IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.49633-49675/2019(GM-WAKF) BETWEEN:
1 . SRI SANA ULLA ZARI, SON OF LATE ABDUL KAREEM, AGED ABOUT 66 YEARS RESIDING AT KASHANAYE KAREEM, GUJJARI MOHALLA, SIDDARTHA NAGAR CROSS, KUNIGAL TOWN 572 130.
TUMAKURU DISTRICT.
2 . SRI. BASHA K.A, AGED ABOUT 64 YEARS SON OF LATE AMIR KHAN RESIDING AT TANJAOOR MOHALLA, BEHIND ALHUDA SCHOOL KUNIGAL TOWN 572 130 TUMAKURU DISTRICT.
3 . SRI. ABDUL BASITH AGED ABOUT 63 YEARS SON OF LATE ABDUL MAJEED RESIDING AT NO.453, SHARIFF MOHALLA, KUNIGAL TOWN 572 130 TUMAKURU DISTRICT.
...PETITIONERS (BY SRI FAYAZ SAB B. G., ADVOCATE) AND:
1 . THE KARNATAKA BOARD OF WAQFS REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, NO.6, DARUL AUQAF, CUNNINGHAM ROAD, BENGALURU 560 052.
2 . THE KARNATAKA BOARD OF WAQFS REPRESENTED BY ITS ADMINISTRATOR, NO.6, DARUL AUQAF, CUNNINGHAM ROAD, BENGALURU 560 052.
3 . THE WAKF OFFICER DISTRICT WAKF BOARD, MADAR SHA COMPLEX, TUMAKURU 572 101.
4 . THE PRESIDENT CENTRAL MAJLIS-E-SHORA, JAMIA MASJID, OFFICE AT HAZARATH HAKIM ALI SHAH COMPLEX, B.M. ROAD, KUNIGAL TOWN 572 130.
5 . THE SECRETARY CENTRAL MAJLIS-E-SHORA, JAMIA MASJID, OFFICE AT HAZARATH HAKIM ALI SHAH COMPLEX, B.M. ROAD, KUNIGAL TOWN 572 130.
6 . SRI. NAZEER AHMED ELECTION OFFICER APPOINTED BY KARNAAKA BOARD OF WAKFS ACCOUNTS OFFICER, AUDIT, KSBA, BENGALURU 560 054 C/O NO.6, DARUL AUQAF, CUNNINGHAM ROAD, BENGALURU 560 052.
…RESPONDENTS …… THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1,2 AND 6 NOT TO HOLD AN ELECTION TO CONSTITUTE A NEW MANAGING COMMITTEE OF R-4 INSTITUTION CALLED CENTRAL MAJLIS-E-SHORA, JAMIA MASJID, OFFICE AT HAZARATH HAKIM ALI SHAH COMPLEX, B.M. ROAD, KUNIGAL TOWN-572130 TILL THE INVESTIGATION WITH REGARD TO MISAPPROPRIATION OF FUNDS OF RELIGIOUS INSTITUTION IS COMPLETED.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners, who are the members of the respondent Nos.1 and 2 – Karnataka Board of Wakf, are before this Court seeking for a writ of mandamus to direct the respondent Nos.1, 2 and 6 not to hold an election to constitute a new Managing Committee of respondent No.4-institution called Central Majlis-E- Shora, Jamia Masjid, office at Hazarath Hakim Ali Shah Complex, B.M.Road, Kunigal Town,-572 130, till the investigation with regard to misappropriation of funds of religious institution is completed.
2. It is the case of the petitioners that they are the members of the holy shrine of Hazarath Hakim Ali Shah Khadri belonging to Karnataka Wakf, a religious institution which is governed by the provisions of the Karnataka Wakf Act, 1995. The petitioners are the aspirants to contest the election to be conducted for constitution of new managing committee of the said religious institution. Earlier, the committee was constituted on 13.03.2016 to look after the day to day affairs of the institution and the tenure of three years expired on 12.03.2019. The office bearers of the ex- committee misused the funds of the religious institution for their personal gain. Noticing the said financial irregularities, the respondent No.1-Board, issued a notice dated 11.12.2018, calling upon the office bearers not to proceed with further construction activities. But, without bothering to the said notice, the office bearers of the religious institution started to allot the shops to their own persons without following the instructins issued by the first respondent.
3. Being agrreived by the said act of the office bearers of the ex-committee, the petitioners submitted successive representations requesting the respondent Nos.1 and 2 to take appropriate action against those persons who have misused the funds of the institution. On the basis of the representation made by the petitioners, the first respondent appointed one Mr. M.S.Hameedduduin, Estate officer, KSBA, Bengaluru, to ascertain the ground reality of the allegations. The Estate Officer personally visited the institution, physically inspected the place and submitted the report, wherein, it is specifically mentioned about the irregularities committed by the Officer bearers of the ex- committee. When things stood thus, even though the investigation was under progress, with regard to commission of financial irregularities by the ex- members of the fourth respondent-institution, the first respondent by the Order dated 10.05.2019 appointed one Mr. Nazeer Ahmed, Accounts Officer, Audit, KSBA, Bengaluru, as election officer for holding election to the Management of Central Majlis-e-Shora.
4. It is further contended that, if the election is conducted before completion of investigation, there are chances of respondents also contesting the elections. The respondents have also committed the mistake of exchange of names of voters from one area to another while preparing the voters’ list. Without rectifying the anomaly crept in the membership list as well as voters’ list, the election officer is contemplating to hold election to constitute a new managing committee to the fourth respondent-institution by publishing calendar of events. Therefore, the petitioner is before this Court for the relief sought for.
