IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION Nos.3022 and 3023 of 2007 CIVIL REVISION PETITION No.3022 of 2007 BETWEEN: Syed Masoom Peer … PETITIONER(S) And Syed Asad Basha Quadri and another … RESPONDENT(S) CIVIL REVISION PETITION No.3023 of 2007 BETWEEN: Syed Masoom Peer … PETITIONER(S) And A.P. State Wakf Board rep. by its Chief Executive Officer, Nampally, Hyderabadn and another … RESPONDENT(S) HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION Nos.3022 and 3023 of 2007 COMMON ORDER: The controversy in both these CRPs which are filed under Section 83 of the Wakf Act, 1995 (for short Act) relates to a dispute about Mutawalliship of a Dargah and is same and therefore they can be disposed of by this common order. 2. The circumstances which led to the filing of these CRPs are these. The petitioner herein claiming to be the Mutawalli of a Dargah called Hzt. Syed Ahmed Basha Qadri (suit Dargah) situated at Peta Kurnool town first filed O.S.No.101 of 1998 in the Wakf Tribunal for a perpetual injunction to restrain the first defendant therein i.e. Syed Asad Basha Quadri and those claiming under him from interfering with his possession and management of the above Dargah. Later on he filed the other suit O.S.No.92 of 2000 for a declaration that the proceedings dated 23.07.1998 of the Wakf Board appointing the above mentioned Syed Asad Basha Quadri shown as second defendant in the suit as the Mutawalli of the suit Dargah as illegal on the ground that the said appointment orders were issued when he (petitioner) is already acting as Mutawalli of the suit Dargah. 3. Syed Asad Basha Quadri who was appointed as Mutawalli by the Wakf Board and the Wakf Board contested both the suits. The tribunal clubbed both the suits and held a joint trial and dismissed both the suits by its common judgment dated 17.04.2007. Questioning the dismissal of O.S.No.101 of 1998 the petitioner filed CRP No.3022 of 2007 and similarly he filed CRP No.3023 of 2007 questioning the dismissal of the other suit O.S.No.92 of 2000. The details of the oral and documentary let in by both sides and all other factual details are given in the judgment of the tribunal. 4. It is the admitted case of both sides that previously the petitioner’s father Syed Hussaini Basha was the Sajjadanashin or Mutawalli of the suit Dargah and he died in 1959. The main contention of the petitioner (plaintiff in both the suits) is that thereafter he has been managing the affairs of the suit Dargah i.e. as de facto manager and that subsequently the Wakf Board by its Ex.A2 proceedings dated 28.09.1970 accepted the recommendation of the District Wakf Committee, Kurnool, that the petitioner should be appointed as the Mutawalli of the suit Dargah. His further contention is that after Ex.A2 proceedings Ex.A1 gazette notification was also issued correcting the earlier notification dated 24.10.1963 substituting the petitioner’s name for his father as Mutawalli and this amounts to appointing him as Mutawalli of the suit Dargah. 5. The petitioner also relied upon his Ex.A3 representation dated 19.07.1998 complaining against Syed Asad Basha Quadri about his interference and also seeking police protection for conducting the annual Urs and the other affairs of the Dargah but there was no action on the part of the Wakf Board and he also relied upon Ex.A4 letter dated 24.02.1970, Ex.A5 letter dated 22.03.1969, Ex.A6 letter dated 22.04.1969 and Ex.A7 letter dated 31.05.1969 (02.06.1969) addressed by the Secretary, Wakf Board to the District Collector, Kurnool requesting the District Collector to consider payment of Beriz amounts to him to prove his case that he was acting as the Mutawalli of the suit Dargah right from the date of death of his father. 6. The petitioner also in support of his case apart from the above documents gave his evidence as P.W1 and further examined P.W2 Anisulmulk. The petitioner could not however lead any evidence to show that the District Collector paid him Beriz amounts. Not only this, the petitioner also failed to file any documents in the form of electricity bills or account books or other documents to show that he has been in management of the affairs of the suit Dargah as observed by the tribunal and it was on this ground the tribunal dismissed both the suits while accepting the case of the Wakf Board and Syed Asad Basha Quadri that the latter was appointed as the Mutawalli of the suit Dargah and that nobody including the petitioner never looked after the management of the suit Dargah from the date of death of his father till the appointment of Syed Asad Basha Quadri as its Mutawalli by the proceedings of the Wakf Board dated 23.07.1998 and which were gazetted on 27.08.1998. 7. The learned counsel for the petitioner pointed out that though D.W1 who is Syed Asad Basha Quadri supported his case basing upon Ex.B1 gazette notification dated 27.08.1998 appointing him as Mutawalli of the suit Dargah, D.W2 R.S.Basha i.e. the then Inspector cum Auditor of the Wakfs, Ananthapur District did not say positively that Ex.A2 proceedings dated 28.09.1970 of the Wakf Board accepting the petitioner as the Mutawalli of the suit Dargah is a forged document and therefore he further argued that unless the petitioner’s appointment is terminated the Wakf Board could not have appointed Syed Asad Basha Quadri as Mutawalli and the tribunal ignored this aspect and erroneously dismissed the suits. 