issued without correctly stating the municipal numbers in which the subject Ibadat Khana is located presently, and the proceedings mention only two numbers i.e., 22-2-638 and 644 whereas the Ibadat Khana is presently situated in Municipal Nos. 22-2-638, 639,640,641,642,643,644, 22-2-645 to 650 and portion of 664, 22-2-664, 22-2-666 and 667, and 22-2-636 and 637. It is stated that the sole nominated individual Mr. Syed Alamdar Hussain Moosvi appointed vide Proceedings dated 05.10.2007 also expired and there is no Committee as no other person's name other than Mr. Syed Alamdar Hussain Moosvi was there in the proceeding issued in 2007.
It is also stated that Waqf Board issued a proceeding for construction of Ibadat Khana in 2018 in the name of a person, named Capt. S. A. HadiSadiq, as a President Mutawalli Committee IbadatKhana whose name was in the proceeding dated 04.07.1994 issued under Section 42 of the 1954 Act bearing No H1/2/16/94. Capt. S. A.Hadi Sadiq's name is nowhere reflected in the proceeding dated 05.10.2007 5 issued under Section 42 of the 1995 Act in 2007. The impugned proceeding did not speak about the said Mutawalli committee which is mentioned in proceedings dated 27.09.2018 bearing file No.59/Permission/Hyd/2018. It is pointed out that how a member of a committee which was contemplated in 1994 under Sec 42 of 1954 Act (which is Sec 63 of 1995 Act) became a president of a mutawalli committee in 2018.
The petitioner-Society, on earlier occasion, filed writ Petition No.35629 of 2022 in relation to the very same Ibadat Khana but for a different relief, and the 2nd respondent filed counter stating that they had no information about the demise of 10 members nominated by the Wakif. Petitioner states that impugned proceedings dated 01.06.2023 say that it is based upon proceedings of 2007 i.e. 05.10.2007 and that for over past 60 years, there is succession complying with the Wakf Act and on the other hand, Wakf Board in the counter-affidavit states that it has no information about the demise of 10 members which includes wakifs and other 8 members. The impugned proceeding does not speak anything about Capt. Syed HadiSadiq who was given permission to demolish Ibadath Khana by issuing a proceeding in 2018. It is alleged that as per Section 42 of the 1995 Act, any change in the management due 6 to removal, retirement or death of present incumbent should be forthwith informed to the Board and any other change in any of the particulars mentioned in Section 36 shall be notified within three months. It is stated that neither of the clauses of Section 42 of the 1995 Act has been followed. The petitioner alleges that as of now Ibadat Khana is on municipal numbers 22-2-638, 639,640,641,642,643,644, 22-2-645 to 650 and portion of 664, 22-2-664, 22-2-666 and 667, and 22-2-636 and 637 but the impugned proceeding dated 01.06.2023 was issued on only two municipal numbers i.e., 22-2-638 and 643. The observation of this Court in the above Writ Petition is extracted hereunder as follows:
"However, it is to be seen that, as to today, the said properties, which are being claimed by the respondents to form part of the original wakf, have not been included as a wakf property as an addition to the wakf that was created in the year 1953. Till such time the addition is taken on record by gazetting the same in the notification, they do not take the colour of a wakf property".
It is also stated that impugned proceedings refer to a Report of Inspector Auditor, Wakf Circle Nos. 1, 5 and 7 of TSWB, Hyderabad, dated 18.11.2021 but did not mention the subsequent reports submitted by Inspector Auditor, Wakf Circle No.1 dated 28.06.2022, 27.07.2022 and 19.12.2022 which states that the approval is under process for the committee. The 7 petitioner submits that when there was no approval of the committee by the Board, the unauthorised occupants of the waqf institution would come under Section 3(ee) of the Waqf Act and instead of taking action under Sec 52(A) of the Waqf Act 1995, the 2nd respondent issued the impugned proceeding. The petitioner alleges that the impugned proceeding states that it is as per Section 42 of 1995 Act and the Board is notified as and when required under the Act from past more than 60 years, if this was so, the three enquiry reports should not have stated that committee's approval is under process. The Wakf Board was sensitized under the RTI Act vide letters 03.09.2019 and 21.06.2021 and 03.08.2022 asking for certified copies of proceedings of constitution or approval of managing committee or Towliyat committee, copies of proceedings of changes in the committee due to death or resignation of members from 1955 to till date or whichever is available. The petitioner alleges that no information was furnished by the 2nd respondent.
