Karnataka High Court
Syed Mohammed Adil Pasha Khadri vs Karnataka Board Of Wakfs, Bangalore And ... on 27 January, 2000
Equivalent citations: ILR2000KAR2865, 2000(5)KARLJ290
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER
1. The petitioner has filed this writ petition assailing the order at Annexure-M, dated 8-10-1998 passed by the first respondent-Wakf Board (hereinafter referred to as 'the Board') under Section 65 of the Wakf Act, 1995 (hereinafter referred to as 'the Act') appointing an Administrator to Dargah Hazrath Mardan-e-Ghaib at Shivanasamudram.
2. The brief facts of the case are as under.--
(a) One Syed Mohammed Peer Pasha Khadri was the Sajjada Nashin of the Hazrath Mardan-e-Ghaib Dargah at Shivanasamudram (hereinafter referred to as 'the Dargah'), which is a Wakf Institution. These facts are evident from the notification at Annexure-A published by the Board. Petitioner states that the office of Sajjada of the Dargah is a hereditary and as per the custom and usage, the eldest son would be entitled to be the Sajjada on the death or retirement of the Sajjada.
(b) The petitioner states that the aforesaid Syed Mohammed Peer Pasha Khadri nominated his eldest son Syed Akhil Pasha Khadri, who is the father of the petitioner, as Sajjada to be the successor of the Dargah under a deed dated 20-10-1966. But unfortunately the nominated Sajjada died on 27-10-1980. It is stated that in order to save the institution, the original Sajjada nominated the petitioner as his successor on 26-2-1981 in the presence of Sajjada Nasheen, Muthavalli and Mujavars of various Dargahs. The proceedings had been reduced to writing and attested by the gathering, including the 3rd respondent herein, as per Annexure-B. The original Sajjada died on 6-10-1988 and as per the deed of Khilafat the petitioner claims to have succeeded to the office of Sajjada and has been discharging the functions as such.
(c) When the things stood thus, the 5th respondent, who is the 3rd son of deceased Sajjada has filed suit in O.S. No. 724 of 1988 in the Court of the II Additional Civil Judge, Mysore, against respondents 1 and 2 herein seeking a declaration that he is the Sajjada Nashin on the basis of some documents and obtained temporary injunction restraining the Board from interfering with his management of the Dargah. The petitioner filed an impleading application in that suit and it is stated that no orders were passed thereon till 1995. The said interim order was subsequently made absolute. Against that order, the Board filed Miscellaneous Appeal Nos. 30 and 31 of 1988 in the District Court at Mysore and the said appeals had been dismissed. The Board preferred C.R.P. Nos. 1926 and 1929 of 1990 before this Court challenging the dismissal of the miscellaneous appeals. The said revision petitions also were dismissed on 22-11-1994.
(d) It is stated that the 5th respondent filed suit in O.S. No. 113 of 1992 against the petitioner in the Court of the J.M.F.C. at Kollegal and obtained an injunction order against the petitioner and Ms brothers. After contest, the injunction order came to be vacated on 8-10-1992. The 5th respondent filed M.A. No. 75 of 1992 challenging the said order. The said appeal was dismissed on 28-9-1994. C.R.P. No. 3780 of 1994 filed against that order also was dismissed by this Court. By virtue of these proceedings, petitioner claims that the Courts have accepted him as the Sajjada Nashin of the Dargah.
(e) The litigation did not end there. The 5th respondent filed another suit in O.S. No. 266 of 1992 against the petitioner and others seeking a declaration that he is the Sajjada Nashin of the Dargah. In that suit an order of temporary injunction was granted. In M.A. No. 34 of 1993 filed against the said order, the injunction order was stayed. The appeal filed against it, is stated to be pending.
(f) It appears that the petitioner had also filed a suit in O.S. No. 233 of 1989. In that suit the petitioner and the 5th respondent came to an understanding on 13-2-1994 to look after the affairs of the Dargah mutually. As per the said arrangement, it is claimed that the entire supervision and management of the Dargah is being looked after by the petitioner and the 5th respondent is looking after the daily poojas, rituals etc.
(g) When things stood thus, the first respondent has passed the impugned order at Annexure-M appointing Administrator to the Dargah. Aggrieved by the same, the petitioner has filed this writ petition seeking to quash the same and to forbear respondents 1 and 2 from interfering with the affairs of the Dargah.
3. Mr. Kumar, learned Counsel for the petitioner contends that as per the agreement, the petitioner and 5th respondent are looking after the affairs of the Dargah without causing any prejudice to the institution. According to him, there was no vacancy in the office of Sajjada Nashin to exercise the power conferred under Section 65 of the Act. He further submits that Administrator could be appointed if there are no suitable person available for appointing to the office and in the impugned order it is not stated that no suitable person is available. Since the affairs and properties of the Dargah are under direct control of petitioner and 5th respondent, the exercise of power under Section 65 of the Act appointing the 4th respondent as Administrator was unwarranted and uncalled for. He submits that the impugned order suffers from legal malice. It is stated that since the procedure prescribed has not been followed, the impugned order is contrary to the law laid down by the Supreme Court in (1999)3 SCC 432 (sic). In view of all these, the Counsel prays for allowing the writ petition and to grant the reliefs sought for therein.
