Karnataka High Court
Dr. Mohd. Shafiuddin Junaidi And ... vs State Of Karnataka And Ors on 10 October, 2023
Bench: Mohammad Nawaz, Rajesh Rai K
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WA No. 200019 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT APPEAL NO. 200019 OF 2023 (LB-RES)
BETWEEN:
1. DR. MOHD. SHAFIUDDIN JUNAIDI,
S/O LATE MD. ALAUDDIN JANUIDI,
AGED ABOUT: 69 YEARS, OCC: AGRICULTURE,
R/O: 9-594, SHAIKH ROZA,
KALABURAGI-585101.
2. ULFAT JUNAIDI,
S/O. DR. MOHD. SHAFIUDDIN JUNAIDI,
AGE: ABOUT 35 YEARS, OCC: AGRICULTURE,
R/O: 9-590, SHAIKH ROZA,
KALABURAGI-585101.
Digitally signed by ...APPELLANTS
SWETA KULKARNI
Location: HIGH (BY SRI. D.R.RAVI SHANKAR, SR. ADVOCATE FOR
COURT OF SRI. RAVI BHEEMSINGH CHAWAN & SRI.MALIK PASH MAUZAN,
KARNATAKA
ADVOCATES)
AND:
1. STATE OF KARNATAKA
REPTD. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF MINORITY WELFARE/WAKFS,
VIKAS SOUDHA,
BENGALURU-560001.
2. KARNATAKA STATE BOARD OF WAKFS,
BY ITS CHIEF EXECUTIVE OFFICER,
NO.6, CUNNINGHAM ROAD,
BANGALORE-560052.
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WA No. 200019 of 2023
3. DISTRICT WAKF OFFICE,
REPRESENTED BY ITS DISTRICT WAKF OFFICER,
KUDA BUILDING (WAKF), MAIN ROAD,
KALABURAGI-585102, KARNATAKA.
4. MOHD. AFZALUDDIN JUNAIDI,
S/O LATE MD. TAJUDDIN JUNAIDI,
AGED ABOUT: 44 YEARS,
R/O: 9-590, SHAIKH ROZA, KALABURAGI-585101.
5. MD. GHULAM MOHIUDDIN JUNAIDI,
S/O MD. TAJUDDIN JUNAIDI,
AGED ABOUT: 42 YEARS,
R/O: 9-590,
SHAIKH ROZA, KALABURAGI-585101.
6. MD. QIWAMUDDIN JUNAIDI,
S/O MD. TAJUDDIN JUNAIDI,
AGED ABOUT: 38 YEARS,
R/O: 9-590,
SHAIKH ROZA, KALABURAGI-585101.
...RESPONDENTS
(BY SRI. MALLIKARJUN C. BASAREDDY, G.A. FOR R1;
SRI. NARESH V.KULKARNI, ADVOCATE FOR R2 & R3;
SRI. MAHMOOD PATEL, ADVOCATE FOR R4 TO R6)
THIS WRIT APPEAL IS FILED U/S 4 OF THE HINDU COURT
ACT, 1961 PRAYING TO ALLOW THE WRIT APPEAL AND SET
ASIDE THE ORDER DATED 20.10.2022 PASSED BY THE
LEARNED SINGLE JUDGE IN WRIT PETITION NO.202657/2022
AND ALSO BE PLEASED TO QUASH/SET ASIDE THE ORDER
DATED 07.01.2022 PASSED BY THE RESPONDENT NO.02 VIDE
ANNEXURE-T OF THE WRIT PETITION IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL DISPOSAL AND
HAVING BEEN HEARD AND RESERVED ON 26.09.2023,
COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI
K. J., DELIVERED THE FOLLOWING:
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WA No. 200019 of 2023
JUDGMENT
The appellants in this writ appeal have questioned
the correctness and legality of the order passed by the
learned Single Judge of this Court in W.P.No.202657/2022
(LB-RES) dated 20.10.2022, wherein the learned Single
Judge dismissed the writ petition filed by the appellants,
by permitting them to approach the Auqaf Tribunal in
terms of sub-section (2) of Section 83 to raise a challenge
for their grievance.
