Karnataka High Court
Sayyed Asadulla Hussaini S/O Sayyed ... vs Sayyed Ameerulla Hussaini & Ors on 26 June, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA,
GULBARGA BENCH
DATED THIS THE 26TH DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.15845/2013
C/W
CIVIL REVISION PETITION NO.2029/2013
CRL. P. 15845/2013
BETWEEN:
Sayyed Asadulla Hussaini
S/o Sayyed Imam Jaffar Hussaini
Aged about 51 years,
Occupation: Mutawalli
R/o Kakkalameli building,
Near Remand Home
Station Road, Bijapur.
...PETITIONER
(By Shivanand V. Pattanashetti, Advocate)
AND:
1. Sayyed Ameerulla Hussaini
S/o Sayyed Moinuddin Hussaini
Aged about 65 years,
Occupation: Agriculture
R/o Darga Hazarat Khawaja
2
Ammeenuddin Ali Ala Bijapur
Station Road, Bijapur.
2. Sayyed Tanzirpasha Hussaini
S/o Sayyed Moinuddin Hussaini
Aged about 35 years,
Occupation: Agriculture
R/o Darga Hazarat Khawaja
Ammeenuddin Ali Ala Bijapur
Station Road, Bijapur.
3. Sayyed Zameer Pasha Hussaini
S/o Sayyed Afsar Pasha Hussaini
Aged about 65 years,
Occupation: Agriculture
R/o Darga Hazarat Khawaja
Ammeenuddin Ali Ala Bijapur
Station Road, Bijapur.
...RESPONDENTS
(By Shri Ameet Kumar Deshpande, Advocate
for respondent-1 to 3 (v/k filed but NOC not obtained) )
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973 praying that set aside the
order passed by the II Additional Sessions Judge at Bijapur
passed in Criminal Revision Petition No.181/2013 dated
20.08.2013 and the order by the III Additional Senior Civil
Judge and J.M.F.C. at Bijapur passed in Crl. Misc.No.38/2010
dated 06.07.2013 by allowing this petition, in the interest of
justice and equity.
3
CRP. 2029/2013
BETWEEN:
Syed Asadulla Hussaini
Aged about 50 years,
Sajjadanasheen and Muthavalli of
Dargah Hazrath Khaja Ameenuddin Ali Aala (R.A.)
Bijapur
S/o Imam Jaffar Hussaini, late
Residing at CTS No.631
Station Road,
Bijapur- 586 104.
...PETITIONER
(By R.S. Sidhapurkar, Advocate)
AND:
1. The Karnataka State Board of Wakfs
Darul Awkaf, No.6 Cunningham Road,
Bangalore - 560 052.
Represented by its
Chief Executive Officer.
2. The Chief Executive Officer
Karnataka State Board of Wakfs
Darul Awakaf, No.6
Cunningham Road,
Bangalore - 560 052.
3. Syed Ameerulla Hussaini
S/o Syed Moinuddin Hussaini, late,
Aged about 65 years,
Occupation: Agriculture
R/o Near Jail, Darga Mohalla of
4
Hazrath Khaja Ameenuddin Ali Aala
Bijapur.
4. Syed Tanzir pasha Hussaini
S/o Syed Shabbir Pasha Hussaini
Aged about 33 years,
Occupation: Agriculture
Residing Near Jail, Darga Mohalla of
Hazrath Khaja Ameenuddin Ali Aala
Bijapur.
5. Syed Zameer Pasha Hussaini
S/o Afsar Pasha Hussaini, late,
Aged about 31 years,
Occupation: Agriculture
Residing Near Jail, Dargah Mohalla of
Hazrath Khaja Ameenuddin Ali Aala
Bijapur.
...RESPONDENTS
(By Shri Mohammed Shamsuddin, Caveat Advocate
for respondent-1 and 2
Shri Ameet Kumar Deshpande, Caveat Advocate
for respondent-3 )
This Civil Revision Petition is filed under Section 83(9)
of the Karnataka Wakf Act, 1955, praying to set aside the
impugned order dated 07.07.2010 passed by the Karnataka
Wakf Tribunal, Belgaum Division, Belgaum in application
No.KWT/BJR/SR-7/2010 and consequently pass an order
quashing / setting aside the order dated 05.05.2010 passed by
the 2nd respondent-Chief Executive Officer of the Board which
was impugned in the said application No.KWT/BJR/SR-
5
7/2010, by allowing this Revision Petition, in the interest of
justice and equity.
