Karnataka High Court
Majlis-E-Millia, Dargah-E-Hazrath ... vs State Of Karnataka And Others on 16 March, 2000
Equivalent citations: 2001(1)KARLJ126
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER
1. Petitioners 1 to 4 claiming to be the founder Trustees of a registered Trust known as Majlis-e-Millia have filed this writ petition seeking to quash the order at Annexure-F, dated 10-5-1995 passed by the 2nd respondent rejecting the objections filed by them for registering the institution Masjid-e-Shams, Dargah Hazrath Shamshuddin Auliya, quarters of Imams and Mouzans and Shamshuddin Memorial Hall Shadi Mahal as wakf properties under Sections 25 and 26 of the Wakf Act (hereinafter referred to as 'the Act').
2. The petitioners state that the construction of (1) Shadi Mahal known as "Shams Memorial Hall", (2) Masjid-e-Shams, (3) Residential Quarters for the Masjid and Dargah staff, (4) Office Room, (5) Meeting Hall, (6) Musaffir Khana (Shelter for travellers/visitors/devotees), (7) Watchman's room etc., are the Trust properties and not wakf properties and that they have got right to manage and control the same. It is further stated that the impugned order is not preceded by an enquiry as contemplated under Section 25(7) of the Wakf Act, 1954 read with Rule 13 of the Rules and the order was not passed after giving fair and reasonable opportunity to the petitioners. It is contended by the learned Counsel for the petitioners that the impugned order is not a speaking order and therefore the same is liable to be quashed. The further ground of attack is that the order passed under Sections 25 and 26 are not tenable in law, for the reason that the time-limit prescribed under Section 25(8) was expired when an application dated 5-9-1994 was submitted by the fourth respondent.
3. Statement of objections is filed on behalf of the 4th respondent-Jamath-a-Ahle-Islam denying the petition averments and seeking rejection of the writ petition. Petitioners have filed rejoinder to the counter filed on behalf of the 4th respondent. It is not necessary to advert to the various averments in the writ petition, the stand taken in the counter and the contentions put forth by the petitioners in view of the fact that the writ petition is liable to be dismissed on several counts, which are mentioned in the ultimate paragraphs.
4. In the first place, the petitioners have no locus standi to maintain this writ petition. Petitioners have not produced any document to show their right over the properties in question. In paragraph 2 of the writ petition the petitioners have asserted as under.--
"A muslim saint by name Hazarath Shamsuddin Aulia lived in Bangarpet Taluk of Kolar District in the early part of the century. Upon his death he was buried in Bangarpet Dargah area and a tomb in his memory came to be constructed. A Dargah Committee was constituted to look after and maintain the entire Dargah area, the tomb of Hazarath Shamsuddin Aulia and other structures. The Committee, known as Majlis-e-Millia was in full control of the affairs of the Dargah and its properties and always maintained a private and distinct identity. At no point of time the ownership and possession of the Dargah Committee over the Dargah area has been disputed by anybody including the respondents".
From the above averments it is clear that no authority has constituted the aforesaid Committee named Majlis-e-Millia. In other words, it is a self-styled Committee.
5. The further averments of the petition are that in order to improve the property, the Committee formed a Trust under the name "Majlis-e-Millia Dargah Hazarath Shamsuddin Trust, Bangarpet, represented by its alleged Trustees, who are none other than the present petitioners-trustees in this writ petition. It is thus clear that the aforesaid Trust was constituted by a self-styled Committee and it was not the creature by any authorities.
6. At paragraph 3 of the writ petition it is stated that "at no point of time were the Dargah and its properties dedicated to the wakf or treated as wakf by the Wakf Board". But, in the statement of objections filed on behalf of the 4th respondent it is stated that the aforesaid properties were wakf properties. It is further stated that in the year 1963 the Muthavalli and President of 4th respondent handed over all the proper-ties of the Masjid to the Wakf Board and the same was published in the Gazette produced as Annexure-R1. According to the petitioners the properties which are mentioned at R1 are different from the property upon which the Dargah and other structures are put up. This aspect would be dealt with in this order at the appropriate stage.
7. Another important document is Annexure-R2. It is a resolution dated 22-1-1985 passed in relation to the development and construction work of Idgah Maidan and Old Khabrastan. The resolution reads.--
"It is unanimously resolved that in future whatever developmental and construction work that Majlis-e-Millia (Dargah Committee) undertakes in the premises of Old Khabrastan and Idgah Maidan should be with the permission and in consultation of Jamath-e-Ahle-Islam (Masjid-e-Alam Committee) and every work should be done with full co-operation".
It is interesting to note that the four petitioners of the Trust are signatories to this resolution. If the Trust had a distinct, separate and private identity as asserted by the petitioners, there was no necessity for them to be parties to the aforesaid resolution and to agree to take up the future developmental and construction works with the permission and consultation of 4th respondent. This aspect clearly demonstrates that the petitioners have no independent right over the properties of Dargah, which is admittedly a wakf property.
