IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 25560 of 2000 Between: 1 Mohd.Sarwar Khan, S/o.Late Mohd.Sazawar, R/o.H.No.3-1-250, Kakatiyanagar, Hanamkonda, Warangal District. 2 Mohd.Nawab Khan, S/o.Late. Yaseem Khan, R/o.H.No.3-1-250, Kakatiyanagar, Hanamkonda, Warangal District. ..... PETITIONER(S) AND Andhra Pradesh State Wakf Board, Rep. by its Chief Executive Officer, Manoranjan Complex, M.J.Road, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS by setting aside the impugned order No.448/Prot/WGL/2000/DM Dt: 10-11-2000 of the respondent holding the same as being illegal, arbitrary, without notice, malaﬁde and against the Principles of Natural Justice; and consequently direct the respondent to continue the petitioner to discharge their duties as Muthawallies of the Masjid inside abadi Ghanpur, Warangal District, and to pass such other or further orders. Counsel for the Petitioner:MR.MIRZASAFIULLA BAIG Counsel for the Respondent No.: MR.S.M.SUBHANI (SC FOR AP WAKF BOARD) The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.25560 OF 2000 ORDER: The relief sought for in this writ petition is for a mandamus from this Court to set aside the order of the respondent dated 10.11.2000 as being illegal and in violation of principles of natural justice, and consequently direct the respondent to continue the petitioners to discharge their duties as Muthawallies of the Masjid inside Ghanpur, Warangal District. The 1st petitioner claims that he and the 2nd petitioner are Muthawallies of the Masjid Inside Abadi, Station Ghanpur and Mandal of Warangal District which was notiﬁed in the Gazette dated 01.02.1990. The Masjid is said to be in possession of Inam lands admeasuring 3.09 acres of dry land and 12.10 acres of wet land, that these lands were granted as Inam lands by the ex-Rulers of Hyderabad as service inams to the petitioners’ ancestors for rendering service to the mosque and at the Ashur Khana. It is the petitioners’ case that their ancestors constructed the Ashur Khana for the mosque and rendered service thereat. According to the 1st petitioner, his brother was not only the joint Muthawalli but also the Naib Qazi and Mulla of Station Ghanpur, that after the death of his brother, he and his nephew, the 2nd petitioner, were discharging the duties of Muthawalli of the mosque and managing its day to day aﬀairs and the Ashurkhana. It is stated that the 2nd petitioner, being the sole heir of the 1st petitioner’s late brother, had applied for Towliathship on 16.01.1985, that the 1st respondent, vide Memo dated 10.05.1985, had directed the 2nd petitioner to obtain a succession certiﬁcate from the Atiyat Court in respect of the Inam lands and produce the same for being recognized as a Joint Muthawalli, that, accordingly, the 2 nd petitioner had applied for succession before the R.D.O. under the Atiyat Enquiries Act, 1952 and that, after a detailed enquiry, the succession certiﬁcate was granted in favour of the 2nd petitioner by order of the R.D.O. dated 14.06.1995 and a Munthakhab to that eﬀect was also issued. It is further stated that the 2nd petitioner, after obtaining succession from the Atiyat Court, had made an application to the 1st respondent on 19.07.1997, enclosing a copy of the Munthakhab, seeking recognition as a Joint Muthawalli, that, while matters stood thus, the rival group had made allegations against the petitioners alleging that they were not maintaining the mosque and its properties and that they were mismanaging the institution, that, thereupon, the Assistant Secretary of Wakf Board appeared to have conducted a spot inspection and submitted his report dated 27.10.2000, that on the basis of the said report, the Board appeared to have passed a resolution dated 28.10.2000 to take the institution with its attached properties under its direct management and that, accordingly, the respondent had passed the impugned proceedings dated 10.11.2000. The petitioners would contend that the respondent had merely relied on the alleged report submitted by the so-called Ghanpur Muslim Welfare Committee and the report of the Assistant Secretary, Wakf Board dated 23.10.2000, that no notice was issued to them before the respondent took a decision to take the institution under its direct management, that the 1st respondent had passed the impugned order without furnishing either copies of the complaint or the report of the Assistant Secretary, that the so-called spot inspection and enquiry was conducted behind their back and could not be used against them for