5. I have heard the learned counsel for the petitioners.
6. Sri B.G.Fayaz Sab, learned counsel for the petitioners contended with vehemence that the respondent Nos.1 and 2 ought not to have passed the Order dated 10.05.2019 appointing one Mr.Nazeer Ahmed, Accounts Officer, Audit, KSBA, Bengaluru, as election officer, to hold election to the management of Central Majlis-e-Shora. Since the process of preparation of membership list and voters’ list is not yet completed, the respondent Nos.1 and 2 should have waited till the completion of enquiry of misappropriation against the office bearers of the ex-committee. The act of the election officer is illegal, arbitrary, capricious. The appointment of the election officer is without application of mind and the same is liable to be quashed.
7. He further contended that while preparing the membership list as well as voters’ list, lot of discrepancies are crept in the list, many names of voters are left out and some of the names of voters are found in both the areas and some of the names of voters are exchanged from one area to another. Without rectifying the same, if calendar of events is published to hold elections, at the instance of some persons having strong political roots and vested interest in the religious institution, pressuring the election officer to conduct election, the very purpose for which the writ petition is filed will be frustrated.
8. He further contended that, the first respondent appointed an Estate Officer who inspected the spot, has made specific finding that the complainant has not submitted enough documents to prove his charges 1 to 5 and 7 to 9; the institution has not followed the provisions of KTPP Act while granting the contract for the construction of shops; the institution has received `187 lakhs from KSHIP towards the acquisition of the land which is used for construction of shops which may be referred to the PWD Department or any government recognized/registered valuator to assess the exact construction cost involved; and the institution is not following the Waqf Lease Rules, 2014, while allotting the shops for lease/rent. Therefore, he sought to allow the writ petition.
9. Having heard the learned counsel for the petitioners, it is not in dispute that the petitioners are the members of holy shrine of Hazarath Hakim Ali Shah Khadri belonging to Karnataka Wakf. Earlier, the committee was constituted on 13.03.2016 to look after the day to day affairs of the institution. The tenure of office of the said committee expired on 12.03.2019. As per Rule 54(1) of the Karnataka Wakf Rules, 2017, the Board shall appoint Mutawalli or constitute managing committee under clause (g) of sub Section (2) of Section 32 on receipt of proposals forwarded in accordance with the respective scheme of management. Sub Section (2) of Section 54 contemplates that, such committee shall initiate process of constitution of succeeding committee as per the approved scheme of management three months prior to the expiry of the term of the committee and shall complete the entire process of constitution of succeeding committee within two months prior to expiry of the term of the committee. Therefore, it is mandatory on the part of the respondent Nos.1 and 2 to hold elections three months prior to expiry of the term of the committee and election should be completed within two months prior to expiry of the term.
10. Admittedly, in the present case, the earlier committee was constituted on 13.03.2016 and the term of three years expires on 12.03.2019. The respondent Nos.1 and 2 have not followed the procedure as contemplated under Rule 54(1) and (2) of the Karnataka Wakf Rules, 2017. Taking into consideration the same, on 10.05.2019, the first respondent appointed one Mr.Nazeer Ahmed as Election Officer to hold election to constitute a new managing committee. It is not in dispute that the election should be conducted within the time as stipulated under Rule 54(2) of the Karnataka Wakf Rules, 2017. But, it is the specific case of the petitioners that the first respondent issued notice dated 11.12.2018 directing the respondent Nos.3 and 4 not to put up any further construction and the Estate Officer was appointed to proceed with enquiry against respondent Nos.3 and 4 in respect of the irregularities committed by them. It is the further case of the petitioners that the election officer, without verifying the voters’ list properly, is proceeding to conduct elections.
11. If it is so, the petitioners ought to have approached the Election Office as soon as the term expires i.e., before 12.03.2019 requesting the election officer to rectify the voters’ list and proceed with the election. The same has not been done and that is not the prayer in the present writ petition. The very prayer in the present writ petition is in the form of seeking an injunction restraining the respondent Nos.1, 2 and 6, not to hold election to constitute a new managing committee for the 4th respondent institution till the investigation with regard to misappropriation of funds of religious institution is completed. The negative prayer sought in the writ petition is against Rule 54(2) of the Karnataka Wakf Rules, 2017 and the same cannot be entertained.
12. The approach of the petitioners is indirectly supporting respondent Nos.3, 4 to 6, against whom, investigation has been already initiated. Since investigation has been already initiated and since the findings have been recorded by the Estate Officer, it is for the Estate Officer to take action against the erring office bearers of the committee, if ultimately in the enquiry, the misappropriation is proved. That will not come in the way of the respondent No.1 to proceed with conducting the elections in terms of the mandate under Rule 54(1) and (2) of the Karnataka Wakf Rules, 2017.
13. A careful reading of the provisions of Rule 54(1) and (2) of the Karnataka Wakf Rules, 2017, contemplates that it is mandate on the part of the first respondent to constitute the managing committee three months prior to the expiry of the term and shall complete the entire process. The mandatory procedure as contemplated under the Rules stated supra cannot be stopped for mere pendency of investigation. The election must go on in accordance with law. It is not the case of the petitioners that before proceeding with the election, the respondent No.6/Election Officer shall rectify the mistake. The prayer in the writ petition is indirectly supporting the persons who are involved in misappropriation of funds and against whom the investigation is pending. The petitioners have not come to the Court with clean hands, clean mind and clean heart. Therefore, the petitioners have not made out grounds to grant the relief sought for in exercise of powers under Articles 226 and 227 of the Constitution of India. Accordingly, writ petitions are dismissed with cost of `5,000/- payable by the petitioners to the Karnataka Advocates’ Clerks Benevolent Trust, A/c No.237010003206, Kotak Mahindra Bank, High Court Branch, Bengaluru, within two weeks from the date of receipt of this Order, failing which, the registry is directed to post the matter for further orders.
Ordered accordingly.
Sd/- JUDGE kcm