Partly allowed

Jamia Masjid v. Karnataka State Board of Wakfs

Karnataka HC25 Oct 2024WP/57883/2015

Case brief

AI extract

What is this about?

Disputes over a site allotted from government karab land claimed as wakf property on the strength of a 1965 notification. The High Court held that a Section 5 notification without a Section 4 survey is not conclusive proof of wakf property, quashed the Board's encroachment order against the allottee, confirmed the Wakf Tribunal's dismissal of the masjid's injunction suit, and dismissed the masjid'

What did the court decide?

WP 18499/2012 allowed and Annexure-A order quashed; WP 57883/2015 dismissed and O.S. No.4/2010 decree confirmed.

Jamia Masjid Vs Karnataka State Board of Wakfs — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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WRIT PETITION No.57883/2015(GM-WAKF)

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C/W

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WRIT PETITION No.18499/2012 (GM-WAKF)

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IN WP No. 57883/2015

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BETWEEN:

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1 . JAMIA MASJID, MALUR,

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KOLAR DISTRICT 563130.

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REP. BY ITS SECRETARY, SRI. MOHAMMED ZAMEER AHMED, S/O M. ABDUL WAHAB, AGED ABOUT 49 YEARS,

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...PETITIONER

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(BY SRI KALEEMULLAH SHARIFF, ADVOCATE)

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AND:

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1 . KARNATAKA STATE BOARD OF WAKFS, "WARUL AWKAF, No.6, CUNNINGHAM ROAD, BANGALORE BY ITS CHIEF EXECUTIVE OFFICER,

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2 . CHOTU SAB, S/O KHUDDUS SAB, AGED ABOUT 51 YEARS, R/O CHOKKANDAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT 562130.

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3 . SMT. B LEELAVATHAMMA, W/O C. B. RUDRAPPA, AGED ABOUT 42 YEARS, R/O CHOKKANDAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT 562130.

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…RESPONDENTS

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(BY SRI VIVEK RAJ, ADVOCATE FOR SRI P. USMAN, ADVOCATE FOR R1; R2 SERVED;

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SRI M. NARAYANA REDDY, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER IN O.S.No.4/2010 DATED 12.5.2011 VIDE ANNEXURE-E PASSED BY THE LEARNED MEMBER OF THE WAKF TRIBUNAL, BENGALURU.

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IN WP No. 18499/2012

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BETWEEN:

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1 . SMT. LEELAVATHAMMA, W/O C. B. RUDRAPPA, D/O BASAPPA, AGED ABOUT 42 YEARS, R/AT JODI CHOKKANADAHALLI, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT-563101.

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...PETITIONER

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(BY SRI M. NARAYANA REDDY, ADVOCATE)

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AND:

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1 . THE ENQUIRY OFFICER AND ADDITIONAL CHIEF EXECUTIVE OFFICER, KARNATAKA STATE BOARD OF WAKFS, "DAR UL AWQAF", # 6, CUNNINGHAM ROAD, BANGALORE-52.

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2 . MAKAN (SUNNI), JODI CHOKKANDAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT-563101, REP. BY ITS MUTHAWALLI.

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3 . SRI CHOTE SAB, S/O LATE KUDDUS SAB, AGED ABOUT 48 YEARS, R/AT JODI CHOKKANDAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT-563101.

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…RESPONDENTS

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(BY SRI VIVEK RAJ, ADVOCATE FOR SRI P. USMAN, ADVOCATE FOR R1; SRI KALEEMULLAH SHARIFF, ADVOCATE FOR R2; SMT. GOWHAR UNNISA, ADVOCATE FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 15.5.12, IN CASE No.ENQ/158/KLR/2011, PASSED BY THE R1 VIDE ANNEXUREA.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

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C.A.V. ORDER

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Heard Sri.M. Narayana Reddy, learned advocate for

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the petitioner, Sri. Vivek Raj, learned advocate for Sri. P.

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Usman, learned advocate for respondent No.1, Sri. Kaleemullah Shariff, learned advocate for respondent No.2

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and Smt. Gowhar Unnisa, learned advocate for respondent No.3 in Writ Petition No.18499/2012;

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Sri. Kaleemullah Shariff, learned advocate for petitioner, Sri.Vivek Raj, learned advocate for Sri. P. Usman, learned advocate for respondent No.1 and Sri. M. Narayana Reddy, learned advocate for respondent No.3 in Writ Petition No.57883/2015.

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Writ Petition No.18499/2012 is preferred challenging the order dated 15.05.2012 in case No.ENQ/158/KLR/2011 (Annexure-A) passed by respondent No.1-the Enquiry Officer and Additional Chief Executive Officer, wherein it is held that the property in question is wakf property and the petitioner is in unlawful occupation, further direction to remove the encroachment and hand over vacant possession.

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Writ Petition No.57883/2015 is against the judgment and decree dated 12.05.2011 in O.S. No.4/2010 wherein the suit for permanent injunction is dismissed.

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These two writ petitions arise out of two different orders, one by the authority and another by the Karnataka Wakf Tribunal. However, both cases are in relation to the same property. Hence, both petitions were heard together and are disposed of by common judgment.

