Disposed

Sri. Gopalaiah v. the State of Karnataka

Karnataka HC21 Dec 2023WP/52348/2017

Case brief

AI extract

What is this about?

Petitioners challenged a 1965 notification declaring their institution a waqf. The High Court held that the dispute involves factual questions best decided by the Wakf Tribunal. It disposed of the writ petition directing the petitioners to approach the Tribunal, preserving existing practices and structures pending decision.

What did the court decide?

Petitioners directed to approach the Wakf Tribunal for reliefs; time spent in this petition to be excluded for limitation purposes.

Sri. Gopalaiah Vs the State of Karnataka — Karnataka HC (2023) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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WRIT PETITION NO.52348 OF 2017 (GM-WAKF)

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BETWEEN:

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1 . SRI. GOPALAIAH AGED ABOUT 74 YEARS, S/O. SRI. RANGAIAH, PRESIDENT

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2 . SRI. CHANDRAMURTHY AGED ABOUT 64 YEARS, S/O. SRI. PAPAIAH,

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SECRETARY,

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SRI. SRI. MADRAS SWAMIJI AVADHUTHA

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ASHRAMA (REG),

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KARADIGUDDA ARAMANE (PALACE) HONNAMACHANAHALLI, HULIYURDURGA HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT.

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...PETITIONERS

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(BY SRI. SHIVSHANKER, ADVOCATE FOR PETITIONER NO.1 SRI M. MANJUNATH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY,

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DEPT. OF REVENUE, VIDHANA SOUDHA, DR. AMBEDKAR ROAD, BANGALORE-560 001.

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KARANATAKA STATE BOARD OF WAKF BY ITS SECRETARY, 'DARUL WAKF', NO.6, CUNNINGHAM ROAD, BANGALORE-560 052.

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TUMUKUR DISTRICT WAQF OFFICE, HAZARATH MADAR SHAH (RA) CAMPUS, ASHOKA ROAD, TUMKURU-572 101.

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THE THASILDAR KUNIGAL TALUK, KUNIGAL, TUMKUR DISTRICT.

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…RESPONDENTS

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(BY SRI. RAHUL CARIAPPA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOS.1 AND 4;

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SMT. S.R.ANURADHA, SENIOR ADVOCATE FOR SMT. SWATHI ASHOK, ADVOCATE FOR RESPONDENT NO.2;

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NOTICE IS SERVED ON RESPONDENT NO.3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DATED 10.07.1965 PUBLISHED IN THE MYSORE GAZETTE DATED 15.02.1968 VIDE ANNEXURE-R BY THE RESPONDENT NO.2 IN SO FAR RELATING TO THE ENTRY AT SERIAL NO.219 UNDER THE CAPTION KUNIGAL TALUK RELATING TO THE RE.SY.NO.303 (OLD RE.SY.NO.82/3) MEASURING TO AN EXTENT OF 5

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ACRES AND 35 GUNTAS AND R.SY.NO.304 (OLD RE.SY.NO.82/4) MEASURING TO AN EXTENT OF 6 ACRES AND 04 GUNTAS OF LANDS SITUATED AT ARAMANE (PALACE) HONNAMCAHNAHALLI, VILLAGE, HULIYURUDURGA HOBLI, KUNIGAL TALUK, TUMAKURU DISTRICT.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 11.10.2023 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioners have sought for a writ in the nature of certiorari to quash the notification dated 10.07.1965 published in the Mysore Gazette dated 15.02.1968 by the respondent No.2, in so far as it relates to the entry at Sl. No.219 regarding lands bearing Re. Sy. No.303 (old Re.Sy. No.82/3) measuring 05 acres 35 guntas and Re. Sy. No.304 (old Re. Sy. No.82/4) measuring 06 acres 04 guntas of land, situate at Aramane Honnamachanahalli village, Huliyurdurga hobli, Kunigal Taluk, Tumakuru District.

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The petitioners contend that they are the Trustees of a public charitable Trust named Sri Sri Sri

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Madras Swamiji Avadhootha Ashrama (for short, ‘Ashrama’ or ‘Trust’ or ‘Mutt’ or ‘Institution’) which was constituted on 03.07.1995 at Karadigudda village, Aramane Honnamachanahalli, Huliyurdurga Hobli, Kunigal Taluk, Tumakuru District, by the Swamiji, namely, Sri Syed Masthansha Khadri, who succeeded as the third Peetadhipathi of the Ashrama, being the disciple of Sri Hazarath Sayed Ghouse Mohiddin Peer Shah Khadri @ Madras Swamiji. The said Peethadhipathi along with his followers aimed to establish educational institutions based on secular principles to meet the needs and requirements of the locals and to carry on other cultural activities allied with the field of education and also to carry on public charities. The petitioners claimed that the founder President of the Trust Sri Syed Masthan Shah Khadri left to his heavenly abode on 26.11.1995 and the Trust is presently managed by the Trustees.

