Dismissed

Waliallah S/O Allabaksh Yadwad v. Karnataka State Board of Auqaf

Karnataka HC4 Sept 2024WP/104387/2024

Case brief

AI extract

What is this about?

Petitioner challenged a Karnataka State Board of Auqaf order merging two wakfs via writ petition. Respondents objected that disputes relating to wakfs lie before the Wakf Tribunal. Relying on Supreme Court authority on the Tribunal's wide jurisdiction, the High Court held the writ petition was not maintainable and dismissed it.

What did the court decide?

None granted; writ petition dismissed as not maintainable with liberty to approach the Wakf Tribunal, contentions kept open.

Waliallah S/O Allabaksh Yadwad Vs Karnataka State… — Writ and Judicial Review | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12727 WP No. 104387 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION NO. 104387 OF 2024 (GM-WAKF)

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BETWEEN:

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WALIALLAH S/O. ALLABAKSH YADWAD, AGE: 68 YEARS, OCC: PENSIONER, EX-SECRETARY OF GAIBUSHA VALI MAKAN (SUNNI) WAKF, R/O. 57, GOULIGALLI, BANDIWAD BASE, HUBBALLI-580020.

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…PETITIONER

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(BY SRI. V.M. SHEELVANT, ADVOCATE)

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AND:

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KARNATAKA STATE BOARD OF AUQAF, DARUL AUQAF, CUNNINGHAM ROAD, BENGALURU-560052, REPRESENTED BY ITS CHAIRMAN, ANWAR BASHA.

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THE CHIEF EXECUTIVE OFFICER, KARNATAKA STATE BOARD OF AUQAF, DARUL AUQAF NO.6, CUNNINGHAM ROAD, BENGALURU-560052.

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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“GAIBUSHA VALI MAKAN (SUNNI), BANDIWAD BASE, HUBBALLI, DHARWAD DISTRICT, BY ITS ADMINISTRATOR, SHRI SIRAJAHMED M. HUDADMANI, PROJECT COORDINATOR RMSA, DDPI OFFICE, DHARWAD-580002.

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…RESPONDENTS

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(BY SRI. B. MOHAMMAD ALI, ADV. FOR R1 & R2; SRI. SADIQ N. GOODWALA, ADV. FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION AND QUASH THE ORDER OF THE WAKF BOARD BEARING NO. KSBA/SOA/23/DHD/21-22 DATED 2/7/2024 PRODUCED AT ANNEXURE-J IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the petitioner’s counsel and also the counsel appearing for the respondents regarding Jurisdiction.

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The respondents raised objections that the order impugned, which is challenged before this Court cannot be entertained in a writ petition and the petitioner has to approach the Wakf Tribunal as the issue is with regard to the Wakf.

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The counsel for the respondent relying upon the judgment of the Hon’ble Supreme Court Civil Appellate Jurisdiction in Civil Appeal No.5297/2004 (Board of Wakf, West Bengal Vs. Anis Fatma Begum and Anr.), brought to the notice of this Court paragraphs No.14 and 16 of the said judgment, which is extracted herein below:

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Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to

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a Wakf or Wakf property. The words “any dispute, question or other matters relating to a Wakf or Wakf property” are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word ‘Wakf’ has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

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1 6. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf

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Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates.

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The counsel appearing for the petitioner would vehemently contend that, the order passed by the respondents is without any authority or jurisdiction and the same can be questioned before this Court only in a writ petition. It is contended that there is no dispute with regard to the Wakf property is concerned and here is a dispute with regard to merging of two Wakfs by the respondents and hence the writ petition is maintainable. The counsel in support of his arguments also relied upon the judgment of the Hon’ble Supreme Court reported in 2010(8) SCC 726 in the case of Ramesh Gobindram (Dead) through LRS Vs. Surga

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Humayun Mirza Wakf and brought to the notice of this Court paragraphs No.20 and 21 of the said judgment. Paragraphs No.20 and 21 also extracted herein below:

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From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property.

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We may at this stage usefully digress from the core issue only to highlight the fact that Sections 6(1) and the proviso thereto has fallen for interpretation of this Court on a few occasions. In Board of Muslim Wakfs Rajasthan

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v. Radha Kishan and Ors. (1979) 2 SCC 468 one of the questions that fell for determination was, who are the parties that could be taken to be concerned in a proceeding under subsection(1) of Section 6 of the Act. This Court held that under Section 6(1) the Board or the mutawalli of the wakf or any person interested therein is entitled to file a suit but the word "therein" following the expression "any person interested" must necessarily refer to the word "wakf" which immediately precedes it. The object underlying the proviso observed, this Court was to confine the power to file a suit to the mutawalli and persons interested in the Wakf. It did not extend to persons who are not persons interested in the wakf. Consequently the right, title and interest of a stranger, (a non-Muslim), to the wakf in a property cannot be put in jeopardy merely because that property is included in the list of wakfs. The special rule of limitation prescribed by the proviso to Section 6(1) was itself held inapplicable to him and a suit for declaration of title to any property included in the list of wakfs held maintainable even after the expiry of the period of one year.

