IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 25237 of 2008 Between: Shaik Hassan S/o. Shaik Imam Mutawalli Jamia Mosque, Kalepu Street, Rajam Mandal, Srikakulam District. ..... PETITIONER AND 1 The Andhra Pradesh State Wakf Board, rep. by its Chief Executive Officer, Haj House Complex, Nampally, Hyderabad. 2 Shaik Abdul Khader S/o. Mohiuddin R/o. Thana Veedhi Near Taluk Office, Rajam Mandal, Srikakulam District. 3 Shaik Ramjani S/o. Peer Saheb R/o. Varalakshmi, Jute Mills, Rajam Mandal, Srikakulam District. 4 Shaik Kanne S/o. Kaling Saheb R/o. Kancharam Rajam Mandal, Srikakulam District. 5 Shaik Ismail S/o. Not Known C/o. Jamia Masjid, Rajam Mandal, Srikakulam District. 6 S.M. Rasheed S/o. Khasim Saheb R/o. Thana Veedhi Near Taluk Office, Rajam Mandal, Srikakulam District. 7 Shaik Jony Saheb S/o. Moula Ali R/o. Chinacharu Gutta, Rajam Mandal, Srikakulam District. 8 Shaik Raheem S/o. Not Known C/o. Jamia Masjid, Rajam, Srikakulam District. 9 Shaik Mastan S/o. Not Known C/o. Jamia Masjid, Rajam, Srikakulam District. 10 Shaik Khasim S/o. Not Known C/o. Jamia Masjid, Rajam, Srikakulam District. .....RESPONDENT(S) 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 an appropriate writ, order or direction more particularly in the nature of Mandamus declaring the orders passed by the 1st respondent bearing No.36/SKL/K/04, dt. 31.10.2008, extending the term of the managing committee, as illegal, arbitrary, capricious, malafide and violative of principles of natural justice and pass Counsel for the Petitioner:MRSYED SHAREEF AHMED Counsel for the Respondent No.: . The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 25237 of 2008 Oral Order: The petitioner describing himself as the Muthawalli of Jamia Mosque, Kalepu Street, Rajam Mandal, Srikakulam District, seeks invalidation of the order bearing reference File No. 36/SKL/K/04 dated 31-10-2008 of the 1st respondent whereby a twelve (12) persons Managing Committee has been constituted (under Section 18 of the Wakf Act, 1995 (for short ‘the Act’) for a period of three years from the date of issue of the order for the Jamia Mosque. Sri Syed Shareef Ahmed, leaned counsel for the petitioner assails the order impugned on a plurality of grounds: (a) that one Janab Shaik Abdullah, the 11th enumerated individual included in the managing committee by the impugned order, has died on 13-10-2008 even prior to the issue of the impugned order; (b) That during the currency of the petitioner’s office as Mutawalli of Jamia Mosque, it was incompetent for the 1st respondent to have appointed the Committee under Section 18 of the Act to supervise the affairs of the Mosque; and (c) An oral submission that the criteria and protocol for identification and appointment of persons as members of the Managing Committee is neither disclosed nor followed. Insofar as the inclusion of Shaik Abdullah, a dead person as a member of the Managing Committee by the impugned order is concerned, the counter affidavit of the 1st respondent equivocally acquiesces in the factual assertion as to the death of the said individual and states that on account of lack of information as to the death of the said individual while the proposals of the appointment of the members of the Managing Committee were being considered, the error has occurred. It is stated by the learned standing counsel for the 1st respondent that a meeting of the Wakf Board is convened on 06-06-2009 and in that meeting the issue of the vacancy resultant on the death of Janab Shaik Abdullah would also be considered. At any rate, Section 18 of the Act does not enjoin a specified number of persons to be considered for appointment as a Committee nor does it enjoin a Coram for the Committee. In the circumstances, the mere fact that one of the members of the Committee as appointed under Section 18 of the Act has expired even by the date of the order would not per se result in invalidation of the order of appointment of the committee under Section 18 of the Act. The 1st respondent pleads and contends that the petitioner is not a Mutawalli and never was. As per the affidavit of the 1st respondent and as per the Survey Commissioner’s report, the office of the Mutawalli of Jamia Mosque is not hereditary, but by way of election. The petitioner’s claim that it is hereditary is specifically contested. It is further stated that earlier one Pintu Saheb was appointed as a Mutawalli. In 2003, Pintu Saheb informed the Wakf Board that he is not interested in the affairs of the Mosque on account of ill-health and had given consent for appointment of the petitioner as Mutawalli. Subsequently, however Pintu Sahib is stated to have issued a letter dated 27-11-2008 withdrawing his earlier consent had also urged that the Board may consider appointing a Managing Committee to manage the day-to-day affairs of the Mosque. Even the petitioner does not assert that there is any formal order issued appointing him as Mutawalli. He is content to describe himself as Mutawalli and asserts that the respondents are also accepting wakf tax from the petitioner. These events and transactions per se do not constitute appointment of Mutawalli. The appointment of a Mutawalli is a formal act and is not to be assumed on the basis of a factual recognition by the various executive officials under the provisions of the Act. In the absence of any formal order appointing him as Mutawalli, the petitioner cannot legitimately be considered as a Mutawalli. There is no concept of a de facto Mutawalli under the Act except as a figment of petitioner’s fertile imagination. This contention is stated to be rejected and is accordingly rejected. As regards the third and last contention urged on behalf of the petitioner by Sri Syed Shareef Ahmed, learned counsel viz., that the norms and protocol for appointment of members of a Committee under Section 18 of the Act is not spelt out nor followed, it requires to be stated that Section 18 of the Act merely enjoins that wherever the Wakf Board considers it necessary either generally or for a particular purpose or for any specified area or areas to constitute committees for supervision of the wakfs, it shall do so. Neither Section 18 of the Act nor any other provision of the Act enjoins norms nor protocols for identification of persons for appointment as members of the Committee under Section 18 of the Act. Sri Shareef Ahmed, learned counsel would contend that in the context of such legislative ambiguity it was incumbent upon the government to have framed rules for setting out guidelines or norms for identification and appointment of persons as members of the Committee to be constituted under Section 18 of the Act. This is desirable governance, but non-compliance with desirable norms does not automatically translate to invalidity. It is trite that even in the absence of rules, legislation can and ought to be executed. The petitioner does not canvass the invalidity of Section 18 of the Act on the ground of ambiguity and or absence of intrinsic guidelines. This contention is therefore stated to be rejected. On the aforesaid analysis, there are no merits. The writ petition is dismissed. No costs. ____________________ GODA RAGHURAM, J Dated: 03-06-2009 Pvks