Karnataka High Court
Syed Shah Ismail Hussaini vs Karnataka State Board Of Wakf And Ors on 17 March, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR.JUSTICE C.M.POONACHA
CIVIL REVISION PETITION No.200013 OF 2021
BETWEEN
SYED SHAH ISMAIL HUSSAINI
S/O SYED SHAH ARIFULLA
HUSSAINI,
OCC.HEREDITARY SAJJADA/
MUTAWALLI,
AGED ABOUT 35 YEARS,
DARGA HAZRAT SYED CHANDA
HUSSAINI R.A, POST.GOGI VILLAGE,
TQ.SHAHAPUR, YADGIR DIST 585223
...PETITIONER
(BY SRI AMEETH KUMAR DESHPANDE, SR. COUNSEL FOR
SRI GANESH S. KALABURG AND SRI DESHPANDE,
ADVOCATES)
AND
1. KARNATAKA STATE BOARD OF WAKF
BY ITS CHIEF EXECUTIVE OFFICER,
NO.6, DARUL-AWKAF, CUNNINGHAM ROAD,
BANGALORE-560052.
2. THE CHIEF EXECUTIVE OFFICER
KARNATAKA STATE BOARD
OF WAKFS NO.6, DARUL-AWKAF,
CUNNINGHAM ROAD,
BANGALORE-560052.
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3. THE WAKF OFFICER
DISTRICT WAKF OFFICE,
NEAR RTO, CHITTAPUR
ROAD, YADGIR-585202.
...RESPONDENTS
(BY SRI P.S.MALIPATIL, ADVOCATE FOR R1;
SRI LIYAQAT FAREED USTAD, ADVOCATE FOR R2 &R3)
THIS CRP IS FILED U/S.83(9) OF WAKF ACT 1995
AMENDMENT ACT 2013 R/W SEC. 115 OF CPC, PRAYING TO SET
ASIDE THE ORDER DATED 24.07.2020 PASSED BY THE
RESPONDENT NO.2 AT ANNEXURE-J AND TO SET ASIDE THE
ORDER DATED 30.04.2021 PASSED BY THE WAQF TRIBUNAL,
KALABURAGI IN APPLICATION NO.5/2020 BY UPHOLDING THE
RIGHT OF THE PETITIONER HEREIN AS HEREDITARY
MUTAWALLI OF DARGA HAZRAT SYED CHANDA HUSSAINI R.A.
POST: GOGI, TQ: SHAHAPUR, DIST: YADGIR AT ANNEXURE-A
IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 06.02.2023 COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
The above revision petition is filed under Section 83(9) of the Waqf Act, 1995, read with Section 115 of the Civil Procedure Code, for the following reliefs:
"a) Set aside the order dated 24.07.2020 passed by the respondent No.2, in the interest of justice and equity. The copy of which is at Annexure-J.
b) To set aside the order dated 30.04.2021 passed by the Waqf Tribunal, Kalaburagi in application No.05 of 2020 by upholding the right of the 3 petitioner herein as Hereditary Mutawalli of Darga Hazrat Syed Chanda Hussaini R.A. Post: Gogi, Tq:
Shahapur, Dist: Yadgir, to meet the ends of justice. The certified copy of which is at Annexure-A."
2. The petitioner filed an application under Section 83(2) of the Waqf Act, to set aside the order dated 24.07.2020, passed by the second respondent and to declare/adjudicate that the applicant is the Hereditary Mutawalli. It is the case of the petitioner, who is the applicant before the Waqf Tribunal that Dargah Hazarath Syed Shah Jalaluddin Hussaini @ Hazrat Syed Chanda Hussaini is notified as a Waqf institution in Gazette Notification No.KTW/ 2012/ASR/74 dated 16.04.1974 at Serial No.21 of Shahapur Taluka. That in Column No.6 of the said notification dated 16.04.1974, the name of the great grandfather of the applicant namely, Syed Ismail Hussaini is mentioned as Mutawalli and further in Column No.12, it is mentioned that the said office of Mutawalli is by Custom/Hereditary.
