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2023 DIGILAW 101 (TS)

Mohammed Jafeeruddin v. A. P. State Wakf Board

2023-02-01

M.LAXMAN

body2023
ORDER : M. Laxman, J. 1. The present Civil Revision Petition has been directed against the Order dated 06.09.2010 in O.A.No.13 of 2009 on the file of the Andhra Pradesh State Wakf Tribunal, Hyderabad (for short, "the Tribunal") wherein and whereby, the Tribunal without expressing any opinion on the impugned proceeding Nos.2/Hyd/C/2008, dated 08.05.2009 and 2/Hyd/C/08/Zone-I, dated 27.03.2008 passed the following Order:- "In view of the above indicated discussions, this Tribunal has no second thought except to add its void with the voice of learned counsel for applicants herein projected at the time of arguments. Therefore, the proceedings passed by the 1st respondent A.P. Wakf board in question in this O.A. is not on par with provisions of Section 18 of Wakf Act and liable to be set aside w.e.f. 11.09.2010. However, since festival of Idul Fitar (Ramazaan) would be on 10.09.2010 (Depending upon the sighting of moon). Therefore, in this short spell of few days the present committee appointed under impugned order in question is removed from the management of the Edgah, it may create chaos leading to prevail law of jungle at the time of Eid prayers. Therefore, Tribunal permits present committee of Edgah to be in office till 11.09.2010 and it shall discharge all managements functions of Idgah as entrusted. And they shall open Bank Account in the name of Edgah and credit any income received in any form in the Bank. And any expenses incurred shall be paid through Account Payee Cheque. They shall also maintain income and expenditure Register. After the day of festival of Idul Fitar since managing committee appointed under impugned proceedings in question cease to exist, it shall immediately hand over possession as well as management of Edgah to the 1st respondent A.P. Wakf Board forthwith. The 1st respondent A.P. Wakf Board shall take possession and management of Edgah immediately next day of festival of Idul Fitar from the 3rd respondents managing committee of Edgah and the 1st respondent shall maintain the Edgah and its accounts till a fresh committee is constituted under Section 18 of Wakf Act by choosing the persons of righteousness who attend the Mosque five times of day to offer prayers (Namaaz) with Jamath. Accordingly, O.A. is disposed off". 2. Accordingly, O.A. is disposed off". 2. The main challenge before the Tribunal was proceedings No.2/Hyd/C/2008, dated 08.05.2009, whereby a Managing Committee was constituted for Edgah of Qutub Shahi situated at seven (7) tombs, Shaikpet Village under Section 18 of the Wakf Act, 1995 (for short, "Act, 1995) for a period of two years with the following members:- 1. Sri Gulam Mohiuddin Khan (President) 2. Sri Habeeb Zainul Abedin Abid (General Secretary) 3. Sri S.M.A. Qamar (Treasurer) 4. Sri Aziz Khan Pathan (Vice President) 5. Sri Shaik Munawar (Joint-Secretary) 6. Sri Syed Osman (Member) 7. Sri Babar Ali Khan (Member) 8. Sri Shakeel Ali Khan (Member) 9. Sri Afsar Yousuf Zahi (Member) 3. Subsequently, the proceedings No.2/Hyd/C/08/Zone-I, dated 27.03.2008 was challenged before this Tribunal and vide above said proceedings, a committee consisting the following eleven (11) members was constituted to manage Edgah:- 1. Janab Gulam Mohiuddin Khan Pasha (President) 2. Janab Syed Shoukat Ali Shah Quadri (Vice President) 3. Janab Alhaj M. Yousuf Khan (Vice President) 4. Janab Habeeb Zain-ul-Abedin Abid (General Secretary) 5. Janab Aziz Khan Pathan Sri Shaik Munawar (Joint-Secretary) 6. Janab M. Muzammiluddin Fareed (Joint-Secretary) 7. Janab Shaik Munawar Quadri (Organizing Secretary) 8. Janab Dost Mohammed Khan (Treasurer) 9. Janab M.A. Raheem (Member) 10. Janab Alhaj M. Ghouse (Member) 11. Janab Babar Khan (Member). 4. The challenge in the present O.A. was with regard to the proceedings No. 2/Hyd/C/2008, dated 08.05.2009. The Tribunal without expressing any opinion as to the validity of such proceedings has passed the impugned Order as a 'stop gap arrangement'. Aggrieved by the same, the present Revision is filed. 5. The contention of the learned counsel for the revision petitioners is that the Tribunal has not considered the effect of agreement dated 17.08.1966 as well as the statutory provisions under Telangana Ancient and Historical Monuments and Archeological Sites and Remains Act, 1960 (for short, "the Act, 1960"). It is his contention that the Wakf Board has no authority to constitute any committee by exercising powers under Section 18 of Wakf Act, 1995. The assumption of such a power is nothing but creation of parallel supervisory committee ignoring the entrustment of monuments for proper custody by creating custodianship in favour of Director, Archaeology and Museums, Government for the State of Telangana. 6. The assumption of such a power is nothing but creation of parallel supervisory committee ignoring the entrustment of monuments for proper custody by creating custodianship in favour of Director, Archaeology and Museums, Government for the State of Telangana. 6. It is also his submission that the general powers conferred under Section 18 of the Act, 1995 cannot be invoked having entered into an agreement with the State to maintain the monuments which were declared to be protected monuments by the State. By virtue of this Order, according to him, the powers of the Director under the Act, 1960 has been diluted thereby creating a threat to monuments. 