Mir Hyder Ali Moosavi v. TelanoanaStateWaqfBoard

petition under Article 226 of the corlstitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High court may be pleasedtoissueanapproprialewrit,orderordirection,moreparticularlyonein ihe nature of Writ of Mandamus declaring the questioning the Proceedings in F No.O2tZ1fitHvdl2o1' daled 011o7t2021 issued by the 1"' Respondent, afpointrng tfre'Sd Respondent as Mutawalli of Dargah Hazrath Abbas Alia Satam, Dievan Devdi, Hyderabad, under S{ction 42 of the Waqf Act, 1995, even though the Petitioner's term as Naib Mutaw{lli of the said waqf lnstitution expires on iShOtZOZl, and her intimations dated 2FlO5t2O21 and 211OG12021 submitted io tfre t s, Respondent, under Section 42 of lhe Waqf Act, '1995, in relation thereto along with a request to recognize the Petilioner as tvtutawalli of the said Waqf lnstiiution, are pending consiJeration, as arbitrary, illegal, unjust, violative of the prinlipt"r ot naiurat ;uitice, and contrary to lthe provisions of the Waqf Act, 1995' and the Rules made thereunder, and to consequently, set aside Proceedings in i.ioi ouztnntydt2oll dated o1to7t2o21,lbv directing the 1"' nqtP9ll9ll to consider the Petitioner's aforesaid intimatioirs dated 26/05/2021 and 2110612021 and not interfere with the discharge of her duties as Naib Mutawalli of the said Waqf lnstitution. IA NO :1 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petitiod, the High Court may be pleased to suspendtheoperationoftheProceedinBsinF.No.02lZlfilHydl2015dated 01lO7t2OZ1 issued by the 1't Respondentf nending disposal of the above Writ Petition. IA NO: 2 OF 2021 Petition under Section 151 CPC praying that in the crrcumstances stated in the affidavit filed ir support of the petition, the High Court may be pleased to receive letter in F.No.OZlZlfilHydl2O1| dated 01t07t2021 issued by the 1st Respondent along with its envelope, marked as P-11, as additional material papers and consider the same, while adjudicating the above Writ Petition. Counsel for the Petitioner: Mr. M. Karthik Pavan Kumar Counsel for the Respondent No.1 & 2: Sri Abu Akram, Standing Counsel for Wakf Board Counsel for the Re:;pondent No.3: Sri Syed Najmul Hassan Baqri W.P.No.18513 ot2021 Between: Mir Jaffar Ali Moosavi Alias Mir Abbas Ali Moosavi, S/o. Late. Syed Askar Hussain Moosav, Age: 70 years, Occ: Muthawalli, R/o. H. No.22-2 -431111A, 2'o Floor, ARP Hous,: Noor Khan Bazar, Hyderabad. ...Petitioner AND

1. The State r>f Telangana, Rep. by its Secretav, Minorities Welfare Department, fiecretariat, Hyderabad.

2. The Telangarra State Waqf Board, Rep. by its Chief Executive Officer, Haj House, Nampally, Hyderabad.

3. The lnspector Auditor Waqf, Circle No. 1, 5 & 7, Hyderabad, Telangana State Waqf Board.

4. Mir Hyder Ali Al Moosavi, S/o. Late. Mir Baquer Ali Al Moosavi, Aged about. 39 years, Ocr;. Business, R/o. H.No.22-3422111C (86), lnside Zehra Nagar, Near Mandi lt/lir Alam, Hyderabad - T.S. ... Res pondents Petition under Article 226 of the Constitution of lndia praying that in the circumstances staterd in the affidavit filed therewith, the High Court may be pleased toto issue an Order, direction or Writ more appropriately Writ of Mandamus declarirg the action of the Respondent No.2 in appointing the Respondent No. 4 e s Muthawalli under Section 42 of the Waqf Act, in respect of Bargah Hazrath Ahbas (A.S), situated at H.No. 27-7-768t8, Deewan Devdi, Hyderabad, withou: considering the objections and representations dated. 16.04.2021 and 10.,16.2021 of the Petitioner, as illegal, arbitrary and ultra vires, against the principk:s of natural justice and without jurisdiction and violative of Articles 14, 16 and :26 of Constitution of lndia and the provisions of the Waqf Act and Rules made thereunder, consequently direct the Respondent No. 2 to consider the represontations dated. 16.O4.2021 and 10.06.2021 of the Petitioner requesting to notify th-e Petitioner as Muthqwalli under Section 42 of Waqf Act in respect of the Bargah Hazrath Abbas (A.S), situated at H. No. 27-7-76818 al Deewan Devdi, Hyderabad by following dpe process of law, in the interest of justice lA NO: 1 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the proceedings of the Responderft No. 2 in appointing the Respondent No. 4 as Muthawalli under Section a2 of WpOf Act vide F. No. O2lZltf lHydl2015 dated. 01.07.202'1 issued by the Responderht No. 2, pending disposal of the main writ petition, in the interest of justice Counsel for the Petitioner: Sri M.A. Mujee! Counsel for the Respondent No.1: cP FOR MlNORlflaS Counsel for the Respondent No.2 & 3: Sri {U, At.r., Standing Counsel for Wakf Board Counsel for the Respondent No.4: Sri Sye{ Najmul Hassan Baqri W.P.No.19649 ol 2021 Between: Syeda Kaneez-e-Sakina Moosavi, D/o. La{e Mir Abul Qasim Moosavi, aged about 58 years, R/o. Dargah Hazrat Abbas ,Alia Salam, H.No.22-7-26BlB, Deevan Devdi, Hyderabad, Telangana. ...Petitioner AND

1. Telangana State Waqf Board, Razack Manzil, Haj House Building, Nampally, Hyderabad, rep. by its Chief Executive pfficer.