It is stated that one Capt. Syed HadiSadiq, self- styled President of Muttawali Committee made an application dated 13.08.2018, upon which the 2nd respondent issued proceedings to demolish the existing Ibadat Khana together with the five mulgies attached to it. The proceedings allegedly gave 8 permission to the said Captain to construct new Ibadat Khana after demolishing the same on condition that appropriate permissions be obtained from local body, namely GHMC for construction which should be completed within one year. It is alleged that Ibadat Khana was demolished but no construction permission for IbadatKhana was obtained by Capt. Syed HadiSadiq. It is alleged that on enquiry with GHMC, it has come to light that Capt. Syed HadiSadiq along with his associates purchased small extents of land in Municipal Nos.22-2-645 to 650 and portion of 664, 22-2-664, 22-2-666 and 667, and 22-2- 636 and 637, approached GHMC for permission to give residential permission and individual permissions was obtained for the said small extents of land. It is stated that these individuals obtained individual permissions, clubbed them with Ibadat Khana and constructed a large building and there are no mulgies constructed which were built by the Wakifs for the upkeep and maintenance of IbadatKhana. There is no legal committee at all and representation was submitted on 07.11.2022 to include the names mentioned in the representation whenever the 2nd respondent is incorporating a managing committee for Ibadat khana which was ignored by the 2nd respondent against the fundamental rights and principles of 9 natural justice and there is no mention of these representations in the impugned proceeding. He also submitted representation on 23.08.2022 to the Wakf Board and as there was no action, Writ Petition No.35629 of 2022 was filed wherein this Court passed interim orders dated 14.09.2022 and as it was not complied, Contempt Case No.1948 of 2022 was filed. It is stated that the 1st respondent- State was sensitized about the misdeeds of the 2nd respondent-Wakf Board and the 1st respondent vide proceedings dated 10.01.2023 and 25.01.2023 directed the Wakf Board to take action as per Section 52-A of the Act, and as no action was taken, Writ Petition No. 12235 of 2023 was filed wherein this Court passed order dated 27.04.2023. After the order was passed in the said Writ Petition, the 2nd respondent instead of taking action under Section 52-A of the 1995 Act, issued the impugned proceeding. It is stated that the impugned order was passed in a mechanical fashion without application of mind, further the website of Ibadatkhana would show that some individuals naming themselves as committee members of Ibadat Khana are collecting crores of rupees and certain activities being conducted are anti-national, and representations were submitted to investigation authorities. 10 It is therefore, urged that impugned proceedings dated 01.06.2023 are illegal and arbitrary and liable to be set aside.
3. Vide order dated 11.07.2023 in I.A.No. 2 of 2023, Respondents 4 to 9 were impleaded.
4. Learned Senior Counsel Sri P. Venugopal representing Mr. Mir Lukman Ali, learned counsel for petitioner submits that the Waqf Deed is sacrosanct. The intention of the Waqifs cannot be substituted by anybody including the Courts. The Waqfnama gives liberty to Waqif's to nominate their successors, but neither Waqifs nor nominated eight individuals have spelt out who would be their successors. Therefore, the intention of the Waqifs could not be executed. According to him, the Waqf Board knew about this and therefore, after a lapse of 41 years, it had drawn Proceeding dated 04.07.1994 invoking Section 42 of the 1954 Act. Inviting attention to Section 42 of the Old Act, learned Senior Counsel submits that if there is no successor, vacancy has to be filled up in terms of the deed and since in the instant case, this could also not be done, proceedings have been issued in 1994 independently.
It is argued that since the Waqf institution cannot be without any committee, the Waqf Board can constitute a committee on such terms and for such period as it deems fit 11 and proper. Without stipulating the same, the 1994 proceedings have been issued. Coupled with the fact that such a proceeding issued in 1994 was suppressed by the Board while issuing the proceeding in 2007 and the impugned proceeding. This being the position, learned counsel submits that though Waqf Board was aware of this position, it indulged in issuing the present proceedings in utter breach of the provisions of the Act and therefore, he submits that whenever there is breach of provisions of the Act, the only remedy available for petitioner is to knock the door of this Court. He states that the 2nd respondent ought to have treated the persons named in the impugned proceeding as encroachers as per Section 3(ee) of the Waqf Act and should have taken action under Section 52-A of the Act. He further states that in the circumstances, under the new Act, Section 63 and Section 18 are