Writ Petition Nos. 11349 and 11728 of 1996. Case: Association of A.P. Sajjada Nasheens, Mutawallies and Khidmat Guzaran of Wakfs rep. by its President, Soofi Shah Mohd. Sabir Ali and Anr. Vs Secretary representing The Union of India (UOI), (Law) Department and Ors.. High Court of Andhra Pradesh (India)
| Case Number | Writ Petition Nos. 11349 and 11728 of 1996 |
| Counsel | For Appellant: K. Prathap Reddy, Sr. Counsel for P. Vijaya Bhaskar Reddy, Adv. And For Respondents: Additional Adv. General, Standing Counsel for Wakf Board andAdditional Solicitor General of India for UOI |
| Judges | Ghulam Mohammed and Vilas V. Afzulpurkar, JJ. |
| Issue | Wakf Act, 1995 - Sections 3, 3(1), 5(1), 10, 13, 13(2), 14, 14(1), 15, 16, 23, 25, 26, 32, 32(1), 32(4), 32(5), 50 to 53, 64, 65 and 109; Wakf Act, 1954 - Section 6; Wakf (Amendment) Act, 1984 - Sections 10, 66G and 66H; Wakf (Amendment) Act, 1959; Wakf (Amendment) Act, 1964; Wakf (Amendment) Act, 1969; Mussalman Wakf Validating Act, 1913; ... |
| Citation | 2010 (1) ALT 112 |
| Judgement Date | October 30, 2009 |
| Court | High Court of Andhra Pradesh (India) |
Judgment:
Ghulam Mohammed, J., (At Hyderabad)
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These two writ petitions are filed praying this Court to declare provisions of the Wakf Act, 1995 (Central Act 43 of 1995) particularly Section 14 of the Wakf Act, unconstitutional, arbitrary and violative of Articles 14, 25 and 26 of the Constitution.
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WP No. 11349 of 1996 is filed by the Association of AP Saj jada Nasheens, Mutawallies & Khidmat Guzaran of Wakfs, Dargah Hazrath Shaikh-ji-hali, Urdu Shareef, Hyderabad, represented by its President Soofi Shah Mohd. Sabir Ali and WP No. 11728 of 1996 is filed by All India Shia Organization, Yakutpura, Hyderabad, represented by its Joint Secretary Mirza Mehdi Ali Baig. Since the relief sought for in these writ petitions is the same, they are taken up together for hearing and are being disposed of by a common judgment.
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The facts in WP No. 11349 of 1996 are adverted to. It is stated that prior to the enactment of the Wakf Act, 1995, the Union Legislature had enacted the Wakf Act, 1954 and the provisions of the said Act held the field for the last about half a century in all the States of this country, though the Union Legislature and some of the State Legislatures have been making amendments from time to time to the provisions of the Wakf Act, 1954 according to the exigencies. The very concept of creation and administration of wakf give rise to the concept of the person or persons connected with the administration of the wakf. The said persons may either be appointed by the author of the wakfs or under a statute or by the users of the wakf and such persons are called "Mutawallis" under the Muslim Personal Law. The very purpose of enacting the Act is to provide better administration for wakfs and the matters connected thereto or incidental thereto.
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It is further stated that the Wakf Act, 1995, provides for the better administration of Wakf and other incidental matters thereto. That while the avowed object of the Act is to democratize the functions of the wakfs and to make the Mutawallis a self-governing body, the provisions of the Wakf Act, 1995, in fact totally denude Mutawallis of the powers and functions and purport to confer powers on a body constituted by persons who are totally unconnected with wakfs or their intents and purposes. That while Sub-clause (b) of Sub-section (1) of Section 14 provides for election of one or two members from the Muslim members of the Parliament, State Legislature, Muslim members of the Bar Council and the Mutawallis of the wakfs having annual income of one lac and above, Sub-clauses (c), (d) and (e) of Sub-section (1) empower the State Government to nominate certain officers or persons to the Board. That in pursuance of Section 109 Wakf Act, 1995, the Government of Andhra Pradesh framed rules for conducting elections in G.O.Ms. No. 68, dated 27-5-1996 and by subsequent G.O.Ms. No. 74, dated 11-6-1996, the Government constituted the Wakf Board by conducting elections of the members of the AP Wakf Board under Sub-clause (b) of Sub-section (1) of Section 14 of the Wakf Act, 1995, from among members of the Parliament, members of the Legislature, members of the AP Bar Council and Mutawallis of the wakfs in the State, having an annual income of one lac and above. It is further stated that only one member can be elected from among Mutawallis, whereas four members are required to be elected from other denominations. It is stated that the Government is empowered to nominate two persons from each category of persons under Clauses (c) and (d) and also appoint a government official under Clause (e) of Sub-section (1) of Section 14 of the Act. Thus five persons are nominated by the Government and four persons are elected from bodies which have nothing to do with the wakfs. In the result, out of ten or eleven persons which would constitute Wakf Board, nine or ten, members are persons who are not at all connected with wakfs.
