Research › Search › Judgment

Andhra High Court · body

2021 DIGILAW 563 (AP)

Sk. Akbar Ali v. state of A. P.

2021-08-23

KONGARA VIJAYA LAKSHMI

body2021
ORDER: 1. This writ petition is filed questioning the auction notification dated 25.01.2021 for conducting the auction of offerings of the Dargah Hzt Bajee Shaheed Aulia (RA) situated at Paddakakani village & Mandal, Guntur District. 2. Case of the petitioners is that, the waqf institution by name, Dargah Hzt Bajee Shaheed Aulia (RA) is situated at Peddakakani village; initially there were six Mutawallies and Mujawars for the said institution; after the death of notified Mutawallies, the Waqf Board recognized their legal heirs as Mutawallies; the 1st petitioner is one of the Mutawallies recognized by the Board, but he was removed on 09.08.2017 and the institution is under the direct management now; questioning the removal order, the 1st petitioner filed WP No.30060 of 2017 and an interim order of reinstatement was granted and hence, the 1st petitioner is deemed to be continued as mutawalli; as petitioners 2 and 3 were restrained, they also filed WP No.13603 of 2014 and they are also continuing as mujawars; there is no practice of conducting auction of offering items for the subject dargah till now; after completion of five years period of direct management, the management shall have to be revert back and hence, auction should not be conducted; the petitioners requested not to conduct auction in the absence of the Board. Chief Executive Officer, who is working as full additional charge (FAC), has to work under the administrative control of the Board and does not have power or jurisdiction to conduct auction or to issue notification independently; all the decisions have to be taken by the Board alone, but not by the Chief Executive Officer; conducting of auction is contrary to Section 56(2) of the Waqf Act, 1995 (for short ‘the Act’) and also contrary to the Waqf Property Lease Rules, 2014 (for short ‘the Rules’). Hence, the writ petition. 3. When the matter came up for admission on 08.03.2021, this Court granted an interim direction staying the proposed auction and the said interim direction was extended from time to time. 4. Hence, the writ petition. 3. When the matter came up for admission on 08.03.2021, this Court granted an interim direction staying the proposed auction and the said interim direction was extended from time to time. 4. Counter-affidavit is filed by the 2nd respondent-Waqf Board along with vacate stay petition, stating inter-alia that the subject waqf institution is a gazette notified waqf institution with all its attached properties; the Board has taken over the direct management on 11.04.2014 and since then, the Inspector Auditor Waqfs, Guntur District is supervising and administering the affairs of subject waqf institution in the capacity as Executive Officer for the said institution; the then Inspector Auditor Waqfs, Guntur vide his report dated 15.03.2014 brought to the notice of the Board about various financial irregularities committee by six mutawallis; FIR No.138/2014 was also registered against them for the offences punishable under Sections 427, 409, 420 and 34 of IPC on the file of Pedakakani PS and they were placed under suspension; the 1st petitioner and two others filed WP No.13764 of 2014 questioning their suspension and in taking the waqf institution under direct management; no interim order was granted in favour of the petitioners therein; thereafter, other suspended mutawallies filed WP No.8707 of 2016 challenging the proceedings dated 21.12.2015 and in extending the suspension of the petitioners and an interim direction was passed on 20.04.2016 directing the reinstatement of the petitioners thereon on the ground that the continuation of the enquiry beyond six months is contrary to Rule 24-A of the Rules; subsequently, the said interim order was vacated on 07.04.2021; questioning the vacation of the interim order, they filed WA No.775 of 2017; the Division Bench of this Court disposed of the said Writ Appeal on 21.06.2017 confirming the order of the learned single Judge and also dismissed WP No.8707 of 2016 and WP No.13764 of 2014 as infructuous along with the said writ appeal; thereafter, the Enquiry Officer submitted enquiry report stating that the charges are proved; after the division of the State, a separate Waqf Board for the State of Andhra Pradesh was reconstituted; basing on the enquiry report, the competent authority issued show cause notice dated 03.07.2017 to the 1st petitioner to show cause as to why the order of removal from the service of Mutawalli shall not be passed against him; the 1st petitioner submitted his explanation and thereafter, the competent authority passed the order of removal on 08.08.2017; questioning the same, the 1st petitioner filed WP No.30060 of 2017 and an interim suspension was passed in the said writ petition; Board filed WA No.39 of 2018 before the Division Bench and the said writ appeal was allowed setting aside the interim order and restoring back WP MP No.37450 of 2017 in WP No.30060 of 2017; all these facts were suppressed by the petitioners; the Chief Executive Officer is the exofficio Secretary of the Board and the duties and powers of the Chief Executive Officer are provided under Section 25 of the Act; Clause (c) of sub-section (1) of Section 25 of the Act states that the Chief Executive Officer has duties and powers to do generally all such acts as may be necessary for the control, maintenance and superintendence of Auqaf; sub-section (3) states that the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under the Act; respondents have issued notification in accordance with the instructions and permission given by the Government vide Memo dated 04.12.2020; any amount collected from the bidders would be spent on the maintenance, supervision and upkeep of the Holy Dargah and prays for dismissal of the writ petition. 5. Petitioners filed reply-affidavit inter-alia stating that in the absence of any Rules or Regulations, the auction cannot be conducted for the offerings of the Dargah. 