THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.3200 of 2008 Date:03.11.2010 Between: Mod Shakeel Khan. ……….. Petitioner/Respondent No.3 And The H.E.H. The Nizam VII Nawab Mir Barkat Ali Khan, Mutawalli, Rep by Awkaf Committee, H.E.H. Nizam Through its Secretary, Mr.Mohd Kasim Raza, S/o.Mohd Kazim Raza, King Koti, Hyderabad and others. ……. Respondents 1, 2 & 4. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.3200 of 2008 ORDER: This revision is directed against the order dated 25.6.2008 passed in O.A.No.24 of 2005 on the file of the A.P.Wakf Tribunal, Hyderabad, whereby and whereunder the A.P Wakf Tribunal, Hyderabad (herein after referred to as ‘the Tribunal’) allowed the application filed by the 1st respondent herein and consequently, the appointment of the petitioner herein, who is 3rd respondent before the Tribunal as Mutawalli of Ashoor Khana Punch Bhai Alawa, Karwan Sahu, Hyderabad vide proceedings No.19/H3/J1/93, dated 04.02.2005, is set aside. 2. The brief facts of the case are as follows: Ashoor Khana Punch Bhai Alawa, Karwan Sahu, Hyderabad (herein after referred to as ‘the Institution’) is a very old Institution and as seen from the old records, during the year 1351 Fasli (1941 AD), a “Sanade Towliath” (certificate of Towliath) was granted by “Sadrul- Muham” (Prime Minister) of Nizam Government in favour of Haji Mohd. Noor Khan S/o. Haji Mohd. Khan. The petitioner herein Mohd.Shakeel Khan is the son of Mohd Salabath Khan. Mohd Salabath Khan is the son of Haji Mohd. Noor Khan. 3. The father of the petitioner Mohd. Salabath Khan died on 8.10.1981. It appears that the petitioner made a representation to the Wakf Board for sanction of Towliathship of the Institution (to appoint him as Mutawalli) on 19.3.1993 and no decision was taken on such representation. Meanwhile, the Managing Committee of Ashoor Khana Punch Bhai Alawa filed an objection letters dated 21.10.1999, 14.9.2000, 23.5.2001 and 29.5.2001. Then the petitioner approached this Court and filed W.P.No.2751 of 2001, and this Court, by order dated 24.4.2001, directed the Wakf Tribunal to consider the representation of the petitioner dated 29.3.1993 within a period of eight weeks from the date of the receipt of the copy of the said orders. Then, the Wakf Board appointed an Enquiry Officer by order dated 24.6.2001 and the Enquiry Officer, after conducting detailed enquiry, submitted his report dated 3.12.2004. Based on that report, the Chief Executive Officer, A.P State Wakf Board, issued proceedings No.19/H3/J1/1/93, dated 04.2.2005 appointing the petitioner as Mutawalli of the Institution under Section 63 of the A.P Wakf Act. The 1st respondent herein challenged the said order before the A.P Wakf Tribunal, Hyderabad. The A.P.Wakf Tribunal, Hyderabad, by its order dated 25.6.2008, set aside the order of the Chief Executive Officer of the Wakf Board, thereby the appointment order of the petitioner herein as Mutawalli was set aside. Challenging the same, the petitioner filed this revision. 4. The case of the 1st respondent herein is that H.E.H, the Nizam- VIII Nawab Mir Barkat Ali Khan, is the Mutawalli of the Institution and that there was no vacancy in the office of the Mutawalli to appoint the petitioner herein as Mutawalli and that Mohd. Salabath Khan was removed from the office of Mutawalli vide letter proceedings No.1867, dated 09.7.1958 and his excellency H.E.H the Nizam was appointed as Mutawalli by letter dated 3.10.1959 and that Mohd. Salabath Khan handed over the charge to one Mirza Hyder Hussain, In- Charge President of the Institution and that the father of the petitioner Salabath Khan was only a Nigrankar (Caretaker). Thus, the specific case of the petitioner herein is that, vide letter dated 09.7.1958, Towliath was transferred in favour of H.E.H., the Nizam. It is also their case that in fact there is no vacancy of the post of Mutawalli to consider the case of the petitioner. It is also their case that Gazette Notification dated 21.3.1985 also reveals that H.E.H., the Nizam, was the Mutawalli of the Institution. It is also their case that the petitioner was appointed as Nigrankar and he was suspended vide letter No154, dated 22.2.2002. 