- -1 IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH R DATED THIS THE26H DAY OF AUGUST, 2014 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION No.84748/2010 (GM-WAKF) BETWEEN THE DARGAH HAZARAT KHAJA BANDANAWAZ (RH) GULBARGA, THROUGH ITS SAJJADA NASHEEN AND MUTAWALLI Dr. SYED SHAH KHUSRO HUSSAINI S/O LATE SYED SHAH MOHAMMED MOHAMMED-UL-HUSSAINI AGE:
65. YEARS, R/O ROZA (B), GULBARGA. ... PETITIONER (BY SRI AMRESH S. ROJA, ADVOCATE) AND1 2.
3. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY PWD VIDHANA SOUDHA, BANGALORE. THE STATE OF KARNATAKA REPRESENTED BY DEPUTY COMMISSIONER GULBARGA AT GULBARGA. THE STATE OF KARANTAKA BOARD OF WAKFS, BY ITS - -2 CHIEF EXECUTIVE OFFICER, BANGALORE. ... RESPONDENTS (BY SRI SHIVAKUMAR R. TENGLI, ADDL. GOVT. ADV., FOR R1 & R2 SRI A VIJAYAKUMAR, ADV., FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTON OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI, QUASHING THE ORDER
DATED0604.2010, IN O.S.No.10/2004 OF THE FILE OF KARNATAKA WAKF TRIBUNAL, GULBARGA UNDER ANNEXURE-F BY ALLOWING THE SUIT OF PLAINTIFF. THIS WRIT PETITION IS COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
The plaintiff in O.S. No.10/2004 on the file of the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga, has come up in this writ petition impugning the judgment dated 06.04.2010 in dismissing its suit for mandatory injunction, damages and cost.
2. It is the case of petitioner - plaintiff that the land named as Ikram Kunta of Badepur bearing CTS No.284 entered in Volume No.7 of City Survey office is the property of the plaintiff – The Dargah Hazrat Khaja - -3 Bandanawaz Rahmatulla Alliah, Gulbarga, and it is a wakf property. Mutawalli of the plaintiff has constructed shops on the western side of the land of Dargah facing the road leading from Jagat Circle to Railway Station with due permission of Municipal Corporation and Planning Authority. The said shops are spread over Blocks ‘A’, ‘A1’, ‘B’, ‘C’, ‘D’ and ‘E’ with about 10 shops in each block. According to the petitioner - plaintiff, the front portion of building structure of ‘D’ block abutting the road leading from Jagat Circle to Railway Station and measuring about 17 feet in width and 852 feet in length was demolished at the instance of defendant No.2 for the purpose of widening the said road without notice to the plaintiff. The aforesaid land being wakf property, proceedings were initiated by Mutawalli of the plaintiff before the Karnataka Wakf Tribunal (“Tribunal” for short) , Gulbarga Division, in O.S. No.10/2004 for mandatory injunction and for damages and cost against defendants - respondents.-. -4 3. In the said proceedings, defendants 1 and 2 (respondents 1 and 2 herein) have taken up a defence that though the disputed land, which is utilized for widening of the road from Jagat Circle to Railway Station falls within CTS No.284 of Badepur village, the said land originally being an inam land, the same vested with the Government under the Inams Abolition Act. The plaintiff has not obtained re-grant order from the Government, hence plaintiff is not the owner of the disputed land and the portion encroached by the plaintiff has been demolished after issuing public notice. Therefore, the question of either acquiring the said land or seeking permission of the plaintiff to utilize the same for widening the road, which is formed from Jagat Circle to Railway station does not arise. It is also contended that, plaintiff is not entitled for any compensation or damages in the aforesaid circumstance.
4. In the proceedings before the Tribunal, though the petitioner - plaintiff contended that an application was filed in Form No.1 under Section 4 of the Karnataka - -5 Certain Inams Abolition Act before the Land Tribunal after the date fixed for vesting of the land with the Government seeking re-grant of the land in its favour and land was re- granted in its favour, the Tribunal after considering the oral and documentary evidence adduced by the parties, has held that the plaintiff has not produced any document to show that the land in question had been re-granted in its favour and that defendants 1 and 2 (respondents herein) have illegally demolished front portion of ‘D’ block as alleged in the plaint.
