Karnataka High Court
Sri.Mohammed Wazir Baig vs State Of Karnataka on 10 February, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.57351/2015 (GM-RES)
BETWEEN:
1. SRI MOHAMMED WAZIR BAIG
S/O. LATE ANWAR BAIG,
AGED ABOUT 60 YEARS,
R/O. 80/1, 6TH CROSS,
HANIFA MASJID KUSHALNAGAR,
BENGALURU - 45.
2. KALEEM PASHA
S/O. AMANULLA,
AGED ABOUT 49 YEARS,
R/O. NO.287/10, 17TH CROSS,
DEVARAJURSNAGAR,
BENGALURU - 26. ... PETITIONERS
(BY SRI HARISH KUMAR M.S., ADVOCATE (V.C.))
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINICIPAL SECRETARY,
DEPARTMENT OF MINORITIES,
VIKASA SOUDHA,
DR. B.R.AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. SRI QAMRUL ISLAM
MINISTER OF MUNICIPAL ADMINISTRATION,
MINORITY WELFARE AND WAKFS,
VIDHANA SOUDHA,
-2-
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
(R-2 IS DELETED V/O. DATED 13/01/2023)
3. DR. SYED SHAW KHUSRO HUSSAINEE
SAJJADA NASHEEN
DARGA HAZARATH KHAWAJA BANDE NAWAZ,
GULBARGA - 585 101.
4. ABDUL RIYAZ KHAN
EX-CHAIRMAN OF KARNATAKA STATE BOARD OF
WAKF,
ADVOCALI, HAMEED SHAW COMPLEX,
CUBBONPET,
BANGALORE - 01.
(R-3 AND R-4 ARE IMPLEADED AS
PER THE ORDER DATED 07.03.2017)
... RESPONDENTS
(BY SRI K.S. ARUN, HCGP FOR R-1 (MA NOT FILED);
R-2 IS DELETED V/O. DATED 13/01/2023;
SRI MAHMOOD PATEL AND SMT. FATHIMA ZOHRA,
ADVOCATES FOR R-3 (JOINT VK FILED);
SRI USMAN, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
SET ASIDE THE ORDER/ENDORSEMENT DATED 23.11.2015
PASSED BY THE PRINCIPAL SECRETARY, MINORITY
WELFARE, HAJ & WAKF DEPARTMENT, GOVERNMENT OF
KARNATAKA BY R-1, VIDE ANNEXURE-E.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 27/01/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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ORDER
The petitioners in this writ petition are assailing the order/endorsement bearing No.MWD/453/WES/ 2013 dated 23/11/2015 (Annexure-E), passed by the Principal Secretary, Minority Welfare, Haj & Waqf Department-respondent No.1 and sought to allow the application dated 28/11/2013 (Annexure - A) filed by the petitioners seeking permission to prosecute respondent No.3 - Dr. Syed Shah Khusro Hussaini, who was the sitting member and R.Abdul Riyaz Khan - respondent No.4.
2. Brief facts leading to filing of this writ petition are:
Petitioners in this writ petition seek permission to prosecute respondent Nos.1 and 2, who were the sitting member and Chairman respectively of the Karnataka State Board of Waqf for having mortgaged the waqf property i.e., land measuring 7 acres in Sy.No.34, Brahmapura Village, Kalaburagi, (hereinafter referred -4- to as "the petition property" for the sake of convenience) by corrupt practice.
3. It is averred in the petition that the petition property belongs to Dargah Hazarath Khaja Bande Nawaz, (hereinafter referred to as "Waqf institution") registered under the Karnataka State Board of Waqf Act, 1959 ("the Waqf Act" for short). It is averred that the Khaja Education Society Gulbarga ("the Society" for short) was established by Sajjadanasheen of Dargah Hazrath Khwaja Bande Nawaz under the provision of the Societies Registration Act, 1960 ("Registration Act"
for short). The management and administration of the said waqf and its property is vested with the mutawalli and Sajjadanasheen Ali Jana and the Society has its registered office in the land belonging to the waqf where Sajjadanasheen is the president of the Society. It is averred that the land was leased out by the waqf to the Society for a period of 33 years and continues to occupy the property as a lawful tenant. It is further -5- stated that the Society is engaged in imparting education in various fields to the poor and had proposed to establish a general and teaching hospital in the name of Khaja Bande Nawaz by constructing a huge building on the land.
