Karnataka High Court
M. Ansar Baig S/O Usman Baig vs State Of Karnataka on 22 February, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
W.P.NO.103734/2017 (GM-WAKF)
BETWEEN :
M.ANSAR BAIG
50 YEARS, S/O USMAN BAIG,
MUTHAWALLI,
HAZRATH MAQDOOM JANI DARGAH
(SUNNI), NEAR SANGAM TALKIES,
BALLARI 583 101.
... PETITIONER
(BY SRI HARSH DESAI, ADVOCATE.)
AND:
1. STATE OF KARNATAKA,
BY ITS SECRETARY TO
DEPARTMENT OF MINORITY WELFARE,
WAKF & HAJ, 2 N D FLOOR,
VIKASA-SOUDHA, BENGALURU.
2. KARNATAKA STATE BOARD OF AUQAF
DARUL AUQAF, NO.6 CUNNINGHAM
ROAD, BENGALURU 560 052.
BY ITS CHIEF EXECUTIVE OFFICER,
3. THE CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF AUQAF
DARUL AUQAF, NO.6, CUNNINGHAM ROAD,
BENGALURU-560 052.
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4. THE DEPUTY COMMISSIONER
/ADMINISTRATOR, HAZRATH
MAQDOOM JANI DARGAH (SUNNI)
BALLARI 583 101.
5. THE CHAIRMAN,
KARNATAKA STATE BOARD OF AUQAF
NO.6, CUNNINGHAM ROAD,
BENGALURU 560 052.
6. THE CHAIRMAN,
DISTRICT WAQF ADVISORY COMMITTEE,
TANK BUND ROAD, MUSLIM SHAADI HALL,
BALLARI 583 101.
7. THE DISTRICT WAQF OFFICER,
DISTRICT WAQF ADVISORY COMMITTEE,
BALLARI DISTRICT, BALLARI 583 101.
8. HAFIZ MAHAMMED MAQBOOL,
36 YEARS R/O BAANAR ONI,
FLOWER STREET, BALLARI 583 101.
9. K.M.RIZWAN OMAR,
MAJOR, S/O K.M.OMAR PASHA,
CHAIRMAN, DISTRICT WAKF
ADVISORY COMMITTEE,
RL.NO.74, WARD NO.9,
BOMMANAHAL ROAD,
BALLARI 583101.
... RESPONDENTS
(BY SMT.VEENA HEGDE, AGA FOR R.1)
(B Y SRI D.L.LADKHAN, ADVOCATE FOR R2 TO R7 & R9)
(NOTICE TO R.8 : SERVED)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA, PRAYING TO :
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a) ISSUE A WRIT OF CERTIORARI QUASHING THE
IMPUGNED ORDER PASSED BY THE 1 S T RESPONDENT
IN REVISION PETITION NO.10/2016 DATED
04.04.2017 AT ANNEXURE-A.
b) ISSUE A WRIT OF CERTIORARI QUASHING THE
IMPUGNED RESOLUTION PASSED BY THE 2ND
RESPONDENT-BOARD IN ITS MEETING HELD ON
16.08.2016 VIDE SUBJECT NO.7 ASSUMING THE
DIRECT MANAGEMENT OF THE WAQF INSTITUTION
VIZ., HAZRATH MAQDOOM JANI DARGAH SITUATED
AT BALLARI TOWN, AT ANNEXURE-B.
c) ISSUE A WRIT OF CERTIORARI QUASHING THE
IMPUGNED ORDER PASSED BY 3 R D RESPONDENT
VIDE NO.KSBW/CMC/32/BLY/2014-15 DATED
TH
01.10.2016 APPOINTING THE 4 RESPONDENT AS
ADMINISTRATOR TO HAZARATH MAQDOOM JANI
DARGAH SITUATED AT BALLARI TOWN, AT
ANNEXURE-C AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard.
The petitioner claims to be the hereditary Muthawalli of Maqdoom Jani Dhargah, Ballari. Under Annexure-E dated 21.02.2008, the 2nd respondent appointed the petitioner as Muthawalli of the said Dhargh for a period of three years.
