Allowed

Rajashekhar S/O. Panchappa Havanagi, v. the Karnataka Board of Wakfs

Karnataka HC25 Sept 2024WP/61672/2012

Case brief

AI extract

What is this about?

The High Court quashed the Wakf Board's declaration and Gazette notification regarding a property classified as 'Jat Inam'. The Court held that upon abolition of Inams, such land vested with the State Government under the Karnataka Certain Inam Abolition Act, 1977, in the absence of a regrant order, rendering the Wakf Board's actions invalid.

What did the court decide?

Quashed the impugned order dated 04.02.1989 and the Gazette notification dated 16.06.2011 declaring the property as Wakf.

Rajashekhar S/O. Panchappa Havanagi, Vs the Karnataka… — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 61672 OF 2012 (GM-WAKF)

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BETWEEN:

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RAJASHEKHAR S/O. PANCHAPPA HAVANAGI, AGE: 55 YEARS

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SIDDAPPA

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S/O. PANCHAPPA HAVANAGI

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AGE: 50 YEARS

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BOTH ARE R/O.

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BUS STAND ROAD

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SAVANUR TOWN, DIST: HAVERI.

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...PETITIONERS

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(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)

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AND:

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1 . THE KARNATAKA BOARD OF WAKFS REPTED. BY ITS SECRETARY DARUL AWAKF NO. 6 CUNNINGHAM ROAD BANGALORE-52.

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2 . THE ENQUIRY OFFICER KARNATAKA STATE

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BOARD OF WAKFS NO.6, CUNNINGHAM ROAD BANGALORE.

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3 . BAHOSH BEHOSH DARGAH SUNNI KHADARBAG STREET REP. BY ITS CHAIRMAN SAVANUR, DIST: HAVERI.

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…RESPONDENTS

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(BY SRI. SADIQ N. GOODWALA, ADVOCATE FOR R1 TO R3; SRI. B. MUHAMMED ALI, ADVOCATE FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEXURE-Y THE ORDER PASSED BY RESPONDENT NO.1 DATED:04/02/1989 AND ANNEXURE-Z THE PUBLICATION MADE BY RESPONDENT NO.1 IN THE KARNATAKA OFFICIAL GAZETTE DATED:16/06/2011 IN PART-5 IN RESPECT OF THE ABOVE REFERRED ORDER.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.09.2024, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER:

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CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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C.A.V. ORDER

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Captioned petition is filed seeking quashing of order passed by Respondent No.1 vide Annexure-Y and also the Gazette notification dated 16.6.2011 declaring the petition property as WAKF property.

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The facts leading to the case are as under:

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The petitioners assert that the petition property was bought by their father under the registered sale deed dated 4.12.1965 for valuable consideration from Smt. Nawajbi, Smt. Hussainbi and Smt.Khatunbi, evidenced at Annexure-C. Pursuant to the sale the revenue records were also duly changed.

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The petitioners father passed away on 15.6.1978 leaving behind his wife and two sons as his legal heirs. Subsequent to the death of the Petitioner's father the RTC entries were also changed.

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A partition was effected in the Petitioners' joint family and the petition property was allotted to the petitioners. Mutation entries to reflect this change are evidenced at Annexure-G.

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The petitioners' mother Smt.Girijamma had submitted an application to the Tahsildar to convert the petition land for non-agricultural use. The Tahsildar vide order dated 29.1.1986 allowed the application and ordered for the conversion of petition land for use for residential purposes evidenced at Annexure-H. Petitioners' mother pursuant to the conversion order formed a layout plan and got the same approved from the Tahsildar.

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Respondent No.1 issued a public notice on 5.12.1988, stating that the petition land is intended to be notified as Wakf property and invited objections from the public, if any. The petitioners' mother filed

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objections to the public notice along with necessary documents.

