Karnataka High Court
Karnataka Waqfs Protection vs The Secretary To Government on 5 April, 2018
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL 2018
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION NO. 13182 OF 2018 (GM-WAKF)
BETWEEN:
KARNATAKA WAQFS PROTECTION
JOINT ACTION COMMITTEE (REGD.)
No.2, CARIAPPA BHAVAN, RESIDENCY ROAD,
BANGALORE - 560 025,
REP. BY ITS GENERAL SECRETARY,
M. J. ALI. ... PETITIONER
(BY SRI B. A. BELLIAPPA, ADV.)
AND:
1. THE SECRETARY TO GOVERNMENT
MINISTRY WELFARE DEPARTMENT & WAQF,
2ND FLOOR, VIKAS SOUDHA,
BENGALURU - 560 001.
2. ADMINISTRATOR
KARNATAKA STATE BOARD OF WAQF,
No.6, CUNNINGHAM ROAD,
BENGALURU - 560 052.
3. THE CHIEF EXECUTIVE OFFICER
KARNATAKA STATE BOARD OF WAQF,
No.6, CUNNINGHAM ROAD,
BENGALURU - 560 052. ... RESPONDENTS
(BY SRI VIJAYA KUMAR A. PATIL, AGA FOR R-1)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH/SET ASIDE THE ORDER PASSED BY THE
RESPONDENT NO.3 IN ORDER DATED 12.03.2018 AT
ANNEXURE-D; QUASH/SET ASIDE THE ORDER PASSED
BY THE RESPONDENT NO.3 IN ORDER DATED 12.03.2018
PRODUCED AT ANNEXURE-E AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, Karnataka Waqfs Protection Joint Action Committee, is aggrieved by two orders, both dated 12.03.2018, (Annexures 'D' and 'E' respectively), whereby the Administrator, who has been appointed in place of the Waqf Board, has appointed a new District Waqf Advisory Committee for Bengaluru North and Bengaluru South.
2. According to the petitioner, by notification dated 19.08.2011, the Government constituted the Waqf Board for a period of five years, i.e., from 19.08.2011 to -3- 18.08.2016. However, instead of reconstituting a fresh Board at the expiry of the term, by notification dated 19.08.2016, the State Government has appointed an Administrator to manage the day to day affairs of the administration of the Board for a period of six months. Consequently, Mr. Mohsin, I. A. S., Secretary to the Government, Minority Welfare Department, was appointed as the Administrator of the Karnataka Waqf Board. Acting as an Administrator, the respondent No.2, has bifurcated Bengaluru district into Bengaluru North and Bengaluru South, by the orders dated 12.03.2018, and has appointed members for the District Waqf Advisory Committee, both for Bengaluru North and Bengaluru South. Hence this petition before this Court.
3. Mr. B. A. Belliappa, the learned counsel for the petitioner, submits that the State does not have the power to appoint an Administrator in place of the -4- Board. Therefore, the very appointment of the Administrator, is an illegal one. Secondly, according to Regulation 18 of the Government Wakf Regulations, 2010 ('the Regulations', for short), the jurisdiction of a District Waqf Advisory Committee shall extend to the whole of a Revenue District. Therefore, the Administrator was not justified in dividing Bengaluru District into Bengaluru North and Bengaluru South. Therefore, the bifurcation and the appointment of the District Waqf Advisory Committee is contrary to Regulation 18 of the Regulations. Hence the impugned orders are legally unsustainable. Therefore, the impugned orders deserve to be set aside by this Court.
4. Heard the learned counsel for the petitioner.
5. The first contention raised by the learned counsel need not be entertained by this Court. For, the petitioner has not challenged the appointment of the Administrator made by the Government, by notification -5- dated 19.08.2016. Therefore, the issue whether the appointment is a legal one, or an illegal one, need not be adjudicated by this Court.
6. Even otherwise, Section 99 of the Waqf Act, 1995 ('the Act', for short), is as under:-
99. Power to supersede Board.- (1) If the State Government is of opinion that the Board is unable to perform or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, or has willfully and without sufficient cause failed to comply with any direction issued by the Central Government under section 96 or the State Government under section 97, or if the State Government is satisfied on consideration of any report submitted after annual inspection, that the Board's continuance is likely to be injurious to the interests of the auqaf in the State, the State Government may, by notification in the Official Gazette, supersede the Board for a period not exceeding six months:
Provided that before issuing a notification under this sub-section, the State Government -6- shall give a reasonable time to the Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Board.
Provided further that the power of the State Government under this section shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of this Act.
(2) Upon the publication of a notification under sub-section (1) superseding the Board,-
(a) all the members of the Board shall, as from the date of supersession, vacate their offices as such members;
(b) all the powers and duties which may, by or under the provisions of this Act, be exercised or performed by or on behalf of the Board shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct; and
(c) all property vested in the Board shall, during the period of supersession vest in the State Government.-7-
(3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the State Government may-
(a) extend the period of supersession by another six months with reasons to be recorded in writing and, the period of continuous supersession shall not exceed more than a year;
or
(b) reconstitute the Board in the manner provided in section 14."