the purposes of taking the drastic action of taking over the institution and its attached properties under the direct management of the Wakf Board. According to the petitioners, assumption of the institution under the direct management of the Wakf Board was contrary to Section 65 of the Wakf Act, that the 1 st respondent had not disclosed the nature of the complaint made by the rival groups nor had they disclosed the contents of the enquiry report, in the impugned order, that the order was bald and not in conformity with Section 65, that it was a nullity and without jurisdiction and hence did not necessitate being appealed before the A.P.Wakf Tribunal. This Court, by order in W.P.M.P.No.32599 of 2000 dated 22.12.2000, granted interim suspension of the proceedings dated 10.11.2000 pending further orders and, as such, during the pendency of the present proceedings, the 1st respondent-Board did not take the institution under its direct management. A counter aﬃdavit is ﬁled by the Chief Executive Oﬃcer of the Board wherein the fact that the 2nd petitioner is the Muthawalli of the mosque is denied. It is admitted that the Mosque inside Abadi, Station Ghanpur was a notiﬁed Wakf as per the Gazette Notiﬁcation dated 01.08.1990 and that Sri Md.Yasin and Md.Sarwar Khan were the Muthawallies. It is also admitted that the R.D.O had granted a succession certiﬁcate in favour of the 2nd petitioner. It is stated that the Assistant Secretary of the Wakf Board had conducted an inspection and had submitted his report on 23.10.2000 and that, on the basis of the report, a resolution was passed and the institution was taken under the direct management of the Wakf Board. The 1st respondent would state that the report of the Assistant Commissioner disclosed that the petitioners were mismanaging and not taking any steps to maintain the wakf institution and that the impugned order was passed only after an enquiry was conducted by the Assistant Secretary. The allegations of malice are denied. The 1st respondent, while denying that the impugned order was not in conformity with Section 65 of the Wakf Act, would state that, against an order passed under Section 65, the aggrieved party has a right to ﬁle a suit before the Wakf Tribunal or prefer an appeal thereto. Sri Mohd. Yakub ﬁled W.P.M.P.No.6641 of 2001 seeking permission of this Court to implead him as the 2nd respondent in the writ petition. Since this Court heard Sri S.Sharath Kumar, learned Counsel for the proposed 2 nd respondent at length, it is but appropriate that the implead petition be ordered and Sri Mohd.Yakub be added as the 2nd respondent in the writ petition. In his counter aﬃdavit, the 2nd respondent would state that he is the President of the Managing Committee appointed by the Wakf Board. He would contend that a Muthawalli is only an agent of the Wakif or the Wakf Board for eﬀective governance and management of Wakf properties and the moment it is found to be defective, or not in the interest of the Wakf institution, the Board has a statutory duty and obligation to take over administration of the Wakf through a Committee of persons. Reference is made to Section 65 (2) of the Wakf Act to contend that the Assistant Secretary to the Board, after conducting a spot inspection of the management of the Wakf through its oﬃcers, had placed the matter before the Executive Committee which, by a unanimous resolution, had decided to take over the aﬀairs of the Wakf institution under its direct management. The 2nd Respondent would dispute the fact that the petitioner was a Muthawalli after the demise of his father. He would contend that the 1st petitioner was managing the institution without authority of law and that he had developed vested interest over the properties attached to the Wakf. He would contend that, since the inspection report dated 23.10.2000 clearly showed mismanagement on the petitioner’s part, the action of the 1st respondent in taking over direct management of the Wakf was in order and, if the petitioners had any grievance in this regard, they had an eﬀective alternative remedy of approaching the Wakf Tribunal under Section 83 of the Wakf Act. The 2nd respondent would allege that the petitioner had abused the privilege and was mismanaging the aﬀairs of the Wakf, was involved in ﬁnancial irregularities and had sacriﬁced the interest of the institution and was, therefore, disentitled from invoking this Court’s jurisdiction under Article 226 of the Constitution of India. The 2nd respondent would also go into the factual