Karnataka High Court
Qayyum T. Patayat @ Patait vs The Chief Executive Officer on 21 July, 2020
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 21 S T DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.J USTICE N .S . SANJ AY GOWDA
W.P.NO.107360/2019 &
W.P.Nos.107544-546/2019 (GM-WAKF)
BETWEEN
QAYYUM T. PATAYAT @ PATAIT,
AGE: 71 YEARS, OCC: AGRICULTURIST,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELAGAVI.
..... PETITIONER
(BY SRI F V PATIL, ADV.)
AND
1. THE CHIEF EXECUTIVE OFFICER
KARNATAKA STATE BOARD OF AUQAF,
NO.6 CUNNINGHAM ROAD,
BENGLAURU-52.
2. THE WAKF OFFICER,
DISTRICT WAKF ADVOSORY COMMITTEE,
OPPOSITE TO D.C. OFFICE,
BELAGAVI.
3. THE KUDACHI DARGHA ESTATE
KUDACHI TOWN, TQ: RAIBAG,
DIST: BELAGAVI,
REP. BY ITS SECRETARY.
2
4. THE CONVENER TO
DISTRICT WAKF OFFICER,
BELAGAVI.
5. ABDULRAUF GUDUBHAI MARUF,
AGE: MAJOR, R/O: KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI.
6. BABAJAN GOUSE MOHIDDIN CHAMANSHAIKH
AGE: MAJOR,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELAGAVI.
7. RAFIQ AHMED MATTULAL MUJAWAR,
AGE: MAJOR, R/O: KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI.
8. HUSENSAB SAHEBLAL SHAMANSHAIKH
AGE: MAJOR, R/O: KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI.
9. MAKTUMSAB RASOOL ISMAIL MAKDUM
AGE: MAJOR, R/O: KUDACHI,
TQ: RAIBAG, DIST: BELAGAVI.
10. GAJALUDDIN SHABODDIN MARUF
AGE: MAJOR,
R/O: KUDACHI, TQ: RAIBAG,
DIST: BELAGAVI.
..... RESPONDENTS
(BY SRI D L LADKHAN, ADV. FOR R1 & R2
SRI R.M. KULKARNI, ADV. FOR R-6 TO R-10
SRI MRUTYUNJAY TATA BANGI, ADV. FOR R-5
R-3 & R-4 SERVED)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED LETTER DATED 14.03.2019
BRG.NO.KSBA/AUD/55/BGM/16-17 PASSED BY THE RESPONDENT
NO.1 VIDE ANENXURE-E AND ETC.
3
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Kudachi Dargah Estate, situated at Kudachi town, Raibag Taluk, Belagavi District is a notified Wakf, which came under the direct management of the Board and thereafter the Board approved a Scheme of Administration for the said Wakf.
2. The said Scheme of Administration provided for election of a Committee of management and accordingly an election was conducted as per the scheme and 11 members were elected to the Committee of Management.
3. As further provided in the scheme of administration, the members of the Committee of Management elected from amongst themselves, four office bearers i.e., a President, a Vice President, a Secretary and a Treasurer in the elections conducted on 2.11.2017.
4
4. The petitioner was the member of the Committee of Management who was elected as the President of the Committee of Management of the Kudachi Dargah.
5. The District Wakf Officer forwarded the proceedings of the election of the Managing Committee for approval of the Karnataka State Board of Wakfs and the Administrator accorded approval to the said proposal on 09.11.2017.
6. Pursuant to the approval, a notification was issued on 10.11.2017 notifying the constitution of a Managing Committee comprising of 11 members with the petitioner as the President.
7. The notification stipulated the term of the Managing Committee would be for a period of three years or until further orders, whichever was earlier. The Managing Committee was also directed to function in accordance with the provisions of the Wakf Act and 5 Rules and directions issued by the Board from time to time and it was also directed to follow certain conditions stipulated in the said notification.
8. It is the case of the petitioner that after he was elected as the President, he noticed certain wrong doings by two members of the Managing Committee, in as much as, they were found to be tenants of the Wakf property and this was an infringement of the conditions imposed by the Board while constituting the Committee. According to him, he was thus constrained to initiate proceedings for eviction against them and the Enquiry officer accepted the said proposal and also issued a notice of eviction under the P.P. Act.
9. It is his case that the initiation of these proceedings against the members of the committee annoyed them and immediately a notice was issued requesting the Managing committee to call for an urgent meeting to express 'No Confidence' in the 6 Governing Body i.e., the President, Vice President, Secretary and Treasurers vide Annexure-D.