applicable and since the representations of the petitioner ought to have been considered and the names given by the petitioner society ought to have been considered as members of the committee. Since this has not occurred, he says that principles of natural justice have also been violated, in as much as no opportunity was given by the Board to the Society before passing the impugned order. Therefore, he says that the impugned order is bad in law as well 12 as contrary to the principles of natural justice. He also submits that as observed by this Court in Writ Petition No.2472 of 2023, the intent of the Wakifs while executing the Wakf Deed should prevail and the subject property should be used as IbadatKhana and not for any other purpose. He further submits that despite several representations made by the petitioner-Society not to appoint any Committee, without hearing them and taking cognizance of their representations, the impugned proceedings have been issued. In support of his contentions brought out in the writ affidavit, he placed reliance on various judgments of the Hon'ble Supreme Court, and also this Court, to drive home the point that a person interested in Wakf under Section 3(k) of the Act, is not a juristic person, and that Society comes under Section 3(k) of Wakf Act, 1995; and that alternative remedy need not be exhausted and jurisdiction under Article 226 of this Court can be invoked when principles of natural justice have been violated in passing the order by the executive authority. Attention of the Court was drawn to judgments rendered in Illachi Devi (dead) by LRs v. Jain Society 1, Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla 2, State of Andhra 1 (2003) 8 SCC 413 2 SLP c Nos.31288-31290 of 2011 13 Pradesh (now State of Telangana) v. A.P. State Wakf Board 3, Telangana State Wakf Board v. P. Shankaraiah 4, M/s Sai Pawan Estates Pvt. Ltd. v. The Telangana State Wakf Boards 5, M/s Godrej Sara lee Ltd. V. The Excise and Taxation Officer-cum- Assessing Authority 6, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 7, A.V. Papayya Sastry v. Govt. of AP 8, State Bank of India v. M/s Basi 9, Mariamma Roy v. Indian Bank 10, Union Quality Plastics Ltd. V. The State of Telangana 11, Syeda Nazira Khatoon (dead) by legal representative v. Syed Zahiruddin Ahmed Baghdadi 12, Ghalib Saheb v. Andhra Pradesh State Wakf Board 13, Shaik Ghouse Mohiuddin v. A.P. State Wakf Board 14, Moulana Mohammed Jamaluddin Deccani v. Government of Andhra Pradesh 15.
5. Learned Standing Counsel for the 2nd respondent- Waqf Board Sri Abu Akram, based on the counter affidavit, would contend on the maintainability of Writ Petition when remedy is available under Section 83 of the Wakf Act, 1995. He contended that Waqf Deed empowers the Muthawalli Committee 3 2022 SCC OnLine SC 159 4 WA Nos.318 of 2021& batch 5 WA Nos.20707 Of 2018 and batch 6 Civil Appeal Nol 5393 of 2008 7 (1998) 8 SCC 1 8 (2007) 4 SCC 221 9 (2004) 11 SCC 347 10 Civil Appeal No. 5673 of 2008 11 WP No.22978 of 2020 12 (2019) 9 SCC 522 13 WP.No.6163 Of 2013 14 (2002) (1) A.P.L.J.154(HC) 15 1995 (2) ALD 37 14 to fix its own successors and therefore, the question of no Committee does not arise. It is also contended that the municipal numbers of the IbadatKhana are mentioned in A.P. Gazette No.11-A dated 16.03.1989 at Serial No.100. It is also contended that the incoming members of Ibadat khana Hussaini under Section 42 of the Wakf Act 1995 speaks "change of management of Waqf to be notified" was brought to the notice of Wakf Board before the Board meeting held on 06.04.2023 and the Board after carefully examining the matter unanimously resolved the issue and passed resolution No. 180 dated 06.04.2023 with a direction to incorporate the incoming members of Ibadatkhana Hussaini and subsequently, proceedings dated 01.06.2023 have been issued. It is also contended that the name of Capt. Syed HadiSadiq was mentioned at Serial No.5 of the proceedings issued in 1994, and that as per the directions of this Court in IA No. 1 of 2022 in Writ Petition No. 35629 of 2022, an elaborate Intimation dated 14.11.2022 was issued by the Waqf Board directing the inspector Auditor Circle No.1 to conduct further detailed and discreet inquiry in the matter and submit a detailed report for taking action as per Section 54 of the 1995 Act, and that the said Writ Petition is pending before this Court. Learned 15 Standing Counsel therefore, contends that there is no illegality in the impugned order.
Learned Standing Counsel draws attention of this Court to the judgments of the Hon'ble Supreme Court in Board of Wakf, West Bengal v. Anis Fatma Begum 16, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 17, Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji 18, Managing Committee, Masjid-e-ek Khana Jame Masjid Mohammedi, Kishanbagh, Hyderabad v. State of Telangana 19, in support of his contention that Wakf Tribunal has jurisdiction to decide all the disputes relating to Waqf matters and therefore, a Writ Petition is not maintainable.