details to contend that there is no Wakfnama in respect of the said institution and that the 1st petitioner was only conducting the aﬀairs of the Masjid without any legal right. It is contended that though the subject Wakf institution was under the joint Towliat of Mohd.Yaseen Khan and Mohd.Sarwar Khan, in eﬀect the Wakf institution was managed by Late Mohd.Yaseen Khan, who passed away on 27.03.1982 and that the 1st petitioner was never associated with the aﬀairs of the mosque. It is contended that the Inam is not a Service Inam and that, in the absence of a scheme, the properties of the institution automatically came under the administrative umbrella of the Wakf Board. According to the 2nd respondent, the very fact that the 2nd petitioner had applied to the Wakf Board for his appointment as Muthawalli, in the place of his dead-father, showed that the Towliat was not by way of inheritance, that there was no Wakfnama nor had the Wakif intended that the institution be under the Towliath of one single person or a family. It is contended that, since the petitioner was not present at the time of inspection, the question of his being put on notice did not arise and, since the allegations against the petitioner related to the manner of his conducting the aﬀairs of the institution, letting out valuable properties to third parties and creating a permanent interest, the 1st respondent-Board had rightly taken over direct management of the Wakf. A reply aﬃdavit is ﬁled by the petitioners, to the counter aﬃdavit of the 2nd respondent, wherein the 2nd petitioner would contend that his father died on 27.03.1982, that he had applied for Towliat on 16.05.1985 and had furnished all required documentary evidence including attested copies of the Muntakhab issued by the R.D.O., that all dues by way of Wakf Fund were cleared, that there were no allegations of mismanagement and that the Board, at its whim and on the report of the Assistant Secretary, had passed the impugned order without putting the petitioners on notice. It is contended that the order of the Wakf Board is without jurisdiction and is in ﬂagrant violation of principles of natural justice and, as such, there is no need to invoke the revisional jurisdiction before the Wakf Tribunal. It is contended that the alternative remedy is not a bar where the order impugned is either without jurisdiction or is in violation of principles of natural justice. The petitioners would deny that the 1st petitioner was not associated with the Wakf. Sri Mirza Saﬁulla Beg, learned Counsel for the petitioners, would submit that, since both the petitioners herein are the Muthawallies of the Wakf, neither of the twin ingredients, enabling the Board to assume direct management, were attracted. Learned Counsel would submit that it is only when these twin ingredients are satisﬁed can jurisdiction be exercised by the A.P.State Wakf Board and that direct management cannot be assumed where a Muthawalli continues to hold oﬃce. Learned Counsel would contend that, if at all the Board was of the view that there was any mismanagement on the part of the Muthawalli in managing the Wakf, it could take action under Section 64 (1) (i) of the Act to remove them from oﬃce. Learned Counsel would submit that action, under Section 64 (1) of the Act, could only be taken if it is preceded by an enquiry in the matter and on the basis of such an enquiry report a decision is taken, by a majority of not less than 2/3rd of the members of the Board, to have the Muthawalli removed. Learned Counsel would submit that a bare perusal of the impugned order dated 10.11.2000 would itself show that the wakf was under the Towliat of Sri Mohd.Yasin and the 1 st petitioner, that the inspection report dated 23.10.2000 makes a reference to the fact that the 2nd petitioner had obtained a succession certiﬁcate granted by the R.D.O. and that he had applied for Towliatship to the 1 st respondent-Board which is pending in File No.24/B2/H/WGL/97. Learned Counsel would contend that the impugned order dated 10.11.2000, in eﬀect removing the petitioners from the oﬃce of the Muthawalli, is not valid. Learned Counsel would submit that the 1st respondent-Board had admitted that the 1st petitioner continued to be a Muthawalli, that the inspection report showed that the 2nd petitioner had been granted succession by the R.D.O. under the Atiyat Enquiries Act and that he had applied for Towliatship before the Wakf Board, that it was evident that the 2nd petitioner was also a Muthawalli and, in the light