Karnataka High Court
Sri Khusro Qureshi vs The Karnataka State Board Of Auqaf on 15 December, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.17205 OF 2021 (GM-WAKF)
BETWEEN:
1 . SRI KHUSRO QURESHI
S/O RASHEED QUARISHI
AGED ABOUT 67 YEARS
R/AT #571, 8TH BLOCK,
1ST CROSS, KORAMANGALA
BENGALURU - 560 034.
2 . SRI ABDUL AZEEZ
S/O LATE ABDUL MALLICK
AGED ABOUT 72 YEARS
R/AT NO.49, INDUSTRIAL SUBURB
M.E.C.ROAD, YESHWANTPUR
BENGALURU - 560 022.
3 . SRI MOHAMMED IBRAHIM NAFEES
S/O LATE ABDUL GANI
AGED ABOUT 47 YEARS,
R/AT #8/1, AMC ROAD,
1ST MAIN, 2ND CROSS,
KUSHALNAGAR, K.G.HALLI
BENGALURU - 560 045.
4 . SRI ABDUL RAHEEM
S/O LATE ABDUL MALLICK
AGED ABOUT 66 YEARS,
R/AT NO.26, 1ST CROSS, HMT LAYOUT
2
MATHIKERE
BENGALURU - 560 054.
5 . SRI HAFIZ MOHAMMED SAYEEDUDDIN
S/O LATE AHMED KHAN
AGED ABOUT 64 YEARS,
R/AT NO. 249, A-3, 2ND FLOOR,
SUN RISE APARTMENTS
SUN CITY ROAD,
KENGERI SATTELITE TOWN
BENGALURU - 560 060.
... PETITIONERS
(BY SRI R.S.RAVI, SR.ADVOCATE A/W
SRI SUNIL K.N., ADVOCATE)
AND:
1. THE KARNATAKA STATE BOARD OF AUQAF
DARUL - AUQAF
NO.6, CUNNINGHAM ROAD,
BENGALURU - 560 052
REP: BY ITS CHIEF EXECUTIVE OFFICER.
2. THE MUSLIM ORPHANAGE (R)
NO.43, DICKENSON ROAD
BENGALURU - 560 042
REP: BY ITS PRESIDENT.
3. THE MUSLIM ORPHANAGE (R)
NO.43, DICKENSON ROAD,
BENGALURU - 560 042
REP: BY ITS SECRETARY.
4. SRI SYED AJAZ AHAMED
THE ELECTION OFFICER
THE MUSLIM ORPHANAGE
3
NO.43, DICKENSON ROAD
BENGALURU - 560 042.
... RESPONDENTS
(BY SRI P.S.MALIPATIL, ADVOCATE FOR R1 AND R4;
R2 - SERVED
SRI NAVEED AHMED, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
R-1 TO TAKE OVER THE MANAGEMENT OF THE R-2 AND 3 AND TO
HOLD ELECTIONS FROM THE STAGE WHERE IT WAS STOPPED AS
PER THE CALENDAR EVENTS DTD 22.10.2019 ISSUED BY THE R-4
VIDE ANNX-B AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.11.2022, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court seeking a direction by issuance of a writ in the nature of mandamus directing the 1st respondent/Karnataka State Board of Auqaf ('the Board' for short) to take over the management of the 2nd and 3rd respondents/Muslim Orphanage (hereinafter referred to as 'the 4 Orphanage')) and hold elections from the stage it was stopped in terms of issuance of calendar events. A further direction is sought to approve the scheme of management dated 15.07.2021 and appoint an Inquiry Officer to hold an enquiry to rectify the illegalities or financial irregularities committed by the existing committee of management in terms of the representation dated 27-07-2021.
2. Heard Sri R.S. Ravi, learned senior counsel appearing for the petitioners, Sri P.S.Malipatil, learned counsel appearing for respondents 1 and 4 and Sri Naveed Ahmed, learned counsel appearing for respondent No.3.
3. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-
Petitioners 1, 2 and 4 claim to be patron members of the 2nd respondent/Orphanage and other petitioners claim to be life members of the Orphanage by contributing membership fee of Rs.25,000/- in case of patron members and Rs.2,000/- in case of life members. The Orphanage was formed with an object to help the destitute children belonging to Muslim community. The 5 Orphanage own several properties in Bangalore which are narrated in the petition. The properties are used for the purpose of housing children who are in destitute condition. The education is also taken care of is what is averred in the petition. The issue does not concern the manner in which the Orphanage is now running. It is claimed that the Orphanage is in existence since 1892.
