Ghulam Samdani vs Andhra Pradesh Waqf Board, Hyderabad and Others

Ramachandra Rao, J.—This is an application for the issue of a writ of certiorari to quash an order of the Legal Adviser of the Andhra Pradesh Wakf Board. Hyderabad passed in File No. 38/8/71. SNTC, dated 5-10-1971 in and by which he purported to appoint one Prof. Syed Mohammed as an Official Receiver of the mosque Jamay Masjid. Charminar and its attached property pending enquiry u/s 45 of the Wakf Act, 1954. The main contention of Sri Upendralal Waghray, learned counsel for the petitioner: is that Section 45 of the Act merely contemplates an enquiry, and Rule 10-A of the Rules framed under the Wakf Act under which the Receiver is appointed pending such an enquiry is ultra vires of the Dowers of the rule-making authority and secondly it is contended that the Legal Adviser has no jurisdiction or power to appoint a receiver as he was not duly authorised in that behalf by the resolution of the Board as the resolution was published on 24-2-1972 and not by the date of the passing of the impugned order. There is no counter filed by the respondents. Section 45 of the Act reads as follows:--

"(1) The Board may, either on an application received u/s 44 or on its own motion.

(a) hold an inquiry in such manner as may be prescribed; or

(b) authorise any person in this behalf to hold an enquiry into any matter relating to a wakf and take such action it thinks fit.

For the Purposes of any inquiry under this Act, the Board or any person authorised by it in this behalf shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 for enforcing the attendance of witnesses and production of documents." This section contemplates holding of an enquiry in such manner as may be prescribed and also empower any person authorised in that behalf to hold an enquiry into any matter relating to a wakf and take such action as it thinks fit. But the section does not contemplate the appointment of a receiver pending enquiry. The enquiry contemplated u/s 45 is with reference to the matters mentioned in Section 44 of the said Act. u/s 44 of the Act. An enquiry should be instituted, on the application of any person interested in a wakf, relating to the administration of the Wakf. Therefore, either u/s 44 or u/s 45 of the Act. The question of appointment of a receiver pending such an enquiry does not arise. Rule 10-A framed by the State Government reads as follows :

"The Board or any person authorised in this behalf while holding an inquiry u/s 45 shall, as far as Practicable have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of the following matters, namely:--

(1) temporary injunctions and interlocutory orders: and

(b) appointment of receivers."

This rule, as Can be seen, is beyond the scope of Section 45 of the Act. Section 45 read with Section 44 contemplates an enquiry being held and taking such action as the Board thinks fit after the enquiry is held. The question of appointment of a receiver pending enquiry is not contemplated by the aforesaid Sections. Rule 10-A is therefore clearly ultra vires of the powers and does not confer any Power either on the Board or the Legal Adviser to appoint a Receiver pending enquiry. In this view, the impugned order based on Rule 10-A is illegal and without jurisdiction and is liable to be quashed. It is also not necessary to deal with the other contention raised by the learned counsel for the petitioner that the Legal Adviser was not duly authorised to exercise the powers u/s 45 of the Act.

In the result, the writ petition is allowed but in the circumstances without costs. Advocate''s fee is Rs. 100/-.