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3. It is the further case of the petitioner that after the demise of his great grandfather, his grandfather by name Noor-e-Alam-Hussaini, filed an application to the first respondent for his hereditary rights of Mutawalli as per the customs of the Waqf and by order dated 19.09.1996, he was appointed as a Hereditary Mutawalli of the said institution. Thereafter, after the lifetime of his grandfather, the father of the petitioner filed an application to appoint him as a Hereditary Mutawalli, but, the first respondent by order dated 29.02.2012, appointed the father of the petitioner as Mutawalli for a period of 3 years instead of Hereditary Mutawalli. Thereafter, the father of the petitioner again approached the first respondent by submitting the requisite documents i.e., Shijra, Waqf Deed, Muntakhab, etc., in support of his contention and requested for consideration of his claim as a Hereditary Mutawalli. Accordingly, the first 5 respondent by order dated 22.01.2014, appointed the father of the petitioner as Hereditary Mutawalli.
4. It is the further case of the petitioner that his father died on 28.08.2017 and after the demise of his father, the petitioner approached the first respondent to appoint him as a Hereditary Mutawalli of the said institution. The first respondent by order dated 19.12.2017, appointed the petitioner as Mutawalli for a period of 3 years instead of appointing him as a Hereditary Mutawalli. The petitioner gave a representation vide letter dated 17.10.2018, to the third respondent to consider his claim for Hereditary Mutawalliship. Accordingly, the third respondent sent a letter dated 17.10.2018, to the first respondent to consider the request of the petitioner in view of Section 42 of the Waqf Act and to appoint the petitioner as a Hereditary Mutawalli. Since the claim of the petitioner was not considered, the petitioner was 6 constrained to file W.P.No.204965/2019. This Court, vide order dated 27.01.2020, disposed off the said writ petition and directed the first respondent to consider the representation of the petitioner within 8 weeks from the date of the said order. The second respondent vide its order dated 24.07.2020, rejected the application filed by the petitioner for appointing him as a Hereditary Mutawalli. Being aggrieved, the petitioner filed Application No.5/2020 before the Waqf Tribunal.
5. The respondents have entered appearance before the Waqf Tribunal, filed their statement of objections and contested the case of the petitioner. The petitioner got himself examined as PW.1 and got marked Exs.P1 to P13. However, DW.1 has not been cross-examined and the respondents have not adduced any evidence. The Waqf Tribunal framed 3 points for consideration and by its order dated 7 30.04.2021, rejected the application filed by the petitioner. Being aggrieved, the present revision petition is filed.
6. The respondents have entered appearance in the present proceedings and the first respondent has filed its statement of objections.
7. Learned Senior Counsel Sri Ameet Kumar Deshpande appearing for the petitioner contends that:
i. The great grandfather, grandfather and the father of the petitioner having been appointed as a Hereditary Mutawalli, the petitioner also ought to have been appointed as a Hereditary Mutawalli;
ii. The finding of the Waqf Tribunal is required to be set aside in view of the various notifications issued by respondent Nos.1 and 2;8
iii. The order dated 24.07.2020 passed by the Chief Executive Officer (for short 'CEO') of the first respondent that the claim of the applicant/petitioner regarding Hereditary Mutawalliship is not supported by producing cogent documents is ex facie, liable to be set aside having regard to the orders dated 19.09.1996 and 22.01.2014, wherein, the ancestors of the petitioner were appointed as Hereditary Mutawallis after scrutinizing the relevant documents after scrutinizing the relevant documents.