10. It is stated that pursuant to Annexure-D, the Board convened an extraordinary meeting of the Managing Committee to discuss the 'No Confidence' expressed against the President. The notice stipulated due notice be given to the members specifying the date and venue and also agenda of the meeting.
11. The notice also stipulated that if 'No Confidence motion' was approved, the President of the Wakf would cease to function as the President and in the very same meeting, a new President could be elected in his place. The detailed proceedings of both the resolutions were required to be submitted by the Board.
12. Pursuant to the said direction, an extraordinary meeting was convened by the District Wakf Officer on 18.03.2019 vide per Annexure-F. In the 7 said extraordinary meeting, the following resolutions were passed:
RESOLUTION NO.1: No-Confidence Motion against the President Mr.Qayyam Patayat, Kudchi Dargah Estate Kudchi, Tq: Raibag.
The said matter placed before the members present and the matter is discussed in detail and all the six members withdrawn their support earlier given to Qayyam Patayat for the post of President.
In view of the above the President Mr. Qayyam Patayat lost their majority support from the members of managing committee.
On eve of vacancy for the post of President the members moved the procedure for Selection of New President.
RESOLUTION NO.2: Selection of New President of Kudchi Dargah Estate Kudchi, Tq: Raibag.
The said matter for selection of New
President is placed before the members of
present and after detail discussion Dr. Babajan 8 Chamanshaikh proposed the name of Janab Husenba Saheblal Shamanshaikh and the said person has unanimously selected by all the members present by raising hands.
Janab Husenba Saheblal Shamanshaikh has been selected as New President of Kudchi Dargah Estate Kudchi, Tq: Raibag.
13. The said resolutions were thereafter forwarded by the District Wakf Officer to the Administrator of the Wakf Board and the Administrator, in turn, accorded his approval to the same and consequently an order was passed in exercise of the power conferred under Sections 67 and 32 of the Wakf Act and Rule 28 of the bye-laws stating that the President i.e., the petitioner had been removed from the Presidentship of the Kudachi Durgha Estate and in his place Sri Husenba Saheblal Shamanshaikh had been elected as the President.
9
14. The petitioner is thus before this Court, challenging;
a. the notice issued calling upon the
District Wakf Officer to convene the
extraordinary meeting
b. the notice issued for convening an
extraordinary meeting and
c. for quashing of the resolutions passed by the Managing Committee and the consequential order passed by the Wakf Board approving the resolutions.
15. It is the case of the petitioner that the Board did not have the power to direct the convening of a meeting to consider a motion of 'No confidence' against the President and consequently all proceedings conducted pursuant to such a notice were void. He further submits that there is no provision either under 10 the Act, Rules or the scheme of the administration which enabled the members of the Managing Committee to express 'No Confidence' against any office bearer.
16. In other words, it is his contention that once a President is elected, the President possesses a legal right to continue as the President for the stipulated term of three years and it is simply impermissible for him to be removed or for permitting his removal, either by expressing 'No Confidence' in him or for that matter, under any other pretext.
17. It is also his contention that if he has been removed because of certain allegations had been raised against him, an enquiry ought to have been conducted and he ought to have been given an opportunity to defend himself. He alternately submits that his removal on the basis of some allegation made against him without holding any inquiry and without hearing him cannot be sustained.
11
18. Learned counsel for the petitioner, in support of his contention, relies upon the following judgments:
1) Jagdev Singh Vs. The Registrar, Co-
operative Societies, Haryana and others reported in AIR 1991 PUNJAB & HARYANA 149
2) Hindurao Balwant Patil and another Vs. Krishnarao Parshuram Patil and others reported in AIR 1982 BOMBAY 216
3) S. Lakshmanan, President, Thiruvilwamala Weavers Co-operative Society Ltd. Vs. V. Velliankeri Member of Board of Directors, Thiruvilwamala Weavers Co-operative Society Ltd. An others reported in AIR 2002 Kerala 325.
19. Learned counsel for the Board contended that the Wakf in question was a notified Wakf in respect of which the Board had approved a Scheme of Administration and as provided in the Scheme, a Managing Committee had been constituted by the 12 Board. He contended that under Section 67 of the Wakf Act, the management of the Wakf vested with the Committee of management and the first proviso to Section 67 of the Wakf Act obligated the Managing Committee to function under the direction, control and the supervision of the Board and also abide by any directions issued by the Board from time to time. He thus submitted that it was well within the powers of the Board to direct the Managing Committee to convene a meeting and decide whether the President enjoyed the confidence of the majority of the members of the Committee of Management.
