Karnataka High Court
The Anjuman-E-Islam, Belgaum vs Zaibunnisa W/O Zia Ahmed Mohd, Ibrahim on 31 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 108570 OF 2014 (GM-WAKF)
BETWEEN:
THE ANJUMAN-E-ISLAM, BELGAUM,
(REGISTERED EARLIER UNDER BOMBAY TRUST ACT
LATER CAME TO BE REGISTERED UNDER WAQF ACT)
OPP. CIVIL AND DISTRICT COURTS BUILDING,
BELGAUM,
REPRESENTED BY ITS ADMINISTRATOR,
SHRI BASHEER AHMED M. RESALDAR,
AGE: 62 YEARS, OCC: ADMINISTRATOR,
R/O. ANJUMAN-E-ISLAM BELGAUM,
OPP. CIVIL AND DISTRICT COURTS BUILDING, BELGAUM.
...PETITIONER
(BY SRI. B. MUHAMMED ALI, ADVOCATE)
AND:
1. [SMT. ZAIBUNNISA WD/O ZIA AHMED MOHD IBRAHIM]
SAROJA
HANGARAKI [MOKASHI, AGE: 74 YEARS]
DECEASED R1 REPRESENTED BY HER LRS R2-R5 & R7.
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
BENCH
2. SHRI MOHD. GOUSE ZIA AHMED MOKASHI,
AGE: 59 YEARS,
3. SMT. SAYEEDA WD/O. NIYAZ ZIA AHMED MOKASHI,
AGE: 41 YEARS,
4. SHRI ABDUL ALEEM
S/O. NIYAZ ZIA AHMED MOKASHI,
AGE: 20 YEARS,
-2-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
5. KUM. FAHEEM
S/O. NIYAZ ZIA AHMED MOKASHI,
AGE: MINOR,
REPRESENTED BY MINOR GUARDIAN HIS
NATURAL MOTHER RESPONDENT NO.3.
6. [SHRI EJAZ ZIA AHMED MOKASHI]
DECEASED UNMARRIED NO LR.
AGE: 36 YEARS,
7. SMT. ZEENATH ARA
D/O. ZIA AHMED MOKASHI,
AGE: 35 YEARS,
ALL RESIDENTS OF CTS NO.3736,
DARBAR GALLI, BELGAUM.
8. THE KARNATAKA STATE BOARD OF WAKFS
"DARUL AWKAF" NO.6,
CUNNINGHAM ROAD,
BANGALORE-560052,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADV. FOR R2-R5 & R7;
R2-R5 & R7 ARE LR'S OF DECEASED R1;
SRI. D.L. LADKHAN, ADV. FOR R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT, OR
DIRECTION BY QUASHING THE IMPUGNED ORDER PASSED BY THE V
ADDL. DISTRICT AND SESSIONS JUDGE AND KARNATAKA WAKF
TRIBUNAL, BELGAUM IN KWT/BGM/SR/APPLN NO.4/2013 DATED 25-
08-2014 VIDE ANNEXURE-J.
-3-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 22.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
1. The present writ petition is filed praying to issue
a writ in the nature of certiorari or any other writ, or
direction to quash the impugned order passed by the V
Additional District and Sessions Judge and Karnataka
WAKF Tribunal, Belagavi in KWT/BGM/SR/APPLN
No.4/2013 dated 25-08-2014 vide Annexure-J.
2. The factual matrix of the case of the petitioner
before this Court is that the respondents have filed an
application before the Karnataka WAKF Tribunal, Belagavi
Division, Belagavi on 03.04.2013 in terms of Annexure-A
praying the WAKF Tribunal to set aside the impugned
Certificate of Registration dated 12.09.2011 issued and
published by respondent No.1-WAKF Board in Karnataka
Rajya Patra dated 10.11.2011 insofar as effecting
registration of the Application Schedule Property and order
-4-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
for the prosecution and punishment of the respondents for
playing mischief and fraud.
3. The counsel appearing for the petitioner would
vehemently contend that copy of the Deed of WAKF-nama
dated 05.06.1959 executed in favour of the petitioner is
produced as per Annexure-B and copy of CTS extract of
CTS No.3736 is also produced to evidence the said fact in
terms of Annexure-C. The map of CTS No.3736 of Darbar
Galli (Bagwan Galli) issued by the CTS authority is
produced as Annexure-D. He also submits that the City
Corporation, Belagavi has also issued the extract in terms
of Annexure-E and all these documents evidence the fact
that consequent upon execution of deed of WAKF-nama
dated 05.06.1959, all the revenue entries were entered in
the name of the petitioner.