8. Per contra, learned counsel Sri P.S.Malipatil appearing for respondent No.1 justifies the order passed by the first respondent as well as the Waqf Tribunal and contends:
i. The family of the petitioner having approached the Land Tribunal for grant of lands, the said act of claiming property being contrary to the Waqf Act, 9 disentitles the petitioner to claim Hreditary Mutawalliship;
ii. The Waqf is a public institution and the office of the Mutawalli is to safeguard the property of the Waqf and the same cannot be used to personal gain;
9. In support of his contentions, he relies on the following judgments:
1. The Karnataka Board of Waqf by its Secretary vs. State of Karnataka & Ors. Vs. State of Karnataka & Ors.1,
2. Aliyathammuda Beethathebiyyappura Pookoya & Anr. Vs. Pattakal Cheriyakoya & Ors.2
3. Karnataka Board of Waqfs vs. State of Karnataka3
10. The learned Senior Counsel Sri Ameet Kumar Deshpande in response to the submissions made by learned counsel Sri P.S.Malipatil, sought to 1 ILR 2000 KAR 1859/ 2000(3) KLJ 602 2 2019 (6) SCC 91 3 ILR 1996 KAR 3566 10 distinguish the judgments relied on and further relies on the judgment of the Hon'ble Supreme Court in the case of Kondiba Rama Papal alias Shirke (dead) by his heirs and LRs and Another vs. Narayan Kondiba Papal4.
11. I have considered the submissions made by both the learned counsel and perused the material on record including the records of the Waqf Tribunal. The questions that arise for consideration are:
1. Whether the order dated 30.04.2021 passed by the Waqf Tribunal is liable to be interfered with?
2. Whether the petitioner has been able to prove his claim for Hereditary Mutawalliship?
3. Whether the relief claimed by the petitioner in Application No.5/2020 before the Waqf Tribunal is liable to be granted?4
AIR 1991 SC 1180 11
12. The Notification dated 16.04.1974, issued by the Karnataka State Board of Waqfs (Ex.P1; Annexure-A to the Petition) discloses that at Serial No.21, the name of the Waqf is Chanda Hussain Darga (Sunni) Gogikohana and at Column No.12, as to how the Waqf is administered, it is mentioned as Custom/Hereditary.
13. The order bearing No.KTW/MSC/87/GBA/ 94-95, Bengaluru dated 19.09.1996, (Ex.P2; Annexure-B to the petition) which are the proceedings of the Karnataka Board of Waqf, Bengaluru, reads as follows:
"For the reasons stated in the preamble and in exercise of the powers conferred under Section 42 of the Wakf Act, 1954, the Karnataka State Board of Wakfs, hereby appoint Sri Noor-e- Alam Hussaini S/o Syed Shah Ismail Hussaini, as one of the three Muthawalli against vacancy created due to expiry of Janab Syed Ismail Hussaini to manage the day- to-day affairs of Dargah Hazrath Syed Shah Jalaluddin @ Chanda Hussaini, Gogi Village, Shahpur Taluk, Gulbarga Dist., during the pleasure of the Board as Hereditary Muthawalli."12
14. The order bearing No.KBW/APT/88/YDG/ 10-11 dated 29.02.2012, (Ex.P3; Annexure-D in the petition) discloses that the Karnataka State Board of Waqfs appointed Sri Syed Shah Arifullah Hussaini S/o. Noor-e-Alam Hussaini as Mutawalli for a period of 3 years. The proceedings of the Karnataka State Board of Waqfs, (Ex.P4; Annexure-E to the petition) discloses that pursuant to the order dated 29.02.2012, wherein, Sri Syed Shah Arifullah Hussaini was appointed as a Mutawalli for a period of 3 years, a representation dated 03.02.2020 was made by the applicant to appoint him as a Hereditary Mutawalli and that the matter was placed before the Waqf Board in its meeting, the Chairman and the Chief Executive Officer were unanimously authorized to take appropriate decision after verifying the documents produced. Accordingly, in the order bearing 13 No.KBW/APT/38/YDG/2010-11, dated 22.01.2014, in the preamble portion, the following is recorded:
"Accordingly, the Waqf Officer, District Waqf Office, Yadgir vide his letter dated 06.07.2013 has forwarded Shijra, Waqf Deed, muntakhab and the other relevant documents for the claim of his Hereditary Muthawalliship of the said institution and also requested to appoint Sri Syed Shah Arifulla Hussaini S/o Syed Noor-e-Alam Hussaini as Hereditary Muthawalli of the said institution.
