IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 21ST DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.2902 OF 2018 (GM-WAKF) AND WRIT APPEAL No.442 OF 2019 IN W.A. No. 2902 OF 2018 BETWEEN:
ABBAS P SON OF BAPAKUNHI, AGED ABOUT 56 YEARS RESIDING AT PATHADKA HOUSE, PERVAJE POST, SULLIA TALUK DAKSHINA KANNADA DISTRICT-574 239.
….APPELLANT (BY SRI. VIVEK S REDDY, SR. COUNSEL FOR SRI. B. LETHIF, ADVOCATE) AND:
1. THE KARNATAKA STATE BOARD OF WAKFS REPRESENTED BY CHIEF EXECUTIVE OFFICER CUNNINGHAM ROAD BENGALURU-560 052.
2. MOHIUDDIN JUMA MASJID AND KHIDMATUL ISLAM JAMATH COMMITTEE, CHANNAVARA PALTHADI, PUTTUR TALUK, D.K.DISTRICT-574 210 REPRESENTED BY ITS SECRETARY.
….RESPONDENTS (BY SMT. S R ANURADHA, ADVOCATE FOR R-1 SRIYUTHS R.D. RAVISHANKAR, ADVOCATE FOR KETHAN KUMAR, ADVOCATE FOR R-2) IN W.A. No.442 OF 2019 BETWEEN:
ABBAS P SON OF BAPAKUNHI, AGED ABOUT 56 YEARS RESIDING AT PATHADKA HOUSE, PERVAJE POST, SULLIA TALUK DAKSHINA KANNADA DISTRICT-574 239.
….APPELLANT (BY SRI. VIVEK S REDDY, SR. COUNSEL FOR SRI. B. LETHIF, ADVOCATE) AND:
1. THE KARNATAKA STATE BOARD OF WAKFS REPRESENTED BY CHIEF EXECUTIVE OFFICER CUNNINGHAM ROAD BENGALURU-560 052.
2. MOHIUDDIN JUMA MASJID AND KHIDMATUL ISLAM JAMATH COMMITTEE, CHANNAVARA PALTHADI, PUTTUR TALUK, D.K.DISTRICT-574 210 REPRESENTED BY ITS SECRETARY C P ABDULLA SON OF IBRAHIM 3. MOHIUDDIN JUMA MASJID AND KHIDMATUL ISLAM JAMATH COMMITTEE, CHANNAVARA PALTHADI, PUTTUR TALUK, D.K.DISTRICT-574 210 REPRESENTED BY ITS PRESIDENT, ABDUL KARIM HAJI, SON OF IBRAHIM MUSLIAR, AGED ABOUT 47 YEARS.
…..RESPONDENTS (BY SMT S R ANURADHA, ADVOCATE FOR R-1; SRIYUTHS R.D. RAVISHANKAR, ADVOCATE FOR KETHAN KUMAR, ADVOCATE FOR R-3 THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 01.8.2018 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN WRIT PETITION No. 27301 OF 2018 C/W WRIT PETITION No. 1873 OF 2018 CONSEQUENTLY SET ASIDE THE ORDER PASSED BY THE 1ST RESPONDENT DATED 05.06.2018.
THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 1.8.2018 passed by the learned Single Judge in W.P.No.27301 connected with W.P.No.1873 of 2018, the petitioner has come up in appeal.
2. Parties are referred to in these appeals as they are arrayed in the writ petitions. Petitioner is common in the both the Writ Appeals.
3. Brief facts of the case are as under :
Writ Petition No.1873 of 2018 was filed by the petitioner seeking for a direction to respondent No.1 to consider his representation dated 29.12.2017 vide Annexure-G and sought for election being conducted to Mohiuddin Juma Masjid Channavara Palthadi, Puttur Taluk, Dakshina Kannada District.
Writ Petition No.27301 of 2018 was filed by the petitioner seeking quashing of the order dated 5.6.2018 whereunder respondent No.1 in exercise of power conferred under the Wakf Act 1995 has constituted a Committee of 11 members for the management of Masjid and its properties for a period of 3 years.
4. One B.Abdur Rahaman approached this court in Writ Petition 22543 of 2013 seeking for a writ of mandamus to direct the Respondent No.1 to conduct elections to the Managing Committee as per the model scheme of bye-laws. C.P.Abdulla filed W.P.No.10671 of 2013 challenging the order dated 22.1.2013 seeking a mandamus directing the respondent to renew the terms of Administrator appointed by respondent No.2 dated 17.8.2012 and also to implement the order passed by this Court in W.P.No.11692 of 2012.
