$[2592]$ IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

WEDNESDAY, THE FIFTEENTH DAY OF SEPTEMBER, TWO THOUSAND AND TWENTY ONE

:PRESENT: THE HONOURABLE SRI JUSTICE A V SESHA SAI

IA No. 2 OF 2021 IN

WP NO: 20296 OF 2021

Between:

Shagulam Nakshband Hafeez Pasha, S/o Late Shagulam Nakshaband Ghouse Mohiuddin, aged about 43 years, Sajjadanasheen Cum Mutawalli of Dargah Shareef Huzoor Syedina Khwaja Rahamatullah Nayeb-e- Rasool, Rahamatabad Shareef, A.S. Peta, SPSR Nellore

...Petitioner (Petitioner in WP 20296 OF 2021 on the file of High Court)

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AND

• 1. The State of Andhra Pradesh, Minority Welfare Department, rep. by its Secretary, Secretariat, Velagapudi, Guntur District.
• 2. Andhra Pradesh State Wakf Board, Rep by its Chief Executive Officer Imdad Ghar, Near Kaleswara Rao Market, Vijayawada, Krishna District
• 3. The District Minority Welfare Officer and Additional District Waqf Officer, Collectorate, SPSR Nellore District - 524 001.
• 4. Sri S.G.N. Nafeez Pasha, S/o Late SGN Gouse Mohiuddin, Aged about 38 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta, SPSR Nellore District 524 304
• 5. Smt. Pathan Tahira Begum, W/o Pathan Fayaz Ahmed, Aged about 49 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta SPSR Nellore District 524 304
• 6. Smt. Pathan Hajira, W/o Pathan Gouse Basha Aged about 35 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta, SPSR Nellore District 524 304
• 7. Smt. Pathan Husna, W/o Pathan Aleem, Aged about 29 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta SPSR Nellore District 524 304

...Respondents (Respondents in-do-)

Counsel for the Petitioner : Sri M.V. SURESH KUMAR Advocate representing Sri ARAVALA SREENIVASA RAO Counsel for the Respondent No. 1 : GP for Social Welfare Counsel for the Respondent No.2: Sri Sk. Karimulla, SC for AP Wakf Board

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to stay all further proceedings pursuant to notice Rc. IAW/71/NLR/2021 dt. 02.09.2021 issued by the 3^rd respondent, pending disposal of WP No. 20296 of 2021, on the file of the High Court.

The court while directing issue of notice to the Respondents herein to show cause as to why this application should not be complied with, made the following order. (The receipt of this order will be deemed to be the receipt of notice in the case).

ORDER:

Challenge in the present Writ Petition is to the order passed by the Chief Executive Officer, A.P.State Waqf Board-second respondent herein in F.No.02/NLR/M/2017/Z-IV/Suppl., dated 25.08.2021.

According to the learned counsel for the petitioner, he is the hereditary Sajjadanashin-cum-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 Board second 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 existence of balance of convenience in his favour.

For the aforesaid reasons, there shall be interim stay of all further proceedings, pursuant to the notice in Rc.No.LAW/71/NLR/2021, dated 02.09.2021, of the District Minorities Welfare Officer and Additional District Waqf Officer-third respondent herein.

Post after Dussehra Vacation, 2021.

//TRUE COPY//

Sd/-M.Suryanadha Reddy ASSISTANT REGISTRAR

SECTION OFFICER

To,

1. The Secretary, Minority Welfare Department, State of A.P., Secretariat, Velagapudi, Guntur District.

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• 2. The Chief Executive Officer, Andhra Pradesh State Wakf Board, Imdad Ghar, Near Kaleswara Rao Market, Vijayawada, Krishna District
• 3. The District Minority Welfare Officer and Additional District Wagf Officer, Collectorate, SPSR Nellore District - 524 001.
• 4. Sri S.G.N. Nafeez Pasha, S/o Late SGN Gouse Mohiuddin, Aged about 38 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta, SPSR Nellore District 524 304
• 5. Smt. Pathan Tahira Begum, W/o Pathan Fayaz Ahmed, Aged about 49 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta SPSR Nellore District 524 304
• 6. Smt. Pathan Hajira, W/o Pathan Gouse Basha Aged about 35 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta, SPSR Nellore District 524 304
• 7. Smt. Pathan Husna, W/o Pathan Aleem, Aged about 29 years, R/o Opp. Dargah Mahal Gate, Mahal Street, A.S. Peta SPSR Nellore District 524 304 (Addressee Nos 1 to 7 By RPAD)
• 8. One CC to Sri. Aravala Sreenivasa Rao, Advocate [OPUC]
• 9. Two CCs to GP for Social Welfare, High Court Of Andhra Pradesh. [OUT]
• 10. Two CCs to Sri Sk. Karimulla, SC for AP Wakf Board, High Court of A.P., at Amaravati (OPUC)
• 11. One spare copy

Skm

HIGH COURT

AVSS,J

DATED:15/09/2021

NOTE: POST AFTER SUSSEHRA VACATION, 2021

ORDER

IA. No. 2 of 2021 $\rm I!N$ WP.No.20296 of 2021

INTERIM STAY