The matter was placed before the Board in its meeting held on 12.12.2013 vide Sub.No.6(3). The Board has unanimously resolved to appoint Sri. Syed Shah Arifullah Hussaini S/o Syed Noor-e-Alam Hussaini Buzurg as Hereditary Mutawalli of Dargah Hazarath Syed Shah Jalaluddin, Chanda Hussaini, Gogi Viliage, Shahapur taluk, Yadgir District as said Muthwalli has justified his claim placing Shijra, Wakf Deed, Muntakab and other relevant documents. "
(emphasis supplied)
15. The operative of the said order dated 22.01.2014, reads as follows:
"In view of the facts mentioned in the preamble and as per the provisions of the Waqf Act, 1995, the Karnataka State Board of Auqaf hereby appoints Sri Syed Shah Arifullah Hussaini S/o. Syed Noor-e-Alam Hussaini Buzurg as Hereditary Muthawalli/Sajjada Nasheen to Dargah Hazarath Syed Shah Jalaluddin, chanda Hussaini, Gogi Village, Shahapur Taluk, Yadgir District."14
16. A copy of the order bearing No.KTW/APT/38/YDG/2010-11, dated 19.12.2017, (Ex.P5; Annexure-F to the petition) discloses that the petitioner has made an application for appointing him as a Hereditary Mutawalli after the demise of his father on 28.08.2017. Pursuant to the application, public notice dated 21.10.2017, was issued calling for objections/suggestions. Further, it is forthcoming from the preamble portion of the said order dated 19.12.2017, that the Waqf Officer of the District Waqf Office at Yadgir, vide letter dated 04.11.2017, while forwarding the Mahazar dated 25.10.2017, informed that no objections/suggestions were received to the said public notice and requested the office to appoint the applicant as the Hereditary Mutawalli. Pursuant to the same, the matter was placed before the Administrator, who accorded his approval on 14.12.2017, to the proposal of the District Waqf 15 Officer, Yadgir district. However, in the operative portion of the order dated 19.12.2017, it is mentioned that the petitioner has been appointed as a Mutawalli for a period 3 years.
17. While considering the representation of the petitioner to appoint him as a Mutawalli and pursuant to the directions issued by this Court in W.P.No.204965/2019, an enquiry was conducted by the CEO of the first respondent.
18. The Enquiry Officer found that the family members of the applicant/petitioner had filed applications for grant of occupancy rights in their favour and succeeded for grant of occupancy rights. It is further observed that the act of the family members of the applicant is contrary to the Waqf Act as they are Gazette Notified Mutawallis and they are only a manager/care taker of the institution, being a 16 Mutawalli and they are not supposed to make a claim before the Land Tribunal. The Enquiry Officer placed reliance on a judgment of a Co-ordinate Bench of this Court in the case of the Karnataka Board of Waqfs3 It is further observed that while the applicant was appointed as a Mutawalli, the file was referred to the Chief Law Officer, Karnataka State Board of Auqaf, Bengaluru for opinion and it is opined that approximately 492 acres of the property is attached to the said Dargah and so far the status of the property is not known and hence a conditional order to be issued.
19. It is in the said circumstances, an approval for appointment of applicant as a Mutawalli for a period 3 years was passed. Further, the Waqf Board imposed a condition that if any alienation by way of sale, gift or any mode, it is the duty of the Mutawalli to see that the property is brought to the name of the 17 institution within a period of one year. The Enquiry Officer further recorded a finding that the applicant has failed to protect the Waqf property during his tenure as a Mutawalli. After recording the aforementioned, at paragraph Nos.16 and 17 of the order dated 24.07.2020, it is noticed as follows:
"16. That, Mohammedan Law does not recognize any right of inheritance to the office of Muthawalli (Mulla on principles of Mohammedan Law, Ninth Edition {1990}), but office may became hereditary by custom. Such a custom however opposed to general law, if at all the claim of the applicant is that he is Hereditary Muthawalli he supported his case on producing a cogent document and supported by strict proof. In present claim of the applicant he has to produce the Waqfnama (Deed) which he was not produced during the enquiry.
