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2020 DIGILAW 220 (AP)

Shaheda Begum v. AP State Waqf Board

2020-03-11

CHALLA KODANDA RAM

body2020
ORDER : WHO WILL PROTECT THE “PROTECTOR” AND HIS PROPERTIES IS THE ISSUE IN THIS WRIT PETITION. 1. This Writ Petition is filed by the petitioner against respondents 1 to 7 to declare the Notification dated 25.08.2019 1st and the proceedings dated 30.08.2019 issued by the respondent are illegal and ultra vires to the Constitution. FACTS: Petitioner’s case: 2. The petitioner claims to be a member of the Waqf Board. The Board is supposed to control and administer the Waqfs in the State of Andhra Pradesh. The State sought to supersede the Board by G.O.Ms.No.38, dated 15.07.2019 and vide another G.O.Ms.No.39, dated 15.07.2019, a Special Officer was appointed. Being aggrieved by the said two GOs., the Board Members, including the petitioner, have filed Writ Petition No.9369 of 2019 challenging the said GOs. An Interlocutory Application was filed to suspend the G.O.Ms.Nos.38 and 39 referred to above. A learned single Judge of this Court initially granted a direction on 18.07.2019 suspending the GOs. The matter was then carried in Appeal. A Division Bench of this Court in W.A.No.218, 219 and 224 of 2019 passed an order dated 06.08.2019. The Division Bench expressed an opinion that the person / authority managing the Waqf Board should not deal with the property of the Waqf Board or alienate the property properties of Waqf. The Division Bench also directed that the amounts lying in the account of the Waqf Board should not be spent for any purpose other than for the payment of salaries, lawyer fee and day to day expenditure. 3. Prior to this a Notification dated 24.07.2019 was invited from the public to bid for the various items that are offered by the devotees of a very famous mosque in Nellore town called “Bara Shaheed Mosque”. In this mosque / town a festival called “Rottela Panduga” (loosely translated as “Bread Festival”) is celebrated every year. This festival attracts lakhs of devotees and generates huge revenues. 4. For the collection of proceeds of this festival and managing the same, the bids were invited. Under the first Notification dated 24.07.2019, the Bids were opened on 30.07.2019. Ten bidders participated in this Bid. The details of the same are given at page No.20 of the material papers and the highest Bid is for Rs.92,47,786/-. 5. Later, for certain reasons, which were submitted by the respondents, another Notification was issued on 25.08.2019 for the same purpose. Under the first Notification dated 24.07.2019, the Bids were opened on 30.07.2019. Ten bidders participated in this Bid. The details of the same are given at page No.20 of the material papers and the highest Bid is for Rs.92,47,786/-. 5. Later, for certain reasons, which were submitted by the respondents, another Notification was issued on 25.08.2019 for the same purpose. Only three bidders participated. The highest bid in the second tender was for Rs.70,00,786/-. 6. The essential challenge of the petitioner before this Court is that the second Bid was floated for extraneous reasons and that it was stage managed to ensure that a close henchman (Respondent No.4) of a leading politician got the Bid and that the same is also in violation of the order of the Division Bench. The petitioner also alleges that the entire Bid by which public property viz., the property of the Waqf was sold, was done in a manner to ensure that the close relatives and henchman of the local politicians get the monetary benefit. It is argued that as a result of this action the 3rd respondent-Dargah Hazarat bara Shaheed lost enormous amounts of money. The action of the 2ndrespondent-Chief Executive Officer is assailed as illegal, arbitrary and contrary to the law. 7. What is stated above are the essential submissions of the learned counsel for the petitioner Sri V.S.R. Anjaneyulu. Respondents Contentions: 8. Sri P. Veera Reddy, learned senior counsel appeared for A.P. State Waqf Board, which was represented by Sri Shaik Karimullah, the standing counsel for Waqf Board. Sri V.R. Reddy Kovvuri, learned counsel represented the successful bidder in the second bid i.e., 4th respondent. 9. Learned senior counsel argued essentially that the actions of the 1st respondent are strictly in accordance with law. It is his contention that as the successful bidder in the first bid withdrew midway through and as the most important festival (Rottela Panduga) was fast approaching, the 1st respondent had no choice but to float another tender at a short notice. It is his contention that the successful bidder-4th respondent quoted virtually the same rate in the 1st bid and the 2nd bid. Learned counsel also sought to justify that only three bidders came for second tender on the ground that there was only three days’ time left for the festival to commence. It is his contention that the successful bidder-4th respondent quoted virtually the same rate in the 1st bid and the 2nd bid. Learned counsel also sought to justify that only three bidders came for second tender on the ground that there was only three days’ time left for the festival to commence. It is his contention that in both the cases the tenders were invited by publication in the newspaper and therefore he contends that there is no illegality as contended by the learned counsel for the petitioner nor is any loss caused to the mosque. He also raised a serious dispute about the locus standi of the petitioner. It is his contention that the petitioner is a resident of Machilipatnam. He points out that she did not even state that she is a devotee of the Dargah in question. 