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The facts and the rank of the parties are referred to as in Writ Petition No.18499/2012 for convenience.

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The petitioner claims to be owner of site measuring 30 X 40 feet carved out of Survey No.179 of Jodi Chokkandahalli village, Kasaba Hobli, Malur Taluk.

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The case of the petitioner is that Survey No.179, measuring 5 Acres 22 Guntas, is Government Karab land and is reflected as such in the revenue records. The Block Development Officer formed sites in Survey No.179, and sites were allotted to various persons. The Hakku Patras were issued in favour of the allottees. The Hakku Patra in respect of site No.15 was issued in favour of Chikkaveeranna and possession was also delivered. The Madiwala Grama Panchayath entered the name of

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Chikkaveeranna and effected katha/mutation in the panchayath records. Sri.Chikkaveeranna died on 16.04.1985 leaving behind Smt. Nyanamma his sole daughter as legal representative. The revenue and mutation entries were changed in favour of Smt. Nyanamma. Smt. Nyanamma executed registered gift deed on 20.11.1993 in favour of the petitioner. The katha and other revenue entries are effected in favour of the petitioner. The petitioner has constructed a house. It is stated that the up-to-date taxes are paid in respect of the property.

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As evident from the records, O.S. No.194/1989 for declaration and injunction against 21 persons who are allottees of sites in Survey No.179, was preferred claiming to be the property of Karnataka Wakf Board by a person named Sri. G. Mohammad Anwar. The suit was rejected for default on 03.03.2001. Misc. No.9/2001 filed to recall the order also dismissed on 06.07.2002. Subsequently, Sri.Chote Sab and Sri. Mohammad Anwar - the plaintiff in O.S. No.194/1989, tried to interfere with the

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construction. The petitioner preferred O.S. No.14/1996 for declaration and permanent injunction. The suit is decreed on 04.12.2004. The judgment and decree is further confirmed in R.A. No.147/2008 dated 04.03.2010.

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Another person by the name of Sri.Syed Ashraf, claiming to be the Secretary of the Managing Committee of Jamia Masjid, filed suit in O.S. No.4/2010 before the Karnataka Wakf Tribunal, Bangalore Division. The Tribunal by order dated 12.05.2011, dismissed the suit. This order is subject matter in Writ Petition No.57883/2015 dealt in this common order.

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Respondent No.1 initiated suo motu proceedings under the Wakf Act alleging that the petitioner is in unlawful occupation of the property in question i.e., site No.15 measuring 30 X 40 feet. Respondent No.1 held that the petitioner is in unlawful occupation and, declared the petitioner as an encroacher on the wakf property and directed to deliver the vacant possession.

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Sri. M. Narayana Reddy, a learned advocate appearing for the petitioner, submits that the respondents claim that the property in question as wakf property is only based on the Notification dated 21.07.1965. There are no other documents issued by the Government to hold that the property is wakf property. It is submitted that the Notification does not conform with Section 4(3) of the Wakf Act. The notification is not conclusive evidence of the property being wakf property.

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11.1 Learned advocate further inviting the attention of the Court to the result of three suits in O.S. No.194/1989, O.S. No.14/1996 and O.S. No.4/2010 submits that the respondents were unsuccessful in demonstrating that the property in question is a wakf property. The petitioner is allottee by the government, has put up construction, and reside in the said house. The Civil Court, in the abovereferred suits, has categorically held that the petitioner is the absolute owner. Respondent No.1, invoking the provisions of the Wakf Act, cannot annul the decree of the Civil Court.

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11.2 Learned advocate for the petitioner relied on the judgment of the Apex Court in the case of Salem Muslim Burial Ground Protection Committee Vs. State of Tamil Nadu and Others reported in 2023 LiveLaw (SC) 454 to advance the proposition that Notification under the Wakf Act is not conclusive proof of fact that the land is a wakf property.

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Sri. Vivek Raj, learned advocate appearing on behalf of Sri. P. Usman, learned advocate for respondent No.1 supported the order impugned.

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Sri. Kaleemullah Shariff, learned advocate appearing for respondent No.2 would submit that the property in question is notified as wakf property under Notification dated 21.07.1965. It is submitted that the judgment and decree in O.S. No.14/1996 is not binding as respondent No.2 is not a party to the proceedings. It is further submitted that the Civil Court in judgment and decree in O.S. No.4/2010 has held that the property in question is not wakf property without considering the Notification.

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Further submits that the Notification dated 21.07.1965 is

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not challenged by the petitioner. In the absence of such a challenge, the order of the Tribunal in dismissing the suit is unsustainable.

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The contentions of learned advocate for respondent No.2 are reiterated by Smt. Gowhar Unnisa, learned advocate appearing for respondent No.3.

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Considered the submissions of the learned advocate for the parties and perused the papers.

