ORDER
Motilal B. Naik, J.
1. The centre of controversy in these two Writ petitions is the G.O.Ms. No. 74, Minorities Welfare (Wakf-I), dated 26-8-1994 issued by the Government of Andhra Pradesh constituting the Wakf Board in exercise of powers conferred in it Under Section 11 of the Wakf Act, 1954.
2. Writ Petition No. 16111/94 is filed seeking a direction of Certiorari quashing the G.O.Ms. No. 74 and the subsequent errata issued in G.O.Ms. No. 75, Minorities Welfare which are dated 26-8-1994 and 30-8-1994 published in the Andhra Pradesh Gazette Part-I, Extraordinary No. 366, Hyderabad and Andhra Pradesh Gazette Part-I, Extraordinary No. 367 respectively.
3. Writ Petition No. 16122/94 is filed seeking to quash the said G.O.Ms. No. 74, dated 26-8-1994 insofar as it relates to respondents 3 and 4 are concerned, viz., Sri Aziz Azam and Sri Mir Hadi Ali who figure at Sl. Nos. 10 and 11 respectively in the said G.O.Ms. No. 74, dated 26-8-1994.
4. In these two Writ Petitions, G.O.Ms. No. 74, dated 26-84994 is the subject matter and therefore, these two Writ Petitions are disposed of by a common order.
5. The main contention of Sri Mir Mumtaz Ali, Counsel for the petitioners in Writ Petition No. 16111/94 is that the G.O.Ms. No. 74, dated 26-8-1994 issued by the Government of Andhra Pradesh constituting the Wakf Board is not in accordance with the requirement of Section 11 of the Wakf Act, 1954 (hereinafter referred to as 'the Act'), inasmuch as the members so appointed do not possess the required qualifications as provided to each of the categories Under Section 11(a), (b), (c) and (d) of the Act. It is further contended by him that the impugned G.O. does not reflect the true picture of the provisions contemplated under the Act and as such it is not clear as to whether the Board is constituted for Shia Wakf properties or Sunni Wakf properties. That is to say, whether the impugned G.O. is issued Under Section 9(1) or 9(1-A) of the Act. It is also contended that the people belonging to Shai sect had earlier filed Writ Petitions before this Court and also Civil Suits in Competent Civil Court seeking to constitute separate Shia Wakf Board on the ground that Shai Wakfs in the State constitute more than 15% of the Wakf properties and the income from these properties constitute more than 15% of the total income of the Wakf properties in the State and this Court in Writ Appeal No. 1223/94 and CCCA No. 41/80 directed the Government to constitute separate Wakf Board after ascertaining whether Shia Wakfs constitute more than 15% of the Wakfs in the State or if the income of the properties of the Shia Wakfs constitute more than 15% of the total income of all the wakfs in the State. It is further contended that the Government has failed to determine the properties of each Shia and Sunni Wakfs before constituting the present Wakf Board through the impugned G.O., and therefore, constitution of present Wakf Board is contrary to the Orders passed by this Court and violative of provisions contemplated Under Section 9(1-A) of the Act. It is vehemently contended by Sri Mir Mumtaz Ali, Counsel for the petitioners that the Government was not posted with details as to the qualifications and other particulars of each nominee to the Board as on the date of constitution of the Board and as such in the absence of any detail about each member who is so appointed to the Committee, such constitution of the Board cannot be held to be proper and in accordance with the qualifications prescribed Under Section 11(a), (b), (c) and (d) of the Act.
6. In the Writ Petition No. 16122/94, petitioner who claims to be the representative of Akbari sub-sect within Shia sect has sought quashing of the nomination of respondents Nos. 3 and 4 viz., Sri Aziz Azam and Sri Mir Hadi Ali on the ground that these two persons belong to only Ussoli sub-sect of Shia sect who are opposed to Akbari sub-sect of Shia sect. It is contended by Sri M.A. Bari, learned Counsel for the Petitioner that majority of the Wakf properties, as far as they relate to Shia Sect are concerned, belong to Akbari sub-sect of Shia sect and as such nobody from Akbari sub-sect of Shia sect is nominated to the Board and therefore, in the absence of proper representation from the Akbari sub-sect of Shia sect, the Board so constituted does not reflect the true picture of representation from each group.
