Karnataka High Court
Hydersha Abusha Malangsha vs Karnataka Board Of Wakfs on 22 March, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:5620
WP No. 60010 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 60010 OF 2009 (GM-WAKF)
BETWEEN:
1. HYDERSHA ABUSHA MALANGSHA,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. 1096, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
2. KHAIRULLA ABUSHA MALANGSHA,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. 1096, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
3. SHRI HYDERASHA MASHUMSA MALANGSHA
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. 1095, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
4. SHRI ABBAS MASHUMSA MALANGSHA
SINCE DECEASED BY HIS LRS.
4(a) SMT. DILASHADABI
W/O. ABBASALI MALANGSHA,
CHANDRASHEKAR
LAXMAN AGE: 55 YEARS,
KATTIMANI
OCC: HOUSEHOLD WORK,
Digitally signed by
CHANDRASHEKAR
R/O. GEJJI GALLI, ATHANI (TMC+OG)
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
ATHANI-591 304, DIST: BELAGAVI.
DHARWAD BENCH
Date: 2024.03.28
11:35:08 +0530
4(b) HUSSAIN S/O. ABBAS MALANGSHA,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. GEJJI GALLI, ATHANI (TMC+OG)
ATHANI-591 304, DIST: BELAGAVI.
5. SMT. JANNATBI
W/O. NASARUDDIN MALANGSHA,
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. 1095, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
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WP No. 60010 of 2009
6. SMT. ASHAMA
D/O. NASARUDDIN MALANGSHA,
AGE: 19 YEARS, OCC: HOUSEHOLD,
R/O. 1095, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
7. RESHMA D/O. NASARUDDIN MALANGSHA,
AGE: 16 YEARS, OCC: HOUSEHOLD,
SINCE MINOR REPRESENTED BY HER
NATURAL MOTHER
SMT. JANNATBI
W/O. NASARUDDIN MALANGSHA,
R/O. 1095, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
8. NAJEERSAB NASARUDDIN MALANGSHA,
AGE: 14 YEARS, OCC: AGRICULTURE,
SINCE MINOR REPRESENTED BY HIS
NATURAL MOTHER
SMT. JANNATBI
W/O. NASARUDDIN MALANGSHA,
R/O. 1095, SIDDESHWAR ROAD,
ATHANI-591304, DIST: BELGAUM.
9. MAKSUD NASARUDDIN MALANGSHA,
AGE: 13 YEARS, OCC: AGRICULTURE,
SINCE MINOR REPRESENTED BY HIS
NATURAL MOTHER SMT. JANNATBI
W/O. NASARUDDIN MALANGSHA,
R/O. 1095, SIDDESHWAR ROAD,
ATHANI-591304.
...PETITIONERS
(BY SRI SANGRAM S. KULKARNI, ADV. FOR P1-P6;
SRI S.P. PATIL, ADV. FOR PETITIONERS)
AND:
1. KARNATAKA STATE BOARD OF WAKFS,
BY ITS ADDITIONAL CHIEF EXECUTIVE OFFICER,
DARUL AWKAF, 6 CUNNINGHAM ROAD,
BANGALORE-560 002.
2. THE PRESIDENT,
ANJUMAN-E-ISLAM,
ATHANI-591 304,
DIST: BELGAUM.
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WP No. 60010 of 2009
3. SHRI ADAM BURANSAB NISHANDAR,
AGE: 62 YEARS, OCC: DRIVER,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
4. SHRI MUNEER RASOOL BALADAR,
AGE: 48 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
5. SHRI RASOOL ALLISAB NANDAGAON,
AGE: 55 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
6. SHRI LIYAKAT ALI SHERKHAN DESAI,
AGE: 55 YEARS, OCC: BUSINESS,
R/O. BIJAPUR ROAD, ATHANI-591 304.
