Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 286 (AP)

Dara Prakash Rao v. State of Ap

2024-02-27

NINALA JAYASURYA

body2024
ORDER Ninala Jaya Surya, J. - The writ petition is field for the following relief: '..to issue a writ of mandamus or any other appropriate writ or direction declaring the action of the respondents in proposing to conduct auction on 28.09.2023 pursuant to Notice F.No.59/Lease/NLR/2020, dated 21.09.2023 for leasehold rights with respect to land of an extent of Ac.33.22 cents belonging to Mohiddinia Masjid situated at Damaramadugu Village, Buchireddypalem Mandal, SPSR Nellore District as illegal, arbitrary, one without jurisdiction and violation of Article 300-A of Constitution of India and Section 56 of Waqf Act, 1955 and Rule 4 of the Waqf Property Lease Rules, 2014 and consequently direct the respondents not to conduct auction proposed to be conducted on 28.09.2023 for leasehold rights with respect to land of an extent of Ac.33.22 cents belonging to Mohiddinia Masjid.' 2. The learned counsel for the petitioners, inter alia, submits that the petitioners are tenants of lands admeasuring an extent of Ac.32.20 cents covered by different survey numbers of Waqf land belonging to 'Mohiddinia Masjid, Damaramadugu Village'. He submits that the petitioners' ancestors and thereafter the petitioners are cultivating the said lands from the year 1970 onwards and paying the leases to the Managing Committee of the said Masjid. He submits that the lease deeds were executed upto the year 2006 and thereafter the petitioners are being continued as tenants without any lease deeds. However, the Committee was collecting Rs.20,000/- per acre. He submits that as the lands are under the cultivation of the petitioners' family members for more than 50 years, representations were made for issuance of Crop Cultivator Rights Cards (CCRCs) and as the same were not issued, the petitioners filed W.P.No.4324 of 2020 and the same is pending. Be that as it may. He submits that the petitioners earlier filed a writ petition No.23670 of 2021, aggrieved by the action of the respondents/District Waqf Officer in proposing to conduct an auction through Notification dated 11.08.2021 and interim orders were granted on 16.10.2021, permitting the respondents therein to conduct auction and that the same shall not be finalized. He submits that the said writ petition was allowed vide Order dated 10.05.2023 and thereafter, the impugned auction notice was issued on 21.09.2023 proposing to conduct auction on 28.09.2023. He submits that the said writ petition was allowed vide Order dated 10.05.2023 and thereafter, the impugned auction notice was issued on 21.09.2023 proposing to conduct auction on 28.09.2023. He submits that the auction sought to be conducted is contrary to the provisions of the Waqf Act, 1955 (for short 'the Act') and the Rules made there under. 3. Elaborating the same, the learned counsel submits that as per Section 32 (2) (j) of the Act, the Waqf Board is competent to sanction lease of any immovable property of a Waqf, in accordance with the provisions of the Act and the Waqf Properties Lease Rules, 2014 (for short 'the Rules) made there under and as seen from the impugned auction Notification, the same was issued by the Secretary of the Managing Committee of the Masjid, who is incompetent and the auction Notification is therefore liable to be set aside. He submits that even assuming, it is only the Administrative Officer, who is running the affairs of the Waqf Board to issue a Notification and he cannot delegate his powers. He contends that as per Section 27 of the Act, the Board may delegate its powers to the Chairperson, any other member or the Chief Executive Officer, such of its powers and duties under the Act, except powers and functions of the Board mentioned under Clauses (c), (d), (g) and (j) of sub-section (2) of Section 32 and Section 10. The learned counsel referring to the Rules, contends that in respect of the short duration lease of less than one year, a 'Mutawalli or Board' may give the Waqf properties on lease, but in the present case, as is evident from the auction Notification, the leases were sought to be granted by the Committee, which has no competency. The learned counsel submits that in fact the Masjid Managing Committee appointed by the Waqf Board does not have any Secretary and therefore, the impugned auction Notification by the self signed Secretary of the Masjid Committee, is not sustainable. Making the said submissions, the learned counsel seeks to allow the writ petition as prayed for. 4. Though, a contention was raised to the effect that auction conducted is contrary to Rule 4(4) of the Rules, no material is filed to substantiate plea that the relatives of Managing Committee are successful bidders, in the auction conducted, pursuant to the interim orders dated 27.09.2023. 5. 4. Though, a contention was raised to the effect that auction conducted is contrary to Rule 4(4) of the Rules, no material is filed to substantiate plea that the relatives of Managing Committee are successful bidders, in the auction conducted, pursuant to the interim orders dated 27.09.2023. 