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Sri Hazarath Sayed Ghouse Mohiuddin Peer

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Sha Khadri @ Madras Swamiji was a sufi saint who along with his disciples set foot in Karadigudda village, Huliyurdurga hobli, Kunigal Taluk in the year 1880. The people of the nearby Nidasale village purportedly became his followers and made all arrangements for his stay under a thatched roof shelter which later on became a Mutt which was popularly known as Madras Swamiji Mutt and Sri Hazarath Sayed Ghouse Mohiuddin Peer Sha Khadri became an Avadhutha. Smt. Siddalingamma / Sri Gurusiddalingamma who was a Lingayat Hindu became his disciple and started observing Hindu festivals especially Maha Shivaratri since the year 1906. The petitioners claimed that Avadhuta Madras Swamiji and Smt. Siddalingamma and their devotees built a temple for Sri Adhi Shakhti and Sri Shani Paramathma temple and installed Nagara kallus and Navagraha and also a Kalyani . The premises where

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the seer lived became an Ashrama of which Smt. Siddalingamma was the vahivatdar. After the death of the Avadhuta Sri Madras Swamiji, Smt. Siddalingamma became the second Peetadhipathi of the Mutt and continued the spiritual practices at the Mutt. The petitioners have placed on record a few pamphlets distributed amongst the public inviting them for the celebration of Maha Shivaratri from the year 1961 till the year 1976. They have also placed on record the pamphlets issued in the years 2014 and 2017. They claimed that Smt. Siddalingamma applied for re-grant of the lands bearing R.Sy. Nos.303 and 304 measuring 05 acres 35 guntas and 06 acres and 11 guntas respectively situate at Aramane, Honnamachanahalli village, which were re-granted to Smt.Siddalingamma by the Special Deputy Commissioner for Abolition of Inams, Bangalore, Kolar and Tumkur Districts in Case No.246/1957-58 on 16.12.1957. They claimed that

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consequent thereto, the name of Smt. Siddalingamma was entered in the revenue records. They contend that Smt. Siddalingamma had executed a Will dated 09.12.1954 bequeathing the property in favour of Sri Sayed Masthan Shah Khadri. Smt. Guru Siddalingamma died on 10.05.1966 whereupon Sri Syed Masthan Shah Khadhri Swamiji became the third Peetadhipathi of the Mutt who constituted a Trust on 03.07.1995 under the name of Sri Sri Sri Madras Swamiji Avadhutha Ashrama Trust for the maintenance and upkeep of the Mutt and its properties. The petitioners contend that Sri Sayed Masthan Shah Khadri died on 26.11.1995 and the Mutt is being managed by the Trustees.

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The petitioners further contend that the fourth successor Peetadhipathi is a Swamiji belonging to a Mutt in Hemavathy village, Madagasira Taluk, Hindupur District, Andhra Pradesh, who has been visiting the Mutt for spiritual sadhanas. They have also

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placed on record the photographs of the said successor Swamiji. They contended that some miscreants with an intention to grab the properties of the Ashrama interfered with the peaceful possession and enjoyment of the petitioners on 25.10.2016. The Trustees therefore filed a suit in O.S. No.535/2016 before the Principal Civil Judge and JMFC., Kunigal, for the relief of permanent injunction. The suit however came to be dismissed in view of a finding on a preliminary issue regarding jurisdiction by judgment and order dated 31.01.2017. This order was challenged by the petitioners herein in R.A No.41/2017 before the Senior Civil Judge and JMFC., Kunigal, which was pending as on the date of filing of this writ petition. They contended that in the written statement filed by defendant No.1 in the suit in O.S. No.535/2016 on 11.01.2017, it was claimed that the land in Sy. No.303 measuring 05 acres 14 guntas and Sy. No.304 measuring 05 acres 31 guntas totally

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measuring 11 acres 05 guntas situate at

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Honnamachanahalli, belonged to the Waqf Board in view of the notification dated 10.07.1965. The petitioners contend that they were unaware of this notification and came to know of it only when the written statement was filed by defendant No.1. They contend that no enquiry under Section 4(1) of the Wakf Act, 1954 was conducted before notifying the said property as a waqf. They also contend that the respondent No.2 has no authority or control as the Ashrama was a Hindu religious denomination and the lands in question were granted to Sri Guru Siddalingamma. They claimed that since several Hindu deities are installed on the lands in question by Sri Hazarath Sayed Ghouse Mohiuddin Peer Shah Khadri @ Sri Madras Swamiji, who was also celebrating various festivals such as Mahashivaratri, Sri Guruvandana etc., there was no dedication to the Allah.

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Consequently, the lands in question cannot be treated as a waqf property.

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The petitioners claimed that Sri

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Gurusiddalingamma was a kadim tenant in respect of the lands in question and on an application filed for regrant, they were granted to her. Therefore, it is contended that the lands in question could not have been notified as a waqf on 10.07.1965 without notice to Sri Guru Siddalingamma, who was then alive. They claimed that she was never served with any notice of enquiry and as such, the petitioners are entitled to question the validity of the said notification in view of the peculiar facts of this case. They contend that the Ashrama is neither a Mosque nor an Idgah, Imambara, Graveyard, Dargha, Khangah, Maqbara or any other religious Institution recognized by the Muslim community but is an Ashrama established by a Sufi saint. Consequently, they contend that the respondents

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have acted beyond their authority to divest the Ashrama of its properties and include them as the properties of the Waqf Board. They contend that on a request for information, the respondent No.2 issued an endorsement dated 09.08.2017 enclosing a copy of the Gazette notification dated 21.07.2017 but stated that there were no records relating to the property bearing Re.Sy. Nos.303 and 304. Thereafter, they approached the respondent No.3 seeking information about the lands bearing Sy. Nos.303 and 304 of Honnamachanahalli village. The respondent No.3 also issued an endorsement dated 02.08.2017 to the effect that no information relating to the land in aforesaid survey numbers was available as information sought for was prior to the establishment of the waqf office at Tumakuru. The petitioners contend that the Range Forest Officer, Kunigal Zone, Huliyurdurga, had granted permission on 21.08.2015 to cut a few identified trees

