Karnataka High Court
Karnataka State Board Of Wakfs vs Deputy Commissioner on 17 February, 2020
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE B.VEERAPPA
W.P.NO.28535/2012 (LR-RES)
BETWEEN:
THE KARNATAKA STATE BOARD OF WAKFS
NO.6 CUNNINGHAM ROAD
BANGALORE
REPRESENTED BY ITS CEO.
..PETITIONER
(BY SMT.S R ANURADHA, ADV.)
AND:
1. THE DEPUTY COMMISSIONER
DAVANGERE DISTRICT
DAVANGERE-577217.
2. THE TAHSILDAR
HONNALLI TALUK
DAVANGERE DISTRICT-577 203.
3. ASMA THIBI
W/O LATE DIWAN SAB
(SINCE DEAD, THE LR'S OF R3 ARE
ALREADY ON RECORD AS R4 AND R5)
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4. S.D. RAFFIULLA
S/O LATE DIWAN SAB
AGED ABOUT 45 YEARS
5. JABIULLA
S/O LATE DIWAN SAB
AGED ABOUT 38 YEARS
R3 TO R5 ARE R/AT
DEVANAHALLI VILLAGE
HONNALLI TALUK-577203.
6. SECRETARY
DISTRICT WAKF BOARD
DAVANAGERE-577203.
7. KHIZAR AHMED BIN PEERANSAB
AGE : MAJOR
MEMBER
NOORANI MASJID COMMITTEE
DEVANAYAKANAHALLI
HONNAHALLI - 577 203.
8. MR. NAZEER AHAMED
PRESIDENT
JANNATH BI MAASAHEB DARGHA
DEVANAYAKANAHALLI
MASUTI KERI
HONNAHALLI TALUK
DAVANGERE - 577 203.
...RESPONDENTS
(BY SRI.M.C. NAGASHREE, AGA. FOR R1 AND R2
SRI K N NITISH, ADV. FOR
SRI.K V NARASIMHAN, ADV. FOR R4 AND R5
SRI. ANIRUDH ANAND, ADV. FOR R6
SRI SOWRABHA V BESUR, ADV. FOR R7
SRI SRINIVASA, ADV. FOR R8
R3 IS EXPIRED-R4 AND R5 ARE LR'S OF DECEASED R3)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE RECORDS FROM THE COURT OF THE DEPUTY
COMMISSIONER AND QUASH THE ORDER DATED 26.03.2012
PASSED BY THE DEPUTY COMMISSIONER VIDE ANNX-A GRANT
AN INTERIM ORDER TO STAY THE OPERATION OF THE ORDER
DATED 26.03.2012 PASSED BY THE DEPUTY COMMISSIONER,
VIDE ANNX-A AND ORDER FOR STATUS QUO ON THE WAKF
PROPERTY DESCRIBEDIN THE SCHEDULE HERETO.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner-Karnataka State Board of Wakfs filed the present writ petition for a writ of certiorari to quash the order dated 26.03.2012 passed by the Deputy Commissioner made in Case No.LRM/CR/70/1998-99 vide Annexure-A, granting occupancy rights in favour of respondents No.3 to 5 in respect of Sy.No.66, measuring 2 acres 27 guntas including karab land measuring 2 guntas, situated at Devanaikanahalli village, Honnali Taluk, Davanagere District.
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2. It is the case of the petitioner that in the year 1981, an extent of land measuring 2 acres 25 guntas in Sy.No.66 situated at Devanaikanahalli village, Honnali Taluk and other lands were granted as an endowment to Jannath Bi Dargah, for up-keepment of Dargah. Register of Muzarai Institutions endowed with Sarkar and Inam Lands in the Taluk of Honnalli was corrected upto 31.12.1932, vide Annexure-B and at column No.3, name and place of the Institution is shown as Devanaikanahalli Dargah of Jannath Bi, at column No.11 it is shown as 'for the support of Dargah' and at column No.12 it is shown as 'dry Sy.No.66'. It is further case of the petitioner that the Government of Mysore passed a general order dated 06.04.1973 observed that as it is desirable that all the endowments belonging to the Muslim community should be administered under the provisions of Wakf Act, 1954, the Government of Mysore is pleased to order that at the supervision and control over all Muslim Muzrai Institutions -5- (Muzrai Wakfs) in the Mysore State be transferred to the Board of Wakfs, with immediate effect, subject to certain conditions. Annexure-D dated 27.02.1975 is with regard to handing over charge of Devanaikanahalli Dargah of Jannath Bi. In the Form for transfer of Muslim Wakf properties to the control of Karnataka Board of Wakfs, Bangalore, name of the institution is shown as Devanaikanahalli Dargah of Jannath Bi of Sy.No.66 measuring 2 acres 25 guntas, classification is shown as dry and in cultivators column it is shown as RTC enclosed for the support of Dargah and other survey numbers.
