Mohammed S/O Syed Sab vs Mohammed Hussain S/O Ajameersab ...
2022 Latest Caselaw 4760 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 15TH DAY OF MARCH 2022

                           PRESENT

       THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                             AND

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE


              WRIT APPEAL No.200122/2021
                         C/w
              WRIT APPEAL No.200147/2021


WRIT APPEAL No.200122/2021:

Between:

Sri Mohammed S/o Syed Sab
Age: 25 years, Muthawalli of Dargah
Hazrath Syed Peer Ullesgur village
Shapur Taluka, Dist: Yadgir
                                           ... Appellant

(By Sri Ravi B. Patil, Advocate)


And:

1.     Mohammed Hussain
       S/o Ajameersab Mujwar
       Age: 45 years, Occ: Agriculture

2.     Syyed Ali S/o Ajameersab Mujwar
       Age: 43 years, Occ: Agriculture
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3.    Saayed Jeelani S/o Ajameersab Mujwar
      Age: 41 years, Occ: Agriculture

4.    Mohammed Gousuddin
      S/o Ajameersab Mujwar
      Age: 39 years, Occ: Agriculture

5.    Khaja Moinuddin S/o Ajameersab Mujwar
      Age: 37 years, Occ: Agriculture

6.    Babu S/o Ajameersab Mujawar
      Age: 35 years, Occ: Agriculture

      All R/o Ullesuguru
      Tq: Wadagera, Dist: Yadgiri - 585 202

7.    The Regional Commissioner
      Kalaburagi- 585 101

8.    The Deputy Commissioner Yadgiri
      District Yadgiri-585 201

9.    The Tahasildar
      Shahapur-585 201

10.   The Karnataka State Board of Wakf
      Darul A wakf No.6
      Cunningham Road
      Bengaluru-560 052
      Represented by
      Chief Executive Officer
                                          ... Respondents

(Sri Deshpande G. V., Advocate for R1 to R6;
Sri Mallikarjun C. Basareddy, HCGP for R7 to R9; &
Sri P. S. Malipatil, Advocate for R10)


      This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, 1961, praying to set aside the
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order dated 24.06.2021 passed by the learned Single Judge
High Court of Karnataka in Writ Petition No.200938/2021 or
issue any other directions as this Hon'ble Court deems fit
under the facts and circumstances of case.


WRIT APPEAL No.200147/2021:

Between:

Karnataka State Board of Wakf
Darul Auqaf No.6
Cunningham Road
Bengaluru-560 052
By its Chief Executive Officer
                                              ... Appellant

(By Sri Malipatil P.S., Advocate)


And:

1.     Mohammed Hussain
       S/o Ajmeer Sab Mujawar
       Age: 45 years, Occ: Agriculture

2.     Syed Ali S/o Ajmeer Sab Mujawar
       Age: 43 years, Occ: Agriculture

3.     Syed Jeelani S/o Ajmeer Sab Mujawar
       Age: 41 years, Occ: Agriculture

4.     Mohammed Gousuddin
       S/o Ajmeer Sab Mujawar
       Age: 39 years, Occ: Agriculture

5.     Khaja Moinuddin S/o Ajmeer Sab Mujawar
       Age: 37 years, Occ: Agriculture
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6.    Babu S/o Ajmeer Sab Mujawar
      Age: 35 years, Occ: Agriculture

      All R/o Ullesuguru
      Tq: Wadagera, Dist:Yadgiri

7.    The Regional Commissioner
      Kalburugi- 585 101

8.    The Deputy Commissioner
      Yadgir, District Yadgir-585 201

9.    The Tahsildhar, Shahpur
      Tq. Shahpur-585 223
                                           ... Respondents

(Sri Deshpande G.V., Advocate for R1 to R6;
Sri Mallikarjun C. Basareddy, HCGP for R7 to R9)

      This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, 1961, praying to allow the above
writ appeal, set aside the order of the learned Single Judge
dated 24.06.2021 passed in WP No.200938/2021 so far it
relates to setting aside the corrigendum dated 10.10.2019
vide Annexure-G issued by respondent No.4/Appellant and
issue any other appropriate order or direction as this Hon'ble
Court deems fit to grant in the facts and circumstances of
the case.

