Karnataka High Court
M. Ansar Baig vs Karnataka State Board Of Wakf on 7 February, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
W.P.NO.161 OF 2017 [GM-WAKF]
BETWEEN:
M. ANSAR BAIG,
S/O LATE M. USMAN BAIG,
AGED ABOUT 50 YEARS,
MUTHAVALLI,
HAZARATH MAQADHOOM JHANI DARGHA (SUNNI),
R/O NEAR SANGAM TALKIES,
BELLARY - 583 101. ... PETITIONER
(BY: SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI MAHAMAD TAHIR A, ADVOCATE)
AND:
1. KARNATAKA STATE BOARD OF WAKF,
CUNNINGHAM ROAD,
BANGALORE - 560 052.
REP. BY ITS ADMINISTRATOR.
2. THE CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF WAKF,
CUNNINGHAM ROAD,
BANGALORE - 560 052.
3. THE ADMINISTRATOR/DEPUTY COMMISSIONER,
HAZARATH MAQDHOOM JHANI DARGHA (SUNNI),
BELLARY - 583 101.
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4. THE CHAIRMAN,
BELLARY DISTRICT WAKF ADVISORY COMMITTEE,
TANK BUNK ROAD,
MUSLIM SHAADI HALL,
BELLARY - 583 101.
5. THE WAKF OFFICER,
BELLARY DISTRICT WAKF ADVISORY COMMITTEE,
TANK BUND ROAD,
MUSLIM SHAADI HALL,
BELLARY - 583 101.
6. PRINCIPAL SECRETARY TO GOVERNMENT,
MINORITY WELFARE DEPARTMENT,
II FLOOR, VIKAS SOUDHA,
BANGALORE - 560 001.
7. SRI HAFIZ MOHAMMED MAQBOOL,
S/O NOT KNOWN,
AGED ABOUT 36 YEARS,
R/AT BAANAR ONIE,
FLOWER STREET,
BELLARY - 583 101.
8. SRI K.M. RIZWAN OMAR,
S/O K.M. OMER PASHA,
MAJOR,
CHAIRMAN, DISTRICT WAKF
ADVISORY COMMITTEE, BELLARY,
R/AT NO.74, WARD NO.9,
BOMMANHAL ROAD,
BELLARY - 583 101. ... RESPONDENTS
(BY: SMT. S.R. ANURADHA, ADVOCATE FOR R-1 AND R-2,
SRI M.A. SUBRAMANI, HCGP FOR R-3 AND R-6,
SRI M.G.S.KAMAL, ADVOCATE FOR
SRI SYED IMRAN, ADVOCATE FOR R-4, R-5 AND R-8,
R-7 - NOTICE SERVED)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
RESOLUTION OF 320TH MEETING HELD ON 16.8.2016 IN SUBJECT
NO.7 TO RESOLVE TO ASSUME THE WAQF INSTITUTION
MAQDHOOM JANI DARGHA INTO DIRECT MANAGEMENT OF THE
BOARD DATED 16.8.2016 AT ANNEXURE-AA PASSED BY THE R-1
CONSEQUENTLY, QUASH THE ORDER DATED 1.10.2016 VIDE
ANNEXURE-AB AND ETC.
THIS W.P. COMING ON FOR ORDES THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner has called into question the resolution passed on 16.8.2016 (Annexure-AA) in the 320th meeting of the Karnataka State Board of Wakfs for assuming the affairs of Hazarath Maqadhoom Jhani Dargha, Ballari ('Dargha' for short) under the direct management of the Board and appoint the Deputy Commissioner, Ballari as the Administrator and for holding the enquiry into the charges levelled against the Muthavalli of the said Dargha. He has also challenged the Karnataka State Board of Wakf's order, dated 1.10.2016 (Annexure-AB) appointing the Deputy Commissioner as the Administrator to manage the day-to-day affairs of the said Dargha. Further, he has challenged the order, dated 19.12.2016 (Annexure-AE) passed by the Secretary to Government, 4 Department of Minority Welfare, Haj and Wakfs, Bengaluru in Revision Petition No.10/2016, insofar as it pertains to the continuing of the appointment of Deputy Commissioner as the Administrator of the Wakf. Consequently, the order, dated 5.12.2016 (Annexure-AG) issued by the respondent No.5 to take care of the day-to-day religious affairs of the said Wakf Institution is also under challenge.