of the fact that the petitioners continued to hold oﬃce as a Muthawalli, the question of the 1st respondent-Board taking over direct management of the Wakf did not arise. Learned Counsel would further contend that the so-called spot inspection report dated 23.10.2000 was behind the petitioners’ back, that the petitioners were neither put on notice nor given an opportunity of being heard before a report adverse to them was passed nor were they furnished copies of the so-called spot inspection report at any point of time before the writ petition came to be ﬁled and it is only during the course of hearing of the writ petition that a copy of the said report was made available to them. Learned Counsel would contend that the impugned order of the 1st respondent is without jurisdiction and is beyond the purview of Section 65 of the Wakf Act, that the said order is vitiated by non-compliance of the rules of the natural justice as it is based on a spot inspection report submitted pursuant to a inspection conducted behind their back, without putting them on notice and without their being given an opportunity of being heard, and that, existence of an alternative remedy of approaching the Wakf Tribunal, would not bar exerciser of jurisdiction by this Court under Article 226 of the Constitution of India. Learned Counsel would submit that the power under Section 63, to appoint Muthawallies, was available only when there was a vacancy in the oﬃce of the Muthawalli of a Wakf and the terms of the Wakf deed did not provide for appointment of any person as the Muthawalli, that, since there is no vacancy in the oﬃce of the Muthawalli which was occupied by both the petitioners herein, the Board could not trace the impugned order to Section 63 also. Learned Counsel would submit that, on a conjoint reading of Section 71 with Rule 24 of the Wakf Rules, 2000, (which is analogous to Rule 23 of the 1974 Rules), would require the petitioners being put on notice and being given an opportunity of participating in such an enquiry before any action is taken against them with regards any allegations relating to the mismanagement of either the Wakf or its properties. Sri S.M.Subhani, learned Standing Counsel for Wakf Board, would submit that, under Section 32 (1) of the Wakf, Act the general superintendence of all Wakfs in the State vests in the Board and that the Board is duty bound thereunder to exercise its powers to ensure that the Wakfs 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 Wakfs are created or intended. Learned Counsel would refer in detail to the contents of the impugned order to submit that it is evident therefrom that the Wakf in question was grossly mismanaged, that the 1st petitioner, who was the Muthawalli, did not even reside in the village, that the landed properties of the Wakf were mismanaged and misutilized and that such acts per force necessitated the Board to assume direct control of the management of the Wakf. Learned Counsel would further submit that, under Section 71 (1)(a), the Board has the suo motu power to hold an enquiry relating to the administration of wakfs, that Section 65 of the Act must be so read as to confer an inherent power in the Board to assume direct management of the Wakf even in cases where a Muthawalli was mismanaging its aﬀairs, that, since the order ex facie showed several irregularities having been committed by the petitioners, this Court should refrain from exercising its discretion to entertain the writ petition and that the petitioners were better relegated to the remedy of approaching the Wakf Tribunal wherein a detailed enquiry could be made and the truth or otherwise of the allegations made, in the order impugned in the writ petition, could be established. Learned Counsel would submit that, in the light of the existence of an eﬀective alternative remedy under Section 83 of the Wakf Act, the petitioners were barred from invoking the jurisdiction of this Court under Article 226 of the Constitution of India. Learned Counsel would rely on M.Bikshapathi v. Government of Andhra Pradesh[1]; Allauddin Charities and Zakath Wakf v. Hameed Ali [2]; and T.Shivalingam v. A.P.Wakf Tribunal, Presiding Officer, Hyderabad[3]. Sri S.Sharath Kumar, learned Counsel for the 2 nd respondent, would refer to clauses (d) and (g) of Section 32 (2) to contend that the Board is empowered to settle schemes of management of a Wakf and to appoint and remove Muthawallies in accordance with the provisions of the Act. Learned Counsel would submit that if the