5. The Enquiry Officer found that the grand father of the petitioner Haji Mohd. Noor Khan was recognized as Mutawalli of the Institution. The Enquiry Officer also stated that he verified the Wakf Board file No.19/H3/JI/93 and found a copy of Muntakab No.1694 and the name of Haji Mohd. Noor Khan was mentioned as ‘Mutawalli’ in Col.No.’11’. A letter No.307, dated 28.1.1953 A.D issued by the Secretary of Owkaf Committee and Joint Secretary of the Revenue Board, Government of Hyderabad was marked as Ex.A1 by the Enquiry Officer, which confirmed the appointment of Mohd.Salabath Khan, the father of the petitioner as Mutawalli. Thus, the father of the petitioner Mohd.Salabath Khan was also found to be Mutawalli of the Institution. 6. The learned counsel for the 1st respondent argued that during his life time VII Nizam of Hyderabad Mir Osman Ali Khan acted as Mutawalli and after his demise, His excellency the Nizam-VIII Nawab Mir Barkat Ali Khan is continuing as Mutawalli and he is acting through Awaqaf Committee. It is also their case that the petitioner herein was only a Nigrankar (Caretaker) and he was suspended vide letter No.154, dated 22.2.2002. 7. The learned counsel for the petitioner submitted that the Enquiry Officer had examined all the relevant documents and rival contentions and has submitted a reasoned Enquiry Report, which has been accepted by the authorities and based on the report, the petitioner was appointed as Mutawalli and there is no illegality or irregularity in his appointment. It is also his submission that the petitioner has filed all the original documents and they are in the file of the Enquiry Officer. It is also his submission that the Wakf Act came into fore in 1954 and subsequently the procedure prescribed under the Act has to be followed for the appointment and removal of Mutawalli. It is also his submission that even if the version of the 1st respondent is accepted that Nizam-VII was appointed as Mutawalli, but admittedly H.E.H., the Nizam- VII, died in 1968, and after his demise, the Awaqaf Committee appointed by him stood cancelled and there is nothing on record to show that Mir Barkat Ali Khan @ Mukarram Jah acted as Mutawalli of the Institution and also there is nothing on record to show that he constituted Awaqaf Committee to manage the affairs of the Institution. In the absence of any record to show that Mir Barkat Ali Khan had acted as Mutawalli at any time or appointed Awaqaf Committee to manage the affairs of the Institution, it is clear that the office of the Mutawalli became vacant and there is no irregularity or illegality in appointing the petitioner as Mutawalli. It is also his submission that when H.E.H., the Nizam-VII, died in 1968, and mentioning his name as Mutawalli in Ex.B1- Gazzette Notification issued in 1985 is nothing in correct facts basing on incorrect information with regard to the Institution. It is also his submission that H.E.H is the title given by the British Government to Mir Osman Ali Khan and he alone could be called H.E.H., Nizam and it would be an historical blunder to call Barkat Ali Khan as H.E.H., the Nizam. Thus his main submission that the G.O issued in Ex.B.1- Gazzette Notification does not reflect the truth fact and it is clear that it is not based on the factual situation prevailing at the time of issuance of G.O., and therefore, the recitals of the same cannot be treated as absolute truth for acting upon the same. 8. On the other hand, the learned counsel for the respondents relying on the judgment reported in Syed Shah Mohammed Raju Hussaini Sani v. Andhra Pradesh State Wakf Board and another[1] submitted that there must be a clear vacancy to make an appointment of any person as Mutawalli. It is also his submission that the Gazzette notification was not challenged and recitals of the same became final. 9. As seen from the report of the Enquiry Officer, the Enquiry Officer has referred to certified documents i.e., Ex.A20, Notice No.206, dated 20.01.1963 issued by the Wakf Board to Mohd.Salabath Khan referring him as a Mutawalli. He has also referred to Exs.A14 to A19 and stated that the recitals of those documents show that Mohd.Salabath Khan acted as Mutawalli and deposited Wakf fund every year. The Enquiry Officer also found that there is no record to show under what ground Mohd.Salabath Khan was removed as Mutawalli by letter No.1867, dated 09.7.1958, and the Enquiry Officer subsequently made a note that the important letter No.1867 dated 9.7.1958 by which it is alleged that Mohd.Salabath Khan was removed from the office of Mutawalli is not