7. To meet these allegations, detailed counters have been filed by the Government, Wakf Board and contesting respondents.
8. In the counters filed in Writ Petition No. 16111/94, all the respondents have tried to justify the constitution of Wakf Board through G.O.Ms. No. 74, dated 26-8-1994 by contending that the Board so constituted is in accordance with Section 11 of the Act and all the members do possess the requisite qualifications besides reflecting the true spirit of the requirement of the Wakf Act. It is stated that insofar as it relates to Sri Mohd. Shakeer whose name figures at Sl.No. 5 in the said G.O., he was a sitting M.L.A., as on the date of constitution of the Wakf Board and as such the requirement contemplated Under Section 11(a) has been ful filled Insofar as the requirement Under Section 11(b) of the Act is concerned, it is pointed out in the counter that the following persons viz., Sri M.A. Rasheed Patel (Sl. No. 8), Mohd. Abdul Khader (Sl. No. 2) and Mir Hadi Ali (Sl. No. 11) fulfil the requirement as contemplated Under Section 11(b) of the Act. It is stated that the following persons fulfil the requirement as contemplated Under Section 11(c) of the Act. Mohd. Ghousuddin (Sl. No. 3), Sri Yusuf Qureshi (Sl. No. 1), Sri Syed Aziz Azam (SI. No. 10), Dr. K.M. Ismail Hussain (Sl. No. 4), Sri Mohammad Madani (Sl. No. 6) and Sri Arif Pasha (Sl. No. 7). Coming to the requirement Under Section 11(d) of the Act is concerned, it is stated that Sri Moulana Syed Azampasha Takht Nasheen (Sl No. 9) fulfils the same and as such, there is no illegality in the constitution of the Board.
9. Meeting the allegations in Writ Petition No. 16122 /94 seeking to quash the operation of G.O.Ms. No. 74, dated 26-8-1994 insofar as it relates to respondents 3 and 4 viz., Sri Aziz Azam and Mir Hadi Ali, it has been categorically stated by Sri Anantha Reddy, learned Counsel representing respondents 3 and 4 in the above Writ Petition that they are highly respected citizens from Shia sect and as such they fulfil the requirement of not only rep resenting the interests of the Shia sect but also they fulfil the requirement contemplated in Section 11(b) and 11(c) of the Act and as such, their nomination to the Board cannot be held to be void. It is denied in the counter that respondents 3 and 4 are against the interests of Akbari sub-sect. It is contended that the petitioners have not made any ground against respondents 3 and 4 seeking quashing of their names from the impugned G.O. The other respondents have also justified the appointment of Sri Aziz Azam and Mir Hadi Ali by contending that they fulfil the requirements.
10. In the wake of these respective contentions, two questions prominently fall for consideration before this Court, viz.,
(1) Whether the constitution of the Wakf Board through G.O.Ms. No. 74, dated 26-8-1994 is proper and whether the members so nominated to Board fulfil the qualifications prescribed Under Section 11 (a), (b), (c) and (d) of the Wakf Act?
(2) Whether the first respondent-Government had all the details about each member who is nominated to the Board, so as to satisfy itself that each of the members so nominated had the requisite qualification as prescribed in Section 11(a), (b), (c) and (d) of the Act?
11. I have heard all the learned Counsel at length.
12. For the purpose of appreciating the genesis of the case, it is necessary to extract the relevant provisions of the Wakf Act (hereinafter referred to as 'the Act').
13. Section 3(h) defines 'persons interested in a wakf' means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes (1) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara,dargah, khanak, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf.
14. Section 6 of the Act deals with disputes regarding wakfs, which postulates (1) If any question arises whether a particular property specified as wakf property in a list of wakfs published under Sub-section (2) of Section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutwalli of the wakf or any person interested therein may institute a suit in a Civil Court of competent jurisdiction for the decision of the question and the decision of the Civil Court in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of wakfs under Sub-section (2) of Section 5.
(2) Notwithstanding anything contained in Sub-section (1) no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any suit or of any appeal or other proceeding arising out of such suit.
(3) The Commissioner shall not be made a party to any suit under Sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules made there under.
(4) The list of wakfs published under Sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the Civil Court under Sub-section (1) be final and conclusive.
