THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.1990 OF 2007 BETWEEN: Syed Ahmed Noorullah Hussaini, S/o.Syed Ahmed Abdul Khader Hussaini, Mutawalli of Darga Hazrat Syed Maroof Hussaini Quadri Saheb and other attached Dargas and Masjid, R/o. Darga Shareef, Tekmal Village, Tekmal Mandal, Medak District. …. PETITIONER And 1. The Chief Executive Officer, A.P. State Wakf Board, Nampally, Hyderabad, and another. …. RESPONDENTS Counsel for petitioners: Sri B.V.S. Sivaram Prasad Counsel for respondent No.1: None Counsel for respondent No.2: Sri Syed Sharif Ahmed The Court made the following order: ORDER: This writ petition is filed assailing the proceedings No.4/B4/MDK/2006, dated 15.09.2006 issued by the Chief Executive Officer, A.P. State Wakf Board, Nampally, pursuant to which the petitioner and the second respondent herein have been appointed as Joint Mutawallis to manage the affairs of the registered Wakf institutions, namely, Darga Hzt. Syed Maroof Hussaini Quadri Saheb, Darga Hzt. Shaheedulla Quadri, Darga Hzt. Saheb Hussaini Pasha Quadri, Darga Hzt. Syed Ahmed Pasha Saheb Quadri and a Masjid. Syed Ahmed Abdul Khader Saheb and Syed Ziaullah Hussaini Saheb were notified as Mutawallies of the said institutions. The petitioner is the son of Syed Ahmed Abdul Khader Hussaini Saheb and the second respondent is the son of Syed Ahmed Ziaullah Hussaini. The father of the petitioner died on 24.07.1977 and the father of the second respondent died on 14.01.2005. Claiming that each of them i.e., the petitioner and the second respondent has a right to succeed to the rights in the place of their respective fathers as Mutawallies, they submitted applications to the A.P. State Wakf Board to recognize them as Mutawallies. The second respondent filed an application on 21.01.2006 whereas the petitioner filed an application on 17.04.2006. The petitioner claims that ever since the death of his father, he alone has been functioning as the Mutawalli of the institutions and neither the father nor the second respondent ever discharged duties at the institutions. Attention of this Court is drawn to the demand notice dated 25.11.1999 issued by the Inspector Auditor, Medak, to the writ petitioner calling upon him to remit Wakf contribution payable under the provisions of the Wakf Act, 1995 (for short ‘the Act’). The petitioner kept paying the Wakf fund as per the receipts dated 6.12.2003, 8.02.2006 and 24.12.2006 of the A.P. State Wakf Board. On the basis of the said receipts and the notices issued by the Inspector Auditor, Medak, the petitioner asserts that he alone has been functioning as Mutawalli to the exclusion of the second respondent herein. Urging that the petitioner alone is entitled to be appointed as the Mutwalli to the exclusion of the second respondent herein, this writ petition is filed. Heard learned counsel for the parties. The learned counsel Sri B.V. Sivaram Prasad, appearing for the petitioner would contend that despite the fact that Syed Ahmed Abdul Khader Hussaini Saheb, who was the father of the petitioner and Syed Ahmed Ziaullah Hussaini, who was the father of the second respondent, were notified as joint Mutawallies of the institutions, the petitioner alone has been functioning as the Mutawalli. Neither the father of the second respondent during his life time nor the second respondent himself ever visited the institutions nor discharged their obligations cast on them as per the provisions of the Act. He would therefore contend that the second respondent waived his right to be appointed as a joint Mutawalli in the place of his father along with the writ petitioner. He would further contend that the second respondent is not the citizen of this country. He has become the national of U.S.A., therefore, the second respondent is disqualified for holding the office of Mutawalli. He would contend that vide notice F.No.41/B4/MDK/06- Zone-II, dated 5.07.2006 both the parties were directed to furnish the documents relating to succession, legal heir certificate and “No Objection Certificate” of the other legal heirs, if any, in respect of each of them. The petitioner complied with the directions and submitted all the required documents as per the said notice, whereas the second respondent did not submit the succession certificate issued by the Atiyat Sub-Collector. An objection dated 3.06.2006 was also submitted specifically stating that the second respondent herein is the permanent resident of U.S.A. and as such, the second respondent would not be in a position to look after the affairs of the subject institutions. The learned counsel would submit that none of these objections were considered and the first respondent i.e., the Chief