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Respondent No.3 in the meanwhile challenged the order of conversion passed by the Tahsildar by filing an appeal before the Assistant Commissioner. The appeal was disposed off vide order dated 6.6.1989 holding that the property in question was private property and that the Wakf board cannot question the conversion of the same.

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The petitioners pursuant to approval of the layout plan, formed layouts and subsequently sold the property to various third parties.

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The petitioners have filed O.S No.143/2011, O.S No.144/2011 and O.S No.145/2011 against Respondent No.3 seeking the relief of mandatory and permanent injunction. These suits are still pending adjudication.

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Respondent No.2 vide communication dated 7.12.2011 issued a notice to the petitioners instructing them not to interfere with the petition property as it is a registered Wakf and also instructing the petitioners to remove all the encroachment on the property within eight days and offer their explanation regarding the same. Petitioners issued their reply to the notice evidenced at Annexure V.

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Petitioners appeared through their counsel before Respondent No.2. During this enquiry the petitioner was made aware of a complaint filed by Respondent No.3 on 4.10.2011 alleging encroachment by the petitioners. The petitioners were also made aware of the order passed by Respondent No.1 declaring the petition property as Wakf property on 4.2.1989 and also the subsequent publication of the same in the Karnataka Gazette on 16.6.2011.

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The counsel for the petitioners reiterating the grounds urged in the petition contends that the order passed on 4.2.1989 by Respondent No.1 declaring the petition property as Wakf property and the subsequent publication of the notification dated 16.6.2011 in the Karnataka Gazette is illegal and unauthorised.

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The petitioners also contend that the impugned orders are passed in blatant violation of Section 4 of the Wakf Act,1995. Section 4 of the Wakf Act,1995 clearly mandates that in order for a property to be declared as a Wakf property there must be a notification published in the State Gazette by the State government appointing a Survey Commissioner. This Survey Commissioner has to conduct an independent inspection and enquiry and submit a report to the State. The State after further enquiry and upon satisfaction will forward a copy to

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Respondent No.1 for publication in the official gazette. The clear procedure described in Section 4 was not followed in the case and thereby the impugned publication by Respondent No.1 is unsustainable.

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Respondent No.1 has filed the statement of objections and has contested the petition by contending that the suit property bearing No.RS.1/1 of Savanur Village measuring 4.21 acres is a "Wakf by User" comprising of Tomb of Holy Saint Hazrath Sayed Bahosh Behosh Dargah including Khabrasthan(Muslim Public Grave Yard). Respondent No.1 claims that it is an ancient Dargah and the properties are being used from time immemorial for religious purpose, more particularly, for the maintenance of the Dargah.

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Respondent No.1 has further contended that the Chairman of District Wakf Committee conducted spot inspection after notifying the

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petitioner's mother namely Girijavva w/o. Kenchappa. After conducting spot inspection and considering the objections tendered by petitioner's mother a report is tendered to the State Wakf Board by over-ruling the objections and the property is registered as a Wakf property and a Certificate of Registration is issued on 4.2.1989.

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Respondent No.1 further contends that the registration certificate is notified in the Karnataka Gazette dated 16.6.2011. Respondents citing these documents contends that petitioner without getting their rights declared by a comprehensive civil suit have no locus to question the certificate of registration and gazette notification relating to suit property. The learned counsel has placed reliance on the following judgments:

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1. Board of Wakf, West Bengal .vs. Anis Fatma Begum and another [2011] SCCR 89

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2. Sayyed Ali .vs. A.P. Wakf Board, Hyderabad [(1998) 2 SCC 642]

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3. Ahmed G.H. Ariff .vs. Commissioner of Wealth Tax, Calcutta [AIR(SC) 1971 0 1691]

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4. The Karnataka Board of Wakf by its Secretary .vs. State of Karnataka and others [2000 SCC Online Kar 205]

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5. Madanuri Sri. Rama Chandra Murthy .vs. Syed Jalal [2017 SAR (Civil) 578]

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6. The Karnataka Board of Wakfs .vs. Sabira Bi and others [W.A.No.1487/2006 DD 14.9.2012]

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Placing reliance on the aforesaid

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judgments, Respondent No.1 has contended that Mutuvalli has no right in the property and lacks competence to meddle with Wakf property. It is also contended that once a Wakf is always a Wakf and to substantiate the said contention, reliance is placed on the judgment rendered by the Apex Court in the case of Sayyed Ali and others .vs. A.P. Wakf Board, Hyderabad and others (supra).