4. This being so, the Society felt necessary to take financial assistance from the bank in order to complete the building/project and proposed to raise a loan to the tune of Rs.12.00 crores from the nationalized bank and the bank insisted for security of property on which the proposed work will take place, as such, the Sajjadanasheen requested the Waqf Board to grant permission to mortgage the land and the matter was placed before the Board in its meeting and "No Objection Certificate" ("NOC") was issued granting permission to mortgage the property. Subsequently, a letter was addressed by the Deputy General Manager of State Bank of Hyderabad, Gulbarga not to release the loan amount since "NOC" was not yet approved by the -6- Board. In the meanwhile, it appeared that the legal opinion was sought from the advocate who had an opined that the lessee of the waqf property had no right to mortgage the waqf property or seek permission under Section 51 read with Rule 44 of the Waqf Act. It is further averred that ignoring the legal opinion, the then administrator in clear violation of Section 51 of the Waqf Act had proceeded to approve the proposal to grant loan on a condition that the building so constructed shall be registered as an additional waqf property and the Society availed the loan mortgaging the waqf property belonging to the Dargah Hazarath Khaja Bande Nawaz i.e., the waqf institution.
5. Per contra, learned High Court Government Pleader appearing for respondent No.1 would submit that the petition in the present form is not maintainable either in law or on facts and sought to dismiss the writ petition. It is stated that the power of leasing the waqf property is the discretionary power of the Waqf Board -7- and the petition property belongs to the waqf, which is registered under the Waqf Act and it has been leased out to the Society called "Khaja Education Society"
Kalaburagi, which runs medical college and hospital. It is further stated that the land leased in the year 1989 by the Waqf is after obtaining due permission from the Karnataka State Board of Waqf Bangalore. It is further stated that the allegation against respondent No.3 is false and baseless as he has assumed charge as Sajjadanasheen and President of the Society only in the year 2007 after the demise of the earlier president and as such, the allegation against respondent No.3 is baseless as he is not a party to the earlier transaction. It is further stated that the administrator of the Waqf Board has issued a notice stating that on a meeting held with the then Chief Minister and had taken oral permission to issue NOC to the Sajjadanasheen.
6. It is further stated that the said mortgage was in consistent with the object of the waqf and also -8- beneficial to the waqf institution and it is the responsibility of the Chief Executive Officer of the Board to issue or reject the "NOC", in case if there is any violation of the provisions of the Waqf Act, 1955. It is further stated that if there is any violation, the Chief Executive Officer ("CEO") of the Board would be the proper person to take action under Section 26 of the Waqf Act. It is further submitted that the endorsement issued vide Annexure - A to the writ petition is very much in accordance with law and taking into account the relevant rules, sought to dismiss the writ petition.
7. Respondent No.3 has filed his statement of objections contending and denying the allegations made against the said respondent and contended that the petitioners have no locus standi to file the writ petition and the same is filed to harass the respondent mentally, physically and monetarily. It is stated that the petitioners are strangers and no way concerned to mortgage transaction and the petitioners' rights have -9- not been infringed. It is stated that the petitioners, while filing the application before respondent No.1, no documents have been produced alleging forgery by respondent No.3 and in the absence of any material on record, respondent No.1 has rightly rejected the application seeking permission to prosecute respondent Nos.3 and 4. It is stated that the membership of respondent No.3 as a member of the Waqf Board has been ceased long back and there was a private complaint filed by the petitioners against the administrator and the same has been dismissed by the Sessions Judge and the revision petition preferred by the petitioners in criminal revision petition has also been dismissed.
8. It is stated that as per the 1st proviso to sub- section (1-A) of Section 51 of the Waqf Act, 1995 clearly states that if the Board is satisfied that any waqf property may be developed, it may by recording reasons in writing may sanction for mortgage of the
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property through such agency and such agency to develop the waqf property. Respondent No.3 would state that transaction of mortgage was done with the knowledge and permission of the Waqf Board and even assuming that there was a mortgage, the loan amount has been repaid long back in the year 2014 and a re- conveyance deed has been executed as per Annexure - R12 and would state that for the reasons stated above, the petition is devoid of merits and is liable to be dismissed with exemplary cost.
