IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.25458 OF 2019 (GM-WAKF) BETWEEN:
MASJID E JAMATH E LABABEEN BEING A REGISTERED WAQF INSTITUTION HAVING ITS PLACE OF ACTIVITY AT NO.470 AVENUE ROAD, BANGALORE – 560 002.
REP BY ITS PRESIDENT V.R.MOHAMMED AKBAR S/O LATE V.R.ABDUS SUBHAN AGED ABOUT 62 YEARS RESIDING AT NO.470, AVENUE ROAD BANGALORE – 560 002.
… PETITIONER (BY MR.VIVEK SUBBA REDDY SR. ADV. ALONG WITH MR.SHAIK ISMAIL ZABIULLA, ADV.) AND:
1. THE KARNATAKA STATE BOARD OF WAQFS BY ITS CHIEF EXECUTIVE OFFICER NO.6, CUNNINGHAM ROAD BANGALORE – 560 052 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER 2. V.T.MOHAMMED SALEHA S/O LATE V.T.ABDUL AZEEZ AGED ABOUT 83 YEARS.
3. V.T.NISAR AHMED S/O V.T.MOHAMMED SALEHA AGED MAJOR PETITIONERS NO.1 TO 2 RESIDING AT 178/2, DRESSER RAJAPPA LANE SP ROAD CROSS CITY HOUSE TOWN BANGALORE – 560 002.
4. TABSEER K S/O LATE K.MOHAMMED ISHAQ AGED ABOUT 47 YEARS RESIDING AT NO.10/13 N.R.ROAD 2ND CROSS, BANGALORE – 560 002.
5. K.MOHAMMED MUSHTAQ S/O LATE K.ABDUL HAMMED AGED ABOT 65 YEARS NO.4, GUNDOPANTH STET BANGALORE – 560 002.
6. O.M.MOHAMMED YUNUS BASHA S/O LATE O.N.MOHAMMED ISMAIL AGED ABOUT 60 YEARS NO.7, GODOWN STREET BANGALORE – 560 002.
(BY MR.HANEEF ADV. FOR R1 MR.G.L.VISHWANATH ADV. FOR R2 TO R6 … RESPONDENTS MR.MAHAMOOD PATEL ADV. FOR IMPLEADING RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 27.03.2019 PASSED BY THE LEARNED ADMINISTRATOR IN APPEAL IN SO FAR AS ITS OBSERVATION THAT GENERAL BODY DATED 20.10.2017 IS NOT IN ACCORDANCE WITH THE WAKF RULES AND BYE LAWS OF MASJID E LABABEEN AND FURTER DIRECTED TO CONDUCT FRESH ELECTION IN PURSUANCE THEREOF DIRECTED TO CONDUCT FRESH ENROLLMENT TO THE MANAGING COMMITTEE UNDER THE SUPERVISION OF THE OFFICER APPOINTED BY THE KARNATAKA STATE BOARD OF AUQAF WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF IMPUGNED ORDER, PRODUCED VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Vivek Subba Reddy, Learned senior counsel along with Mr.Shaik Imsail Zabiulla learned counsel for the petitioner.
Mr.Haneef, learned counsel for respondent No.1. Mr.G.L.Vishwanath, learned counsel for respondent Nos.2 to 6.
Mr.Mahamood Patel, learned counsel for impleading respondent.
The writ petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 27.03.2019 passed by the Administrator insofar as it pertains to the finding that General Body dated 20.10.2017 was not held in accordance with the Rules framed under the Wakf Rules and the Bye laws of Masjid-e-lababeen as well as the direction to conduct fresh enrollment to the Managing Committee under the supervision of the officer appointed by State Board of Wakf within a period of thirty days. The petitioner also seeks a writ of certiorari for quashment of order dated 09.04.2019 by which one Nazeer Ahmed has been appointed to supervise fresh enrollments to the General body.
3. The Managing Committee of petitioner-Wakf was constituted on 18.02.1997 for a period of three years. On 30.10.2001, the Managing Committee of petitioner forwarded a proposal for the amendment of the bye-laws and requested the Wakf Board’s (hereinafter referred to as ‘the Board’ for short) approval. The amended bye-laws were approved by the Board. Thereafter, on 18.02.2011, the Managing Committee was constituted for a period of three years.
An annual general meeting of Wakf board was held on 02.03.2013 wherein model bye-laws were approved to be adopted by Wakfs. By order dated 19.08.2013 and 28.08.2014 , the term of the Managing committee for petitioner was extended, which expired on 27.07.2015. Thereafter, by an order dated 30.07.2015, the Karnataka State Board of Wakf, Bengaluru extended the term of the Managing Committee of petitioner for a further period of three years from the date of resolution passed by the Board dated 18.11.2014 or until further orders whichever is earlier subject to outcome of enquiry. It was further provided that in case charges are proved, the Managing Committee shall be dissolved.