4. It is also contended that there was a delay in
issuance of Gazette Notification pertaining to the property
in dispute. However, the same was issued in terms of
Annexure-F. Counsel would further contend that when the
-5-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
application was filed before the WAKF Board as per
Annexure-A, the petitioner has filed statement of
objections and so also respondent No.8 has also filed
statement of objections in terms of Annexure-H.
5. It is the contention of the petitioner before this
Court in this writ petition that the Presiding Officer of the
WAKF Tribunal failed to consider that what is to be
challenged is the Gazette Notification of notified property
by filing an independent suit within a stipulated period and
not Certificate of Registration. It is also contended that the
Presiding Officer of the WAKF Tribunal erroneously held
that the petitioner has failed to produce documents to
substantial their defence that the property in question is
WAKF property. In spite of the petitioner producing the
registered Deed of WAKF-nama as per Annexure-B, CTS
extract as per Annexure-C and extract of tax assessment
as per Annexure-E before the WAKF Tribunal, those
documents were not looked into and appreciated by the
Tribunal.
-6-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
6. It is also contended that the Tribunal failed to
consider that proceedings are not maintainable without
issuance of two months prior notice against respondent
No.8 under the provisions of Section 89 of WAKF Act,
1995. The Presiding Officer misconstrued the decision
reported in ILR 1996 KAR 3566 and WAKF Tribunal has not
given sufficient opportunity of being heard to the
petitioner before passing the impugned order. The WAKF
Tribunal has not considered the objections filed by the
petitioner to the main petition and without there being
reasonable enquiry in the proceedings, hurriedly and
arbitrarily passed the impugned order. The Presiding
Officer failed to consider that respondents No.1 to 7 are
claiming ownership rights over the notified property
bearing CTS No.3736 of Belagavi comprised in Gazette
Notification produced at Annexure-F. It is contended that
in the absence of any documentary proof claiming right by
the respondents in respect of the property involved,
setting aside the Certificate of Registration is erroneous
and the persons who are in unauthorized occupancy of the
-7-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
said property cannot claim ownership and title to the
property and hence this Court has to quash the impugned
order at Annexure-J by issuing a writ in the nature of
certiorari.
7. Counsel for the petitioner in support of his
argument, produced a memo along with list of judgments
and brought to notice of this Court the judgment of this
Court in the case of Karnataka Board of WAKFS vs.
State of Karnataka and others reported in 1996 (7)
KLJ 585, wherein it is held that the gazette notification is
conclusive proof as to the ownership of the properties of
the WAKF, unless the same was challenged and decree
obtained in a civil suit as contemplated under Section 6(1)
of the WAKF Act, 1954. In the absence of any declaratory
decree thereto, as against the publication of list of WAKFS
in the gazette notification, the properties listed therein in
the list of WAKFS is construed in law to be belonging to
the WAKF. Counsel relies on paragraph No.13 of the said
-8-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
judgment, wherein discussion is made with regard to legal
position of the gazette notification of WAKF property.
8. Counsel also relied upon the judgment in the
case of Gulisthan Shadi Mahal Trust vs. the
Karnataka Board of WAKFS and Another reported in
ILR 2002 KAR 2592, wherein it is held that the suit has
to be filed within one year from the date of publication
challenging the publication of the list of WAKF.
9. Counsel also relied upon the judgment in the
case of Chhedi Lal Misra (Dead) through LRs. Vs. Civil
Judge, Lucknow and Others reported in (2007) 4 SCC
632 and brought to notice of this Court paragraph No.8,
wherein it is held that once a WAKF is created it continues
to retain such character which cannot be extinguished by
any act of the Mutwalli or anyone claiming through him.
Counsel also relies upon the judgment in the case of
Ahmed G.H. Ariff and Others vs. Commissioner of
Wealth Tax, Catcutta reported in 1969 (2) SCC 471,
wherein it is held that there can be difficulty that such a
-9-
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
right can be regarded to be property giving that word the
widest meaning as is contemplated by the language
employed in Section 2(e). The moment a WAKF is created,
all rights of property pass out of the WAKF and vest in the
Almighty.