7. SHRI IMAMSAB AMEENSAB NANDAGAON,
AGE: 62 YEARS, OCC: NIL,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
8. SHRI RASOOL NABISAB DRAKSHI
AGE: 52 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
9. SHRI MUMABARAK ALLISAB NANDAGAON,
AGE: 55 YEARS, OCC: DRIVER,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
10. SHRI AKBAR MOULA BAGWAN,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
11. SHRI RAFIQ REHMAN SHAIKH,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
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WP No. 60010 of 2009
12. SHRI GOUSKHAN SAYYEDKHAN TERADAL,
AGE: 48 YEARS, OCC: DRIVER,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
13. SHRI DASTAGIR N. MOLE,
AGE: 51 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
14. SHRI SHIKANDAR PATAYAT,
AGE: 62 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
15. SHRI MURTUJA MOULASAB PATEL,
AGE: 55 YEARS, OCC: DRIVER,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
16. SHRI ABDUL DASTAGIRSAB PATAYAT,
AGE: 52 YEARS, OCC: BUSINESS,
R/O. GOUSIDDAN MADDI,
ATHANI-591 304, DIST: BELGAUM.
...RESPONDENTS
(BY SRI M.M. MALAGI, ADV. FOR R1-R16 (ABSENT);
SRI B. MOHAMMAD ALI, ADV. FOR R1;
SRI D.M. MALLI, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE CERTIFICATE OF REGISTRATION
KSBW/REG/2/BGM/2008-2009 DATED 21.08.2008 ANNEXURE 'H'
ISSUED BY RESPONDENT NO.1.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:5620
WP No. 60010 of 2009
ORDER
This writ petition is filed seeking for following reliefs:
a. Issue a writ of certiorari quashing the Certificate of Registration KSBW/REG/2/BGM/ 2008-2009 dated 21.08.2008 Annexure 'H' issued by respondent no.1.
2. Sri Sangram S.Kulkarni, learned counsel for petitioners submitted that petitioners were owners and in actual possession of land bearing R.S.no.588 measuring 9 acres 1 guntas including pot kharab of 3 guntas situated at Athani. It was submitted that ancestors of petitioners were cultivating said lands as tenants and one Hydersha had filed Form no.I before Land Tribunal, Athani seeking occupancy rights. It was submitted that Land Tribunal, Athani by its order in proceedings in TNC:DEV:SR:195 granted occupancy right as per Annexure-A in favour of petitioner no.1. Thereafter, Form no.II was also issued and names were mutated in record of rights as per M.E.no.586 on 13.09.1983. It was submitted petitioners were growing crops like sugarcane, turmeric, etc., in said land. It was also -6- NC: 2024:KHC-D:5620 WP No. 60010 of 2009 submitted that in a portion of land, there was Rajebaksha Darga of which petitioners were wahiwatdars.
3. It was submitted that petitioners had applied for conversion of land use into Ryotawari tenure and Assistant Commissioner, Chikodi in proceedings no.WATAN:CIA:CR- 9:2002-03 passed Ryotawa order on 28.05.2002 permitting petitioners to use land bearing R.S.no.588 only for agricultural purposes. It was submitted respondents no.3 to 16 and others had filed O.S.no.300/2000 on file of Principal Civil Judge (Jr.Dn.), Athani, for declaration that grave yard and Rajebaksha Darga are situated in an area measuring 450 feet East - West and 350 feet North - South, which was in enjoyment of Athani Muslim Jamat and for injunction restraining petitioners from disturbing its usage as burial ground. It was submitted petitioners appeared in said suit and opposed same.
4. It was submitted suit was decreed in part on 01.08.2008 in part holding that an extent of 450 feet X 350 feet was public grave yard and restrained petitioners from interfering with its usage as burial ground. It was submitted -7- NC: 2024:KHC-D:5620 WP No. 60010 of 2009 against said judgment and decree, petitioners preferred R.A.no.44/2008 while respondents no.3 to 16 and others preferred R.A.no.46/2008 before Civil Judge (Sr.Dn.), Athani. It was submitted that admittedly there were civil proceedings in respect of suit property resulting in decree. Such being case, respondent no.1 issued Registration Certificate as per Annexure-H stating that land was additional property belonging to respondent no.2 in violation of provisions of WAQF Act, 1995 ('Act' for short) and therefore sought for quashing registration Certificate.
