Karnataka High Court
Hussainbashya S/O Abdul Gafur Sayyad ... vs Karnataka State Board Of Waqfs And Ors on 18 January, 2016
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.No.202904/2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2016
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.202904/2015 (GM-WAKF)
BETWEEN:
1. Hussainbashya
S/o Abdul Gafur Sayyad Ameen
Age: 66 years
Occ: Social Work
R/o Managuli Agasi
Vijayapura - 586 101
2. Muktihar Ahmed
S/o Hussainbashya Sayyad Ameen
Age: 38 years
Occ: Rickshaw Driver
R/o Managuli Agasi
Vijayapura - 586 101
3. Manjarilabi
S/o Hussainbashya Sayyad Ameen
Age: 64 years, Occ: Coolie
R/o Managuli Agasi
Vijayapura - 586 101
4. Ijaj Ahammad
S/o Hussainbashya Sayyad Ameen
Age: 29 years
Occ: Rickshaw Driver
2
W.P.No.202904/2015
R/o Managuli Agasi
Vijayapura - 586 101
5. Hussain Bashya
S/o Rajesab Shaik
Age: 42 years
Occ: Auto Driver
R/o Managuli Agasi
Vijayapura - 586 101
6. Isak
S/o Chandpeer Mulla
Age: 46 years
Occ: Agriculture
R/o Kaman Khan, Bazar road
Vijayapura - 586 101
7. Aspak
S/o Hajilal Sharapyade
Age: 46 years
Occ: Electrical work,
R/o Managuli Agasi
Vijayapura - 586 101
8. Harun S/o Mehaboob Mulla
Age: 40 years
Occ: Business
R/o Kaman Khan
Vijayapura - 586 101
... Petitioners
(By Sri Veeranagouda, Advocate for
Sri P.S. Malipatil, Advocate)
3
W.P.No.202904/2015
AND:
1. Karnataka State Board of Waqfs
By its Chief Executive Officer
No.6, Cunnigham road
Bangalore - 52
2. The Deputy Commissioner
Vijayapura, Dist: Vijayapura - 586 101
3. The Superintendent Archeological
Survey of India
Department (Historical Monuments)
Vijayapura District
Golagumbaj, Vijayapura - 586 101
4. The Secretary Ayurveda Vidyalaya Samitee
Ayurveda Maha Vidyalaya
Managuli road
Dist: Vijayapura - 586 101
5. Salim S/o Sayyadmeera Mujavar
Aged 49 years,
Occ: Advocate, R/o Mujavar Galli
Vijayapura - 586 101
6. Javeed S/o Abdulrazak Sharpyade
Aged 54 years, Occ: Coolie,
R/o Kirti Nagar,
Vijayapura - 586 101
7. The Secretary Rosen Masjid Committee
Kirti Nagar, Vijayapura - 586 101
... Respondents
(By Smt. Archana P. Tiwari, AGA,
Sri J.K. Bukka, ASGI for R3,
Sri D.P. Ambekar, Advocate for C/R4)
4
W.P.No.202904/2015
This Writ Petition is filed under Articles 226 & 227
of the Constitution of India, praying to issue a writ in
the nature of certiorari to quash the order in case
No.KTW/BJR/SR/O.S. No.1/2011 dated 27.01.2015
passed by the Wakf Tribunal, Belgaum Division,
Belgaum vide Annexure-E.
This petition coming on for Preliminary Hearing
this day, the Court made the following:
ORDER
Petitioners invoking the supervisory jurisdiction under Article 227 of Constitution of India have presented this petition calling in question the judgment dated 27.01.2015 in KWT/BJR/SR/OS.1/2011 of the V Addl. District and Sessions Judge and Karnataka Wakf Tribunal, Belagavi dismissing the suit to declare that properties bearing CTS No.605/1/1a/2 measuring 1052184 Sq.mts. and CTS No.605/1A/1A-2 measuring 67579.1/2 Sq.mts. registered under the Wakf Act, 1995 as a burial ground exclusively meant for Muslim community and for perpetual injunction. 5 W.P.No.202904/2015
2. In the suit it is asserted that petitioners are interested persons in respect of the Wakf registered with Karnataka Board of Wakf under the Wakf Act, 1995 bearing certificate of registration No.KBW/REG/5/BJR/97-98 dated 28.08.1997 Ex.P12. That the State of Karnataka the second respondent let on lease the said immovable properties to the sixth respondent, Secretary of Ayurveda Vidyalaya Samitee, Ayurveda Mahavidyalaya during the year 1962-63, for educational purposes. It is further alleged that the fifth respondent Archeological Survey of India had no jurisdiction to issue directions not to bury the dead belonging to Muslim community and put any constructions within 100 mts from the boundary of the Archeological site known as Darga Abul Hasan Khadri. Petitioners asserted that the burial of the dead belonging to the Muslim community in the aforesaid area notified as a registered Wakf, was customary and usage is since ancient times.
