Karnataka High Court
Syed Hashmath Peer S/O Syed Abdul vs The Chief Exeuctive Officer on 6 September, 2022
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WP No. 65719 of 2010
C/W WP No. 64850 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 65719 OF 2010 (GM-WAQF)
C/W
WRIT PETITION NO. 64850 OF 2010
IN WP.NO.65719/2010:
BETWEEN:
1. SYED HASHMATH PEER
S/O SYED ABDUL KHADER JEELANI PEER QUADRI
AGE 32 YEARS, OCC: AGRICULTURIST
2. SYED ALTHAAF PEERA
S/O SYED ABDUL KHADER JEELANI PEERA
AGE 34 YEARS, OCC: AGRICULTURIST
3. AFTAB PEER
S/O SYED ABDUL KHADAR
AGE 44 YEARS, OCC: AGRICULTURIST
4. SMT. SAYEDA SAYEDANIBEE
W/O SYED ABDUL KHADAR JEELANI
AGE 74 YEARS, OCC: HOUSEWIFE
5. SYED AZMAT PEER
S/O SYED ABDUL KHADAR JEELANI KHADRI
AGE 42 YEARS, OCC: AGRICULTURIST
ALL ARE R/O HULUGUR IN
SIGGAON TQ. DHARWAD DIST.
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WP No. 65719 of 2010
C/W WP No. 64850 of 2010
PETITIONERS
(BY SRI. AHAMED ALI REHIMAN SHAH, ADV. FOR P1 & P2 &
SRI. SADIQ N GOODWALA., ADV. FOR P3 TO P5)
AND:
1. THE CHIEF EXEUCTIVE OFFICER,
THE KARNATAKA BOARD OF WAKFS
DARUL-A-WAKF, NO.6
CUNNINGHAM ROAD
BANGALOORU
2. THE DISTRICT ADVISORY COMMITTEE
WAKF BOARD FOR HAVERI DISTRICT
REP. BY ITS WAKF OFFICER
...RESPONDENTS
(BY SRI. M.M.MALAGI FOR R2., ADV. FOR R2;
R1 SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER VIDE ANNEXURE-D ATED:10/11/2009,
PASSED BY THE RESPONDENT NO.1 AND ETC.,
WP.NO.64850/2010:
BETWEEN:
1. SMT. SAYEDA SHAHER BANU
W/O SAYED NOORUDDIN KHADRI
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O HULGUR VILLAGE,
TQ: SHIGGAVI, DIST: HAVERI
SINCE DECEASED BY LRS'
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WP No. 65719 of 2010
C/W WP No. 64850 of 2010
1(a) SYEDA BIBIZAKIYA
W/O SYED AFTAB PEER KHADRI
AGE: 33 YEARS, OCC: HUSEHOLD WORK
1(b) SYEDA NAYAMANNISSA
W/O SYED AFTAB PEER KHADRI
AGE: 32 YEARS, OCC: HUSEHOLD WORK
1(c) SYED SHEBPASHA
S/O SAYED NORRUDDIN KHADRI
AGE: 30 YEARS, OCC: AGRICULTURE
1(d) SYEDA YASEENBI
W/O SYED TOUHED INAMDAR
AGE: 28 YEARS, OCC: HOUSEHOLD WORK
1(e) SYEDA HALEEMABI
W/O SYED HASMAPEER KHADRI
AGE: 26 YEARS, OCC: HUSEHOLD WORK
1(f) SYEDA HUSSAINBI
D/O SAYED NORUDDIN KHADRI
AGE: 24 YEARS, OCC: HUSEHOLD WORK
1(g) SYEDA NAJAMUNNISSA
D/O SAYED NOORUDDIN KHADRI
AGE: 23 YEARS, OCC: HUSEHOLD WORK
ALL ARE R/O HULGUR VILLAGE,
TQ: SHIGGAVI, DIST: HAVERI.
2. SMT. SAYDA KHUTEJUL KUBRA
W/O SAYED AHMED KHADRI
AGE: 51 YEARS, OCC: HOUSEHOLD WORK
R/O HULGUR VILLAGE,
TQ: SHIGGAVI, DIST: HAVERI.
3. SAYED SAHEB PASHA @ GAYAS PEERAN KHADRI
S/O SAYED NOORUDDIN KHADRI
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C/W WP No. 64850 of 2010
AGE: 24 YEARS, OCC: BUSINESS & AGRICULTURE
R/O HULGUR VILLAGE,
TQ: SHIGGAVI, DIST: HAVERI.
...PETITIONERS
(BY SRI. F.V.PATIL., ADV.)
AND:
1. THE CHIEF EXECUTIVE OFFICER,
THE KARNATAKA STATE BOARD OF WAKFS,
DARUL-A-WAKF, NO.6,
CUNNINGHAM ROAD,
BENGALOORU.
2. THE DISTRICT ADVISORY COMMITTEE,
WAKF BOARD HAVERI DISTRICT
REPRESENTED BY ITS WAKF OFFICER
3. SHARIFSAB MOHAMMED HANIFSAB BHAVIKATTI
AGE: 55 YEARS, OCC: BUSINESS,
R/O HULGUR VILLAGE,
TQ: SHIGGAVI, DIST: HAVERI.
