( 1 ) MADRASA Ahle Sunnath Bahrul Uloom, represented by its President Sri Abdul majeed is the petitioner in this Writ Petition filed challenging the orders of first respondent being G. O. Ms. No. 44, Minorities welfare (Wakf. I) Department, dated 27-12-2003. The petitioner prays for a Writ of mandamus declaring the action of first respondent in issuing the Government Order directing second respondent, namely, district Collector, Visakhapatnam, to send an amount of Rs. 6. 63 crores (Rupees six crores sixty three lakhs only) lying with second respondent to third respondent, namely, District Collector, Hyderabad, for the purpose of acquiring the land adjacent to Haj house, Hyderabad, for parking, as illegal, arbitrary and contrary to the provisions of section 32, 39, 69 and 97 of Wakf Act, 1995 (for short, the Act ). According to the petitioner the decision of the Government is contrary to the spirit and object of the wakf known as Dargah Hazrath Syed Ali Ishaq madina Vali, Visakhapatnam (hereafter called, Dargah ).

( 2 ) THE petitioner is a registered society formed for the purpose of uplifting and providing education to the members of muslim community by establishing educational institutions and libraries. According to the petitioner considerable extent of land situated at Devada village in visakhapatnam District is a wakf land belonging to Dargah. It is an inam land. It was also issued a title deed No. 42 as per the provisions of Andhra Pradesh (Andhra area) lnams (Abolition and Conversion into ryotwari) Act, 1956. Mokhasadars misappropriated the property. Therefore, a suit being O. S. No. 16 of 1902 was filed on the file of the Court of District Judge, visakhapatnam. The same was decided in favour of the wakf. In the appeal being a. S. No. 55 of 1904 before the High Court judicature of Madras, the Government entered into compromise with Mokhasadars. As per the terms of the compromise, the income from the land has to be spent for upkeep of Dargah for conducting Moharram festival to the satisfaction of the Collector, visakhapatnam and a portion of the income has to be constituted into a charitable fund for charity and education of Muslims. It is further disclosed by petitioner that Wakf board filed O. S. No. 147 of 1967 on the file of subordinate Court, Visakhapatnam, claiming lands in Devada Village as the wakf properties and for cancellation of various leases/sub-leases in respect of the property and for recovery of possession. The suit was dismissed. The A. P. Wakf Board filed an appeal being A. S. No. 89 of 1976. A Division bench of this Court in A. P. Wakf Board v. S. Syed Ali Mulla allowed the appeal setting aside the judgment and decree of the trial court. Aggrieved by the said judgment, mokhasadars filed appeal before the supreme Court. By judgment in Sayyed AH v. A. P. Wakf Board the Supreme Court dismissed the appeal. Therefore, the petitioner contends that the property in devada Village and the amounts realized out of the property belong to Dargah and they cannot be utilized for the purpose of acquiring the land for parking near Haj house, in Hyderabad.

( 3 ) LEARNED counsel for the petitioner, sri Syed Shareef Ahmed, while narrating the facts as above, contends that under the provisions of the Act fourth respondent is not entitled to utilize the funds belonging to the wakf at Visakhapatnam for general purpose. He would urge that Wakf at Visakhapatnam, has not become defunct and therefore the funds cannot be diverted for other purpose. As per Section 32 (2) (e) (iii) of the Act surplus funds of a wakf can be utilized only for the purpose of wakf with similar aims and objects. He also relies on Haj Committee act, 2002 in support of the contention that the funds belonging to the wakf at visakhapatnam cannot be treated as part of state Haj Fund.

( 4 ) LEARNED Standing Counsel for A. P. Wakf Board, Sri A. M. Qureshi, submits that the Dargah at Visakhapatnam is under direct control of the A. P. Wakf Board