9. Respondent No.4 filed his statement of objections denying the writ petition averments to be false and frivolous and stated that respondent No.4 was officiating the Waqf Board as a Chairman from 2011 to 2014 and denied that he was not a Chairman of the Board or not even a member during the relevant point of time when the mortgage transaction had taken place. It is stated that respondent No.4 had no role in the alleged transaction and the entire allegation was
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directed against the then administrator of the Waqf Board and he is not a party to the writ petition. It is further stated that the Chairman is required to decide over the meeting after the due discussion with the members and majority opinion of the members would be taken on each subject and it is the duty of the CEO to implement it and therefore, the Chairman would not have taken any decision on any subject on his own and would state that the petitioners at no point of time have filed any complaint to the Chairman and had the petitioners given any such representation, it ought to have brought to the notice of the Board and appropriate decision could have been taken. It is stated that the petition filed is with a mala fide intention with vested interest and to harass the Chairman and to gain unlawfully and is liable to be rejected with costs.
10. Heard Sri Harish Kumar, learned counsel for the petitioners; Sri K.S.Arun, learned counsel High Court Government Pleader for respondent No.1; Sri
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Mahmood Patel and Smt. Fathima Zohra, learned counsel appearing for respondent No.3 and Sri Usman, learned counsel for respondent No.4 as well as perused the material on record.
11. Learned counsel for the petitioners would contend that the petitioners noticing that respondent No.3 being the Chairman of the Society, colluded with the then administrator of the Waqf Board, Sri Syed Zameer Pasha, mortgaged the property belonging to the waqf by forging certain documents and as such, the petitioners had filed an application seeking permission to prosecute respondent Nos.3 and 4 for the offence said to have been committed under the provisions of Prevention of Corruption Act, 1988 and Indian Penal Code, 1860.
12. It is the contention of the learned counsel that the endorsement issued to reject the permission is illegal, erroneous and liable to be set aside. He would
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contend that respondent No.3 was a sitting member and respondent No.4 was the Chairman of the Waqf Board. According to the learned counsel, the approval by the administrator to the Society for mortgaging the waqf property and the entire issue is illegal and necessary action needs to be taken against the authorities and accordingly, sought to contend that the act of respondent No.3 is apparent from their omission and commission in obtaining the loan by mortgaging the waqf property without obtaining necessary permission. Learned counsel would submit that the order/endorsement passed by respondent No.1 is not in consonance with the provisions of the Waqf Act and would contend that the necessary sanction would be accorded to the petitioners to prosecute respondent Nos.3 and 4 the then Sajjadanasheen of the waqf and Chairman of the Board under the provisions of Section 19 of the Prevention of the Corruption Act, 1988 for the violation of the provisions of the Waqf Act, 1955.
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Stating these grounds learned counsel for the petitioners sought to allow the petition.
13. Learned HCGP, in support of his contention, reiterating the statement of objections filed by the State would specifically contend that the power for leasing the waqf property is the discretionary power of the waqf and accordingly, the property was leased out to the society in the year 1989 itself after obtaining due permission from the Waqf Board. Learned counsel would submit that the permission seeking to accord sanction to prosecute respondent Nos.3 and 4 is not sustainable and the law does not require sanction order for initiating criminal proceeding before the police or the Court.
14. Learned counsel would contend that the sanction sought is only on the basis of the representation without there being any investigation and would contend that the order/endorsement issued
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by respondent No.1 is rightly rejected by respondent No.1 considering the provisions of the Waqf Act. Stating these grounds, learned HCGP sought to dismiss the writ petition.
15. Per contra, learned counsel for respondent No.3 would contend that the Waqf Board had accorded permission for lease of waqf land to the Khaja Education Society and respondent No.3 was neither the Sajjadanasheen in the office nor was he a president of the Society nor a party to the lease deed and his predecessor, who was in office at the relevant point of time has expired on 30/03/2007 and the present respondent No.3 assumed office on 20/09/2007.