5. The Learned Single Judge after considering the rival the contentions and observing that the Institution, namely Masjid in question, had no bye-laws of its own, had directed the District Wakf Officer to conduct elections as per the model bye-laws. Pursuant to the said direction, elections were held on 31.05.2014 and list of elected candidates came to be approved by respondent No.1-Wakf Board on 29.10.2014 as per Annexure-F whose term came to an end on 28.10.2017. It is in the above said background, the petitioner in Writ Petition No.27301 of 2018 and Writ Petition No.1873 of 2018 being aggrieved by the action of respondent No.1 in not conducting the election to Masjid in question has approached this Court seeking for a direction to appoint an Administrator until holding of elections and for quashing of the order dated 5.6.2018.
6. Respondent No.1 has constituted a Committee of 11 members to the Masjid and the said list was approved on 5.6.2018 by the respondent No.1.
7. The contention of the learned counsel appearing for the petitioner is that, when the prayer for appointment of Administrator is pending, respondent No.1 ought not to have approved the names of 11 persons. Such an exercise undertaken by respondent No.1 is contrary to the model by-laws.
8. Per contra, learned counsel appearing for respondent Nos.1 and 2 submits that as per Section 83(2) of Wakf Act 1995, any person aggrieved by an order made under the Act or Rules, will have to be challenged before the Tribunal. Hence prayed for dismissal of Writ Petitions.
9. The learned Single Judge after considering rival contentions of learned counsel for the parties and perusing the model bye-laws, dismissed both the writ petitions by a common order dated 1.8.2018 .
10. The Petitioner aggrieved by the common order dated 1.8.2018 passed in Writ Petition No.27301 of 2018 c/w Writ Petition No. 1873 of 2018 has filed these writ appeals.
11. Heard arguments of counsels and perused the records.
12. The order dated 5.6.2018 passed by respondent No.1, constituting committee of 11 members for the management of Mohiyuddin Jumma Masjid Khidmathul Islam Jamaat Chennavara, has to be challenged before Wakf Tribunal under section 83(2) of Wakf Act 1995. Petitioner without exhausting the alternative remedy has filed the present writ petitions. Hence, the petitioner cannot maintain the writ petitions without exhausting the alternative remedy. In our considered view, the learned single Judge was justified in observing that the petitioner has got an alternative remedy and that he cannot prosecute the writ petitions without exhausting the remedy.
13. In so far as the second aspect is concerned, i.e., regarding the manner in which the Managing Committee has to be constituted, the number of members and the manner in which they are to be elected / selected is embodied in Chapter 6 of the model bye-laws which reads as under:
“8. Managing Committee:
1. Constitution:
a) It shall consist of eleven (11) Members who shall implement the decisions of the General Body.
b) The Board at its discretion, depending upon the strength of the Membership of the Wakf institution, increase the number of Members to the Managing Committee.
c) It shall be elected / selected once in three years by the Members of the General Body.
d) It shall be collectively accountable to the Board.
14. As per the bye-laws, respondent No.1 has complied with all the formalities. From a perusal of the records, the Secretary of Masjid issued General body meeting invitation to its member informing that general body meeting is scheduled to be held on 12.01.2018, as per Annexure R2. Minutes of the said meeting was recorded as per Annexure- R3.
15. In the said general body meeting, totally 55 members have attended the meeting. Out of 55 members, 52 members of Masjid and 3 members from Wakf Authority resolved to elect the Executive Committee consisting of 11 members for the period of 2018-2020. The said resolution was forwarded to the Wakf Board i.e., respondent No.1 for approval. Respondent No.1 being satisfied about conduct of election to the Managing Committee, approved the said resolution by order dated 5.6.2018.
16. We do not find any illegality or irregularity in the election process of Managing Committee of the above said Masjid. In our considered view, the learned Single Judge after considering the model bye-laws, provisions of the Wakf Act and the material on record, has rightly dismissed the petitions. The petitioner has not made out any grounds to interfere with the impugned order. We also do not find any grounds to interfere with the order passed by the learned Single Judge Hence, we pass the following :
ORDER Writ appeals are dismissed.
Sd/- JUDGE Sd/- JUDGE rs