7. Learned Standing Counsel representing the Andhra Pradesh State Wakf Board as well as the learned counsel representing the unofficial 3rd respondent, contended that the agreement entered into by the Mutawalli through his G.P.A., does not take away their right to exercise supervision over the religious institutions. Such a power always vests with him de horse the said agreement. According to them, Sections 18 and 32 of the Act, 1995 enable them to appoint a committee either for general purpose or for a particular purpose for supervision of Auqaf (Wakf) and such a power has nothing to do with the management of the protected monuments, entrusted to the Archaeology and Museums department under the agreement. 8. It is also their contention that Section 32(2)(d) of the Act, 1995 also enables the respondents to settle the schemes for Wakf and appoint committees for specified purposes to supervise the religious activities of Edgha during the festivals and the same shall be within the powers conferred to the Board. It is also their contention that Act, 1960 does not take away their right to supervise the religious institutions by appointing committees and such a power still vests with the Board despite the entrustment of custody of protected monuments to the Director, under the agreement. 9. It is also submitted that Section 108(A) of the Act, 1995 is having overriding effect over the other Acts. Therefore, the appointment of the committees by the Wakf Board to supervise Edgah during the festivals cannot be said to be without statutory support. 10. In the light of the said contentions, it is apt to refer to certain undisputed facts. It is not in dispute that the Edgah for which the committee has been constituted comes under the protected monument. 10. In the light of the said contentions, it is apt to refer to certain undisputed facts. It is not in dispute that the Edgah for which the committee has been constituted comes under the protected monument. It is also not in dispute that the state Government by virtue of G.O.Ms.No.2248 dated 18.08.1965 as published in the Gazette of 09.09.1965 declared the Edgah and other monuments in the seven (7) tombs as protected monuments. It is also not in dispute that there is an agreement dated 17.08.1966 between Mir Barkat Ali Khan, Nizam VIII of former Hyderabad State ("Mutawalli") through his G.P.A. holder Sri S.N.Reddy and the Government through the Director of Archeology and Museums, Government of Telangana. The terms of the said agreement reads as follows:- "1. That the said monument shall be maintained and repaired by Government at their cost and it shall be entirely within the discretion of the Government to determine what repairs, if any, shall from time to time be carried out as under:- a. The Government shall be the custodian of the said monument and exercise overall supervision over the staff maintained in pursuance of this object. b. That the Government shall not destroy, remove, alter, deface, misuse or otherwise imperil the said monument. c. That the government shall provide facilities of access to the public or any section thereof. No fee shall be charged for entering such part of the monument as is in religious use on the occasions of anniversaries of the Kings. d. The said monument shall not be used for any other purpose inconsistent with its character. e. The Government shall not restrain the visitors from paying respect at the tombs or places of worship, or cause misuse, pollution or desecration of the aforesaid tombs and places of worship comprised in the said monument, and prohibit entry therein except in accordance with the prescribed conditions by in camera, if any, in charge of the said monument or part thereof. 2. That except as herein expressly provided, each of the parties hereto shall in relation to the said monument, have all the rights and be subject to all the duties and liabilities conferred on or imposed by the Andhra Pradesh Ancient and Historical Monuments and Archeological Sites and Remains Act, 1960 (Andhra Pradesh Act VII of 1960). 3. 2. That except as herein expressly provided, each of the parties hereto shall in relation to the said monument, have all the rights and be subject to all the duties and liabilities conferred on or imposed by the Andhra Pradesh Ancient and Historical Monuments and Archeological Sites and Remains Act, 1960 (Andhra Pradesh Act VII of 1960). 3. That the staff taken over by the Government on 17-8-66 will be governed by the Rules governing A.P. Government Servants of the concerned categories. 11. This agreement was entered in terms of Section 5(3) of the Act, 1960 which reads as follows:- "5(3). The owner of any protected monument may, by written instrument, constitute the Director the guardian of the monument, and the Director may, with the sanction of the Government, accept such guardianship". 