5. On the other hand, Mr.Md. Gayasuddin, learned counsel appearing on behalf of the respondents 2 and 3 while opposing the said submissions, sought to justify the impugned auction Notification. He submits that the writ petition filed by the petitioners, who are defaulters of lease amounts is not sustainable. He submits that the petitioners have been successfully preventing the auction of the subject matter lands for lease on one ground or the other and squatting on the Waqf property. He submits that the 4th respondent-Committee issued notices to the defaulters of lease amounts and instead of paying the same and participating in the auction, they filed the present writ petition by raising untenable pleas. He submits that the impugned Notification was issued pursuant to the orders in W.P.No.23670 of 2021, after taking into the relevant aspects and further that the Administrative Officer, who is taking care of the day to day affairs, had authorized the Managing Committee of the subject matter Masjid to conduct the auction. He submits that the Managing Committee of the Masjid had conducted the auction, but the same was not finalized in view of the interim orders granted in the present writ petition. He submits that the auction Notification impugned in the present writ petition is in accordance with the provisions of the Act and the Rules made therein and therefore, the writ petition is liable to be dismissed. 6. While supporting the said submissions, Mr. S.M. Subhani, the learned counsel for the 4th respondent made detailed submissions with reference to the provisions of the Act and Rules made therein. He submits that any lease beyond the period of one year, without permission of the Waqf Board is null and void and even as per the petitioners' admitted case, they are continuing in the subject matter lands beyond the lease periods in contravention of the provisions of the Act and the Rules. He submits that any lease beyond the period of one year, without permission of the Waqf Board is null and void and even as per the petitioners' admitted case, they are continuing in the subject matter lands beyond the lease periods in contravention of the provisions of the Act and the Rules. He submits that when the respondent-Board is taking steps to grant fresh leases by conducting public auction in respect of the lands in question, the writ petitioners are filing writ petitions and not allowing the auction of the properties. He submits that the petitioners are squatting on the subject matter lands without there being any legal right or title and are constantly making attempts to defeat the objects of the Act and Rules. He further submits that the petitioners had not challenged the proceedings dated 14.09.2023 authorizing the 4th respondent-Managing Committee to conduct the fresh auction, which is fatal and further that the directions of the Administrator in this regard are in terms of the provisions of the Act. He also submits that during the relevant period, due to non-conduct of elections to the Waqf Board, the affairs are being conducted by the Administrator and now in view of the writ petitions challenging the election to the post of Chairperson of the Waqf Board and the interim orders granted therein, the affairs of the Waqf Board are not being managed by the members. Be that as it may. He submits that as the Notification of Auction of lease was issued pursuant to the orders dated 10.05.2023 referred to above and the directions issued by the Administrator, are in terms of the provisions of the Act/Rules, the reliefs sought for by the petitioners, merits no acceptance. He further submits that pursuant to the public auction conducted by the 4th respondent, an amount of Rs.10,62,775/- was paid by the successful bidders, but the Auction has not been finalized in view of the interim orders granted in the writ petition. He further submits that under the guise of the interim orders, the petitioners are continuing in the subject matter lands and unless the same are vacated and the writ petition is dismissed, the 4th respondent-Managing Committee and the successful bidders would be put to great hardship and irreparable loss. 7. This Court has considered the submissions made and perused the material on record. 7. This Court has considered the submissions made and perused the material on record. It is not in dispute that on the earlier occasion, the petitioners filed W.P.No.23670 of 2021 and a learned Judge disposed of the same by an order dated 10.05.2023, the relevant portion of which reads as follows: '8. In any event, the objection of the petitioners that the District Social Welfare Officer could not have conducted the auction proceedings or grant lease hold rights and it would only be the Waqf Board or Muthavalli of the institution, would not require any further adjudication as the Waqf Board, in the form of the Special Officer, is ready to conduct the auction of the lease hold rights. 9. In the circumstances, this writ petition is disposed of by setting aside the auction notice bearing No.01/IAW/NLR.2018 dated 11.08.2021 with a further direction to respondent No.2-Waqf Board to conduct a fresh auction to the lease hold rights of the lands belonging to the Waqf institution, in accordance with law and the Waqf Lease Rules, 2014. This exercise to be conducted within a period of three (03) months from the date of receipt of this order.' 8. Thus, from a reading of the above said order, it is clear that the petitioners agreed for conduct of auction by the Special Officer. However, it would appear that the appointment of the Special Officer was set aside by a learned Judge of this Court in W.P.No.9030 of 2023 dated 21.08.2023 and in his place an Administrative Officer was appointed. By Proceedings dated 14.09.2023, the Administrator authorised the Managing Committee to go for fresh auction for eleven months in terms of Rules 4 and 5 of the Rules, 2014. In the absence of challenge to the said proceedings dated 14.09.2023, the consequential Notification, which is impugned in the writ petition is not tenable in Law. 9. At this juncture, it may be relevant to refer to the relevant provisions, on which reliance is placed by the learned counsel for the petitioners. 