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Judgment
These two revision petitions are directed against the order dated 24.11.2021 passed in I.A.No.480 of 2021 in O.S.No.83 of 2021 on the file of the learned Telangana State Waqf Tribunal, Hyderabad, whereby the Tribunal allowed the application filed by the petitioners-plaintiffs.
C.R.P.No.19 of 2022 is filed by the petitioners-plaintiffs in I.A.No.480 of 2021. C.R.P.No.356 of 2022 is filed by the respondent Nos.3 to 8 in I.A.No.480 of 2022.
For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendant Nos.3 to 8.
The respondents-plaintiffs herein filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC seeking to grant temporary injunction restraining Defendant Nos.3 to 8 from interfering in performing religious functions of Majalis, Jashans and other prayers by Shia men and women in the Ibadad Khana-e-Hussaini (IKH), Darulshifa, Hyderabad-second defendant till the disposal of the suit. The trial Court after considering the arguments of both the counsel allowed the application and directed Defendant Nos.3 to 8 not to insist to fill up any form along with the application till the disposal of the suit and also directed the plaintiffs that they shall not demand for removal of photos of anybody in IKH.
Aggrieved by the said order, defendant Nos.3 to 8 in the application preferred this revision by contending Wakf Institution has office bearers of the Managing Committee and it is their responsibility to save the sanctity of the religious place and that Ex.P1 is nothing but the format for obtaining the details of the persons who are seeking permission to conduct the functions in Wakf Institution and to secure law and order problem. Ibadat Khana-e-Hussaini is meant for religious activities not for political speeches and hurting the sentiments and polluting peaceful atmosphere. From the beginning the Wakf Institution is upholding the religious sentiments of Shia Community at large but the defendants are trying to limit the scope of Wakf Institution only for Akhbari Sect and it is against the rules and regulations of the institution. The plaintiffs are not organizing Majlis but using it as a platform of hatred speeches in the institution, which is hurting the Shia Community and uploading the same on electronic media and polluting the peaceful environment of the Wakf Institution for a mala fide intentions. The activities of the plaintiffs are opposed by the other Shia Community people and as such they are facing lot of difficulties regarding the illegal activities of the plaintiffs in the name of Majlis-e-Aza and Jash and that they never stopped the plaintiffs to perform Majlis but they are taking undue advantage of the same in the name of Muslims creating nuisance, which is effecting the Shia Community and thus, the order of the Wakf Tribunal is perverse and erroneous and requested this Court to set aside the same.
O.S.No.83 of 2021 is filed by the plaintiffs against the Telangana State Waqf Board-D1 and Defendant Nos.2 to 10 seeking the Court as many as 12 reliefs – (a) to declare the Schedule B to F properties are Waqf properties, (b) to declare that the functioning of Defendant Nos.3 to 8 as members of Mutawalli Committee of the second defendant as illegal and unauthorized, (c) to declare that Mutawalli Committee is not entitled to insist to submit the application form with their self made terms and conditions contrary to Wakf Act and Wakf Deed, (d) to declare that Ibadat Khana is a waqf for Shia Imamia Ithna Ashari and every Shia has right to pray and organize their religious functions, but the Muthawalli Committee belongs to Usuli sect and are not entitled to impose terms for Akhbari sect community, (e) to direct the first defendant to appoint a Muthavalli or Managing Committee as per Waqf Act, 1995, (f) to declare that Defendant Nos.3 to 10 are not entitled to change the name of the second defendant to Mosque or Ibadat Khana-e-Hussaini Mosque, (g) to declare that Defendant Nos.3 to 8 are liable to render accounts and account for the funds collected, (h) for a declaration that Shia women are entitled to perform religious functions of Majalis, Jashans in the second defendant, (i) to direct the management of the second defendant to reconstruct Ibadat Khana-e-Hussaini as it demolished the existing structures, (j) to declare that the construction in progress is contrary to the sanctioned plans, (k) to grant injunction restraining Defendant Nos.3 to 8 from interfering in performing religious functions of Majalis, Jashans and other prayers by Shia men and women, and (l) to grant injunction restraining Defendant Nos.3 to 10 from making any construction contrary to the Wakf Deed.