12. By virtue of the agreement, the owner of the monument shall constitute the Director, Archaeology and Museums as a guardian, by virtue of the written instruction. The said written instruction is in compliance with Section 16 of the Act, which reads as under:- "Section 16. (1) A protected monument maintained by the Government under this Act, which is a place of worship or shrine shall not be used for any purpose inconsistent with its character. (2) Where the Government have acquired a protected monument under Section 13, or where the Director has purchased or taken a lease or accepted a gift or bequest or assumed guardianship of, a protected monument under Section 5, and such monument or any part thereof is used for religious worship or observances by any community, the Director shall make due provision for the protection of such monument or part thereof, from pollution or desecration:- (a) by prohibiting the entry therein, except in accordance with the conditions prescribed with the concurrence of the persons, if any, in religious charge of the said monument or part thereof, of any person not entitled so to enter by the religious usages of the community by which the monument or part thereof is used, or (b) by taking such other action as he may think necessary in this behalf. " 13. In the present case, the impugned proceedings are issued by exercising power under Section 18 of the Act, 1995 which reads as hereunder:- "Section 18. " 13. In the present case, the impugned proceedings are issued by exercising power under Section 18 of the Act, 1995 which reads as hereunder:- "Section 18. Committees of the Board:- (1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of auqaf. (2) The Constitution, functions and duties and the term of office of such committees shall be determined from time to time by the Board: Provided that it shall not be necessary for the members of such committees to be members of the Board". 14. No doubt a reading of the above provision would reflect that the Board has power to appoint committees for general or specified purpose or for any specified area or areas, for supervision of the Auqaf. For better understanding Section 32 of the Act, 1995 is extracted as hereunder:- "Section 32 of Act, 1955: Powers and functions of the Board:- (1) Subject to any rules that may be made under this Act, the general superintendence of all auqaf in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the auqaf under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such auqaf were created or intended Provided that in exercising its powers under this Act in respect of any waqf, the Board shall act in conformity with the directions of the waqf, the purposes of the waqf and any usage or custom of the waqf sanctioned by the school of Muslim law to which the waqf belongs. Explanation: For the removal of doubts, it is hereby declared that in this sub-section, "waqf" includes a waqf in relation to which any scheme has been made by any court of law, whether before or after the commencement of this Act." (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be: (d) to settle schemes of management for a waqf; Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;" 15. The above provision only enables the Board to settle the schemes for management of Wakf. The above provision only enables the Board to settle the schemes for management of Wakf. The powers conferred on the Board viz., appointing committees or framing schemes are for the purpose of supervision and management of Wakf. These powers are general powers which are exercised by the Board relating to Wakf properties which are registered under the Wakf Board over which it has a control. Such general powers cannot be invoked in respect of Wakf whereby, the owner of Wakf has restricted the ownership rights by entrusting the management of protected monuments, to the Director, which are incidental to the Wakf. This restriction is by virtue of the own volition on the part of the owner in limiting his right of absolute ownership by entrusting the guardianship over the protected monuments to the Director. Once such rights are restricted, by the owner, on account of agreement with the Director, as per the provisions of the Act, 1960 the Board cannot claim supervision and management of monuments. Thus, the general power of management and supervision which are vested with the Wakf Board in respect of Wakf property cannot be pressed into service. This shows that the ownership rights have been limited by virtue of an agreement entered with the Director by appointing him as a guardian for the monuments for the purpose of protection and maintenance of the monuments. 16. The word 'maintenance' as defined under Section 2(g) of the Act, is extracted as hereunder:- Section 2(g) Maintain:- Maintain with its grammatical variations and cognate expressions, includes the fencing, covering in, repairing, restoring and cleansing of a protected monument, and the doing of any act which may be necessary for the purpose of preserving a protected monument or of securing, convenient access thereto. 17. If the committee constituted under the Board is given power to supervise and manage Wakf property as a preliminary mechanism, when there is already a Director appointed to manage the monuments, by virtue of an agreement, on account of declaring the property as a protected monument, it leads to anarchism. The same would cause threat to the protection of monuments on account of fight in between the two institutions asserting similar claims. 18. The same would cause threat to the protection of monuments on account of fight in between the two institutions asserting similar claims. 