SHABBIR ALI Vs. STATE OF A P

JUDGEMENT

(1.) This writ petition is filed challenging the order dated 26.8.2006 passed by the first respondent appointing an Enquiry Officer to conduct enquiry into rival claims of Muthawalliship of Ashoor Khana Asthane Asghari, a registered wakf in Hyderabad City. The petitioner seeks a writ of mandamus declaring the impugned order appointing Enquiry Officer as one without jurisdiction under the provisions of the Wakf Act, 1995 (the Act, for brevity).

(2.) The petitioner and the third respondent are sons of Mir Asghar AIL Their father was Muthawalli of Ashoor Khana Asthane Asghari. After his death, there was a dispute among the brothers for Muthawalliship. The petitioner herein claims that he is acting as Muthawalli. It appears that both of them made representations to the A.P. Wakf Board seeking appointment as Muthawalli. The petitioner filed W.P. No. 17312 of 2006 apprehending the appointment of third respondent as Muthawalli even without considering petitioner's representation dated 14.2.2005. By order dated 23.8.2006, this Court disposed of the W.P. No. 17312 of 2006 at the admission stage, recording the submission of the Standing Counsel for Wakf Board that an enquiry into the rival claims would be conducted. The petitioner then approached the first respondent for a copy of the application made by the third respondent. The petitioner was asked to submit legal heir certificate. In the meanwhile, the impugned order was passed appointing Enquiry Officer. The petitioner apprehends that the first respondent is predetermined to hold a formal enquiry. Hence, the present writ petition.

(3.) Learned Counsel for the petitioner strenuously submits that succession to Muthawalliship in a situation of rival claims between the legal heirs is beyond any enquiry by the Wakf Board. Succession to the incorporeal right as Muthawalli of Wakf is a matter which has to be decided by the Civil Court and, therefore, the enquiry ordered by the Wakf Board is illegal. He submits that the enquiry ordered under Sections 70 and 71 of the Act cannot decide the disputed questions of succession to Muthawalliship. Learned Counsel placed reliance on Wakf Board, Hyderabad v Parvathi Bai, AIR 1972 AP 333 and Adam Aboobacker Sair v. Kerala Wakf Board, AIR 1982 Ker. 322.