Abdul Wahab vs Secretary, A.P., Wakf Board and another

In this writ petition, the petitioner assails the action of the respondents in not reinstructing the management of the Darga Hazrath Syed

Mohammed Madina Aulia situate at Kalingapatnam to him even after the expiry of the statutory period fixed u/s 43-A of the Wakf Act.

The facts of the case may be briefly stated:

The petitioner''s father was the notified hereditary Muthawalti of the said Darga and he died in the year 1972. There was a dispute between the

petitioner and his uncle one Abdul Khader regarding the succession to the office of Muthawalli. In view of the said dispute, the management of the

Darga was taken over by the Wakf Board on 13-3-1974. After enquiry, the petitioner was appointed as Muthawalli by order dated 5-2-1975

and the same was published in the Gazette on 22-5-1975. Subsequently, there was a complaint of misappropriation of funds and mismanagement

of the Darga against the petitioner. White it is the case of the petitioner that he was removed from the office without conducting any enquiry, it is

the case of the respondents that a show-cause notice was issued to him and after considering his explanation of the same he was removed from the

office of Muthawalli by order dated 28-1-1980 passed by the Administrator of Wakfs. Whatever it is, it is not in dispute that the petitioner was

removed from the office in the year 1980. It appears that a police complaint was also lodged against the petitioner for the offences punishable

under Sections 406 and 420 IPC and he was prosecuted in CC No.309 of 1983 on the file of the Court of the judicial First Class Magistrate,

Srikakulam. The said case however ended in acquittal of the petitioner by an order dated 7-11-1988. Thereafter, the petitioner made

representations to the authorities to restore him as Muthawalli and also to pay the Tasdeeq Allowance due to him. As the respondents failed to

comply with his request, the petitioner has filed the present writ petition.

In the counter-affidavit filed on behalf of the respondents, the facts of the case are not disputed. It is however stated that the petitioner has not

produced the copy of the order of acquittal passed by the criminal Court and the respondents have no knowledge of the same. It is further stated

that as the petitioner has not produced a copy of the order passed by the criminal Court, his request for reinstatement deserves no consideration. It

is finally stated that after the receipt of the representation of the petitioner further particulars are being called for from the IA and District Wakf

Committee and as soon as the necessary particulars are received, further action on is representation will be taken up.

The petitioner has produced before this Court a copy of the judgment in CC No.309 of 1983 on the file of the learned Judicial First Class

Magistrate, Srikakulam by which lie was acquitted of the alleged offences. There cannot therefore be any doubt regarding the acquittal of the

petitioner by the Court. Section 43(6) of the Wakf Act provides that a Muthawalli of a Wakf removed from his office under this Section shall not

be eligible for appointment as a Muthawalli of that wakf for a period of five years from the date of such removal. Section 43-A further provides

that where no suitable person is available for appointment as a Muthawalli of a Wakf, or where the Board is satisfied, for reasons to be recorded

by it in writing, that the filling up of the vacancy in the office of a Muthawalli in prejudicial to the interests of the Wakf, the Board may, by

notification in the Official Gazette, assume direct management of the Wakf for such period or periods, not exceeding five years in the aggregate, as

may be specified in the notification. In view of the said statutory provisions and also in view of the acquittal of the petitioner by the Court, the Wakf

Board is bound to restore the management of the Wakf to the petitioner as already more than 18 years have elapsed from the date of his removal

and the assumption of direct management by the Board.

The writ petition is accordingly allowed directing the respondents to restore the petitioner to the Office of Muthawalli of the Darga Hazrath Syed

Mohammed Madina Aulia situate at Kalingapatnam and also to pay him the Tasdeeq Allowance legitimately due to him. There will be no order as

to costs.