Eidgah Vs Karnataka State Board of Wakf

EIDGAH REGISTERED UNDER WAKF REPRESENTED BY ITS SECRETARY, MR. TAJ MOHAMMED KHAN, AGED ABOUT 71 YEARS, UMAR KHAYAM ROAD, TILAK NAGAR, (ANEGUNDI ROAD), MYSORE- 570 021, …PETITIONER (BY SRI. LAKAMAPURMATH CHIDANANDAYYA., ADVOCATE) AND:

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KARNATAKA STATE BOARD OF WAKF REPRESENTED BY ITS ADMINISTRATOR MR. IBRAHIM ADOOR B I.A.S, DARULAUQAF, NO.6, CUNNINGHAM ROAD, BANGALORE- 560 052. …RESPONDENT (BY SRI. D BASAVARAJA, ADVOCATE)

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NC: 2025:KHC:40357 WP No. 51367 of 2019 C/W WP No. 43473 of 2019

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HC-KAR

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THIS W.P. FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORD WHICH ULTIMATELY RESULTS IN PASSING THE ORDER ANNX-A DATED 30.08.2019 PASSED BY THE RESPONDENT AND ANNXA1 SCHEME IN FORM 42 ATTACHED ANNX-A. QUASH ORDER ANNX-A DATED 30.08.2019 PASSED BY THE RESPONDENT AND ANNX-A1 SCHEME IN FORM 42 ATTACHED ANNX-A AS THE SAME IS BEING ILLEGAL AND CONTRARY TO LAW.

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IN WP NO. 43473/2019

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BETWEEN:

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EIDGAH

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A REGISTERED WAKF REPRESENTED ITS SECRETARY MR. TAJ MOHAMMED KHAN, AGED ABOUT 71 YEARS, UMAR KHAYAM ROAD, TILAK NAGAR (ANEGUNDI ROAD,) MYSORE -570 021

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...PETITIONER

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(BY SRI. L M CHIDANANDAYYA, ADVOCATE)

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AND:

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KARNATAKA STATE BOARD OF WAKF REPRESENTED BY ITS ADMINISTRATOR MR IBRAHIM ADDOOR B. IAS

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DARULAUQAF,

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NO.6 CUNNINGHAM ROAD,

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BANGALORE- 560 052

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SRI MUSTHAQAHAMED RETIRED ASST. EXECUTIVE ENGINEER MCC, MYSORE ADMINISTRATOR AND ENROLLMENT OFFICER EIDGAH, UMAR KHAYAM ROAD,

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HC-KAR

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TILAK NAGAR (ANEGUNDI ROAD) MYSORE- 570 001

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...RESPONDENTS

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(BY SRI. MOHAMMAD NIYAZ.S., ADVOCATE)

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THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR THE RECORD WHICH ULTIMATELY RESULTS IN PASSING THE ANNEXURE-A DATED 20.08.2019 PASSED BY THE R-1;QUASH ANNEXURE-A DATED 20.08.2019 PASSED BY THE R-1;DECLARE THAT THE PROPOSAL TO INDUCT NEW MEMBERS IS CONTRARY TO THE SCHEME AND WITHOUT THE AUTHORITY OF LAW.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL ORDER

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In WP No.43473/2019, the Petitioner is assailing the

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proceedings dated 20.08.2019 at Annexure-‘A’, wherein

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the respondent-Board appointed the retired Assistant Executive Engineer, Mysore City Corporation as Administrator for the management of Eidgah, Umar Khayam Road, Tilak Nagar, Mysore District in place of Mujibullah Zafari, Special Officer, who has resigned and to

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HC-KAR

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manage the day-to-day affairs of the Institution, inter alia, the petitioner has sought for direction to the respondent to induct new members in terms of the judgment of this Court in the case of M. SIRAJULLA KHAN AND

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ANOTHER VS. KARNATAKA STATE BOARD OF WAKFS, BANGALORE AND OTHERS , reported in ILR 2014 KAR 743.

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In WP No.51367/2019, the petitioner is assailing the order dated 30.08.2019 at Annexue-‘A’, the proceedings in which, the scheme of management for the said Wakf Institution has been accepted under Section 32(2)(d) of the Wakf Act, 1995, (hereinafter referred to as the 'Wakf Act') read with Rule 48 of the Karnataka Wakf Rules, 2017 (hereinafter referred to as the 'Wakf Rules').

