Dismissed

Hindu Kote Garadi (R) v. Sheikh Budan Sab

Karnataka HC4 Dec 2021CRP/196/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the revision petition filed by Defendant No.9 challenging the Tribunal's rejection of an application under Order VII Rule 11 and Section 151 of the CPC to reject the plaint in a suit seeking declaration of Waqf property status and protection. The Court held the plaintiffs, as permanent residents, had semblance of interest. It observed doubts on Tribunal's powe

What did the court decide?

Rejection of the plaint seeking declaration of Waqf status and protection was dismissed; impugned order of the Tribunal was affirmed.

Hindu Kote Garadi (R) Vs Sheikh… — Constitutional and Fundamental Rights | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2021 BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.196 OF 2019 (IO)

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BETWEEN:

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HINDU KOTE GARADI (R) REPRESENTED BY ITS SECRETARY, KOTE AREA, OLD TOWN, BHADRAVATHI-577301

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...PETITIONER

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(BY SRI. SHOWRI H.R., ADVOCATE)

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AND:

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SHEIKH BUDAN SAB S/O LATE FAKHRUDDIN SAB, AGED ABOUT 68 YEARS, R/AT 2^ND CROSS, KOTE AREA, OLD TOWN, BHADRAVATHI-577301

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KHALEEL REHAN

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S/O NAZEER AHMED, AGED ABOUT 40 YEARS, R/AT KAZHI MOHALLA, OLD TOWN, BHADRAVATHI-577301

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TOUFIQ AHMED S/O SHAKEEL AHMED, AGED ABOUT 23 YEARS, R/AT 1^ST CROSS, NEAR URDU SCHOOL, KAZHI MOHALLA, OLD TOWN, BHADRAVATHI-577301

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IRFAN S/O MOHAMMED RAFIQ, AGED ABOUT 22 YEARS, RESIDING NEAR BASAVANNA TEMPLE, KHAZI MOHALLA, OLD TOWN, BHADRAVATHI-577301

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MOHAMMED SALAHUDDIN S/O MOHAMMED DAWOOD, AGED ABOUT 52 YEARS, KHAZI MOHALLA, OLD TOWN, BHADRAVATHI-577301

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, M.S.BUILDING, DR.B.R.AMBEDKAR VEEDI, BENGALURU-560 001

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THE DEPUTY COMMISSIONER SHIVAMOGGA DISTRICT, SHIVAMOGGA-577201

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THE ASST. COMMISSIONER BHADRAVATHI DISTRICT, BHADRAVATHI-577301

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THE TAHSILDAR BHADRAVATHI TALUK, BHADRAVATHI-577301

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THE CITY MUNICIPAL COUNCIL BHADRAVATHI-577301 REPRESENTED BY ITS COMMISSIONER

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THE MANAGING COMMITTEE JAMIA MASJID, BHADRAVATHI DIVISION, BHADRAVATHI-577301

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THE KARNATAKA STATE BOARD OF WAKF NO.5, "DARUL WAKAF", CUNNINGHAM ROAD, BENGALURU-560052 REP. BY ITS CEO

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DISTRICT WAKF OFFICER WAKF ADVISORY COMMITTEE, SHIVAMOGGA DISTRICT, SHIVAMOGGA-577201

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…RESPONDENTS

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(BY SRI. NISHAD S.A., ADVOCATE FOR R1, R2, R4 AND R5; SRI. M.H.HANEEF, ADVOCATE FOR R12 (THROUGH VC); SMT. T.H.SAVITHA, HCGP FOR R6, R7, R8 AND 49; NOTICE SERVED ON R10 AND R11 AND UNREPRESENTED)

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THIS CRP IS FILED UNDER SECTION 83[9] OF WAKF ACT AGAINST THE ORDER DATED 16.02.2019 PASSED ON IA NO.V IN OS NO.10/2018 ON THE FILE OF THE PRESIDING OFFICER, KARNATAKA WAKF TRIBUNAL, BENGALURU DN: BENGALURU REJECTING IA NO.V FILED UNDER ORDER VII RULE 11 READ WITH SECTION 151 OF CPC FOR REJECTION OF PLAINT.