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and to plant saplings on the lands belonging to it. Likewise, the State Government through its Director, Department of Culture, had sanctioned a sum of Rs.10,00,000/- for the construction of a Cultural Center in terms of an order dated 12.01.2016. The petitioners have therefore filed this petition contending that the lands in question could not be treated as dedicated to God and therefore, not a waqf property and hence, they have challenged the notification dated 10.07.1965 published in the Mysore Gazette dated 15.02.1968 under Section 5 of the Wakf Act, 1954 issued by the respondent No.2 in so far as it relates to the entry at Sl. No.219, under the caption ‘KUNIGAL TALUK’ concerning the lands in question. They contend that since the notification is issued without proper notice to Sri Guru Siddalingamma, the question of the petitioners approaching the Tribunal under Section 55-F of the erstwhile Wakf Act, 1954 or under Section 88 of the

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Waqf Act, 1995, does not arise. They contend that the Ashrama being a religious denomination, a non-muslim cannot be interested in the Waqf and therefore, it is only a person belonging to Islam who can challenge the notification declaring that the properties belong to a Waqf.

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The petitioners have placed on record a copy of the order dated 29.12.2017 (Annexure ‘W’) passed by the respondent No.2 which discloses that the respondent No.2 had constituted a Managing Committee comprising of eleven members for the management of the Madras Swamy Mutt for a period of three years from 29.12.2017 or until further orders whichever was earlier. They also placed on record a copy of the order sheet maintained in private complaint in PCR No.1/2018 filed by the Trust before the Senior Civil Judge and JMFC., Kunigal, against some persons who purportedly committed offences punishable under Sections 463, 464, 466, 468, 420,

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120B read with Section 34 of the Indian Penal Code, (for short, ‘IPC’). They have also placed on record a letter dated 08.02.2018 addressed by the Trust to the respondent No.2 to withdraw the notification dated 29.12.2017 appointing a Managing Committee for management of the Madras Swamy Mutt and a pamphlet issued by the Trust inviting the general public to attend the 112^th Mahashivaratri celebration at Madras Swamiji Ashrama.

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The respondent No.2 - Board has filed statement of objections contending that the petition is not maintainable as the impugned notification is issued after following all the procedures contemplated under the Wakf Act, 1954. It is contended that any dispute relating to the notification has to be pursued before the Tribunal under Section 83 of the Waqf Act, 1995. It contends that since disputed questions of fact are involved, the present writ petition is not maintainable. It

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further contends that before 1954, Hazrath Syed Mohiuddin Peer Shah Khadri was a saint at the premises and after his death, his followers / devotees erected a tomb in the land in question. Thereafter, Smt. Siddalingamma became the vahivatdar of the said lands. Due to her old age, she could not look after the activities therein and hence, she executed a Will dated 09.12.1954 in favour of Hazrath Masthan Shah Khadri. It claimed that the waqf was surveyed and the lands in Sy. Nos.303 and 304 were notified and consequently, stood vested in the Waqf Board. It is admitted that there are three tombs in existence and muslim devotees offer fateha in that place. It is also contended that there was an Ashoor khana on the lands in question which was demolished and some people forcefully occupied the building opposite to Dargah which was built for musafir khana and is now converted into Madras Swamy Avadhutha Ashrama Trust office. They contend that the

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Tahasildar after verifying the documents and after conducting a spot inspection changed the entries in column Nos.9 and 12 of lands bearing Sy. No.303 and Sy. No.304 and entered the name of the respondent No.2 - Karnataka State Board of Waqf. It is further contended that when a survey was conducted under Section 4 of the Wakf Act, 1954, notice was issued to Sri Masthan Shah Khadri who was the Mutavalli of the property and after a survey and drawing up of the particulars of the waqf and after hearing the persons interested, the Survey Commissioner forwarded a report that the land in both the said survey numbers is a waqf property. Based on such report, a gazette notification was issued notifying the land in both the said survey numbers and the same is signed by the Mutavalli of the Dargah. Respondent No.2 has admitted that a pamphlet issued in 1962 disclosed that Maha Shivaratri was celebrated on 04.03.1962 and Ganda was celebrated on

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05.03.1962. It is contended that Ganda is celebrated by muslims where Urdu music and pathana are played. It is admitted that both Hindu and Muslim religious practices are performed in the premises. Thus, it is contended that the petitioners too are interested in the waqf and cannot claim themselves to be strangers and that Section 83 of the Waqf Act, 1995 does not apply to them. It is further contended that the pamphlet issued in 1962 shows the name of Sri Masthan Shah Khadri as the Mutawalli and before conducting a survey, notice was issued to the concerned person and therefore, the contention of the petitioners that no notice was issued to Smt. Siddalingamma is incorrect. It is contended that once an institution is notified as a waqf, it remains so until that is held otherwise by the Tribunal. Along with the statement of objections, respondent No.2 has also enclosed Anneuxre-R1 which is a copy of the notice dated 26.04.1963 addressed to Sri Syed Mastan Shah

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Khadri, Mathadipati of Madras Swamy Mutt. They have also enclosed Annexure-R2 which is the particulars of survey where it is shown that the nature of waqf is a ‘wakf by user’ for the support of the tomb of Sri Madras Swamy. It also refers to a reply issued by the Mutavalli on 08.05.1963. However, the said reply is not placed before the Court. It also refers to performance of annual urs and Shivaratri at the Mutt, expenses for which would be met by the devotees.

