IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.14552-556 OF 2018 (GM-WAKF) BETWEEN:
1. V T MOHAMMED SALEHA S/O. LATE. V T ABDUL AZEED, AGED ABOUT 83 YEARS 2. V T NISAR AHMED S/O. V T MOHAMMED SALEHA, PETITIONERS 1 AND 2 R/AT 178/2, DRESSER RAJAPPA LANE, SP ROAD CROSS, CITY HOUSE TOWN, BANGALORE 560002 3. TABSEER K S/O. LATE. K MOHAMMED ISHAQ, AGED ABOUT 47 YEARS R/AT NO. 10/13, N R ROAD, 2ND CROSS, BANGALROE 560002 4. K MOHAMED MUSHTAQ S/O. LATE. K ABDUL HAMMED, AGED ABOUT 65 YEARS NO. 4, GUNDOPANTH STREET, BANGALORE 560002 5. O M MOHAMMAD YUNUS BASHA S/O. LATE. O N MOHAMMED ISMAIL, AGED ABOUT 60 YEARS NO. 7, GODOWN STREET, BANGALORE 560002 … PETITIONERS (By Mr. G L VISHWANATH ADV.) AND:
1. THE KARNATAKA STATE BOARD OF WAQFS BY ITS CHIEF EXECUTIVE OFFICER, NO. 6, CUNNINGHAM ROAD, BANGALORE - 560052 2. MASJID E JAMATH E LABABEEN BEING A REGISTERED WAQF INSTITUTION, HAVING ITS PLACE OF ACITIVITY / BUSINESS AT NO.470, AVENUE ROAD BANGALORE 560002.
REP BY ITS PRESIDENT/ SECRETARY … RESPONDENTS (By MR.M.H.HANEEF ADV. FOR R1 MR.S ISMAIL ZABIULLA S. ADV. FOR R2 MR.VIVEK SUBBA REDDY SR.ADV. FOR MR.MAHMOOD PATEL ADV. FOR IMPLEADING APPLICANTS R3 TO R31) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT TO IMPLEMENT THE REPORT OF THE ENQUIRY OFFICER DTD:18.8.2017 VIDE ANNEXURE-H BY APPOINTING AN ADMINISTRATOR AND TO THEREAFTER CONDUCT FREE AND FAIR ELECTION TO THE R-2.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.G L Vishwanath, learned counsel for the petitioners.
Mr.M.H.Haneef, learned counsel for respondent No.1.
Mr.S Ismail Zabiulla, learned counsel for respondent No.2.
Mr.Vivek Subba Reddy, learned Senior counsel for Mr.Mahmood Patel learned counsel for the proposed respondents.
The writ petitions are admitted for hearing. With consent of the parties, the same are heard finally.
2. In these petitions under Articles 226 & 227 of the Constitution of India, the petitioners inter alia seek a writ of mandamus directing the respondent No.2 to implement the report submitted by the enquiry officer dated 18.08.2017 by appointing an Administrator and thereafter to conduct free and fair elections of respondent No.2. The petitioners also seek a writ of certiorari for quashment of the resolution dated 20.10.2017 by which V.R.Mohammed Akbar has been appointed as President of Managing Committee of respondent No.2. In order to appreciate the petitioners’ grievance, few facts need mention, which are stated infra:
The Managing Committee of respondent No.2-Wakf was constituted on 18.02.1997 for a period of three years. On 30.10.2001, the Managing Committee of respondent No.2 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 respondent No.2 was extended, which expired on 27.07.2015. Thereafter, by an order dated 30.07.2015, the Karnataka State Board of AUKAF, Bengaluru extended the term of the Managing Committee of respondent No.2 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.
3. The Karnataka State Board of AUKAF, 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 respondent No.2- 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, a recommendation was made to immediately cancel the order of Managing Committee and administration of Wakf and to be taken under direct management and thereafter free and fair election was recommended to be held for constitution of the new Managing Committee. The aforesaid report has attained finality.
4. 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 respondent No.2-
Wakf were held on 20.10.2017, in which V.R.Mohammed Akbar has been appointed unanimously as President of Managing Committee of respondent No.2. 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 respondent No.2. The respondent No.2 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 respondent No.2 filed a reply on 18.07.2018. However, thereafter no action in the matter was taken. In the aforesaid factual background, the petitioners have approached this court seeking the reliefs supra.
5. Learned counsel for the petitioners submitted that the Board ought not to have permitted the Managing Committee to function after expiry of the term. It is submitted that the term of the Managing Committee was co-terminus with submission of the enquiry report, which was submitted on 18.08.2017. Therefore, the Managing Committee had no authority to function beyond 18.08.2017. In any case, the terms of the Managing Committee expired on 17.11.2017 and therefore, it could not have functioned beyond 17.11.2017. It is further submitted that from the enquiry report dated 18.08.2017, it was evident that the affairs of respondent No.2-Board were not being conducted in a proper manner and there were instances of maladministration. It is also urged that the Board ought to have taken action on the report submitted by the enquiry officer and should have taken the Wakf under the direct management of the Board. It is pointed out that board has failed to perform its statutory function. While inviting the attention of this Court to Rule 54(2) of the Karnataka Wakf Rules, 2017, (hereinafter referred to as ‘the Rules’ for short) which were amended with effect from 06.06.2017. It is submitted that the meeting was held in violation of provisions of Rules 54(2) to 54(5) of the Rules.