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The brief facts necessary for adjudication of the aforesaid writ petitions are that, as observed in the writ petition that the petitioner's Institution has been dedicated

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for benefit of Hanafi Sunni Muslims, the Eidgah was

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HC-KAR

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formed by the Sunni Muslims of Mysore City. The scheme was prepared by all the members for the purpose of managing and administering the Eidgah and to conduct Eid prayers twice in a year, as per Annexure-‘B’ to the writ petition.

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It is further stated that, the petitioner has made an application to the respondent-Board for approval of the scheme, as per the notification dated 01.04.1965 (Annexure-‘C’). It is also stated in the petition that as per the said scheme, the Managing Committee consisting of 15 members were interested to take the affairs of the Eidgah in which the arrangements have been made for members of the Muslim Community to offer prayers on the specified days. It is further stated in the petition that, the Annual General Body Meeting is being conducted every year in compliance of the scheme as provided at Annexure-‘B’ to the writ petition.

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HC-KAR

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It is further stated in the petition that, the respondent-Board have passed the order dated 20.08.2019 (Annexure-‘A’), in which the Administrator has been appointed for the purpose of managing the day-to-

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day affairs of the Institution. Hence, the petitioner has filed W.P. No. 43473/2019, challenging the appointment of the Administrator as per Annexure-‘A’ to the petition. In WP No. 51367/2019, the petitioner is assailing the order dated 30.08.2019, in which the scheme of the management for the Wakf Institution was approved in the place of the earlier scheme of scheme, as per Annexure-‘D' in W.P. No.43473/2018.

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I have heard Sri. L.M. Chidanandayya, learned counsel appearing for the petitioner in both writ petitions and Sri. D. Basavaraj, learned counsel appearing for the respondent in W.P.No.51367/2019 and Sri. Mohammad Niyaz, learned counsel appearing for the respondents in W.P. No.43473/2019.

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HC-KAR

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In so far as W.P. No.43473/2019 is concerned,

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Sri. L M Chidanandayya, learned counsel appearing for the petitioner contended that the appointment of the Administrator for the management of Eidgah is contrary to Section 32(2)(d) of the Wakf Act and he further contented that, the appointment of the Administrator was challenged in W.P. No.19205/2016, and this Court by order dated 06.02.2019 (Annexure-‘G1’), disposed of the writ petition with a direction to the respondent-Board to take a decision for conducting election to the Eidgah Committee, in accordance with law expeditiously, within a period of four weeks from the order passed by this Court. However, the respondent-Board without Obeying the order passed by this Court to conduct election to the Eidgah Committee, replaced the scheme and the said aspect of the matter is to be consider in the present writ petition.

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It is also submitted by the learned counsel

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appearing for the petitioner by inviting the attention of the Court to Section 69(4) of the Wakf Act, particularly

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HC-KAR

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referring to the proviso to the same, it is contended that,

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the respondent-Board without issuing any notice to the petitioner nor to the persons aggrieved/general public with regard to the change of scheme is concerned shall take decision in modifying the scheme and therefore, the said action of the respondent-Board is arbitrary in nature and therefore, the second scheme formulated by the respondent-Board requires to be set aside in the writ petition. In that regards, he refers to the judgment of this Court in Sri. M. Sirajulla Khan (supra) and submitted that, the entire action of the respondent-Board by appointing a Administrator as well as replacing the existing scheme is contrary to the said judgment of this Court. Accordingly, he sought for interference of this Court.

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Per contra, Sri. D. Basavaraj and

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Sri. Mohammad Niyaz, learned counsel appearing for the respondent(s), invited the attention of the Court to the Karnataka Wakf Rules, 2017 and submitted by referring to Form No.23 and submitted that Administrator has been

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HC-KAR

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appointed properly and therefore, in the event if the petitioner being aggrieved by the same, the petitioner would approach the Government in terms of the provisions of the Wakf Act and Rules and therefore, he sought for dismissal of the writ petition.

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It is further submitted by the learned counsel appearing for the respondents, as preliminary objections that the petitioner has no locus standi to maintain the writ petition based on the chapter VI of Form No.42 and it is submitted that, in which the scheme of administration and management of the Wakf has been made in detailed therein and therefore, the writ petition(s) does not survive for consideration.