8. The petition is also liable to be dismissed for suppression of facts and also for having made contradictory statements. In paragraph 3 the petitioners claim as under.--
"It is submitted that after formation of the Trust, a lot of developmental activities have taken place in the Dargah property. With the help of donors and philanthrophic persons belonging to Muslim and Hindu communities, the Trust has constructed (1) a Shadi Mahal known as "Shams Memorial Hall", (2) Masjid-a-Shams, (3) Residential quarters for the Masjid and Dargah staff, (4) Office Room, (5) Meeting Hall, (6) Mussaffir Khana (Shelter for travellers/visitors/devotees), (7) Watchman's room and vacant space etc.".
In the rejoinder, the petitioners claim to have made the constructions by themselves and not with the help of donors and philanthrophic persons as stated in the writ petition. Thus, there is variation in the statements made in the writ petition and the rejoinder. These conflicting versions clearly demonstrates that the petitioners have not approached this Court with clean hands. On this score also the writ petition is liable to be dismissed.
9. One of the grounds urged in the writ petition to quash the impugned order is that, as per the notice at Annexure-D the first petitioner-Haji Shaik Ismail had attended before the second respondent in the proceedings on 27-4-1995 and an adjournment was sought. No date was fixed but he was informed that notice would be issued. According to the petition averments, on 10-5-1995 he received the notice at 12-00 noon asking him to attend before the second respondent at 3.00 p.m. It is further stated that he could not be present before the Board for the reasons stated therein but the impugned order had been passed on that day itself hastily. These statements made in the writ petition are far from truth. Mr. D.L.N. Rao, learned Counsel for the 2nd respondent has produced Annexure-R14, the order sheet of the proceedings pertaining to the impugned order. A perusal of the same reveals that on 16-1-1995 one Mr. B.V. Purushotham, Advocate, Kolar, had represented the petitioners. Since Advocate was engaged in the proceedings by the petitioners, he was looking after the same. The further statement that on 27-4-1995 no date was given, is also an utter falsehood. The order sheet of the said proceedings reveals that on 27-4-1995 the case was adjourned to 10-5-1995 at 3-00 p.m. In view of this, it was not open for the petitioners to state that no date was given on 27-4-1995 or to contend that the first petitioner could not attend on the date of passing the impugned order since the notice was served on the very same date at 12-00 noon. Shaik Ismail was very much present on 27-4-1995 and he had the knowledge of date of hearing on 10-5-1995. Thus, the writ petition is also liable to be dismissed for having made false statements or suppression of true facts. The learned Counsel for the second respondent-Wakf Board has rightly placed reliance upon the judgment of this Court in C.S. Mohan v Assistant Commissioner, Chikkaballapur and Others1, and M.C. Mehta v Un-ion of India and Others2 and submitted that this Court should not entertain this writ petition.
10. It is also pertinent to see that when the katha of the wakf proper-ties were got changed in the name of the Trust, on the action taken by the 4th respondent the katha was restored. However, the katha of Shadi Mahal was got changed in the name of the Town Municipality represented by the son of the first petitioner as President. The said entry was challenged by the 4th respondent and got it stayed. If really the petitioners were managing the properties in question, they would not have allowed to change the katha in the name of the Municipality. Even after change of katha the petitioners did not take any action to get it rectified. From this it is clear that the petitioners were not managing the properties in question.
11. One of the contentions taken in paragraph 6 of the rejoinder filed by the petitioners is that the documents produced by the 4th respondent were all fabricated, one-sided and do not depict the correct picture. It is also stated that the properties mentioned at Sl. Nos. 109 to 113 and 118 in Annexure-R1 belongs to the 4th respondent and they are nothing to do with the properties in question, viz., Sy. Nos. 142, 143 and 144. These contentions are liable to be rejected in the light of the contents of the letter dated 20-5-1994 addressed by the Wakf Board to the Chief Officer, Town Municipality, Bangalore. In that letter inter alia it is stated as under.-
"This has reference to the above, regarding transfer of katha, I write to inform you that the land in Sy. Nos. 142, 143 and 144 in which the Idgah, Khabrastan and vacant space situated, is a registered wakf property.
These wakf properties are notified in the Gazette vide Notification No. MWB (19)11, 1964, dated 21st July, 1965 at Sl. Nos. 109, 111, 113 and 118 respectively.
These wakf properties are under the management of a managing committee of Masjid-e-Azam which was constituted by the Board vide its Order No. KTW/CMC/15/KLR/89-90, dated 26-2-1992".
A reading of the above clearly destroys the stand taken by the petitioners in the rejoinder. It is clear from this that the properties mentioned in Annexure-R1 are the properties in question; that they belong to wakf and not to the 4th respondent as contended in the rejoinder and that they are under the management of the 4th respondent.
12. Assuming that the contention taken by the petitioners in the rejoinder is true, since it is a disputed question of fact, the same cannot be gone into in writ jurisdiction by this Court. The proper forum for the petitioners is to establish its right in the jurisdictional Civil Court. On this ground also the writ petition is liable to be dismissed in limine.
13. Another important aspect is, petitioners are claiming right over the properties in question on the ground that they are in full control of the affairs of the Dargah and its properties. The petitioners have not produced the Deed under which the Trust was constituted. On the other hand, the same has been produced as Annexure-R3 along with the counter filed on behalf of the 4th respondent. A perusal of the same reveals that it is a self-established Trust. The aims and objects of it are promoting and administrating educational institutions of all nature and classes solely maintained and administered by the Muslims etc. Clause 16 of the deed relates to properties of the Trust and it reads thus.--
"The properties both movable and immovable as they exist and which may be acquired by or on behalf of the Trust in any of the modes known to law shall belong to the Trust and shall absolutely rest with the trustees, the properties may be either absolute or interest as the case may be and which shall be both movable and immovable".
It is clear from the above recitals of the Trust deed that the properties in question are not mentioned as the properties of the Trust. Probably that is the reason why the petitioners did not produce the copy of Trust deed. If the petitioners had any right, control or management over the affairs of these properties, the same would have been reflected in the deed and the petitioners would not have hesitated to produce the same along with the writ petition. Since the properties in question are not mentioned in the Trust deed, the petitioners have deliberately avoided production of the deed. For these reasons also the petition is liable to be dismissed.
14. The petitioners have stated that the Trust is having private and distinct identity. At the same time they assert that improvements were made over the properties by raising funds from donors and philanthrophic persons. Once the petitioners state that funds are raised from the public and improvements had been made, private identity no longer exists and it becomes a public Trust. The contradictory assertions of the petitioners is nothing but blowing hot and cold simultaneously. The way in which the petitioners claim right or control over the properties in question speaks volumes about their conduct. They being parties to the resolution at Annexure-R2 under which it was resolved that the future developmental and construction works of the Idgah and the Khabrastan should be made with the permission and in consultation of 4th respondent, petitioners cannot assert or claim independent right, control or management over the properties in question. This writ petition is filed with incorrect facts based on unknown right. There is suppression of true facts but contains false and conflicting statements etc. With such a dirty backdrop, the petitioners are not at all entitled to knock the doors of this Court nor are they entitled to the relief sought for in the writ petition. Virtually petitioners have no legs to stand and such being the position, nothing could be done in favour of the petitioners.
15. Annexure-R1, dated 21-7-1965 is the notification under which the wakf had been published under Section 5(2) of the Act. Section 26 of the Act provides for maintenance of Register of Wakfs. Section 28 of the Act provides for amendment of register. From the impugned order at Annexure-F it is clear that the Secretary of the 4th respondent in his letter dated 5-9-1994 requested the Wakf Board to register additional proper-ties of the Wakf which are the subject-matter of this case. It is also clear that a public notice dated 24-9-1994 was issued inviting objections and suggestions. The Chairman of District Wakf Committee, Kolar, furnished the mahazar report and requested to register the properties in question as wakf properties. Even though the petitioners filed objections to the same, they have not availed of the opportunity provided to prove their case. Thus, the impugned order was passed in accordance with the provisions of the Act and Rules and the same need not be quashed.
16. The contention of the learned Counsel for the petitioners based upon sub-section (8) of Section 25 of the Act that the application filed by the Secretary to 4th respondent beyond three months from the date of commencement of the Act was barred by limitation and hence the same could not have been entertained, cannot be accepted, Section 25(8) deals with registration of wakfs whereas the impugned order relates to registration of additional properties of wakf which is in conformity with Section 28 of the Act. Mere mention of wrong provision in the impugned order as Sections 25 and 26 instead of Section 28 of the Act does not vitiate the order impugned in this writ petition. The contention put forth by the learned Counsel for the petitioners in this regard cannot be countenanced.
17. The learned Counsel for the petitioners has relied upon the following decisions in support of their case.-
(1) Nawab Zain Yar Jung and Others v Director of Endowments and Another1;
(2) Masud Khan v State of Uttar Pradesh2;
(3) Shah Manzoor Peer Dargah and Another v State of Karnataka and Others3;
(4) (1994)4 SCC 520 (sic);
(5) Mirza Habib Aga v Karnataka Board of Wakfs and Others4.
These authorities are not applicable to the facts of this case and the petitioners are not entitled to the reliefs sought for in this writ petition. On the other hand, reliance placed by the learned Counsel for the Wakf Board on the decisions in M.C. Mehta's case, supra and Board of Muslim Wakfs, Rajasthan v Radha Kishan and Others, are applicable to the facts of the case.
18. Lot of time has been spent on this frivolous and misconceived petition. Therefore, it is a fit case for imposing costs on the petitioners.
19. For the aforesaid reasons, the writ petition is devoid of merit and it is accordingly dismissed with cost of Rs. 5,000/- (Five Thousand) pay-able proportionately by the four petitioners to respondents 3 and 4.
20. At this juncture, learned Counsel for the petitioners requested to grant status quo order for a period of eight weeks placing reliance upon the interim orders granted in favour of the petitioners. Since all the findings are recorded against the petitioners and as the properties in question are wakf properties and in view of the dismissal of the writ petition on several grounds, the prayer made for interim relief is rejected.