6. Learned counsel for unofficial respondent No.3 Ms. N. Sameena made submissions based on the averments of counter affidavit. Though he did not press on alternative remedy, he would mainly contend that proceedings of the 2nd respondent dated 05.10.2007 states that management of Waqf institution recognized under Section 42 of the 1995 Act clearly states that the committee is consisting of ten (10) members and Mutawalli Committee and succession committee are complying 16 CDJ 2010 SC 1069 17 CDJ 1998 SC 371 18 CDJ 2013 SC 651 19 CDJ 2019 TSHC 150 16 with the 1995 Act for the last 60 years by informing the changes in the management of waqf institution and the municipal numbers and the properties of waqf institution is not at all co- related with the management. It is also contended that proceedings of the 2nd respondent-Waqf Board dated 04.07.1994 reflects that the management of Ibadat Khana is recorded as contemplated under Section 42 of the 1995 Act. It is contended that petitioner challenges the functioning of defendants 3 to 8 as Mutawalli Committee in O.S.No.83 of 2021 on the file of Waqf Tribunal and therefore, the relief in Writ Petition and the one in O.S. No.83 of 2021 is same as that of Writ Petition. It is also contended that petitioner's representations dated 12.08.2022 and 23.08.2022 were disposed of by issuing an Intimation dated 14.11.2022 therefore, the same are not relevant to the present writ petition. The impugned order dated 01.06.2023 was passed as per the procedure laid down in the 1995 Act and there is no Illegality in the impugned order, emphasizes learned counsel.
7. This Court considered the respective contentions and perused the material on record and also the judgments relied on by the respective counsel in support of their contentions.
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8. Though this writ petition was opposed on the ground of maintainability as statutory remedy under Section 83 of the 1995 Act is available, considering the contentions of petitioner that impugned proceedings were mechanically issued without regard to the principles of natural justice, and resorting to falsehood by the respondents, this Court is inclined to consider the Writ Petition as under:
9. At this juncture, it is relevant to refer to Waqf Deed dated 15.02.1953, translation of which is extracted below:
WAKF DEED IBADAT KHANA E DARULSHIFA We, Syed Abbas Hussain s/o late Mir Sadiq Ali Sahab Retired Superintendent Excise aged 76 yrs, resident of Darulshifa & Syed Ahmed Ali Zaidi s/o late Mir Kazim Ali sahab Zaidi retired Doctor, aged 78 yrs, JambaghDarulshifa do hereby pronounce the affair by means of this Deed, that we were the owners & the possessors of the Immovable property & the land on which the said properties were situated in the form of buildings.
We have mutually agreed & decided that we with our own means & to exceed the limits of our own resources, would seek financial aid of Shia ImamiaIthna Ashariya community, to construct such a building in which the prayers of the said community may be performed & to conduct the other religious functions like "Majaalis e Aza" & jashn with regard to the Birth Anniversaries of Holy Imams. Hence we both on the basis of mutual decision & agreement has dismantled the said owned & possessed buildings & has laid the foundation of the building popularly known & named as "IbadatKhana Darulshifa on the land obtained by dismantling & we have completed the construction of the building popularly named & known as "Ibadatkhana darulshifa" & has constructed 5 Mulgis structure on the portion of land adjoining Ibadatkhana by our own absolute expenses & with the esteemed absolute expenses from Financial Aid of Shia Imamiathna Ashariya community The boundaries of the Ibadatkhana & 5 Mulgis:
Eastern Side: House of late Akramullah khan sahab Western side: House of Jai KishanMarwadi& House of Syed Ali Sahab Northern Side: House of Aqa Mirza Abdul Hussain sahab Southern Side: Public Way We have constructed the above mentioned mulgis in accordance with the aforesaid expenditure & manner with the intention that the income from these mulgis will support in the management of expenses for the existence, continuance & preservation of the building named & known as Ibadatkhana Darulshifa.
We have established a committee during the construction period of mulgis & Ibadatkhana itself, for the their regulation existence. Continuation, preservation & comprehensive task management, whose present members are as follows:
(1) Syed Abbas Hussain s/o late Mir Sadiq Ali sahab..... 1st Affirmer (2) Dr Mir Ahmed Ali zaidi s/o Late Mir Kazim Ali sahab Zaidi....2nd Affirmer (3) Nawab Shaheed Yar Jung Bahadur s/o late Dr Mir Yusuf All sahab (4) Mir Gauhar All Moosvi s/o late Mir Ahmed Ali Sahab (5) Syed Ali s/o late Mir Zahidalisahab (6) Syed Ali Sajjad s/o late Syed Mohammad Ashraf sahab 18 (7) Dr Mir Mustafa Ali Zaidi sahab s/o late Mir Mehdi Ali sahab Zaidi (8) Syed All MohdAqa Mir s/o late Mir Sadat Ali sahab (9) Mir Momin Ali s/o late GhulamSyedsahab (10) Syed Mohammad Mehdi s/o Syed Mohammad Al Hussainisahab Now, we after in depth consideration & mutual consultation of those people among Shia ImamiaIthna Ashari community, who are interested in the welfare & prosperity of "IbadatKhanaDarulshifa" have decided to endow (wakf) "Ibadatkhana darulshifa" & adjoining aforesaid Mulgis to the people & for the benefit of the whole ShlaImamia IthnaAshari community mentioned above & also the wakf has to be registered accordingly with the law.