18. Section 16 of the Act itself is a clear indication that in respect of religious institutions, the Director in consultation with person in charge of religious institutions shall formulate conditions for due observance of any of the ceremonies held therein. This itself clearly indicates that the Wakf Board is not completely divested with the powers in the process of determination of certain measures whenever there is religious congregation to be performed in the protected monuments. If this power is not vested with the Director and if the power is exclusively vested with the Board alone, there will be threat to the monument on account of large scale unregulated and uncontrolled congregations in the protected zone. The ultimate objective of the Director is to protect the monument and prevent any kind of threat to the monument. Therefore, this Court feels that there shall not be two parallel supervisory authorities created one under the Act, 1960 and the other under the Wakf Act, 1995. 19. As far as the contention of the learned Standing Counsel with regard to the overriding effect of Section 108A of the Act, 1995 is concerned, no doubt such a provision overrides the other Acts, but the provisions of the Act, 1960 would apply only in case owner himself volunteers to come under the Act, 1960. When the owner himself is a party agreeing to the terms, he shall not take shelter under Section 108A of the Act, 1955. 20. If Section 108A of the Act, 1995 has to be given overriding effect over the rights restricted by way of agreement by extending the provisions of the Act, then no purpose would be served by entering into the agreement. Therefore, the overriding provision under Section 108A of the Act, 1995 is not taking away rights of the Director over the monuments, who assumed custody by virtue of an agreement entered by the owner of the Wakf restraining or limiting his rights over the maintenance of monuments. Therefore, this argument is also unmerited and the same is rejected. 21. Therefore, the overriding provision under Section 108A of the Act, 1995 is not taking away rights of the Director over the monuments, who assumed custody by virtue of an agreement entered by the owner of the Wakf restraining or limiting his rights over the maintenance of monuments. Therefore, this argument is also unmerited and the same is rejected. 21. In the result, it is to be noted that the agreement entered into by the owner of the Wakf property, for its supervision with the Director, Archeology and Monuments is valid and if the owner of the Wakf, intends to take back custody over the property, such procedure is recognized under the Act, 1960. The only requirement is that the owner of the Wakf property has to issue six (6) months notice to comply with the other conditions to take back the custody over such monuments. 22. The above dichotomy is sufficient to show that the applicability of the provisions of the Act, 1960 is the result of an agreement between the parties whereby the owner of the monuments restricted his rights. When such an owner restricted his rights by his own will, he cannot invoke other provisions of the statute and override the mutual agreement which can only be done by following certain procedure established under the Act, 1960. Undisputably, till date, the agreement is valid and is in force. It cannot be declared to be invalid as the owner of the property has not invoked any provision of law to assume re- control over the custody of property. As the same is not done till date, there cannot be two parallel mechanisms for supervision of such Wakf property. Therefore, this Court is of the opinion that the Tribunal instead of deciding the issue in detail as to the competency/powers of the Board, passed a via media order with an intention not to disturb the ceremony in the religious place and permitted for constituting a committee. The same is incorrect and erroneous and the revision requires to be allowed. 23. In the result, the Civil Revision Petition is allowed as follows:- (i) The Order dated 06.09.2010 in O.A.No.13 of 2009 on the file of the Andhra Pradesh State Wakf Tribunal, Hyderabad is hereby set aside. The same is incorrect and erroneous and the revision requires to be allowed. 23. In the result, the Civil Revision Petition is allowed as follows:- (i) The Order dated 06.09.2010 in O.A.No.13 of 2009 on the file of the Andhra Pradesh State Wakf Tribunal, Hyderabad is hereby set aside. (ii) It is made clear that, the Board shall not exercise any powers to appoint committees to supervise Edgah during the festivals in the light of this final order. (iii) The Director, Archeology and Museums, who is the custodian over the monuments, shall be the appropriate person to formulate regulations and conditions as may be practicable from time to time, for the performance of customary and religious ceremonies in the religious places in the protected zone and he shall exercise the same in due consultation with the person in-charge of the Wakf property. (iv) The Director shall be the competent person to exercise such power on his own act/will and he may constitute committees, as and when necessary and make proper arrangements for the smooth running of religious ceremonies. Miscellaneous Petitions, pending if any, shall stand closed. No costs.