These petitions are coming on for Admission this day,
the Court made the following :-
ORDER
The present petitions are heard and disposed of by this common order as they are preferred by the same petitioner.
2. The petition in Criminal Petition No.15845/2013 is preferred against the order dated 6.7.2013 passed in Criminal Revision Petition No.181/2013 before the Court of the II Additional Sessions Judge, Bijapur dated 20.8.2013.
CRP 2029/2013 is filed under Section 83(9) of the Wakf Act, 1995 (Hereinafter referred to as the 'Wakf Act', for brevity).
3. The brief facts are as follows:
The respondents herein had approached the III Additional Senior Civil Judge, Bijapur in Criminal Miscellaneous 6 No.38/2010, seeking an order against the petitioner herein to hand over charge along with the properties of Darga Hazarat Khawaja Ameenuddin Ali Ala, Bijapur. It was contended that they had approached the Karnataka Wakf Board with a petition against the petitioner seeking his removal as Mutavalli under Section 64 of the Wakf Act and the Karnataka Wakf Board, Bangalore had conducted an inquiry in proceedings Enq-93/BJR/2009 and had passed an order dated 17.4.2010, whereby the petitioner herein had been directed to hand over charge along with other articles of Darga Hazarat Khawaja Ameenuddin Ali Ala, Bijapur.
It was stated that the land bearing Survey No.797 measuring 27 acres 15 guntas of Mahalbagayat, Bijapur was property belonging to the Darga apart from other properties and that apart from alienating portions of the property in favour of third-parties illegally, the petitioner had got mutation entries effected in respect of other portions in the name of his wife and children. It is in this background that the complaint was made. 7
At the inquiry, the inquiry officer had afforded an opportunity to the petitioner and it is significant to note that the petitioner had admitted the allegations and other acts relating to properties and that it was a mistake on his part and he had sought forgiveness. It is on that note that the inquiry officer recommended to the Wakf Board as under:-
"1. To remove Sri Syed Asadulla Hussaini, S/o Syed Imam Jaffar Hussaini as Muthavalli of Dargah Hazrath Syed Khaja Ameenuddin Ali Shah, Bijapur, as he has violated the provisions of the Wakf Act, 1995, failed to submit the Budget Estimate audited statement of accounts, non-payment of Wakf contribution, fraudulently dealt with the properties of the said Wakf and has abused his position and knowingly acted in a manner prejudicial to the interest of the Wakf for the above reasons.
2. To initiate action under Section 51 of the Wakf Act, 1955 to recover the Wakf property transferred/ sold in contravention of Section 51 by the Muthavalli.
3. In the clear vacancy caused due to removal of Sri Syed Asadulla Hussaini, S/o Syed Imam Jaffar Hussaini as Muthavalli, Sri Ammerulla Hussaini, S.o Syed Moinuddin Hussaini may be appointed as 8 Muthavalli and two other CO-Muthavallies viz., Syed Tanzir Pasha Hussaini, S/o Syed Shabbir Pasha Hussaini and Sri Syed Zameer Pasha Hussaini, S/o Afsar Pasha Hussaini, in the interest of Wakf Institution as they are lineal descendants of the said Saint."
The petitioner had then filed an application under Section 83(2) read with Section 64(4) of the Wakf Act, questioning the above order as well as the consequential order passed by the Chief Executive Officer, Karnataka State Board of Wakfs before the Presiding Officer, Karnataka Wakf Tribunal, Belgaum Division. The said authority, had by his order dated 7.7.2010 dismissed the application. Challenging the said dismissal, writ petitions were filed before the court in WP 82615-617/2010, whereby this court by its order dated 17.4.2013, has confirmed the order passed by the Tribunal. Against which, a writ appeal was filed. In the writ appeal, it was held by a division bench of this court, that the writ petitions were not maintainable against an order passed by the Tribunal 9 and it was for the petitioner to prefer a revision petition and had proceeded to set aside the order passed by the learned Single Judge. It is in that background that the present Civil Revision Petition is filed.
