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1973 Supreme(AP) 108
Andhra Pradesh High Court
Judges : A.GOPAL RAO, A.R.LAKSHAMANAN
A.P.Wakf Board - Appellant
Versus
Mohd.Hidyathulla - Respondent
Decided On : 08-07-73
The Wakf Board cannot appoint a managing committee to manage wakf property when a Mutwalli is duly appointed. The Board can only constitute a supervisory committee under Section 16 of the Wakf Act, 1954. The Board cannot direct the Mutwalli to hand over records to the committee or the Board without following due process under Sections 43 and 43-A of the Act.
Headnote:
WAKF - MUTWALLI - APPOINTMENT - POWER OF WAKF BOARD - SECTION 42 OF THE WAKF ACT, 1954 - INTERPRETATION - BOARD CAN APPOINT MUTWALLI ONLY WHEN THERE IS VACANCY OR DISPUTE - BOARD CANNOT APPOINT MANAGING COMMITTEE TO MANAGE WAKF PROPERTY WHEN MUTWALLI IS APPOINTED - SECTION 16 OF THE ACT - BOARD CAN CONSTITUTE SUPERVISORY COMMITTEE - SECTION 43 AND 43-A OF THE ACT - BOARD CAN ASSUME DIRECT MANAGEMENT OR REMOVE MUTWALLI IN CERTAIN CIRCUMSTANCES - BOARD CANNOT DIRECT MUTWALLI TO HAND OVER RECORDS TO COMMITTEE OR BOARD WITHOUT FOLLOWING DUE PROCESS.
Fact of the Case:
Petitioner, the son of the previous Mutwalli, was recognized as the new Mutwalli by the Wakf Board. However, the Board continued the managing committee appointed by the previous Mutwalli, leading to a dispute over the management of the wakf property. The petitioner filed a writ petition challenging the Board's decision and seeking the return of records and properties.
Finding of the Court:
The court held that the managing committee could not continue to function after the appointment of the petitioner as Mutwalli. The Board's order continuing the committee was without jurisdiction and ineffective. The Board could not direct the Mutwalli to hand over records to the committee or the Board without following due process under Sections 43 and 43-A of the Wakf Act.
Issues: 1. Whether the managing committee constituted by the previous Mutwalli could continue to function after the appointment of the petitioner as Mutwalli. 2. Whether the Wakf Board could direct the Mutwalli to hand over records to the committee or the Board without following due process.
Ratio Decidendi: 1. The court interpreted Section 42 of the Wakf Act, 1954, and held that the Board could appoint a Mutwalli only when there was a vacancy or a dispute regarding the right to act as Mutwalli. In the present case, the petitioner was duly appointed as Mutwalli, and there was no vacancy or dispute. Therefore, the Board could not appoint a managing committee to manage the wakf property. 2. The court also interpreted Sections 16, 43, and 43-A of the Act and held that the Board could constitute a supervisory committee under Section 16 but could not direct the Mutwalli to hand over records to the committee or the Board without assuming direct management of the wakf or removing the Mutwalli under Sections 43 and 43-A.
Final Decision: The court allowed the writ petition, quashed the Board's order directing the Mutwalli to hand over records, and directed the Board to hand over the entire property belonging to the wakf to the Mutwalli.
( 1 ) THIS appeal is from the judgment of our learned brother A. D. V. Reddy, J. given in W. P. No. 4138 of 1971 on 15-9-1972 whereby the learned Judge allowed the writ petition holding that the petitioner has a right to act as Mutwalli and properties taken possession from him including account books etc, should therefore be returned to him to enable him to manage the properties as the Mutwalli.
( 2 ) THE facts in outline are that the petitioner contends that a wakf was created through a deed of wakf executed by the father of the petitioner in 1350 fasli. A muntaquab was accordingly prepared, the father was the wakf Mutwalli himself. He looked after the wakf property for over 27 years.
( 3 ) IN 1962 the father of the petitioner with the assistance of the wakf Board constituted a managing committee to assist him in looking after the affairs of the wakf property. On 21-8-1966, the father of the petitioner, who was the Mutwalli filed an application that the petitioner should be appointed as Mutwalli as the father had become very old and was not capable of managing the wakf property. The wakf Board recognised the petitioner as the Mutwalli by its letter dated 17-3-1967. The petitioner therefore claims that he has been managing the Wakf since he was appointed as Mutwalli.
( 4 ) THE petitioner wanted the managing committee to hand over the records and papers of the mosque properties. The petitioner dissolved the managing committee and asked it to return the record. He also asked the Board to direct the Secretary of the Committee to hand over the record to the petitioner. Instead of directing the managing committee to hand over the records to the petitioner, the Board through its letter dated 27-5-1968 cancelled the petitioners letter dissolving the committee and gave extension to the committee until further orders.
( 5 ) THE petitioner therefore filed W. P. 1886 of 1968 for quashing the said letter of 27-3-1968 and an interim order was passed on 14--6-1968. The writ petition, however, was subsequently withdrawn.
( 6 ) THE wakf Board by its letter dated 10-12-1968 directed the Secretary to the Managing Committee to comply with certain things. The wakf Board again issued another letter on 16-10-1971 asking the petitioner to immediately hand over charge of the articles to the Managing Committee headed by Sri Abdul Hameed Khan. It is to question the validity of this letter and to quash it that the present writ petition out of which this appeal arises was filed.
( 7 ) THE petition was resisted by the wakf Board. The learned Judge held, as stated earlier, that the Mutwalli is competent to manage the property and therefore he is entitled to have the record and accordingly allow the writ petition.
( 8 ) IN this writ appeal, the self-name question were argued before us. In order to effectively answer those questions, it is necessary to refer to a few provisions of the Wakf Act of 1954.
( 9 ) THE term "mutwalli" is defined in Section 3 (f) of the Act. According to that definition. it means "any person appointed either verbally or under any deed of instrument by which a wakf has been created or by a competent authority to be the mutwalli of a wakf and includes naib-mutwalli khadim,mujawar, sajjadanishin, amin or other person appointed by a mutwalli to perform the duties of a mutwalli and, save as otherwise provided in the Act, any person or committee for the time being managing or administering any wakf property as such. "
( 10 ) WE need no go into the question as to whether this definition recognises the committee which existed on the day when the Act came into force and it would be proper for the person to appoint a committee consisting of several persons as mutwalli because it is not necessary for the disposal of this case.
( 11 ) SECTION 15 of the Act lays down the function of the wakf Board. According to clauses (c) and (d) of sub-section (2) of that section, the Board can give directions for the administration of w