2. The facts of the case in brief are that the petitioner's great grandfather, Khadar Baig bequeathed the land measuring 200 x 200 sq.ft. in favour of Hazarath Maqadhoom Jhani Dargha. The said Dargha was notified as Wakf Institution in the Gazette. On the death of Khadar Baig, his son Mansoor Baig Sahib became the 'Wakif'. After the death of Mansoor Baig Sahib, his sons, Usman Baig and M.Basith Baig became the Muthavallis of the Institution. The petitioner's uncle, Sri M.Basith Baig died issueless in the year 2007. In the meanwhile, the District Wakf Advisory Committee had submitted the report that the Management of the Dargha by the Muthavallis is hereditary, as is evident from the letter, 1.7.1982 (Annexure-D). The petitioner's 5 father wrote a letter, dated 20.11.2007 (Annexure-E) to the State Board of Wakfs that he is not in a position to manage the affairs of the Institution because of his old age and that his son (petitioner herein) be appointed as Muthavalli. Accordingly, the Karnataka State Board of Wakfs appointed the petitioner as Muthavalli for about three years, as is evident from the order, dated 21.2.2008 (Annexure-F).
3. The Karnataka State Board of Wakfs, vide its order, dated 22.2.2011 (Annexure-H) appointed the petitioner as Muthavalli, subject to the outcome of the enquiry pending before the then Additional Chief Executive Officer, Karnataka State Board of Wakfs and Enquiry Officer and until further orders. The enquiry referred therein was with reference to the complaint filed by one, Sri M.Ansar Baig S/o M.Rehman Baig (complainant). The complainant had advanced the rival claim that the petitioner be removed as Muthavalli and that the complainant be appointed as Muthavalli. As the complaint was not prosecuted, it came to be dismissed as not pressed by the Additional Chief Executive Officer of Karnataka State Board of Wakf, Bangalore, as per the 6 order, dated 12.5.2011 (Annexure-J). This was followed by the order, dated 21.6.2011 (Annexure-K) confirming the appointment of the petitioner as Muthavalli. The said confirmation is also published in the Gazette, dated 1.9.2011 (Annexure-L).
4. The petitioner claims to have removed the encroachers from the Dargha, constructed the shopping complex and let out the units therein. At that juncture, the eighth respondent Sri K.M.Rizwan Omar Pasha, Chairman of Ballari District Wakf Advisory Committee demanded that two units in the shopping complex be given to him. On the petitioner's failure to do so, the respondent No.8 locked the shopping complex with the support of the Wakf Officer. The petitioner lodged a complaint, dated 26.5.2014 (Annexure-Q) in that regard with the Chief Executive Officer of Karnataka State Board of Wakfs, Bangalore. The tenants of the units in the said shopping complex filed O.S.No.413/2014 in the Court of the Principal Civil Judge and JMFC, Bellary against the petitioner and Wakf Officer, the respondent No.5 herein. The Trial Court has granted an order of 7 status quo in the said suit proceedings. It is alleged that the respondent No.8 acted vindictively and filed a false complaint against the petitioner and got Smt. Khazi Nafeesa appointed as the Administrator on 16.7.2014 (Annexure-S) for a period of six months. The petitioner challenged the said order by filing W.P.No.107621/2014 and thereafter by filing W.A.No.100804/2014, but without any rate of success. This Court did not interfere in the order appointing the Administrator, as some lapses were alleged against the petitioner and as the enquiry was underway. It is the grievance of the petitioner that the enquiry proceedings are not being concluded and that they are being kept alive at the instance of the respondent No.8. Even a change in the enquiry officer has not taken the enquiry anywhere.
5. One more order was passed on 16.8.2016 (Annexure- AA) appointing the Deputy Commissioner as the Administrator. Pursuant thereto, the Chief Executive Officer, Karnataka State Board of Wakfs issued the order, dated 1.10.2016 (Annexure- AB) appointing the Deputy Commissioner as the Administrator 8 and directing the Wakf Officer to seek the necessary instructions from the Deputy Commissioner. Aggrieved by the same, the petitioner filed the revision petition before the State Government invoking Section 65(2) of the Wakf Act, 1995. The State Government (sixth respondent Revision Authority) initially granted status quo on 8.12.2016 and passed the final order on 19.12.2016 (Annexure - AE) allowing the revision petition. The said Revision Authority has found that the Administrator is appointed in contravention with the mandatory provision of law. The Revision Authority also refers to the adamant conduct of the Chairman, District Wakf Advisory Committee, who tore the interim order copy into pieces. In the operative portion of the order, the Revision Authority states that the revision petition is allowed, but he proceeds to continue the appointment of the Administrator and directs that the election be conducted to constitute the Management Committee for the said Dargha. Noting the violation of the interim order of status quo granted by the Revision Authority, the Revision Authority has directed the Karnataka State Board of Wakf to advise Sri Rizman Omar 9 Pasha, the respondent No.8 not to interfere directly with the Wakf Institution.