3. When the things stood thus, father of respondents No.4 and 5 filed Form No.1 on 27.03.1991 stating that he has been cultivating Sy.No.66 under Jannath Bi Moosa for more than 50 years. The Deputy Commissioner considering the application filed by the father of respondents No.4 and 5 by order dated 03.04.2000 rejected the application and vested the land with the State -6- Government. Against the said order, the present respondents No.4 and 5 filed W.P.No.28284/2002 before this Court. This Court, after hearing both the parties, by an order dated 04.09.2006 allowed the writ petition, setting aside the order of Deputy Commissioner and the matter was remitted to the Deputy Commissioner for consideration afresh after extending a reasonable opportunity of hearing to the parties concerned and to pass orders strictly in accordance with law.
4. After remand from this Court, the Deputy Commissioner by his order dated 10.03.2008 rejected the application filed by the respondents No.3 to 5 for grant of occupancy rights on the ground that the land in question is Wakf property and the application filed under the provisions of Karnataka Certain Inams Abolition Act, 1977 (hereinafter referred to as '1977 Act' for short) is not maintainable. Against the said order, Respondents No.3 to 5 filed W.P.No.5392/2008 before this Court. This Court, -7- after hearing both the parties by an order dated 01.08.2008 allowed the writ petition, setting aside the order passed by the Deputy Commissioner and the matter was remanded to the Deputy Commissioner with a direction to afford opportunity to respondents No.3 to 5 to seek correction of the application and afford opportunity of hearing to all the parties and dispose off the matter in accordance with law. In pursuance of the said order, the Deputy Commissioner by impugned order dated 26.03.2012 granted occupancy rights in favour of respondents No.3 to 5. Hence, the present writ petition is filed by Wakf Board for the reliefs sought for.
5. Learned Additional Government Advocate filed statement of objections and submits that vide Circular dated 30.08.1997 the directions of the Government of Karnataka were taken into consideration while perusing the case of the parties therein. It is also stated that, in pursuance of the direction issued by this Court in -8- W.P.No.5392/2006 dated 01.08.2008 after giving opportunity to both the parties and after perusing the records/Documents (Record of Rights-5 and 6 and Pahanis) produced by both the parties, heard the matter in detail and disposed off in accordance with law and hence sought for dismissal of the writ petition.
6. Respondents No.4 and 5 filed objections contending that Sy.No.66 measuring 2 acres 27 guntas including 2 gunts of karab land was under cultivation of Huchu Sab who is the grandfather of the respondents. Huchu Sab was in cultivation of the said land. The possession of the property dated back to the time of his ancestors. The revenue entries reflecting the name of Huchu Sab and after the demise of Huchu Sab, the name of his son Diwan Sab is at Annexures-R2 to R14. It is further contended that it is evident from the records that after the demise of said Huchu Sab his son i.e., Diwan Sab i.e., husband of respondent No.3 and father of respondents No.4 and 5 -9- continued to be in cultivation of the land in question. Therefore, he filed an application which came to be rejected on 03.04.2000. After the last remand made by this court, the respondents appeared and made out a case of grant of occupancy rights in respect of the inam land in question. Based on the revenue records, the entries stood in the name of Huchu Sab followed by his son Diwan sab. The first respondent held that under Section 6 of the Karnataka (Religious and Charitable) Inams Abolition Act, 1955 (hereinafter referred to as '1955 Act' for short), the respondents are entitled for grant of occupancy rights. The contention of the petitioner that the provisions of Inam Ablotion Act is not applicable to Wakf land etc., is not correct. The documents produced along with the statement of objections depicts that tenancy, possession and enjoyment of these respondents right from their time of ancestors. The judgment relied upon by the petitioner reported in ILR 1999 KAR 3319 has no application to the
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facts of the present case. It is further contended that the petitioner has got an alternate remedy of appeal before the Karnataka Appellate Tribunal. Hence, the present writ petition is not maintainable. Therefore, sought to dismiss the writ petition.