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The counsel also relies upon the order passed by the High Court of Calcutta in MAT No.901/2016 (The Board of Auqaf, West Bengal Vs. Golam Mustapha & Another) and brought to the notice of this Court page No.12, wherein the Calcutta High Court discussed that, for resolving any dispute which is involved in the appeal, the Court is required to consider the problem from a different angle together. Section 83 of the Wakf Act provides for constitution of Wakf Tribunal for discharging three types of judicial functions and a discussion was also made with regard to Section 6, Section 7 and Section 32 (3) of the Wakf Act and the Tribunal was not vested with any supervisory jurisdiction over the Board of Wakf or any other authority created under the said Act. The Tribunal cannot assume supervisory jurisdiction to pass any direction upon the Board of Wakf and/or any other authority under the said Act. As such, jurisdiction which was not vested either directly or indirectly upon the Tribunal by the said

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Act cannot be assumed by the Tribunal by itself. Since the supervisory jurisdiction is not vested with the Tribunal, the Tribunal cannot assume jurisdictions to pass any direction upon the Board of Wakf to dispose of any pending application before it. It is also held that, by virtue of its supervisory jurisdiction which it enjoys under Articles 226 and/or 227 of the Constitution of India over the Courts and Tribunals subordinate to it, can not only entertain such writ petition, but also can pass appropriate direction therein.

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Having considered the very contentions of the petitioner’s counsel and also the counsel appearing for the respondents and also on perusal of the writ petition, the relief is sought with regard to quashing of the order of the Wakf Board bearing No.KSBA/SOA/23/DHD/21-22 dated 02.07.2024, merging of two Wakf Boards. The counsel for the petitioner also vehemently contended that the same

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has to be urged before this Court only and there is no any other efficacious remedy.

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Having considered the objections raised by the respondents and also on looking into the principles laid down in the judgments referred supra by the petitioner’s counsel as well as the respondents’ counsel, the judgment of the Hon’ble Apex Court in the case of Board of Wakf, West Bengal Vs. Anis Fatma Begum and Another in Civil Appeal No.5297/2004, and having taken note of the discussion made by the Hon’ble Apex Court in paragraph 14, it is very clear that the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be

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decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. The Hon’ble Apex

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Court in paragraph 16 also discussed, even if no order has been passed, under such circumstance also the party can approach the Wakf Tribunal against the order passed under the Act or in our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property.

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Now the question is not with regard to any Wakf property dispute. It is a dispute with regard to the very Wakf is concerned. In the case on hand, the decision of the Wakf Board is challenged before this Court with regard to the merging of two Wakf

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Boards. When such being the case and when the dispute is with regard to the Wakf and the same is also in respect of the administration is concerned and also when the petitioner’s counsel vehemently contend that the documents are forged and decision is taken, if there is any such forging of the documents, the same can be agitated before the Wakf Tribunal. When the jurisdiction to decide any dispute with regard to the Wakf or Wakf property is given to the Wakf Tribunal, the very contention of the petitioner that this Court can decide the issue in nature by exercising the power under Article 226 of the Constitution of India cannot be accepted. No doubt the judgment of the Calcutta High Court is with regard to a decision taken by the Wakf Tribunal with regard to the supervisory jurisdiction is concerned, but here is a case of decision is not taken by the Wakf Tribunal, but the decision is taken by the respondents by merging of two Wakf Boards and the Wakf Tribunal has not exercised such powers.

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No doubt the counsel for the petitioner has relied upon the judgment of the Hon’ble Apex Court in the case of Ramesh Gobindram (Dead) through LRS Vs. Surga Humayun Mirza Wakf reported in (2010) 8 SCC 726, wherein also a discussion was made with regard to the Section 6(1), (5), 7(1), (5), 85, 83, 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 and 73 of the Wakf Act, with regard to the exercising of jurisdiction of Wakf Tribunal Vis-à-vis Civil Court, matters in respect of which jurisdiction of civil court barred, with regard to the Eviction Suit against the

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tenants of Wakf property. Here is a case of questioning the order passed by the respondents, merging of the two Wakf and the very contention of the petitioner’s counsel is that the respondents are not having any authority to pass such an order. The said ground also can be urged before the Wakf Tribunal when the dispute is with regard to the Wakf. The Hon’ble Apex Court in a case of Anis Fatma Begum ’s case (supra) categorically discussed in

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paragraph No.14 of the judgment with regard to the dispute of Wakf or Wakf property and held that the same can be urged before the Wakf Tribunal.

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When such being the case, the question raised by the respondents is that this Court cannot decide the issue of the similar nature, unless the petitioner approaches the Wakf Tribunal, with regard to the dispute of Wakf. Hence there is force in the contention of the respondents that this Court has no jurisdiction to entertain the writ petition and the same has to be urged before the Wakf Tribunal.

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Hence, I am of the opinion that this Court has no jurisdiction to entertain the writ petition when the Wakf Tribunal is constituted to decide the dispute with regard to the Wakf is concerned. Hence the writ petition is not maintainable as this Court has no jurisdiction to entertain the writ petition. The petitioner can urge the very same ground before the Wakf Tribunal.

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In view of the discussion made above, I pass the

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following:

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ORDER

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Writ petition is dismissed as not maintainable. The

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petitioner can approach the appropriate forum i.e. the Wakf Tribunal for redressal of his grievance and all the contentions raised before this court are kept open.

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Sd/(H.P.SANDESH) JUDGE

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gab ct-mck List No.: 1 Sl No.: 20

Waliallah S/O Allabaksh Yadwad v. Karnataka State Board of Auqaf

Case brief

What is this about?

What did the court decide?

Waliallah S/O Allabaksh Yadwad v. Karnataka State Board of Auqaf

Case brief

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What did the court decide?

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