Government of Karnataka appears to have issued a gazette notification on 07-06-1965 registering the name of the Orphanage as Muslim Orphanage. After the aforesaid gazette notification, the Orphanage came under the control of the 1st respondent/Board.
4. For the purpose of administration of the Institution a scheme of management was registered with the Board. The scheme of management of the said Auqaf property was the one that was in force upto 2016. In the year 2016 the scheme of management comes to be amended in terms of the amendment to the bye-laws on 07-11-2016. It is contended that in terms of bye-laws administration of the Orphanage is vested with the Executive Committee elected by the members of the Orphanage in a General Body Meeting. The term of the Executive Committee in terms of the 6 Bye-laws is three years. The election to the office of Executive Committee in terms of the said bye-laws was held on 22-12-2016. The body that was elected in terms of the said election was to manage the affairs of the Orphanage up to 22-12-2019. The Executive Committee of the Orphanage sought to conduct elections and appointed a Returning Officer for conduct of elections before the term of the Executive Committee could come to an end. The calendar of events was notified by the Returning Officer on 22-10-2019 fixing the date of election as 17-11-2019.
5. The issuance of calendar of events by the Returning Officer was challenged by some of the Members of the Orphanage by filing an application in Application No.37 of 2019 before the Karnataka Wakf Tribunal. The Tribunal grants stay of the election initially. Later, it appears that the interim order of stay comes to be vacated on 16-11-2019. It is contended that in view of vacation of interim order, the Orphanage ought to have continued the elections from the stage it was stopped i.e., issuance of calendar of events. The 4th respondent/Returning Officer rescheduling the date of election to 24-11-2019 requests the Board to depute staff for conduct of 7 elections on 24-11-2019. The Board appears to have declined the request of the 4th respondent to send any staff to hold elections on the ground that the Orphanage has not incorporated the model scheme of administration and has not obtained approval of the bye- laws in Form No.42 in terms of Rule 48 of the Karnataka Wakf Rules, 2017. Therefore, the Board extended the term of the then existing Committee for a period of three months from 27-11-2019 and once again extended the term of the Committee from 19-09- 2020 for a period of six months or until further orders. Though the term of the Managing Committee has expired, the Board has again extended the term of the Committee by issuance of circulars.
6. The contention of the petitioners is that the Managing Committee which is functioning by virtue of the extended term has no power under the existing scheme either to amend the existing scheme of management or frame a new scheme without following the Act and the Rules. The allegations against the Committee galore in the body of the writ petition and the petitioners have also appended certain representations given to the Board bringing to its notice irregularities, misappropriation and mismanagement 8 committed by the management in the affairs of the Orphanage. It is the claim of the 3rd petitioner that he had also submitted his nomination pursuant to the notification of calendar of events. The claim is that an Administrator should be appointed to hold elections and it should not be conducted by the present Managing Committee or the Returning Officer/4th respondent herein appointed by the Managing Committee. The reason so rendered in the petition is with regard to certain misappropriation or mismanagement of the Orphanage by the present committee.
7. The learned senior counsel Sri.R.S.Ravi representing the petitioners would contend that elections that are stopped on account of interim order should be continued from that stage itself. The interim order was vacated on 17-11-2019. In spite of that the Board did not choose to conduct elections and went on extending the term of the existing committee whose term was long over. During the extended term, the care taker or the Managing Committee submits a scheme of administration amending the existing Scheme without convening a Special General Body meeting under bye-law 27 of the Scheme of Administration. In view of 9 serious allegations of mismanagement, misappropriation and irregularities it is necessary that an Administrator be appointed to conduct elections, as the Board and the present Managing Committee are hand in glove. He would submit that representations are given to that effect which had all gone unheeded and, therefore, the petitioners had to knock the doors of this Court. The petitioners also want conduct of elections but under the supervision of an Administrator.
8. On the other hand, the learned counsel appearing for the 1st respondent/Board would contend that the Scheme of Management was amended in terms of the Rules and, therefore, it is not open for the petitioners to contend that the Board should not approve the Scheme of Management. Under Sections 32 and 69 of the Wakf Act it would be open to the petitioners, in the event they are aggrieved by the approval of the Scheme, to challenge the scheme in a separate proceeding. Insofar as the contention of the learned senior counsel with regard to the alleged irregularities, mismanagement or misappropriation, the Board would take appropriate action if appropriate representations are submitted to 10 the Board. That would not mean that an Administrator should be appointed for conduct of elections and would seek dismissal of the petition.
