Karnataka High Court
Sri. Akbar Basha Mujawar vs The State Of Karnataka on 28 February, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2024:KHC-D:4657
WP No. 105659 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 105659 OF 2018 (GM-WAQF)
BETWEEN:
SRI AKBAR BASHA MUJAWAR,
S/O. VALI BASHA MUJAWAR,
AGED ABOUT: 29 YEARS,
OCC: MUJAWAR OF HUCHH SAHEB
ASHOORKHANA (PANJE MASJID) (SUNNI),
KRISHNANAGAR VILLAGE,
R/O: 3RD WARD, DOOR NO.2,
KRISHNANAGAR, TQ: SANDUR,
DIST: BALLARI.
...PETITIONER
(BY SRI B. SHARANABASAWA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
MINORITY WELFARE &
WAQF DEPARTMENT,
VIKASA SOUDHA, BENGALURU.
2. THE CHIEF EXECUTIVE OFFICER,
BHARATHI KARNATAKA STATE BOARD AUQAF,
HM
BENGALURU-52.
Digitally signed by
BHARATHI H M
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.05
3. THE WAQF OFFICER,
14:51:41 +0530
DISTRICT WAQF OFFICE,
TANK BUND ROAD, BALLARI,
TQ & DIST: BALLARI.
4. THE DEPUTY COMMISSIONER,
BALLARI, TQ & DIST: BALLARI.
5. THE SUPERINTENDENT OF POLICE,
BALLARI, TQ & DIST: BALLARI.
6. THE TAHASILDAR,
SANDUR, TQ: SANDUR,
DIST: BALLARI.
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NC: 2024:KHC-D:4657
WP No. 105659 of 2018
7. THE SUB INSPECTOR OF POLICE,
SANDUR POLICE STATION,
SANDUR, TQ: SANDUR,
DIST: BALLARI.
8. SRI MADARSAB S/O. HUCCHUSAB MUJAWAR,
AGE: 38 YEARS, OCC: MASON,
R/O. WARD NO.1, KRISHNANAGAR,
SANDUR, TQ: SANDUR, DIST: BALLARI.
...RESPONDENTS
(BY SRI MADANMOHAN M. KHANNUR, AGA FOR R1, R4-R7;
SRI D.L. LADKHAN, ADV. FOR R3;
SRI S.M. KALWAD, ADV. FOR R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE ORDER
DATED:23/07/2018, BEARING NO.KSBA/MSC/31/BLY/2018-19,
PASSED BY THE RESPONDENT NO.2, VIDE ANNEXURE-F AND b)
ISSUE A WRIT IN THE NATURE OF MANDAMUS, DIRECTING THE
RESPONDENTS TO CONTINUE THE PETITIONER AS MUJAWAR AND
TO DO THE JOB OF PEER AND TO MANAGE THE ASSETS, FUNDS AND
TO DO ALL NECESSARY FUNCTIONS AS MANAGEMENT, IN RESPECT
OF THE HUCHH SAHEB ASHOORKHANA (PANJE MASJID) (SUNNI) AT
KRISHNANAGAR VILLAGE OF SANDUR TALUK.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:4657
WP No. 105659 of 2018
ORDER
This writ petition is filed seeking for following reliefs:
a) Issue a writ in the nature of Certiorari quashing the order dated:23/07/2018, bearing No.KSBA/MSC/31/BLY/2018-19, passed by the respondent No.2, vide Annexure-F and
b) Issue a writ in the nature of Mandamus, directing the respondents to continue the petitioner as Mujawar and to do the job of Peer and to manage the Assets, Funds and to do all necessary functions as Management, in respect of the Huchh Saheb Ashoorkhana (Panje Masjid) (Sunni) at Krishnanagar village of Sandur Taluk.