10. Sri V.R.Reddy Kovvuri, learned counsel for the 4th respondent states that the 4th respondent has participated in a tender basing on a public notification and that he is not in any way connected with the internal affairs of the Waqf Board or Dargah. It is his contention that by virtue of an interim order that is granted, the 4th respondent has sustained enormous loss. COURT : (1) Locus Standi of petitioner: 11. The first question that has to be determined is about the locus standi of the petitioner to file this Writ Petition. This issue has been raised by Sri P. Veera Reddy, learned senior counsel relying upon the definition of “Beneficiary” in Section 3 (a of the Waqf Act, 1995 in short “the Act” and the definition of a “person interest in the Waqf” in Section 3 k) of the Act. Learned senior counsel argued that only if a person is entitled to receive any benefit from the Waqf or receives pecuniary or other benefits, he can be called as “Beneficiary”. Learned senior counsel argued that in this case, the petitioner is a resident of Machilipatnam. He points out that reading of the Writ affidavit does not disclose that the petitioner visits the Dargah in question, offers prayers etc., or that she is otherwise interested. Learned senior counsel argued that in this case, the petitioner is a resident of Machilipatnam. He points out that reading of the Writ affidavit does not disclose that the petitioner visits the Dargah in question, offers prayers etc., or that she is otherwise interested. Relying upon the udgments in Mahboob Khan Deputy Commissioner and Ors.,, Mani Subrat Jain Etc., State of Haryana and others and S.Shyamala Reddy, Pavitranagar, Musheerabad, Hyderabad and Others M/s. Hindustan Petroleum Corporation Ltd., Secunderabad and Others learned counsel argues that the petitioner does not have a right to seek a remedy. 12. Even the learned counsel for the 2nd respondent relying upon Union of India and Another v Arulmozhi Iniarasu and Others raises a similar ground and argues that the petitioner has no locus standi. 13. In reply to this, the counsel for the petitioner points out that the petitioner has come before the Court as a Board Member, who has been prevented from exercising her duties as a Member of the Board of 2019. He points out to Chapter-4 of the Waqf Act, 1995, which deals with the Board, which should be established for administering the Waqf within the area. It is his contention that the petitioner as a Board Member has filed other writs also including W.P.No.8173 of 2019 and W.P.No.8849 of 2019 and the Board was superseded on 15.07.2019. The Writ Petition No.9369 of 2019 and W.P.No.9371 of 2019 were filed questioning the interim super session of the Board. A learned single Judge suspended the order of the super session, by an interim order dated 18.07.2019. Against the same, a Writ Appeal has been filed bearing W.A.Nos.218, 219 and 224 of 2019. Learned counsel points out that the order of the single Judge was not actually set aside by the Division Bench and a direction was given, which is as follows: “14. Having regard to the urgency, we hope the learned Single Judge would pass orders in W.P.No.8849 of 2009 at the earliest. Learned counsel points out that the order of the single Judge was not actually set aside by the Division Bench and a direction was given, which is as follows: “14. Having regard to the urgency, we hope the learned Single Judge would pass orders in W.P.No.8849 of 2009 at the earliest. Having regard to the nature of allegations made in the show cause notice, which are not controverted as on today by giving a reply for many a reasons, including pendency of W.P.No.8849 of 2009, the persons/authority managing the waqf board shall not in any manner deal with or alienate the properties of Waqf and also the amounts lying in the account of the Waqf Board, except for payment of salaries, Layer Fee and day-to-day expenditure, until further orders.” 14. Therefore, learned counsel submits that the petitioner’s status as a Board Member is still the subject matter of a dispute and is not yet finally decided. He also argues that as the Order of the Bench has not been followed; the petitioner has the locus. 