2. In the writ petition, the appellants challenged
the appointment proceedings and orders issued, bearing
No.KSBA/APM/82/KLB/2021-22 dated 07.01.2022 by the
2nd respondent i.e. the Karnataka State Board of Auqaf
under Section 42 of the Waqf Act, 1995 by appointing
respondent No.4 as the Mutawalli and Sajjada Nasheen to
the Gazette notified Waqf Institutions, namely Darga
Hazrat Shaikh Roza, Kalaburagi District as arbitrary, illegal
and without jurisdiction and violative of principles of
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natural justice and Article 14 and 25 of the Constitution of
India.
3. The learned Single Judge of this Court, after
assessment of the oral and documentary evidence
available on record, dismissed the writ petition and
permitted the appellants to approach the Waqf Tribunal to
raise their challenge. The said order of the learned Single
Judge is challenged under this appeal.
4. We have heard Sri. D.R.Ravi Shankar, learned
Senior counsel for the appellants and Sri. Chagashetty for
Patel Associates, contesting respondent No.4 and also the
counsel appearing for the Wakf Institution.
5. The learned Senior counsel vehemently
contended that the order passed by the learned Single
Judge, caused great miscarriage of justice to the
appellants since the said order is contrary to the provisions
of Waqf Act 1995 and also the Karnataka Waqf Rules 2017
as such the same is liable to be set aside. He would
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further contend that there are two Dargas called Darga
Hazrat Sheikh Sirajuddin Saheb Junaidi and Darga Hazrat
Khundmeer Junaidi situated in Shaikh Roza Village,
Kalaburagi, notified by Karnataka Board of Waqf in the
year 1974 and ever since then the father of the appellant
Mohd. Alauddin Junaidi S/o Tajuddin Saheb Junaidi
appointed as the hereditary Mutawalli and Sajjada
Nasheen. The same is forthcoming in the notification
dated 16.07.1974 as per Annexure-B. Subsequently in the
year 1990, the Waqf Board, vide its proceedings dated
07.08.1990, appointed the father of respondent No.4 Sri.
Mohammed Tajuddin Junaidi as Mutawalli to the Darga in
place of the deceased, only to look after the day today
affairs of institution and to function with certain terms and
conditions. Hence, according to the learned Senior
counsel, the appointment of the father of respondent No.4
as a Mutawalli was only a temporary arrangement to look
after the day today affairs of the Darga. As such the
fourth respondent cannot claim same as a hereditary right,
when the appellants being the legal heirs of the original
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Mutawalli and Sajjada Nasheen of the Darga. Hence, it is
contended that, the appellants have rightly challenged the
appointment of respondent No.4 as per notification dated
07.01.2022 passed by respondent No.2 under Section
83(2), but the same was not considered by the Tribunal.
Therefore, the said order was challenged before the
learned Single Judge, but the learned Single Judge,
instead of allowing the writ petition, permitted the
appellants to approach the Waqf Tribunal once again which
is not sustainable under law.
6. The learned Senior counsel would further
contend that, the respondent No.2 failed to consider the
relevant provisions of Karnataka Waqf Rules 2017 while
appointing 4th respondent as Sajjada Nasheen and
Mutawalli. The qualification of Mutawalli and appointment
of Mutawalli described under Section 55 of the Rules are
that while appointing the Mutawalli, the Board shall have
due regard to the contents of Deeds of Waqf (waqifnama),
providing for appointment of Mutawalli custom, usage
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pertaining to appointment of Hereditary Mutawallies.
Further the board should not appoint stranger so long as
there is any member of waqif's family in existence
qualified to hold the office as per sub-Rule 4(b) of Rule 55.
Further, Rule 53 of the Rules, provides the qualification of
the Mutawalli. In the case on hand, the respondent No.4
does not have any qualification stated in the said Rules
and also he is a stranger to the Darga and the appellants
are the members of Waqf family in existence and qualified
to hold the office. As such the impugned notification is
totally against Rules 53, 55 and 56 of the Waqf Rules
2017. According to the learned Senior counsel, the
qualification for the post of Sajjada Nasheen defined in sub
rule (xlii) of Rule 2 that, Sajjada Nasheen is a spiritual
superior of Dargah and incharge of spiritual affair of such
Dargah. The respondent No.4 absolutely does not possess
such qualification and the said post is beyond the
jurisdiction of the Tribunal and it is the hereditary post
prevails as per the custom. Hence, the appointment of
respondent No.2 to the said post is totally bad in law. He
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would further contend that Section 63 of the Waqf Act,
provides when, there is vacancy in the office of Mutawalli
of a Waqf institution and there is no one to be appointed
under the terms of the deed of the Waqf or where the
right of any person to act as a Mutawalli is disputed, the
Board may appoint any person to act as Mutawalli for such
period and such condition as it may think fit. On conjoint
reading of Section 63 with Rule 56, the Waqf institution
shall issue notice in Form No.48 when there is a dispute in
respect of appointment of Mutawalli, but according to the
senior counsel in this case, the respondent No.2 totally
failed to provide such opportunity to the appellants to put
forward their hereditary right before the respondent No.2.