2. The lnspector Auditor Waqf, Circle NOs.1, 5 and 7, Telangana State Waqf Board, Haj House Building, Nampally, Hyderabad.

3. The Assistant Commissioner of Police, Telangana State Waqf Board, Razack Manzil, Haj House Building, Nampally, flyderabad

4. The State of Telangana, rep. by its Frincipal Secretary,. Home Department, Secretariat, Hyderabad.

5. The Commissioner of Police, Hyderabqd. 6. The Sub-lnspector of Police, Mir Chowk Police Station, South Zone, Mir Alam Mandi Road. Hyderabad.

7. Khaja Mohinuddin, Assistant Commiss]ioner of Police, Telangana State Waqf Boaid, Razack Manzil, Haj House Buil(ing, Nampally, Hyderabad.

8. K.V.Lakshmi Narayana, the Sub-lnspector of Police, Mir Chowk Police Station, Soutl- Zone, Mir Alam Mandi Road, Hyderabad.

9. Mir Hyder All Al Moosavi, S/o. Late Mir Bager Ali Al Moosavi, aged about 39 years, R/o. l-l.No.t2-7-268l8 (Portion), Dargah Hazrat Abbas Alia Salam, Deewan Devd i, Hyderabad, Telangana. ...Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances statod in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ o1' Mandamus declaring the highhanded action of Respondents 1 to 4 and 6 to 9 in forcibly evicting the Petitioner and her family members from the "Ladies Room" admeasuring 120 sft, in Dargah Hazralh Abbas Alia Salam, Deevan Devdi, Hyderabad, wherein the Petitioner's family members and the Petitioner have beerr residing for over 55 years, without issuing any prior notice, and the further acticn of Respondents 4 and 5 in not taking any action on the complaint dated 10 08.2021 lodged by the Petitioner's sister, Sahana Moosavi, relating the aforesaiC highhanded incident, as arbitrary, illegal, unjust, violative of the principles of natural justice, and contrary to the provisrons of the Waqf Act, 1995, and the Rrrles made thereunder, and to consequently, direct the Respondents to put the Petitioner and her family members back in possession of the said "Ladies Rr>om" and direct Respondents 4 and 5 to take appropriate action on the complaint dated 10.08.2021 lodged by the Petitioner's sister, Sahana Moosavi, re ating the aforesaid highhanded incident. lA NO: 1 OF 2021 Petition under Section 15'1 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondr-'nts to put the Petrtioner and her family members back in possession of the "Ladies Room" admeasuring 120 sft, in Dargah Hazrath Abbas Alia Salam, Deevan Devdi, Hyderabad, pending disposal of the above Writ Petition. lA NO: 2 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct Respondents 4 and 5 to take 9ppropriate action on the complaint dated 10.08.2021 lodged lty the Petitioner's sister, Sahana Moosavi, relating to their high-handed evictiorr unde(aken by Respondents 1to 4 and 6 to g froin the "Ladies Room" adnreasuring 120 sft, in Dargah Hazrath Abbas Alia Salam, Deevan Devdi, Hydr:rabad, on 10.08.2021 , pending disposal of the above Writ Petition. Counsel for the Petitioner: Mr. M. Karthik Pavan Kumar Counsel for the Respondent No.1 & 2: Sri Abu Akram, Standing Counsel for Wakf Board Counsel for the Respondents No.3 & 6: GP FOR HOME Counsel forthe Respondent No.9: Sri Syed Najmul Hassan Baqri The Court made the folldwing: COMMON ORDER HONOURABLE SRI JUSTICE B. VIJAYSE\ REDDY C .R.P. Nos.l394 & 1392 OR 2022 AND VV.P. Nos.l5769 18513 & 19649 0F 2021 COMMON OI1DER: l. All r hese matters arise out of the disputes relating to the Wakf Institution viz., Bargah-c-LIazrath-e-Abbas (AS ), Deevan Devdi, Hyderabad (heleinafter referred to as 'Wakf Institution'), in connection with appointment of Muiawalli to the Wakf Instirution and other common issuel;, as su.ch, they' are being disposed ol by this common order.