4. SAYED AJAMPEER S. KHADRI
AGE: MAJOR, OCC: EX.M.L.A.,
SHIGGAVI & BUSINESS
R/O HULGUR VILLAGE,
TQ: SHIGGAVI, DIST: HAVERI.
...RESPONDENTS
(BY SRI. M.M.MALAGI, ADV. FOR CR/1 & R2;
SRI MALLIKARJUNSWAMY HIREMATH, ADV, FOR R3 &
SRI K.L.PATIL, ADV. FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER VIDE ANNEXURE-K DATED:10.11.2009
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WP No. 65719 of 2010
C/W WP No. 64850 of 2010
BEARING NO.KTW/MSC/22/HVR/2009-10 PASSED BY THE
RESPONDENT NO.1, IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners have filed W.P.No.64850/2010 seeking for quashing the impugned order dated 10.11.2009 vide Annexure-K passed by respondent No.1 and also sought for quashing the impugned order dated 28.06.2010 vide Annexure-L passed by the Presiding Officer, Karnataka Wakf Tribunal, Belgaum Division, Belgaum (hereinafter referred to as 'the Waqf Tribunal' for short).
2. Brief facts leadings as to filing of this writ petition are as under:
The land bearing Sy.No.275 measuring 15 acres 12 guntas was granted in favour of the father of petitioner Nos.1 and 2 and maternal grand father of petitioner No.3 vide M.E.No.244. Pursuant to the Bombay Jat Inam Lands -6- WP No. 65719 of 2010 C/W WP No. 64850 of 2010 Abolition Act, 1952, the land in question was removed from the head of inam lands and pursuant to the Land Revenue Code, the assessment was fixed and the persons who were in the possession of the respective lands were continued to exercise their right of ownership over the said lands. Pursuant to the order dated 16.08.1956, the petitioners' name came to be entered as the owners in possession and occupation and cultivation of the land in question and from 1925 upto this day the names of the petitioners are continued in the records in respect of the land in question. One Dharmgouda Maradi has filed Form No.7 before the Tribunal. The Tribunal has rejected the claim of tenants holding that the petitioners are the owners in possession and cultivation of the land in question. Respondent No.4 who happens to be the relative of the petitioners and also due to some political rival as an Ex-M.L.A, some villagers have filed a suit in O.S.No.41/2009 before the Civil Judge, (Jr.Dn.) Shiggaon for the relief of permanent injunction and also sought for -7- WP No. 65719 of 2010 C/W WP No. 64850 of 2010 relief of declaration that the property in question was a Waqf property. The very same the plaintiff has filed a suit before the Waqf Tribunal in O.S.S.R.No.1/2009. During the pendency of the proceedings before the Civil Court.
Respondent No.2 filed a complaint before the Karnataka State Board of Waqf, Bengaluru. The Board has conducted an inquiry and passed an order on 10.11.2009 holding that the property is Waqf property under Section 40 of the Waqf Act, 1995 (for short 'the Act') and it belongs to Dargah Hazrath Shah Shah Quadri, Hulgur Village, Shiggaon. The petitioners aggrieved by the order passed by the Waqf Board, preferred an appeal before the Karnataka Waqf Tribunal, Belgaum in appeal No.6/2009.
The Waqf Tribunal, Belgaum dismissed the appeal filed by the petitioner. Hence, this writ petition.
3. Heard the learned counsel for the petitioners and also the learned counsel for the respondents. -8- WP No. 65719 of 2010 C/W WP No. 64850 of 2010
4. Learned counsel for the petitioners submits that the land was granted in favour of the petitioner in the year 1925. Accordingly, the mutation was effected in the name of the petitioner in the year 1925 vide M.E.No.244. On the strength of mutation order, the name of the petitioners are entered in the revenue records and the same is continued till 2008-09. He submits that some of the villagers who were not in good terms with the petitioners have filed a suit in O.S.No.41/2009 seeking for the relief of permanent injunction and also further submits that the very same plaintiffs have also filed a suit before the Waqf Tribunal in O.S.S.R.No.1/2009 seeking for the relief of declaration that the suit property in question is a Waqf property. He submits that during the pendency of the proceedings before the Civil Court as well as the Waqf Tribunal, respondent No.2 at the instance of the devotee has lodged a complaint before the Karnataka State Board of Waqf. He further submits that the Board without holding an inquiry as required under Section 40 of the Act has passed the -9- WP No. 65719 of 2010 C/W WP No. 64850 of 2010 impugned order and no opportunity was provided to the petitioners to place the material on record. He submits that the Tribunal without considering the said aspect has confirmed the order passed by the Waqf Board. He submits that the impugned order passed by the Waqf Board as well as Waqf Tribunal is in violation of the principles of natural justice. Hence, on these grounds, he prays to allow the writ petition.