20. It is his case that so long as the Board has been conferred with supervisory powers, the Board would possess all such powers that would be necessary to ensure effective supervision and management of a Wakf. It is stated by him that Section 67 empowered the Board to not only direct the convening an extraordinary meeting but also to accept the decision 13 taken by the majority of the members of the Committee of Management. He submits that writ petition would not be the remedy available to a person who is removed as an office bearer.
21. Learned counsel for the contesting respondents supported the argument of the Board's counsel. He also put forth the contention that the petitioner was elected as the President of the committee by the members of the committee and the notification under which the petitioner's election was accepted by the Board, itself stated that the term of the President would be for a period of three years or until further orders, whichever was earlier and it was therefore clear that the petitioner did not have a guaranteed term of 3 years. According to him, the use of the term "until further orders, whichever is earlier", in the notification, by itself, indicated that the terms of either the President or the members of the Managing 14 Committee was not for a fixed period of three years as contended.
22. He also contended since Bye law 27 vested the Board with the absolute power to appoint the Managing Committee and since the said Bye Law also empowered the Board to annul or modify the list of elected members, no member of the Managing Committee possessed an indefeasible right to be a member or to be an office bearer, even if he had been elected.
23. In support of his contention that the President can continue only till he enjoyed the confidence of the majority of the Committee of Management, he relied upon the judgment of the Apex Court in the case of Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and others reported in (2015) 8 SCC 1. 15
24. The undisputed facts of the case are that the Kudachi Dargah Estate is a notified Wakf Institution in respect for which the Board had approved a scheme of administration on 31.01.2017 and as per the Scheme of Administration, elections were conducted to elect the 11 members to the Committee of Management and as further provided in the scheme of Administration, the 11 members who comprised the Committee of Management had elected the petitioner as the President in the election conducted on 02.11.2017 and the Board had also accepted the said election and issued a notification constituting the Committee of Management with its Office bearers, who had been elected by the Committee, with the stipulation that the term of the said Committee was for a period of 3 years or until further orders whichever is earlier.
25. It appears that disputes seem to have arisen between the members of the Committee of Management resulting in 6 members seeking for convening of a 16 meeting to express their 'No Confidence' against the President and this request was considered by the board and it had directed an extraordinary meeting to be convened to discuss the 'No Confidence' motion proposed against the petitioner.
26. In the said extraordinary meeting 6 out of the 11 members expressed their 'no confidence' and withdrew support to the petitioner and as a consequence the petitioner ceased to be the President and on the same day another member was elected as the President. This removal of the petitioner and election of another person in his place has been accepted by the board by the order dated 21.03.2019.
27. The principal question that would arise for consideration in these writ petitions is;
"Whether the President of a Committee of Management of a Wakf has a guaranteed term of 3 years and whether he can be removed by 17 expression of a 'No confidence' motion by the majority of the members of the Committee?"
28. In order to consider this question, a brief overview of the provisions of 'The Wakf Act, 1995' would be necessary.
29. The Wakf Act, 1995, which has been enacted for providing better administration of the Wakf and for matters connected therewith envisages the establishment of a Board and it also enumerates their functions. The Wakf Act also contemplates Registration of all Wakfs, the maintenance of the accounts of the Wakf and also their Financing.
30. The method envisaged for maintaining a Wakf under the Act is by three modes. The first mode would be for the Board to appoint a Muthawalli. The second mode for the Board would be to assume the direct Management of the Wakf. The third mode available to the Board would be to frame a scheme for 18 administration of the Wakf under Section 69 of the Wakf Act, which would provide for a Committee to manage the Wakf.
31. In the case of Kudachi Dargah Estate, it is not in dispute that initially the Board had assumed direct Management under Section 65 of the Act and it thereafter proceeded to approve a scheme of administration for Management of the Wakf.
32. The Wakf Act contemplates that whenever the supervision of a Wakf is vested in a committee appointed by the Board, the Board would have the absolute power to supervise the function of the said Committee of Management appointed by it.
33. In fact, Section 67 of the Act makes it categorically clear that whenever the supervision of Management of a Wakf is vested in any Committee appointed by the Wakf then notwithstanding anything contained in the Act, the Committee shall continue to 19 function unless it is superseded by the Board or its terms expires.
