Mulla Rahim Saheb and Others vs The A.P. State Wakf Board and Others

B. Sudershan Reddy, J.—The petitioners herein are aggrieved by the proceedings of the respondents- Wakf Board dated 31-8-1996 under which an ad hoc committee consisting of nine members is appointed for a period of one year from the date of the order to manage the affairs of the Jamia Mosque, Orvakal, Kurnool District. The said proceedings are obviously issued by the respondent-Wakf Board in exercise of its power u/s 18 of the Wakf Act, 1995, for short ''the Act''.

The 1st petitioner herein claims to be a Muthawalli of the Mosque in question which is admittedly a Wakf. Petitioners 2 to 5 claim to be the legal heirs of the deceased hereditary Muthawalli. It is asserted that the petitioners herein are jointly managing and maintaining the Mosque and providing all amenities to the residents and Muslim families in the village. It is stated in the affidavit filed in support of the writ petition that the duties of Peshimam and Maozam are being performed by one of the petitioners as per convenience.

It is the case of the petitioners that the respondents-Wakf Board without conducting any enquiry as contemplated under Sections 44 and 45 of the Act (corresponding to Sections 70 and 71 of the Act, 1995) issued orders appointing and constituting the 2nd respondent Ad hoc committee for one year. The same is stated to be contrary to the mandatory provisions of the Act, apart from being violative of principles of natural justice. It is stated that as long as the petitioners continue as the Muthawallis, no Ad hoc committee could have been appointed without removing the petitioners as Muthawallis and that too after due enquiry as provided for by the provisions of the Act.

In the counter-affidavit it is stated in categorical terms that there are as many as 12 Muthawallis including the 1st petitioner herein in respect of this Institution as per the Notification published but all of them except the 1st petitioner died long back and the heirs of the deceased Muthawallis without rendering any service to the Mosque are enjoying the Wakf properties. The President, District Wakf Committee submitted a detailed report stating that the notified Muthawallis died long back and the kith and kin of Muthawallis have divided the properties among themselves and left the Mosque at the mercy of the others. There is no dispute that vast extents of properties ad measuring Ac.77-22 cents are granted under title deed No. 594 and notified as Wakf land in A.P. Gazette dated 24th October, 1963. The Wakf Board is constrained to appoint the 2nd respondent Committee to manage the affairs of the Mosque as none of the legal heirs of the deceased Muthawalli and the 1st petitioner Muthawalli were taking any interest in the management of the Mosque. There is also no dispute that petitioners 2 to 5 are yet to be recognised as Muthawallis and the 1st petitioner alone is the recognised Muthawalli.

There is also no dispute that there is no evidence of petitioners managing the mosque and properties in question and rendering any service to the mosque. There appears to be no correspondence whatsoever between the petitioners and the Wakf Board. No budget appears to have been prepared by the petitioners as is the requirement of law. There is no information as to how and in what manner petitioners 2 to 5 are inducted into the management of the Wakf in question. At any rate the change in the management is not notified by the petitioners under the provisions of the Act.

It is required to notice that Section 64 of the Act gives power to the Board to remove a Muthawalli from his office for the reasons enumerated therein. The same provision however, mandates that no action shall be taken by the Board for the removal of a Muthawalli unless it has held an enquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than 2/3rds of the members of the Board. Sub-section (3) of Section 64 of the Act, in my considered opinion, is mandatory in nature and the removal of Muthawallis without holding an enquiry into the matter in a prescribed manner is void in law and has to be declared as such. The Board is bound to make an enquiry and for the said purpose has to issue notice and provide reasonable opportunity to the Muthawalli concerned before he is removed from his office as Muthawalli. In the instant case, no such procedure is followed by the Board and they were bound to follow the said procedure in so far as it relates to the 1st petitioner who is admittedly a hereditary Muthawalli and about which there is no dispute.