4. The Karnataka State Board of Wakf, Bengaluru issued a notice dated 02.03.2017 to the Managing Committee, in which instances of maladministration were pointed out and the Committee was asked to show cause as to why the order of supersession of the Committee be not passed under Section 67(2) of the Wakf Act, 1995 (hereinafter referred to as ‘the Act’ for short). By a Memorandum dated 27.04.2017, the Executing Officer of the Wakf Board appointed an officer in respect of the Wakf to conduct an enquiry into the allegations of mismanagement of the affairs of the petitioner-Wakf. The Enquiry Officer submitted the report on 18.08.2017, in which allegations of mismanagement of affairs of respondent No.2 were found to be substantiated and a recommendation was made to immediately cancel the order of Managing Committee and administration of Wakf was recommended to be taken under the direct management of the Karnataka State Board of Wakf and thereafter free and fair election was recommended to be held for constitution of the new Managing Committee. The aforesaid report has attained finality.
5. After the report was submitted by the Enquiry Officer, new members were inducted as members of the general body and thereafter the elections of Managing Committee of petitioner were held on 20.10.2017, in which V.R.Mohammed Akbar has been appointed unanimously as President of Managing Committee of the petitioner. It is pertinent to note that the minutes of the meeting held on 20.10.2017 do not refer to the enquiry report dated 18.08.2017. By an order dated 02.06.2018, the Board appointed the Administrator to take charge of petitioner. The petitioner did not hand over the charge. Thereafter, a notice was issued by the Administrator to respondent No.2 to initiate action under Section 68(2) of the Act for failing to hand over records, accounts, property details, passbooks and other relevant documents. The petitioner filed a reply on 18.07.2018. However, thereafter no action in the matter was taken. The respondent No.2 to 6 filed a writ petition viz., W.P.No.14552-556/2018 which was disposed of by this Court by an order dated 24.01.2019.
6. This Court by the aforesaid order inter alia held that since the Board has failed to perform its statutory duty under Section 67(2) of the Act, therefore, the writ petition was disposed of with the direction to the Board to conclude the proceeding after affording an opportunity of hearing to the committee of management of the petitioner as well as respondent Nos.2 to 31 in the writ petition and to conclude the proceeding expeditiously preferably within two months. The Board was directed to record a finding on the following issue:
“Whether the meeting dated 10.10.2017 of the general body has been held in accordance with law?”
7. It was further directed that till enquiry is concluded ad interim order granted shall continue. Admittedly, the aforesaid order passed by this Court has attained finality. In compliance of the aforesaid order, the Administrator, Karnataka State Board of Wakf has passed an order dated 27.03.2019, by which it was held that since, the meeting of the general body was not conducted in accordance with Rule 9(2) of Model Scheme of Administration. Therefore, the meeting of general body held on 20.10.2017 is not in accordance with law and therefore, the direction has been issued to carry out fresh enrollments under the management and supervision of the officer appointed by Karnataka State Board of Wakf and thereafter to hold the elections on or before 31.07.2019. It is further directed, that till elections are held, the Managing Committee of the petitioner shall continue as care taker of the Masjid. However, it shall only perform day to day functions and not take major policy decisions. In the aforesaid factual background, the petitioner has approached this court.
8. Learned senior counsel for the petitioner submitted that the impugned order has been passed on the sole ground that the meeting of the general body was not conducted on 10.10.2017 in accordance with the model scheme of administration. However, the Board has failed to appreciate that the model scheme of Bye laws was stayed by an order dated 17.01.2018 in CRP No.32/2018. The aforesaid provision, which was stayed could not have been made the basis for recording the finding that the meeting, which was held subsequently on 20.10.2017 was not in accordance with the model Bye laws. Therefore, the impugned order insofar as it records a finding that the meeting was not held on 20.10.2017 in accordance with the model Bye laws and directing holding of fresh elections suffers from the vice of non application of mind and cannot be sustained in the eye of law.
9. On the other hand, learned counsel for the respondent No.1 has supported the order passed by it. Learned counsel for the respondent Nos.2 to 6 submitted that the order dated 18.08.2017 has attained finality by which the Board had directed to cancel the order of the Managing Committee and the administration of the Wakf was recommended to be taken under the direct management and thereafter free and fair election if possible was directed to be conducted for the new Managing Committee. It is further submitted that in view of the order dated 18.08.2017, the petitioner had no authority to hold election on 20.10.2017. It is also submitted that Managing Committee does not have any authority or power to function after expiry of the term and all actions taken by the illegally constituted Managing Committee are non est. It is also submitted that in view of Rule 54 of the Wakf Rules, the order which has been impugned has rightly been passed.
