Karnataka High Court
Sri. Parveez Ahmed vs The Chairman on 29 August, 2023
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.17643 OF 2023(GM-WAKF)
BETWEEN:
1. SRI.PARVEEZ AHMED,
S/O LATE MOHAMMED AZMATHULLA,
AGED ABOUT 40 YEARS,
MUZAWAR,
HAZRATH TAWAKKAL MASTAN SHA
SHAHARVARDI DARGHA RA,
RESIDING AT NO.421/1, OTC ROAD,
COTTONPETE MAIN ROAD,
BANGALORE - 560 053.
2. SRI.MOHAMMED GHOUSE,
S/O LATE SRI.HAJI ABDUL RAHIM,
AGED ABOUT 50 YEARS,
MUZAWAR,
HAZRATH TAWAKKAL MASTAN SHA
SHAHARVARDI DARGHA RA,
OTC ROAD, COTTONPETE MAIN ROAD,
BANGALORE - 560 053.
...PETITIONERS
(BY SRI.V LAKSHMINARAYANA., SENIOR COUNSEL A/W
SRI.CHANDRA L., ADVOCATE)
AND:
1. THE CHAIRMAN,
KARNATAKA STATE BOARD OF AUQAF,
DARUL AWKAF, NO.6, CUNNINGHAM ROAD,
BANGALORE - 560 052.
2. THE CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF AUQAF,
DARUL AWKAF, NO.6, CUNNINGHAM ROAD,
2
BANGALORE - 560 052.
3. ROSHAN ALI @ NAYAZ AHMED,
AGED ABOUT 40 YEARS,
S/O R NISAR AHMED LATE,
RESIDING AT NO.8, 1ST FLOOR,
RATAN SINGH ROAD, FRAZER TOWN,
BANGALORE - 560 005.
4. THE MANAGING COMMITTEE.,
TAWAKKAL MASTAN SHAH SOHARWARDI (RA)
REPRESENTED BY ITS SECRETARY,
NO.512, OTC ROAD, COTTONPET,
BANGALORE - 560 053.
...RESPONDENTS
(BY SRI.MAHMOOD PATEL., ADVOCATE FOR R3;
NOTICE TO R-1,2 & 4 IS /W., V.C.O DATED 24/08/2023)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED RESOLUTION DATED 27.06.2023
PASSED BY THE RESPONDENT WAKF BOARD IN ITS 348TH
BOARD MEETING HELD ON 27.06.2023 VIDE SUBJECT
NO.1(11) PRODUCED AT ANNEXURE-A.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioners are tapping the writ jurisdiction of this
court seeking invalidation of the Resolution dated
27.06.2023 passed by the 1st Respondent-Wakf Board in
its 348th meeting vide Subject No.1(11), a copy whereof
avails at Annexure-A inter alia whereby one Sri.
Mohammad Sajjad Khan, a retired Police Inspector has
been appointed as the Caretaker and the 3rd respondent-
Sri.Roshan Ali has been appointed as a Mujawar for the
Wakf Institutions in question; this appointment is for a
period of one year.
2. Learned Sr. Advocate appearing for the
petitioners argued that the impugned appointments could
not have been made because of interim orders dated
18.12.2020 and 27.06.2022 respectively made in pending
W.P.No.15031/2020 & W.P.No.12188/2022; the said
Resolution has been passed without due application of
mind and the power to appoint has been abused by the
Auqaf Board for ulterior purpose of creating rift between
the functionaries of the Institutions. He also argued that
the impugned resolution is made without competence. In
support of his submission, he banked upon certain Rulings.
3. Respondent No.3 having entered caveat
through his counsel, resisted the petition by filing a huge
Statement of Objections. Notice to other respondents is
dispensed with. The counsel appearing for the 3rd
respondent vehemently opposed the petition making
submission in justification of the impugned order and the
reasons on which it has been structured. He also
contended that in the absence of a necessary party
namely Mr.Mohammad Sajjad Khan, the petition is liable
to be rejected in a wholesale way.
4. Having heard the learned counsel for the
parties and having perused the Petition papers, this Court
declines indulgence in the matter for the following
reasons:
(a) Apparently, the impugned resolution has been
passed making appointment of Mr.Mohammad Sajjad Khan
as the caretaker in the place of Addl. Chief Executive
Officer, who has been transferred in due course. Mr.Khan
being a proper party if not a necessary party in the light of
RAZIA BEGUM vs. SAHEBZADI ANWAR BEGUM, AIR 1958
SC 886, no relief can be granted to the petitioners, he
having not been arrayed as a respondent. His absence
disables the petitioners from taking up the contention of
competence of the Board, to say the least, even in respect
of the 3rd respondent herein who has been appointed as
the Mujawar, as rightly contended by his counsel. Even
otherwise, this court is not impressed with the submission
inasmuch as the appointments in question have been
made only for a period of one year and such power does
avail to the Board.