found in the old files of Wakf Board. He has also noted that as per the report of the Syed Baquer Jafri, Circle Inspector, dated 28.7.1999 (Page No.79), the name of H.E.H., the Nizam has been shown in Survey Form No.157 only and this entry is not found in the register of Indraj (inward). The Enquiry Officer has also observed that as per the file of the Wakf Board, it seems that the petitioner herein applied for Towliath in the place of his father to the Wakf Board on 20.3.1993 and at that time, the Awaqaf Committee has taken a stand that Mohd. Salbath Khan was removed from the service of the Towliathship but no such record was not available in the file. Even in the charge memo by which the charge is said to have been handed over in Ex.B9 does not contain the signature of Mohd Salabath Khan and the charge list in Ex.B9 was not handed over to the Wakf Board and the signature was also not tallied. Thus, the Enquiry Officer conducted a detailed enquiry and submitted a report and based on that report, the petitioner herein was appointed as Mutawalli by proceeding dated 04.2.2005 issued by the Chief Executive Officer of the Wakf Board. It is also not clear whether the lower Court came to the conclusion that it is not clear whether the appointment of the petitioner was made by the Chief Executive Officer or by Special Officer and if the appointment is made by the Special Officer, the same is invalid and he has no authority to appoint Mutawalli. Admittedly, the Wakf Tribunal has not taken into consideration that VII Nizam died in 1968. The Tribunal has also not considered whether the son of VII Nizam Mir Barkath Ali Khan ever acted as Mutawalli and whether he has appointed any Awaqaf Committee to manage the affairs of the Institution. In the absence of any such evidence, whether it can be said that the office of Mutawalli is not vacant merely because, it is mentioned in the Gazette Notification dated 21.3.1985 that His Excellency the Nizam is the Mutawalli, which appears to be incorrect since admittedly the VII Nizam died in 1968. The Tribunal has also not considered the fact that no documents have been filed to show that the father of the petitioner was appointed as Nigrankar or that the father of the petitioner was suspended as Nigrankar. 10. The Presiding Officer, A.P Wakf Tribunal, Hyderabad, on appreciation of the rival contentions came to the conclusion that there was no vacancy in the office of Mutawalli. 11. The main contention of the learned counsel for the petitioner is that the finding of the Tribunal that there was no vacancy in the office of the Mutawalli is not correct and that there was a dispute in that regard and when there is a dispute, the Board is competent to appoint a Mutawalli under Section 63 of the A.P Wakf Act, 1995 (hereinafter called ‘the Act’). His second submission is that the grand father of the petitioner was a Mutawalli and subsequently, the father of the petitioner became Mutawalli and that the contention of the 1st respondent that Nizam-VII was a Mutawalli from 1958 is not correct and even if it taken as correct, after the demise of H.E.H., the Nizam-VII, there is no record to show that his son Mir Barkat Ali Khan performed the duties of Mutawalli or appointed any Awkaf Committee and in the absence of the same, it has to be held that the office of Mutawalli was vacant when the petitioner submitted the application to appoint him as Mutawalli. It is also further submitted that Mir Barkat Ali Khan is a Non-Resident Indian and he is unfit to act as Mutawalli. It is also his submission that as per the orders of this Court, the Wakf Board appointed an Enquiry Officer and that the Tribunal failed to take into consideration the fact that in the absence of formation of a Board, an election of its Chairman and its members and a Special Officer would be appointed to discharge the functions of the Board including the Chairman. It is also his submission that the C.E.O., has also been discharging the duties as Special Officer of the A.P Wakf Board, duly appointed by the State Government and the order passed by the C.E.O., shall have to be treated as the order passed by the Special Officer of Wakf Board, and therefore, there is no illegality or infirmity in the order passed by the C.E.O., A.P.Wakf Board. 