Karnataka High Court
Khaja Farid Ul Hasan And Anr vs Khaja Ziya Ul Hassan & Ors on 15 June, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
CIVIL REVISION PETITION No.200019 OF 2017
BETWEEN:
1. Khaja Farid Ul Hasan
S/o Khaja Sharif Ul Hasan
Aged about 47 years
Occ: Mutuwalli of Darga
Raja Bagh Savar
Basavakalyan, Dist: Bidar.
2. Khaja Asad Ul Hasan
S/o Khaja Sagir ul Hasan
Aged about 39 years
Occ: Mutawalli of Darga
Raja Bagh Savar
Basavakalyan, Dist: Bidar.
...PETITIONERS
(By Sri Ameet Kumar Deshpande, Advocate)
AND:
1. Khaja Zia Ul Hassan
S/o Khaja Abul Hassan
Aged about 52 years
Occ: Muatawalli of
Darga Hazrat Syed Tajuddin
Sher Savar
2
Basavakalyan
Dist: Bidar-585327.
2. Karnataka State Board of Auqaf
Rep. by its Chief Executive Officer
Dar-Ul-Auqaf
No.6, Cunningham Road
Bengaluru-560 052.
3. The District Wakf Advisory Committee
Represented by its Wakf Officer
Near D.C. Office
Bidar-585327.
...RESPONDENTS
(By Sri Sachin M. Mahajan, Advocate for R1;
Sri Liyaqat Fareed Ustad, Advocate for R2 and R3)
This CRP Petition is filed under Section 83(9) of the
Wakf Act, praying to call for records and set aside the
order dated 31.03.2017 passed in Application No.7/2016
on the file of the Presiding Officer, Karnataka Wakf
Tribunal, Kalaburagi division, Kalaburagi confirming the
order passed by the respondent No.2 herein in favour of
the respondent No.1 dated 01.04.2016 in File No.KBW/
APM/39/BDR/2009-10 and consequently to direct the
respondent No.2 herein to restore the order dated
18.06.2015 passed in file No.KBW/APT/39/BDR/2009-10
and to pass any other appropriate orders as may be
necessary in the facts and circumstances of the case.
This petition coming on for admission this day, Court
made the following:
ORDER
This revision petition assails judgment dated 31.03.2017 passed by the Presiding Officer, Karnataka 3 Wakf Tribunal in Application No.7/2016. By that judgment the application filed under Section 83 of the Wakf Act, 1995 (hereinafter referred to as the 'Act', for the sake of brevity) has been dismissed.
2. Briefly stated, the facts are, on 16.04.2015 the first respondent i.e. Khaja Zia Ul Hassan was appointed as the Mutawalli of Dargah Hazrat Syed Tajuddin Sher Savar, Basavakalyan taluk, Bidar district. Thereafter, the then Chief Executive Officer of the second respondent - Wakf Board passed an order dated 18.06.2015 appointing in all, three persons, including the petitioners herein and the first respondent as Mutawalli on rotational basis for the aforesaid Dargah. That order was challenged by the first respondent in Application No.3/2015 before the Tribunal. In the interregnum, by order dated 01.04.2016 the Wakf Board recalled order dated 18.06.2015 passed by the then Chief Executive Officer and restored its earlier order dated 16.04.2015. Being aggrieved by order dated 01.04.2016 issued by the Wakf Board, the petitioners herein filed 4 Application No.7/2016 before the Tribunal. At this stage, it may be mentioned that first respondent's Application No.3/2015 was withdrawn by him in view of order dated 01.04.2016 passed by the Wakf Board. It may also be mentioned that in Application No.7/2016, out of which this revision petition arises, an application (I.A.No.1) was filed seeking stay of the order dated 01.04.2016. The Tribunal by order dated 21.07.2016 dismissed the interim application. That order was challenged before this Court in CRP No.200026/2016. By order dated 06.10.2016, the said revision petition was dismissed with a direction to the Tribunal to dispose of Application No.7/2016 in an expeditious manner preferably by 31.12.2016. Subsequently, the Tribunal has dismissed the said application on merits on 31.03.2017. Being aggrieved by the dismissal of the application, the petitioners herein have preferred this revision petition.
3. I have heard learned counsel for the petitioners, learned counsel for respondent No.1 and 5 learned counsel for respondent Nos.2 and 3 and perused the material on record.