5. It was submitted occupancy right in respect of land was granted by Land Tribunal in favour of petitioner no.1 and adjudication of rights insofar as said land was pending. To out maneuver jurisdiction of Civil Court, impugned certificate was issued and therefore, same required to be quashed.
6. On other hand, Sri B.Mohammad Ali, learned counsel for respondent no.1/Karnataka State Board of Auqaf sought to oppose writ petition. Referring to statement of objections filed it was submitted that land in question namely -8- NC: 2024:KHC-D:5620 WP No. 60010 of 2009 R.S.no.588 of Athani measuring 9 acres 1 gunta including pot kharab of 3 guntas was a 'WAQF' by user comprising of Darga and Khabarsthan since time immemorial and was notified in Karnataka Gazette.
7. It was submitted that WAQF Act, 1954 was promulgated in 1954 and Act, 1995 was amended in year 2013 for better administration of Auqaf in country. It was submitted that Auqaf and trust registered under any law or Act were deemed to be registered under Act, 1954 and that in pursuance of Section 4 of Act, 1954, State Government by notification in official gazette had appointed Principal Secretary, Revenue Department as Survey Commissioner and Deputy Commissioners in State as Additional Survey Commissioner for purposes of making survey of WAQF properties in State as on date of commencement of Act. It was submitted that in pursuance of a report submitted to WAQF Board, list of existing Auqaf in State of Karnataka were notified in official gazette under Section 5(2) of Act.
8. As per said list, land in question was belonging to Anjuman-E-Islam, Athani under notification -9- NC: 2024:KHC-D:5620 WP No. 60010 of 2009 no.KTW/45/ASR/78 dated 18.05.1979. Name of Darga was Rajebaksha MangalSha and was appearing at item no.56. It was therefore submitted that land bearing R.S.no.588 of Athani measuring 9 acres 1 gunta including pot kharab of 3 guntas was known as Rajebaksha Darga. In view of same, no suit disputing inclusion of property in list of WAQF could be entertained by Civil Court. In view of same claim by petitioners that their ancestors were cultivating said land as tenants of Devasthan land and Hyder Sha had filed Form no.I for grant of occupancy rights and Land Tribunal had granted his claim would be inconsequential as they were passed behind back of respondents no.1 and 2.
9. It was submitted that vahiwatdars of Darga and its properties were managers of WAQF and had no independent right over same. It was further submitted that suit filed against petitioners seeking declaration about user of land as Dargah and Khabarsthan was decreed in part. It was submitted, as per decision of Hon'ble Supreme Court in case of Sayyed Ali and others Vs. A.P.WAKF Board,
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NC: 2024:KHC-D:5620 WP No. 60010 of 2009 Hyderabad and others1, once any land was declared a WAQF, it would always be a WAQF i.e. once a WAQF always a WAQF and therefore no one else than Board had right to administer WAQF. It was submitted that passing of decree by trial Court was reason for issuance of Registration Certificate and therefore, sought for dismissal of writ petition.
10. Sri D.M.Malli, learned counsel for respondent no.5 submitted that petitioner had not challenged gazette notification for declaration of said land as 'WAQF'. It was submitted petitioner was having efficacious alternative remedy of approaching Tribunal under Section 83(2) of Act, 1995. It was submitted Registration Certificate was issued in view of decree passed in O.S.no.300/2000 by Principal Civil Judge (Jr.Dn.), Athani, on 01.08.2008. Therefore, there was no merit in writ petition and sought for its dismissal.