10. By way of rejoinder, learned Senior counsel for the petitioner submitted that all the contentions raised on behalf of respondent No.2 to 6 were raised in previous round of litigation and the enquiry report dated 18.08.2017 by itself is not operative as the same contains the recommendations and the action on the recommendations has to be taken by the Board under Section 70 of the Act. The question whether the Managing Committee has been illegally constituted has to be decided by the Board.
11. I have considered the respective submissions made by learned counsel on both the sides and have perused the record. Admittedly, the respondent Nos.2 to 6 had filed a writ petition viz., W.P.Nos.14552- 556/2018, in which a prayer was made to the Board to implement the report of the Enquiry Officer dated 18.08.2018. The aforesaid writ petition was disposed of after noting the submissions made on behalf of respondent Nos.2 to 6 with a direction to the Board to conclude the proceeding after affording an opportunity of hearing to the Managing Committee of petitioner as well as respondent Nos.3 to 31 and to pass appropriate orders by taking into account the enquiry report dated 18.08.2017. It was further directed that the Board shall also record a finding whether the meeting dated 10.10.2017 of the general body has been held in accordance with law. Against the aforesaid order, the petitioner preferred a writ appeal viz., W.A.No.365/2019, which was dismissed for non compliance of the peremptory order. In other words, the order dated 24.01.2019 passed in W.P.Nos.14552- 556/2018 has attained finality. Now the scope in this petition is confined to examination of the order dated 27.03.2019 passed by the Board in compliance of the order of this court in the previous round of litigation. The relevant extract of the impugned order reads as under:
“The general body said to be conducted on 20.10.2017, is not in accordance with the Wakf Rules and Bye laws of Majid-e-Lababeen. Hence, it is directed to conduct afresh following timelines.
(i) Fresh enrollment shall be made by the management under the supervision of the officer appointed by the Karnataka State Board of Auqaf within a period of 30 days from the date of this order.
(ii) The Karnataka State Board of Auqaf shall appoint a election officer after the holy month of Ramzan and the jurisdictional circle inspector of police shall be appointed as observer, and the election process shall be completed before 31.07.2019.
(iii) Until the constitution of the new managing committee the managing committee existed prior to conducting of general body on 20.10.2017 shall be continued and shall act as care taker of the Masjid. The said managing committee shall not take up any policy decision like renting / leasing of the properties of the Wakf, but shall collect the rents and perform day to day affairs of the Masjid, and shall pay the salaries and other dues as need arise.
(iv) The revival of the old managing committee is done considering the fact that month of holy ramzan is just a month away.
There will be series of activities connected with up keeping of the Masjid needs to be done in a time bound manner like sanitation of the Masjid, water supply for ablutions at all the time, regular payments, arrangement of loud speaker for Adhaan and Speeches, sahari and iftaar food arrangements etc all these activities cannot be supervised by the Administrator who is not the resident of Masjid jurisdiction.
(v) The Chief Executive Officer, shall issue necessary orders in this regard.
12. Thus, it is evident that the Board has neither taken into account the enquiry report dated 18.08.2017 nor has taken into consideration the fact that at the time when the meeting of the general body was held i.e., on 20.10.2017, the model Bye laws were stayed by the order dated 17.01.2018 passed in CRP No.32/2018 and the provisions of the model Bye laws were stayed at the time when the meeting of the Committee was held on 20.10.2017. It is pertinent to note that under the Act, the enquiry relating to administration of the Wakf has to be conducted by the Board. In other words, the decision, if any, on the enquiry report dated 18.08.2017 has to be taken by the Board in exercise of powers under Section 70 of the Act. Section 70 of the Act reads as under:
70. Inquiry relating to administration of waqf—Any person interested in a waqf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the waqf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the waqf are being mismanaged, it shall take such action thereon as it thinks fit.
13. In view of preceding analysis, the impugned order insofar as it records a finding that the meeting of the general body dated 20.10.2017 was not held in accordance with model Bye laws and contains a direction to carry out fresh enrollment to the Managing Committee under the supervision of the officer appointed by the Board is hereby quashed. The board is directed to decide the matter afresh by a speaking order in the light of observations made in this order after affording an opportunity of hearing to all necessary parties including the impleading applicant within a period of six weeks from the date of receipt of certified copy of the order passed today.
With the aforesaid directions, the petition stands disposed of.
Sd/- JUDGE SS