IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELFTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION Nos.20946 and 26914 of 2008 WRIT PETITION No.20946 of 2008: Between: Shaik Mahbool Ali S/o.Shaik Baji Saheb R/o.Muslimpalem Peda Kakani (V&M),Guntur District, Andhra Pradesh ..... PETITIONER AND 1 AP STate Wakf Board, rep.by its Chief Executive Officer office at Haj House Building, Nampally, Hyderabad, AP 2 Shaik Ghouse Mohiuddin S/o.Late Abdul Gafoor Kakani R/o.Peda Kakani (V&M),Guntur District Andhra Pradesh 3 Shaik Basheed S/o.Mohd.Ghalib R/o.Muslimpalem Peda Kakani (V&M) Guntur District , Andhra Pradesh 4 The District Minority Welfare officer,Guntur .....RESPONDENTS 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 of mandamus declaring the action of the respondent No.1in issuing proceedings bearing number B3/24/GNT/06/Z.VI dated 12.9.2008 removing the petitioner pending enquiry under section 64(3) of Wakf Act, 1995,as illegal, malafide contrary, to section 64(1)&(3) of Wakf Act,1995 unconstitutional and violative of Article 14,16,19,21 of the Constitution of India and rights to religion guaranteed under the Constitution of India and consequently set aside the proceedings of the 1st respondent in proceeding No.B3/24/GNT/06/Z.VI dated 12.9.2008 Counsel for the Petitioner:MR.K.RAMAKANTH REDDY Counsel for the Respondents: WRIT PETITION NO : 26914 of 2008: Between: Shaik Basheed S/o. Late Mohd. Ghalib R/o. Muslimpalem, Peda Kakani (V&M), Guntur District, A.P. ..... PETITIONER AND 1 The A.P. State Wakf Board, rep. by its Chief Executive Officer, Office at Haj House Building, Nampally, Hyderabad, A.P. 2 Shaik Ghouse Mohiuddin S/o. Late Abdul Gafoor Hazarath Syed Baji Shaheed Aulia Kakani, R/o. Peda Kakani (V&M), Guntur District, Andhra Pradesh. 3 Shaik Mahboob Ali S/o. Shaik Baji Saheb R/o. Muslimpalem, Peda Kakani (V&M), Guntur District, Andhra Pradesh. 4 The District Minority Welfare Officer, Guntur District. .....RESPONDENTS 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 of Mandamus declaring the action of the respondent No.1 in issuing Proceedings bearing No.B3/24/GNT/06/Z.VI, dated 12.09.2008, removing the petitioner pending enquiry under Section 64(3) of Wakf Act, 1955 as illegal, malafide, contrary to Section 64(1) (3) of Wakf Act, 1955, unconstitutional and vioaltive of Articles 14, 16, 19, 21 of the Constitution of India and right to religion guaranteed under the Consitution of India and consequently set aside the proceedings of the 1st respondent in Proceedings No.B3/24/GNT/06/Z.VI, dated 12.09.2008 Counsel for the Petitioner: MR.K.RAMAKANTH REDDY Counsel for the Respondent No.1: MR.S.M.SUBHANI (SC FOR AP WAKF BOARD) The Court made the following Common Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.20946 and 26914 of 2008 COMMON ORDER: Petitioners in these two writ petitions are joint muttawallis of Dargah Bzt.Baji Shaheed Peddakakani, Guntur District. They and one Shaik Ghouse Mohiuddin, second respondent in both the writ petitions, were appointed as joint muttawallies by proceedings of Andhra Pradesh State Wakf Board, first respondent, dated 10.08.2006. In due course of time mujawars were performing duties in respect of wakf in question. It appears that mujawars complained to wakf board that joint muttawallis are not allowing them to perform the duties. Wakf board tried to effect harmony between mujawars and muttawallis, but could not succeed. In the meanwhile allegations of mal-administration and negligence by joint muttawallis were made. Therefore, notice dated 30.11.2007 was issued to petitioners and second respondent calling upon them to submit explanation as to why they should not be superseded under Section 67 of the Wakf Act, 1995 (the Act, for brevity). Petitioners submitted explanation. After considering the explanation, Chief Executive Officer of Wakf Board passed orders on 12.09.2008 appointing an enquiry officer under Section 71 of the Act. In addition to this, pending enquiry petitioners were suspended until further orders. Shaik Mahboob Ali filed W.P.No.20946 of 2008 and Shaik Basheed filed W.P.No.26914 of 2008 seeking writs of Mandamus declaring impugned suspension orders as being contrary to Section 64 of the Act. Wakf board has filed counter-affidavit in W.P.No.20946 of 2008. It is not necessary to elaborate allegations and averments made therein. Suffice to mention that impugned orders are justified based on Section 64(5) of the Act. Placing reliance on decision of this Court in K.M. Safiullah v A.P. State Wakf Board [1] learned counsel for petitioners submits that in the absence of notice contemplated under Section 64(5) of the Act, suspension of muttawallis for a period beyond ten days is illegal and unsustainable. Secondly he submits that though enquiry officer was appointed in September, 2008, no enquiry thus far has been conducted in contravention of Section 71 of the Act. Opposing these contentions learned standing counsel for wakf board and learned counsel for second respondent submits that notice was issued and explanation was obtained before passing impugned orders and therefore, there is substantial compliance with proviso to Section 64(5) of the Act. Whether notice contemplated under proviso to Section 64(5) of the Act is mandatory is a question, which is no more res integra. I n K.M. Safiullah (supra) this Court laid down as under. The question of following the procedures laid down under Sections 70 and 71 and Rule 24 of the Wakf Rules, 2000 would arise only if the respondents have proposed or have commenced action for removal of the petitioner under Section 64(1) of the Wakf Act, but that is not the case on hand. Having regard to the seriousness of the allegations leveled against the petitioner in the representations referred to in the impugned notice, at references 1 to 3, the Wakf Board unanimously resolved to place the petitioner under suspension till the conclusion of enquiry, to facilitate a free and fair enquiry, and in view of the proviso appended to Section 64(5) which requires giving an opportunity of being heard if the suspension period was to extend before the period of ten days, issued the impugned notice calling upon the petitioner to explain the allegations leveled against him therein. The submission of learned counsel for respondents that notice was issued to petitioners on 30.11.2007 in compliance with Section 64(5) of the Act is without any basis. Notice referred to in impugned order is annexed to the writ petitions. It is not a notice under Section 64(5) of the Act. As can be seen it is a notice contemplated under Section 67 of the Act, which deals with supersession of committee of management. It is not a notice calling upon the petitioners as to why they should not be sustained pending enquiry under Section 71 of the Act. In that view of the matter, orders impugned in these writ petitions suffer from incurable defect. Therefore, they are liable to be set aside. There shall be an order setting aside the impugned orders giving liberty to wakf board to pass appropriate orders. If so advised in accordance with Section 64(5) of Act. With the above observations, this writ petitions are allowed. There shall be no order as to costs. _____________ (V.V.S.RAO, J) 12th December, 2008 GHN To 1 AP STate Wakf Board, rep.by its Chief Executive Officer office at Haj House Building, Nampally, Hyderabad, AP 2 The District Minority Welfare officer,Guntur 3 2CD copies Form-NIC-OGS/WP{TRK} Form-NIC-OGS/WP{MSN} [1] 2003(2) ALD 440