12. Learned counsel for the 1st respondent submitted that unless the office of the Mutawalli is vacant, no person can be appointed as Mutawalli. It is also his submission that the petitioner was working as Nigrankar and because of his misdeeds, he was suspended, vide letter No.154, dated 22.2.2002. It is also submitted that the record reveals that the father of the petitioner Mohd. Salabath Khan was removed from the office of the Mutawalli, vide letter No.1867, dated 09.7.1958 and that H.E.H., the Nizam, was appointed as Mutawalli by letter dated 03.10.1959 and that Salabath Khan has handed over the charge to one Mirza Hyder Hussain, In-charge President of Ashoorkahana showing him as In-charge of Ashoorkhana and not as Mutawalli. It is also his submission that the Wakf Board is solely entitled to make an appointment and that the letter of appointment does not show that the Wakf Board had approved the Enquiry Report in the report of the Enquiry Officer and when it is clear that the appointment is not made by the Board, the appointment order becomes illegal. He has also relied on the judgment reported in Syed Shah Mohammed Raju Hussaini Sani v. Andhra Pradesh State Wakf Board and another (supra-1). In support of his contention that when there is no vacancy in the office of the Mutawalli, no appointment can be made. 13. The points that arise for consideration are:- (1) Whether the office of Mutawalli was vacant on the date of issuance of appointment order to the petitioner and (2) Whether the C.E.O., is competent to issue appointment order on behalf of the Board. 14. It is the duty of the Presiding Officer of the A.P.Wakf Tribunal to consider the entire material before coming to final conclusions. It appears that Ashoor Khana Punch Bhai Alawa, Karwan Sahu (herein after referred to as ‘the Institution’) is very old Institution. The petitioner has filed certain documents i.e., construction permit No.702, dated 9th Amardad, 1337 Fasli (1927 Awkaf Committee) in File No.231/1334 Fasli, which reveals that Mohd.Noor Khan obtained construction permission for Karwan Sahu. 15. The name of the petitioner’s father is Mohd.Salabath Khan and the grand father’s name is Mohd. Noor Khan. 16. The petitioner has also filed a letter from the office of the Director of Government Religious Affairs Department, dated 21st Amardad 1344 Fasli, Outward No.9257, wherein the name of the grand father is referred as Mutawalli. The orders issued by the Hon'ble Sadar-Ul- Moham Bahadur (Chief Minister), General Administration Department, Government of Hyderabad State, dated 5th Dai, 1351 Fasli reveals that Sanand Towliat (Certificate of Towliat) of Ashoor-Khana Panch Bhai, situated at the locality of Karwan Sahu, Hyderabad City was granted in the name of Haji Mohammed Noor Khan. Similarly, a memorandum issued by the office of the Director of Endowments and Joint Secretary, Revenue Department, Government of Hyderabad No.307, dated 20.1.1953 also shows that the name of the petitioner’s father shown as Mutawalli. Thus, there cannot be any doubt to say that the father of the petitioner was Mutawalli. Of course, it is the case of the 1st respondent that the father of the petitioner was removed from the office of the Mutawalli vide letter proceedings No.1867, dated 09.7.1958 and in his place, Nizam-VII was appointed as Mutawalli. Whether the said termination was in accordance with the provisions of the Wakf Act 1954 or not is a question to be considered. According to the report of the Enquiry Officer, letter No.1867, dated 09.7.1958 of the Wakf Board is not found in the old service record of the Wakf Board. The Enquiry Officer also revealed that it is not known under what authority the Awkaf Committee had removed Mohd. Salabath Khan without showing any reasons. 17. Be that as it may, even if it is held that Nizam-VII was the Mutawalli from 1958 onwards, but admittedly, Nizam-VII died in 1968/1969, and admittedly, there is no record to show that Mir Barkath Ali Khan Nizam-VIII acted as Mutawalli at any time or he had appointed any Awkaf Committee to manage the affairs of the Institution. The petitioner has filed certain documents. A memo No.14611/K7/89-1, dated 4.8.1969 issued from the Office of the Commissioner, Endowments Department, Hyderabad reveals that the name of the father of the petitioner is shown as Mutawalli. There was another letter issued from the Office of the Commissioner, Endowment Department, Hyderabad vide memo No.33789/K7/70-3, dated 23.9.70 marked as Ex.A11 by the Enquiry Officer. It also reveals that the father of the petitioner was shown as Mutawalli. The contents in Ex.A5 dated 19.2.1972, Ex.A6 dated 11.3.1969, Ex.A12 dated 4.9.1963 referred the name of the father of the petitioner as Mutawalli. 