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THIS CRP COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This revision petition is filed by the respondent No.9 in O.S.No.10/2018 before the Karnataka Wakf Tribunal, Bengaluru (henceforth referred to as 'Tribunal' for short) challenging an Order dated 16.02.2019 passed by the Tribunal, by which an application filed by the respondent No.9 under Order VII Rule 11 read with Section 151 of the

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Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short) was rejected.

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The suit in O.S.No.10/2018 was filed for the

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following reliefs:

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i. Declaring the suit schedule property as a Waqf property.

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ii. Directing defendant No.5 to change the entries in the revenue records pertaining to the suit schedule property from 'Garadi Mane' to Hazarath Hyder Masthan Dargah and Taleem Khana Sunni Waqf.

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iii. Directing the defendant authorities to demolish the illegal construction put up by the ninth defendant in the suit schedule property and hand over the suit schedule property to defendants 6, 7 and 8 - Waqf Authorities.

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iv. Granting an order of permanent injunction retraining the ninth defendant, its representatives, agents etc. or anybody on its behalf from alienating or otherwise encumbering the encroached portion of the suit schedule property in favour of any third party.

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v. Directing defendants 1 to 5 to act in accordance with law to ensure safety and safeguard of the suit schedule property was a Waqf-notified property.

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The plaintiffs claimed that they were permanent residents of Khazi Mohalla, Bhadravathi Taluk, Shivamogga District and that the suit property was notified as a Waqf property in terms of the Gazette Notification dated 23.02.1965. They claimed that the suit property was encroached by the defendant No.9, who was using it for the purpose of ' Garadi Mane ' (gymnasium). It is also claimed that the plaintiffs submitted various representations and communicated with the defendants to safeguard the suit property and its character as a Waqf property and to ensure that the suit property is used for the purposes for which it was originally reserved.

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Defendant No.6 addressed a letter dated 12.01.2016 to conduct a survey of the suit property. A letter dated 18.01.2016 was addressed by the Counselor of the City Municipal Council, Bhadravathi to the defendant

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No.7 seeking its intervention to effect necessary

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corrections in the revenue records of the suit property. The plaintiffs alleged that despite their best attempts and written communications, the suit property was not protected and therefore, they filed the suit seeking for various reliefs.

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The defendant No.9 contested the suit and also filed an application under Order VII Rule 11 read with Section 151 of CPC primarily contending that the plaintiffs were not "aggrieved persons", they were not entitled to seek a declaration that the suit property is a Waqf property. It is therefore contended that there is no cause of action for the suit and the suit was not maintainable. The Tribunal, after considering the assertions made in the plaint as well as the contentions raised by the defendants in the application filed under Order VII Rule 11 held that the same cannot be considered at the threshold and thus, rejected the application.

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Being aggrieved by the aforesaid order, the

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present revision petition is filed.

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Learned counsel for the petitioner - defendant

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No.9 submitted that Section 6 of the Waqf Act, 1995 enables an "aggrieved person" to institute a suit before a Tribunal for a decision on the question whether a particular property is a Waqf property or not. He invited the attention of the Court to the reliefs sought for by the plaintiffs before the Tribunal and contended that the plaintiffs cannot seek for a declaration that the suit property belongs to a Waqf Institution. He also submitted that the plaint did not disclose, how the plaintiffs were interested in the Waqf and a mere statement that they are the residents of Khazi Mohalla is not sufficient and does not cloth the jurisdiction to the Tribunal to consider the case. He, therefore, prayed that the proceedings before the Tribunal be set at naught by rejecting the plaint.