6. The petitioner's grievance is over the Revision Authority continuing the appointment of the Administrator even after holding that the order of appointment is in contravention with the mandatory provision of law. His further grievance is that as the petitioner is a hereditary Muthavalli, no election can be held to constitute the Management Committee of the said Dargha.
7. Sri Jayakumar S. Patil, the learned Senior Counsel appearing for Sri A. Mahamad Tahir for the petitioner submits that the order sheet, dated 31.5.2011 (Annexure-M) maintained by the Karnataka State Board of Wakf shows that a corrigendum was required to be issued to its order, dated 22.2.2011 (Annexure-H) for the purpose of showing the petitioner as the hereditary Muthavalli and to delete condition that the said order, dated 22.2.2011 is subject to the outcome of the enquiry. Pursuant thereto, the respondent No.1 issued the order, dated 21.6.2011 (Annexure-K) confirming the petitioner as the Muthavalli, which is also published in the Gazette (Annexure-L). 10
8. He submits that none of the factors mentioned in Section 64(1) of the Wakf Act, 1995 for the removal of Muthavalli is present in the case on hand. He submits that if any of the orders are to be taken as the order suspending the Muthavalliship of the petitioner, then the notice is to be given, an opportunity of hearing is to be given as per the proviso to Section 64(5) of the said Act. He submits that Section 65(1) of the said Act provides for the assumption of direct management of the Wakf by the first respondent Board only under two circumstances. (i) when no person is available for being appointed as a Muthavalli (ii) filling up of the vacancy in the office of the Muthavalli is prejudicial to the interests of the Wakf.
9. He submits that Rule 56 of the Karnataka Wakf Rules, 1997 requires the Chief Executive Officer of the State Board of Wakf to issue notice to the Muthavalli concerned against whom action is contemplated under Section 64 of the said Act. The notice is required to be given in Form No.79. The State Board of Wakf has to conduct the summary enquiry after putting the concerned Muthavalli on notice.
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10. He submits that the orders in question appear to have been passed in respect of an adjacent Wakf, namely, Hazarath Maqadhoom Jhani Dargha Masjid Committee. He also relies on this Court's decision in the case of ASTHAN-E-KHADRI TRUST AND OTHERS v. KARNATAKA STATE BOARD OF WAKFS AND OTHERS reported in ILR 2000 KAR 801. Paragraph No.16 read out by him is as follows:
"16. Section 65 is on par with Section 43A of 1954 of the Wakf Act. Sub-section (1) presupposes a vacancy in the office of Muthavalli of a Wakf. The Section authorises the Board to assume direct management of the Wakf institution in a case where no suitable person is available for appointment for the post of Muthavalli or where the Board is satisfied that the filling up of the vacancy will be prejudicial to the interest of the Wakf by issuing appropriate Gazette notification for a period not exceeding five years in the aggregate. The reading of the provisions clearly shows that it does not contain any provision for giving the concerned parties an opportunity to be heard before an order for assuming the direct management is made by the Board. But, the Courts have read into the provisions of the relevant Sections, a requirement of giving a reasonable opportunity of being heard to the 'persons interested' in the Wakf before an order is made by the Board for assuming direct management of the Wakf Institution."12
11. Smt. S.R. Anuradha, the learned counsel for the respondent Nos.1 and 2 submits that the orders in question are passed in exercise of the power conferred by Section 63 of the Wakf Act, 1995. Therefore the arguments raised with reference to Sections 64 and 65 of the said Act do not come to the rescue of the petitioner in any way. She submits that the arguments for attacking the orders appointing the Administrator were all raised by the petitioner's side in the earlier rounds of litigation - W.P.No.107621/2014 and W.A.No.100804/2014. The arguments are already negatived in the said proceedings.