6. Main contention of the learned counsel for the petitioners is that as the Board is not functioning, the Chief Executive Officer, who has to work under the administrative control of the Board, has no power or jurisdiction to conduct auction or to issue notification independently and that the said auction notification is contrary to Section 56 of the Act and the Rules. 7. Section 56 of the Act deals with restriction on power to grant lease of waqf property. The said section deals with the lease of immovable property. Section 56 of the Act reads as follows: “56. Restriction on power to grant lease of 1 [waqf] property.— (1) [A lease for any period exceeding thirty years] of any immovable property which is [waqf] property, shall, notwithstanding anything contained in the deed or instrument of [waqf] or in any other law for the time being in force, be void and of no effect: Provided that a lease for any period up to thirty years may be made for commercial activities, education or health purposes, with the approval of the State Government, for such period and purposes as may be specified in the rules made by the Central Government: Provided further that lease of any immovable waqf property, which is an agricultural land, for a period exceeding three years shall, notwithstanding anything contained in the deed or instrument of waqf or in any other law for the time being in force, be void and of no effect: Provided also that before making lease of any waqf property, the Board shall publish the details of lease and invite bids in at least one leading national and regional news papers.] (2) [A lease for a period of one year but not exceeding thirty years] of immovable property which is [waqf] property shall, notwithstanding anything contained in the deed or instrument of [waqf] or in any other law for the time being in force, be void and of no effect unless it is made with the previous sanction of the Board. (3) The Board shall, in granting sanction for lease or renewal thereof under this section review the terms and conditions on which the lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may direct: [Provided that the Board shall immediately intimate the State Government regarding a lease for any period exceeding three years of any waqf property and thereafter it may become effective after the expiry of forty-five days from the date on which the Board intimates the State Government.] [(4) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule.]” 8. As seen from the above section, according to sub-section (2), a lease for a period of one year but not exceeding thirty years of immoveable property is void and of no effect unless it is made with the previous sanction of the Board. The said section does not apply to the facts of this case, as it does not pertain to lease of the immoveable property of the waqf. Learned counsel for the petitioners also submits that the same is contrary to the Waqf Property Lease Rules, 2014, but the same are also not applicable, as the notification is not with regard to the lease. 9. Learned counsel for the petitioners also submits that the same is contrary to the Waqf Property Lease Rules, 2014, but the same are also not applicable, as the notification is not with regard to the lease. 9. Section 25 of the Act deals with the duties and powers of the Chief Executive Officer, which reads as follows: (1) Subject to the provisions of this Act and of the rules made thereunder and the directions of the Board, functions of the Chief Executive Officer shall include— (a) investigating the nature and extent of [auqaf] and [waqf] properties and calling whenever necessary, an inventory of [waqf] properties and calling, from time to time, for accounts, returns and information from mutawallis; (b) inspecting or causing inspection of [waqf] properties and accounts, records, deeds or documents relating thereto; (c) doing generally of such acts as may be necessary for the control, maintenance and superintendence of [auqaf]. (2) In exercising the powers of giving directions under subsection (1) in respect of any [waqf], the Board shall act in conformity with the directions by the [waqf] in the deed of the [waqf], the purpose of [waqf] and such usage and customs of the [waqf] as are sanctioned by the school of Muslim law to which the [waqf] belongs. (3) Save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act.” 10. As seen from the above sub-section (c) of Section 25(1), it is the duty of the Chief Executive Officer to do generally all such acts as may be necessary for the control, maintenance and superintendence of auqaf. According to sub-section (3) of Section 25, save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act. As seen from the provisions of the Act, there is no prohibition to the Chief Executive Officer to auction the offerings of the items relating to Dargha Hazrath Syed Baji Shaheed Aulia (RH) i.e., (a) auction of hundies (b) offering items Head shave, (c) chappal stand (d) Halal and other items as mentioned in the notification. According to sub-section (3) of Section 25, he has to perform the duties as may be assigned to him. 11. According to sub-section (3) of Section 25, he has to perform the duties as may be assigned to him. 11. As seen from the Memo dated 04.12.2020 issued by the 1st respondent, the Chief Executive Officer is permitted to take necessary action on Auction of Hundies and offering items by way of sealed tenders to improve the income of Dargah. Thus the action of the Chief Executive Officer is pursuant to the said memo to improve the income of the Dargah. According to Section 25(1)(c), it is the duty of the Chief Executive Officer to do all acts as may be necessary for the maintenance and superintendence of auqaf. As the Chief Executive Officer is authorized to do certain things for the maintenance of auqaf even in the absence of the Board, the Chief Executive Officer is empowered to issue subject notification. 12. In view of the same, I see no merits in this writ petition and the writ petition is, accordingly, dismissed. No order as to costs. 13. Miscellaneous petitions, if any pending, in this writ petition, shall stand closed.