GHULAM SAMDANI Vs. ANDHRA PRADESH WAQF BOARD HYDERABAD

JUDGEMENT

(1.) 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. Sved Mohammed as an Official Receiver of the mosque Jamay Masjid. Charminar and its attached property pending enquiry under Section 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 virus 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 oh an application received under Section 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.

(2.) 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 under Section 45 is with reference to the matters mentioned in Section 44 of the said Act. Under Section 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 under Section 44 or under Section 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 :