11. Heard learned counsel and perused writ petition records.
1 (1998) 2 SCC 642
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NC: 2024:KHC-D:5620 WP No. 60010 of 2009
12. From above, it is seen that petitioner herein is challenging issuance of Registration Certificate at Annexure-'H' on 21.08.2008. Therefore only question that would arise herein would be whether Registration Certificate is compliant with provisions of Act.
13. Admittedly, Registration Certificate is issued under Section 36 of Act, 1995. It is seen that Section 36(8) reads as follows:
"(8) In case of auqaf created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in case of auqaf created after such commencement, within three months from the date of the creation of the waqf."
14. Bare perusal of sub-section (8) of Act would reveal that provision incorporates time limit within which registration shall be made. As per claim of respondent no.1 in statement of objections, land bearing R.S.no.588 measuring 9 acres 1 gunta of Athani was being used as Khabarsthan and there was a Dargah in existence in it. It is claimed that same was a WAQF by user since time immemorial. It is further stated that by virtue of gazette notification dated 18.05.1979 at Annexure-R1, same was a
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NC: 2024:KHC-D:5620 WP No. 60010 of 2009 notified WAQF and therefore deemed registered under Section 43 of Act, 1995.
15. Registration Certificate indicates that it is issued on 28.01.2008 under Section 36 of Act, which provokes possibility of co-relation between decree passed by trial Court on 01.08.2008 in O.S.no.300/2000 with certificate of registration. But, there is no reference to decree in it. Therefore, claim of respondents would not be substantiated. In any case, it is seen that decree has since been set-aside by Appellate Court by its judgment and decree dated 10.04.2015 as well as R.A.nos.44/2008 and R.A.no.46/2008 were also dismissed. Though second appeal is said to have been filed by some of respondents (in R.S.A. no. 100668/2015), further progress in second appeal despite lapse of 9 long years is not on record.
16. To a specific Court query, whether either respondent no.1 or respondent no.2 had preferred appeal against judgment and decree passed by trial Court. Learned counsel answered it in negative, but with statement that appeal was being pursued by persons interested in WAQF.
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NC: 2024:KHC-D:5620 WP No. 60010 of 2009 Subject matter of writ petition is not about user of property. Subject matter is only validity of certificate of registration issued on 28.01.2008. As per sub-Section 8 of Section 36 of Act, registration of WAQF created prior to Act has to be within three months from date of commencement of Act and in case of non-existence of Board, within three months from Board being constituted. In case of auqaf created after commencement of Act there is provision for registration within three months of creation. In fact, Section 60 of WAQF provides for criminal prosecution in case of failure take action within three months.
17. Admittedly, respondent no.2 which claims to be WAQF committee nor Board has disclosed any proceedings initiated for failure to take action. Besides if there is deemed registration, there would be no basis for issuing certificate of registration on 28.01.2008. Insofar as contention that petitioner is having efficacious remedy under Section 83(2) of Act, it is seen that certificate of registration issued is without notice to petitioner. When even according to respondents, petitioners were wahiwatdars, it is settled law
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NC: 2024:KHC-D:5620 WP No. 60010 of 2009 that alternative remedy is a principle of self-restriction, but not a total bar. In case of violation of principles of natural justice and any action taken in violation of statutory provisions, writ petition can be entertained without resort to existence of alternative remedy.
18. In any case, certificate or registration would not constitute order as required under Section 83(2) of Act. It would however required to be clarified that quashing of Annnexure-'H' on ground of violation of statute would have no bearing on rights of respondents to pursue their remedies in their suit or under other provisions of Act in accordance with law., if they exists. Since there is invocation of any such rights, this Court need not address same in this writ petition.
19. Consequently, writ petition is allowed. Impugned certificate bearing no.KSBW/REG/2/BGM/2008-2009 dated 21.08.2008 Annexure-'H' issued by respondent no.1 is quashed.
Sd/-
JUDGE CLK/PSG:List No.: 1 Sl No.: 2