(b) The vehement submission of learned Sr.
Advocate appearing for the petitioners that the ground for
appointment of Mujawar is structured on the assumption
of an existing custom and when the same is being litigated
before the Wakf Tribunal, such appointment could not
have been made, is bit difficult to countenance. Learned
counsel appearing for the 3rd respondent is more than
justified in pointing out the written arguments filed in
Application No.32/2022 before the Wakf Tribunal in April
2022 wherein, at paragraph No.12, it is admitted that
there has been a custom of appointing the Mujawar for the
performance of the religious & pious ceremonies and that
making such appointment has become a norm/custom. At
paragraph No.16, the Managing Committee admits that
after 2017, its tenure has not been extended. There is a
finding to the same effect by the Coordinate Bench in its
interim order dated 20.7.2022 in W.P.No.17129/2017. The
submission of Mr.Lakshminarayana that these admissions
are not part of pleadings and the same having been made
in the written arguments cannot be treated as admissions,
is liable to be rejected in the absence of any explanation
as to why they were made. It has been the consistent view
of the Apex Court all through that the admissions of
parties that are on record of a court proceeding bind them
u/s 30 of the Indian Evidence Act, 1872. Such admissions
need not be only in the pleadings, for being taken judicial
cognizance. This court hastens to add that the unqualified
admissions made in the pleadings are treated as
sacrosanct, is also true. That being the position, the
impugned resolution cannot be faltered on the ground of
absence of jurisdictional facts.
(c) The submission of Mr.Lakshminarayana that
there is interim order dated 16.11.2017 in
W.P.No.17129/2017 and therefore, the tenure of the
Committee should be deemed to be continued as on the
date the resolution had been passed, is bit difficult to
countenance inasmuch as the said order has been varied
by a Coordinate Bench of this Court on 20.7.2022 and a
copy of that order avails at Annexure-R1 to the Statement
of Objections wherein, at page 5, a specific finding has
been recorded "...the Managing Committee term of which
has already expired has no right to continue and the 2nd
respondent-Wakf Board shall take appropriate action".
Added, challenge to the said order in W.A.No.631/2022
was not interfered with by the Division Bench vide
judgment dated 3.3.2023. That being the position, the
argument of lack of jurisdiction lacks acceptability, as
rightly contended by counsel for the answering
respondent.
(d) The vehement submission of
Mr.Lakshminarayana that when cognate questions are
being debated on the floor of the Wakf Tribunal, the
impugned resolution could not have been passed, also
does not merit acceptance. As already observed, the
tenure of the popular body of management having
expired, the affairs of the wakf institutions cannot be left
unmanaged. Karnataka Wakf Rules, 2017 make a
provision for arrangement of administration or the like in
that event. Sub-Rule (5) of Rule 54 reads as under:
"If for any reasons succeeding committee is
not constituted or appointed, the management
and supervision of such Waqf institution shall
automatically vest with the concerned District
Waqf Officer and the District Waqf Officer or any
other Officer authorized by the Board shall carry
out duties and functions as delegated by the
Karnataka State Board of Auqaf. He shall take
action to get the succeeding committee
constituted within a period of three months."
In fact, in a related proceeding namely CCC No.709/2022
(Civil), a Division Bench of this Court while dropping the
contempt proceedings vide order dated 3.3.2023 has
quoted this Rule as well.
(e) Learned Sr. Advocate Mr.Lakshminarayana
pressed into service the decision of the Apex Court in
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA vs.
PATTAKAL CHERIYAKOYA (2019) 16 SCC 1 to contend that
the impugned Resolution is incompetent and challenge to
the same can be laid even in a civil suit. The said decision
discusses about the jurisdiction of the Wakf Tribunal u/s
83 of the 1995 Act, as amended and the exclusion of Civil
Court jurisdiction. However, that does not merit a deeper
examination in this case going by the pleadings of the
parties by which they have drawn the battle lines. Suffice
it to say that, petitioners' civil suit in O.S.No.9/2020 is
pending and that the Civil Court has not accorded any
interim protection therein as yet. In fact, application filed
under Order XXXIX Rules 1 & 2 of CPC, has been rejected
vide order dated 9.10.2020.
In the above circumstances, this Writ Petition being
devoid of merits, is liable to be dismissed & accordingly, it
is, costs having been reluctantly made easy, with the
clarification that nothing herein above observed shall be
construed to cast its light or shadow on the hearing and
disposal of the pending Writ Petitions, suits or the
proceedings before the Wakf Tribunal.
Sd/-
JUDGE
cbc