4. Petitioners' counsel drew my attention to orders passed in the matter leading up to the filing of Application No.7/2016. He contended that the petitioners herein along with respondent No.1 have the right to discharge the duties of Mutawalli on rotational basis and the said right of petitioners having been ignored by the Wakf Board while appointing respondent No.1 by order dated 16.04.2015, constrained the petitioners herein to file representation on 27.04.2015. The said representation was considered by the Board and order dated 18.06.2015 was issued appointing petitioners and respondent No.1 herein as the Mutawallis, but all of a sudden, order dated 18.06.2015 was withdrawn by the Wakf Board on 01.04.2016. Hence, the petitioners were constrained to approach the Tribunal for redressal of their grievance by challenging the order of the Board dated 01.04.2016. Learned counsel for the petitioners contended that the 6 petitioners herein have the right to be appointed as co- mutavalli along with respondent No.1 as per judgment and decree passed in Civil Suit No.50/1/1956 by the Munsiff Court, Humnabad, dated 28.02.1958. Learned counsel submitted that the Tribunal was not right in dismissing the application, as a result, a valuable right of the petitioners has been lost. He further submitted that the petitioners had filed an application to lead evidence in the matter. The said application was rejected and as a result, there is violation of principles of natural justice. That the rejection of the said application is in violation of Rule 75 of the Karnataka Wakf Rules, 1997.
5. Learned counsel further submitted that order dated 18.06.2015 though states that it has been issued by the then Chief Executive Officer, is nevertheless an order of the Wakf Board and hence the Wakf Board could not have approbated and reprobated in the matter by withdrawing the said order by the impugned order dated 01.04.2016. Therefore, learned counsel for the petitioners 7 contended that this Court may set aside the impugned judgment dated 31.03.2017 by allowing the revision petition and restoring order dated 18.06.2015.
6. Per contra, learned counsel for respondent No.1 with reference to his statement of objections drew my attention to Annexure-A to the said statement, to contend that the office of the Mutawalli of the Dargah in question is a hereditary office. The petitioners herein have no right to that office. That the father of respondent No.1 had earlier held the said office. On his demise, respondent No.1 was appointed by order dated 16.10.2010. Thereafter, on 16.04.2015, the said order was confirmed under Section 42 of the Act with effect from 26.03.2015 until further orders. That order dated 16.04.2015 was issued by the Wakf Board but subsequently the then Chief Executive Officer, illegally usurped the jurisdiction of the Board to appoint the Mutawalli by passing order dated 18.06.2015. That order was issued without the knowledge of the Board. Thereafter, the Wakf Board on coming to 8 know the true state of affairs, passed order dated 01.04.2016 by recalling the said order of the then Chief Executive Officer and that the Tribunal on being appraised of the aforesaid facts has rightly dismissed petitioners' application. He further submitted that the controversy before the Tribunal was not with regard to the rights of the parties to be appointed to the office of the Mutawalli, but it was only with regard to the restoration of status-quo ante by the Board by setting aside the order of the then Chief Executive Officer as the said Officer had no jurisdiction to pass order dated 18.06.2015 once the Board had appointed respondent No.1 as Mutawalli on 16.04.2015. He submitted that the Tribunal has rightly dismissed the application and that there is no merit in this revision petition.
7. In support of his contentions, learned counsel for respondent No.1 placed reliance on a decision of this Court in the case of Saheblal vs. The Karnataka State Board of Wakfs and another reported in 2005 (4) KCCR 2340, to contend that a Mutawalli can be appointed by the 9 Wakf Board only and that the Chief Executive Officer has no power to appoint a Mutawalli. Learned counsel for respondent No.1 also drew my attention to Sections 32
(g), 63 and 25 of the Act in support of his submissions. 8. Learned counsel for respondent Nos.2 and 3 also supported the judgment of the Tribunal and contended that order dated 18.06.2015 was passed by the then Chief Executive Officer without the knowledge of the Board and therefore the Board restored the status-quo ante by recalling the said order by subsequent order dated 01.04.2016. It is also submitted by the learned counsel for the respondents that the Tribunal also rightly rejected the application filed by the petitioners as the controversy before the Tribunal was in a very narrow compass and that the revision petition may be dismissed.