15. Section 9 of the Act deals with 'Incorporation'. It postulates that (1) with effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established a Board of Wakfs under such name as may be specified in the Notification. (1-A) Not with standing any thing contained in Sub-section (1), if the Shia Wakfs in any State constitute in number more than fifteen per cent of all the wakfs in the State or if the income of the properties of the Shia Wakfs in the State constitutes more than fifteen per cent of the total income of the properties of all the wakfs in the State, the State Government may, by notification in the Official Gazette, establish a Board of Wakfs each for Sunni Wakfs and for Shia Wakfs under such name as may be specified in the notification and in such a case, the provisions of this Act shall, in their application to the State, have effect as if the amendments specified in the Schedule had been made). (2) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.
16. Section 11 of the Act appearing under Chapter III postulates Appointment of members. The members of the Board shall be appointed by the State Government, by notification in the Official Gazette, from any one or more of the following categories of persons, namely:
(a) members of the State Legislature and members of Parliament representing the State-
(b) Persons having knowledge of Muslim law and representing associations such as State Jamait-ul-Ulama-i-Hind (whether such persons are Hanafi, Ahle-Hadis of Shefai) or State Shia Conference;
(c) persons having knowledge of administration, finance or law;
(d) mutwallis of wakfs situate within the State;
Provided that in no case more than one mutwalli shall be appointed to the Board;
Provided further that in determining the number of Sunni members or Shia members in the Board, the State Government shall have regard to the number and value of Sunni Wakfs and Shia Wakfs to be administered by the Board.
17. Counsel for the second respondent - Wakf Board apart from contending that the constitution of the Board by the first respondent-Government is proper and is in accordance with the provisions contemplated Under Section 11 of the Act, has also taken a preliminary objection as to the maintainability of Writ Petition No. 16211/94 by contending that the petitioners in the said writ petition have no locus-standi to file the said Writ as they are not the persons interested as defined in Section 3(h) of the Act. In order to substantiate his claim, he has also placed reliance on a decision of the Supreme Court in 'The Board of Muslim Wakfs, Rajasthan v. Radha Kishan, : [1979]2SCR148 . The decision on which the Counsel is placing reliance, in my view, has no application to the facts of the present case. The provision contemplated Under Section 3(h) of the Act defines 'person interested in a wakf' means any person who is entitled to receive any pecuniary or other benefits from the Wakf and includes (1) any person who has a right to worship or to perform any religious rite in a mosque, Idgah, imambara, dargah, khanka, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf. Therefore, it is clear from the above provision that any person who has a right to worship or perform a religious rite in a mosque, Idgah, imambara, dargah, khanka, maqbara and graveyard etc., is also 'a person interested in wakf'. In this view of the matter, I hold that these petitioners who claim to be mutwallis of mosque are 'persons interested in the wakf' and as such, they are entitled to file the Writ Petition. The objection is accordingly rejected.
18. Coming to the principal issue as to whether the constitution of the Board is proper and is in accordance with Section 11 of the Act and whether the first respondent had sufficient material before it as on the date of appointing respondents 4 to 14 as members of the Wakf Board, it is necessary to examine whether the respondents 4 to 14 possess the requisite qualifications as prescribed in Section 11(a), (b), (c) and (d) of the Act and whether the said information was available with the first respondent-Government as on the date of constituting the Board.
19. The enactment brought out by the legislature through Wakf Act, 1954 is mainly to safeguard and to have the management of the wakf properties though it vests immediately in Mutwallis within the purview of the said provision so that the properties could be safeguarded and the income derived from these properties are utilised for the purpose for which these wakfs are established. In order to supervise these wakf properties, Section 10 of the Act provides for the composition of the Board which shall consist of 11 members in case of a State Board. Section 11 empowers the Government to appoint 11 members to the Board. This appointment of members to the Board shall be by issuing a notification in Official Gazette from anyone or more of the following categories of persons as indicated in Section 11 (a), (b), (c) and (d) of the Act. Section 11 (a), (b), (c) and (d) prescribe certain qualifications for those persons who are to be appointed as members of the Board. The necessary implication, therefore, is that as on the date of constituting the Board, the Government shall have all the details about the members who are likely to be appointed as members of the Board so as to satisfy itself whether such members fulfil the requirement as contemplated in Section 11(a), (b),(c) and (d) of the Act.