Executive Officer has mechanically issued the impugned order. On the other hand, the learned counsel Sri Moin Ahmed Khadri, appearing for the second respondent would contend that the appointment has been made in pursuance of the provisions of Section 42 of the Act but not under the provisions of Section 63 of the Act. He would contend that the father of the second respondent having been notified as Mutawalli, the right of the second respondent to succeed is indefeasible. He would further contend that the second respondent is only a non-resident Indian having dual citizenship of the USA, which according to him is not disqualification for appointment as Mutawalli. He would further contend that whether the second respondent is a non-resident Indian or ceased to be a citizen of India and whether he is disqualified, are all disputed questions of fact, which cannot be gone into in this writ petition. He would further contend that by virtue of the provisions of Section 83 of the Act, which provides an alternative remedy to the petitioner, this writ petition, since involved disputed questions of fact, the petitioner should be relegated to seek the said remedy. In support of his contention, he would place reliance on the judgments of M. Bikshapathi v. Government of Andhra Pradesh[1], Allauddin Charities and Zakath Wakf v. Hameed Ali[2] and Uttaranchal Forest Development Corporation v. Jabar Singh[3]. As mentioned above, there is no dispute that the subject institutions have been notified under the joint Mutawalliship of the fathers of both the petitioner and the second respondent as per notification in the A.P. Gazette No.51-A, dated 20.2.2001, at Sl.No.21708. It is also not in dispute that rule of succession has not been mentioned in the said notification. It is also not in dispute that the petitioner and the second respondent as well are the respective legal heirs of the originally notified Mutawallies. Under Section 42 of the Act 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, notify the change to the Board. On such intimation a duty is cast upon the Board to verify the genuineness, bona fides of the incoming Mutawalli and also to verify his antecedents. This verification can be made only by notifying the proposal and calling for the objections. The first respondent in fact called for such objections vide F.No.41/B4/MDK/06- Zone-II, dated 5.07.2006 in respect of the application and claim made by the writ petitioner, whereas no such objections have been called for in respect of the claim made by the second respondent herein. A perusal of the impugned order would show that the first respondent has not undertaken any such exercise in respect of the claim made by the second respondent herein. On the other hand, it is averred in the counter affidavit filed by the first respondent that it is not obligatory to call for objections for appointment of any person as Mutawalli. But the first respondent has not explained why such procedure was followed only in the case of the petitioner and omitted to do so in the case of the second respondent. Be it noted that the specific objection of the petitioner against the second respondent is that he ceased to be an Indian citizen and he is not qualified to be appointed as Mutawalli. A perusal of the order would show that these facts have not been adverted to at all. There is no controversy on the principle that in a case involving disputed questions of fact and if there is an alternative remedy, ordinarily this Court would not exercise the jurisdiction under Article 226 of the Constitution of India. However, in the instant case, it is evident that the facts as pleaded to by each of the parties were not even considered and as noted above even the objections have not been invited in respect of the claim of the second respondent herein. In the light of these facts, in my considered view the writ petition need not be relegated to avail the alternative remedy under Section 83 of the Wakf Act. In the foregoing analysis it must be held that the impugned order being cryptic and without reasons, is liable to be set aside. In the circumstances, the matter is remitted for fresh consideration in so far as the claim of the second respondent herein to the office of Mutawalli of the subject institutions. The first respondent may take steps to consider the case of the second respondent in the light of the observations made hereinabove within a period of four months from the date of receipt of a copy of this order. The Writ Petition is allowed as indicated above. There shall be no order as to costs. ________________ NOUSHAD ALI, J. 9th September, 2010 Js. [1] 1999 (6) ALD 270 (DB) [2] 2002 (2) ALT 534 [3] (2007) 2 SCC 112