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The learned counsel for the petitioners while reiterating the contentions made in the writ petition, submitted that Smt. Siddalingamma was the grantee of the lands in question and was alive when the notification dated 10.07.1965 was purportedly issued by the respondent No.2. He contended that a perusal of the Will dated 09.12.1954 executed by Smt. Siddalingamma clearly disclosed that the Mutt was bequeathed to her by Sri Hazarat Syed Mastan Shah Khadri @ Madras

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Swamiji. He submitted that a survey of the waqf after issuing notice to the concerned was mandatory and since the same was not followed in the present case, a notification issued under Section 5 of the Wakf Act, 1954 is of no consequence. He submits that notwithstanding the alternate relief available to the petitioners before the Wakf Tribunal (for short, ‘the Tribunal’) under Section 85 of the Waqf Act, 1995, the petitioners are entitled to challenge the notification as the same is issued without following the due process of law and without complying the principles of natural justice. In this regard, he relied upon the following judgments:

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1. Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others [(1979) 2 SCC 468]; and

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2. Waqf Board, Rajasthan v. Jindal Saw Limited and others [2022 SCC OnLine SC 529].

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He further submitted that for an Institution to become a waqf, it is necessary that there should be a waqf deed

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and dedication for any purpose recognized by the Muslim law as pious, religious or charitable. He further contends that since the founder of the Ashrama did not dedicate it for any purpose recognized by Muslim law but on the contrary followed the Hindu way of life and also performed Muharram, it cannot be construed that the Ashrama was a waqf. He submitted that since the petitioners were strangers, they were entitled to challenge the impugned notification soon after it came to their knowledge and therefore, they need not approach the Wakf Tribunal but are entitled to approach this Court. In this regard, he relied upon the judgment of Andhra Pradesh High court in the case of B. Gowra

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Reddy and others v. Government of Andhra Pradesh and others [AIR 2002 AP 313].

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Learned counsel further relied upon the judgment of the Hon’ble Apex Court in the case of Salem Muslim Burial Ground Protection Committee

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v. State of Tamil Nadu and Others [ 2023 SCC

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OnLine SC 656] where it was held that "the alleged use of the suit land as burial ground prior to 1900 or 1867 is not sufficient to establish a wakf by user in the absence of evidence to show that it was so used. Thus, it cannot constitute a wakf by user also. The alleged recording of the suit land as a kabristan or as a burial ground is a misnomer or a misconstruction inasmuch as the suit land, if at all, came to be recorded as a rudrabhoomi which denotes Hindu cremation ground and not a burial ground or a kabristan. Therefore, the land in question was not proved to be a wakf land by long usage also". It was further held that:

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"32. A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising thereto and the

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submission of the report to the State Government and to the Board. Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non. In the case at hand, there is no material or evidence on record that before issuing notification under Section 5 of the Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act. In the absence of such a material, the mere issuance of the notification under Section 5 of the Act would not constitute a valid wakf in respect of the suit land. Therefore, the notification dated 29.04.1959 is not a conclusive proof of the fact that the suit land is a wakf property. It is for this reason probably that the appellant Committee had never pressed the said notification into service up till 1999.”

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He also relied upon the judgment of the Hon’ble Apex Court in the case of Commissioner of Income Tax and Others v. Chhabil Dass Agarwal [(2014) 1 SCC 603] that the remedy of approaching the High Court under Article 226 of the Constitution of India is available to challenge an action which is done in violation of the

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fundamental rights or in violation of the principles of natural justice.

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He further contended that under Section 6(1) of the Waqf Act, 1995 it was only the Board or the mutawalli of the wakf or any person interested therein who could file a suit in a civil Court of competent jurisdiction. Therefore, the right, title and interest of a stranger, a non-muslim in a property notified as a wakf cannot be jeopardised merely because that property is included in the list of wakfs. Hence, the limitation prescribed by the proviso to Section 6(1) of the Wakf Act, 1954 is inapplicable to him. In this regard, he referred to the judgment of the Hon’ble Apex Court in the case of Board of Muslim Wakfs, Rajasthan (supra) as well as the judgment of the Hon’ble Apex Court in Ramesh Gobindram (Dead) Through LRs. v. Sugra Humayun Mirza Wakf [(2010) 8 SCC 726] .

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Lastly, he relied upon the judgment of the Hon’ble Apex Court in the case of State of Andhra Pradesh (Now State of Telangana) v. A.P. State Wakf Board and others [2022 Live Law (SC) 136] and contended that the Wakf Board has the power to determine the nature of the property under Section 32(2)(n) of the Waqf Act, 1995 and after complying with the procedure prescribed in Section 40 of the said Act. He, therefore, submits that the question whether the Institution is a waqf or not could be left to be decided by the respondent No.2 rather than driving the petitioners to the Tribunal.