34. The first proviso to Section 67 emphatically states that the Committee shall function under the direction control and supervision of the Board. It also stipulates that the Committee shall abide by such directions as may be issued by the Board from time to time. It is thus clear that under the provisions of the Wakf Act, though a Wakf is to be managed by a Committee of Management, it will always be subject to the direct and complete supervision of the Board.
35. In the instant case, the Board itself had framed a Scheme of administration, which contemplated that there would be a Managing Committee comprising of 11 members and they would in turn elect from amongst themselves office bearers.
36. Clause 27 of the said Scheme reads as follows:
20
27. The Power to appoint of Management Committee is exclusively vested with the Board. The Board may annul or modify the list of elected members, if in its opinion such annulment or modification is necessary, the decision of the Board shall be final; the Board is empowered to cancel or modify this scheme of any time after it has come into force.
37. A reading of the said clause makes it abundantly clear that the power to appoint a Managing Committee would stand exclusively vested with the Board and the Board would be at liberty to annul or modify the list of elected members, if it felt so necessary. It is also made clear in Clause 27 that the decision of the Board in that regard would be final in that regard.
38. It is thus clear that the Committee of Management Committee does not have any independent right to manage the Wakf and its right to govern the Wakf flows only from the Scheme which has been made 21 and approved by the Board. To put it differently, there is no statutory power conferred on a Committee of Management to manage a Wakf and the Committee of Management is basically a body constituted by the Board under a Scheme of Administration to manage the Wakf.
39. The fact that the Scheme approved by the Board makes it explicit that even if the Members of the Management Committee are elected, the list of elected members can be annulled or modified, is by itself, proof of the fact that the members of the Managing Committee, even if they be elected, would possess no right to be or to be continued as members of the Committee. In other words, when the right to be on the Committee of Management is itself not guaranteed to a person even if he is elected, a member of the Committee would obviously have no right to claim that he can be a member for a fixed term.
22
40. The Board is not only exclusively vested with the appointment of the Management Committee but it has also been conferred with the power to annul or modify the list of elected members of the Managing Committee. The inescapable conclusion that thus emerges from the Scheme of Administration is that no member of the Managing Committee would have an indefeasible right to even be member of the Management Committee, even if he is elected.
41. From this, it further follows that if an elected member of Management Committee does not possess an absolute right to be a part of the Management Committee itself, one of its members who has been elected as President by the other members of the Committee cannot obviously claim a superior right of being a President for a fixed term of 3 years.
42. The Board with a view of ensuring proper maintenance of the Wakf had appointed a Managing Committee of 11 members and hoped that this body of 23 members would manage the Wakf in a fair, proper and effective manner. The Board having come to know that disputes had arisen between the members, felt it would be prudent to satisfy itself as to whether the President enjoyed the confidence of the other members of the Committee of Management and it accordingly directed a meeting to be convened to test whether the President enjoyed the confidence of the members. The Board further felt that if it was found that the President did not enjoy the confidence of the members, he should cease to function as the President and a new President was required to be elected.
43. In the said meeting, it was evident that the President did not enjoy the confidence of the majority of the members and he was accordingly removed and another was elected in his place.
44. In the notification by which the Committee of Management had been constituted, it had been expressly stated that the term of the Managing 24 Committee would be for a period of 3 years or until further orders whichever is earlier. It therefore follows that an office bearer can claim to be entitled to a guaranteed term of 3 years.
45. In our long history, it has been the experience of the administrators that an institution is better served by a group of individuals governing collectively rather than being governed by an individual. A Managing Committee, i.e., a body of individuals, was thus appointed by the Board in the hope that the Wakf would be ably managed and the community at large would benefit.
46. A body of individuals, would have to necessarily have to be lead by a person as the head of the body. It is also one of the basic principles of a representative democracy that the elected members, in turn, elect one amongst them who enjoys their confidence be the person to lead them and be the head the elected body.
25
47. This person who is elected by the other members of the elected body to head their Body would by himself possess no superior right of the other members of the Body and he would be merely the first among the equals. It follows from this that person would continue to be the first among equals only if he enjoys the confidence of the majority of the body of individuals.
48. The person who is elected to head the Committee is, and should always, necessarily, enjoy the confidence of the other members of the body. If a body, which is elected to collectively administer an institution does not have confidence in the person whom it has chosen to head the body, it would be but inevitable that there would be mal-administration of the institution due to lack of coherence and integrity in the Body created to administer it.