15. These facts are not really in dispute. Once it is held that her status as a Board member is not disturbed, this Court holds that the petitioner has the locus. Apart from that this Court also feels that it is not necessary for a person to be an actual worshiper of this Dargah itself to file a Writ Petition questioning the actions of the respondents. The settled case law which is cited by the learned counsel states that only a petitioner who has a right can claim a relief of mandamus. In this case the petitioner, who claims to be a Board Member (whose office is the subject matter of another writ judicial decision) has filed this Writ relating to the sale etc., of the properties of the Dargah. Apart from this a “Waqf” is the tying up of property in the ownership of the almighty and the devotion of the profits for the benefit of human beings. It is thus not restricted to any area or a person (Ramjas Founation and Another v Union of India and Others). A person interested in a Waqf (Section 2 (k) of the Waqf Act), includes a person who has a right to offer prayers or perform a religious rite. It is thus not restricted to any area or a person (Ramjas Founation and Another v Union of India and Others). A person interested in a Waqf (Section 2 (k) of the Waqf Act), includes a person who has a right to offer prayers or perform a religious rite. It is thus not necessary to actually perform the rite or to offer a prayer to be called “a person interested in the Waqf”. Thus, a narrow interpretation cannot be given. The petitioner is not a casual interloper. Anybody, who has a ‘right’ to perform any religious right in a mosque / dargah etc., is a person interested in the waqf. For all the above reasons this Court holds that the petitioner has the “locus” to file this Writ. 16. The passage (para-39) of Karnataka State Forest Industries Corporation v Indian Rocks which is reproduced hereunder is also relevant:- “39. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the writ petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless”. 17. There is an issue of arbitrary action also which is dealt with hereunder. Hence, this Court holds that a Writ of Mandamus can be sought by the petitioner. (2) TENDERS: 18. The case law on writs in tenders and the power of this Court to review the same is sufficiently well settled and does not require repetition. The terms of the tender are not open to judicial review except in very very exceptional cases. The decision making process is the critical element when public largesse or the assets etc., of a public institution like a waqf or a mosque (of a very popular mosque, like in the present case) are being offered for sale / lease etc. This Court is of the opinion that it can go into the decision making process to ascertain whether there has been any improper motive as alleged. The dates which are critical are – (1) 24.07.2019 first tender was floated with the last date of 30.07.2019 for deciding the bids. (2) 16.08.2019 the representation of the successful tenderer in the first bid to withdraw from the concluded contract. The dates which are critical are – (1) 24.07.2019 first tender was floated with the last date of 30.07.2019 for deciding the bids. (2) 16.08.2019 the representation of the successful tenderer in the first bid to withdraw from the concluded contract. (3) 06.08.2019 order of the Division Bench of this Court in W.A.No.218, 219 and 224 of 2019. (4) 27.08.2019 a short tender notice with last date on 30.07.2019 for deciding the bid. (5) 30.08.2019 orders issued to the 4th respondent in the 2nd tender. 19. These dates are being set out at the very outset. It is the case of the learned counsel for the respondents and of the Dargah; that this Dargah generates the highest income in a few days when the festival called Rottela Panduga is celebrated. In the rest of the year the activity of the Dargah is stated to be normal. But in this short period of this festival lakhs of devotees come to pray at the Dargah and make their offerings. It is for this reason that very very high revenue is expected in this festival. 20. Without going into the individual submissions made by the counsel for the petitioner and the senior counsel for the respondents, since a lot of personal aspersions were made, this Court is proposing to analyse the data that is available in the Court record. (a) The first tender was floated on 24.07.2019, the publication was made on this date and last day for submission of tender was 30.07.2019. (b) Ten bidders had participated. (c) The highest bidder quoted Rs.92.47 lakhs, the 2nd highest quoted Rs.90.10 lakhs, while the third lowest quoted Rs.90 Lakhs. The work was awarded to highest bidder on 30.07.2019. 21. As can be seen from the counter affidavit this highest bidder is supposed to have withdrawn his bid on 16.08.2019 by submitting a representation stating that the he has to admit his father in a hospital. This was apparently accepted by the 1st and 2nd respondents. It is also stated in the counter affidavit of the CEO-2nd respondent that the 2nd and 3rd bidders, who had quoted Rs.90.10 lakhs and Rs.90 lakhs also withdrew. Therefore, they justified the floating of the 2nd tender, in view of the impending festival. This was apparently accepted by the 1st and 2nd respondents. It is also stated in the counter affidavit of the CEO-2nd respondent that the 2nd and 3rd bidders, who had quoted Rs.90.10 lakhs and Rs.90 lakhs also withdrew. Therefore, they justified the floating of the 2nd tender, in view of the impending festival. However, what is important to note is that absolutely no details are furnished of the withdrawal by the successful bidder or by the other two bidders except that statement in the counter affidavit. No proof whatsoever is filed of the withdrawal of the successful bidder. This is glaringly obvious. Even the withdrawal by the other two bidders and their request for refund of EMDs is not borne out by the record. Even if this withdrawal is taken at its face value it is supposedly made on 16.08.2019. By this date the writ appeal was pending before the Division Bench and the order mentioned above was also passed on 06.08.2019 in Writ Appeal Nos.218, 219 and 224 of 2019. 