Thus, we all affirmers of the building known& named as ibadatkhana Darulshifa has dedicated for the performance of the prayers of the said community & other religious functions like Majaalis e Aza &Jashn in connection with the Birth Anniversaries of Holy Imams & the above mentioned 5 Mulgis for the management of the expenses pertaining to the existence, continuance & preservation of the building known & named as Ibadatkhana Darulshifa has been wakf& the Managing committee is decided to be the Mutawalli of this Wakf. It is necessary for this Mutawalli committee to ensure the enforcement of the known aims/objects of the wakf& should ensure its stability, should always adopt such policies & methods which assists the Shia ImamiaIthna Ashari community to execute the above said religious functions & it should ease in the enforcement of the above said Aims & objects in an organised manner. The said committee will make the rules & regulations concerning the stability of the funds of Ibadatkhana & for the arrangements for the usage of the said building & their collective and Individual duties. Moreover, they may compile rules regarding their collective & individual successorship & will make the Rules Publicly visible in a prominent place in IbadatKhana building. The present committee & the succeeding committees will have an unrestricted freedom to amend, change or add to the compiled rules accordingly with the situation.
Compiled on 30thJamadiulawwal 1372 Hijri/ 15th February 1953
1. Sd/- Member No.1 Committee Mutawalli Syed Abbas Hussain S/o Mir Sadiq Ali Sahib (Late) Aged 76 years, Resident of Darush-shifa
2. Sd/-Member No.2 Committee Mutawalli.Dr. Mir Ahmed Ali Zaidi S/o Mir Kazim Ali Sahib Zaidi (late) Aged 78 years, Resident of MohallaDarush-shifa
3. Sd/- Member No.3 Committee Mutawalli Nawab Shaheed Yar Jung Bahadur S/o Dr. Mir Yousuf Ali Sahib (Late) Resident of Hyderguda
4. Sd/- Member No.4 Committee Mutawalli Mir Gawhar Ali Moosavi S/o Mir Ahmed Ali Sahib (Late) Aged 69 years, Resident of H.No. 925, KoocheyKadveySaheb, Darush-shifa
5. Sd/- Member No.5 Committee Mutawall Syed Ali S/o Mir Zahid All Sahib (Late) Darush-shifa
6. Sd/- Member No.6 Committee Mutawalli Syed Ali Sajjad S/o Syed Mohammad Ashraf Sahib (Late) Resident of Darush- shifa
7. Sd/- Member No.7 Committee Mutawalli Dr. Mir Mustafa Ali Zaidi S/o Mir Mehdi Ali Sahib (Late) Aged 69 years, Resident of H.No. 925, KoonchardKadvey Resident of Sultanpura
8. Sd/- Member No.8 Committee Mutawalli Syed Ali Mohammad Agha Meer S/o Mir Saadat Ali Sahib (Late) Near IbadathKhana, Darush-shifa
9. Sd/- Member No.9 Committee Mutawalli Mir Momin Ali s/o Ghulam Syed Sahib (Late) Resident of H.No. 1036, Irani Galli
10. Sd/- Member No. 10 Committee Mutawalli Syed Mohammad Mehdi S/o Syed Mohemmadul Hussaini Sahib (Late) Aged 69 years, Resident of H.No. 925, KoonchardKadvey Resident of Darush-shifa.
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WITNESSES:
1. Sd/- Syed Mohamed Askari Hussain (Askar Yar Jung)S/o Syed Mohammad Ghulam Jabbar (Jabbar Yar Jung) Resident of JabbarKada, Hanuman Takdi, Hyderabad-Deccan
2. Syed Baquer Hussain S/o Syed Farrukh Hussain Sahib (Late) Hanuman Takdi, Hyderabad
3. Sd/ Syed Haspuri S/o Syed Mohammad Askari Hussain (AskarYar Jung) Resident of JabbarKada, Hanuman Takdi, Hyderabad Deccan
4. Sd/-Syed Mahmood Hussain S/o Syed Mahmood Hussain Resident of Khairtabad
5. Sd/- Hiran Abdul Hussain Tabrezi S/o HaziShaik Hassan (Late) House No.443.
10. Furthermore, the Gazette Publication published in 1989, at Serial No.100 would show that subject waqf property is located in Municipal Nos.22-2-638 and 643., and its five mulgies is situated in municipal numbers 22-2-639 to 642 and
644.
11. In this factual background, the points to be answered to come to a just conclusion are:
(i) Whether a society is a person interested as per Section 3(k) of the 1995 Act and whether a society is a juristic person.
(ii) Whether, a mere alternative remedy is a bar to maintain a writ petition under Article 226 of the constitution.