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Heard the counsel on record perused the records submitted by petitioner and counsel appearing for respondent No.1.

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Though both the parties have not placed on record any documents to substantiate the nature of the petition property, the enquiry report furnished by respondent No.1 along with statement of objections throws lot of light on the nature of the land and also discloses material facts which have a direct bearing on the rival claims of the parties to the writ petition. Therefore, this Court deems it fit to cull out the relevant portions of the enquiry report from Paragraphs 4 to Para 10, which read as under:

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"4. During my spot inspection, Sri. Khaja Mohiddin Khan s/o Mohamed Khan R/o Khadarbag has sumbmitted the following documents:-

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1) T.P. Sheet No.379/87-88 (2) gram No. VI Of Sy.No.1/1 of Savanr (3) Akarband Register issued by the A. D. L. R. Savanur of Sy. No.1/1 of Savanur, standing in the name of Behosh -

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Behosh Fakir wahiwatdar Naimullasha fauthi Jat Imam (copy issued on 26-3-49) (4) Permission issued by the P.S.I. Savanur 5 celebrate the Urs in the year 1988 (5) Certificate issued by the T.M.C. Savanur dt. 22-7-1988 (6) Tippin copy of the year 1895 (7) Kharab Tapsil of land Sy.No.1, of Savanur for the year 1953. Certificate issued by Shri.N.A.Vakil dt. 18-8-88 regarding celebration of Urs (8) Endorsement dt.14-12-88 (No.33/88) of the P.S.I.Savanur.

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5. On behalf of Smt. Girijavva Kom Panchappa Havanagi R/o Savanur, one Shri, Siddappa S/o Panchappa Havanagi R/o Savanur presented at the time of inspecion and he has submitted the following documents (1) Representation dtd. 6-12-88 addressed to the S.P. Bharwad (2) Plot Map and endorsement dt. 14-12-1988 of the P.S.I. Savanur.

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6. It is evident from the Local Enquiry that the - Dargah Bahash Behosh Baba, Khabarstan existing in the Sy.No.1/1 of Savanur since

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7. From the verification of Akarband Register copy issued by the A.D.L.R. Savanur (on 23-3-49) in respect of land Sy.No.1/1 of Savanur village, is standing in the name of Behosh Bahosh Fakiri Wahiwatdar Mainullasha Fauthi. The said land sy. No. is a Jati Inam i.e the said land granted to the

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Behash Behosh Fakir (personal Inam of Behash Behosh Fakir) During my Inspection Both the parties are not submitted the order of Inam Abolition.

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8. From the verification of CPR NO. 379 of 1955 Kharab Tapsil of land Sy.No. 1/1 of Savanur, that it is found that the land Record officer has nonassessed land Sy. No. 1/1 of Savanur. (which is in Mudi words) written in Kannada Language) as per Rules 21 (2) III of the Karnataka Land Revenue Rules, 1965 i.e. classification of land in the said Kharab Tafsil certificate. It is found that the said grave yard & Kakan etc., are most essential which is sufficient ground for registration.

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9. From the verification of the sale deed No. 748 dt. 1-12-65 submitted by Smt. Girijavva w/o Panchappa Hava nagi R/o Savanur to the Board. It is found that, the said land is not patta land, not a property, the said land is a Jate Inam, the Jate Inem has not abolished.