22. In a writ appeal the Division Bench very clearly gave a direction to the 1st respondent and also the CEO “not to deal with or alienate the properties of the Waqf and also the amounts lying in the account except for payment of salaries, lawyer fee and day-to-day expenditure” (Emphasis supplied). The A.P. State Waqf Board represented by its CEO is a party to the present Writ Petition and also to the Writ Appeal. The fact that the successful bidder under the 1st contract withdrew his bid and that the 2nd and 3rd bidders also did not participate was not brought to the notice of the Division Bench. No clarification was also sought nor was the permission was obtained from the Court for conducting the auction on the ground that the Rottela Panduga is impending or round the corner. As mentioned earlier the Division Bench passed an order on 06.08.2019 restraining the respondents from dealing with the property of the Waqf and use the amounts only for payment of salaries, lawyer fee etc. Still the Waqf Board or the CEO did not seek permission of the Division Bench or of the single Judge to conduct an auction. No reason is forthcoming for the same. 23. Still the Waqf Board or the CEO did not seek permission of the Division Bench or of the single Judge to conduct an auction. No reason is forthcoming for the same. 23. Even the justification given for this “short” tender notice of 27.08.2019 (which according to the counsel for the petitioner is published in an inconspicuous place of a newspaper) is also not clear. If the bidder under the 1st tender withdrew the tender on 16.08.2019 and the festival was impending, absolutely no cogent reasons are forthcoming why the second tender was published only on 27.08.2019 giving time till 30.08.2019 only for the bids to be submitted. This delay of 11 days is not explained. The analysis of the bid shows that in the 2nd tender only three people participated and the 4th respondent was the successful bidder. The permission of the Court was not obtained for floating this tender or for accepting this bid also. 24. In addition, as pointed out that there is a drastic fall in the amounts. In the 1st bid the successful No.1 bidder offered 92.47 lakhs followed by a bid for Rs.90.10 lakhs and the bidder No.3 offered 90 lakhs. This tender was for one year as can be seen from the tender notification. The period prescribed is from 01.08.2019 to 31.07.2020. The 2nd tender floated on 27.08.2019 was also for a period of one year from 01.09.2019. Learned senior counsel tried to justify the lesser bid received on the ground that the 2nd tender is for 11 months only and as a months period was lost, lesser amount was bid. In the tender in both the cases it is clearly mentioned that the bid is for one year. Even otherwise this Court is unable to accept this argument for the reason that all the counsels who appeared agreed that the bulk of the income is generated for this Dargah only in the Rottela Panduga festival. In the rest of the year heavy rush and heavy donations do not arise. Therefore, the so called curtailment of the period does not appear to be very material. As can be seen both the tenders are for one year only. In the rest of the year heavy rush and heavy donations do not arise. Therefore, the so called curtailment of the period does not appear to be very material. As can be seen both the tenders are for one year only. If the majority of the income is received from the Rottela Panduga this Court is of the opinion that the bidders would have given their quotation keeping in view the said festival only irrespective of the period (11 Months or 12 months). 