2.1. Bo'.h Cl.t{.P. Nos.l394 and 1392 of 2022 are fited by Mir Hyder Aii Nloosavi challenging the courmon judgment dated

03.12.2021 in O.A. Nos.34 and 219 of 20ll passerl bv the leamed Telangana Stirte Wakf Tribunal, Hyderabad (for short 'Wakf Tribunal'). Th: said O.As. were flled under Section E.3(2) of the Wakf Act I 995 (f,rr short ' Walif Act') challenging the order in F.No.O2lZllTltfyDl 2015 dated 0l .07.2011 passed by respondent No.1 - the Tel,rngana State Wakf Board, Hyderabad (tbr short 'Wakf Board'), rvhereb-v he (respondent No.2 - Mir Hyder r\li Moosavi) was 2 BVTU CRf No lJ92 or1022 & Br(ch appointed as Mutawalli of the Wakf Institution under Section 42 of the Wakf Act, only for specific period i.e.o from 01.07.2021 to30.06.2022.

2.2. W.P. No. 15769 of 202 I is filed by Syeda Kaneez-e-Sakina Moosavi challenging the very proceedings i.e., Memo in F.No.j2/Zl lT lHYDl20 | 5 dated 0 I .07.t202 I .

2.3. W.P. No. 185 13 ol 2021 is filed by Mir Jaffar Ali Moosavi Alias Mir Abbas Ali Moosavi challqnging the action of respondent No.2 - Wakf Board in appointing respondent No.4 - Mir Hyder Ali Al Moosavi as Mutawalli of the Wakf Inbtitution without considering his objections and representations dated 16.04.2021 and, 10.06.2021 as violative of Articles 14 and 2l ol the Constitution of India and provisions of the Wakf Act.

2.4. W.P. No. 19649 of 2021 is tiled by Syeda Kaneez-e-Sakina Moosavi challenging the highhanded action of respondent Nos.l to 4 and 6 to 9 in evicting her and her fartrily members from the 'Ladies Room' admeasuring 120 square leet ip the Wakf Institution, wherein she along with her family mernbers has been residing for over fifty-five (55) years, without issuing lany prior notice, and also the inaction of respondent Nos.4 and 7brr the complaint dated 10.08.2021 3 BVRJ CRf \o.ll9l of2011& BIch lodged by her sister Sahana Moosavi, as arbitrary. illegal, unjust, violative of principles of natural justice and contrary to the provisions of the Wakf Act and the Rules made thereun<ler; and tbr a consequential direction to the respondents to put the petitioner and her family members back in possession of the 'Ladies Room' and direct respondent Nos.4 and 5 to take appropriate action on the complaint dated 10.08.20:l l. C.R.P. Nos.l3\t4 & 1392 of 2022 :

3. For convenience sake, the parties hereirr are hereinafter referred to as tf cy are arrayed before the Wakf Tribun.rl 4 As '.he main dispute centres around the appointment of Mutawalliship to the Wakf Institution which is the ;ubject matter in O.A. No.34 ol 2021 before the Wakf Tribunal, the tircts therein are referred to whir:h are as under:

5.1. O.A. No.34 of 2021 was filed by the applicant - Syed Hadi AIi Moosavi aggrieved by the order of the Wakf Board in F.No.02lZllTI1YD20L5 dated 01.07.2021 whereby respondent No.2 (Mir Hyder A,i Moosavi) was appointed as Mutaualli to the Wakf Institution I I I I { BVRJ CRP \o-1192 or ro22 & Otr(r O.A. No.49 of 2021 was also filed hy [he same applicant - Syed Hadi Ali Moosavi aggrieved by the procepdings of the Wakf Board in F.No.02/ZllTl HYDl2Ol5 dated 0l .O7i2o2l whereby he was rejected for the post of Mutawalli to the Wak l' Iqsrirur ion.

5.2. As per the Muntaqab dated [9.04.2002 in Fitc No.Hl/61/93, the Wakf Institution is in an exfent of t34ul square yards. This Wakf Institution was founded by I lazrath Sycd Noor-ul-Huda Saheb Qibla about 450 years back. Syied Noor-ul-Huda Saheb eibla also dedicated other properties lor rEligious and pious purposes. l This Wakf Institution was founded with an intention to standardise the sacred relics in the form of alarns tor the pur.pose of mouming in continuous commemoration of grief fbr flarlyrs of'Karbala. In view of the same, one such alam was also installecl on every Thursday and laid to rest on Friday apart from annua,l muhan.arn alams erection, processions and laying to rest. Hzt. SyCd Noor-ul-Huda Saheb eibta died issueless survived by his brother Ffazr.ath Mir I\,leeran Sab eibla who continued and managed the Wakl lprstitution. He r.l,as succeeded by a male child in every generat.ion tbr n4rt six generations. 5 (jRP \o.r]91orl0:l & BIth

5.3. The:cafter, in the seventh generation' successor Ha'nath Syed Sardarul t lussaini had two sons viz', (1) Hakeerr' Mir Daw'ar Ali and (2) Syed Noorul t'luda Sani and also two daughters Both the sons jointty succeedt'd their fathel and jointly performed the duties of the wakf Institutiorr without any interference of their sisters' The younger brother Syed Nror-ul-Huda Sani,, who has no issues' pre-deceased his brother HakeenL Mir Dawar Ali' Thus the succession devolves only on Mir Dawar Al till his death on ll'06'1969' Mir Dawar Ali was survived by tvro sons and three daughters viz., Mir Abdul Qasim Moosavi, Syec Askari Hussain Moosavi, Hussaini Begum' Zainab Begum and Zalra Begum.