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Per contra, the learned senior counsel

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representing the respondent No.2 submitted that the writ petition is liable to be rejected in limine in view of an efficacious and alternative remedy provided under Section 85 of the Waqf Act, 1995. She relied upon the judgment of the Hon’ble Apex Court in the case of

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Rashid Wali Beg v. Farid Pindari and Others [(2022) 4 SCC 414] and contended that the Apex Court had while considering the scope of bar of jurisdiction of civil Court under the Waqf Act, 1995 as amended by the Wakf (Amendment) Act, 2013 has held as follows:

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“54. In sum and substance, the Act makes a reference, to 3 types of remedies, namely that of a suit, application or appeal before the Tribunal, in respect of the following matters:

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54.1 Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) & 7(1)].

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54.2 A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)].

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54.3 Challenge to the settlement of a scheme for management of the waqf or any

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direction issued in relation to such management [Section 32(3)].

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54.4 Challenge to an order for restitution/restoration of the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)].

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54.5 Conditional attachment of the property of a mutawalli or any other person [Section 35(1)].

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54.6 Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)].

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54.7 Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)].

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54.8 Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)].

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54.9 Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)].

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54.10 Challenge to an order for delivery of possession of a property issued by the Collector [Section 52(4)].

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54.11 Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property [Section 54(3)].

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54.12 Challenge to the removal of mutawalli from office [Section 64(4)].

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54.13 Challenge to an order superseding the Committee of Management [Section 67(4)].

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54.14 Challenge to the removal of a member of the Committee of Management [Section 67(6)].

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54.15 Challenge to any scheme framed by the Board for the administration of waqf, containing a provision for the removal of the mutawalli and the appointment of the person next in hereditary succession [Section 69(3)].

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54.16 Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)].

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54.17 Any dispute, question or other matter relating to a waqf [Section 83(1)].

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54.18 Any dispute, question or other matter relating to a waqf property [Section 83(1)].

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54.19 Eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property [Section 83(1) after its amendment under Act 27 of 2013].

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54.20 Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].”

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The learned senior counsel for respondent No.2 further contended that a survey of Sri Madras Swamy Mutt was conducted on 08.05.1963 and the person in charge of the Mutt had furnished particulars of

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the Mutt consequent to which a notification was issued. She has placed on record a copy of the notice dated 26.04.1963 and particulars of the report made by the Survey Commissioner. She submitted that in view of the survey being conducted under Section 4 of the Wakf Act, 1954 in the presence of Hazrath Syed Ghouse Mohiuddin Peershah Khadri, the only remedy for the petitioners is to approach the Tribunal under Section 85 of the Wakf Act, 1954. She contended that once an Institution is notified as a Waqf, it always remains so. In this regard, she relied upon the judgment of the Hon'ble Apex Court in the case of Sayyed Ali and others v. A.P. Wakf Board, Hyderabad and others [(1998) 2 SCC 642] , where it was held as follows:

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“13. Lastly, it was contended by the learned counsel for the appellant that once patta, under the Inams Act, having been granted in favour of Mokhasadars, it was not open to the High Court to hold that the property was a wakf property. In other words, the argument seems to proceed on the basis

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that once patta has been granted under the Inams Act to Mokhasadars, the land has ceased to be a wakf property. It may be stated that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as wakf would always retain its character as a wakf. In other words, once a wakf always a wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as wakf. After a wakf has been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the wakf property. We accordingly find no substance in the last argument of the learned counsel for the appellant.”

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She further contended that once the Institution is notified as a waqf, any person interested in the waqf is entitled to challenge it within a period of one year and since the same not having been done by the

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petitioners since the year 1963, this petition is also liable to be rejected as barred by time. She relied upon the judgment of this Court in the case of Karnataka

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Board of Wakfs v. Hazrath Attulla Shah Dhargah

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[ILR 1992 KAR 586] , where it was held as follows:

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“ 7. Now the second and third respondents, who lay claim to the said land, are Muslims. The question is: Does the special rule of limitation laid down in the first proviso to Section 6(1) apply to them. It will be noted that Section 6(1) says that if any question arises whether a particular property specified as Wakf property in a list of Wakfs published under sub-section(2) of Section 5 is Wakf property or not, the Board or the mutawalli of the Wakf or "any person interested therein" may institute a suit in a Civil Court of competent jurisdiction for the decision of the question and the decision of the Civil Court in respect of such matter shall be final. The proviso to Section 6(1) states that no such suit shall be entertained by the Civil Court after expiry of one year from the date of the publication of the list of Wakfs under Sub-section(2) of Section 5. Clearly, therefore, this special Rule of

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Limitation is applicable to a suit filed by "any person interested therein".

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8. The Supreme Court held that the word 'therein' refers to the Wakf and not to Wakf property (see paragraph 33 quoted above). What we may consider, therefore, is whether the second and third respondents are persons interested in the Wakf. By reason of Section 3(h) a person is interested in a Wakf if he has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqhara, graveyard or in any religious or charitable institution under the Wakf. Every person who professes Islam has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf. It is not the case of the second or third respondent that they are not Muslims or are not so entitled. It must, therefore, be held that, upon a plain reading of the relevant provisions of the Wakf Act, that the second and third respondents are persons interested in the Wakf and to them the special period of limitation prescribed by the first proviso to Section 6(1) is applicable.”