10. Counsel also relied upon the judgment in the
case of Muni Lal vs. Oriental Fire and General
Insurance Company Limited and Another reported in
(1996) 1 SCC 90 and brought to notice of this Court the
discussion made with regard to Section 34 of the Specific
Relief Act. Counsel also relied upon the judgment in the
case of Smt.Jayamma Venkatram and Another vs.
Smt.Ashraj Jahan Begum and Another reported in ILR
2021 KAR 3559, wherein it is held that revenue records
do not confer any title.
11. By relying on the aforesaid judgments, the
counsel for the petitioner contends that when the
respondents are the unauthorized occupants and case
under the Public Premises Act is pending for eviction of
- 10 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
them, the WAKF Tribunal ought not to have allowed the
application filed by the respondents.
12. This writ petition is resisted by filing statement
of objections by the respondents No.1 to 7 and in the
statement of objections it is contended that the petitioner
has played mischief and fraud in effecting registration of
these respondents property with the respondent No.8-
WAKF Board. The writ petitioner and respondent No.8-
Board effected registration of the said property
deliberately, intentionally and with oblique motives in
order to grab the said property of these respondents and
this petitioner has no locus standi to file the present writ
petition. It is further contended that the impugned order
does not suffer from any illegalities or irregularities and
the same is neither perverse, capricious nor arbitrary and
the WAKF Tribunal provided sufficient opportunity to the
writ petitioner and the impugned order was not passed
hurriedly or arbitrarily.
- 11 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
13. It is further contended that the immovable
property bearing CTS No.3736 situated at Darbar Galli also
facing towards Bagwan Galli, Belagavi is belonging to
these respondents and these respondents are the absolute
owners and they are in actual, physical, uninterrupted and
defacto of possession and enjoyment of the same from
decades together till date.
14. It is also contended that the said property
formerly belongs to Mr.Mohammed Ibrahim Saheb
Mokashi, who is the grandfather of respondents No.2, 6
and 7 and he died leaving behind his only son, Sri.Zia
Ahmed Mohammed Mokashi, who is the husband of
respondent No.1 herein and father of respondents No.2, 6
and 7 and father-in-law of respondent No.3 and
grandfather of respondents No.4 and 5. These respondents
have succeeded to the said property as is legal heirs and
successors. These respondents are in actual, physical
possession and enjoyment of the said property as its
- 12 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
absolute owners thereof till date. Hence, the said property
is not a 'WAKF property' or a 'public premises'.
15. It is also contended that the petitioner has filed
a case bearing No.PP/210/BGM/2009 against respondent
No.2 herein and against the husband of respondent No.3
under Section 5 of the Karnataka Public Premises (Eviction
of Unauthorized Occupants) Act, 1974. The same has been
resisted by filing statement of objections and copy of the
same is produced as Annexures-R1 and R2. When the
Certificate of Registration was produced, the respondents
came to know about the same on 26.06.2012 and the
copy of the certificate is produced as Annexure-R3. Hence,
the same was challenged before the WAKF Tribunal as per
Annexure-A and in support of the same, 32 documents
were produced and the Tribunal has rightly considered
those documents and passed the impugned order and list
of documents are also produced as Annexure-R4.
16. It is also contended that document at
Annexure-B is not WAKF Deed/WAKF-nama. The said
- 13 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
document is not seen the light of the day ever since 1959
i.e. for more than about 50 years, till it was produced in
the said Public Premise Act case and before the WAKF
Tribunal by the writ petitioner. It is further contended that
the very executants Smt.Zubeda Bi has no right, title or
interest in the above said property and the said document
is silent about mode of acquisition and the said document
was never put into practice nor enforced ever since 1959
and the said document has been executed in favour of one
Sri.Abdul Khadar but not in the name or in favour of the
'Almighty God' and the said document is not only
untrustworthy, but illegal and invalid document.
17. It is also contended that the documents which
have been produced along with this petition as Annexures-
C, D, E and F are untenable documents and the very
Certificate of Registration is hit by Section 36 (7) and (8)
of the WAKF Act.
18. Counsel referring to these documents, in his
argument vehemently contended that the Tribunal taking
- 14 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
into note of all the material on record, has rightly passed
the order. He contends that the boundaries mentioned in
Annexure-B does not tally with the notification and are
different and hence they are in possession of the property
and the property belongs to the respondents' family and
they have inherited the same.