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Smt. Namaz Bee and others has already sold out the said land along with Khabarstan, Dargah etc. The dale deed is illegal and baseless and wrongly

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1) Because, the said land is a Jate Inam of Behosh Bahesh Fakir,

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2) The Darga and grave yard are existing since long time,

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3) Nobody has no rights to sell or purchase the Dargah or Grave Yard,

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4) The said land has not abolished so far, nobody has filed the copy of order of abolition of Jate Inam,

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5) The said land has already vested with the

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God,

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6) The property sold out after enforcement of Wakf Act, 1954.

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10. From the verification of R.T.C of land sy. No.1/1 situated in savanur, the said land has already trasferred in the purchaser and his sons etc. The entry in R.T.C. Sy.No 1/1 of Savanur is quite illegal. Because (1) The sale deed is illegal (2) The Darga and Grave Yard are existing since - time immemorial (3) No notice has been given to the wakf Board. The section 133 of the Land Revenue Act, 1964 it is clearly mentioned that presumption regarding entries in the records. An entry in the Records of Rights etc., and a certified entry in the Register of Mutations (or in the Patta Book) shall be presumed to be true until the contrary is prolled or a new entry is lawfully substituted there of.

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From the verification of order No. LND/CR/23/ 85-86 dated 29-1-1986. It is found that the

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Tahasildar Savanur has passed the order regarding No-Agriculture permission of land Sy.No.1/1 measuring 4-22 situated at Savanur.

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1) The said order is illegal, baseless and wrong.

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2) The land Sy.No.1/1 situated at Savanur is a Jate Inam.

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3) The said land has not abolished under the Karnataka Certain Inam Abolition Act, 1977.

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4) The sale deed of Wahiwatdar is also illegal.

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5) The Mutation Entry is also wrong.

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6) The property had Sy.No.1/1 situated at Savanur, is a Jate Inam of Behosh Bahosh Saheb i.e. Darga.

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7) The said property is a Wakf property vested with God.

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8) The Darga and Grave Yard are existing since time Immemorial.

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9) The said land itself is a non-agricultural land, the question of Non-agriculture does not arised.

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10) The land Sy.No.1/1 measuring 4-22 to the extent of 1 Guntha is a Pot-kharab as per Records of

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Right the Tahasildar Savanur has already granted permission of N.A. of Pot-Kharab land.

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11. The Tahasildar Savanur, has granted permission N.A to the Grave Yard, and also Darga etc.

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12. Sri, Khaja Moinuddin Khan has already filed an appeal U/s 49 of the Land Revenue Act, before the Asst. Commissioner, Savanur against the order of the Tahasildar Savanur No.LND/CR/23/8586 dated- 29-1-1986.

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All the connected papers are enclosed herewith for your kind perusal. Opinion of the inspector-cum-Auditor D. W.C. (R) in the interest of preservation of Dargah and Grave Yard it is better to take necessary action U/s.25, 26 of the wakf act, 1954 early."

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On reading Para 9 of the report, it is found that the petition land is admittedly an Inam land. Even at Para 4, the enquiry officer has found from the T.P. Sheet and also the village records coupled with Akarband Register issued by the ADLR, Savanur indicating that petition land is a Jat Inam.

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At para 7 on the enquiry report, the

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enquiry officer has also noted that none of the parties have produced the order of Inam Abolition.

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If these significant details are taken into

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consideration, the crucial question that arises for consideration is:

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"Whether the petition land in the light of abolition of Inam would vest with the Government and have a precedence over the Wakf Act and therefore registration certificate issued by the Board and consequent Gazette Notification declaring the property as Wakf property is of no consequence?

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This issue is dealt by the Division Bench of this Court in the judgment rendered in W.A.No. 5591 OF 2011. Para 19 to 21 would be relevant and the same is culled out as under:

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" 19. Explaining the meaning of the Wakf as defined in the Wakf Act, Mulla in his principles of Mahomedan Law has explained the meaning of Wakf.