(iii) Whether a proceeding is sustainable under Sec 42 of Wakf Act 1995 when in past a proceeding has been issued under section 42 of 1954 Wakf Act which corresponds to Sec 63 of 1995 Wakf Act.
(iv) Whether there is a violation of principles of naturals justice and fundamental rights.
12. POINT No.1: It was the contention of Respondent No. 3 that a Society does not come under Section 3(k) of the 1995 Act as it is a juristic person. In this regard, petitioner Society relied on the judgment in Illaichi Devi (Dead) by LRs v. 20 Jain Society, Protection of Orphans India (supra), wherein it was held as under:
" 21. A society registered under the Societies Registration Act is not a body corporate as is the case in respect of a company registered under the Companies Act. In that view of the matter, a society registered under the Societies Registration Act is not a juristic person.
54. Societies registered under the Societies Registration Act in the changed scenario play an important role in society. They discharge various functions which are beneficial to the society. They runeducational and other institutions. They sometimes work in public interest and act in aid of State functions. They have their own accountability. They sometimes incur liabilities. Public Interest Litigations filed by the societies are galore".
They also relied on the judgment in Maharashtra State Board of Waqfs v. Shaikh Yusuf Bhai Chawla (SLP (C) Nos.31288-31290 of 2011), wherein the Hon'ble Supreme Court held thus:
"The Petitioner in SLP (C) No.35196 of 2011 is a society registered under the Societies Registration Act, 1860. All the members of the Trust profess Islam and are persons interested in the affairs of the Wakf set in question by virtue of the provisions of Section 3(k) of the Wakf Act, 1995."
In view of the aforesaid judgments, this Court is of the opinion that 'Society' comes under the definition of Section 3(k) and is a person interested in Wakf since it is not a juristic person.
13. POINT No. 2: Learned Standing Counsel for Waqf Board did not make any submission on the factual aspects of 21 the matter but only raised one contention that in view of the following Judgments, appropriate remedy to petitioner is to approach the Waqf Tribunal and Writ Petition is not maintainable: -
1. Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (supra)
2. Board of Waqf, West Bengal v. Anis Fatima Begum 20
3. Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji 21
4. Rashid Wali Beg v. Farid Pindari 22
5. Copy of Citation CDJ 2019 TSHC 150.
14. On the other hand, petitioner urged before the Court by citing the following Judgments:-
1. State of Andhra Pradesh (Now State of Telangana) v. State Wakf Board (supra)
2. Telangana State Wakf Board v. Shankaraiah (supar)
3. M/s. Sai Pawan Estates Pvt. Ltd v. The Telangana State Wakf Board (supra)
4. M/s. Godrej Sara Lee Ltd v. The Excise and Taxation Officer- cum-Assessing Authority(supra)
5. Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (supra)
6. Telangana State Waqf Board v. Solithro Private Limited (Writ Appeal No. 1432 of 2016)
15. The judgments relied on by the 2nd respondent to the effect that all matters pertaining to waqf should be only before the Waqf Tribunal are no longer good in law, as the 20 CDJ 2010 SC 1069 21 CDJ 2013 SC 651 22 CDJ 2021 SC 908 22 Hon'ble Supreme Court elaborates in State of Andhra Pradesh v. A.P. State Wakf Board (supra) as under:
" In Rashid Wali Beg, this Court examined all the previous judgments a question as to whether any property is a wakf property or not is triable exclusive the Wakf Tribunal but the judgments discussed therein pertained to the invocation of the jurisdiction of the Civil Court or of the Wakf Tribunal. None of the judgments with the invocation of the jurisdiction of the writ court. Anis Fatima Begum, is not a judgment arising out of a writ petition filed before the High Court."
109. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai &ors (1998) 8 SCC 1
14.The power to issue prerogative writs under Article 226 of the Constitution plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of of the Fundamental Rights contained also for "any other purpose".
109. Facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
16. The instant case falls within the exceptions carved out by the Hon'ble Supreme Court in Whirlpool Corporation's case (supra) and Writ Petition can be entertained, notwithstanding the alternative remedy. Moreover, on perusal of petitioner's contentions to the effect that principles of natural 23 justice have been violated as the 2nd respondent failed to look into the representation of petitioner, this Court held that when principles of natural justice are violated, Writ Petition is maintainable under Article 226 of the constitution.
