Karnataka High Court
Md.Ayyub S/O Md.Nadi Kazi (Mutwalli) vs Sub-Division Magistrate And Assistant ... on 24 August, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE MR.JUSTICE C.M.POONACHA
WRIT PETITION No.200619/2016 (GM-WAKF)
Between:
Md.Ayyub S/o Md.Nadi Kazi (Mutwalli),
Mouzanni Masjid & Mullangiri,
Village Mannur, TQ Afzalpur,
Dist. Gulbarga,
Through Power of Attorney
Kamruzama S/o Md. Ayyub Kazi,
Age 46 years, Occ; Service,
R/o Village Mannur, TQ Afzalpur,
Dist. Gulbarga,
At present residing at 196
Dr.Ambedkar Nagar,
Hotgi Road, Majrewadi,
Solapur 413005
(Maharashtra State)
....Petitioner
(By Sri Liyaqt Fareed Ustar, Advocate)
And:
Sub Division Magistrate &
Assistant Commissioner,
A.C.Office, Gulbarga 585 103.
...Respondent
(By Sri Shivakumar R Tengli, AGA)
2
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash the
endorsement bearing No.SAM/KAM/BHUSO/60/2015-
16/1244 dated 7.12.2015 issued by the Respondent No.1
vide Annexure-D.
This Writ Petition having been heard and reserved
for orders on 18.8.2022 and coming on for pronouncement
of orders this day, the Court made the following:
ORDER
This Writ Petition is filed seeking the following relifs:
A. Issue the writ in nature of CERCIORARI & QUASH the endorsement bearing No.SAM/KAM/BHUSO/60/2015- 16/1244 dated 7.12.2015 issued by the Respondent No.1 vide Annexure-D. B. Issue the Writ of Mandamus and thereby direct the Respondent No.1 to Execute the Order passed by the WAKF BOARD in enquiry No.ENQ/297/GBA/2011 dated 31.3.2015 vide Annexure-A. C. Issue any other directions as this Hon'ble Court deems fit under facts and circumstances of the case."
2. It is the case of the Petitioner that he has filed an application before the Executive Officer and 3 Enquiry Officer, Wakf Board, under Section 54 of the Wakf Act, 1995 (hereinafter referred to as the 'Act') for removal of encroachment from Wakf properties in Sy.No.494/1 of Mannur Village, Afzalpur Taluk, Gulbarga District, measuring to an extent of 11 acres 17 guntas. The Enquiry Officer, after hearing both sides, passed an order in No.ENQ/297/GBA/2011 dated 31.3.2015, whereunder, the person in occupation was declared as an encroacher on Wakf property and removal of the said encroachment was ordered. Since the request for removal of encroachment as per the above order dated 31.3.2015 as contemplated under Section 55 of the Act was not acted upon by the Respondent, the Petitioner has filed W.P.No.205888/2015. This Court, vide order dated 4.11.2015 directed the Respondent to notify the person in occupation who was arrayed as a Respondent in proceedings No.ENQ/297/GBA/2011 and thereafter to take a decision on the request made by the Petitioner. Subsequently, the Respondent issued the 4 endorsement dated 7.12.2015, whereunder the Petitioner was informed that as per the amendment to Section 55 of the Act, the powers of the Assistant Commissioner to execute the orders under Section 54 of the Act were now transferred to the Wakf Tribunal. Being aggrieved by the said endorsement dated 7.12.2015 , the present Writ Petition is filed.
3. The learned Counsel for the Petitioner contends that Section 55 of the Act was amended vide the Wakf (Amendment) Act, 2013 (Act No.27/2013); that by the Repealing and Amending (Second) Act, 2015 (Act No.19/2015), the Ministry of Law and Justice has repealed the entire Act No.27/2013 and therefore, in view the repealing the Wakf (Amendment) Act, 2013, the endorsement dated 7.12.2015 issued by the Respondent is liable to be quashed.
4. It is forthcoming from a perusal of the endorsement dated 7.12.2015 that the same was issued on the premise that the Amendment Act was in force. 5 However, having regard to the fact that the Act No.27/2013 has been repealed by Act No.19/2015 the endorsement issued by the Respondent is liable to be quashed.
5. Hence, I pass the following:
ORDER
i) The Writ Petition is allowed;
ii) The endorsement dated 7.12.2015 is hereby quashed;
iii) The Respondent is directed to pass necessary orders as contemplated under law in terms of the direction issued by this Court vide its order dated 4.11.2015 passed in W.P.No.205888/2015.
No costs.
SD/-
JUDGE nd