17. That, in this junction if at all I will accept the claim of the applicant it may be detrimental to the interest of the Waqf and it may create a hurdle to recover the Waqf Property."
(emphasis supplied)
20. It is clear from the aforementioned that CEO of the first respondent, vide his order dated 24.07.2020, has recorded a categorical finding that 18 the office of Mutawalli may be hereditary by custom and the same is required to be supported by producing cogent documents and that in the present case, the petitioner/applicant has to produce the Waqfnama (Deed), which has not been produced. The said finding is contrary to the material on record, inasmuch as, in the preamble portion of the order dated 22.01.2014 of the first respondent, it is clearly recorded that Shijra, Waqf Deed, Muntakhab and other relevant documents for the claim of Hereditary Mutawalliship of the father of the petitioner was noticed and hence, the father of the petitioner was appointed as a Hereditary Mutawalli. Hence, the said order dated 22.01.2014, is clearly erroneous and contrary to the material on record.
21. In the order dated 24.07.2020, the Chief Executive Officer - second respondent, framed the following issues:
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"a. Whether the applicant proves that he is entitled for appointment as a Hereditary Mutuwalli to Dargah Hazrath Syed Chanda Hussaini Gog Village, Taluk Shahpur District Yadgir ?
b. Whether appointment order No.KBW/APT/38/YDG/2010-11 dated 19.12.2017 shall be interfered?
22. Having framed the aforementioned issues, the second respondent recorded its findings and issues 'a' and 'b' were answered in the negative. The second respondent has recorded a finding that the applicant has not stated as to when the Waqf came into existence and as to how many generations have passed up to the great grand father of the applicant. It has further recorded that the applicant has not produced the wakfnama to show that the wakf intended for the office to devolve through a practice of hereditary succession. The said finding being contrary to the material available on record is liable to be interfered with.
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23. The judgments referred to by both the learned Counsel are considered as under:
23.1 In the case of The Karnataka Board of Waqf by its Secretary1 this Court was considering the correctness of the order passed by the Land Tribunal and the Appellate Authority, which had granted occupancy rights to the Applicant. In the said case, it was held that the property being a Waqf property cannot be granted in favour of Kazi since Kazi is only a Superintendent or Manager and has no power to claim the property independently as that of the Wakf. The said judgment will not aid the case of the Respondents as in the present proceedings the question, whether any property is liable to be granted to the Petitioner, is not under consideration.
23.2 In the case of Aliyathammuda Beethathebiyyappura Pookoya2 the Hon'ble Supreme Court considering the scope of revisional 21 jurisdictional of the High Court against an order of the Wakf Tribunal as contemplated under Section 83(9) of the Wakf Act, 1995, has held as follows:
"12. It is well settled that ordinarily, while revisional jurisdiction does not entitle the High Court to interfere with all findings of fact recorded by lower Courts, the High Court may correct a finding of fact if it has been arrived at without consideration of material evidence, is based on misreading of evidence, is grossly erroneous such that it would result in miscarriage of justice, or is otherwise not according to law (see the decision of the Constitution Bench of this Court in Hindustan Petroleum Corporation Ltd v. Dilbahar Singh, (2014) 9 SCC 78). Importantly, the scope of such revisional jurisdiction is wider when the High Court is vested with the power to examine the legality or propriety of the lower Court's order under the statute from which the revisional power arises. In such a situation, the High Court may also examine the correctness of findings of fact, and reappraise the evidence (see Ram Dass v. Ishwar Chander, (1988) 3 SCC 131). It is in this perspective that the argument of the appellants must be considered."
(emphasis supplied) Further, in the said case, the Hon'ble Supreme Court also has held as follows:
"22. It can be concluded from the above discussion that a person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif intended for the office to devolve through a practice of hereditary succession. In the absence of any express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of the 22 trust, and not merely for a few generations, such that the waqif's intention that the office should be hereditary can be presumed. The burden of proof would be higher with respect to a public waqf, such as the suit waqf in the instant case, than a family trust."