12. She asserts that the impugned orders are passed in respect of Hazarath Maqadhoom Jhani Dargha only, in which the petitioner is interested. She submits that the sentence in the impugned order passed by the Revision Authority that the Administrator is appointed by the Wakf in contravention of the mandatory provision of law is by way of reference to the arguments and not by way of a finding. She submits that the word 'allowed' in the order portion of the impugned order appears to be a typographical error.
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13. Sri M.A. Subramani, the learned High Court Government Pleader appearing for the respondent Nos.3 and 6 submits that the revision petition is allowed to the extent indicated therein.
14. Sri M.G.S. Kamal, the learned counsel appearing for Sri Syed Imran for the respondent Nos.4, 5 and 8 submits that the allegations of tearing the Revision Authority's interim order copy is fallacious. He submits that some photographs of the incidents were produced on 19.12.2016 and that on the very same day the final order is passed. If the respondent Nos.4, 5 and 8 were only given full opportunity, they would have established that there is no truth in the allegations of tearing the order copy. He submits that aggrieved by that portion of the order, which pertains to the tearing of the interim order copy, he has already filed W.P.No.4098/2017.
15. He denies the allegation that the respondent Nos.4, 5 and 8 ever demanded that two units in the shopping complex be given to them. On the other hand, the petitioner has come out with baseless allegation, as the respondent No.4 is insisting 14 that the leasing of the unit should be in accordance with the norms and guidelines prescribed by the Wakf Board.
16. The submissions of the learned counsel have received my thoughtful consideration. There is much that is wanting on the part of the Revision Authority. While this Court does not expect the Revision Authority to write the orders as a legal professional does, but it has to atleast ensure that the order does not suffer from any ambiguity or vagueness. It would be appropriate if the Revision Authority first refers to arguments of both the sides, considers them and then arrives at judicious conclusion. The earlier part of the order has to contain the reasons which made the Revision Authority to give the directions. The sentence that the Administrator has been appointed by the Wakf Board in contravention of the mandatory provision of law is being interpreted by both the sides to suit their convenience. While it is the argument of the petitioner that it is the conclusion delivered by the Revision Authority, it is the argument of the respondents that the Revision Authority has 15 only used that sentence in the context of referring to the submission of the petitioner's learned advocate.
17. The respondent No.6 (Revision Authority) has stated that he has allowed the appeal but no relief whatsoever is given to the petitioner. If he has allowed the appeal, he has to specifically state whether the orders challenged before him are upheld or set aside or modified.
18. Nextly, I do not see any co-relation between the earlier part of the order and the conclusions reached by the respondent No.6. In the operative portion of the order he has directed that the elections to the Management Committee of the Dargha in question be held as per the model scheme of administration. The pleadings of the parties do not disclose that any of them has made any request for holding the elections. In any case, holding of the elections to the position of a hereditary Muthavalli does not arise at all. The enquiry into whether the Muthavalliship in question is of hereditary in nature itself is abandoned, as the complainant did not press and prosecute his complaint. As of now, the position is that the concerned 16 authorities have acquiesced to the fact that the Muthavalliship in question is of hereditary nature.
19. The respondent No.6 ought to have given an opportunity to the respondent No.8 to defend himself against the allegations that he tore the sixth respondent's interim order into pieces. On his giving the adequate opportunities to both the parties, he has to pass the necessary order on the allegation.
20. For all the aforesaid reasons, I find that the impugned order passed by the Revision Authority is absolutely unsupportable and unsustainable. I therefore quash it. The matter is remanded to the respondent No.6 for disposing of the petitioner's revision petition afresh and in accordance with law. The parties herein and/or their respective learned advocates shall be present before the respondent No.6 at 3.00 p.m. on 16.2.2017 without waiting for any notice from him. Further, the parties are directed to co-operate with the respondent No.6 in the speedy disposal of the remanded matter. The respondent No.6 is directed to dispose of the remanded matter within three 17 weeks from 16.2.2017. If necessary, he shall take it up on day- to-day basis.
21. Needless to observe that all the contentions are left open to be urged before him. I do not propose to express any opinion on the sustainability or otherwise of the other impugned orders, as they constitute subject-matter of the remanded matter. It shall also be open to the petitioner to seek appropriate interim directions from the Revision Authority.
Sd/-
JUDGE VGR/MD