It is clear from the record that the respondent-Board while exercising its power u/s 18 of the Act came to the conclusion that the Muthawallis were not properly managing the mosque and therefore, it became necessary to appoint a committee for the supervision of the Wakf in question. The learned Standing Counsel for the Board made an attempt to submit that the power given to the Board u/s 18 of the Act is an independent power and the Board can exercise the said power at any time, if it considers necessary to appoint a committee for the supervision of the Wakf, even without removing the Muthawallis managing the affairs of the mosque. In my considered opinion, the submissions made by the learned Standing Counsel for the Board is to be rejected. The power to appoint committees for any specified area or area committees for the supervision of the Wakf is not an unconditional one but such power can be exercised by the Board only in cases whenever the Board considers necessary to appoint such committees for the supervision of the Wakf. Therefore, the question whether it is necessary to appoint a committee for the supervision of a Wakf is to be considered by the Board and if Muthawallis are effectively managing the Wakf there would not be any necessity to appoint a committee for the supervision of the Wakf and in case where the Muthawallis are discharging the duties properly and in accordance with law and managing the Wakf, there would not be any necessity in such cases to appoint a committee. That (sic. Thus) a reading of Secs. 18 and 64 of the Act would make it clear that no committee as such can be appointed to supervise and manage the affairs of a Wakf if the management is already entrusted or in the hands of the Muthawallis and such power to appoint the committee could be exercised by the Board only where there is no such management by the Muthawallis. The Muthawallis would have to be removed or suspended as the case may be, before a committee is appointed by the Board u/s 18 of the Act, The Muthawallis can be removed only in accordance with the procedure prescribed u/s 64 of the Act.

In such view of the matter and viewed from any angle, the impugned action of the respondent-Board in appointing the 2nd respondent Committee to supervise and manage the affairs of the Wakf in question cannot be upheld. It has to be declared as void and inoperative being contrary to the mandatory provisions of Section 64 of the Act. However, the Wakf Board would be at liberty to issue necessary notices and provide reasonable opportunity to the Muthawalli or Muthawallis and then take appropriate action in accordance with law. The order is set aside on this simple ground of being violative of the principles of natural justice and ultra vires Section 64 of the Act.

What is the relief to be granted to the petitioners in the instant case? Should they be entrusted with the task of management of the Wakf in question?

It is urged by the learned Counsel for the petitioners Sri Mirza Imamullah Baig that once the impugned order is declared as void, the necessary consequences have to follow and the management has to be restored into the hands of the petitioners. The record does not show that the petitioners herein are managing the affairs of the Wakf and attending to the mosque, except a self-serving statement made in this respect. There is no correspondence between the Board and the petitioners to show that they have been actually managing the affairs of the Wakf. No budget is prepared for any of the financial years and nothing is shown about the income from the properties and its utilisation for the benefit of the mosque. In such view of the matter, I am not inclined to accept the plea advanced on behalf of the petitioners that the petitioners were in actual management of the affairs of the Wakf and therefore, the question of entrustment of the management to the petitioners may not arise and in my considered view such entrustment of the management may not be in the interest of the Wakf and public interest. Mere fact that the petitioners are enjoying the properties of the Wakf itself would not amount to management of the Wakf and on the other hand it would show that the petitioners are enjoying the properties but not managing the Wakf. These observations are made by the Court only for the purpose of moulding the relief and would not preclude the petitioners to establish as a matter of fact that they are effectively managing the Wakf in question and rendering necessary services to the mosque in the enquiry to be held by the Wakf Board in terms of the directions issued hereinabove. The observations in no manner would affect the rights as asserted and claimed by the petitioners herein as hereditary Muthawallis.

It is brought to the notice of the Court that some construction activities is already undertaken by the 2nd respondent-committee and in such view of the matter, I consider it necessary to direct the Board to entrust the management of the Wakf and Institution in question to its Inspector pending the finalisation of the proceedings against the petitioners. The entrustment of the management shall depend upon the result of the enquiry to be held by the Wakf Board. The Court always in exercise of its jurisdiction under Article 226 of the Constitution of India can take all the relevant factors into consideration and issue appropriate direction. What relief is to be granted in a given case is always in the discretion of the Court. The Court exercising jurisdiction under Article 226 of the Constitution of India is a Court of equity and is entitled to mould the relief accordingly. It is not as if the Court is bound to grant the relief in every case even in cases where there is an infraction of a statutory provision as such. The Court may, declare such statutory infraction as void and compel the statutory authority to further proceed in the matter in accordance with the statute and yet may not grant the relief as prayed for by the aggrieved person.

For the aforesaid reasons, the impugned order is declared as illegal and void. But in the circumstances, the management shall be entrusted to the Inspector of Audit of the Wakf Board until and appropriate decision is taken by the Wakf Board in terms of the directions issued in this Writ Petition. The enquiry as directed, shall be completed by the respondents within two months from the date of receipt of a copy of this order.

The writ petition is accordingly disposed of. No costs.