17. In Telangana State Waqf Board v.
P.Shankariah, the Court held that, " This Court as well as the Hon'ble Supreme Court in catena of cases have held that the principles of natural justice are inviolable and fundamental to the rights of the parties to be heard before any orders are passed and Courts under Article 226 of the Constitution of India can exercise judicial power to review decisions made by the subordinates/quasi judicial authorities to see whether the principles natural justice are violated or not and whenever warranted the Court will step-in to correct same. The power of judicial review has been held to form the basic structure of the Constitution and the said power cannot be controlled or excluded by any provision of Statute or Rules mac thereunder. Therefore, the contention of the learned Standing Counsels that the only remedy available to the petitioners is to approach the Waqf Tribunal for setting aside the Waqf Notification if they are aggrieved by the same, cannot be countenanced and the same has to be rejected. The Court while exercising power under Article 226 of the Constitution of India is not denuded of the power to deal with the orders of the Joint Collector to see whether the orders that are passed are in accordance with the procedure established by law or whether there was any violation of the principles of natural justice. Even though the learned Standing Counsel for the Waqf Board has relied on the judgment of the Hon'ble Supreme Court in Whirlpool Corporation (supra), but, as a matter of fact, in the said decision, the Hon'ble Supreme Court has held as under:
24
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available. The High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."
Thus, mere existence of an alternative remedy will not by itself take away the powers of the High Court under Article 226 of the Constitution of India to exercise its power to review the decision made by the quasi-judicial authority."
In view of the above observations, this Court is of the considered opinion that there is violation of principles of natural justice, hence, petitioner may not resort to alternative remedy and this Court can entertain Writ Petition under Article
226.
18. Learned counsel for the 3rd respondent contended that O.S.No.83 of 2021 is pending before the Waqf Tribunal filed by petitioner and prayer in that suit is same as that of the present Writ Petition and petitioner has to approach the Waqf Tribunal. To this contention, answer is given by the learned Senior Counsel for petitioner that plaintiff in the suit is not petitioner Society and prayer is also different since the suit was 25 filed in 2021 and the impugned proceedings was passed in 2023, therefore, question of same prayer does not arise. In view of the above, the contentions of learned Senior Counselare sustained as it is correct that plaintiffs in O.S.No.83 of 2021 are distinct persons and petitioner herein is a Society and also the prayer in the Suit filed in Tribunal in 2021 cannot be the same as in this Writ Petition since impugned proceeding is passed in 2023 after the suit was filed in the Tribunal, therefore, petitioner may not resort to alternative remedy.
19. POINT No.3: For a clear view, it is necessary to extract Section 42 of the old Act, which corresponds to Section 63 of the new Act. It reads as under:
" When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.
Section 42 of the 1995 Act is extracted below:
"In the case of any change in the management of a registered waqf due to the death or retirement or removal of the mutawalli, the incoming mutawalli, shall forthwith, and any other person may notify the change to the Board.
In the case of any other change in any of the particulars mentioned in Section 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board."26
20. In the light of the same, it is to be held that both the 2nd respondent and the 3rd respondent have not answered on the contentions raised by petitioner about the sustainability of impugned proceeding as per Section 42 of the 1995 Act. On perusal of the contentions of petitioner, it can be seen that after 41 years, the 2nd respondent vide Proceeding dated 04.07.1994, exercising powers under Section 42 of the 1954 Act, constituted a Committee without specifying its term. 10 individuals named in the Committee constituted by the Wakf Board vide above proceedings also expired, thereby, there was no Committee for Ibadat Khana. The said Committee under Section 42 of the 1954 Act is constituted only when there is a vacancy in the office of the mutawalli of a waqf and when there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalii is disputed. This itself shows that 10 members appointed in 1953 did not exercise their right to appoint their successors.
21. Thereafter, the 2nd respondent vide Proceeding dated 05.10.2007 appointed one Mr. Syed Alamdar Hussain Moosvi as President, Mutawalli Committee and there was no other name mentioned in that 2007 proceedings, and also stating him as a successor of the original committee of 1953 as 27 the proceeding was issued under section 42 of Wakf Act 1995, and suppressing 1994 proceeding which was issued as per Section 42 of old Act, 13 years prior thereto. Therefore, when a proceeding was issued in 1994 under Sec 42 of old act which corresponds to Sec 63 of the new Act, there could not have been a proceeding issued under Sec 42 of new act since the Sec 42 of new act is applicable only when there was no vacancy in the office of mutawalli.
22. Furthermore, petitioner brought to the notice of this court that O.A. No.29 of 2007 was dismissed because the proceeding dt 04.07.1994 issued under Section 42 of the 1954 Act was suppressed by the 2nd respondent and in the order of the Tribunal, it was observed that 'Waqf Board has no power under Sections 18, 32, 63 to constitute a committee when the successive Committee to Ibadath Khana Shia Wakf institution is managing the affairs of the Wakf'.