5. Per contra, learned counsel appearing for the private parties submits that the complaint was lodged by respondent No.2 and not by the private parties i.e., respondent Nos.3 and 4. He fairly concedes that the Waqf Board has not conducted any inquiry as required under Section 40 of the Act. Hence, on these grounds, he prays to dismiss the petition.
6. Heard and perused the records and considered the submissions made by the learned counsel for the parties.
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7. It is the case of the petitioners that the land was granted in favour of the petitioners and the name of the petitioners were entered in the revenue records vide M.E.No.244 on 11.03.1925. On the strength of the mutation order, the name of the petitioners came to be entered in the revenue records and the same is continued till 2008-09. Some of the villagers have filed a suit in O.S.No.41/2009 before the Civil Judge, (Jr.Dn.) Shiggan against petitioner No.2 and another seeking for the relief of decree declaring that the suit schedule property is absolute property belonging to Hazrath Shah Shah Quadri Dargha and consequential relief of permanent injunction restraining the defendants and there men from transferring/alienating the suit schedule property to anybody in any manner. During the pendency of the said suit before the Civl Court, the very same plaintiffs have filed a suit in O.S.S.R.No.1/2009 seeking for the same relief before the Waqf Tribunal. During the pendency of the said proceedings, respondent No.2 has lodged a
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WP No. 65719 of 2010 C/W WP No. 64850 of 2010 compliant before the Waqf Board under Section 40 of the Act. The Waqf Board has issued a notice to the petitioners to appear before the Enquiry Officer on 22.09.2009 with all relevant records to substantiate their claim. Petitioner No.3 was present and the matter was adjourned to 06.10.2009. As there was no sitting on 06.10.2009, the case was adjourned to 09.10.2009. On 09.10.2009, the petitioners sought for adjournment on the ground that the petitioners wants to file objections to the complaint lodged by respondent No.2 and also to produce the records before the Chief Executive Officer of the Karnataka State Board of Waqfs, but the Chief Executive Officer has not provided any opportunity to the petitioners to file statement of objections and also to place a documents on record. Further, the Chief Executive Officer without conducting any inquiry has proceeded to pass the order vide Annexure-K as per Section 40 of the Act, which reads as under;
"40. Decision if a property is waqf property.-- (1) The Board may itself collect information regarding any property which it has
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reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.
(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is waqf property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered:
Provided that in all such cases, notice of the action proposed to be taken under this sub-
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section shall be given to the authority by whom the trust or society had been registered.
(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal."
8. Sub Section 1 of Section 40 of the Act provides that if the Board may itself collect information regarding any property which it has reason to believe to be Waqf property and if any question arises whether a particular property is Waqf property or not?, it may, after making such inquiry as it may deem fit, decide the question. The word used in Sub Section 1 of Section 40 after making such inquiry. As far as inquiry is concerned, the Act has not defined the word 'inquiry'.
9. Section 33 of the Karnataka Land Revenue Act, 1964 (for short 'KLR Act') provides formal inquiry and Section 34 of KLR Act provides summary inquiry. Formal
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WP No. 65719 of 2010 C/W WP No. 64850 of 2010 inquiry means as per Section 33 of the KLR Act a formal inquiry is prescribed for determination of any question by or under this Act or any law for the time being in force, the evidence shall be taken down in Kannada or in English or in any such language as prescribed by the State Government used in the District and by the Officer Conducted an inquiry shall be singed by him. In the present case, an Enquiry Officer without holding the inquiry as required under Section 33 of the KLR Act has proceeded to pass the impugned order. During the pending of the proceedings before respondent No.1, the suits filed before the Civil Court and Waqf Tribunal was withdrawn. The impugned order passed by respondent No.1 is in contrary to Section 40 of the Act. Further, the Waqf Tribunal without considering the said aspect has proceeded to dismiss the appeal filed by the petitioners and confirmed the order passed by respondent No.1. Thus, the impugned order passed by respondent No.1 is in violation of the principles of natural justice. Hence, on
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WP No. 65719 of 2010 C/W WP No. 64850 of 2010 these grounds, the impugned order liable to be set aside. The writ petition deserves to be allowed.
10. Accordingly, I proceed to pass the following:
ORDER
1. W.P.No.64850/2010 is allowed.
2. The impugned order dated 10.11.2009 vide Annexure-K passed by respondent No.1 and also the impugned order dated 28.06.2010 vide Annexure-L passed by the Presiding Officer, Karnataka Waqf Tribunal, Belgaum Division, are set aside.
3. The matter is remitted to respondent No.1.
4. Respondent No.1 is directed to hold an inquiry in terms of Section 33 of the KLR Act and pass appropriate order in accordance with law.
5. Respondent No.1 is directed to permit the petitioners to file objections and also produce the records within a period of one month from the date of receipt of a certified copy of this order.
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6. The parties are directed to appear before respondent No.1 on 17.10.2022 without awaiting further notice from respondent No.1.
7. It is made it clear that this Court has not made any adjudication on merits in issue.
8. All the contentions of he parties are kept open.
In view of the disposal of W.P.No.64850/2010, W.P.No.65719/2010 does not survive for consideration. Accordingly W.P.No.65719/2010 is disposed of.
Sd/-
JUDGE SSB