5.4.Itr^rascontendedthatofficeofMutawallishipoftheWakf Institution was only amongst the male members of the famil-v as the religious ceremonies, such as installation of alams' taking out processions, rt sting of alams, reciting of verses and Nauhas' oft-ering Fateha and many other ceremonies of the Wakf Institution' hat'e to be perfonr-red by male members only and the female tnembers cannot perform the sante. 6 ( RP r.'o.lrez of2022 & B,r.h

5.5. The disputes arose amonglthe male mernbers. '['wo sons of Mir Dawar Ali Moosavi filed suits in O.S. No.l50 of 1972 and 152 of 1973 on the file of the leamed Junigr Civil Judge, City Civil Court, Hyderabad, seeking injunction againqt each otht'r. After a long time, the dispute was decided in f'avgul of the applicant's father. Challenging the same, two appeals tere preferred and the same were disposed of by the common judgmenf permitting the appellants to the Mutawalliship on rotation basis every year; the corrrnon.judgment was challenged by both sides in the secon{ appeals i.e.. S.A. Nos. t 16, 117, 127 and 153 of 1983 wherein this Cqurt passed a common judgment dated 04.10.1983.

5.6. It is submitted that the fatlrer of thc applicant Syed Askari Hussain Moosavi, died on Oz.lz.tg|g, who uas dccl:ued as Joint Mutawalli by.this Court in the second pppeals Mir Baqar Ali Moosavi being the son of one of the Joint Mutawallis. applied lor recognition of Mutawalliship in the place of his fathgr by filing representations dated

24.07 .1993 and 1 1.01 . 1993, however, ps the same were uot considered, he lrled W.P. No.3391 of 1994 and pending the same, the applicant along with other brothers rendering services of alarnbardari etc. Consequent to issuance of notlficaticlns in Gazetle, I.A. No. l0l2 of 7 AI'RJ CRP i\io-1.,91 or2011 & Btr.h 200I in O.S. No.80 ol 1994 was filed seeking amendment of plaint by questioning the gazette notification and appointment of Syed Taqiya Moosavi as NIutawallia. 1'he said application was allowed on

04.09.2001. ('l.raltenging the same, C.R.P. No.3l6l of 2003 was prefered and the same was dismissed by this Court on 26.10.2005 granting libertl to the petitioner in C.R.P. to work out the remedies available under the Wakf Act. However, owing to ill heatth, Mr. Baqar Ali Moosavi cc,uld not follow the C.R.P. and the orders therein in his favour or broul3ht the same be lore the trial Court, and ultimately the Originat Suit u'as disrnissed for default on 27.02.2006. However, on coming to kno'v about the same, he filed O.A. No.19 of 2010 belore the Wakf 'fribr- nal challenging appointment of Taqia Moosavi and for other reliefs. I'cnding O.A., Baqar Ali Moosavi died in 201 1.

5.7. It js submitted that the Wakf Board by the proceedings dated I 5.01 . I 9'94 has taken the Wakf Institution under its direct management b r appointing an Enquiry Officer to conduct enquiry by issuing proceerlings dated 05.05.2000. However, the enquiry oflicer did not conduc. enquiry in a fair manner; contrary to the record and by misinterpretation of Shia Lau' and contrary to various other provisions of the Wakf Act, the enquiry ofhcer filed his report in favour of the 8 BVRJ Cf{P lo.lJ9l orl0ll & Brlch daughter of Mir Abdul Qasim Moogavi viz., Syeda Taqiya Moosavi and she was appointed as Mutawalfia vide proceedings No.25lll4l LIYD196 dated 11.08.2000. The enqi-riry officer ignored thc lact that the custom in respect of the Wakf Institution is that only rnale members are entitled to be appointed]as Mutawalli. Hussaini Begum, daughter of Mir Dawar Ali Moosavil, was impleaded in the appeals, but her claim was rejected by the leamed Assistant Judge and also by the leamed Chief Judge, City Civil Clourt in A.S. Nos.365 and 382 ol

1981. Hence, the applicant and his brother Mir Akbar AIi Moosavi jointly filed O.A. No.10 of 2016 before the Wakf Tribunal secking to suspend operation of the proceedings dated 11.08.2000 appointing Syeda Taqiya Moosavi as Mutawallia and to direct the Wakl Board to take the Wakf Institution under its di{ect management. T'he appeal is pending for adj udication.