4. Per contra, Mr. Panindra, learned Counsel for the first respondent-Wakf Board sought to justify the impugned order. He submits that after the death of original Sajjada Nashin in the year 1988 the office of Sajjada Nashin fell vacant. In view of the history of litigation narrated above, it is stated that no suitable person could be appointed to the office and therefore, the Board assumed direct management by virtue of Section 43-A of the Act by appointing the Administrator to the Dargah and hence the impugned order is perfectly justified. He further submits that in order to safeguard the movable and immovable properties of the institution, the Board has a statutory duty to take necessary steps in that regard and that is what precisely done in the instant case in view of the chequered litigation between the petitioner and the 5th respondent.
5. Having heard the rival contentions urged on behalf of the parties, perused the records. The point for consideration is, whether the petitioner is the Sajjada Nashin of the Dargah in question appointed in accordance with law and whether the arrangement made between the petitioner and the 5th respondent is valid? If the findings on the above two questions are in favour of the petitioner and 5th respondent, then the next question to be considered is, whether the appointment of 3rd respondent as Administrator of the Dargah in question is legal, valid and justified.
6. Admittedly the Dargah in question is a wakf institution and there is no dispute about it. In respect of wakf institutions, the power is conferred upon the Wakf Board to appoint the executive officers under Section 26-A of the Act. Admittedly either the petitioner or the 5th respondent are not appointed by the Wakf Commissioner under Section 26-A of the Act. Therefore, they cannot be the lawful Executive Officers of the Dargah in question.
7. Section 42 of the Act prescribes as under.-
"42. Power to appoint Mutawallis in certain cases.--When there is a vacancy in the office of the Mutawalli of, wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as Mutawalli is disputed, the Board may appoint any person to act as Mutawalli for such period and on such conditions as it may think fit".
In the instant case vacancy caused by the death of original Sajjada Nashin cannot be disputed. The dispute between the petitioner and 5th respondent to act either as Sajjada Nashin or Mutawallis, is also evident from the various litigations, which are now stated to be clubbed together and are set down for hearing. Therefore, the Board has rightly appointed Administrator under the impugned order and the same need not be interfered with by this Court.
8. Under Section 36 of the Act, the Mutawallis shall carry out the directions made by the Board and the Wakf Commissioner. In the instant case, the petitioner claims that he and the 5th respondent are independently managing the affairs of the Dargah in question by virtue of the arrangement entered into between them. They are not authorised to enter into such an agreement. It follows that they cannot claim any right on such unauthorised and illegal arrangement.
9. Section 60 of the Act creates a bar for compromising any suit or proceeding by or against the Mutawalli of a Wakf inter alia in relation to rights of Mutawalli. Therefore, the mutual arrangement entered into between the petitioner and 5th respondent is contrary to Section 60 of the Act and the same will not confer any right upon the petitioner or the 5th respondent to manage the affairs of the Dargah in question.
10. Viewed from any angle, the petitioner is not the lawfully appointed Sajjada Nashin or Mutawalli of the Dargah in question and the arrangement entered into by him with the 5th respondent is not legal and valid. In view of the long dispute between the petitioner and the 5th respondent, the Board has rightly appointed the 3rd respondent as Administrator of the wakf to safeguard its properties. The impugned order is therefore perfectly justified and no interference is warranted at the hands of this Court.
11. Mr. Ajit J. Gunjal, learned Counsel for the 5th respondent placed reliance on the order passed by this Court in C.R.P. Nos. 1926 and 1927 of 1990 (Annexure-C) confirming the interim order granted in favour of the 5th respondent restraining the Board from interfering with the management of the Dargah by the 5th respondent. The Counsel contends that since 5th respondent has been recognised as Sajjada Nashin and as the Court has affixed its seal not to interfere with his management, the appointment of Administrator by the Board will not arise as the said order is a bar for the Board to exercise its power under Section 65 of the Act.
12. The contention of Mr. Ajit J. Gunjal cannot be accepted. Based upon the arrangement entered into between the petitioner and 5th respondent, this Court might have confirmed the interim order granted in favour of the 5th respondent. While passing the said order, the Court had no occasion to consider the various provisions of the Act referred to in the course of this order and to record a finding as to whether the 5th respondent or the petitioner are legally and validly appointed by the Board in exercise of its power under the provisions of the Act to the Dargah and other important aspects which are discussed above. The Court was merely considering the correctness of the interim order and having regard to the facts and circumstances of that case, the interim order was confirmed by dismissing the revision petitions filed by the Board. That will not confer any right upon the 5th respondent to legalise his illegal arrangement with the petitioner.
13. This Court has examined the relevant provisions of the Act with reference to the facts pleaded by the petitioner and 5th respondent and the Wakf Board. It is an undisputed fact that the Board could not have appointed either the petitioner or 5th respondent as Sajjada Nashin of the Dargah as both of them are claiming their hereditary right to the office and also for the reason that their rights are yet to be determined in the civil suits filed by them. The Board cannot permit either of the party to manage and administer the office and the properties of the wakf on the basis of the bilateral agreement entered into between them as the same is not permissible in law.
14. The interim order granted by the Civil Court in favour of the 5th respondent and affirmed by this Court in the revision petition, cannot prevent the Statutory Board to exercise its power under the provisions of the Act to achieve the intentment of the Act to protect the office and properties of the wakf. This Court has meticulously examined all the relevant provisions of the Act with reference to the rival contentions of the contesting parties and is of firm view that the interim order passed in the Civil Court has no impediment for the Board to pass the impugned order in the best interest of the wakf. For the reasons stated supra this Court has rejected the submission made on behalf of the fifth respondent as the same is untenable in law and devoid of merit.
15. For the reasons stated above, the writ petition is dismissed.