4. The learned Counsel for the petitioner seeks to canvass the following contentions:
Firstly, it is contended that as could be seen from the sequence of events that the inquiry officer and the administrator are one and the same person. The Wakf Act contemplates that any recommendation after an inquiry held in terms of Section 64(3) of the Wakf Act, the Wakf Board, in turn, would take a call on the recommendations and would pass an order if atleast two-thirds of the members of the Board are present. In the present case on hand, since the inquiry officer in one capacity having made the recommendation, the same officer, as an Administrator on the supercession of the Wakf Board, has also taken a decision on his own recommendation to remove the petitioner. It is contended that the order is 10 vitiated on account of bias and lack of jurisdiction. The learned Counsel for the petitioner would contend that the Wakf Act prescribes that the recommendation made by the inquiry officer shall be considered by the Board with two-third of its members being present. By virtue of office as an Administrator, the Administrator could not claim to be acting as the Board at all as it would run counter to the language and tenor of Section 64(3) which requires the Board alone to take a decision.
It is secondly contended that there were several documents, which were produced along with the writ petition, which would clearly indicate that the land in question was subject matter of proceedings before the Land Tribunal under the Karnataka Land Reforms Act, 1961 and that the occupancy rights in respect of the land have been conferred on the petitioner and other members of the family and also certain others. Therefore, notwithstanding any statements made, which have been recorded by the inquiry officer to the contrary, the 11 fact remains that there are occupancy rights conferred by a duly constituted Land Tribunal and in the absence of any challenge to the said orders of the Land Tribunal and as long as those orders are in force, it would be incorrect to hold that the allegations made would be contrary to law or that there can be any parallel orders pertaining to the very same lands and hence, the inquiry officer's recommendations having been acted upon, and the further recommendations made to recover the property etc., would not be enforceable in the absence of any challenge to the orders passed by the Land Tribunal.
Thirdly, that the inquiry has not been conducted in accordance with law. In that, Section 64(3) of the Wakf Act prescribes that no action shall be taken by the Board unless it has held an inquiry into the matter in a prescribed manner and a decision has been taken by a majority of not less than two-third members of the Board. Therefore, in the absence of the Board itself, the question of any such decision being taken, would not arise. But in any event, even if the Administrator could act as 12 the Board, the procedure insofar as conducting an inquiry as contemplated under Rule 56(2) read with Sub-rule (2) of Rule 37 of the Karnataka Wakf Rules, 1997, is not complied with, in that, no evidence has been recorded in the manner that it ought to have been and therefore, there is no valid procedure followed in holding an inquiry and the entire proceedings would be vitiated on account of the same. It is to substantiate these primary contentions, the learned Counsel for the petitioner would seek to take this court through the record.
5. Insofar as the Criminal Petition is concerned, it is the consequential orders passed by the Court of the Magistrate subsequent to the impugned order, that are sought to be questioned therein. Therefore, the result of the revision petition under Section 83(9) of the Wakf Act would also apply in considering the validity or legality of the impugned orders in the criminal petition.
6. While the learned Counsel for the respondents, would contend that insofar as the allegation that the inquiry officer, 13 who was the Chief Executive Officer also being the Administrator and having acted in a dual capacity was illegal and the acts are vitiated by bias and lack of jurisdiction is concerned, it is pointed out that it is not correct to hold that the Chief Executive Officer, who had conducted the inquiry and the Administrator who has passed the order on the recommendations made, are one and the same. Or even if it is to be accepted that they were one and the same, there is no want of jurisdiction. In this regard, the learned Counsel has placed before the court a Notification issued by the State Government in terms of Section 99 of the Wakf Act, whereby the Karnataka Wakf Board has been superceded and an Administrator has been appointed, who has been vested with all the powers of the Board. In that circumstance, the letter and language of sections referring to Board or the quorum for any meetings or decisions of the Board, would stand eclipsed and the Administrator would certainly be in a position to act as the Board itself. The question of quorum or two-third majority of the members 14 being present in such a situation would not arise and hence to claim that the Administrator can only perform such functions which are in the nature of routine matters and cannot exercise such powers that can be exercised by the Board is an incorrect interpretation. The language of Section 99 of the Wakf Act is clear, in that, the administrator would have all such powers as are vested in him by the State Government, as the notification issued by the State Government is categorical and it confers all the powers that the Board possessed on the Administrator and it is in exercise of power so vested in him that an order of removal has been made. Therefore, there is no illegality and it is a coincidence that the inquiry officer and the Administrator, acting in the stead of the Board, has been required to discharge his functions. This cannot be characterised as being bad in law, since such an action is by virtue of force of circumstances and would have to be reconciled with the situation.