7. I have heard the learned counsel for the parties to the lis.
8. Smt.S.R.Anuradha, learned counsel for the petitioner contended that the impugned order passed by the Deputy Commissioner granting occupancy rights in favour of respondents No.3 to 5 is erroneous and contrary to the material on record and cannot be sustained. She would further contend that the Deputy Commissioner has no jurisdiction to grant occupancy rights in favour of respondents No.3 to 5 under the Act. She would also contend that the alleged application filed on 27.02.1991 by the husband of 3rd respondent and father of respondents
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No.4 and 5 was barred by limitation in view of provision of Section 11 of the Karnataka Certain Inams Abolition Act.
9. She further contended that after remand, a specific contention was taken before the Deputy Commissioner by filing written arguments dated 25.04.2011 with regard to jurisdiction and locus-standi of the respondents 3 to 5, but the Deputy Commissioner has not considered the same and proceeded to pass the impugned order. Hence, she sought to allow the writ petition.
10. In support of her contentions, learned counsel relied upon the dictum of the Hon'ble Supreme Court in the case of SAYYED ALI AND OTHERS v/s A.P.WAKF BOARD, AND OTHERS reported in (1998) 2 SCC 642 (Para 13) and in the case of THE KARNATAKA BOARD OF WAKF BY ITS SECRETARY v/s STATE OF KARNATAKA AND OTHERS reported in ILR 2000 KAR 1859 (Para 8).
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11. Per contra, Sri.Nitesh, learned counsel appearing for respondents No.3 to 5 sought to justify the impugned order and reiterating the objections filed and contended that the material documents produced before the Deputy Commissioner clearly indicate that the grandfather of respondents No.4 and 5 Huchu Sab was in possession of the said land and cultivating the same. After his death, his son Diwan Sab, husband of Respondent No.3 and father of Respondents No.4 and 5 has been cultivating the said land. The Deputy Commissioner, after several remands, considering the entire material on record has granted occupancy rights in favour of respondents No.3 to 5 and the same is in accordance with law. The petitioner is not entitled to any relief and sought for dismissal of the writ petition.
12. Learned Additional Government Advocate while supporting the order passed by the Deputy Commissioner has brought to the notice of this Court, the written
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arguments filed by the petitioner before the Deputy Commissioner dated 25.04.2011 raising the contention of locus-standi of the respondents and jurisdiction of the Deputy Commissioner to grant occupancy rights and she sought to dismiss the writ petition.
13. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully.
14. It is an undisputed fact that as per Annexure-B, the Register of Muzrai Institutions Endowed with Sarkar and Inam Lands in Honnali Taluk has ordered to correct upto 31.12.1932 showing the Devanaikanahalli Dargah Jannath Bi as the name and place of the institution, Sy.No.66 was for the support of Dargah. It is also not in dispute that Government of Mysore while transferring Muzrai institution to the control of Karnataka State Wakf Board by order dated 06.04.1973 has held as follows:
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"With the enactment of the Wakf Act of 1954, (Central Act 29 of 1954), the provisions of the Religious and Charitable Endowments Act and the Rules framed thereunder cease to apply to the Muzrai Wakfs. It is, therefore, appropriate that the wakfs under the Muzrai Department should be governed by the provisions of the Wakf Act and Rules framed thereunder. The Central Act among other things envisages that the overall control and superintendence of the Muslim Wakfs shall vest in a Board of Wakfs established under the said Act. The salient features of the Central Act are that the management of Wakf will vest in a muthavalli whose duties have been enumerated therein. Under certain circumstances, the Board can remove a muthavalli and appoint a new muthavalli, or assure direct management in cases where no suitable person is available for appointment as a muthavalli. This direct management cannot, however, last longer than the aggregate of five years. It is the duty of the Board to see that the Muslim Wakf are properly
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maintained, controlled and administered and that the income from the wakfs is duly applied to the objects and for the purposes for which the said wakfs had been created. The State Government may, from time to time, given to the Board such general or special directions as the State Government think fit and in the performance of its functions, the Board may comply with any such directions.
