Managing Committee, Masjid Syed Faiz Elahi v. Delhi Waqf Board

1. The present writ petition impugns the show cause notice dated 01.02.2024 and subsequent notice dated 12.07.2024, both issued by respondent no.4, allegedly on the instructions of respondent nos.[2] and 3, wherein, a demand of Rs.55,44,194.40/- has been raised from the petitioner on account of arrears due to be paid to respondent no.1. Vide the instant application, the petitioner is seeking for directions to restrain the respondents firstly, from recovering the aforesaid demand and secondly, from taking over the direct management of the waqf under reference i.e., Masjid and Dargah Syed Faiz Elahi, Turkman Gate, Delhi, during the pendency of the writ petition.

2. Shorn of unnecessary details, the petitioner claims to be managing the affairs of the aforesaid waqf. The record would reflect that initially, on 22.07.2002, the petitioner was formally bestowed with the charge of the waqf under reference vide an order passed by respondent no.1. However, the said managing committee was dissolved and a fresh committee was constituted to look after the affairs of the waqf vide order dated 15.03.2004. Since then, the - 3 petitioner has seemingly continued to function as the managing committee of the said waqf. An issue qua the maintainability of the present petition was raised by the respondents, however, the same came to be overruled by this Court vide order dated 12.08.2024.

3. Learned counsel appearing on behalf of the petitioner submitted that respondent no.4 has arbitrarily issued the impugned notices to raise an exorbitant demand towards waqf contribution at the rate of 20 per cent per annum. According to him, as per Section 72 of the Waqf Act, 1995 (hereinafter ‘Waqf Act’), the petitioner is only required to deposit the sum towards waqf contribution with an outer limit of 7 percent per annum and the said provision nowhere stipulates that any amount over and above 7 percent has to be paid. He, thus, asserted that since the petitioner has already paid the requisite amount towards waqf contribution, the notices issued by respondent no.4 is unreasonable, arbitrary and deserve to be quashed.

4. Learned counsel further submitted that he had already furnished a reply to the show cause notice before the Administrator, who took charge of respondent no.1 on 10.01.2024, and the same has been improperly considered to pass the subsequent notice. He, therefore, submitted that the petitioner does not have any other remedy except to approach the writ jurisdiction of this Court. He further contended that the extra 13 percent demanded by the respondents is on account of donation, which is a gratuitous act and the same cannot be forcibly recovered from the petitioner.

5. Per contra, learned counsel appearing for the respondents vehemently opposed the aforesaid submissions and submitted that the impugned notices do not suffer from any infirmity as the petitioner is in default of payment of the requisite sum. While drawing the attention of the Court to the office order dated 15.03.2004, placed on - 4 record at Annexure P[6], vide which the instant managing committee was formed, she pointed out that the petitioner had agreed to pay from its income an amount of 33 percent per month to respondent no.1

6. She further took the Court to the Board Resolution dated 22.02.2014 annexed as Annexure R[3] to contend that it was duly resolved therein that the managing committee shall clear the arrears of dues towards waqf contribution at the rate of 20 percent (7 percent waqf contribution and 13 percent as donation). She, therefore, contended that since the petitioner through its representative itself had agreed to pay the arrears of waqf contribution at the rate of 20 percent instead of earlier agreed condition of 33 percent, there is no reason for the petitioner to revert from the said position.

7. Learned counsel then invited the attention of the Court to various letters addressed to the petitioner regarding non-compliance of the directions of respondent no.1 to deposit 33 percent of the income, which according to her has not been disputed. She rather contends that the petitioner has tacitly accepted the said demand without any demur and therefore, it is liable to clear the arrears at the rate of 33 percent per month.

8. In rejoinder submissions, learned counsel for the petitioner contended that if the Board Resolution dated 22.02.2014 is construed in its right perspective, the same would demand payment of arrears, if at all, only till the date of passing of the resolution. He lastly submitted that if the letter sent by the petitioner as late as 30.12.2023 is perused, the same would indicate that the petitioner had only accepted to pay the legally tenable sum at the rate of 7 percent of the total income.

9. I have considered the submissions made by the parties and have perused the record. - 5 -

10. The petitioner has strenuously relied upon Section 72 of the Waqf Act which deals with the annual contribution payable to Waqf Board by the mutawalli of every waqf. For the sake of clarity, the relevant extract of the said provision is reproduced hereunder as:-

11. It is thus seen that sub-section (1) to Section 72 of the Waqf Act stipulates a payment of a sum not exceeding 7 percent of annual income derived by the mutawalli of every waqf, to the Waqf Board for the services which are provided by the said Board to the waqf. Further, sub-section (2) to Section 72 of the Waqf Act carves out an exception inasmuch as if the waqf falls in the category of mosque or orphanage, the Waqf Board may reduce or remit the aforesaid contribution for a particular period as per its discretion. Drawing strength from these two provisions, it was argued by the petitioner that it can be subjected to a maximum levy of 7 percent per annum and which it has already paid to the Waqf Board. It was also contended by him that since the waqf is a mosque, the petitioner may be subjected to waqf contribution even lower than 7 percent.

12. Thus, it is pertinent to delve deeper into the factual matrix of the case to ascertain as to whether the demand raised by the respondents is wholly in respect of Section 72 of the Waqf Act or the charges are imposed on account of some other considerations. - 6 -

13. A perusal of the office order dated 15.03.2004 and the terms delineated therein, which led to the establishment of the petitioner in the form of a managing committee, would unequivocally show that the petitioner was required to pay from its income 33 percent amount, monthly. The relevant portion of the said order is reproduced herein for reference:- “TERMS

1. The Managing Committee will manage the affairs of the mosque, Dargah and lands related to it, and will give monthly emoluments to the Imam and the Muezzin, along with providing necessary requirements of the mosque.