Shagulam Nakshband Hafeez Pasha vs. The State Of Andhra Pradesh

HIGH COURT OF ANDHRA PRADESH

MAIN CASE No:W.P.No.20296 of 2021

PROCEEDING SHEET

According to the learned counsel for the petitioner, he is the hereditary Sajjadanashincum-Mutawalli of A.S.Peta Dargah situated at A.S.Pet, SPSR Nellore District. Obviously, on a complaint lodged by the respondents 4 to 7, the Chief Executive Officer, A.P.State Waqf Boardsecond respondent herein issued the impugned proceedings. By way of the impugned proceedings, second respondent herein asked the District Minorities Welfare Officer and Additional District Waqf Officer-third respondent herein to conduct spot inspection and to cause enquiry on the complaint of the unofficial respondents herein and to send a report for taking necessary action.

Learned Senior Counsel, Sri M.V.Suresh Kumar, representing Sri Aravala Sreenivasa Rao, learned counsel for the petitioner on record, submits that the impugned action is contrary to Section 33 of the Waqf Act, 1995 (for brevity, 'the Act') and that, in the facts and circumstances of the case, second respondent herein grossly erred in pressing into service the provisions of Section 33 of the Act. In elaboration, it is further contended by the learned Senior Counsel that, in order to initiate action, under Section 33 of the Act, two contingencies are required to be present, namely, 1) there must be failure or negligence on the part of the Mutawali in the performance of his executive or administrative duties and loss or damage to any Waqf or Waqf property and 2) such action can be initiated only with the prior approval of the Board. According to the learned Senior Counsel, in the case on hand, the said mandatory contingencies are conspicuously absent.

On the contrary, learned Government Pleader for Social Welfare and the learned Standing Counsel for the A.P.State Waqf Board contend, vehemently, that, having regard to the nature of the complaint made by the unofficial respondents against the petitioner herein, the A.P.State Waqf Board has initiated action under Section 33 of the Act and the impugned action cannot be faulted. It is their further submission that, according to Clause (C) of sub-Section (1) of Section 25 of the Act, the Chief Executive Officer is authorized to do such acts as may be necessary for the control, maintenance and superintendence of the Waqf.

In reply, it is maintained by the learned Senior Counsel that the Chief Executive Officer is empowered to do certain acts under Section 25 of the Act, subject to the other provisions of law and the power conferred on the Chief Executive Officer, under Section 25 of the Act, cannot be construed as independent of the statutory position under Section 33 of the Act. It is also the submission of the learned Senior Counsel that, even assuming, without admitting that the Chief Executive Officer has such a power, in the absence of necessary ingredients of Section 25 (1) (c) of the Act, it cannot be said that the impugned action is permissible.

In the considered opinion of this Court, the above issues are to be examined after filing counters by the respondents. In the considered opinion of this Court, petitioner herein has made out prima facie case and also demonstrated the