5.8. It is submitted that Mutaw{llia Syeda Taqiya Moosavi died onO9.O4.2O2l and the applicant has hfled application dated 15.04.2021 seeking to appoint him as Mutawalli of the Wakf Institution. The Wakf Board without conducting enquiry, without following due process of law, in violation of the plrovisions of the Wakf Act and without giving opportunity of being heard, passed the order dated 9 BVRJ cRf i\o-1392 orr0l2 & B{.h ol.o7.2o2|appointingMirHyderAliMoosaviasl\4utawalliofthe Wakf Institution by rejecting the request of the applicant'

5.9. It is submitted that (1) The Wakf Board has not followed the procedure as laid dowtr under Sections 42 and 63 and other provisions of the WaklAct. (2) The Wakf Board <Iid not look into the father of the applicant Syec Askari Hussain Moosavi who was the Joint Mutawalli and t hc appticant is the alambardar of the \\'akf Tnstitution' (3 ) Resgrondent No.2 faited to prove his succession to the Mut'rrvalliship. (4) The applicant is son of one of the Joint Mtrtawallis, as such, hc is entitted to be appointed as Mutawalli to the Wakf Institution

6.1. Re;pondent No.2 filed counter affidavit in O'A' No'34 of 2021 contendi ,rg that the applicant along with his brothers and sisters executed the'Affidavit of No Objection dated 14'01'1990' in respect ol'l'owliath (N,lutawalliship) in favour of his father late Mir Baqer Ali I l0 CRI No Irr2 or1022 & U2rh Al Moosavi. Thus, the applicant gave up his rights to claim Mutawalliship in respect of the Wakf Institution, as such, thc original application is not maintainable. It is submitted that his great grandfather viz., late Hakeem Mir pawar Ali, during his lifetime, prescribed the line of succession by executing the Will Deed dated

19.06. 1953 which was subject matter of the legal proceedings filed by his grandfather viz., late Syed Askaril Hussain Al Moosavi against his brother late Mir Abul Qasim in O.S. Nos.250 of 1972 and 152 of 1973 on the file of the leamed IX Asslstant Judge, City Civil Court, Hyderabad, in A.S. Nos.365 of 1981 and 382 of 1981 or.r the file of rhe learned Chief Judge, City Civi Court. Hyderabad, and in I S.A. Nos. 1 16, ll7, 127 and 153 of 19 3 of this Court. E

6.2. Late Syed Askari Hussqin A1 Moosavi, grandfhther of respondent No.2 was .joint Mutarvalli and executed documents styled as 'Nomination of Tauliath dated 29.08. 1989' in favour of the fathel ol respondent No.2 Mir Baqer Ali Al Mopsavi Bargahi

6.3. The civil dispute betweerp the late Mir Abul Qasim and grandfather of respondent No.2 late Syed Askari Hussain AI Moosavi with regard to the claim of Mutau,allilship rvas endecl by the common 1l BVRI CRP No-1.]e2 or2012 & Bd.h judgment dated 04.10. 1983 rvherein both Mir Abul Qasim and grandfather ol respondent No.2 were appointed as .loint Mutawallis, one among th rm to tunction every altemative year. The implead application filccl by late Hussaini Begum to get herself impleaded as defendant No..l in both the suits claiming herself to be the rightful Mutawallia of '.he Wakf Institution was rejected. Thus, the question of female urembel holding the off-rce of Mutawalli does ttot arise

6.4. l'he grandt-ather of respondent No.2 expired on02.12.1989 and during his Iifetirne, he has nominated and appointed the late father of respondent No.2 as Mutawalli of the Wakf Institution and he continued as M ularvalli. Other family members including brothers and sisters of the llithel of respondent No.2 recognised him as Mutawalli. They have executed the aff-rdavit dated 14.01.1990 fumishing 'No Objection in respect of Towliathship of the Wrrkf Institution in favour of resl;ondent No.2 and he had been in continuous and uninterrupted tr4utawalli of the Wakf Institution

7. Heard Mr. P. Gangaiah Naidu, learned senior counsel, appearing for Mr. Shafath Ahmed Khan, leamed counsel for respondent No 2 (revision petitioner in both the C.R.Ps.); Mr. Vedula t i \ L2 Srinivas, leamed senior counsel, appearing for Mrs. Vedula Chitralekha, leamed counsel for the applicant (respondent No.I in both C.R.Ps.); Mr. Farhan Azam Khan, lgarned Standing Counsel fbr the Telangana State Wakf Board; and ['4s. Nafisa, learned counsel for respondent No.3 (implead petitioner) in both the revision petitions; and perused the material on record.

8. Mr. P. Gangaiah Naidu, learhed senior counsel appearing for the respondent No.2 (revision petitif,ner), submitted that the Wakf Tribunal has exceeded its jurisdictiof in passing the impugned order. The Wakf Board conducted enquxry and appointed Mutawalli. The power to appoint Mutawalli is in the exclusive domain of the Wakf Board in terms of Section 3(f1 and 32(g) of the Wakf Act The appointment was not under $ection 63 of the Wakf Act. The Wakf Tribunal cannot decide tlie tenure of Mutawalliship and transgress the power of the Wakf Board. Under Section 42 of the Wakf Act, change of the office of lvfutawalli has to be notified and appointment of respondent No.2 (rerlision petitioner) was strictly in accordance with the Wakf Act. Thus t[re impugned order is liable to be set aside. l3 BVSJ CRP \o.ll92 of 1011 & B.kh g. Mr. Irarhan Azam Khan, Ieamed standing counsel for the wakf Board, subn.ritted that the wakl Tribunal has usurped the power oftheWakfBoard.Onlyifthereisprimafacieillegality,theWakf Tribunal can interfere with the order or decision of r.hc wakf Board. There is no dispute herein about violation of principles of natural justice. The Wakf Board has power to appoint Mutarvalli on the basis of Wakf Nama or in accordance with the provisions of the Wakf Act' The appointmert of a Mutawalli is purely the discrelion of the Wakf Board as per Siection 63 of the Wakf Act. Female family member cannot be appcinted as a Mutarvallia as a matter of right' The Wakf Board has discr.etion and the wakf Tribunal cannot step into the shoes of the Wakf Board and the order of the Wakf Tribunal is not only contrary to the provisions of the Wakf Act but also A'rticles 9(6) and 25(2) of the Constitution of India.