9. The learned counsel representing the Orphanage who has filed the objections, would also seek to contend that there are several orders passed by this Court directing conduct of elections and, therefore, the petitioners cannot seek stalling of elections or conduct of election under the supervision of an Administrator when the Board is supervising the entire elections.
10. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
11. The afore-narrated facts are not in dispute. The only issue that calls for consideration is, "Whether the claim of the petitioners for conduct of elections from the hands of an Administrator should be acceded to?"
11
12. The Executive Committee of the Orphanage coming into existence and its term being over and the Board extending the term from time to time are all a matter of record. If that is illegal, the solution is conduct of elections. The elections have to be held and on the plea that there were irregularities, mismanagement or misappropriation by the Executive Committee of the Orphanage, it would not mean that elections are to be conducted by the Administrator. The elections are notified to be conducted by the 4th respondent way back on 24-11-2019 and every effort made for conduct of elections later are objected to by the petitioners including by way of filing of the present petition.
13. It is now germane to notice several orders passed by this Court. This Court in W.P.No.4633 of 2020 decided on 24-03-2021 has held as follows:
".... .... ....
6. To a pointed question as to how many members are in the Management of the orphanage, Shri Naveed submitted that there are 1700 members and objection is raised by only one person who has filed I.A.1/2020 for impleadment. He submitted that he has serious objection to allow I.A. for impleadment as only one member is aggrieved.
7. It is not in dispute that the scheme is submitted by the Executive Committee and it is for 12 respondent-Board to examine it in accordance with law. In view of the statement made by Shri Haneef that the scheme shall be considered, in accordance with law, nothing further survives for consideration.
8. Shri Naveed is satisfied with the submission made by Shri Haneef.
9. Shri Naveed and Shri Haneef further submitted that if the applicant has any grievance, he can challenge the order passed by the respondent-Board before Waqf Tribunal since there exists alternative and efficacious remedy and no orders has been passed by the Statutory Authority. In the circumstance, I.A.No.1/2020 for impleadment is rejected.
10. In the circumstance, this petition is disposed of by placing the submission of Shri Haneef on record.
11. No precipitative action shall be taken by the Board against petitioner till appropriate orders are passed, in accordance with law, with regard to scheme.
No costs."
(Emphasis supplied) The Executive Committee of the Orphanage was before this Court yet again in Writ Petition No.18101 of 2021. This Court has held as follows:
".... .... ....
3. Having heard learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that the present arrangement needs to be continued till after the first respondent holds election to the petitioner - Committee before long and that there should be no role for the care taker in managing the same. In fact impugned order was stayed too by interim direction all these days. 13
In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order. It is open to the first respondent to hold election to the Managing Committee of the Petitioner- Orphanage preferably within a period of three months, in accordance with law."
(Emphasis supplied) The Orphanage after the order passed by this Court in Writ Petition No.18101 of 2021 communicates to the Chief Executive Officer of the Board seeking conduct of elections in terms of the existing bye- laws as directed by this Court (supra). Again a communication is sent on 13-06-2022 seeking conduct of elections. The communications dated 01-09-2022 and 13.06.2022 read as follows:
"THE MUSLIM ORPHANAGE (REGD.) Registered under the Karnataka State Board of Wakfs Ref:MO/Adm/Elections/2022 1st September, 2022 The Chief Executive Officer, The Karnataka State Board of Auquf, "Darul Auqaf", No.6, Cunningham Road, Bengaluru-560 018.
Sir, Sub: Request for conducting election to the Muslim Orphanage, Bengaluru as per the existing Bye-laws of the Orphanage.
Ref: 1. Order dated 27-01-2022 of the Hon'ble High Court in case No.WP 18101/2021 (GM-Wakf) to conduct Elections.
2. Order dated 22-09-2021 of the Hon'ble High Court in case No.WP 17205/21 (GM & Wakf) 14 directing the Board not to approve the amended Bye-laws of the Orphanage.
--
This is in continuation of this Office letters of even reference dated 1-02-2022 and 13-06-2022 wherein we had communicated the final order dated 27-01-2022 of the Hon'ble High Court of Karnataka in Case No.WP No.18101 of 2021 (GM-Wakf) directing the Board to conduct the elections to the Muslim orphanage preferably within three months.