23.3 In the case of Karnataka Board of Waqfs3 a Co-ordinate Bench of this Court has held as follows:
"13. With regard to the legal position of the Gazette publication of the Wakf property, it has to be clarified here 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 said Act. 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. It is nobody's case before the Respondent No. 2 - Land Tribunal that any decree or decrees in a suit/s was/were obtained by anybody."
The said case3 will not aid the case of the Respondents, inasmuch as, in the present proceedings the only claim of the Petitioner as a Heriditory 23 Muthavalli is being considered and not any claim to the property.
23.4 In the case of Kondiba Rama Papal v. 5 Narayan Kondiba Papal the Hon'ble Supreme Court has held "once the custom is judicially recognized, it is not required to be independently proved in subsequent cases".
24. As noticed at para 20 above, it is forthcoming from the order dated 22.01.2014 that the same was passed after the necessary documents like Shirja, Waqf Deed, Muntakhab and other relevant documents which were placed on record and the father of the Petitioner had justified his claim. It is further forthcoming, as noticed in para 12 above, that the Notification dated 16.04.1974 discloses the Waqf as custom/hereditary. Hence, for the purpose of 5 AIR 1991 SC 1180 24 considering as to whether the Petitioner is required to be appointed as a Hereditary Mutavalli, there is sufficient material to accept the claim of the Petitioner.
25. With regard to the contention that the family members of the petitioner have filed applications for grant of occupancy rights and the said act, wherein, they seek that the property of the Waqf is as their own property, when they are only the manager/care taker of the institution and that the said property has been attached to the Dargah and the status of the property is not known, for the purpose of considering as to whether the petitioner is required to be appointed as a Hereditary Mutawalli, the said aspects are not relevant. Further, if the petitioner or a member of his family is claiming for grant of occupancy rights in their personal capacity, it is open to the respondents to oppose such claim in the said 25 proceedings and also to challenge such orders as was the fact situation in the case of the Karnataka Board of Waqf1.
26. In the event the petitioner is not safeguarding the properties of the Waqf, it is open to the respondents to take action in that regard by resorting to the provisions of the Waqf Act or any other law that may be applicable. It is also relevant to note that the first respondent, can impose suitable conditions for safeguarding the property of the Waqf. The aspect of imposition of conditions is also forthcoming from the order dated 19.09.1996, passed in the proceedings of the first respondent, wherein, the great grandfather of the petitioner had been appointed as a Mutawalli subject to certain terms and conditions.
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27. In that view of the matter, it is necessary that finding of the first respondent and the Wakf Tribunal that the petitioner has failed to prove his claim by producing sufficient materials, is liable to be interfered with. However, the matter is required to be remanded to the first respondent for considering imposition of suitable conditions while passing the order for appointment of the petitioner as a Hereditary Mutawalli. Hence, the questions framed for consideration are answered in the affirmative.
28. In view of the aforementioned, I pass the following:
ORDER i. The revision petition is partly allowed;
ii. The order dated 30.04.2021, passed in Application No.5/2020 by the Karnataka Waqf Tribunal, Kalaburagi, is set aside;27
iii. The order dated 24.07.2020, passed by the Enquiry Officer Chief Executive Officer, Karnataka State Board of Auqf, Bangalore, (Annexure-J to the writ petition; Ex.P13 before the Tribunal) is set aside;
iv. The Application No.5/2020 filed by the petitioner before the Karnataka Wakf Tribunal, Kalaburagi, is partly allowed to the extent ordered herein.
v. It is hereby declared that the petitioner/applicant is the Hereditary Mutawalli of the Dargah Hazarath Syed Shah Jalaluddin Hussaini @ Hazrat Syed Chanda Hussaini R.A., Post: Gogi, Tq:
Shahapur, Dist: Yadgir, subject to conditions that may be imposed by the first respondent;
vi. The matter is remanded to the first respondent for imposition of suitable conditions as it deems fit;28
vii. The conditions be imposed within three months from the date of receipt of certified copy of this order;
No costs.
SD/-
JUDGE Srt