10. Mr. Vedula Srinivas, learned senior counsel appearing for the applicant (resyrondent No.1), in both the civil revision petitions, subrrritted that findings in S.A. Nos-li6, 117,127 and 153 of 1983 have attained linality. Respondent No.2 (revision petitioner) has not cited any provision to show that the findings given in the earlier round of litigation by a Civil Couft or High Court will be wiped out by virtue t4 g!RJ CRP l\o.lJgr ol2012& 8u.h of provisions of the Wakf Act. The jpdgrnent of this Court in Second Appeal continrtes to operate. Merely, becausc there is change in the Wakf Act, the judgment in the secpnd appeals cannot be ignored. The Wakf Tribunal has merely given etlect to the binding decision of the High Court in the second appeals. Thus, the revisions are liable to be dismissed

11. Ms. Nafisa, leamed counsql appearing for respondent No.3 (implead petitioner), subrnitted tha,t the female family mernber continued as Mutawallia for 2l (tr.r,1enty one) years. There is no embargo for women to be appointed ds Mutawallia. A person who is not a party to the original application pan prefer appeal or file implead application. Wakf 'I'ribunal's order i$ in favour of the applicant, and thus she has locus standi to support the order of the Wakf Tribunal. The application of respondent No.3 fbf appointment of Mutawallia was not considered by the Wakf Board anp the Wakf Tribunal has rightly interfered with the decision of the S,fakf Baord to give effect to the judgments in Exs.P-5 to P-7. Sectipn 63 of the Wakf Act is not attracted in the instant case lI B!'RJ CRP \o.lJ9r ot2o:l * B,ith CONSIDERAI'IoNo F TTIE COURT:

12. Bascd on the pleadings of the parties, the Wakf Tribunal framed the lollc wing issues " l . Whr:ther the irnpugned prooecdings dt' t -'i-202 I is liable to be set aside? 2 Whether the irnpugned memo dt.l-7-2021 is liable to be set l. side? and

3. To ruhat relielJ''

13. The Wakf Tribunal has set out the manner in which the Wakf Institution was estabtished and notified, and also the genealogical tr,:e of the farnily of the Mutawalli' The litigation arising out of the suit in O.S. Nos.250 of 1972 and 152 of 1973 which culminated in t:ommon judgment in S.A. Nos' 1 16, ll7 , 127 and 153 of 1983 was also discussed by the Wakf Tribunal'

14. In paragraph No.28 of the order of the \\'akf Tribunal' the following observations ol this Court in Exs'P-5 to P-7 are extracted: "l) That it is be and hereby declared that the plaintilT and the l't c'ef'endant are the.!oint Mutawallis of thc suit Dargah; l6 B!RI CRI No,l91or2021& B2r(h 2) That Sri Mir Abdul Qasim shall hold the post of Mutawalli lor the suit Dargah rluring the tlijri year 1404 and thereafter in cach altemate even l{ijri year during his lilc time: 3) That Syed Askari Hussain qhail lunction as Mutawalli during the Hijri year 1405 and thereafier in alternate odd t{ijri year during his litb time; 4) That the olfice ol the Mutrirvalli shalt devolve on the l survivor of them lor the rest of hls tifc timc: 5) That the said Syed Askari llussain u'ill be restrained by an injunction lrom interf'ering With the Dargah during the even Hijri years in which sai$ Mir Abdul Qasim shall function as Mutawalli: 6) That the said Mir Abdut Qas rn is likcrvisc restrained bv an iniunction lrom interl'cring r.i, ith the Dargah during the odd Hijri 1'ears in rvhiclr the said Syed Asklri Hussain lunctiorrs as Mularr alli: 7) fhat the parties, in the cirpumstances, do bear their respective costs throughout: 8) T'hat this decree will bc subjeft to anl final orders rvhich may be passed by the Waq{'Bqard concerning the proper management of the l)argah by c[ther the plaintiff or the l't det-endant:" I I -+ t7 (-RP \o lJ92 oll02t & Brr.h

15. While aclverling to the contention raised by the applicant (respondent Nc. I in the revision) that respondent No'2 (revision petitioner) was appointed as Mutawalli without conducting enquiry' theWakfTribrrnalheldthatthelnspector,Auditor.WakfCircle' enquired with all the appticants and submitted his report dated |6.06.202|ryhichwasplacedbeforetheBoardinitsrneetingheldon 2l .06.2021 anc the Board passed the Resolution dated 0l'09'2021 unanimously. .|.hus, the Wakf Tribunal hetd that the pl oceedings under challenge before it to the extent of conducting enquirv by the Auditor Inspector and passing resolution by the Wakf Board are correct' However, so far as tegality of the impugned oroceedings are concemed, the leamed Wakf Tribunat held thal appointment of respondent No.z (revision petitioner) as Mutawalli uncler the impugned proceedings unler Section 42 of the Wakf Act is not lergal'