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"The term Wakf literally means detention. Wakf signifies the extinction of the appropriator's ownership in the thing dedicated and the detention of the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied for the benefit of the mankind. A wakf extinguishes the right of the wakf or dedicator and transfers ownership to God. The mutawalli is the manager of the wakf, but the property does not vest in him, as it would in a trustee in English law. A dedication to a pious or charitable purpose is meant, the right of wakf is extinguished and the ownership is transferred to the Almightly. It must be a permanent dedication. If the dedication is not permanent, wakf is invalid.

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20. From a reading of the entire document, it is clear the intention of the wakeef was not to give these lands as a permanent dedication. What is given is the right to collect the revenue and spend the same towards expenses of the Dargah. Therefore, it is clear from the aforesaid translated copy, there was no intention on the part of the Wakeef to dedicate the property to God. What is

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given under the said document is only right to collect the revenue from the land and spend it towards meeting the expenses of the Dargah. In the translation provided by the petitioners, the word used is 'this is conferred as Inam'. When the document expressly states as inam, which is also supported by the recitals read as a whole, it is not possible to accept the contention of the petitioners that it is not an inam, but it is a wakf. Therefore, the land in question is an inam land and not a wakf property.

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Point No.2:

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21. The Inams Abolition Act was enacted by the state legislature in public interest to provide for the abolition of Religious Charitable Inams in the Mysore area. It applies to religious inams including the Sringeri Jahgir and charitable inams. The explanation to sub-section (3) of Section 1 provides/extends the meaning of 'Religious inanı' or 'charitable inam'. It means a grant of a village, portion of a village or land entered in the register of imams, quit-rent register, alienation register, or any revenue account maintained by or under the authority of Government as Devadaya inam or Dharmadaya inam, as the case may be. 'Inamdar' means a religious or charitable institution owning an inam. Section 3 of the Act provides for consequences

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of vesting for an inam in the State. It provides when the notification under sub-section (4) of Section 14 in respect of any inam has been published in the Mysore Gazette, then, notwithstanding anything contained in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting, and save as otherwise expressly provided in this Act. The consequences which follow are enumerated. Clause (b) provides all rights, title and interest vesting in the inamdar including those in all communal lands, cultivated lands, uncultivated lands, whether assessed or not, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State of Mysore, free from all encumbrances and persons who are entitled to be registered as occupants are given an opportunity to make an application and in the absence of any such claims from the occupants, the inamdar has been given a right to seek for regrant of the land for which there are no claim compensation in respect of the lands which cannot be regranted"

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This Court in W.P.No.103351/2022

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DD.26.07.2024 at paragraphs 12 to 15 held as under:

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" 12. Finally, this Court while addressing the jurisdictional aspect, is of the view that the Waqf Board lacked the authority to challenge the vested status of the lands or to assert control over them, given that these lands were no longer considered waqf properties after vesting with the State. The court found that any actions taken by the Waqf Board under Sections 51 and 52 of the Waqf Act, without first challenging the Land Tribunal's order or the statutory vesting, were without jurisdiction and thus invalid.

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13. In summary, the Division Bench judgment reinforced the supremacy of the Karnataka Certain Inam Abolition Act, 1977, in governing the fate of inam lands, clarified the effect of statutory vesting with the State, and delineated the limitations on the powers of the Waqf Board concerning such lands. The judgment underscored the finality and binding nature of the Act's provisions, providing clarity and certainty to the status of the lands and the rights of individuals and institutions associated with them.

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14. Upon a detailed examination of the records, the court finds that the properties in question were indeed granted to individuals for their services and not to the Mosque as a waqf institution. The Land Tribunal's order of 21.09.1982, which granted occupancy rights to Buden Sab and Bahaddur Sab, was never contested by the Waqf Board, making the subsequent actions under Sections 51 and 52 of the Act without jurisdiction. This court emphasizes that Section 4 of the Act of 1977 explicitly states that all inam lands vest with the State Government, free from all encumbrances, overriding any conflicting laws, including the Waqf Act.