6W.P.No.202904/2015
3. That suit was resisted by filing written statement of the first respondent Karnataka State Board of Wakf though admitted the fact of registration of the Wakf, nevertheless stated that there is no cause of action for the suit. The fifth respondent filed written statement inter alia advancing the plea that the properties fell within the jurisdiction of the Ancient Monuments Act, 2010 and therefore reliefs in the plaint were unavailable particularly within the area measuring 100 mts from the archeological sites. The sixth respondent filed written statement denying the claim of the plaintiffs and asserted that the said properties were Government properties handed over to the sixth respondent to establish a college during the year 1962-63. The Wakf Tribunal framed the following issues:
1. Whether the plaintiffs prove the suit property is exclusively used as grave yard for Muslim persons and that the 6th 7 W.P.No.202904/2015 defendant has not right to construct any building therein?
2. Whether further prove that they are in its lawful possession?
3. Whether the 6th defendant proves that the present suit is hit by principles of res-judicata?
4. Whether the suit valued is improper and court fee paid is insufficient?
5. Whether the 5th defendant proves that the suit property falls within 100 meters radius of declared Ancient Monument and Archeological Sites Remains Act 2010 and hence the plaintiffs are prohibited from using the said property as grave yard?
6. Whether the defendant No.5 proves that any lease or grant in favour of 6th defendant in respect of suit property is prohibitive under Ancient Monument and Archeological Sites Remains Act 2010 and any sort of activity by the plaintiff or the defendant is violation of the act and liable under Section 30 of the said Act?
7. What relief the parties are entitled to?8 W.P.No.202904/2015
4. The first and sixth petitioners were examined as PW.1 and PW.2 respectively, whence 77 documents were marked as Exs.P1 to P77, while for the defendants none were examined but documents Exs.D1 to D3 were marked in the cross-examination of the plaintiffs.
5. The Tribunal having regard to the material on record, the evidence both oral and documentary and the pleadings of the parties, returned findings in the negative over the issues 1 to 6 and dismissed the suit by the judgment impugned.
6. Except for the self-interested testimony of PW.1 and PW.2 i.e. the petitioner Nos.1 and 6 respectively there was not a titre of evidence to corroborate the said oral testimony either over customary usage from the ancient times or time immemorial over burial of dead belonging to Muslim community in the plaint schedule property. In fact, the Tribunal having appointed the 9 W.P.No.202904/2015 Asst. Commissioner of Bijapur as Court Commissioner, secured a report which detailed the fact that there were 13 buildings in the suit schedule properties belonging to the BLDEA college, the sixth respondent; in the property bearing No.610G a Masjid known as Iklaskhan Masjid which 5 graves existed in front of the construction. Although PW.1 claimed that there were 25 graves in the suit property the report of the Commissioner was to the contrary and in fact there were no graves at all. PW.2 in cross-examination admitted that Iklashkhan Masjid is situated in Sy.No.610 'G' and Sy.No.610 belongs to the Archeological Department. Although PW.2 orally stated that there were 1000 graves, nevertheless was a self serving statement. In the absence of relevant material constituting substantial legal evidence of customary rights of burial of dead persons belonging to the Muslim community in the plaint schedule property, the Tribunal by the judgment impugned returned findings in the negative against the plaintiffs. In addition the Wakf 10 W.P.No.202904/2015 Tribunal observed that plaintiffs failed to prove possession of the immovable properties while it was the sixth defendant who was in possession and constructed buildings pursuant to the lease extended by the State Government during the year 1962-63 and on that score also the Tribunal recorded findings against the plaintiffs. The fifth respondent Archeological Survey of India having failed to establish its defence that the suit properties were ancient monuments and fell within the purview of the Ancient Monuments Act, 2010, the Tribunal answered the issue in the negative.
7. Regard being had to the findings of fact recorded by the Tribunal which are not shown to be illegal or occasioned grave injustice much less miscarriage of justice, petition deserves to be dismissed and is accordingly dismissed.
Sd/-
JUDGE sdu