23. When once a committee is constituted under Section 42 of the 1954 Act which corresponds to Sec 63 of 1995 Act, the question of Successive committee does not arise. There was suppression of proceeding dt 04.07.1994 bearing No. H1/2/16/94 issued under Sec 42 Wakf Act 1954 in 2007 as well as in the impugned proceeding dated 01.06.2023. 28
24. Further, the impugned proceeding states that, "From the office record of State Waqf Board it is seen that the Mutawalli Committee of the Waqf deed and its considered success committee are complying with the Waqf Act' 1995 for the last (60) and above years by informing changes the management under Section 42 of the Waqf Act 1995." It is also stated by petitioner that the 2nd respondent states in the sworn affidavit in Writ Petition No. 35629 of 2022 dated 22.12.2022 Para No.6 that "the Board has no information about the demise of all the above said (10) members nominated by the Wakifs...." Therefore, the aforesaid paras show that it is clear falsehood spoken in the impugned proceeding that Committee is informing the changes to the Waqf Board from past more than 60 years. Also, there was suppression of proceeding issued in 1994 in the impugned proceeding as well as in the proceeding issued in 2007. Therefore, when a statutory body speaks falsehood in its order, then it is null and void before law. It is relevant here to refer to judgement given in A.V.Papayya Sastry v. Govt of A.P. (supra) wherein the Hon'ble Supreme Court held as under:
" 28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as "wholly perverse", Kuldip Singh, 3. (SCC p. 5, para 5) "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property 29 grabbers, tax-evaders, bank-loan- dodgers and e other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
29. The Court proceeded to state: (SCC p. 5, para 6) "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
Therefore, it is well-settled principle of law that if any judgment or order is obtained by falsehood, it cannot be said to be a judgment or order in law.
25. It is also contended by learned Senior Counsel that the 2nd respondent ought to have treated the persons occupying the waqf property as encroachers and he refers to Section 3(ee) of the Waqf Act, which reads thus:-
" Section 3(ee) defines "encroacher" means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board." But, instead of treating such persons as encroachers, the Waqf Board issued the impugned proceedings.
26. Taking into consideration the aforesaid views, when the proceeding issued in 2007 itself is null and void, the impugned proceeding which refers to the proceeding of 2007, will also be bad in law. More so, there is suppression of 30 proceeding issued in 1994 in both the proceedings of 2007 and the impugned proceeding passed in the year 2023, which is nothing but withholding a vital document in order to conveniently pass the impugned proceeding. Therefore, the impugned proceeding is legally not sustainable.
27. POINT No. 4: Petitioner submitted representation dated 07.11.2022 referring to eight other representations and RTI Applications which were submitted to the 2nd respondent wherein a panel of names of persons from Akhbari Sect were given for consideration whenever a committee is constituted so that equal representation to both the sects i.e Akhbari and Usooli be given, since the Wakf Deed clearly states that the subject wakf institution is for Shia ImamiaIthna Ashari community which includes both Usooli and Akhbari sect following the procedure laid down by this Court in Moulana Mohammed Jamaluddin Deccani v. Government of Andhra Pradesh (supra). But the impugned proceeding was issued without giving any opportunity of hearing to petitioner by the Wakf Board. Since there is violation of principles of natural justice, the following judgements stipulates that whenever there is violation of principles of natural justice, the High Court can look into the matter under Article 226 and set aside the 31 proceedings issued by the quasi-judicial authorities. The below judgements are referred to in the above context.
i) Mariamma Roy v. Indian Bank (supra)
ii) Union Quality Plastics Ltd v. The State of Telangana (supra)
iii) Telangana State Wakf Board v. P. Shankaraiah (supra) Therefore, the Court, while exercising the power under Article 226 of the constitution of India, is not denuded of the power to deal with the orders of the Waqf Board to see whether the orders that are passed are in accordance with the procedure established by law or whether there was any violation of principles of natural justice. Since petitioner was not given equal representation and hearing in accordance with the procedure established by law, there is violation of principles of natural justice and fundamental rights.
28. For the foregoing reasons, it is clear that the impugned proceedings was issued without application of mind, against principle of natural justice and violative of Article 14 of the Constitution of India by not considering several applications of petitioner and also suppressing the proceeding bearing No. H1/2/16/94 dated 04.07.1994 and therefore, it is liable to be set aside. It is also directed that the 2nd respondent shall forthwith take the subject waqf institution Ibadatkhana bearing municipal Nos. 22-2-638, 639,640,641,642,643,644, 22-2-645 32 to 650 and portion of 664, 22-2-664, 22-2-666 and 667, and 22-2-636 and 637 under direct management and in due process, constitute a managing committee taking equal members from both the sects of Shia ImamiaIsnaAshari Community i.e., Akhbari and Usooli to put a quietus to the litigation once and for all.
29. Accordingly, the Writ Petition is allowed setting aside the impugned proceedings bearing No. F.No.97/Hyd- I/C1/2006 dated 01.06.2023. No costs.
30. Consequently, miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 23rd December 2024 ksld