Karnataka High Court
Haji Saleem Sab S/O Late Bahuddin Sab vs The Chief Executive Officer & Ors on 15 February, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CIVIL REVISION PETITION No.2032/2012
BETWEEN:
Haji Saleem Sab
S/o Late Bahuddin Sab
Age: 64 years, Occ: Agriculture
R/o Sirwar, Taluka: Manvi
Dist: Raichur.
.... Petitioner
(By Sri N. Krishnacharya, Advocate)
AND:
1. The Chief Executive Officer
Karnataka Board of Wakf
6th Cunningham Road,
Bangalore-560 001.
2. The Secretary
Karnataka Board of Wakf,
6th Cunningham Road,
Bangalore-560001.
3. The Chairman,
Karnataka Board of Wakf,
6th Cunningham Road,
Bangalore-560001.
2
4. District Advisory Committee
(Wakf Officer)
Raichur-584104.
.... Respondents
(By Sri Veeranagouda, Advocate for
Sri P.S. Malipatil, Advocate for Respondent No.1
Sri Liyaqat Fareed Ustad, Advocate for Respondent No.4
R2 and R3 are served)
This Civil Revision Petition is filed under Section 83(9)
of the Wakf Act, 1995, praying to set aside the order dated
30.07.2012 passed in O.S.No.5/2012 by the Presiding
Officer, Karnataka Wakf Tribunal, Gulbarga Division,
Gulbarga.
This petition coming on for final hearing this day, the
Court made the following:
ORDER
Petitioner being aggrieved by judgment and decree passed in O.S.No.5/2012 by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga dated 30.07.2012 is before this Court assailing the correctness and legality of said order. 3
2. I have heard the arguments of Sri N. Krishnacharya, learned counsel appearing for petitioner, Sri Veeranagouda, learned counsel appearing for Sri P.S. Malipatil, for respondent No.1 and Sri Liyaqat Fareed Ustad, learned counsel appearing for respondent No.4. Respondent Nos.2 and 3 are served and un-represented. Perused the records which has since been secured from the Tribunal.
3. Parties are referred to as per their rank in the Tribunal.
4. Plaintiff instituted a suit in O.S.No.5/2012 to declare that gazette notification showing the suit schedule properties as Wakf properties is illegal and unauthorized as per notification dated 18.02.1974 at Sl.No.212 and 213 of "NOORANI MASJID" (SUNNI) SIRWAR AND IDGAH (SUNNI) SIRWAR, TALUKA MANVI RAICHUR DISTRICT and not binding on plaintiff and for a perpetual injunction to restrain the defendants from 4 interfering with his alleged peaceful possession and enjoyment of suit property.
5. The sum and substance of the contents of plaint is that suit schedule properties as described in the plaint was constructed by plaintiff's father and it was exclusively owned and possessed by ancestors of plaintiff. It was also contended that plaintiff was not aware of gazette notification dated 18.02.1974 and it came to his knowledge only on 30.09.2011 as per endorsement issued by the defendants. It is further contention of plaintiff that a notice came to be issued prior to the institution of suit to the defendants and notification dated 18.02.1974 is wrong, illegal and as such declaration was sought for.
6. On service of suit summons, defendants 1, 2 and 4 appeared and filed their written statement and denied that notification dated 18.02.1974 is illegal. It was 5 specifically denied that the father of plaintiff has constructed the Masjid and other shops situate in the suit property. It was also denied that plaintiff was not aware about the gazette notification and the say of the plaintiff that he came to know about said notification only on 30.09.2011 was denied as false. The claim of plaintiff in toto came to be denied. It was also contended that one Mr.Shaik Ahmed Sab S/o Bahuddin Sab's name was appearing in the gazette notification as Muttavalli and on his demise a managing committee was constituted which was subsequently reconstituted from time to time and the committee appointed by them is looking after the affairs of the institution. It was specifically contended that on account of gazette notification dated 18.02.1974 having not been challenged within one year, suit is barred by limitation and cause of action as pleaded in the plaint is imaginary and prayed for suit being dismissed. 6
7. On the basis of the pleadings of the parties, Tribunal formulated following issues:
"1. Whether the plaintiff proves that Gazette notification No.KIW/498/ASR/74 dated 18.2.1974 of Sl.No.212 and 213 showing the property is illegal?
2. Whether the plaintiff proves his lawful possession over suit property?
3. Whether the plaintiff proves the interference of defendants over the suit property?
4. Whether suit is barred by limitation?
5. Whether the plaintiff is entitled to reliefs of declaration and injunction?
6. What order or decree?"
8. To substantiate his claim made in the suit, plaintiff got himself examined as PW-1 and got marked documents at Exs.P1 to P12 and on behalf of defendants District Wakf Officer - fourth defendant was examined as DW-1 and through him two documents came to be marked as Exs.D1 and D2. Tribunal after 7 evaluating entire evidence has arrived at a conclusion that in respect of Sy.No.250/2A measuring 0.27 guntas of Sirwar village Wakf was created as per the provisions of Section 3 (r) of the Wakf Act and same has been dedicated prior to the present suit in question. Hence, raising a presumption under Section 114 of the Evidence Act it came to be held that notification dated 18.02.1974 has become final and conclusive and as such plaintiff would have no right. It has been further held that since the property has been declared as a wakf property it partakes such character and possession of the plaintiff even if any would be on behalf of the institution and he cannot claim any exclusive right and possession to the suit property. While answering issue No.4 relating to limitation, Tribunal though has not stated in actual words has held that Section 6 of Wakf Act, 1954 would be a bar to the suit. In effect, it has been held that gazette notification ought to have been challenged within one year from the date of publication 8 of said notification declaring suit property as a wakf property and on account of suit having been filed in the year 2012, it is hopelessly barred by limitation. Hence, Wakf Tribunal dismissed the suit.