The Board vide its orders No.KBW/BSL/34/BNU/2009 -10 dated 29-03-2022 accorded approval of amendments to the Scheme of Administration pertaining to the Muslim Orphanage, Bengaluru and also appointed Election Officer to conduct the elections.
The Board vide its order No.KBW/BLS/34/BNU/2009-10 dated 20-08-2022 has withdrawn the aforesaid order dated 29-03- 2022 according approval of amendment to the Scheme of Administration in view of operation of interim order No.W.P.17205 of 2021 dated 22-09-2021.
We therefore, once again request your goodself to please conduct the elections as per existing Bye-laws of the Orphanage inn compliance of the order dated 27-01-2022 of the Hon'ble High Court of Karnataka in Case No.WP No.18101 of 2021 (GM-Wakf) directing the Board to conduct the elections without further delay."
--
"THE MUSLIM ORPHANAGE (REGD.) Registered under the Karnataka State Board of Wakfs Ref:MO/Adm/Elections/2022 13th June, 2022 The Chief Executive Officer, The Karnataka State Board of Auquf, "Darul Auqaf", No.6, Cunningham Road, Bengaluru-560 018.
Sir, 15 Sub: Request for conducting election to the Muslim Orphanage, Bengaluru as per the existing Bye-laws of the Orphanage.
Ref: 1. Order dated 27-01-2022 of the Hon'ble High Court in case No.WP 18101/2021 (GM-Wakf) to conduct Elections.
2. Order dated 22-09-2021 of the Hon'ble High Court in case No.WP 17205/21 (GM & Wakf) directing the Board not to approve the amended Bye-laws of the Orphanage.
--
This is in continuation of this Office letters of even reference dated 1-02-2022 wherein whilst informing about the final order dated 27-01-2022 of the Hon'ble High Court of Karnataka in Case No. WP No.18101 of 2021 (GM-Wakf) directing the Board to conduct the elections within three months had requested you to appoint an Election Officer to conduct the elections to the Muslim Orphanage either as per the existing Bye-laws or amended Bye-laws pending before the Board for its approval.
We are thankful to the Board for having appointed Sri Syed Ejaz Ahmed, KAS Officer (Retd.) as an Election Officer cum-Enrolment Officer vide its order No.KSBA/ADM/ 69/BNU(N)/2020 dated 29-03-2020 to conduct the elections as per the amended Bye-laws. However, we would like to remind you that there is a stay order dated 22-09-2021 of the Hon'ble High Court in W.P.No1705 of 2021 filed by Mr. Khusro Qureshi and others against the Wakf Board and others, directing Board not to approve the amended Bye- laws of the Orphanage till the next date of hearing the said order still continues till date.
In view of the order of Stay dated 22-09-2021 directing the Board not to approve the amended Bye-laws, it is not advisable to conduct the Elections as per recently approved amended Bye-laws dated 29-03-2022 which may cause legal hindrances at a later stage.
It is therefore, requested to your good-self to please conduct the elections as per the existing Bye-laws of the Orphanage approved and amended by the Board vide order 16 No.KBW/BLS/34/BNU/2016-17 dated 7-11-20216 instead of approved amended Bye-laws dated 29-03-2022 (a copy of existing Bye-laws dated 7-11-20216 is enclosed hereto for your ready reference)."
(Emphasis added) Therefore, it is high time that elections are to be conducted and an Executive Committee in terms of the results of election be put in place in terms of what this Court ordered as that findings has become final. Merely on the say of the petitioners elections cannot be conducted by the Administrator when the Board itself is the Competent Authority to conduct elections, for which a Returning Officer/Election Officer is appointed viz., the 4th respondent herein. Therefore, no member of the Executive Committee existing or Members of the Orphanage be it patron members or life members can be seen to contend that elections should not be held to the Committee or elections should be held in a particular manner. Elections are to be held in terms of the bye-laws. Bye-laws are the Scheme of management. Therefore, I deem it appropriate to direct elections to be conducted forthwith, not by any external Administrator but by the Committee existing which has to conduct elections and give way to a new Committee which would be 17 depending upon the result of elections, all under the supervision of the Board. None of the prayers that are sought in the petition merit any acceptance.
14. The Writ Petition is disposed with a direction to the respondents to conduct elections and conclude the same in terms of the observations made in the course of the order, within an outer limit of eight weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE bkp CT:MJ