49. It is precisely for this reason that the Board desired to satisfy itself as to whether the petitioner 26 enjoyed the confidence of the other members of the Committee and Board was of the view that if the petitioner did not enjoy the confidence, he could no longer continue as President and in his place another person was required to be elected.
50. This process adopted by the Board is nothing but a mode of supervising and managing the Committee of Management and thereby the Wakf in an effective manner, which, the Board is primarily obligated to do so under the provisions of the Act. It is to be borne in mind that ultimately, under the Act, the Board is required to ensure that the Wakf is managed in the most effective and appropriate manner and to ensure this the Board would have to rely heavily upon Mutawallis or Committees constituted by it and if the members of the Committees are squabbling with each other, the Wakf would be bound to suffer.
51. The law confers upon the Board the powers that are required to ensure effective supervision over 27 the Committees in which the administration of a Wakf is vested. The Board, in this case, has embarked upon a process of requiring the President of the Committee to establish that he enjoyed the confidence of the majority. This process adopted cannot be said to be arbitrary or illegal.
52. It is to be noticed here that the Act does not prescribe a procedure for constituting a Committee and it has left that task entirely to the discretion of the Board. In other words, the powers and functions of a Committee of Management are not prescribed under the statute and their powers and functions are traceable only to the Scheme of Administration framed by the Board.
53. It therefore follows that no member of the Committee of Management can claim to have a statutory right to be either a member of Committee or to be an office bearer of the Committee. 28
54. In this view of the matter, the argument of the learned counsel that the unless there is an express provision under the Act which enables the moving of a motion of 'No Confidence', the resolution passed expressing 'No Confidence' against the petitioner is invalid, cannot be accepted.
55. The petitioner's right to be a President is traceable only to the Scheme of Administration, which as stated earlier, states that it is only Board which possesses the power to appoint a Management Committee. Since the petitioner can trace his right only to the Scheme of Administration and since the very Scheme of Administration enables the Board to even annul the list of elected members, the petitioner cannot be permitted to contend that he has a statutory right to be a President for a term of three years and that he cannot be removed by the expression of a 'No Confidence' by the majority of the members of the 29 Committee. The question framed above, is thus held against the petitioner.
56. The arguments of the Learned counsel that since there were no provision in the Act, Role or the byelaws, which enabled moving of a 'No Confidence' motion, the entire proceedings culminating in the petitioner's removal is non est, cannot be accepted.
57. The reliance placed by the Learned Counsel of the petitioner on the cases stated supra cannot also be accepted because in all those cases the Courts were concerned with the powers of a member of a Managing Committee as had been prescribed in the respective statutes itself. In this case, the right of any person to be a member of Managing Committee is not traceable to any statutory provisions under the Wakf Act and it is traceable only to a Scheme of Administration prepared by the Board. Since the petitioner does not possess any statutory right to be either a member of the Managing Committee or an office bearer of a Managing 30 Committee, the reliance placed by the petitioner on the above mentioned citations would be of no avail.
58. It is to be stated here that the only protection afforded to a member of a Managing Committee under the Act is that he should be heard before an order of removal is made. In the instant case, the petitioner though being removed as the President, for want of confidence by the other members, is nevertheless permitted to continue as a member of Managing Committee. Since the petitioner is continued as a member of the Managing Committee, the protection conferred to a member of a Committee under the Act would not also be attracted.
59. I therefore, find no reason to entertain this writ petition and the same is accordingly dismissed.
60. However, even though the petition is being dismissed, it has become necessary for me to take notice of the fact that the petitioner has contended that 31 he has been removed basically because he had initiated the proceedings for evicting two members of the Managing Committee, who were found to be tenants of the Wakf, which by itself was a clear transgression of one of the conditions imposed in the order under which the Management Committee was constituted. It is his case that because he highlighted the contravention of this condition, he had been removed.
61. In my view, this allegation of the petitioner is to be seriously examined by the Board. The Board is therefore directed to examine whether any member of the Managing Committee, is either a tenant or a leaseholder under the Wakf Act, contrary to the terms of notification under which the Managing Committee was constituted.
62. If it is found by the Board, after enquiry, that any member of the Managing Committee is either a tenant or a lease-holder of the Wakf, the Board shall 32 take necessary action for removing them from the Managing Committee.
63. The Board shall embark upon this exercise and conclude the same within a period on one month from the date of receipt of a copy of this order.
The Writ petitions are dismissed, subject to the above direction.
Sd/-
JUDGE Naa/msr