6. Learned counsel for respondent No.1 has submitted that petitioners 1 to 3 are not members of the general body of the respondent No.2-Wakf. It is further pointed out that out of 320 members 218 members had participated in the meeting on 10.10.2017. It is further submitted that the petitioner ought to have approached the Wakf Tribunal under Section 83 of the Act with regard to his grievance. Therefore, the Writ Petition may not be entertained. Learned Senior Counsel for the respondents 3 to 31 submitted that in 2001 bye-laws were approved by the Wakf board and the aforesaid bye-laws provide that selection to the post of President can be made in case of unanimous opinion and the election has to take place if there is no unanimity in the opinion of the members of the general body. It is also submitted that petitioner had earlier filed a Writ Petition viz., W.P.No.25210/2015, in which respondents 3 to 31 was not impleaded, which was disposed of on 28.10.2015 in view of the assurance given by the respondents in the aforesaid Writ Petition that elections would be conducted immediately within a period of seven months. It is also urged that the aforesaid fact has not been pleaded in the Writ Petition by the petitioners and therefore, they are guilty of suppression of facts. Thereafter, the respondents 3 to 31 filed a Writ Petition viz., W.P.No.6813/2016 by which earlier order was recalled and the Writ Petition was disposed of by an order dated 14.03.2016 with the direction to the Wakf Board to examine whether or not the election said to have been conducted in accordance with law and in accordance with the scheme, under which it is said to have been conducted. It is also pointed out that the Wakf Board was directed to pass orders within two weeks. It is also submitted that the Board is required to take decision under Sections 64 & 65 of the Act and since the operation of the model scheme of management has been stayed therefore, the elections has rightly been held as per the bye-laws. It is also submitted that District Wakf Office has found the affairs of the Wakf in order, which is apparent from the communication dated 04.12.2016 sent by Wakf Officer, District Wakf Office, Bengaluru to Chief Executive Officer, Karnataka State Board of AUKAF, Bengaluru. Lastly, it is urged that in view of Sections 70 & 64 of the Act, the Board is the Final Arbitrator and the Board has to take a decision with regard to the issue raised in this petition.
7. By way of rejoinder reply Learned Counsel for the petitioners has submitted that the Board itself has invoked the provisions of Section 67(2) of the Act and the enquiry report dated 18.08.2014 has attained finality and the provisions of Section 67 of the Act are applicable in the fact situation of the case.
8. I have considered the submissions made on both the sides and have perused the record. Before proceeding further it is apposite to take note of Section 67(2) of the Act which reads as under:
“67(2). Notwithstanding anything contained in this Act and in the deed of the waqf, the Board may, I fit is satisfied, for reasons to be recorded in writing, that a committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the waqf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the waqf, insofar as it relates to the constitution of the committee, shall cease to have any force.
Provided that the Board shall, before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken.”
Thus, from perusal of the aforesaid relevant extract of Section 66 of the Act it is axiomatic that a statutory duty is cast upon the Board which is the prescribed authority under the Act to take action in respect of mismanagement, has been conferred on the Court to take an action for supersession of the committee after affording an opportunity of hearing to it if it is not functioning properly or affairs of the waqf has been mismanaged.
9. In the instant case, the Karnataka State Board of AUKAF, Bengaluru in pursuance of the complaint made by petitioner No.2 had appointed an enquiry officer who has submitted a report dated 18.08.2017. Acting on the aforesaid report, the Karnataka State Board of AUKAF has already invoked the provisions of Section 67(2) of the Act and have issued a notice to the Committee of management of the respondent No.2-Wakf. However, thereafter, no action has been taken. In other words, the respondent No.2 has failed to discharge its statutory duty. Since, Board has failed to perform its statutory function, therefore, it is not necessary to deal with rival contention made by learned counsel for the parties on the merits of the case. I therefore, deem it appropriate to direct respondent No.2 to conclude the proceedings after affording an opportunity of hearing to the committee of management of respondent No.2 as well as respondent Nos.3 to 31 as well as the petitioners and shall conclude the proceedings expeditiously preferably within a period of two months from today. Needless to state that he board shall take into account the enquiry report 18.08.2017 while passing the order and shall also record a finding whether the meeting dated 10.10.2017 of the general body has been held in accordance with law by a speaking order. Till the enquiry is conclude, ad- interim order granted by a Bench of this Court shall continue. It is made clear that this Court has not expressed any opinion on the merits of the case.
With the aforesaid directions, the petitions are disposed of.
In view of the disposal of the writ petition, I.A.1/2018 does not survive for consideration and is accordingly, disposed of.
Sd/- JUDGE SS