9. Having heard learned counsel for the parties and on perusal of the material on record, I find that the controversy in the instant case is in a very narrow domain. The controversy before the Tribunal was not as to whether 10 the petitioners herein were entitled to be appointed as Mutawallis along with or jointly with respondent No.1. The controversy was, as to whether, the Wakf Board could have issued order dated 01.04.2016 thereby recalling order dated 18.06.2015 under which the petitioners along with respondent No.1 were jointly appointed as Mutawallis of the Dargah in question. The detailed narration of facts above would not require a reiteration except to highlight the fact that on 06.10.2010 the Wakf Board had appointed respondent No.1 as the Mutawalli and subsequently on 16.04.2015 the Wakf Board exercised power under Section 42 of the Act to appoint respondent No.1 as the Mutawalli with effect from 26.03.2015 until further orders. Those orders have not been assailed by anybody. When respondent No.1 was functioning as the Mutawalli, the then Chief Executive Officer passed order dated 18.06.2015, appointing petitioners herein along with respondent No.1 as the Mutawallis on rotational basis. A reading of the order dated 18.06.2015 would reveal that the then Chief Executive Officer passed the said order on 11 the basis of a requisition letter dated 27.04.2015 submitted by the petitioners herein. The preamble to the said order indicates that the matter was examined and as per the decree of the Munsiff Court, Humnabad, in Civil Suit No.50/1/1956, dated 28.02.1958, the petitioners along with respondent No.1 were appointed as the Mutawallis on rotational basis by withdrawing order dated 16.04.2015. A reading of the said order would make it apparent that it has been issued by the then Chief Executive Officer and the said order is not in the name of the Wakf Board. When the said order is compared with the order dated 16.04.2015 by which respondent No.1 was appointed as a Mutawalli, it is noticed that the latter order is no doubt issued in the name of the Chief Executive Officer which is by way of authentication but it is by order of the Board. In the circumstances, it becomes clear that the order of the then Chief Executive Officer dated 18.06.2015 has been issued by him suo-moto. This fact is further endorsed by the subsequent order dated 01.04.2016 which is issued by the Board wherein it has 12 been stated that order dated 16.04.2015 by the then Chief Executive Officer was issued without placing the matter before the Board. Therefore, on 01.04.2016 the Wakf Board restored its earlier order dated 16.04.2015 by withdrawing order dated 18.06.2015 issued by the then Chief Executive Officer. The Tribunal on considering the aforesaid gamut of facts has concluded that the Board only restored its earlier order as the then Chief Executive Officer could not have meddled with its order, by passing order dated 18.06.2015 suo-moto and thereby usurping the jurisdiction of the Board.
10. In this regard reference could be made to Section 32 (g) of the Act which states that the Board has the power to appoint and remove Mutawalli in accordance with the provisions of the Act. Section 25 of the Act deals with the duties and power of the Chief Executive Officer. When the two provisions are compared, it becomes crystal clear that it is only the Board, which could appoint or remove Mutawallis in accordance with the provisions of the 13 Act. This position has been reiterated by this Court in the afore mentioned decision. Hence, in the instant case the then Chief Executive Officer had no authority or jurisdiction to pass order dated 18.06.2015. That order has been rightly recalled by the Board by order dated 01.04.2016 which has been sustained by the Tribunal. I do not find any merit in the Civil Revision Petition on the aforesaid aspect.
11. However, petitioners' counsel contended that the petitioners filed an application seeking to produce on record certain documents and also sought permission to let in oral evidence. The said application, in my view, has been rightly rejected for the simple reason that the controversy before the Tribunal was not as to the entitlement of any party to be appointed as the Mutawalli of the Dargah. As already noted, the controversy was in a very narrow compass, as to, whether, the then Chief Executive Officer could bypass the order of the Board and appoint Mutawallis to the Dargah and, as to, whether, the 14 Board could then restore the status-quo ante by recalling the order of the Chief Executive Officer. When the Chief Executive Officer had no jurisdiction to pass order dated 18.06.2015, it was also not necessary for the Board to issue any notice to the petitioners to hear them before passing the order dated 01.04.2016.
12. In the circumstances, there is no merit in the revision petition. The revision petition is dismissed. No costs.
In view of dismissal of the revision petition, I.A.No.1/2017 also stands dismissed.
Sd/-
JUDGE swk