¶137

¶138

The learned senior counsel for respondent No.2 further contended that the question whether the institution was a waqf or not and whether it was dedicated to the Almighty or not, has to be proved by the petitioners before the Tribunal. She relied upon the judgment of the Hon'ble Apex Court in the case of

¶139

Union of India and others v. Vasavi Cooperative Housing Society Limited and others [(2014) 2 SCC

¶140

269] , where it was held as follows:

¶141

“15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.

¶142

16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the

¶143

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issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by the defendants in support of their case probabilises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration”

¶145

She contended that even if petitioners claimed that they were observing some customs or other practices that in itself would not change the nature of waqf and in this regard, she relied upon the judgment of the Hon'ble Apex Court in the case of Aliyathammuda Beethathebiyyappura Pookoya and another v. Pattakal Cheriyakoya and Others [AIR 2020 SC 2892], where it was held as follows:

¶146

“22. It can be concluded from the above discussion that a person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif intended for the office to devolve through a practice of hereditary succession. In the absence of any express directions in the waqfnama to this effect, the claimant would have to

¶147

¶148

show that such practice has been in existence throughout the history of the trust, and not merely for a few generations, such that the waqif’s intention that the office should be hereditary can be presumed. The burden of proof would be higher with respect to a public waqf, such as the suit waqf in the instant case, than a family trust.

¶149

23. We may now consider what the principles governing the establishment of a custom under Muslim law are. It is a settled position of law that a custom in order to be legal and binding must be certain, reasonable and acted upon in practice for a long period with such invariability and continuity that it has become the established governing rule in a community by common consent. It is equally settled that it is incumbent upon the party relying on the custom to plead and prove it.

¶150

In this regard, we may fruitfully refer to the following observations from Fyzee’s Outlines of Muhammedan Law (5^th edn., 2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):

¶151

“First, the burden lies heavily upon the person who asserts to plead the custom relied upon and prove clearly that he is governed by custom and not by the general law. Secondly, as to the proof of custom, there is in law no presumption in favour of

¶152

¶153

custom and the custom must be ancient, certain and not opposed to public policy.”

¶154

(emphasis supplied)

¶155

The leading case with respect to the requirements of proving a custom is the decision of the Privy Council in H.H. Mir Abdul Hussein Khan v. Bibi Sona Dero, AIR 1917 PC 181. Relying upon its previous decision in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, (1871-72) 14 Moo IA 570, the Council observed as follows:

¶156

It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable: and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.”

¶157

(emphasis supplied)”

¶158

She further contended that the proceedings

¶159

under Section 4 of the Wakf Act, 1954 merged with a notification under Section 5(2) of the said Act and hence, the petitioners have no locus standi to challenge

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¶161

the notification before this Court. She relied upon the judgment of the Hon'ble Apex Court in the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal [(2017) 13 SCC 174] . She therefore, contended that this is not a fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India.

¶162

In reply, the learned counsel for the petitioners submitted that the Hon'ble Apex Court in the case of Salem Muslim Burial Ground Protection Committee (supra) held that the notification under Section 5 of the Wakf Act, 1954 and the Waqf Act, 1995 declaring the list of wakfs shall be published only after completion of the process as laid down under Section 4 of the said Acts, which provides for two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Wakf Board. Therefore, conducting of the surveys before declaring a property to be wakf is sine qua non .

¶163

¶164

It is contended that in the absence of any material, mere issuance of a notification under Section 5 of the Wakf Act, 1954 would not constitute a valid wakf. He also relied upon the judgment of the Hon'ble Apex Court in Waqf Board, Rajasthan (supra), where it has held as follows:

¶165

“18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.”

¶166

This Court appointed a Commissioner to visit

¶167

the Mutt in question on 24.09.2023 and report the structures that exist on the land. Accordingly, the Commissioner has reported that an entrance arch, an Adishakti temple, three Nagara kallus and one bust of a bull ( Basavanna ) under a Banyan tree canopy, two Mangalore tiled rooms with a common compound where

¶168

¶169

the tombs of Madras Swamiji and Smt. Gurulingamma exist. The second tiled house had two Samadhis in the main room and one Samadhi in the sub-room of the second room. The Commissioner noted that Sri Nagooru Nagapatada Swamiji @ Saint Syed Mastan Shah Qadri and Smt.Bommamma were buried there. Between the two rooms, a lingam shaped structure existed on a raised platform which was being worshipped and images of Lord Shiva, Sri Guru Siddalingamma, Sri Madras Swamy and Sri Nagooru Nagapatada Swamiji were placed on the tiles. On the right side of the flag post, the Ashram of Sri Sri Guru Siddalingamma existed which comprised of a prayer hall etc. Besides this, there were neem and peepal trees which were smeared with vermillion and also a wood apple tree and next to it was a water tank which was erected by the State Government during the year 2015-16. On the western side of the water tank, there lay a Mantapa where a

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photograph of Lord Shanimahatma was placed and a red sanders tree lay next to this building as people believed that Lord Shanimahatma has its abode in the tree. A kalyani also existed nearby.

¶172

I have considered the submissions made by the learned counsel for the petitioners and the learned senior counsel for the respondent No.2 and perused the material on record.