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2. It appears that some complaints were made against the petitioner. On completion of the term of appointment under Annexure-E, the 2nd respondent passed order Annexure-E1 appointing the petitioner as the Muthawalli until further orders, subject to the outcome of the orders in the enquiry pending before the Additional Chief Executive Officer, Karnataka State Board of Wakfs and Enquiry Officer.
3. The 2nd respondent issued Annexure-E2 corrigendum dated 22.02.2011 deleting the clause "until further orders" and modifying the appointment as "hereditary Muthawalli". The said order was confirmed under Annexure-E3 dated 21.06.2011.
4. Thereafter under Annexure-F dated 16.07.2014, the 2nd respondent acting under Section 65 of the Waqf Act, 1995 (referred hereafter as Waqf Act for short) assumed the management of the said Waqf 5 W . P .N O .1 03 73 4 /2 01 7 Institution and appointed an administrator for a period of six months.
5. The petitioner challenged the said order before this court in W.P.No.107621/2014 (GM-Wakf) contending that he is the hereditary Muthawalli and without terminating/removing him from his office as required under Section 64 of the Wakf Act, the administrator cannot be appointed.
6. On contest, this court vide order Annexure- F1 dated 12.08.2014 dismissed the petition holding that administrator appointed in the place of the petitioner to conduct a fair enquiry. The said order directed that the enquiry shall be completed within a reasonable time.
7. The petitioner challenged the said order in Writ Appeal No.100804/2014(GM-WAKF). The Division Bench of this Court vide order Annexure-F2 dated 29.10.2014 dismissed the said writ appeal on merits. 6
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8. The 2nd respondent vide order Annexure-G, appointed another administrator. The petitioner challenged the said order also before this court in W.P.No.112369/2014. Since the term of the administrator came to an end and on reporting the same this court vide order Annexure-G3 dated 03.08.2016 disposed of the writ petition as having become infructuous.
9. In the meantime, on 15.02.2016 the petitioner filed O.S.No.2/2016 before the Wakf Tribunal, Gulbarga as per the copy of the plaint Annexure-H. In the said suit, the petitioner has sought the following reliefs.
"a) To Declare that the Hazarath Maqdhoom Jhani Dargha and Maqdhoom Jhani Masjid is situated in T.S.No.64 and 65 measuring to the extent of 200x200 square feet is absolutely belongs to the Hazarath 7 W . P .N O .1 03 73 4 /2 01 7 Maqdhoom Jhani Dargha and Maqdhoom Jhani Masjid.
b) To direct the defendant No.1 and 2 to considered and declared the plaintiff is being the Hereditary Muthavalli of the Hazarath Maqdhoom Jhani Dargha by custom and usage.
c) To grant consequential relief of permanent injunction restraining the defendant No.3 to 5 and their men, assignees, or any person or persons claiming interest through them in any manner from trespassing or interfering for forming of illegal rastha into the Wakf Maqdhoom Jhani Dargha (Sunni) property in any manner whatsoever.
d) To grant such other relief or reliefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case." 8
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10. Pending the said suit, the Karnataka State Board of Wakf passed resolution Annexure-B dated 16.08.2016 for assumption of the Wakf under the direct management of the Board and to appoint the Deputy Commissioner, Ballari as Administrator to manage the same. In pursuance of Annexure-B the 2nd respondent issued the order Annexure-C dated 01.10.2016 assuming the management of the institution and appointing the Deputy Commissioner, Ballari as Administrator till regular managing committee is constituted.
11. The petitioner challenged the order Annexure-C under Section 65(2) of the Wakf Act before the Revisional Authority.
12. The Revisional Authority vide order Annexure-J1, dated 19.12.2016 purports to have allowed the revision petition. However, continued the appointment of the administrator until further orders 9 W . P .N O .1 03 73 4 /2 01 7 and directed the Wakf Board to conduct election for constitution of the Managing Committee to the Dharga as per the model scheme of administration, before 31.03.2017.
13. The petitioner challenged the said order before this court in W.P.No.161/2017 (GM-Wakf). This court vide order Annexure-K dated 07.02.2017 allowed the said petition holding that the order is ambiguous and self contradictory. This court in the said writ petition remanded the matter to the Revisional Authority for fresh consideration.