7. He would also contend that though a suit was
filed by the father of the 4th respondent before the Prl.
Munsiff Court at Gulbarga in O.S.No.345/1986 against the
father of the appellant No.1 and 2 for declaration for the
post of Sajjada Nasheen and Mutawalli of the present
Dargas and the said suit was decreed in their favour, but
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in the said suit the Board was not a party. And after about
four years, the Board passed the order appointing father
of fourth respondent as Mutawalli and Sajjada Nasheen.
The learned Senior counsel would further contend that the
impugned order challenged in the writ petition, was
passed on 07.01.2022 and only a post decisional hearing
was provided to the appellants by respondent No.2, to put
forward their genuine case before the Board. Though, an
order of abeyance was passed for the appointment of
respondent No.4 on 29.01.2022 and a report was called
for, but the said report obtained behind the back of the
appellant and subsequently by the order dated
16.02.2022, the Board withdrew the order of abeyance
dated 29.01.2022 and restored the order dated
07.01.2022, which caused a great miscarriage of justice.
The learned Senior counsel would lastly contend that the
notification by appointing the fourth respondent as
Mutawalli and Sajjada Nasheen to the Darga, having
serious consequence to the Dargas and the same is
violative of Article 14 of the Constitution and also the
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principles of natural justice. The father of the appellants
appointed as hereditary Mutawalli and Sajjada Nasheen of
the Dargas vide notification dated 16.07.1974, hence the
appellants automatically become the hereditary Mutawallis
and Sajjada Nasheen as per the relevant provisions of the
Waqf Act and Rules. Without considering the same the
respondent No.2 passed the impugned order and the same
is not sustainable under law. As such, the appellants
approached the learned Single Judge by questioning the
same, but instead of allowing the prayer of the appellants,
the learned Single Judge by dismissing the writ petition,
granted liberty to the petitioners to approach the Tribunal
under sub-Section 2 of Section 83, which is totally
incorrect and liable to be set aside. Accordingly, the
learned Senior counsel prays to allow the appeal.
8. Refuting the submission made by the learned
Senior counsel, the learned counsel for the respondent
No.4 vehemently contended that, the allegation of the
appellants that they were not provided sufficient
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opportunity to raise their challenge against the
appointment order of the 4th respondent dated 07.01.2022
is totally incorrect. Per contra, the Board has given ample
opportunity to the appellants by issuing notices and they
also filed objection to the said notices and based on their
objection as per Annexure-V and W, the Board passed the
order of abeyance in respect of appointment of respondent
No.4 as Sajjada Nasheen and hereditary Mutawalli to the
Dargas as per Annexure-X. Subsequently after considering
their arguments and the documents submitted, the Board
once again passed a considered order dated 16.02.2022 as
per Annexure-Y by withdrawing the abeyance order dated
29.01.2022 and restored the order dated 07.01.2022 i.e.
the appointment order of 4th respondent. As such, it is
clear that the Board passed the order after a detailed
judicial proceedings contemplated under the provisions of
Section 83(2).
9. The learned counsel would further contend that
the learned Single Judge rightly passed a well reasoned
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order and there is no reason to interfere in the said order
since, the learned Single Judge after meticulously going
through the record, dismissed the writ petition by giving a
liberty to the appellants to approach the Tribunal as
contemplated under sub-section 2 of Section 83 of the
Waqf Act. Section 83(1) is clear that, for determination of
any dispute, question or other matter in respect of Waqf
property, only the Tribunal is having jurisdiction. On
careful perusal of sub clause 5 of Section 83, the Tribunal
shall be deemed to be a Civil Court and shall have the
same powers as may be exercised by a Civil Court under
the Code of Civil Procedure 1908, while trying a suit or
executing a decree or order. As such, the appellants have
ample opportunity to put forward their claim before the
Tribunal as directed by the learned Single Judge.
