THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.3989 of 2009 Date: 07.2.2011 Between: Syed Abdul Hai @ Sayeed Main s/.late Syed Mushraraf. ………..Petitioner And Syed Mohd.Ashsan, S/.Syed Mohammed @ Pashamiya and others. ………..Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.3989 of 2009 ORDER: This civil revision petition is directed against the order dated 19.6.2008 passed in O.A.No.33 of 2006 on the file of the Court of the Andhra Pradesh Wakf Tribunal, Hyderabad. The petitioner herein is the 3rd respondent before the Tribunal (hereinafter referred to as ‘the Tribunal’). The brief facts of the case are as follows; Masjid-e-Mahadavia situated at Moti Market, Hyderabad is a registered and notified Wakf published in the A.P Gazzette No.27-A, dated 12.7.1984, at Sl.No.1572, under the towliath of Syed Mohammed Sahib alias Badeshah Miyan. The said Badeshah Miyan died long back. One Syed Mohammad alias Pasha Miyan was the Muthawalli and Murshed of the Wakf Institution and he died on 23.12.1963. The petitioner’s father Sayed Nusrath was the elder son of Syed Mohammed alias Pashamiya. The 1st respondent herein was his second son. According to the petitioner herein, upon the death of his grand father on 23.12.1963, his father Sayed Nusrath became Muthawalli and as per the customs prevailing in Mahadavia community, his father performed daily prayers and other prayers as Mutawalli and Murshed of the said Mosque during his life time. He had also performed Nikha, death ceremony and other functions of Murshed in the Mahadavia community. The record of Nikhas managed by his father from 1963 till his death available with the Wakf Board. His father Syed Nusrath died on 9.10.1997. Then the petitioner herein submitted an application together with a copy of the death certificate of his father and no objection certificate from his other family members, requesting the Walkf Board to appoint him as Muthawalli. Accordingly, he was appointed as Muthawalli under Section 42 of the Wakf Act, 1995 vide impugned proceedings No.34/H4/J1/M/90, dated 3.11.2005. Challenging the said appointment, the 1st respondent herein, who is his father’s younger brother raised the dispute and filed an application under Section 82 (3) of the Wakf Act to set aside the appointment of the petitioner herein. It was his contention that his father Syed Mohammad Sahid alieas Pashamiya was Muthawalli of the Mosque and subsequently the Wakf Board had taken the Mosque under its management and that since the date of death of his father, he was managing the affairs of the mosque and functioning as de-facto Muthawalli. The Tribunal holding that Section 42 of the Act 1995 is not applicable to the facts of this case and the relevant provision applicable is Section 63 of the Act and that the appointment should be for the specific period and since the appointment is not for the specific period, the appointment is liable to be set aside. Accordingly, the appointment of the petitioner was set aside. The learned counsel for the petitioner submitted that Section 63 of the Act is not applicable to the facts of the case and that Section 42 of the Act is applicable and that the petitioner herein is the son of Syed Nusrath who was performing the duties of Muthawalli and after the death of his father, the petitioner herein who succeeded his father was appointed as Muthawalli under Section 42 of the Act and therefore, no specific period is required to be mentioned in the appointment order. As seen from the record, the 1st respondent herein filed an application under Section 83 of the Wakf Act challenging the appointment of the petitioner herein contending that his father was the Muthawalli and that after the death of his father on 23.12.1963, he was functioning as de-facto Muthawalli. The case of the petitioner is that after the death of his grand father Syed Mohammed Sahid alias Pashamiya and his father Nursath Ali became Muthawalli as the elder son of his grand father and that his father offered daily prayers and performed Nikaha, death ceremonies etc and according to him, the same is born by the record. Admittedly, the Tribunal did not enquire as to who was performing the duties of Muthawalli from 23.12.1963. It has to be seen that the 1st respondent herein had simply stated that he was acting as de-facto Muthawalli. Of course, the petitioner herein also alleged that the 1st respondent herein had started treating the residential portion of the house, which was allotted to Muthawalli as his personal property and illegally entered into an agreement of sale, and thus trying to alienate the Wakf property. It is also his case that under custom and practice of the Mahadavis, only that person who relinquishes all attachment to worldly possession is entitled to be a Muthawalli. However, since we are not concerned with that dispute for the present, there is no need to discuss about the same. The only point that arises for consideration is whether the impugned order is in accordance with the provisions of the Act? Section 42 of the Act is as follows: “42. Change in the management of Wakfs to be notified:-- (1) In the case of any change in the management of a registered Wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli, shall forthwith, and any other person may notify the change to the Board. (2) In the case of any other change in any of the particulars mentioned in Section 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board.” Section 63 of the Act is as follows: “63. Power to appoint mutawallis in certain cases:--When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.” The learned counsel for the petitioner has furnished me a copy of the order dated 3.11.2005 under which the petitioner was appointed as a Muthawalli. It shows that the petitioner filed an application on 16.6.2005 requesting to appoint him as Muthawalli and his appointment was made under Section 42 of the Wakf Act, 1995. As seen from the contents of the application filed by the 1st respondent herein before the Tribunal in O.A.No.33 of 2006, it is not his case that he had filed an application to appoint him as Muthawalli. Admittedly, his father died in 1963 and the claim of 1st respondent is that he was acting as de-facto Muthawalli. If that is the situation, it is not clear that what prevented him from making any application to appoint him as Muthawalli. When the petitioner herein had categorically mentioned in the counter that his father, after the death of his grand father, was discharging the duties of Muthawalli since 1997 and no rejoinder was filed by the 1st respondent herein denying the said averment. It is not the case of the 1st respondent herein that he raised any dispute before the appointment order was issued under Section 42 of the Act. A reading of Section 63 of the Act makes it clear that where the post of Muthawalli is kept vacant i.e. when there is a vacancy in the office of the Muthawalli and when there is no one to be appointed under the terms of the deed of the Wakf or where the right of any person to act as Muthawalli is disputed, then in such circumstances, the Board may appoint any person to act as Muthawalli for such period and on such conditions as it may thinks fit. It means to fill up a gap for a particular period or till the dispute is settled the Board may appoint a person for a specific period and that contingency arises when a dispute is raised. Admittedly, the 1st respondent herein did not raise any dispute before issuing the proceedings, appointing the petitioner herein as Muthawalli or during the period when Syed Nusrath, the father of the petitioner herein was discharging the duties of Muthawalli. Therefore, it appears that there is some force in the contention of the learned counsel for the petitioner that the Tribunal seems to have committed a mistake in treating the order of the appointment of the petitioner as if made under Section 63 of the Act. It is clear from the facts and circumstances of the case that no dispute was raised during the life time of the father of the petitioner or before the petitioner appointed as Muthawalli hence it is clear that Section 63 of the Act is not applicable in this case. Accordingly, the impugned order is set aside and accordingly, the Civil Revision Petition is liable to be allowed. Hence the Civil Revision Petition stands allowed. No order as to costs. ______________________ Justice B.Chandra Kumar Date: 07-02-2011 mrb