5. The Tribunal while dismissing the suit, has given a finding to the effect that filing of the suit itself is erroneous in as much as Mutawalli is not entitled to represent the Dargah while filing the suit. It is seen that such a finding is given by the Tribunal by relying upon the judgment rendered by a coordinate Bench of this Court in the matter of Nitin Punja Vs. Deputy Commissioner, Koppal and Others reported in 2007(2) KCCR873 Petitioner herein being aggrieved more by the observation that the suit filed - -6 by Dargah through Mutawalli cannot be maintained, has come up in this petition seeking to set aside the judgment passed by the Tribunal in O.S. No.10/2004.
6. Though learned counsel for the petitioner vehemently contends that the acquisition of land by respondents herein is improper and compensation should have been fixed for acquiring the said land, the said submission is not forceful in the absence of any material either oral or documentary evidence to demonstrate that the land in question being inam land has been re-granted in favour of the plaintiff - petitioner. In the circumstances, this Court find that finding of the Tribunal that the petitioner – plaintiff has failed to prove that defendants have illegally demolished the front portion of the building of ‘D’ block as alleged in the plaint and therefore, it is not entitled to damages is just and proper and does not call for interference.-. -7 7. The second ground, which is urged in this petition while impugning the judgment in OS.No.10/2004, is the right of Mutawalli in filing the aforesaid suit on behalf of Dargah. The learned Counsel appearing for the petitioner would contend that the judgment rendered by the coordinate bench in the matter of Nitin Punja`s case (supra) is incorrect, inasmuch as while rendering the said judgment the relevant provision, which govern the right of Mutawalli to file the suit under Section 6 of the Wakf Act, 1995 (‘the Act’ for short) is not looked into. It is further contended that Section 50 of the Act, which was relied on to hold that the Mutawalli has no right to file the suit is incorrect, inasmuch as the said Section would not in any away restrict or take away the right of Mutawalli to file the suit. Therefore, he would bring to the notice of this Court the relevant provisions, which deal with the right of Mutawalli in filing the suit on behalf of Dargah, namely Sections 6, 50 and 83(2) of the Act, which read as under: - -8 6. Disputes regarding wakfs.—(1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. Explanation.—For the purposes of this section and section 7, the expression “any person interested therein”, shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4. (2) Notwithstanding anything contained in sub- section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.-. -9 (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub- section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1).” Section 50 reads as under: “50. Duties of Mutawalli.- It shall be the duty of every mutawalli- (a) to carry out the directions of the Board in accordance with the provisions of this Act or of any rule or order made thereunder; furnish such returns and supply such (b) to information or particulars as may from time to time be required by the Board in accordance with the provisions of this Act or of any rule or order made thereunder: (c) to allow inspection of Wakf properties, accounts or records or deeds and documents relating thereto; (d) to discharge all public dues; and (e) to do any other act which he is lawfully required to do by or under this Act.” - -10 Further, Section 83 (2) of The Wakf Act reads as under:- “(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 matter relating to the wakf.” (emphasis supplied) 8. The reading of aforesaid provisions of Wakf Act would make it clear that under Section 6 Mutawalli has right to institute a suit in a Tribunal with reference to the wakf property. Section 83(2) of the Act would entitle him to file any application in any proceedings before the Tribunal, which determines the dispute relating to wakf, which includes the property rights of the wakf. In the background of these two provisions, if Section 50 of the Act is looked into, it would further fortify the right of Mutawalli, inasmuch as Section 50 clause (e) of the Act specifically confirms that he is lawfully required to do any act by or under this Act, which imply that under the aforesaid two provisions he has right to initiate and represent in the suit, - -11 wherein the right to wakf property is involved. In that view of the matter, it is seen that the Tribunal has committed an error in holding that the Mutawalli has no right to file the suit relying on the judgment rendered by this Court in the matter of Nitin Punja Vs. Deputy Commissioner, Koppal and Others reported in 2007(2) KCCR873 which has no relevance since the said judgment is rendered without taking into consideration the relevant provisions of Wakf Act, 1995 which deal with the right of Mutawalli.
9. With these observations, this writ petition filed by the plaintiff in OS.No.10/2004 is partly allowed holding that the suit filed by Mutawalli of petitioner-Dargah in OS.No.10/2004 is just and proper and Mutawalli did exercise his right in filing the suit under the aforesaid provisions of the Wakf Act, 1995. JUDGE Sd/- sma