In so far as the further contention that there were several additional documents, which have not been looked into and 15 which would nullify the orders passed for recovery of the properties, namely, that the very properties were subject matter of proceedings before the Land Tribunal and there being orders of occupancy rights in respect of the said lands in favour of the petitioner, any orders passed parallelly under the provisions of the Wakf Act would be a nullity without the orders of occupancy rights granted by the Land Tribunal being set aside, is contended, is also not tenable, if it is candidly admitted by the petitioner that these applications seeking occupancy rights filed by the petitioner were made during the time when he was Mutavalli of the very properties and that by itself would constitute a grave criminal act on the part of the petitioner in having made a misrepresentation and having fraudulently obtained orders of occupancy rights. Therefore, it would not lie in the mouth of the petitioner especially before this court to declare that this was the conduct of the petitioner. It would require this court to take stringent action against the petitioner in respect of such declared acts of illegality and therefore, it 16 would not be available for the petitioner to contend that the orders of the Land Tribunal which are void for misrepresentation and should be challenged in independent proceedings before effect could be given to orders passed under the provisions of the Wakf Act. This would be wholly unnecessary as this court can take into account the declared illegality by the petitioner and pass appropriate orders in so far as the alleged occupancy rights conferred on the petitioner by virtue of the orders of the Land Tribunal.
The third contention as regards the procedure that has been followed in recording evidence etc., is also not tenable as the record would reveal that the inquiry was conducted in accordance with sub-rule (2) of Rule 37 and is in due compliance of Rule 56 as well as Section 64(3) of the Act.
7. In the light of the above rival contentions, insofar as the first ground namely, that the inquiry officer could not have acted both in the capacity of an inquiry officer as well as an 17 Administrator, in the stead of the Board, is concerned, though it is disputed that the inquiry officer and the Administrator were the same person and even if it is found to be the same person, in the opinion of this court, having regard to the admitted circumstances, where after the inquiry was conducted, the Board having been superceded and an Administrator having stepped in and having exercised power which was certainly vested in him by the State Government, in accepting the recommendations made under the inquiry report and in passing an order of removal of Mutavalli, is valid in law, as it would be saved by the "Doctrine of Necessity", and no bias can be attributed to the officer who was acting in such capacity.
Insofar as the second contention that there were orders of occupancy rights conferred on the petitioner and hence any orders passed under the Wakf Act for recovery of some properties would be a nullity is also not tenable. As rightly pointed out by the learned Counsel for the respondents, the petitioner has candidly declared that he had sought for 18 occupancy rights of the lands in question while he was also acting as a Mutavalli. This is clearly illegal and any orders passed by the Land Tribunal would be vitiated on account of clear misrepresentation on the basis of which, such occupancy rights have apparently been granted. Therefore, the occupancy rights claimed by the petitioner on the basis of the orders passed by the Land Tribunal, are a nullity and void in law and hence, cannot be enforced by the petitioner, in which event, the orders passed under the provisions of the Wakf Act would prevail. It is possible for the concerned to enforce the same in due course. There is no substance in the argument that is canvassed that unless the orders of occupancy rights granted by the Land Tribunal are set aside, the orders passed under the Wakf Act could not be enforced. It is declared that the orders of the Land Tribunal are obtained by fraud and void ab initio and non-est. Insofar as the inquiry conducted and the same being illegal and not being in accordance with the procedure, is also 19 not tenable. In any event, the petitioner having acceded to the jurisdiction and having gone through the motions of the inquiry, cannot now complain of the same being vitiated after having suffered orders which are adverse to his interest. Therefore, there is no substance in the revision petition and the same is dismissed. Consequently, the criminal proceedings would not survive as the orders passed by the Magistrate are merely consequential to the orders which are under challenge in the revision petition. The Criminal Petition is also dismissed. It would be open for the Wakf Board or the authorities under the Wakf Act to take such criminal action against the petitioner in the face of his declared actions pertaining to making false representations before the Land Tribunal in seeking occupancy rights in respect of the land in question.
Sd/-
JUDGE nv