¶173

The earliest document which throws light on how the Institution in question was administered is the Will dated 09.12.1954 executed by Smt. Siddalingamma in favour of Hazrat Syed Mastan Shah Khadri. It is stated therein that the State Government in order to encourage the activities in the Mutt had granted the lands in question and the premium for such grant was paid by Smt. Siddalingamma by selling away her ornaments. She also claimed that she constructed a Mutt building, dug a well in the lands in question and

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¶175

installed a deity therein and was performing Mahashivaratri and Muharram every year. It is also mentioned therein that the founder Sri Madras Swamiji had entrusted the Mutt to Smt. Siddalingamma in terms of his Will dated 12.02.1945. It also refers to a respected devotee Sri K.T. Ramaswamy, who accompanied Smt. Siddalingamma to Gerumath to meet Sri Hazrath Syed Masthan Shah Khadri and requested him to take over the Mutt as a successor and subsequently, Sri Hazrath Syed Masthan Shah Khadri was involved in all the activities of the Mutt and was accompanying Smt. Siddalingamma and visiting rural areas and constructed a mausoleum for Sri Madras Swamiji. It is also mentioned that there were devotees of the Mutt in several villages of Mandya District, Bengaluru District and Tumakuru District. It is also found that all the religious activities in the Mutt were carried on out of the contributions made by the devotees

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as well as the income generated from the lands granted to the Mutt. It is also mentioned that all the religious activities in the Mutt were carried on without any discrimination on the basis of caste, religion or faith. She ordained that all the religious activities in the Mutt should be carried on by the people belonging to Holeya caste, though she did not have any objection for involvement of other persons. She further ordained that after her death, her body should be handed over to her muslim devotees who shall cremate her in accordance with the Mohammedan principles adjacent to the gori of Madras Swamiji. She also ordained that nobody should object for burying the bodies of the parents of Sri K.T. Ramaswamy and transferred the lands bearing Sy. No.82/3 measuring 05 acres 35 guntas and Sy. No.82/4 measuring 06 acres 04 guntas, which were granted to her, to the Mutt.

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Therefore it is evident that this Mutt was an unique Institution where Hindus and Muslims congregated to achieve eternal bliss through their revered Swamijis who belonged to both Hindu and Muslim communities. It is also evident that devotees were not only Hindus but also Mohammedans and both Mahashivaratri and Muharram were celebrated in the Mutt with equal fervour. This is evident from the report of the Court Commissioner as well as hand bills which are enclosed along with the writ petition. There are documentary evidence to indicate that these activities were performed continuously for more than 60 to 70 years. Smt. Siddalingamma passed away on 10.05.1966 and in view of a Will dated 09.12.1954 executed by her, Sri Hazrath Syed Masthan Shah Khadri succeeded as the third Peetadhipathi of the Ashram. His name was entered in the revenue records of the subject lands from the years 1968-69 to 2001-02 and the R.T.C in respect

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¶181

of the said lands for the year 2017-18 stood in his name. Hazrath Syed Masthan Shah Khadri founded the Trust in the name of Sri Sri Sri Madras Swamiji Avadhoota Ashrama along with many other locals in terms of a deed of Trust dated 03.07.1995. Sri Sri Syed Masthan Shah Khadri left to his heavenly abode on 26.11.1995. The petitioners claimed that the successor of the Mutt is a Saint in Hemavathi village, Madagasira Taluk, Hindupur District.

¶182

A perusal of the reliefs sought for in the writ petition discloses that the petitioners have sought for a writ in the nature of certiorari to quash a notification dated 10.07.1965 published in the Mysore Gazette dated 15.02.1968 by the respondent No.2 in so far as it relates to the lands in Re.Sy. Nos.303 and 304 measuring to an extent of 05 acres 35 guntas and 06 acres 04 guntas situate at Aramane, Honnamachanahalli village, Huliyurdurga Hobli, Kunigal Taluk.

¶183

¶184

As rightly contended by the learned senior counsel for the respondent No.2, once an Institution is notified as a waqf, it continues to be so until set aside or declared by the Tribunal as held by the Hon'ble Apex Court in the case of Sayyed Ali and Others v. A.P. Wakf Board, Hyderabad and Others [(1998) 2 SCC

¶185

642] and in the case of Rashid Wali Beg (supra) . The contention that the petitioners being Hindus are not persons interested in the Waqf and have no locus standi to file an appeal before the Tribunal is liable to be rejected in view of the law laid down in the case of Madanuri Sri Rama Chandra Murthy (supra). Therefore, the words “ any person interested in the wakf and its property ” in the context of the Mutt in question includes “any person who is a disciple or a devotee of the Mutt” which includes the petitioners. This apart, the respondent No.1 has constituted a Managing Committee comprising of persons professing both Hindu and Muslim

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faith and therefore, they too are deemed to be persons interested in the affairs of the Mutt and are entitled to challenge the Mutt being notified as a wakf.

¶188

It is trite that a mere notification declaring an Institution as a waqf is not conclusive proof that the Institution is dedicated to God. The respondents are bound to establish that all the procedures contemplated under the Wakf Act, 1954 were followed before notifying an Institution as a waqf. Under sub-section (3) of Section 4 of the Wakf Act, 1954, the Survey Commissioner was required to conduct a survey of the wakf properties in the State as on the date of commencement of the said Act and submit a report to the State Government. Under sub-section (5) of Section 4 of the Wakf Act, 1954, if any dispute arose whether a particular wakf is a Shia wakf or a Sunni wakf and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed.