19. In reply to the arguments of the respondents'
counsel, petitioner's counsel would submit that the
respondents claim that the property belongs to the family
of Mokashi but it belongs to Soudagar family and the same
is dedicated to the WAKF and the respondents have not
pleaded anything about their title and how they got the
property and the Tribunal has not appreciated the title
document which has been placed before the Tribunal and
hence the Tribunal has committed an error which requires
interference of this Court.
20. Counsel also would contend that when the
respondents have not filed any title documents, the WAKF
Tribunal ought not to have passed an order in their favour
- 15 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
and also the Tribunal ought not to have granted an order
in favour of the respondents without any documents.
21. Having heard the petitioner's counsel and the
respondents' counsel and also considering the grounds
which have been urged in the writ petition as well as the
statement of objections and citations and considering the
material on record, the following points would arise for
consideration of this Court:
i. Whether the WAKF Tribunal has
committed an error in entertaining the
petition filed by the respondents against
the material on record and whether it
requires interference to issue a writ in
the nature of certiorari to quash
Annexure-J?
ii. What order?
Reg. point No.1
22. Having perused the material on record and also
the contentions of the respective counsels, it is not in
- 16 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
dispute that the respondents have filed an application
before the WAKF Tribunal under Section 83(2) of the
WAKF Act, wherein it is contended that the immovable
property bearing CTS No.3736 belongs to the respondents
and the respondents are the absolute owners and they are
in actual, physical, uninterrupted and defacto possession
and enjoyment of the same from decades together till
date. The description of the property is also mentioned in
the application schedule property.
23. It is contended that the schedule property
formerly belongs to Mr.Mohammed Ibrahim Saheb
Mokashi and they are claiming schedule property through
him. The respondents have also produced documents list
i.e. documents No.1 to 32 and contended that the
petitioner herein has no right, title or interest over the
schedule property. The same is resisted by filing
statement of objections before the WAKF Tribunal as per
Annexure-G against the claim as per Annexure-A. The
petitioner herein has contended that the WAKF-nama was
- 17 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
executed in favour of the WAKF Board in terms of
Annexure-B and the same was registered in the year 1959
itself and also produced Annexure-C evidencing the said
fact, wherein an entry is made on 26.08.1959 as plain
card and Annexure-C is regarding identification of the
property as review sheet and also produced copy of
assessment list of buildings and lands liable to taxation for
the year 1985-86 to 2002-03 as per Annexure-E so also
produced gazette notification.
24. Having considered the documents which have
been filed by the respondents before the Tribunal, no
doubt they rely upon documents No.1 to 32 and list is also
produced before the Court for having produced the
documents before the Tribunal. The very contention of the
petitioner before this Court is that when the property was
dedicated to the WAKF Board by executing a document in
the year 1959, The WAKF Tribunal ought to have taken
note of Annexure-B and other documents and the same
has not been taken note of by the Tribunal.
- 18 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
25. In the judgment relied upon by the petitioner's
counsel in the case of Muni Lal supra, it is held that
without seeking declaration of title the respondents cannot
seek setting aside gazette notification in terms of Section
34 of Specific Relief Act. It is also important to note that
the judgment in the case of Ahmed G.H. Ariff supra, it is
held that once it is declared a particular property as WAKF,
right of WAKFI extinguishes. It is important to note the
judgment in the case of Karnataka Board of WAKFS
supra in para 13 it is held that gazette notification is a
conclusive proof as to the ownership of the properties of
the WAKF, unless the same was challenged and decree
obtained in a civil suit.
26. In the case on hand, no doubt the gazette
notification was issued in the year 2011 i.e. Registration
Certificate dated 12.09.2011 and being aggrieved by the
impugned Certificate of Registration dated 12.09.2011, the
respondents had invoked Section 83(2) of the WAKF Act.
When the respondents claim their right challenging the
- 19 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
said Registration Certificate, the Tribunal ought to have
taken note of how the respondents got the property and
no doubt when the Tribunal formulated the point whether
the applicant has made out sufficient grounds to set aside
the impugned Certificate of Registration dated 12.09.2011,
unless documents are produced by the respondents before
the Court with regard to their title is concerned, The
Tribunal ought not to have set aside the Registration
Certificate.