25. Lastly, this Court also notices that from the terms and conditions of the tender that what is auctioned by the Board at this Dargah are coconut shells, Golak (Hundies), Head hairs, Shops and Hotels, Galaf, Bandeesh coconut and lemons, Jhula and exhibition and laddu, which are sold to the devotees by the successful bidder. The collection from the Hundies (called as Golak) is the money deposited by the devotees which is allowed to be collected. The permission to collect all these items like coconut shells, head hairs, shops and hotels, galaf (cloth) etc., is given to the bidder. In addition, the tenderer has a right to auction shops and hotels, Jhula and exhibition etc., All of these items generate income for the Dargah and mosque. These were sold. If the tender was not there, all of this money or the items would only accrue to the Dargah only. Therefore, it is clear that an asset of the Dargah was being dealt with by respondents 1 and 2 when they floated the tender. The right to collect the amounts / sell the offerings was the subject of the tender. If the tender was not floated the Dargah / Waqf would have collected the same directly. This Court is of the opinion that the action of the respondents is thus in direct violation of the order passed on 06.08.2019 by the Division Bench of this Court in W.A.No.218, 219 and 224 of 2019 26. Apart from this, this Court also finds that there is sufficient strength in the submission made by the learned counsel for the petitioner that the decision making process being tilted in favour of the successful bidder in the 2nd tender. The publication of short tender notice and giving a period between 27.08.2019 and 30.08.2019 is not clearly justified in any manner in the counter affidavit etc. The publication of short tender notice and giving a period between 27.08.2019 and 30.08.2019 is not clearly justified in any manner in the counter affidavit etc. The drastic fall in the highest bid between the 1st and the 2nd tender was almost 20 lakhs, clearly shows that a loss was caused to the Waqf and to the Dargah. As Stated earlier, the permission of the Court was not sought for floating this tender or for finalising the same. The order of the Division Bench in the Writ Appeal is not quoted / mentioned in the second tender notice also. 27. For all these reasons this court holds that the respondents have acted in a manner which is detrimental to the interest of the Waqf and the mosque in question. The mosque generates heavy income for a few days in a year when the festival happens. By floating a short tender notice it is apparent that there is a clear demonstrable loss of twenty lakhs. As mentioned earlier, the reasons for the withdrawal of the bid by the successful bidder in the 1st tender are not borne out by record. The so called forfeiture of the EMD amount also is not borne out by record. The withdrawal of the bidders 2 and 3 in the first bid is also not borne out by the record. Therefore, this Court on the basis of the material that is now available cannot accept the submissions made by the learned senior counsel. A reading of all the events in sequence leads this Court to an inescapable conclusion that the bid has been floated in a manner to benefit the 4th respondent only. A lot of argument was also advanced about the 4th respondent being very close to local Minister etc. This court on the basis of the available material is coming to a conclusion that the conduct of respondents 1 and 2 is not above board in this case. A furtive ad hoc method was adopted by the respondent No.1. As custodians of the property of a Dargah and Waqf, they were expected to act in a transparent manner and safeguard the interest of the Dargah and Waqf. Their actions are otherwise. 28. This Court has no hesitation in holding that the notification dated 25.08.2019 and the proceeding dated 30.08.2019 are to be set aside. As custodians of the property of a Dargah and Waqf, they were expected to act in a transparent manner and safeguard the interest of the Dargah and Waqf. Their actions are otherwise. 28. This Court has no hesitation in holding that the notification dated 25.08.2019 and the proceeding dated 30.08.2019 are to be set aside. The powers / duties of the Board as mentioned in Section 32 of Waqf Act, 1995 and of the CEO under Section 25 and 26 of the Act are clearly flouted. The CEO should have taken action to protect the interest of the Dargah. A reading of the Waqf Act makes it clear that a substantial part of the Act itself is devoted to the protection of the Waqf property. This was totally overlooked. In conclusion this Court holds that the guardians did not act as required to safeguard the property of the Waqf. The Courts protection is thus needed. (3) FUTURE: 29. It is also made clear that henceforth and in the future since the time of the festival is known in advance as per the calendar, the advertisement should be published at least a clear 60 days before the start of the festival in two leading newspapers of the District and also put up on the website of the Waqf Board. The terms of the tender should be settled well in advance, greater transparency and visibility are the need of the hour. The losses caused so far are to be established clearly by conducting a forensic audit if needed. Steps should be taken to fix responsibility for the losses and also to recover the same. Wide publicity should be given to the tenders to ensure that appropriate and proper tenderers quote their rates. 30. The process that has done so far is clearly vitiated and this Court has no hesitation to hold that the Notification dated 25.08.2019 and the proceedings dated 30.08.2019 are liable to be set aside. 31. With these observations the Writ Petition is allowed. There shall be no order as to costs. 32. Miscellaneous petitions, if any, pending shall also stand closed.