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Thereafter, the State Government after receipt of the report under sub-section (3) of Section 4 of the Wakf Act, 1954 shall forward a copy of the same to the Board who shall examine the report forwarded to it and publish it in the official gazette. It is seen from the survey conducted by the respondent No.2 (Annexure R2) that a reply was given by the Muttawalli of the Madras Swamiji Mutt. It is not known whether that reply was ever considered and also whether the respondent No.2 had examined the report before publishing it in the official Gazette. It is not seriously disputed that Smt.Siddalingamma was the Mathadhipathi of the Mutt until 10.05.1966, when she passed away. There is no reference that a notice was issued to her or that a survey was conducted in her presence. There is also no reference that the report of the survey officer was placed before the State Government as required under Section 5 of the Wakf Act, 1954. There is also no

¶191

¶192

reference to any contribution made by the Mutt to the respondents. There is also no reference to any power exercised by the respondents until 10.05.1966.

¶193

The ground on which the impugned notification is sought to be challenged is that there was no enquiry conducted by the respondent No.2. Any dispute regarding the notification of an Institution as a wakf had to be challenged within one year from the date of publication by the Board or the Muttavalli of the wakf or any person interested therein. However, Explanation was inserted to Section 6 of the Wakf Act, 1954 by Act No.69 of 1984, by which it was stipulated that the expression “any person interested therein”, occurring in sub-section (1) of Section 6 and in sub-section (1) of Section 6-A shall, in relation to any property specified as wakf property in a list of wakfs published, under subsection (2) of Section 5, after the commencement of the Wakf (Amendment) Act, 1984, shall include every

¶194

¶195

person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant enquiry under Section 4. Therefore, the petitioners cannot contend that they being non-muslims cannot challenge the notification issued under Section 5 of the Wakf Act, 1954.

¶196

The respondent No.2 has placed on record certain documents, which disclose that notice of a survey was served upon some person who presumably was the Manager of the Mutt and the survey particulars disclose that the Wakf deed was a Will registered as document No.10/1954-55 dated 16.12.1954 in the office of Sub-Registrar, Kunigal and was shown as a “ wakf by user for the support of the Tomb of Sri Syed Masthan Sha Khadri @ Madras Swami” and bears a reference to

¶197

¶198

“ the performance of annual Urs during Shivaratri Day by Mohammedans on the next day of Shivaratri” .

¶199

Therefore, the question whether the Institution was a waqf or a Trust or a charitable institution has to be considered by the Tribunal under Section 85 of the Waqf Act, 1995 or by the respondent No.2 in accordance with Sections 32(2)(n) and 40 of the Waqf Act, 1995.

¶200

At the same time, this Court cannot gloss over the need to maintain the uniqueness of the Institution where Sufi saints gathered for a spiritual sojourn regardless of religious beliefs. The respondent No.2 has recognized the uniqueness of the Institution and has therefore, appointed a Managing committee comprised of not only Hindus but also Mohammedans.

¶201

In the present case, the report of the Commissioner appointed by this Court gives an impression that Hindu deities were worshipped in the

¶202

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Mutt by the Madras Swamiji who incidentally belonged to Islam and this tradition has continued over the years. It is Institutions of this type which strengthen the secular fabric of the Country fostering communal harmony and therefore, needs to be preserved for posterity.

¶204

In that view of the matter, the Writ Petition is disposed off directing the petitioners to approach the Waqf Tribunal for suitable reliefs. The time consumed in pursuing this petition shall be deducted while calculating limitation applicable to any proceeding that may be initiated by the petitioners before the Waqf Tribunal. All the contentions of the petitioners, namely, (i) that there was no survey conducted as prescribed under Section 4 of the Wakf Act, 1954; (ii) that the procedure prescribed under Section 4(3) of the Wakf Act, 1954 was not complied; (iii) that there was no dedication of the lands in question to the Waqf; (iv) that the waqf deed namely,

¶205

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the Will of Smt. Siddalingamma, did not constitute a dedication; (v) that the Institution in question is not capable of being treated as a Waqf; and (vi) that the institution is a public charitable Trust and not a wakf etc. are all questions that may fall for consideration before the Waqf Tribunal. The Tribunal may either decide the said questions or seek a report from the respondent No.2 under Section 32(2)(n) of the Waqf Act, 1995. The Tribunal shall also decide whether the Managing Committee appointed by the respondent No.2 to administer the Mutt should be continued or not.

¶207

In the meantime, in order to continue the best practices in the Mutt, in view of its observance for more than a century, the respondent Nos.1 and 2 shall chronicle all the rituals, practices, ceremonies, traditions, festivities etc. performed in the Mutt and place the same before the Waqf Tribunal. It is made clear that until the Waqf Tribunal decides the issue that

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may be raised by the petitioners, the rituals, practices, ceremonies, traditions, festivities which are observed in the Mutt shall continue without any disturbance by the respondent No.1 or any other person. Likewise, all the respondents shall take all the required steps to ensure that the religious structures existing on the lands in question are preserved. The persons who are managing the Mutt shall keep the Principal District Judge, Tumakuru, duly informed of all meetings and all decisions taken so as to ensure that the Mutt and all the practices observed there are preserved. The Tribunal may pass suitable orders for preservation of the institution and continuance of the practices at the institution.

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Sd/JUDGE

¶211

sma

Sri. Gopalaiah v. the State of Karnataka

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Sri. Gopalaiah v. the State of Karnataka

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