16. The Wakf Tribunal ret'erred to the judgment of the erstwhile High Court oi Andhra Pradesh in A.P. State Waqf Board v' Mir Qamar Hasani Razvir and an unrepofied decision in lbrahim Bin Abdullah v. .{,.P. State Waqf Board2, wherein it was held that appointment o[ Mutawalli under Section 42 of the Wakl Act is not ' zorz 1:; e.Lt uet I w.A. No.2 ll oa20 l.l dated 04.0i2QJ.4 IE I]VRJ cRP \o.rlrr orr0rr & arrh ,,#' permissible. The Wakf Tribunal alsq referred to the decisions of the erstwhile High Court of Andhra Pradelsh in W.A. No.539 of i996 dated

04.04.2000 and W.P. No.5757 of I 94 dated 04.04.2000 wherein it 1 was observed that as per the provisiong of Section 63 read with Section 65 of the Wakf Act, if the Mutarvatti qf a vvakf institution dies, it is for the Wakf Board to decide and give appropriate declaration or pass appropriate orders in accordance lvith tarv with respect to the Mutawalliship of the institution

17. ln paragraph No.3T of thei irnpugned order, by relying on Ex.P-7, judgment of the erstwhile High Court of Andhra Pradesh in Second Appeat Nos.l 16, ll7, I2l and 153 of l98l dated 04.10.1983, it was held as under: The substance of ilx.P5 to Ex.P7 is that Syed Askari Hussain Moosavi rvas to {unction as Mutawalli for a particular l{ijri year and then his eldcr brother Syed Qasim Moosavi was to perlorm as Mutayralli of thc subiect Dargah for aparticular tlijri year. 'fhis i(dication equallv applics to the progeny ol'these two brothjrs. The daughter of Mir Qasim Moosavi worked as N{utau atlia and she died recently. Naturally norv thc turn cornes to any of the eligible children ol Askari Moosqvi. fhe applicant is junior paternal unclc uf rcspondcnt No.2." l9 aRP \o 1.192 or1011& B,r.h

18. While dealing with the argument of the leamed counsel for respondent I..16.? (revision petitioner) that mere mentioning of Section 42 of the Wak' Act in the impugned proceedings and not mentioning ol Section 63 c,f the Wakf Act is not material, the Wakf Tribunal held that under Ser:tion 42 ol the Wakf Act, changes are onlv to be intimated to thr: Wakf Board about the Mutawalli of a Wakf lnstitution. Further, if any Mutawalli is appointed under Sectiorr 63 of the Wakf Act. it is for a specific period. When there is a dispr.rte under Section 63 of the Wakl Act, Mutawalli can be appointed. Once Mutawalli is appointed trnde,r Section 42 of the Wakf Act, he may continue forever unlcss there art: restrictions imposed under the Wakf .'\ct; ultimately, it was held that Flurpose of these two provisions i.e., Sections 42 and 63 of the Wakf Ac t is diametrically opposite to each other

19. In paragraph No.44 of the impugned order', it was held that though the prccedure followed by the Wakf Board in appointing respondent No.2 (revision petitioner) as Mutawalli of the Wakf Institution to the extent of conducting enquiry etc., are as per law, since the provision of law is not correctly mentioned which alfects the applicant (resprndent No.1), the impugned proceedings are liable to be set aside; ulr.imately, the-Wakf Tribunal directed to set side the i 20 BVRJ (RP No.l39l of1011& 0rr.h impugned memo and directed the lWakf Board to issue modified proceedings mentioning the correct pfovision of law as Section 63 of the Wakf Act restricting the period with eflect |rom 01.07.2021 to

30.06.2022. Accordingly, O.A. No.3fl of 2021 was allowed directing as under: l'46. In the result, the Originalr Application No.341202 [ is allowed in part. 'l'he inlrpugned proceedings in F.No.0liZ1lT/HYDl2Ols, dt 0l-07-l0ll is set aside. Respondent No. 1 is directed to |ssue modified proceedings appointing respondent No-l as Muttawalli rrf the subject Dargah for a period of one year w.e.L 0l-07-2021 to 30-6- 2022. Thereafter respondent No.l shall appoint the nexl Muttawalli ol the subject Dargdh a lter due enquirl' fiorn among the progeny of Syed Ab(ul Qasirn and S1,ed Askari I'Iussain including the applicant. unless he is convicted and sentenced to any oflfence, and ofhers who arc cligiblc and willing, as far as possiblc fixinglhe pcriod of one vear and giving opportunitl' to rhe daughtors ol Sl cd Qasim Moosavi and Syed Askari Hussain ult".nJt"ly. espccially keeping in view the guidelines mentiorled in Ex.A5 to n7, colnmon judgment in S.A. No.l16. 117, l.l1 and 153/1981, dt.04-10- 1983 and also common order in W.A. No.539/96 and W.P.No.5757 I 94 and thc Act." 2t B\'RJ CRr \o.lJ91of20rl A Bir.h