10. He would further contend that, the father of
respondent No.2 appointed as Mutawalli and Sajjada
Nasheen as per Annexure-D in the year 1990 i.e. on
07.08.1990 and the said order was not challenged by the
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appellants, for a period of 33 years and not claimed any
customary right. Nevertheless, the said order was passed
based on the suit filed by the father of the respondent
No.4 before the Civil Court in O.S.No.345/1986. The said
decree was also not challenged by the appellants. In such
circumstances, after lapse of 33 years, the appellants
claiming right over the Mutawalliship or Sajjada Nasheen
of the Darga is not sustainable either in law or on facts.
Accordingly, he prays to dismiss the appeal.
11. We have bestowed our anxious consideration
on the submissions made by both the learned counsels so
also perused the available documents on record.
12. Having heard the learned counsels, and having
perused the documents, the only point that would arise for
our consideration is that :
Whether the order passed by the learned
Single Judge in W.P.No.202657/2022 (LB-
RES) dated 20.10.2022 is justifiable under
law?
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13. On a careful perusal of the order passed in the
writ petition, the learned Single Judge while dismissing the
writ petition, permitted the appellants to approach the
Waqf Tribunal in terms of Sub-Section 2 of Section 83 to
raise their challenge for their grievance and also made it
clear that the Court has not passed any order on merits of
the matter. It is the grievance of the appellants that, their
father being the hereditary Mutawalli and Sajjada Nasheen
of the Darga, as per the notification dated 16.07.1974,
they should have continued as hereditary Mutawallies of
the Dargas. Further, the appointment of father of
respondent No.4 as Mutawalli, vide order dated
07.08.1990 was only a temporary arrangement to look
after the day today affairs of the Darga. Hence, the
impugned notification dated 07.01.2022 was passed
arbitrarily, without considering the plea of appellants and
though the appellants filed their objection before the
Board, they were given a post decisional hearing which
cannot be accepted.
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14. On perusal of the documents available on
record, it could be seen, after passing the impugned
notification dated 07.01.2022, the appellants approached
the Board and filed their objection as per Annexure-V and
W and thereby the Board, after considering their objection,
passed the abeyance order of the notification, vide order
dated 29.01.2022 and subsequently after examining the
materials, once again passed the order dated 16.02.2022
by withdrawing the abeyance order dated 29.01.2022.
15. Sub clause 1 and 2 of Section 83 of Wakf Act,
1955 reads as under:
83. Constitution of Tribunals, etc. - [(1) The
State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it
may think fit, for the determination of any dispute,
question or other matter relating to a waqf or waqf
property, eviction of a tenant or determination of
rights and obligations of the lessor and the lessee
of such property, under this Act and define the local
limits and jurisdiction of such Tribunals.]
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(2) Any mutawalli person interested in a
[wakf] or any other person aggrieved by an order
made under this Act, or Rules made thereunder,
may make an application within the time specified
in this Act or where no such time has been
specified, within such time as may be prescribed, to
the Tribunal for the determination of any dispute,
question or other mater relating to the [waqf].
16. A careful perusal of the above provision, which
clearly depicts that the Tribunal is the proper authority for
determination of any dispute, question or other matter
relating to Waqf Property. Further on perusal of sub
clause 5 Section 83 also depicts, that the Tribunal shall be
deemed to a Civil Court and shall have the same power as
may be exercised by a Civil Court under the Code of Civil
Procedure 1908, while trying a suit or executing a decree
or order. Hence, it is clear that the Tribunal is having
ample jurisdiction to decide the dispute pertaining to the
Waqf or Waqf Property. The claim of the appellants that
their father being hereditary trusty and as such they have
the right of hereditary Mutawalliship and Sajjada Nasheen
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in the Darga, has to be decided by the Board by examining
the materials available to that effect, since the Board is
having the jurisdiction of a Civil Court. Hence, in our
considered view, the learned Single Judge has rightly
passed the order by giving liberty to the appellants to
raise their dispute before the Tribunal. Such being the
case, we find no good grounds to interfere with the order
passed by the learned Single Judge. Hence, without
expressing any opinion on the merits of the case, and
reserving liberty to the appellants to approach the Tribunal
as ordered by the learned Single Judge, answering the
point raised above, we proceed to pass the following:
ORDER
The writ appeal is dismissed being
devoid of merits.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