Therefore, Section 99 of the Act, does bestow ample power upon the Government to appoint a person or persons in place of the Board. Therefore, the first contention raised by the learned counsel that the Administrator could not be appointed by the State, is clearly untenable. It is, indeed, trite to state that according to Section 99 of the Act, all the powers and duties which may be exercised or performed by or on behalf of the Board, shall vest on the Administrator during the period of supersession. Therefore, the -8- Administrator is bestowed with all the powers and duties of the Board.
7. Section 18 of the Act is as follows:-
"18. Committees of the Board. - (1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of Auqaf.
(2) The constitution, functions and duties and the term of office of such committees shall be determined from time to time by the Board:
Provided that it shall not be necessary for the members of such committees to be members of the Board."
(Emphasis supplied) Thus, clearly Section 18 of the Act empowers the Board to establish, either generally or for a particular purpose, or for any specified area or areas, Committees for supervision of Auqaf. Thus, the Board does have the power to establish a Committee for any specific area. -9-
8. Regulation 15 of the Regulations is as under:-
"15. Constitution of District Wakf Advisory Committee.- (1) The Board shall constitute for every district of the State, Committee under sub-section (1) of Section 18 of the Wakf Act, called District Wakf Advisory Committee consisting of members including Chairman and two Vice-Chairmen which shall not be less than 11 (eleven) and shall not be more than 21 (twenty-one).
(2) The Board members residing in the District shall be the ex-officio member of the District Wakf Advisory Committee."
Thus, Regulation 15 of the Regulations clearly stipulate that the Board shall constitute for every district of the State, Committee under Sub-Section(1) of Section 18 of the Act, called District Waqf Advisory Committee, consisting of Members, including Chairman and two Vice-Chairmen, which shall not be less than eleven members, and shall not be more than twenty-one members. Therefore, under Regulation 15, the Board,
- 10 -
and thereby the Administrator, does have the power to constitute to every district of the State, a District Waqf Advisory Committee.
9. Regulation 18 of the Regulations is as follows:-
"18. Jurisdiction of District Wakf Advisory Committee. - The jurisdiction of District Wakf Advisory Committee shall extend to the whole of a Revenue District."
Hence, Regulation 18 of the Regulations certainly stipulates that the jurisdiction of the District Waqf Advisory Committee shall extend to the whole of the Revenue District. Therefore, the issue is, whether the jurisdiction of the District Waqf Advisory Committee can be curtailed by the Board, and be limited to the specific area bifurcated, or created by the Board for establishing of a Committee or not ?
10. Obviously, a harmonious reading has to be done of Section 18 of the Act, read with Regulations 15 and 18 of the Regulations. The very purpose of
- 11 -
appointing a Committee is to ensure that the function and the maintenance of the Waqf properties is carried out in a simplified and in a streamline manner. It is in order to ensure that the Committees carry out their functions in an efficient manner that Section 18 of the Act bestows the power on the Board. Moreover, Section 18 of the Act does not contain any stipulation that the jurisdiction of such Committee shall be for the whole of the Revenue District. Thus, obviously, the jurisdiction of any Committee can be confined to the area for which the Committee has been appointed, and need not necessarily extend to the entire Revenue District.
11. Regulation 15 of the Regulations has to be read in light of Section 18 of the Act. Regulation 15 also bestows a power upon the Board, thereby upon the Administrator, to constitute for every district of the State, a District Waqf Advisory Committee. Of course, Regulation 18 of the Regulations does claim that the
- 12 -
jurisdiction of the District Waqf Advisory Committee shall extend to the whole of the Revenue District, however, Regulation 18 of the Regulations has to be read in light of the power bestowed upon the Board under Section 18 of the Act, and Regulation 15 of the Regulations. Needless to say, Regulation 18 of the Regulations cannot supersede, or be contrary to the parental Act, specifically to Section 18 of the Act. In case Regulation 18 is read in its plain and grammatical meaning that the jurisdiction of the Committee would extend to the entire Revenue District, obviously Regulation 18 is contrary to the powers bestowed upon the Board under Section 18 of the Act. Thus Regulation 18 necessarily has to be interpreted in the light of Section 18 of the Act. If so interpreted, Regulation 18 would have to be read down to mean that the jurisdiction of the District Waqf Advisory Committee shall extend to the specific areas specified by the Board,
- 13 -
and not beyond to the territorial jurisdiction so specified by the Board.
12. A perusal of Section 18 of the Act, read with Regulation 15 of the Regulations, clearly reveals that the Board does have the power to specify the area within which the District Waqf Advisory Committee has to function. Thus, the Board does have ample power to bifurcate Bengaluru District into Bengaluru North and Bengaluru South. Since the Board has the said power, obviously, the Administrator who has stepped into the shoes of the Board under Section 99 of the Act, too has ample power to bifurcate Bengaluru District into Bengaluru North and Bengaluru South. Therefore, the impugned orders passed by the Administrator are in consonance with Section 18 of the Act, read with Regulation 15 of the Regulations, and with the powers bestowed upon him under Section 99 of the Act.
- 14 -
13. For the reasons stated above, this Court does not find any merit in the present writ petition. It is hereby dismissed.
SD/-
JUDGE RD