Written statement is filed by the second defendant on its behalf and also on behalf of the other defendants except on behalf of the first defendant. Wakf Boards is the first defendant but has not filed any written statement before the trial Court and also not filed counter in these interlocutory applications. It is submitted that during the pendency of the suit, the respondents-plaintiffs herein filed an application seeking temporary injunction against Respondents 3 to 8. Considering the arguments advanced by both the counsel, the trial Court granted temporary injunction in favour of the plaintiffs in respect of one relief out of two reliefs. Aggrieved by the same, the petitioners-Defendant Nos.3 to 8 herein preferred this revision.
Heard both sides and perused the record.
The plaintiffs would submit that they belong to Shia community and regular attendees of the Majlis-e-Aza, celebration of Jashans and other prayers held in Ibadat Khana-e-Hussaini since long back. They would further state that Syed Abbas Hussain, Mir Ahmed Ali Zaidi are the owners of property bearing Municipal No.22-2-638 to 643 situated at Darulshifa, Hyderabad i.e. ‘A’ schedule property, they were hereinafter referred to as ‘Waqifs’ and they have executed a Waqf Deed on 30.02.1953 and created a wakf in the name of Ibadat Khana-e-Hussaini. The purpose of executing the Waqf Deed is to establish an Ibadat Khana to enable the Shias to congregate to perform Majlis-e-Aza, Jashans and other prayers. They constructed a building with five mulgies to maintain the affairs peacefully, but all the members died without appointing any successive committee. The Waqf Deed was notified by the Government of Andhra Pradesh on 31.07.1968 in a Gazette Notification dated 16.03.1989. They would further assert that in Survey Commissioner’s Report issued by the Government of Andhra Pradesh on 31.07.1968 at Sl.No.166 the properties bearing No.22-2-638 to 643 were described as wakf properties, but in Column No.20 it was stated that they are not wakf properties. The plaintiffs would also submit that defendant Nos.3 to 8 are claiming themselves as Mutawalli Committee of the second defendant without any authority. The third defendant is claiming to be its President, fourth defendant is Secretary and Defendant Nos.5 to 8 are members of it, but they were never appointed by the said Wakf Board or erstwhile A.P. State Waqf Board at any point of time. There is no provision for appointment of Mutawalli Committee under the Wakf Act and as such claiming themselves as Mutawalli Committee of the second defendant is illegal and in fact they are not entitled to manage the affairs of the second defendant.
In the written statement filed by the second defendant, it is submitted that as per the Survey Commission Report there is a Managing Committee and rule of succession also by the Mutawalli Committee and the execution of Wakf Deed is born by the record. It is further stated that Defendant Nos.3 to 8 are elected as Managing Committee Members as per the customs and practices and as per Wakf Deed and survey report. They denied the allegations made in the suit and submitted that W.P.No.7786 of 2021 is filed in respect of the allegations made in Paras 10 and 11 of the suit plaint. The second defendant is maintaining regular records and got audited the same by a Chartered Accountant and submitted accounts to the first department and paying wakf funds as per the provisions of the Wakf Act, 1995 and that there are no violations of FCRA or the provisions of Wakf Act, 1995. They would further submit that Mutawalli Committee of the second defendant is constituted as per the Wakf Deed and there is no illegality and it is not contrary to Wakf Act. They would also submit that in para 22 of the plaint, the plaintiffs objected regarding two conditions of the application form. (a) It has right to ban a host or speaker up to five years if he violates any of the terms, and (b) this is only an application and booking is subject to approval but the conditions are proper, just and necessary to uphold the sanctity and management of the Wakf Institution.
