Bilal Nazki, A.C.J.
1. Heard the learned Counsel for the parties and perused the record.
2. This petition has been filed by the petitioner on the ground that he is the President of Jamia Masjid, Subash Road, Secunderabad. He is aggrieved of amendment to Andhra Pradesh State Wakf Board Conduct of Election Rules, 1996 (for short 'the Rules'), effected by G.O. Ms. No. 30 dated 29.6.2005. The contention of the petitioner is that he, being the President of the Managing Committee, was entitled to be elected to the Board under Section 14 of the Wakf Act, 1995 (for short 'the Act'), but in terms of the amendment, the Government has deleted Sub-clause (ii) of Clause (a) of Sub-clause (4) of Rule 4 of the Rules, and by deletion, he no longer remains eligible for being elected as a Member of the Board. According to the learned Counsel for the petitioner, the deletion of this clause from Rule 4 of the Rules is ultra vires to Sub-section 3(i) read with Section 14(1)(b) (iv) of the Act. This is contested by the State's Counsel on the ground that there is no contravention of the provisions of the Act and also that the term of the Managing Committee is not defined under Section 18 of the Act, and as such, the tenure of the Members of the Committee is uncertain and therefore, they could not be the persons eligible for being elected as Members of the Board.
3. In order to appreciate the rival contentions, it would be necessary to have a look into the Rule which have been deleted. The provision that is deleted is Sub-clause (ii) of Clause (a) of Sub-clause (4) of Rule 4 of the Rules, which stated as under:
One office bearer of such committee as the representative of such Wakf institution in case of Wakf institution is being administered by a Managing Committee:Provided that if the Wakf institution fails to so elect and communicate to the Chief Executive Officer-cum-Secretary, the Senior Mutawalli in the case of a Wakf institution having more than one Mutawalli and the President of the Managing Committee where a Wakf institution is being administered by such committee shall be deemed to have been elected; and the same shall be incorporated in the electoral roll for the purpose of constituting the electoral college.
4. The learned Government Pleader submits that an office bearer of a committee as the representative of the Wakf institutions that were being administered by the Managing Committee could become a member of the electoral roll for the purposes of constitution of the Board under Section 14 of the Act. This was provided in terms of the Rules and, therefore, it could also be removed in terms of the Rules. But this argument cannot be accepted in view of the fact that Section 14 of the Act lays down that among others who would constitute the Board there should be Mutawallis of the Wakfs having an annual income of Rs. 1,00,000/- and above.
5. Mr. S. Niranjan Reddy, learned Counsel appearing for the petitioner, submits that since Section 14 lays down that Mutawallis should be on the electoral roll and removing them by amending the Rules by deleting Sub-clause (ii) of Clause (a) of Sub-clause (4) of Rule 4 of the Rules, would amount to deletion of Section 14. A rule cannot be amended in such a way as to defeat the Act. But the learned Special Government Pleader submits that making Mutawallis members of the electoral roll, is taken care of by Rule 4(a)(i). But this argument again is not acceptable on the ground that 'Mutawalli' is defined in terms of Section 3(i) of the Act as under:
'mutawalli' means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property:Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation.
6. This definition makes it amply clear that 'Mutawalli' includes also a person, a committee, a corporation which was for the time being managing or administering any Wakf or Wakf property. Therefore 'Mutawalli' is not only a Mutawalli ordinarily understood or as defined in the first part of Section 3(i), but also a Managing Committee which is administering the Wakf. Therefore, in our view, the deletion of Sub-clause (ii) of Clause (a) of Sub-clause (4) of Rule 4 of the Rules is ultra vires to Section 3(i) read with Section 14(b) of the Act.
6.1 Another ground, which the learned Special Government Pleader has agitated, was that the Managing Committee do not have a fixed tenure and it may create difficulties in applying the rule which is deleted. We have seen Section 14 of the Act. The tenure of most of the persons on the basis of which they become Members of the Board, is uncertain. One of the categories from which persons can be taken to electoral college is, 'Muslim Members of Parliament from the State'. Another category is 'Muslim Members of the State Legislature', and another category is, 'Muslim Members of the Bar Council of the State'. The tenure of these three categories is also uncertain. Therefore on the basis of this argument the amendment cannot be upheld. However to avoid any uncertainties, we make it clear that the committees that are existing as on the date of notification issued in terms of Section 14 of the Act, and on the date of actual polling, should be held to be entitled to be part of the electoral colleges.
7. With these observations, the writ petition is allowed. The amendment is quashed. Since we are told that the elections to the Board have not been held for more than two years, we expect that the elections will now be held within next two months. Accordingly, two months time is granted for conducting elections.