18. So, in the light of the above documentary evidence, the contention of the 1st respondent that the VIII-Nizam Mir Barkath Ali Khan continued as Mutawalli cannot be accepted. Of course, Gazette No.12, dated 21.3.1985 refers H.E.H the Nizam as Mutawalli and no suit is filed to set aside the Gazette Notification. It is not clear whether any proper enquiry was made before publishing the Gazette under Ex.B1. However, the fact remains that Nizam-VII died in 1969. Therefore, it clearly a mistake to refer H.E.H., the Nizam as Mutawalli since admittedly he died in 1958. It is also clear that H.E.H., His Excellency the High is a title given by the Nizam-VII and not to Nizam- VIII. Therefore, the recitals of the Gazette cannot be taken as gospel truth when admittedly it is not reflecting the true facts. Anyhow, the main issue is whether the office of Mutawalli was vacant or not even if the office of the Mutawalli is not vacant and if there is a dispute, the Board can appoint a Mutawalli under Section 63 of the Act? Section 63 of the Act is as follows: “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.” 19. So in the following conditions the Board may appoint any person to act as a Mutavalli: (i) When there is a vacancy in the office of Mutawalli and there is no one to appoint under the terms of the deed of the Wakf Board, (ii) When the right of any person to act as Mutawalli is disputed. 20. Thus, it appears that even when there is a dispute with regard to the right of any person, who claimed to act as a Mutawalli the Wakf Board may appoint any person to act as Mutawalli. Therefore, it is clear that the Wakf Tribunal has not taken into consideration the relevant facts and circumstances of the case and there is no proper appreciation of evidence by the Tribunal and therefore its findings are perverse. In fact the Enquiry Officer had taken pains and prepared a detailed report. The Wakf Tribunal failed to consider various facts brought on record by the enquiry officer. 21. As coming to the appointment, whether the appointment order issued by the C.E.O on behalf of the Wakf Board is valid or not? 22. A reading of Section 63 of the Act makes it clear that the power of appointment of Mutawalli is with the Wakf Board. The appointment order issued to the petitioner reveals that the petitioner had submitted an application dated 29.3.1993 and his application was not considered and objections were filed by the Managing Committee and then the petitioner filed a Writ Petition No.2751 of 2001, and this Court directed the Wakf Board to consider the application of the petitioner. Then, the Enquiry Officer appointed and as per the report of the Enquiry Officer, the appointment order was issued. 23. The contention of the learned counsel for the petitioner is that the Wakf Board was not constituted and there was no election of its Chairman and its members and that C.E.O., was discharging the duties of the Special Officer of A.P Wakf Board, if that is a case, the Wakf Tribunal is directed to enquire into the matter as to whether the Wakf Board was constituted or not and whether the Wakf Board had delegated its powers to the C.E.O under Section 27 of the Act and whether the C.E.O., while acting under Section 25 (1) (c), was competent to issue the appointment order or not. 24. In the above circumstances, I consider just and reasonable to set aside the order of the Tribunal and remand the matter and the Wakf Tribunal which shall call for the entire record from the Wakf Board i.e. all the documents filed before the Enquiry Officer pass a reasoned order and decide the limited point as to whether C.E.O was competent to issue appointment order on behalf of Wakf Board or not. 25. In the above circumstances, the impugned order is set aside and the matter is remitted back to the Wakf Tribunal for fresh disposal in accordance with law. The Wakf Tribunal may pass orders within a period of six months form the date of receipt of a copy of this order. 26. The Civil Revision Petition is allowed in part. No order as to costs. ______________________ Justice B.Chandra Kumar Date:03.11.2010 mrb [1] 2007 (2) ALT 511