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Learned counsel for the respondents - plaintiffs

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on the other hand contended that the plaint contains

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sufficient pleadings regarding the default on the part of the authorities in ensuring the safety and protection of the suit property, which belongs a Waqf. He contended that a notification was issued on 23.02.1965 declaring the suit property as a Waqf property. He, therefore, submitted that the plaintiffs being persons "interested in the Waqf" are entitled to raise a dispute before the Tribunal concerning a Waqf and its properties. He invited attention of the Court to under Section 94(2) of the Waqf Act, 1995 and contended that the State Board of Waqf as well as Managing Committee of the Waqf had failed in its duty to ensure protection of the Waqf property. He, therefore, submitted that the plaintiffs are entitled to file a suit as "persons interested in the Waqf".

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Learned counsel for the respondent No.12 submitted that suit is maintainable before the Tribunal in view of the definition of Waqf contained in Section 3(r) of the Waqf Act, 1995.

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I have considered submissions made by the

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learned counsel for the parties.

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Sections 6 and 94 of the Waqf Act, 1995 reads as follows:-

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"6. Disputes regarding [auqaf].—

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(1) If any question arises whether a particular property specified as waqf property in the list of auqaf is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waqf, the Board or the mutawalli of the waqf or any person aggrieved may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:

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Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of auqaf.

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Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in subsection (6) of section 4.

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(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any waqf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

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(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

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(4) The list of auqaf shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

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(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in subsection (1)."

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" 94. Power to make application to the Tribunal in case of failure of mutawalli to discharge his duties.- (1) Where a mutawalli is under an obligation to perform any act which is recognized by Muslim law as pious, religious or charitable and the mutawalli fails to perform such

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act, the Board may apply to the Tribunal for an order directing the mutawalli to pay to the Board or to any person authorised by the Board in this behalf the amount necessary for the performance of such act.

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(2) Where a mutawalli is under an obligation to discharge any other duties imposed on him under waqf and the mutawalli wilfully fails to discharge such duties, the Board or any person interested in the waqf may make an application to the Tribunal and the Tribunal may pass such order thereon as it thinks fit."

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The suit property lies in Khazi Mohalla extension,

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Bhadravathi and the plaintiffs claim to be permanent residents of Khazi Mohalla and the property in question is apparently claimed to be notified in terms of the Notification dated 23.02.1965. The plaintiffs have claimed that despite their attempts as well as attempts of the Government functionaries, steps are not taken to ensure the maintenance and protection of the property of the Waqf. It was under those circumstances, the plaintiffs filed the suit.

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As rightly contended by the learned counsel for the defendant No.9, the legislature consciously amended Section 6 of the Waqf Act, 1995 to substitute the words "persons interested in the Waqf" by "aggrieved person". Therefore, it is doubtful whether the Tribunal has the power to grant the relief Nos.1, 2 and 3 at the instance of the plaintiffs as they are not "aggrieved persons" to seek for a declaration that the suit property is a ' Waqf property' under Section 6 of the Waqf Act, 1995. However, the plaintiffs have sought for the relief No.5, which is an attempt to protect and safeguard the suit schedule property. If the averments of the plaint are taken into consideration in totality, the gravamen of the case of the plaintiffs is that the suit properties are not safeguarded by the authorities responsible to do so and the present suit is only to ensure the safety and protection of the suit property. Therefore, the plaint cannot be thrown out at an initial stage of the suit.

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The contention of the defendant No.9 that the plaint does not disclose interest of the plaintiffs in the suit property, is not acceptable since the plaint bears out a semblance of an interest and it is for the plaintiffs to establish the same during the course of the evidence. The Tribunal has rightly held that these are all absolute questions of fact they need to be determined after a full fledged trial and was right in rejecting the application.

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There is no merit in the case and accordingly, this Revision Petition is dismissed, subject however to the observations made above.

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Sd/JUDGE

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NBM

Hindu Kote Garadi (R) v. Sheikh Budan Sab

Case brief

What is this about?

What did the court decide?

Hindu Kote Garadi (R) v. Sheikh Budan Sab

Case brief

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