ORDER As it is desirable that all endowments belonging to the Muslim Community should be administered under the provisions of the Wakf Act, 1954, the Government of Mysore, is pleased to order that at the supervision and control over all Muslim Muzrai Institutions (Muzrai Wakfs) in the Mysore State be transferred to the Board of Wakfs, with immediate effect, subject to certain conditions."
15. It is not in dispute that in the Form for transfer of Muslim Wakf properties to the control of Karnataka Board of Wakfs, Bangalore, name of the institution is shown as
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Devanaikanahalli Dargah of Jannath Bi of Sy.No.66 measuring 2 acres 25 guntas, classification is shown as dry and in cultivators column it is shown as RTC enclosed. The object of grant was shown as for support of Dargah. The material on record clearly depicts that the husband of respondent No.3 and father of respondents No.4 and 5 Diwan Sab bin Huchu Sab Raja Sab filed Form No.1 stating that he has been in possession of the land bearing Sy.No.66, measuring 2 acres 27 guntas including karab of 2 guntas for more than 50 years. Based on the application, the Deputy Commissioner proceeded to pass the order dated 03.04.2000 rejecting the application on the ground that the applicant has not proved his tenancy as on 01.07.1970 under the provisions of Section 3 of the Karnataka (Religious and Charitable) Inams Abolition Act, 1955 and Tahsildar to take possession and publish the eligibility list.
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16. The said order passed by the Deputy Commissioner, was the subject matter of the writ petition before this Court filed by the present respondents in W.P.No.28284/2002. This Court, after hearing both the parties, by order dated 04.09.2006 has observed that having noticed that the name of the applicant was shown in the RTC, Pahnies for the year 1971-72 onwards recorded a finding that the applicant's name was shown as cultivator of the land in question prior to 01.07.1970 and in the absence of relevant material constituting proof of lawful tenancy prior to 01.07.1970 rejected the application by an order dated 03.04.2000, Annexure-H. It is further held that the order impugned is nullity on account of error apparent on the face of the record, because the Deputy Commissioner has failed to notice that the application was filed under Karnataka Certain Inams Abolition Act, 1977 and not under the Mysore (Religious and Charitable) Inams Abolition Act, 1955. The order of Deputy
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Commissioner is unsustainable, perverse and has occasioned prejudice to the petitioner. Accordingly, the writ petition came to be allowed and the order passed by the Deputy Commissioner was set aside and the matter was remanded to the Deputy Commissioner for fresh consideration, extending reasonable opportunity of hearing all the parties and pass orders strictly in accordance with law.
17. After remand, the Deputy Commissioner by order dated 10.03.2008 proceeded to reject the application only on the ground that the applicants could not have maintained the application under the 1977 Act and permitted to correct the application, which is the subject matter of the writ petition by this Court in W.P.No.5392/2008. This Court allowed the said writ petition and remanded the matter to the first respondent/Deputy Commissioner to dispose off the matter, with a direction to afford opportunity to the
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petitioner to seek correction of the application and an opportunity of being heard to all the parties and pass appropriate orders.
18. On careful perusal of the order passed by this Court dated 04.09.2006 made in W.P.No.28284/2002(LR), it is seen that this Court, while remanding the matter to the Deputy Commissioner recorded a finding that the Deputy Commissioner has failed to notice that the application was filed under 1977 Act and not under 1955 Act. Therefore, quashed the said order and remanded the matter to the Deputy Commissioner. After remand, the Deputy Commissioner recorded a finding vide Annexure-H dated 10.03.2008 that application filed by the respondents under 1977 Act is not maintainable, accordingly, rejected the application. That was the subject matter of the writ petition before this Court in W.P.No.5392/2008. This Court, remanded the matter for fresh consideration. After remand, the Deputy Commissioner while passing the
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impugned order has not recorded any finding as to whether the application filed by Diwan Sab son of Huchu Sab was maintainable under 1977 Act or under the provisions of 1955 Act.