20. As far as Mohd. Shakir - 8th respondent in W.P. No. 16111/94 is concerned, he is stated to be a sitting M.L.A. as on the date of constitution of the Board and therefore, in my view, he satisfies the requirement as contemplated Under Section 11(a) of the Act and as such, I hold that his appointment is proper.
21. Coming to the respondents 4 to 7 and 9 to 14 the preliminary question before this Court is whether the Government had any material while appointing these respondents as members of the Board so as to satisfy itself that these respondents fulfil the requisite qualifications as contemplated Under Section 11(a), (b), (c) and (d) of the Act. Though the first respondent has filed a counter along with other respondents and has taken a specific stand that the appointment of these respondents 4 to 14 as members of the Wakf Board is proper, a perusal of the file placed before this Court by the learned Government Pleader gives a different picture as to indicate that the Government had no material before it about the respondents 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14. As far as the 8th respondent is concerned, though it is apparent from the file placed before this Court, the Government had no detailed information about him also, yet the 8th respondent being a legislator representing a particular constituency as on the date of the constitution of the Board, the Government could take note of the said fact and that itself is a sufficient ground for the Government to appoint him as a member of the Board though his other details are not available.
22. Admittedly, the Board was constituted by issuance of G.O.Ms. No. 74, dated 26-8-1994. A letter dated 12-9-1994 available at page-1 of file C-7 which is addressed by the Secretary, A.P. State Wakf Board, Hyderabad to the Secretary to Government, Minorities Welfare Department, Hyderabad discloses as under:
'I am to submit that W.P. No. 16111/94 filed by Maulana Mohammed Jamaluddin Deccani and another against the constitution of the Board came for hearing before his Lordship B.S. Raikote, High Court, on 12-4-1994. The thrust of the argument is that some of the members of the Board who have been selected by the Government do not fulfil the conditions as specified Under Section 11 of the Wakf Act, 1954.
May I request you Sir, kindly to furnish the bio-data on the categories in which the members have been selected by the Government as required Under Section 11 of the Wakf Act, 1954 so that it will enable the Board's Standing Counsel to represent the matter effectively the selection of the members by the Government.
The High Court has adjourned the case to tomorrow for admission and as such the above information may please be furnished to me by this evening.'
23. This letter addressed on 12-9-1994 indicates that the Secretary of the second respondent-Board is seeking necessary details from the Secretary to Government, Minority Welfare Department. Pursuant to the letter dated 12-9-1994, the Secretary to the Government, Minorities Welfare Department writes to the second respondent-Board by a letter dated 13-9-1994 which is available at page 3 in the same C-7 file as under:
'Please refer to the letter cited on the above subject. The Secretary, A.P. State Wakf Board is requested to get the Bio-data information immediately from the members and Chairman of the Wakf Board and furnish the same to the Standing Counsel to represent the matter in the High Court under intimation to this Department.'
24. These two letters are sufficient to show that the first respondent-Government had no material before it as on the date of constituting the Board while appointing respondents 4 to 14 as members of the Board on 26-8-1994 through G.O.Ms. No. 74. As I said earlier, as far as the 8th respondent is concerned, since he was a sitting M.L.A. at that time, it is not necessary to have any further details about him as he complies the requisite qualification contemplated Under Section 11(a) of the Act. About the other respondents i.e., 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 these two letters referred to by me indicate that the Government had no details about their bio-data and other qualifications while appointing them as members of the Board. It is only when the Writ Petitions were filed and the matter had come up before the High Court on 12-9-1994 for arguments, at that stage, attempts were made to get the details from the members appointed for defending the case before the Court. When the Government had no details about respondents 4 to 7and 9 to 14, it is impossible to presume that the Government has satisfied itself with the particulars available before it as to the fulfilment of the requirement against each member in accordance with the qualifications prescribed Under Section 11(a), (b), (c) and (d) of the Act.