10. Section 32 of the Act deals with the Powers and Functions of the Board and as per Section 32 (2)(j) of the Act, it is Board's function to sanction lease of any immovable property of a Waqf, in accordance with the provisions of the Act and Rules made there under. 10. Section 32 of the Act deals with the Powers and Functions of the Board and as per Section 32 (2)(j) of the Act, it is Board's function to sanction lease of any immovable property of a Waqf, in accordance with the provisions of the Act and Rules made there under. The proviso to the said section contemplates that no such sanction shall be given unless a majority not less than two-thirds of the members of the Board present cast their vote in favour of such transaction. 11. Section 56 of the Act imposes restriction on power to grant lease of Waqf property as envisaged therein. The second proviso to the said section contemplates that lease of any immovable Waqf property, which is an agricultural land, for a period exceeding there years shall, not withstanding anything contained in the deed of instrument of Waqf or in any other law for the time being in force, be void and of no effect. Be that as it may. The Central Government in exercise of powers conferred under Section 56(1) of the Act framed Waqf Properties Lease Rules, 2014 and Rule 4 deals with the procedure with regard to short duration lease of less than one year, which reads as follows: '4. Procedure as to short duration lease of less than one year: (1) A Mutawalli or Board may give on lease waqf property, for any period of less than one year, on such terms and conditions as agreed upon by the parties.' 12. Rule 5 deals with the procedure for lease other than short duration lease. Thus, the Statute makes it clear that so far as leases for a period of less than one year a 'Mutawalli' or Board has power to grant the same. It is not the case of the petitioners herein that a 'Mutawalli' is appointed to the Mohiddinia Masjid nor was the Board functioning. As noted earlier, the petitioners had agreed for conduct of auction by the Special Officer, who is replaced by orders in W.P.No.9030 of 2023. It may also be pertinent to note here that the 4th respondent-Managing Committee was appointed vide Proceedings dated 14.10.2022 for a period of two years to manage the day to day affairs of the Mohiddinia Masjid / Waqf Institution. It may also be pertinent to note here that the 4th respondent-Managing Committee was appointed vide Proceedings dated 14.10.2022 for a period of two years to manage the day to day affairs of the Mohiddinia Masjid / Waqf Institution. As per the said proceedings, the Managing Committee is bound to carry out its legitimate duties, strictly as per the provisions of the Waqf Act, 1995 and the same, inter alia, provides that the Waqf land should not be leased out without prior permission of the Waqf Board and the Committee should follow the directions issued from time to time. As noted earlier, the Administrative Officer looking after the affairs of the Waqf Board vide Proceedings dated 14.09.2023 authorized, the 4th respondent, who is looking after the affairs of the Mohiddinia Masjid to conduct auction of the lands in question. It may be relevant to state here that the 4th respondent-Committee was constituted under Section 18 of the Waqf Act, which reads as follows: 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. 13. Thus, a perusal of the above provision of Law, makes it clear that the 4th respondent-Committee shall carry out the functions and duties as per the directives of the Waqf Board. In the present case, admittedly the Board is not functioning and in those circumstances, the Administrator authorized that the 4th respondent Committee shall conduct the auction in respect of the subject matter lands. Such an action on the part of the Administrator, which in fact was not challenged, cannot be projected as violative of the provisions of the Act. The lease was granted by following the procedure contemplated under Rule 4 of the Rules. In those circumstances, this Court see no illegality in the auction conducted by the Committee. 14. At this juncture, it may not be out of place to mention here that merely because the auction notification was issued by the Secretary of the 4th respondent Committee, no prejudice is caused to the petitioners. In those circumstances, this Court see no illegality in the auction conducted by the Committee. 14. At this juncture, it may not be out of place to mention here that merely because the auction notification was issued by the Secretary of the 4th respondent Committee, no prejudice is caused to the petitioners. Admittedly, the leases granted to them expired long back and they have no legal right to continue in the subject lands. They have to demonstrate violation of their legal rights, in the absence of which, no relief can be granted. 15. Considering the matter in its entirety, this Court is of the opinion that the writ petition, as filed by the petitioners that too without challenging the proceedings dated 14.09.2023 authorizing the conduct of auction in respect of the subject matter property is not tenable in Law and petitioners failed to establish infringement of their legal rights. 16. In such view of the matter, the writ petition is dismissed. The interim granted on 27.09.2023 shall stand vacated. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.