      These appeals coming on for further arguments this
day, Anant Ramanath Hegde J., delivered the following:
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                       JUDGMENT

The order dated 24.06.2021 passed in

W.P.No.200938/201 is called in question, in two

appeals namely, W.A.No.200122/2021 and

W.A.No.200147/2021. The writ appeal

No.200122/2021 is filed by a person who is not a party

before the writ proceedings. He has filed an application

before this Court seeking permission to prosecute the

appeal. It is the primary contention of the appellant in

W.A.No.200122/2021 that he is the hereditary

Mutawalli of Darga Hazarath Syed Peer Ullesuguru and

he has not been heard before passing the order in writ

petition and his right will be affected if he is not

permitted to come on record and to prosecute the

appeal.

2. W.A.No.200147/2021 is filed by the

Karnataka State Board of Wakf the fourth respondent in

the writ petition. The writ petition is filed by the six

petitioners who claimed that the property bearing

Nos.223/1 to 223/6 is the property belonging to their

family which is granted to them by the Land Tribunal

under the Karnataka Land Reforms Act. It is the

further case of the petitioners that as per the partition,

which has taken place in the family, the property

bearing Nos.223/1 to 223/6 is divided and properties

are allotted to the respective petitioners. The writ

petition is filed on the ground that the corrigendum

which is issued in the month of October 2019 marked

at Annexure - G is issued without issuing any notice to

the petitioners. It is the contention of the petitioners

that in terms of the corrigendum, their names are

sought to be deleted in the property records bearing

Nos.223/1 to 223/6.

3. The learned single Judge of this Court

noticing the fact that the corrigendum is issued without

any prior notice to the petitioners, has allowed the writ

petition. In the order which is impugned in the writ

appeal, it is noticed by the learned single Judge, that

the writ petition Nos.201087/2019, 203116-117/2019,

103320/2013 and W.A.No.200084/2016 involving the

same question are already decided and while allowing

the writ petition, the learned single Judge has also set

aside the corrigendum at Annexure - G.

4. The Wakf Board which has filed an appeal

has contended that in the judgments referred above, the

corrigendum at Annexure - G was not questioned. The

correctness of that corrigendum was not examined, as

such, the learned single Judge was in error in quashing

the corrigendum at Annexure - G.

5. It is also the submission of learned counsel

Sri P. S. Malipatil for the Karnataka Wakf Board that

the matter could not have been referred to the

Tahasildar for adjudication, the matter should have

been referred to the Wakf Board for inquiry of Section

40 of the Karnataka Wakf Act, 1995.

6. Learned counsel Sri Ravi B. Patil appearing

for the appellant in W.A.No.200122/2021 would

contend that the appellant is a hereditary Mutawalli of

Darga Hazarath Syed Peer Ullesuguru and the

impugned order, setting aside the corrigendum at

Annexure - G would affect his claim as hereditary

Mutawalli. It is also his contention that the Assistant

Commissioner as well as the Tahasildar have passed an

order after holding necessary enquiry to delete the

names of the contesting respondents in the writ appeal,

as such, there is no need to set aside the corrigendum

at Annexure - G. According to the learned counsel for

the appellant, this order is passed pursuant to the order

passed by the Deputy Commissioner, Yadgiri.

7. Learned Senior counsel Sri Ameet Kumar

Deshpande appearing for respondent Nos.1 to 6 would

submit that Annexure - G corrigendum is issued

without hearing the petitioner and there is no provision

under the Wakf Act to issue corrigendum. He would

further contend that the property in question is granted

to the respondents by the Land Tribunal under the

Karnataka Land Reforms Act, as such, the property

cannot be treated as a Wakf property. He would further

submit that in case the property of the respondents is to

be declared as Wakf property, the same has to be done

only in the manner provided under law and such

procedure is not followed. Thus, he would submit that

the impugned order is in accordance with law and there

is no need to interfere in the impugned order.

8. The learned single Judge while disposing of

the writ petition has not decided as to whether the

property is Wakf property or not. From the records, it is

seen that no procedure under old Act, 1954 or new Act,

1995 is followed to determine whether the property is

Wakf property or not. Under the circumstances, this

Court is of the opinion that this exercise is to be carried

out under Section 40 of the Karnataka Wakf Act and if

any person is aggrieved by the finding of the Wakf Board

arrived under Section 40 of Karnataka Wakf Act, is at

liberty to seek redressal of their grievances before the

appropriate forum provided under law. With these

observations, the writ appeals are disposed of.

It is made clear that this Court has not given any

opinion as to the nature of the property in question. All

contentions are kept open.

In view of disposal of writ appeals, all pending IAs

are disposed of.

SD/-

JUDGE

SD/-

JUDGE RSP