2. Sri. B. Sharanabasva learned counsel for petitioner submitted that great grandson of Mujawar Badehuchhu Sab, who according to petitioner was notified Mutavalli of Huchh Saheb Ashoorkhana (Panje Masjid) (Sunni) at Krishnanagar of Sandur Taluk, Ballari. It was submitted that said WAQF was notified under Section 5(2) WAQF Act 1954 under notification gazetted on 17.10.1964. It was submitted that during his lifetime, said Mujawar continued Mujawarship, and thereafter, petitioner's grand father continued Mujawarship. It was -4- NC: 2024:KHC-D:4657 WP No. 105659 of 2018 submitted that since petitioner's father Mujawar Vali Basha had predeceased his grandfather, after death of petitioner's grandfather, petitioner had continued Mujawarship from year 2015. Such being case, without issuing any notice, or without any just cause, respondents passed order dated 23.07.2018 at Annexure-F assuming direct management of WAQF, and appointing Tahsildar, Sandur as administrator along with an advisory committee. Said order was passed under Section 65 of the WAQF Act 1995. It was submitted that impugned order was contrary to law declared by this Court in case of Asthan-E- Khadri Trust and Others Vs. Karnataka State Board of WAQFs and others reported in 2001 (2) KLJ 509, as well as being in violation of principles of natural justice, and therefore, sought for its quashing. It was submitted that petitioner, being great grandson of original Mutawalli, was an interested person falling within definition of Section 3(k)(ii) of WAQF Act and therefore, was an interested person. Besides same, this Court had held that power under Section 65 of WAQF Act was to be exercised in rarest of rare cases, and after recording satisfaction about two aspects, i) that there is no suitable person available for appointment of mutawalli or ii) where -5- NC: 2024:KHC-D:4657 WP No. 105659 of 2018 Board is satisfied that filling up of vacancy would be prejudicial to interest of WAQF, neither of which were absent in impugned order. On above grounds, learned counsel sought for allowing writ petition.
3. On other hand, Sri Madanmohan M. Kannur, learned AGA for respondents no.1, 4 to 7, Sri Mohammed Ali, learned counsel for respondent no.2, Sri D.L.Ladkhan, learned counsel appearing for respondent no.3, S.M.Kalwad, for respondent no.8 sought to oppose writ petition.
4. They submitted forcefully that writ petition against order impugned was not tenable as petitioner was having efficacious alternative remedy of approaching Tribunal under Section 83(2) of WAQF Act. It was also sought to be contended that petitioner not being appointed a Mutawalli would not fall within scope of definition of 'interested person'. It was also sought to be contended by counsel for respondent no.8 that from year 2013, petitioner was not performing Mujawarship and it was Respondent no.8 who was performing poojas and therefore, petitioner was not an 'interested person' and on above ground, sought dismissal of petition. -6-
NC: 2024:KHC-D:4657 WP No. 105659 of 2018
5. Heard learned counsel for petitioner and perused writ petition record.
6. From above, two aspects would require for consideration by this Court.
a) Whether petitioner would fall within definition of interested person? and
b) Whether order impugned could be sustained under Section 65 of WAQF Act?
7. Main contention of respondents insofar as petitioner's claim as 'interested person' is that petitioner was not appointed as mutawalli. It is also sought to be contended by respondent no.8 that in fact he was performing pooja. However, taking note of fact that petitioner is not claiming to be an interested person as mutawalli, but, as heir of Mujawar Hucchu Sab, the waqif, which would fall within definition of interested person, to be specific under Section 3(k)(ii). Therefore, prima facie, I am of view that petitioner would be entitled to maintain challenge against impugned order.
8. Second aspect would be as held by this Court, an order passed under Section 65 has to pass twin tests: Whether -7- NC: 2024:KHC-D:4657 WP No. 105659 of 2018 there is a finding that there was no suitable person available for appointment as mutawalli and about satisfaction by Board that filling up of vacancy would be prejudicial to interest of WAQF.
9. Bare perusal of order impugned reveals that it does not meet either of requirements. Respondent no.3 has merely taken note of vacancy having arisen, considered it as a vacuum requiring to be filled up and accordingly, proceeded to appoint administrator with advisory committee. Consequently, impugned order would be in violation of law laid down by this Court in Asthan-E-Khadri Trust's case (Supra). Hence, writ petition is allowed. Impugned order at Annexure-F stands quashed.
10. However, liberty is reserved to respondents to pass orders afresh, keeping note of observations made above and in accordance with law.
Sd/-
JUDGE VMB List No.: 1 Sl No.: 21