20. It is relevant to note that none of the leamed senior counsel appearing fbr respondent No'2 (revision petitioner) or the applicant or rt:spondent No'3 or the Wakf Board attacked the findings recorded by the Wakf Tribunal to the extent of enquiry conducted by t re Auditor Inspector which cutminated in the Wakf Board rneetinE; held on 2l'06'2021 and its Resolution dated 0l.09.202t. the only objection of respondent \o'2 (revision petitioner) that the corrmon order passed by the Wakl Tribunal to the extent of holtling his appointment as Mutawalti of the Wakf lnstitution unt,er Scction 42 of the Wakf Act is not legal' is erroneous. lt is contended that Sectio n 42 of thr': Wakf Act is applicableaSthereisnodisputefortheclaimofl\4utawatliShip. Therefore, Se,:tion 42 of the Wakf Act is applicable and not Section 63 olthe Act. Fufther, the Wakf Tribunal does not have any jurisdictiorr to nrodily the proceeclings of the Wakf Board dated

01.07.2021 b.v appointing respondent No'2 as Mutdrvalli with effect from 01.07.20 I I to 30.06.2022. I 22 BYRJ ( RP \o ll92ot20113 Bakll

21.1 The leamed standing cor.fnsel for the Wakf Board relied on the following decisions: l Dadi Jagannadham v. Jammlulu Ramulul

2. Faqruddin v. Tajuddina

3. V.K. Ashokan v. Assistant Etcise Commissioner'

4. State of Tamilnadu v. IC Shyarn Sunder6

5. S V Cheriyakoya Thangal v. S VP PookoyaT

21.2. In Dadi Jagannadhamls case (Supra 3), the Hon'ble Supreme Court held as under: "13. We have considercd the subn-rissions made by thc parties. The settled principlcs Ol'interpretation are that the court must proceed on the assqmption that thc lcsislaturc did not make a mistake and that it did u,hirt il intcndcd to do. The court lnust, as far as pqssible. adopl a construction which will carry out the obviousl intention ol'1he lcgislature. Undoubtedly if there is a def'eot Or an ornission in the words used by the legislature, the courf uould not go to its aid to correct or make up the deficiencfi. ]'he courl could not add words to a statute or read wtrrds into it u,hioh are not therc. especially when the literal rcading produces an intelligible result. The court cannot aid thc lcgislalurc's dcleclive t (zoot) z scc z t ' (zooa) t scc t2 'lzoosy t+ scc 8s 1zo r r.1 t scc z:z ' 2o)4 Larv Suit (SC) I 156 n 23 BVTTJ CRP i\o.r39r o4202! a B,th phrasing of an Act, or add and mend, and, by construction, make up deflciencies which are there.

21.3. In Faqruddin's case (Supra 4), the Hon'ble Supreme Court held as urtdcr: "36. It is bcyond any doubt or dispute that a mulawalli ts the tcmroral head. He is thc manager oi the prlrperty ...

51. A .tLrrisdictionaI lact rvould not attract the principles of cstoppel as there can be no estoppel against the statutc.

57. I'lre tlucstion came up lor consideration in Gnanasambanda Pundara Sunnadhi v.l'elu Pandararz [(1899-1900) ).7 lA 69 : ILR ( l8')9) 2l Mad 271I rvherein the Judicial ('ommittee held as rrr.rr,icr: (lA p.77). "t hcir l.ordships are of opinion that there is no dis iinction betr,, ocn the office and the propelty ol the cnrlou'ment."

21.4. tn V.K. Ashokan's case (Supra 5), the Hon'ble Supreme Court held as un rlcr "3(,. The very lact that the Statc in exercise of its rule-rna king porver amended the Rule in terms whereof the orilrinal clause (b) rvas deleted is a clear pointer to 21 CRf \o.l19! of 2o:l & Artctr show that a conscious stcp was taken not to take recourse of forf'citure ol deposit in a case whcrc licencc is cancelled in terms ol' Rule 6(30). The principles contained in I{eydon's rulc shafll squarely bc attracted in this case.

37. It is a settled principle of interpretation ol'statutc that when an amendment is madc to an Act. or rvhcn a new enactment is madc, Heydon's rule is olten utilised in intcrpreting the same. [See Philips Medical Syslems (CLeveland) Inc. v. Indian MRI: Diagnostic ttnd Reseorch trd [(]008) l0 SCC 227 : 10081 3 S('( (Cri) 764 : (2008) ll Scale lll For the lr.pos" of construction of Rutc 6(30), as it stands nou', the Court is entitled to look to the legislative history for the purpose of finding out as to whether the mischiel pridr to such amcndmcnt is sought to be rcctified or not. Applying Heydon's rule' u'e havc no other option but to hold that such rvas the intention on the part of the ruleirnaking authoritl"'

21.5. In K. Shyam Sunder's case (Supra 6), thc Hon'ble Supleme Court by referring to the decision in '4' Maniula Bhashini v. A.P. Women's Co-operative Finance Corporation