25. Section 11 of the Act empowers the State to appoint members while constituting the State Wakf Board by issuing necessary notification, while nominating persons any one or more from the four categories i.e., (a), (b), (c) and (d) as indicated therein. The objective of constituting the Board, as I said earlier, is for the purpose of safeguarding the wakf properties. Though these properites are directly vest with Mutwallis, yet the power of supervision is vested in the Government. In order to have a comprehensive Board, necessary qualifications have been prescribed enabling the Government to constitute such Board by appointing persons to the Board. As discussed by me in the above paragraphs, as on the date of constitution of the Board i.e., 26-8-1994, the Government had no details at all about the members so appointed, except the 8th respondent and as such, such constitution, in my view, is vitiated. Accordingly, I hold that the appointment of respondents 4, 5, 6, 7, 9, 10, 11, 12, 13 and 14 is improper and their appointment is liable to be set aside and accordingly, the appointment of respondents 4 to 7 and 9 to 14 are set aside.
26. Since I have set aside the appointment of respondents 4 to 7 and 9 to 14 on the ground of lack of material before the Government, I do not propose to go into the other aspects whether these respondents 4 to 7 and 9 to 14 fulfil the requirements as contemplated Under Section 11(a), (b), (c) and (d) of the Act.
27. Writ Petition No. 16122/94 is filed seeking to set aside the appointment of Sri Aziz Azam and Sri Mir Hadi Ali who figure at Sl. Nos. 10 and 11 in the impugned G.O. dated 26-8-1994. It is contended by the petitioners that the Shia sect has two major sub-sects i.e., Usooli and Akbari Mostof the wakf properties are stated to be held by the Akbari sub-sect of Shia sect. As far as Sri Aziz Azam and Sri Mir Hadi Ali are concerned, it is alleged that they only represent Usooli sub-sect of Shia sect and are said to be opposed to Akbari sub-sect. The wakf properties of the Shia group/sect are mainly held by the Akbari sub-sect and therefore, it is apprehended that these two respondents who are opposed to Akbari sub-sect may not properly manage the properties and it would be detrimental to the interests of the wakf properties belonging to Akbari sub-sect.
28. Learned Counsel for the petitioner Sri M A. Bari contended that the object of constituting the Wakf Board is to safeguard the properties of Muslim Community. When Section 9 of the Act contemplates constituting separate Wakf Boards for Shia Sect and Sunni Sect, the legislature intended that such constitution is to safeguard and preserve the properties belonging to these two sects of the muslim community. While doing so, it is intended that proper representation could also be given to various sub-sects within the two sects so that the Board so constituted could have a comprehensive look having representation to various sub-sects. It is further con tended that by constituting the present Board through the impugned CO., the Government has not taken care of the Akbari sub-sect of Shia sect and therefore, such constitution is not in tune with the objective of the enactment.
29. It is no doubt true that the requirement of Section 9 of the Act is necessarily to be followed by the Government which is empowered to Constitute the Board Under Section 11 of the Act while determining the properties held by both Shia and Sunni Sects and the income derived by these two wakfs as is clear from Section 9(1-A) of the Act wherever the Wakf properties of Shia sect are more than 15% of the total wakf properties of the State and the income is more than 15%, the requirement of the provision is to constitute separate Shia Board for safeguarding the properties of the Shia sect. Since I have held in Writ Petition No. 16111/94 that the appointment of respondents 4 to 7and 9 to 14 is not proper and have set aside their appointment which includes the appointment of Sri Aziz Azam and Mir Hadi Ali also. Therefore, in this view of the matter, it is not necessary to examine the issues raised in Writ Petition No. 16122/94. In the circumstances, I am of the view, no further orders are necessary in this Writ Petition No. 16122 of 1994 and it is accordingly disposed of.
30. In the result, Writ Petition No. 16111/94 is allowed by setting aside the appointment of respondents 4 to 7 and 9 to 14. No costs.
31. Since the constitution of Wakf Board on 26-8-1994 through the impugned G.O. is held to be bad and is set aside except as against respondent No. 8, it is open to the first respondent-Government to reconstitute the Board. While reconstituting the Board, the first respondent-Government shall examine the probability of constituting two separate Boards, one for Shia sect and one for Sunni sect in accordinace with the requirement of Section 9(1-A) of the Act. The first respondent-Government shall also bear in mind while constituting the new Board, the interests of each sub-sect are taken care of, as far as possible.