petitioners had any grievance, with regards the ﬁndings in the enquiry report of the Assistant Secretary dated 23.10.2000, they ought to have approached the Wakf Tribunal under Section 83 not only to question the said ﬁndings but also to establish their Towliatship and substantiate that the 1st petitioner was residing in the village. Learned Counsel would contend that, once the order of the Board showed that the petitioners were guilty of dereliction of duties, this Court should refrain from exercising its powers and decline to interfere in the matter. Learned Counsel would submit that, even if this Court were to conclude that the Board’s action in this regard was not strictly in accordance with the provisions of the Act, since the inspection report dated 23.10.2000 and the impugned order dated 10.11.2000 ex facie showed that the petitioners’ action in this regard was illegal, no indulgence ought to be shown by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India and that the petitioners ought to be relegated to the remedy of invoking the jurisdiction of the Wakf Tribunal wherein the 2nd respondent would also be in a position to contest the matter. Learned Counsel would submit that a dispute relating to the administration of the Wakf is also a wakf dispute under Section 7 of the Act, that the administration of the wakf does not include mal administration, that the petitioners had not made out a case for exercise of discretion by this Court under Article 226 and that the petitioners had not speciﬁcally pleaded in the aﬃdavit ﬁled in support of the writ petition as to why they chose not to invoke the alternative remedy available to them under Section 83 of the Act. Learned Counsel would refer to Section 83 (2) to contend that the remedy before the Wakf Tribunal is the proper remedy wherein all issues of fact and law can be gone into and that these are not matters of enquiry in summary proceedings under Article 226 of the Constitution of India. Section 83 (2) of the Wakf Act provides that any Muthawalli or person interested in a wakf, or any other person aggrieved by an order made under the Act and Rules made thereunder, may make an application within the time speciﬁed in the Act or where no such time has been speciﬁed, within such time as may be prescribed, to the Tribunal for determination of any dispute, question or other matter relating to the wakf. Jurisdiction to entertain all types of suits, with regard to property which is declared as Wakf property, is conferred on the Tribunal by Section 83 of the Act. (T.Shivalingam3). It is within the jurisdiction of the Tribunal to determine any questions relating to wakf property. (M.Bikshapathi1). I n Allauddin Charities and Zakath Wakf2, a Division Bench of this Court observed:- “…….Therefore, when the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a Wakf or Wakf property under the Act and acts as a Civil Court for all purposes, this Court, in exercise of the jurisdiction under Article 226 of the Constitution, cannot permit a party to bypass such statutory remedy and assign itself the role of statutory authority or Tribunal by dealing with the disputed questions of fact or title. It is only after the issue or dispute is determined by the Tribunal at the ﬁrst instance, the High court, in exercise of the power under the proviso to sub-section (9) of Section 83 of the Act gets jurisdiction and can go into the correctness, legality or propriety of such determination and may conﬁrm, reverse or modify such determination or pass such other order it may think ﬁt. We are, therefore, of the view that unless the party aggrieved of the orders of the CEO has availed of the alternative remedy available to him under the Statute and the Tribunal has determined the issue or dispute or the nature of the property as provided under the provisions of the Act, this Court, cannot go into question of validity of the orders passed by the Chief executive Oﬃcer…..” (emphasis supplied). Mere existence of an alternative remedy, even if it be a statutory remedy of an appeal under the Act, would not bar exercise of jurisdiction by this Court under Article 226 of the Constitution of India. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an eﬀective and eﬃcacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy is not to operate as a bar in at least three contingencies, namely, where the writ petition has been ﬁled for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai[4]). The rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion