Karnataka High Court
Anjuman-E-Islam Indi By Its President vs Karnataka State Board Of Wakfs Anr on 15 January, 2013
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 15TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
WRIT PETITION NO.82246/2012 (GM-WAKF)
BETWEEN:
ANJUMAN -E-ISLAM INDI
BY ITS PRESIDENT
AYUB S/O. RAJESAB BAGWAN
AGE: 32 YEARS
TQ: INDI, DIST: BIJAPUR-586101
...PETITIONER
(BY SRI ASHOK S. KINAGI, ADV.)
AND:
1. KARNATAKA STATE BOARD OF WAKFS
BY ITS CHIEF EXECUTIVE OFFICER
NO.6, CUNNINGHAM ROAD
BANGALORE - 560052
2. ZAMEER S/O. MASSOM ALI DANGE
AGE: 36 YEARS, OCC: BUSINESS
R/O. KALE PLOT, BIJAPUR ROAD
INDI, DIST: BIJAPUR-586101
...RESPONDENTS
(BY SRI A. VIJAYKUMAR, ADV. FOR R1;
SRI NARESH V. KULKARNI, ADV. FOR R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ALLOW THIS WRIT PETITION AND ISSUE A WRIT OF
CERTIORARI OR ANOTHER APPROPRIATE WRIT OR ORDER
OR DIRECTION TO ISSUE A WRIT IN THE NATURE OF
CERTIORARI TO QUASH RESOLUTION DATED 08.05.2012
AND LETTER DATED 31.05.2012 PASSED BY THE
RESPONDENT NO.1 VIDE ANNEXURE-H AND J TO THE
WRIT PETITION ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court challenging the order at Annexure 'H' dated 8.5.2012 whereby the Karnataka State Board of Wakfs has resolved the continuation of 2nd respondent in the committee constituted to manage its affairs vide order dated 02.08.2011 and the communication at Annexure 'J' issued by the Wakf Board to the Wakf Officer, the District Wakf Office, Bijapur dated 31.05.2012 informing its aforesaid resolution.
2. The Wakf Board had constituted a committee to manage the petitioner, a Wakf institution, 3 as per Annexure-C dated 02.08.2011 in terms of the order of the Division Bench of this Court in W.P.No.40644/2008 dated 15.04.2011 (The Karnataka State Board of Wakfs Vs. The Deputy Commissioner Bijapur District). The 2nd respondent was the elected Secretary of the petitioner. The petitioner passed the resolution at Annexure-D dated 01.12.2011 removing the 2nd respondent from the post of the Secretary on certain grounds. The said resolution was challenged by the 2nd respondent before the Karnataka Wakf Tribunal at Belgaum in case No. KWT/BJR/SR(APLICATION)8/2011. In the said case, the 2nd respondent has filed an application for stay of the aforesaid resolution. The Tribunal by its order at Annexure-F dated 10.02.2012 has rejected the application. Thereafter, the Tribunal has dismissed the main matter for default on 30.04.2012. On the basis of the interim order of the Tribunal, the Wakf Board has passed the resolution as per Annexure-H dated 4 08.05.2012 holding that without the sanction of the Board, the committee cannot remove the Secretary and has unanimously resolved to continue the committee constituted vide order dated 02.08.2011(Annexure-C).
3. Learned counsel for the petitioner would contend that the petitioner has passed the resolution as per Annexure-D dated 01.12.2011 removing the 2nd respondent as the Secretary of the petitioner. The said resolution was challenged by the 2nd respondent by filing an application before the Tribunal. The Tribunal has not granted any interim order in the said proceedings. The main matter was dismissed by the Tribunal on 30.04.2012. Therefore, the Wakf Board was not justified in passing the resolution as per Annexure-H resolving to continue the committee by order dated 02.08.2011. It is argued that the sanction of the Board to remove the Secretary is not necessary. 5
4. On the other hand, learned counsel appearing for the respondents would contend that pursuant to the order of the Division Bench of this Court in W.P.No.40644/2008 dated 15.04.2011, the Tahasildar of Indi Taluk was appointed as the Returning Officer to hold the election to the managing committee. The office bearers of the petitioner were elected in the election conducted by the Returning Officer. Without the concurrence of the Board, the petitioner cannot remove the 2nd respondent from the post of the Secretary. In fact, after receipt of the resolution at Annexure-D from the petitioner, the Board has issued notice at Annexure-R2 dated 16.02.2012 to the petitioner calling upon it to produce the articles of charge and other particulars for taking suitable action in the matter. The petitioner has failed to send the particulars required for the purpose of holding an enquiry.
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5. I have carefully considered the arguments of the learned counsel for the parties made at the Bar and perused the material placed on record.
6. As noticed above, the managing committee of the petitioner was constituted as per the order at Annexure-C dated 02.08.2011. The 2nd respondent was elected as the Secretary of the petitioner. A resolution was passed by the petitioner to remove the 2nd respondent from the post of the Secretary. This resolution was challenged by the 2nd respondent by filing an application before the Tribunal in case No.KWT/BJR/SR(APLICATION)8/2011. In the said case, an interim application was filed seeking stay of the resolution. The said application was rejected by the Tribunal as per Annexure-F dated 10.02.2012. Thereafter, the main matter was dismissed for default on 30.04.2012. It is to be stated here that the view of the Tribunal on I.A.No.1 is a tentative view. The main 7 petition was dismissed for default. The interim order merges with the main order. If that is so, the Board cannot rely on the tentative view of the Tribunal on I.A.No.1.
7. Perusal of the resolution at Annexure-D dated 01.12.2011 passed by the petitioner would clearly indicate that it was passed on the basis of the tentative view of the Tribunal that sanction of Board is necessary to remove the Secretary. When the main matter itself has been dismissed by the Tribunal, question of relying on the tentative view expressed by the Tribunal does not arise. Therefore, Annexure-H requires to be quashed. Similarly, the communication at Annexure-J issued by the Wakfs Board also requires to be quashed. Ordered accordingly.
8. On the basis of the resolution at Annexure-D passed by the petitioner dated 01.12.2011, the Wakf Board has issued notice to the petitioner as per 8 Annexure-R2 calling upon it to produce the charge sheet and other materials against the 2nd respondent. The petitioner has not responded to the said notice. It is also clear that the Wakf Board has not issued notice to the 2nd respondent. It is needless to say that the Wakf Board cannot hold an enquiry without notifying the petitioner and the 2nd respondent. Therefore, I direct the 1st respondent to issue notice to the 2nd respondent in this regard. The petitioner is permitted to send its reply to Annexure-R2 within a period of six weeks from today.
9. The 1st respondent is directed to consider the objections of the petitioner as also the 2nd respondent and pass appropriate orders thereon in accordance with law within a period of two months from the date of receipt of a copy of this order after granting an opportunity of being heard to the representative of the 9 petitioner and the 2nd respondent. Writ petition is accordingly disposed of.
10. In view of the disposal of the writ petition as above, I.A.2/2012 does not survive for consideration. It is accordingly dismissed. No costs.
Sd/-
JUDGE Srt