27. The main claim of the respondents is that the
property belongs to Mokashi family and in order to
substantiate the same, no documents are placed before
the WAKF Tribunal. The Tribunal on careful perusal of the
documents comes to the conclusion that the Certificate of
Registration has been issued exercising powers vested
under Section 36 of the WAKF Act and an observation is
made that the petitioner herein has failed to place any
documents to show that on which basis the Certificate of
Registration was issued since the same was brought to the
- 20 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
knowledge of the applicant and general reference was
made with regard to the documents produced by the
respondents at Sl.No.1 to 32 which are from the year
1995 till the date of filing of the case. The Tribunal further
comes to the conclusion that those documents show that
the respondents are in actual and lawful possession as well
as in enjoyment of the schedule property and failed to
take note of the fact that what is the basis for their claim.
It is important to note that the property was dedicated to
WAKF in the year 1959 itself through a registered
document and property stands in the name of the
petitioner and hence the question of giving an opportunity
to the respondents herein does not arise and an erroneous
observation is made by the Tribunal.
28. It is important to note that the documents
which have been produced along with list of documents
No.1 to 32, it does not disclose anything about the title of
the said Mokashi and only relies upon document No.3 and
other documents are only with regard to the electricity
- 21 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
connection which has been taken and also do not confer
any title in favour of respondents and a reference is made
with regard to the letter addressed by the Belagavi
Municipality and also regarding construction of godown
wherein permission has been granted to the applicant
since he has sought permission to fix the door in the place
of window in House No.3736 is in the year 1961 as per
document No.5 and also receipt issued by the electricity
company for the year 1961.
29. All these documents may establish only the
possession and not the title. As against the same, there
was registered document dedicating the property in favour
of WAKF in the year 1959 itself and the document which
has been referred by the Tribunal is of the year 1955
which is also not in respect of title of the respondent.
Unless prima facie material is placed before the Court with
regard to their title is concerned, other documents which
have been relied upon particularly document No.21 to 24-
electricity bills for the year 1973 to 1975 and documents
- 22 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
No.19 and 20 -other electricity bills for the year 1970 and
also document No.16-notice issued by the Municipality on
03.07.1970 regarding tax on the property to Mokashi and
issuance of letter and having paid tax to the property also
do not confer any title. When the documentary evidence is
placed before the Tribunal particularly Annexure-B i.e.
property dedicated to WAKF by way of registered
document, the Tribunal ought not to have relied upon
electricity bills and tax paid documents and seeking
permission to fix the windows and an observation that
impugned Certificate of Registration is hit by the principles
of natural justice is against the documentary evidence
placed before the Tribunal by the petitioner and the very
approach of the Tribunal regarding Section 36 as well as
enquiry as contemplated under Section 36(7) of WAKF Act
is erroneous. Unless prima facie materials are placed by
the respondents to prove that they are the owners as
claimed in the said petition, their contention cannot be
accepted and in order to prove the factum of ownership,
they ought to have been produced the documents. In the
- 23 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
very application at Annexure-A, claim was made before
the Tribunal specifically contending that they are the
absolute owners and in order to prove the factum of
ownership, nothing is placed on record except the
electricity bills and revenue documents for having made
payment of tax.
30. Hence, there is force in the contention of the
petitioner's counsel that the WAKF Tribunal has committed
an error in setting aside the Registration Certificate in
entertaining the petition filed by the respondents as per
Annexure-A as against Annexure-B. Annexure-C is very
clear that immediately after dedicating the property to the
Almighty in the year 1959 itself, in the revenue records as
per Annexure-C plain card entry was made on 26.08.1959
itself based on Annexure-B dated 26.05.1959 and the
document was registered document. As against registered
document, the Tribunal has relied upon documents of tax
paid receipt and KEB bills which are also not evidencing
the fact of title of the respondents herein. Hence, the very
- 24 -
NC: 2024:KHC-D:12527
WP No. 108570 of 2014
approach of the WAKF Tribunal is erroneous and it requires
interference as contended by the petitioner's counsel and
the order passed by the WAKF Tribunal under Annexure-J
requires to be quashed by answering the point No.1 in
affirmative.
Reg. point No.2
31. In view of the discussions made above, I pass
the following:
ORDER
The writ petition is allowed. The impugned order passed by the V Additional District and Sessions Judge and Karnataka WAKF Tribunal, Belagavi in KWT/BGM/SR/APPLN No.4/2013 dated 25-08-2014 vide Annexure-J is hereby quashed and Registration Certificate is restored.
Sd/-
(H.P. SANDESH) JUDGE sh List No.: 1 Sl No.: 85