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It is also argued by the learned counsel for the respondents by referring to Section 65(2) of the Wakf Act and submitted that the writ petitions does not survive for consideration and if any thing is being aggrieved by the parties including petitioner(s) are concerned, the

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HC-KAR

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petitioner(s) have to approach the State Government under the aforementioned provisions and therefore, it is argued that, the writ petitions do not survive for consideration.

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Sri. D. Basavaraja, learned counsel appearing

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for the respondent in W.P. 51367/2019, referring to Section 69(3) read with Section 83 of the Wakf Act and submitted that the petitioners have to approach the Tribunal, where the efficacious remedy is provided under the Act and therefore, he sought for dismissal of the writ petition.

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In the light of the submissions made by the learned counsel for the parties, it is not in dispute with regard to the control, administration and the management of the Edigha, Mysore City, wherein the subject matter of the writ petitions are concerned, the scheme is formulated

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as per Annexure-‘B’ to the writ petitions. Clause V of the Annexure-‘B’ provides for the definitions of General Body

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HC-KAR

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and the members concerned in the said General Body. It

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is also to be noted that, on 01.02.2010, the respondentBoard as per Annexure-‘D’, appointed Professor Muzaffer Assadi as Returning Officer to conduct election in Eidgah within a period of three months from the date of the order. Undisputedly, no elections have been conducted in terms of the order passed by the respondent-Board at Annexure-‘D’. It is also to be noted that this Court in W.P. 19205/2016, vide order dated 06.02.2019 (Annexure-‘G1’) at paragraph No.4 held as follows:

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"4. In view of the aforesaid submission , the writ petition is disposed of with a direction to the 1^st respondent namely, Karnataka State Board of Wakf to take decision of conducting elections to Eidgah Committee in accordance with law expeditiously, within a period of four weeks from today."

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Perusal of the same would indicate that this

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Court directed the respondent-Board to take decision in the matter to conduct elections to the Eidgah Committee. Undisputedly, the said direction issued by this Court has

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HC-KAR

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not been complied with by the respondent-Board. It is also to be noted from the scheme of administration as per Annexure-‘A1’ in W.P. No.51367/2019, wherein a new scheme has been formulated by the respondent-Board, dehorse the order passed by this Court as well as the provisions contained under Section 65 of the Wakf Act.

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In that view of the matter, though the learned counsel representing the respondent-Board submitted with regard to the locus of the petitioner is concerned, however, it is to be noted that order passed by this Court in W.P. No. 19205/2016, has not been complied with by the respondent-Board. However, having formulated the new scheme without providing an opportunity to the petitioner(s) herein, who had the benefit of the earlier scheme as per Annexure-‘B1’ to the writ petition is concerned, I am of the opinion that, the arguments advanced by the learned counsel for the petitioners is to be accepted.

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HC-KAR

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In that view of the matter taking into

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consideration of the judgment of this Court in M. Sirajulla Khan(supra) particularly referred to Paragraph No.16 of the said judgment, I am of the view that, the new scheme formulated by the respondent-Board requires to be set aside. In the event if any action has to be taken by the respondent-Board to formulate a new scheme or to conduct the election as directed by this Court, I am of view of that the petitioner herein has made out the case for interference to set aside the order dated 20.08.2019 (Annexure-‘A’) and the formulation of the scheme in W.P. No.51367/2019 as per the order dated 30.08.2019 and Form No.42 of Wakf Rules, appended to the same and produced at Annexure-‘A1’ to the writ petition.

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In that view of the matter, it is open for the respondent-Board to conduct the election in obeying the order passed by this Court referred to above and till the election to be conducted as stated above, the respondent-

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Board is restrained from formulating any new scheme as stated above.

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It is also to be noted that, since the elections have not been completed in conformity with the order passed by this Court, I am of the view that, respondent No.1-Board is directed to conduct election as per the provisions contained under the Wakf Act, within a period

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of six months from the date of receipt of this order.

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Accordingly, the writ petitions are disposed of.

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SD/(E.S.INDIRESH) JUDGE

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SMC List No.: 1 Sl No.: 52

Eidgah v. Karnataka State Board of Wakf

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Eidgah v. Karnataka State Board of Wakf

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