The Chief Executive Officer Vs Dargah Hazrath Shaik Fareeduddin Mansoori (Sunni)

…RESPONDENTS (R1 AND R2 IS SERVED) THIS CIVIL REVISION PETITION IS FILED UNDER 83(9) WAKF ACT, 1995, PRAYING TO SET ASIDE THE IMPUGNED ORDERS DATED 22.04.2022 PASSED IN APPLICATION NO.20/2021 BEFORE THE KARNATAKA WAKF TRIBUNAL, KALABURAGI DIVISION, KALABURAGI PRODUCED AT ANNEXURE-A BY DIRECTING THE WAQF TRIBUNAL TO RESTORE THE APPLICATION NO.20/2021 TO CONTINUE THE PROCEEDINGS.

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THIS CIVIL REVISION PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

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This petition is filed invoking Section 84(3) of the Wakf Act, 1995 (for short ‘the Act, 1995’). The petitioner-Chief Executive Officer of the Karnataka State of Board of Wakf has called in question the order dated 22.04.2022 passed on an Application No.20/2021 before the Karnataka Wakf Tribunal, Kalaburagi Division and also the order dated 06.06.2017 in Enquiry No.KSBA/ENQ/02/RCR/2016 before the Enquiry Officer, Karnataka State Board of Wakf, Benglauru.

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A complaint under Section 54 of the Act, 1995 is filed against one S.M.Ismail, alleging that the said S.M.Ismail has encroached upon the Wakf property. The said complaint dated 17.08.2015 is taken up for investigation along with some other complaints.

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In terms of order dated 06.06.2017, the Competent Authority acting under Section 54 has passed an order, holding that, the respondent is an encroacher of the Wakf property and directed the respondent to vacate the property and to deliver the vacant possession of the property to the Mutavalli of the petitioner-Wakf institution i.e. Mutavalli of Dargah Hazrath Shaik Fareeduddin Mansoori (Sunni), Manvi taluk, Raichur district.

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Pursuant to the aforementioned order, an application is filed before the Karnataka Wakf Tribunal, Kalaburagi in Application No.20/2021 under Section 54(3) of the Act, 1995. The Wakf Tribunal in terms of the impugned order dated 22.04.2022 has rejected the application on the premise that, the Chief Executive Officer of the Karnataka State Wakf Board has no jurisdiction to invoke Section 54 of the Act, 1955. Assailing the said order, the petitioner before the Tribunal is before this Court.

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Learned counsel for the petitioner would submit that, under Section 54(1) of the Act, 1995, the Chief Executive Officer is not only Competent Authority to consider

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the complaint filed before him relating to encroachment of any property belonging to the Wakf, but also competent to initiate action on his own motion.

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Referring to Section 54(3) of the Act of 1995, it is urged that, in case, if the Chief Executive Officer is satisfied that the property in question is a Wakf property and the same is encroached, then the Chief Executive Officer is competent to move an application before the Tribunal seeking eviction of the encroacher.

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It is urged that the order passed by the Chief Executive Officer, recording encroachment is correct however, the further direction for delivery of possession vide order dated 06.06.2017 is erroneous only to the said extent. After holding that there is encroachment, the Chief Executive Officer should have moved the application for eviction of the property. And accordingly an application is filed before the Wakf Tribunal. The Tribunal could not have rejected the application on the premise that, the Chief Executive Officer has no jurisdiction to take action suo-moto.

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It is the submission of the learned counsel for the

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petitioner that Section 54 enables suo-moto action and it is evident from the use of expression “of his own motion” found in Section 54 of the Act 1995.

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There is no representation on behalf of the

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respondents.

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This Court has perused the records.

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On perusal of Section 54 of the Act of 1995 it is noticed that Chief Executive Officer of the Wakf Board is competent to initiate action for removal of the encroachment in respect of Wakf property. Thus, the Tribunal was in error in passing the impugned order.

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A specific question is put to the learned counsel for the petitioner as to whether the respondent remained exparte before the enquiry officer, as well as before the Wakf Tribunal.

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13. Learned counsel for the petitioner submits that,

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he did not participate in the proceeding, though the notice is duly served.

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Considering the fact that the respondent

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remained exparte before the Wakf Tribunal, as well as before this Court and also considering the erroneous direction by the Chief Executive Officer to deliver the possession, to do complete justice, this Court deems it proper to set aside the order impugned i.e. order dated 22.04.2022 in Application No.20/2021 on the file of the Wakf Tribunal, Kalaburagi and also order dated 06.06.2017 in Enquiry No.KSBA/ENQ/02/ RCR/2016. Accordingly, the following:

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ORDER

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(i) The petition is allowed in-part.

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(ii) The order dated 22.04.2022 in Application No.20/2021 on the file of the Wakf Tribunal, Kalaburagi and also order dated 06.06.2017 in Enquiry No.KSBA/ENQ/02/RCR/2016, are set aside;

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(iii) The matter is remitted to the Enquiry Officer/Chief Executive Officer, Karnataka State Board of Wakf, Bengaluru.

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(iv) The said officer shall issue notice to respondent i.e. S.N.Ismail and also to Dargah Hazrath Shaik Fareeduddin Mansoori (Sunni)respondent No.1 herein, and thereafter hold fresh enquiry and pass appropriate orders;

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(v) It is made clear that, nothing is expressed on the merits of the matter and all contentions are kept open.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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SVH

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List No.: 1 Sl No.: 58

The Chief Executive Officer v. Dargah Hazrath Shaik Fareeduddin Mansoori (Sunni)

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The Chief Executive Officer v. Dargah Hazrath Shaik Fareeduddin Mansoori (Sunni)

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