16. In support of his contention, learned counsel has filed a memo producing the death certificate of the former Sajjadnasheen who died on 30/03/2007 and a copy of the order dated 20/09/2007 passed by the Waqf Board in favour of respondent No.3 appointing
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respondent No.3 as the Sajjadanasheen and mutawalli and would contend that as on the date of the loan transaction, respondent No.3 was not the Sajjadanasheen or the mutawalli and sought to dismiss the petition. Learned counsel would further submitted that the Waqf Board issued a notification for leasing the said land. An information was sought calling for their objection or suggestion within thirty days and the petitioners have not objected to the said notification.
17. It is further contended that the predecessor of respondent No.3 had submitted a letter seeking permission for mortgage and accordingly, the Waqf Board has passed a resolution for grant of permission to mortgage and the Chief Executive Officer (CEO) of the Waqf Board has issued NOC and subsequently, the predecessor submitted a letter to the then the administrator of the Wqkf Board for issuance of NOC and accordingly, the administrator issued a note granting permission.
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18. It is further contended that the CEO of the Waqf Board issued a letter to the DGM to grant the loan and accordingly the loan was sanctioned. He would also contend that the loan has been repaid by executing re-conveyance deed as per Annexure-R12 and the entire loan amount has been repaid on 12/09/2014 itself and would contend that in light of this the present petition seeking permission to accord sanction to prosecute respondent Nos.3 and 4 is not maintainable and the order passed by the first respondent refusing to grant permission to prosecute against respondent Nos.3 and 4 is just and proper and does not call for any interference.
19. Learned counsel for respondent No.4 would contend that respondent No.4 was neither a chairman nor the member of the Waqf Board when the administrator of the Waqf Board on 14/02/2005 had issued NOC in favour of the then Sajjadanasheen.
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Learned counsel would contend that the allegation made against the then administrator is not a party to the proceedings and the present respondent without there being any role in the year 2005 has been falsely implicated just to harass the said respondent.
20. Learned counsel would further contend that the representation filed by the petitioners seeking permission to prosecute respondent No.3 and 4 without there being any mala fides or investigation against the said respondent is not maintainable and rightly the respondent NO.1 on verifying the records has come to the conclusion that the petitioners cannot be accorded permission or sanction for prosecution against the respondent No.3 and 4. Thereby would contend that the writ petition needs to be dismissed with cost.
21. Before adverting to the submissions made by learned counsel for the parties, it is relevant to
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consider the provisions of Section 51 of the Waqf Act, 1955 which reads as under:
"51. Alienation of waqf property without sanction of Board to be void.--
(1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board:
Provided that no mosque, dargah,
khanqah, graveyard, or imambara shall be
leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013.
(1A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio:
Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move
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a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board:
Provided further that nothing contained in this sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board:
Provided also that-
(a) the acquisition shall not be in contravention of the Places of Worship (Special Provisions) Act, 1991 (42 of 1991);
(b) the purpose for which the land is being acquired shall be undisputedly for a public purpose;
(c) no alternative land is available which shall be considered as more or less suitable for that purpose; and
(d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired property."
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Upon perusal of Section 51 of the Waqf Act, it is clear that the said provisions have been made for the benefit of the Waqf and to see that no property to the waqf is improperly transferred in any manner to any person by the persons in-charge of the Waqf i.e., the mutawalli, the said provisions have been incorporated in Section 51 of the Act. It is pertinent to note that Section 51 of the said Act has been enacted with regard to disposal of the waqf properties under which the waqf has been constituted, without sanction of the Board, it would not be open to anyone to transfer any immovable property of the waqf by way of sale, gift, mortgage etc., in favour of any other person. Looking into the provisions of Section 51(1) of the Waqf Act, it is clear that the sanction of the Board to mortgage the property is the primary concern. It is not in dispute that by the proceedings of the Karnataka Waqf Board in the year 1989, the purpose of leasing the petition property was published in the Karnataka Gazette and
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the said notification issued by the Waqf Board was published for information of all the persons who are interested in the said property calling for their objections within thirty days. The petitioners have admittedly not objected to the said notification and accordingly the petition property was leased in favour of the Society.