14. On such remand the Revisional authority heard the parties and vide impugned order Annexure-A dated 4/4/2017 dismissed the revision petition upholding the resolution Annexure-B and order Annexure-C.
15. The petitioner seeks to quash Annexure-A, the order of the revision authority, Annexure-B the 10 W . P .N O .1 03 73 4 /2 01 7 resolution and Annexure-C the order of the second respondent.
16. Sri Harsh Desai, the learned counsel for the petitioner seeks to assail the said order on the following grounds:-
i) The impugned orders are purportedly passed invoking section 65 of the Waqf Act. Section 65(1) cannot be invoked when there is no vacancy in the in the office of Muthawalli.
ii) When the petitioner is the hereditary Muthawalli appointed by the second respondent himself without removing him from the post following Section 64 of the Wakf Act, no order can be passed under Section 65.
17. In support of his contention he seeks to rely on the following judgments:-
i) Syed Enayathulla Vs. State of Karnataka and others (2004) 4 KAR LJ 585 11 W . P .N O .1 03 73 4 /2 01 7
ii) Asthan-E-Khadri Trust and Others Vs. Karnataka
iii) State Board of Wakfs and Others ILR 2000 Karnataka 801
18. Per contra, Sri. D.L.Ladkhan, the learned counsel for the respondent Nos.2 to 7 and Smt. Veena G. Hegde, the learned AGA seek to justify the impugned orders and the resolution on the following grounds:-
i) The petitioner challenged the order of the appointment of the Administrator and orders of assumption of the management and appointment of the Administrator on the earlier occasion before this Court. This court in W.P.No.107621/2014 and W.A.No.100804/ 2014 negatived the said contention, therefore it is not open to the petitioner to re-agitate the same grounds.
ii) The petitioner has already filed OS No.2/2016 seeking declaration of his right of Hereditary of Muthawalli. Therefore he cannot 12 W . P .N O .1 03 73 4 /2 01 7 maintain parallel proceedings in respect of the very same right.
iii) The petitioner's father's claim to the property to the WAKF is negatived by this Court in RSA 474/1999. After such failure, the petitioner is setting up claim of hereditary Muthawalli. Which is untenable.
iv) The second respondent can assume the management of WAKF institution if suitable person for appointment of Muthawalli is not available and can appoint the administrator.
19. Sri D.L.Ladkhan seeks to gain support for his contention from the judgments of this court in P.Mohamad Dastagir Vs. Karnataka Board of WAKFS, LAWS (KAR) 1998 1 30 and Syed Mudeer AGA, Vs. The Chief Executive Officer in W.P.No.5569/2011 disposed of on 23/3/2011. 13
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20. At the outset, the claim of the petitioner that Annexure-A is unsustainable can be upheld only if his attack to Annexures-B and C on the ground of violation of Sections 64 and 65 of the WAKF Act deserves merit. The same parties earlier also under Annexure-F, litigated the matter up to the Division Bench of this Court regarding the power of the second respondent to assume the direct management of the WAKF institution. Relying on the same provision however, the said contentions were negatived. Therefore the judgment in Annexures- F1 and F2 on the same points operate against the petitioner. Therefore those grounds to challenge cannot be considered again in this petition.
21. Further as rightly pointed out by the counsel for the respondents the whole claim of the petitioner is based on his assertion of being hereditary Muthawalli. For that he has already availed efficacious remedy of filling civil suit before the Tribunal in O.S.No.10/2016. Therefore parallelly he cannot maintain this petition 14 W . P .N O .1 03 73 4 /2 01 7 urging the same ground. In view of the fact of contest between the parties about the power of the second respondent assuming the direct management under Section 65, attaining finality before this Court in earlier proceedings, the judgment relied upon by the learned counsel for the petitioner in Syed Enayathulla and Asthan-E-Khadri Trust cases are not applicable. No grounds to interfere with the order. Therefore petition is dismissed.
22. In view of dismissal of the writ petition, IA No.1/2017 does not survive for consideration and disposed of accordingly.
Sd/-
JUDGE EM/-