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The petitioner claims right, title and interest in the property through allotment of site by the Block

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Development Officer. The land bearing Survey No.179 measuring 5 Acre 22 Guntas is a Government karab land. The government has formed sites. The Block

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Development Officer has allotted the sites. Hakku Patras to the allottees are issued. Site No.15 is one such site,

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formed in Survey No.179 and allotted in favour of Chikkaveeranna. The revenue entries were accordingly entered in his name. Sir. Chikkaveeranna died on

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16.04.1985 and the property was succeeded by his daughter Smt. Nyanamma in whose favour all the revenue entries were changed. Smt. Nyanamma gifted the property under a registered Gift deed dated 20.11.1993 in favour of the petitioner. The katha and other revenue entries are changed in favour of the petitioner. The petitioner constructed house and is in possession. It is also pleaded that the petitioner is paying up-to-date necessary taxes. The above sequence of events and dates would trace the right, title and interest of the petitioner in the property in question.

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The respondents claim right, title and interest in the property in question is through the Notification dated 21.07.1965. As evident from the record and from the finding of the Civil Court, no other evidence or document except Notification is produced in support of the contention that the property in question is a wakf property.

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It would be relevant to examine as to whether the property in question can be said to be wakf property on the basis of the Notification dated 21.07.1965.

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19. The Hon'ble Supreme Court in the judgment referred

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to ( Supra ) held as,

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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 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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The facts of the present case is examined with the principle of law as held by the Hon'ble Supreme Court, only conclusion that can be recorded is that the property in question is not a wakf property. There is no material on record to show that any enquiry or survey was conducted before declaring the property as wakf property. There is no material or pleading that the process as prescribed under Section 4 of the Wakf Act is followed before the

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Notification under Section 5 of the Wakf Act. In the absence of such a procedure as contemplated under Section 4 of the Wakf Act, in the light of the judgment referred to supra , it is held that the property in question is not a wakf property.

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The series of orders to which the attention of the Court is invited would demonstrate that the property in question is not a wakf property. Further, it can be held that the series of attempts before different forums by the respondents is in no way short of abuse of the process. It is apt to summarize the outcome of different proceedings. The conclusion from various orders is as follows,

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a) The Notification dated 21.07.1965 said to be

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issued under Section 5 of the Wakf Act is without following the process laid down under Section 4. The procedure under Section 4 is a sine qua non for notifying the property as wakf property.

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b) O.S. No.194/1989 is preferred for declaration

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and injunction against all the allottees in Survey

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No.179. The suit was preferred on the premise that the property in Survey No.179 is Makan(Sunni). The suit is dismissed for default and the restoration application is rejected.

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(c) While the petitioner commenced construction, an obstruction was caused, compelling the petitioner to institute a suit in O.S. No.14/1996. The suit is decreed on 04.12.2024. Against which R.A. No.147/2008 was preferred and the same was dismissed on 04.03.2010. In the course of the judgment and decree, it is held that the property was claimed as Makan by manipulating the records. Defendant therein has admitted that the land in Survey No.179 was a Government karab land. It is further admitted that the Block Development Officer has formed sites and allotted to different villagers. Judgment and decree has reached finality.

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(d) O.S. No.4/2010 has been preferred by another

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person again, claiming to be the property in Survey No.179 as wakf property. The Wakf Tribunal, while dismissing the suit, has recorded a finding that the petitioner was the absolute owner in possession through allotment of the site by the Block Development Officer, which is carved out in Survey No.179, which is a Government karab land. The Tribunal has concluded that the property in question cannot be considered as wakf property in the absence of the procedure followed under Section 4(3) of the Wakf Act.

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Respondent No.1 in the impugned order without taking into consideration the finding recorded by the Civil Court and the requirement of the procedure under Section 4 of the Wakf Act, has concluded that the petitioner is an encroacher on the property bearing Site No.15. The order of the Tribunal is dated 15.05.2012. As on that date, the judgment and decree in O.S. No.4/2010 and in O.S.

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No.14/1996 were available. The respondent, under the impugned order, has attempted to sit in appeal over the judgment and decree of the Civil Court by taking shelter under Section 32 of the Wakf Act. Section 32 of the Wakf Act is not applicable in the facts of the present case in view of the judgment and decree that the property in question is not a property of Wakf. The respondents have not placed any documents except the Notification dated 21.07.1965. In the light of the judgment referred ( Supra ), the Notification would not constitute conclusive evidence to hold the property as wakf property.

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In the light of the discussion and reasoning above, it

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is held that site No.15 formed in Survey No.179 is not a wakf property. For the aforesaid reasons, the following,

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O R D E R

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(i) Writ Petition No.18499/2012 is allowed.

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(ii) The order impugned at Annexure-A dated 15.05.2012 passed by the Enquiry Officer and Additional Chief Executive Officer, Karnataka State Board of Wakfs is quashed.

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(iii) Writ Petition No.57883/2015 is dismissed.

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(iv) The judgment and decree in O.S. No.4/2010 dated 12.05.2011 passed by Karnataka Wakf Tribunal is confirmed.

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(v) The repeated attempts to claim the property in question as wakf property through multiple proceedings is abuse of process of law. It is fit to impose heavy cost. Taking lenient view, cost is made easy.

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Sd/(K. V. ARAVIND) JUDGE

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VBS

Jamia Masjid v. Karnataka State Board of Wakfs

Case brief

What is this about?

What did the court decide?

Jamia Masjid v. Karnataka State Board of Wakfs

Case brief

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