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15. This Court references the precedent set in W.A.No.5591/2011 c/w W.A.No.379/2012, which reinforced that upon the abolition of inams, the lands vest with the State Government, regardless of any previous religious or charitable designations. Consequently, the Court concludes that the impugned orders are unsustainable and must be quashed, as the properties were not waqf lands but rather vested in the petitioners following a valid legal process."

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Upon careful examination of the enquiry

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report and applicable legal precedents, it is evident that the petition land is classified as Inam land. This land has automatically vested with the Government following the implementation of the Karnataka Certain Inam Abolition Act, 1977, which governs the vesting of religious and charitable Inam lands in the State. The abolition of Inams effectively extinguished any previous rights or ownership over this land, subjecting it to the control of the State. Consequently, any claims by individuals or institutions regarding this land must be supported by a regrant order, which would have been necessary to reinstate ownership or occupation rights. In the absence of such a regrant order, the petition land remain vested with the State.

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Significantly, none of the parties involved in the case have submitted a regrant order, despite the enquiry officer’s request for such documentation. This omission is crucial, as it implies that no party, including the religious institution in question, can lawfully claim ownership or control over the land. The lack of a regrant order reinforces the position that the land automatically vested with the State upon the abolition of Inams. Therefore, any subsequent claims to the land, particularly by the religious institution, are legally unsustainable.

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The Wakf Board’s attempt to classify the land as Wakf property is therefore in direct conflict with the legal provisions of the Inam Abolition Act. The Wakf Board’s issuance of a registration certificate declaring the land as Wakf property, along with the subsequent Gazette Notification dated 16.06.2011, is rendered invalid due to the fact that

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the land was already vested with the State. The act of registering the property as Wakf without a regrant order contravenes the legal principles established by the Karnataka Certain Inam Abolition Act, which clearly provides that such lands become the property of the Government.

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Moreover, the enquiry report, along with the additional documents submitted by respondent No.1, further supports the position that the petition land was indeed Inam land. These documents clarify that, in the absence of a regrant order, the land cannot be classified as Wakf property. The Board's actions in declaring the land as Wakf property, therefore, lack legal foundation and are without authority. The religious institution in question had effectively lost any claim to the land following the abolition of Inams, and the Board’s subsequent

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actions are nullified by the overriding legal principles governing Inam lands.

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Additionally, the records reveal ongoing litigation between the petitioner and respondent No.3, further complicating the status of the petition lands. The petition lands have also been subjected to a conversion order, which has resulted in the creation of third-party rights. These developments underscore that the land has lost its agricultural character and is no longer suitable for classification as Wakf property. The involvement of third-party interests also further weakens any claims that the land should be treated as religious property.

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In conclusion, the petition lands, being Inam lands, have vested with the Government upon abolition, and without a regrant order, cannot be claimed as Wakf property. The Gazette

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notification and the Wakf Board’s actions in registering the property are without legal authority and must be quashed. Third-party rights and the change in land use further complicate the matter, confirming that the petition lands are not subject to Wakf claims.

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The records also reveal that several litigations are pending between petitioner and respondent No.3. It is also noticed from the records that the petition land has lost agricultural character as it is subjected to conversion order and third party rights are created.

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For the reasons stated supra, this Court proceeds to pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned order dated 4.2.1989 passed by Respondent No.1 as per Annexure-Y and the consequent publication made by respondent No.1 in the Karnataka Official Gazette dated 16.6.2011 in Part-5 in respect of the said order are hereby quashed.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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*alb/-

Rajashekhar S/O. Panchappa Havanagi, v. the Karnataka Board of Wakfs

Case brief

What is this about?

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Rajashekhar S/O. Panchappa Havanagi, v. the Karnataka Board of Wakfs

Case brief

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What did the court decide?

What the court decided

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