9. It is the contention of Sri N. Krishnacharya, learned counsel appearing for the plaintiff that Tribunal committed an error in dismissing the suit on the ground of limitation without going into the aspect as to whether plaintiff had knowledge of such notification and same having been issued or enquiry as contemplated under sub-section (3) of Section 4 of the Wakf Act had been conducted or not. In the absence of any such evidence tendered by the defendants to establish about such enquiry having been held under Section 4(3) of the Wakf Act, no presumption could be raised in favour of Wakf Board and as such he contends that order of Tribunal is erroneous. He would elaborate his submission by contending that fourth defendant who examined the District Wakf Officer as its witness namely DW-1 has 9 unequivocally admitted in his evidence of having issued letter to the plaintiff on 30.09.2011 marked as Ex.P12 and even as on that date no intimation was given to plaintiff about wakf having been created as per notification dated 18.02.1974 and in the absence thereof no knowledge can be attributed to the plaintiff about notification to contend that suit ought to have been instituted within one year from the date of such notification. As such, he prays for allowing the revision petition and prays for decreeing the suit as sought for.
10. Per contra, Sri Veerangouda and Sri Liyaqat Fareed Ustad, learned Advocates appearing for defendants 1 and 4 would not only defend the judgment of the Wakf Tribunal but would contend that Section 6 of the Wakf Act, 1954 clearly indicates that any challenge to the notification declaring the properties as wakf properties is to be challenged within one year and on account of plaintiff having filed the suit in the year 10 2012 by questioning the notification dated 18.02.1974, Tribunal has rightly held that it is hopelessly barred by limitation and hence there is no error committed by Tribunal either in law or on facts for this Court to exercise revisional jurisdiction. Hence, they have prayed for dismissal of the revision petition.
11. Having heard the learned Advocates appearing for parties and on perusal of records which has been secured from jurisdictional Tribunal, it would disclose that plaintiff has specifically contended in the plaint that he had no knowledge about the notification dated 18.02.1974 and at no point of time he was notified or intimated about such notification. It is his further contention in paragraph Nos.4 and 5 of the plaint that he became aware of the said notification only on 30.09.2011 when an endorsement was given to him by defendants which came to be marked as Ex.P12 and on enquiry he came to know about such notification having 11 been published under Section 5 of the Wakf Act. Plaintiff's ancestors have not been notified about the suit properties being declared as Wakf properties. Though tribunal has referred to Section 3(r) of 1995 Act to arrive at a conclusion that suit property has been dedicated as Wakf by the Wakif, at this stage itself can be clearly held there has been non-application of mind by tribunal inasmuch as provisions of 1995 Act was clearly inapplicable inasmuch as on the date of notification in question i.e. 18-02-1974 it is the Wakf Act, 1954 which was applicable or attracted. Be that as it may, the definition of Wakf under both the Acts is identical and similar.
12. Where an immovable property is to be declared as a Wakf, the condition precedent prescribed under 1954 Act is to hold an enquiry as contemplated under sub- section (3) of Section 4 of the Wakf Act. A perusal of said provision would give a clear indication that the 12 nature of enquiry to be held under Section 4(3) of the Wakf Act. It mandates that Commissioner, while making an enquiry have the same powers as are vested in a Civil Court in respect of summoning and examining the witnesses, production of documents, requisition of public records etc. Thus, what is contemplated under Section 4(3) of the Act is a full fledged enquiry to enable the Commissioner to determine whether a particular property is existing wakf and submit a report to the Wakf Board, to enable it to publish a list of such wakfs under Section 5 of the Wakf Act.
13. Hon'ble Apex Court in the case of Muslim Wakfs Board, Rajasthan vs. Radha Kishan reported in AIR 1979 SC 289 while examining the power of Wakf Commissioner to make survey of wakf properties as contemplated under Section 4(1) has held that power includes an enquiry whether certain property is wakf property or not. It has been held to the following effect: 13
"26. It would be illogical to hold that while making a survey of wakf properties existing in the State a Commissioner of Wakfs appointed by the State Government under sub-s. (1) of Sec. 4, should have no power to enquire whether a particular property is wakf property or not. If we may refer to sub- s. (1) of S. 4, so far as material, it reads:
"The State Government may, by notification in the Official Gazette, appoint for the State a Commissioner of Wakfs., ..... for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act."