The plaintiffs stated that they belong to Akhbari Sect of Shia Imamia Ithna Ashri and where as defendant Nos.3 to 10 belong to Usuli Sect of Shia Imamia Ithna Ashri. The Tribunal held that the dispute is regarding wakf property and also it is between two sects of Shia community who perform religious rituals at IKH and as such under Section 83(1) of the Act unfettered powers flow to the Wakf Tribunal and thus it has jurisdiction to try the disputes. It was also observed by the Tribunal that as on the date of filing the suit, the Committee of Respondent Nos.3 to 8-defendant Nos.3 to 8 is in existence and they will continue till the new committee is appointed. Section 50 of the Act empowers the Mutawalli to perform his duties. Mutawalli or such committee is responsible for proper administration in the wakf institution. The maintenance of public order is paramount in the larger interest of the society. So also freedom of religion and performance of their rituals are equally important and accordingly the trial Court granted injunction directing the Respondent Nos.3 to 8 not to insist to fill up any form along with the application like Ex.P1 and also directed the petitioners-plaintiffs not to demand for removal of photos of anybody in IKH till the disposal of the suit.
The petitioners-plaintiffs in the suit belong to Akhbari Sect of Shia community and they regularly attend IKH for performing religious prayers. Whereas the defendant Nos.3 to 8 are elected members of the Mutawalli Committee and they are looking after the affairs of IKH and in fact during their tenure, they purchased several other properties and they have taken up construction work of IKH and got audited their accounts and submitted report to the Wakf Board. The present application is filed only for two aspects. Firstly, that Defendant Nos.3 to 8 are insisting to fill up of the application format. Perusal of the form shows that they asked for the details viz., date of Majlis in Hijri, time of the Majlis, duration, name of the host, telephone number, Aadhar Card number and name of the Zakir with the following terms and conditions:
This is only an application and the booking is subject to approval.
The booking, once confirmed, will be valid only subject to the information provided while submitting the application.
The booking is valid only for the duration applied for.
IKH (Ibadat Khana e Hussaini) is not responsible in case of dispute arising out of the previous function being delayed.
All programs should strictly end 15 minutes prior to Azan time.
The host is responsible to ensure that IKH is returned after the program without any breakage.
The host is not supposed to undertake any changes or drive any nail on the wall.
Any electrical work should only be done through an electrician authorized by IKH.
IKH is not responsible for any disruption in electricity or in any other way.
IKH shall not be used by the host for any anti-national or illegal activity.
IKH shall not be used to make any hate speech against any Religion, Ulema or Zakir, Politician or Individual.
The host is not allowed to paste any type of Printed material anywhere in the premises of IKH without prior written approval.
The host will be held responsible for any inconvenience caused to general public by wrong parking on the road or any other means.
IKH reserves the right to ban a host or speaker for up to 5 years if he violates any of the above terms.
The petitioners-defendant Nos.3 to 8 would mainly contend that the respondents-plaintiffs are using the platform of IKH for spreading hatred speeches regarding Wakf Institution and hurting the Shia Community at large by uploading the said videos in the electronic media and as such in the interest of institution they are insisting everyone to fill up the application. Admittedly, the defendants are the present Managing Committee and it is not disputed by the Wakf Board at any point of time. Even the Wakf Tribunal in its order stated that it is the existing committee and continues till the appointment of next committee, as they are working with an object to protect the reputation of IKH and they are at liberty to introduce the application form in the interest of the institution. Merely because they belong to other sect of Shia community, the plaintiffs who are only attending prayers in IKH cannot restrain them. The trial Court without appreciating the facts properly restrained the petitioners herein from insisting the parties to fill up the application and as such the order, which is impugned in this revision, is liable to be set aside. The respondents-plaintiffs herein also approached the Court with a direction to remove the photographs of the persons in IKH. The trial Court already stated that they need not be removed during the pendency of the suit and therefore, it needs no interference.
In the result, the C.R.P.No.19 of 2022 is dismissed and C.R.P.No.356 of 2022 is allowed by setting aside the first relief, which was granted in favour of the respondents herein.
Miscellaneous Petitions, if any, pending in this revision shall stand closed in the light of this final order.