8. The learned counsel appearing for Syed Asad Basha Quadri and the Wakf Board pointed out that Ex.A2 proceedings are merely the proceedings by which the Wakf Board’s resolution No.129/70 dated 26/27.08.1970 accepting the petitioner as Mutawalli of the suit Dargah was communicated and that no appointment order was issued by the Wakf Board appointing the petitioner as Mutawalli and therefore it can be ignored. It should noted here that as pointed out by the counsel for Wakf Board no separate order was issued appointing the petitioner as Mutawalli after Ex.A2 proceedings and what the Wakf Board has done was that it gave Ex.A1 gazette notification amending an earlier notification of 1963 by which the petitioner’s father was appointed as Mutawalli thus indicating that the petitioner was appointed as Mutawalli in the place of his late father. It is not known why the Wakf Board adopted this procedure instead of issuing a separate appointment order for the petitioner appointing him as Mutawalli following Ex.A2 proceedings. 9. Be that as it may, as matters stand the fact remains that there are Ex.A2 proceedings dated 28.09.1970 and Ex.A1 gazette notification which show that the Wakf Board did recognize the petitioner as Mutawalli of the suit Dargah and even communicated its decision to him. In my opinion Ex.A1 gazette notification coupled with Ex.A2 proceedings can be treated as an appointment order by which the Wakf Board appointed the petitioner as Mutawalli of the suit Dargah. It may also be noted that petitioner’s case need not be rejected merely on the ground that there is no formal appointment order as what is required under law is some act signifying that the Wakf Board has accepted and allowed the petitioner to be recognized as the Mutawalli. Now if the petitioner was not discharging his duties properly or neglected the management of the suit Dargah it was open for the Wakf Board to act under Section 64 of the Act and remove him from Mutawalliship. It did not choose to adopt that procedure. There may be justification or no justification for removing the petitioner from the Mutawalliship in question but so long as Exs.A1 and A2 stand on record the petitioner continues to be the Mutawalli unless it is shown that Exs.A1 and A2 were obtained by fraud or other questionable means and can be ignored. The Wakf Board was not in a position to prove before the tribunal that Ex.A2 proceedings and Ex.A1 gazette notification are forged documents or were not issued under its authority. In the absence of such evidence it follows that Exs.A1 and A2 must be held to be in force unless they are cancelled in the proceedings initiated against the petitioner for removing him from the Mutawalliship on any of the grounds contemplated under Section 64 of the Act. 10. No provision has been brought to my notice to hold that when certain proceedings appointing a person as Mutawalli are in force and are not shown to be forged or unauthorised documents, it is open for the Wakf Board to appoint another person as Mutawalli of the same Dargah for one reason or the other. The tribunal did not go into this aspect and did not call upon the Wakf Board to show how it could ignore Exs.A2 and A1. It may be noted, at the risk of repetition, Ex.A2 resolution shows that Wakf Board has accepted the petitioner as Mutawalli of the suit Dargah and it then issued Ex.A1 gazette notification substituting his name for the name of his father in the earlier notification appointing petitioner’s father as Mutawalli. Thus that can be treated as an act on the part of the Wakf Board to hold that it appointed the petitioner as Mutawalli for the suit Dargah. Having done so the Wakf Board could not show any provision in the Act which empowers it to appoint another person as Mutawalli without proving that Exs.A1 and A2 are invalid documents. 11. In view of the aforesaid legal position emanating from the provisions of the Act regarding the appointment of a Mutawalli again when an earlier order appointing another person as Mutawalli is in force, the normal course is to set aside the order of the tribunal dismissing the suits notwithstanding the fact that the petitioner did not file any documents to show that he was in management of the suit Dargah. It is seen from the record that the Wakf Board could not for one reason or the other contest the matter effectively by putting forward its case regarding Exs.A1 and A2 and also the appointment order issued by it for Syed Asad Basha Quadri appointing him again as Mutawalli of the suit Dargah. In these circumstances I am of the opinion that the matter should be sent back to the tribunal to decide the controversy afresh by giving sufficient opportunity to Wakf Board to put forth its case about Exs.A1 and A2 documents and Ex.B1 document and their validity. 12. Accordingly both the CRPs are allowed and the matter is remanded back to the tribunal to decide the matter afresh as indicated above. The tribunal shall dispose of the matter as expeditiously as possible, uninfluenced by any observations made in this order, by giving opportunity to both sides to put forth their respective cases. No costs. Pending disposal of the matter afresh, the tribunal may pass appropriate orders on the applications of either side regarding the management of the affairs of the suit Dargah. _____________________ N.RAVI SHANKAR,J 1st March, 2011 cvrk