It will be clear that the words "for the purpose of making a survey of wakf properties" is a key to the construction of the section. The ordinary meaning of the word "survey", as given in the Random House Dictionary of English Language, is 'to take a general or comprehensive view of or appraise, as a situation'. If the Commissioner of Wakfs has the power to make a survey, it is but implicit that in the exercise of such power he should enquire whether a wakf exists. The making of such 14 an enquiry is a necessary concomitant of the power to survey. The High Court was clearly in error in observing:
"Except sub-section (5) there is nothing in section 4 or in the Rules made by the State to show that the Commissioner is empowered to adjudicate on a question, if one arises, whether a particular property is a wakf property or not."
14. Thus, conducting of an enquiry is a necessary concomitant of the power to survey the properties for being recommended to the Wakf Board for declaring such properties as Wakf property. In view of the said settled legal position, when the facts on hand are examined, the averments made in the plaint discloses that plaintiff has taken a specific contention that there was no enquiry held as required under Section 4(3) of the Wakf Act and consequently list published under Section 5 of the Act is not legal and not binding on plaintiff. Thus, burden shifted on defendants to prove by tendering such satisfactory evidence that a valid 15 enquiry has been held and plaintiff or his predecessors in title had notice of such enquiry. However, in the instant case such an exercise was not undertaken for reasons best known. DW-1 who represented fourth defendant and who has stated in his evidence that he is tendering evidence only on behalf of fourth defendant and not on behalf of defendants 1 to 3 has admitted that he had issued a letter dated 30.09.2011 to the plaintiff which came to be marked as Ex.P12. A perusal of said communication would only indicate that plaintiff has been appointed as the President of the Masjid. If it was a fact of there being a notification on 18.02.1974 declaring the suit property as a wakf property, nothing prevented the defendants from taking steps to appoint a committee including appointing members and a Chairman. Without undertaking such an exercise, fourth defendant has unilaterally appointed plaintiff as the President of the Masjid. DW.1 admits this fact in his cross-examination dated 05.06.2012. However, 16 there is no whisper either in the written statement or in the evidence of said witness about any enquiry as contemplated under sub-section (3) of Section 4 of the Wakf Act of having been held before publication of impugned notification. In the absence thereof, the issue of limitation could not have been decided by the tribunal as an abstract principle of law. The issue of limitation would be a question of fact and law and the very conducting of enquiry under sub-section (3) of Section 4 of the Wakf Act goes to the root of the matter and if such enquiry had not been conducted either by issuing notice to the plaintiff or to his predecessors in title, the very notification itself would be bad in law. Merely relying upon Ex.D1 which is an order passed by the first defendant on 18.02.1998 appointing seven members as Advisory Committee members to assist the Administrator of the Masjid, per-se would not wipe out the contents of Ex.P12 or confer any right to recognize suit property as wakf property. Or in other words, there 17 being no material to show that any other person other than plaintiff was managing Masjid it cannot be held that by virtue of Exs.D1 and D2 knowledge of the notification dated 18.02.1974 can be attributed to the plaintiff from the date of such order namely 18.02.1998 to arrive at a conclusion that plaintiff atleast ought to have filed the suit within one year from the date of said order.
15. As already noticed herein above the issue of limitation is always a question of fact and law there cannot be any straight jacket formula. It depends upon the facts and circumstances of each case and based on the evidence that would be tendered by the parties, such plea will have to be examined. In the instant case, plaintiff having pleaded that he had no knowledge of the notification dated 18.02.1974 and he became aware of said notification only when endorsement/letter dated 30.09.2011 Ex.P12 was issued to him and such fact not 18 having been specifically denied by the defendants, the burden shifted on the defendants to establish two aspects namely, (1) that there was an enquiry held under Section 4(3) of the Wakf Act before the property in question was declared as a wakf property as contemplated under Section 2(l) of the Wakf Act, 1954 and (2) the Predecessor in title of the plaintiff had been notified before conducting of such enquiry and thereby there was implied knowledge attributable to the plaintiff or his predecessor in title about such enquiry having been held and consequential notification published under Section 5 of the Wakf Act, 1954. In the absence of such evidence, the conclusion arrived at by the Tribunal dismissing the suit on the ground that suit is hopelessly barred by limitation, cannot be sustained. However, at the same time, gazette notification dated 18.02.1974 cannot be declared as either null and void, illegal or not binding on plaintiff as pleaded in the plaint, inasmuch as this Court is of the considered view 19 that in the light of the stand taken by the defendants in the written statement as well as in the evidence tendered by the fourth defendant, it would be apt and appropriate to remit the matter back to the Tribunal for adjudicating afresh keeping in mind the observations herein above.
Hence, I proceed to pass the following:
ORDER (1) Revision petition is hereby allowed.
(2) Judgment dated 30.07.2012 passed in O.S.No.5/2012 by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga is hereby set aside and the suit in O.S.No.5/2012 is restored to its file for adjudication afresh in the light of observations made herein above.
(3) Parties to bear their respective costs.
(4) Both parties are at liberty to seek for amendment of pleadings or for tendering further evidence, if so advised.20
Registry is directed to re-transmit the records to jurisdictional Wakf Tribunal forthwith.
Sd/-
JUDGE swk