19. When there is a finding recorded by this Court that the application under 1977 Act is not maintainable, the application should have been filed under 1955 Act. The Deputy Commissioner has recorded a finding that though the respondents produced tenancy, the application under 1977 Act is not maintainable and rejected the application. There is no proper finding by the Deputy Commissioner in the present impugned order whether the application filed under 1977 Act is maintainable or not. It is also not in dispute that in Annexure-B, column.No.3 shows Devanaikanahalli Dargah of Jannath Bi for the support of Dargah Sy.No.66 is mentioned. It is also not in dispute that by an order dated 06.04.1973, all the Muslim Muzarai institutions were transferred under the control of Mysore
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State Wakf Board. As per Annexure-D, handing over charge of Devanaikanahalli Dargah from Muslim Wakf property to the control of Karnataka Wakf Board, Bangalore indicates the name of the village as Devanaikanahalli and land in Sy.No.66, measuring 2 acres 27 guntas was given/support of Dargah. When Annexures-A, B, C and D refers to some rights of the present petitioner over the Dargah, the same has not been considered in earlier order of the Deputy Commissioner. Even after remand, a specific contention was taken before the Deputy Commissioner in the written arguments dated 25.04.2011 by the present petitioner as could be seen from the original records with regard to locus-standi of the present respondents and jurisdiction of the Deputy Commissioner.
20. Absolutely there is no reference to the written arguments filed by the petitioner nor the Deputy Commissioner has discussed as to whether such an
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application is maintainable in view of the documents as per Annexures-B, C and D and there is no reference to the contentions raised by the present petitioner in the written arguments. Absolutely there is no reference to the order showing Sy.No.66, measuring 2 acres 27 guntas in favour of Devanaikanahalli Dargah Jannath Bi. All these aspects have not been considered by the Deputy Commissioner. Therefore, the order passed by the Deputy Commissioner cannot be sustained. Though this is the 3rd round litigation, the fact remains that the Deputy Commissioner has not considered the documents on both sides and has not passed the order by assigning detailed reasons as to how it went to Dargah; whether such an application can be restored in favour of respondents No.3 to 5 are not forthcoming. In view of the aforesaid reasons, the impugned order passed by the Deputy Commissioner cannot be sustained.
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21. It is also relevant to note at this stage that the Hon'ble Supreme Court while considering the provisions of Section 3 of Wakf Act in the case of SAYYED ALI AND OTHERS case stated supra at paragraph 13 has held as follows:
"Lastly, it was contended by the learned counsel for the appellant that once patta, under the Inams Act, having been granted in favour of Mokhasadars, it was not open to the High Court to hold that the property was a wakf property. In other words, the argument seems to proceed on the basis that once patta has been granted under the Inams Act to Mokhasadars the land has ceased to be a wakf property. It may be stated that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as wakf would always retain its character as a wakf. In other words, once a wakf always a wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication
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made of the property constituting the same as wakf. After a wakf has been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the wakf property. We accordingly, find no substance in the last argument of the learned counsel for the appellant."
22. This Court, while considering the provisions of Section 6 of the Karnataka Religious and Charitable Inams Abolition Act, 1955 in the case of Karnataka State Board of Wakfs' case stated supra at paragraph 8 has held as follows:
" The decision rendered by the Supreme Court in Sayyed Ali V. Andhra Pradesh Wakf Board, Hyderabad can be quoted usefully for the purpose of this case, wherein it is held that the dedication of property need not be in favour of Dargah. Grants by way of service imams for purposes recognized by Muslim Law as pious, religious or charitable constitute the property as
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'wakf' property. Wakf property being permanent dedication, grant of patta under Inams Act does not nullify it."
23. All these aspects shall be considered by the Deputy Commissioner after affording opportunity of being heard to all the parties and to produce all the relevant records. He shall also decide whether such an application filed by respondents No.3 to 5 is maintainable and whether the Wakf Board can contest the matter.
24. In the light of the observations made by this Court and the Hon'ble Supreme Court stated supra, the Deputy Commissioner shall consider the matter afresh and pass appropriate orders strictly in accordance with law. Accordingly, the writ petition is disposed off.
25. Any observations made by this Court while disposing of the present writ petition shall not come in the way of
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the parties to establish their rights independently, in accordance with law.
Ordered accordingly.
Sd/-
JUDGE mpk/-* CT:bms