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It is further stated that the Members of the Parliament or the Legislature, or even a member of the Bar Council of the State, even though belonging to Muslim Community, are not elected thereto on account of their being Muslims muchless on account of their having to do anything with the Muslim religious institutions, such as wakfs. It is stated that wakf is essentially an institution which should take care of the affairs of Muslims which are religious, pious and charitable recognized by the Muslim personal law. That in the earlier enactment viz., Wakf Act, 1954, although it conferred powers on the Government to appoint persons to the Wakf Board, criteria was laid down therein to the effect that the persons appointed must be known to have some knowledge, information and interest in the Muslim personal law more particularly the aspects which Islamic law considers pious, religious and charitable. If any person or persons were to be appointed unconnected with such purposes or whose bona-fides relating to Islamic religion were in doubt, the appointment of such persons was liable to be challenged in a Court of law and was liable to be corrected by the process of Judicial Review which was a check on the arbitrary power of the Government. In the impugned Wakf Act, 1995 although, the process of selection of members is purported to be by election, the criteria laid down is totally unconnected with the purpose of religion and more particularly the purposes relating to the administration of wakfs.
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It is further stated that any person, although belonging to Muslim Community, elected to Parliament, or State Legislature or to the State Bar Council cannot avowedly say that he represents Islamic religion and is on account of his devotion to such religion or matters connected with such religion, that he has been elected thereto. The election to the concerned Legislatures or Bar Council of States is for a different purpose under different Legislations which are secular and are absolutely unconnected with the religion. That the constitutional process of holding elections to the legislatures (Central and State) is to secure a secular and democratic political structure to take care of the social, economic and political interest of the people, while keeping away the religious sentiments therefrom and, therefore, it is obvious that persons purporting to represent the secular interests of a constituency, however, big or small, cannot represent the religious objects, purposes and religious interest of Muslim Community muchless the interest of the Mutawallis and the administration of wakfs. It is further stated that many religious Muslims dedicate their properties as a Wakf for certain object which according to them are religious, pious and charitable under Muslim personal laws and, therefore, the administration of wakfs is strictly religious, and relates to religious sentiments of the persons concerned with die particular wakf. It is further stated that each Waqkif (the author of the Wakf) either nominates a Mutawalli or lays down the criteria or conditions as to how and in what manner the choice of Mutawallis be made and, the purp6ses and objects of the particular wakf be carried out.
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It is stated that as the purported object of the Wakf Act,l995, is to safeguard the interest of the wakfs and provide better administration thereto, it cannot be gainsaid that the Board or at-least a majority thereof, dealing with such administration must necessarily comprise of the persons concerned with the wakfs viz., Mutawallis of the wakfs, but contrary to such expectation, the provisions of the Wakf Act, 1995, and more particularly the action of the State Government, in the purported exercise of such provisions totally leads to denial of that object. That in the Board which consists of 11 persons under Clauses (a), (b), (c), (d) and (e) of Sub-section (1) of Section 14 of the Act, only one member is representing the interest of the Mutawallis of the Wakfs and this is highly detrimental to the interest of the wakfs being violative of the constitutional guarantee provided under Article 14 of the Constitution.
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It is also submitted that the provisions of the Wakf Act, 1995, are in contravention of the provisions of Article 25 and 26 of the Constitution. That Article 26 of the Constitution ordains every religious denomination or any Section thereof shall have a right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law, the provisions of Section 14 of the Wakf Act, 1995, are totally in contravention of these constitutional guarantees. It is stated that there are more than one Lac wakfs in the State of AP, but only 22 wakfs satisfying the criteria for the purpose of choosing a representative of wakfs by virtue of the restriction laid down under Sub-clause (iv) of Sub-clause (b) of Sub-section (1) of Section 14 of the Wakf Act, 1995 i.e. wakfs having an annual income of one lac and above; and that higher income of a wakf cannot be a criteria in choosing as a member of the Wakf Broad and this criteria is absolutely arbitrary and discriminatory and is violative of the principle of equality enshrined in Article 14 of the Constitution.
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Counter affidavit is filed by the Under Secretary, Ministry of Minority Affairs, Government of India, New Delhi, representing the 1st respondent-Union of India stating that the allegation of the petitioners that the Wakf Act, 1995 purports to elect only one from amongst the Mutawallis is factually incorrect as under Sub-section (1)(b) of Section 14 of the Act, one and not more than two members, as the State Government may think fit, are to be elected from each of the four electoral colleges and, therefore, it is not correct to contend that four members of the Wakf Board are persons not concerned with the affairs and administration of the Wakfs. It is also stated that only members of...
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