22. Respondent No.1 predecessor Sajjadanasheen and mutawalli of Dargah Hazrath Khaja Banda Nawaz has submitted a letter to the Waqf Board seeking permission for mortgage of the land to avail bank loan for construction and infrastructural development of the teaching hospital attached to the Society and accordingly the Waqf Board in its proceedings on 05/04/2003 passed a resolution at Subject No.7 for the grant of permission to mortgage the petition property for construction of KBN teaching and general hospital for obtaining loan from the bank and subsequently, the CEO of the Waqf Board issued NOC in favour of the
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then Sajjadanasheen of Waqf Institution to borrow the loan by mortgaging the petition land for construction of KBN teaching and general hospital. Subsequently, respondent No.3 predecessor of the Sajjadanasheen submitted letter to the administrator of the Waqf Board for issuance of NOC and accordingly, the administrator of the Waqf Board issued a note granting permission to the third respondent to raise loan for establishing KBN teaching and general hospital by mortgaging the petition land and thereafter, the CEO issued letter to the DGM to grant loan in respect of the petition property and a mortgage deed was executed by the Sajjadanasheen namely Syed Shah Hussaini. It is relevant to note here that the then Sajjadanasheen had expired on 30/03/2007 and the Waqf Board passed an order appointing the third respondent herein as Sajjadanasheen and mutavalli of the said Darga vide order dated 20/09/2007 and the administrator namely Syed Zameer Pasha had retired from service on
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30/06/2012. It is relevant to note that the petitioners had filed an application before the Court respondent to take action against the Ex-administrator of the Waqf Board namely, Syed Zameer Pasha and had filed an application before the Principal Secretary of Minorities Department, Government of Karnataka, Bengaluru seeking permission to grant sanction to prosecute respondent Nos.3 and 4 herein alleging corrupt practice in the management of waqf properties of Waqf Institution. The first respondent refused to grant permission to prosecute the retired officer namely, Syed Zameer Pazha, ex-administrtor of the Waqf Board. It is relevant to note that respondent No.3 was not in office as on the date when the property of the waqf was mortgaged with prior permission of the Waqf Board.
23. Learned counsel for the petitioners would contend that necessary sanction has to be accorded for the petitioners for taking action against the Chairman
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of the Society and the administrator of the Waqf Board. The sanction sought has been rejected by respondent No.1 stating that the request made by the petitioners is unsatisfactory. It is also relevant to note that the petitioners had filed a private complaint against Syed Zameer Pasha who had retired as an administrator and the private complaint had been dismissed and the criminal petition preferred before this Court also came to be dismissed. The petitioners who are seeking for prosecution against respondent Nos.3 and 4 are not concerned either to the loan transaction, mortgage or to the reconveyance deed. The petitioners are silent with regard to respondent No.3, who was not a party to the transaction of mortgage and respondent No.4 who was not holding an office of an administrator as on that date of mortgage transaction. Even assuming that respondent Nos.3 and 4 had a role in the transaction by mortgaging the property. The perusal of Section 51 of the Waqf Act stated supra would disclose that the
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property of the waqf can be mortgaged with prior permission from the Waqf Board. Admittedly, in the present case, the prior sanction has been accorded by the CEO of the Waqf Board and the administrator. It is also not in dispute that the reconveyance deed has also been executed and the property has been released from mortgage. The petitioners have sought for sanction to prosecute respondent Nos.3 and 4 alleging corrupt practice in the management of the Darga Property without there being any material to that effect and the petitioners have filed the present petition by misrepresenting and suppressing the material facts.
24. For the reasons stated supra, it is quite clear that respondent Nos.3 and 4 have not violated any of the provisions of the Waqf Act for the petitioner to seek sanction to prosecute against them and therefore, the petitioners are not entitled for the reliefs prayed for in the petition and the petition is liable to be rejected with
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costs for filing frivolous writ petition with sinister motive to harass respondent Nos.3 and 4.
25. In the result, this Court pass the following:
ORDER
(i) Writ petition is dismissed as devoid of merits by imposing cost of Rs.25,000/- payable by the petitioners to the Karnataka State Legal Services Authority, Bengaluru, for filing frivolous writ petition.
(ii) The cost imposed to be paid within four weeks from the date of receipt of a copy this order.
SD/-
JUDGE S*