ORDER
1. The legal representatives of the late Khaleefa Abdul Khader, who claim to have absolute right, title and interest in the Wakf Institution — Asthan-e-Khadria, which is a notified Wakf Institution, are before this Court in this petition filed under Article 226 of the Constitution calling in question the legality or otherwise of the notification issued by Karnataka State Board of Wakfs in No. KBW.CMC.14.BNU.97-98, dated 17-7-1997 in taking over the Wakf Asthan-e-Khadria and its movable and immovable properties under its direct management in exercise of its power under Section 65 of the Wakf Act, 1995, with immediate effect and the consequential order made in appointing an administrator to manage the affairs of the Wakf Institution and its properties. The impugned notification of the Board is as under:
“Karnataka State Board of Wakfs
Sub: Appointment of Administrator for the management of ‘Asthan-e-Khadria’, Jayamahal Road, Dargah Compound, Bangalore – 560 006.
Read: 1. Letter dated 1st July, 1997 of the Hon’ble Member Shri AltafHussain.
2. Report No. DWC/11/B(U)/ADM/96-97/183, dated 9th July, 1997 of
the Administrator, District Wakf Committee, Bangalore (Urban).
3. Report dated 10th July, 1997 of Shri Altaf Hussain, Member of the Board.
Preamble:
That the Wakf Institution Asthan-e-Khadria (Sunni) is a notified Wakf property gazetted in the Official Gazette dated 7th June, 1965, and it’s notified Muthavalli Khaleefa Abdul Khader passed away on 6th May, 1994, and during his life, he has not appointed any successor for the management of the Institution; thus the post of Muthavalli is lying vacant ever since 6th September, 1994, and since there some vested interest persons have formed a self-styled committee without prior permission from the Board. Subsequently, a detailed enquiry was conducted and it has come to the notice of the Board that the late Muthavalli has treated this Wakf property as his individual properties, and it has also appears that the Khata of Wakf Institution transferred to his individual name. There are also complaints about the mismanagement of properties and of funds. It has further come to the notice that a major portion of the said Wakf properties has been let out without the knowledge and permission of the Board.
Thus, after careful examination of the facts and figures available on records, the Board has recovered to appoint Sri Syed Vali Pasha, Advocate, Bangalore, as the Administrator, to the said Wakf
Institution i.e., Asthan-e-Khadria notified at St. No. 217 of the Gazette Notification of Bangalore (Urban) District for the smooth functioning of the institution and to protect its interest and day-to-day administration. Hence this order.
ORDER
No. KBW.CMC.14.BNU/97-98, Bangalore, dated 17th July, 1997
For the reasons narrated in the preamble, and in the larger interest of the Wakf Institution, the Wakf Asthan-e-Khadria and its allied properties, movable and immoveable are taken under the direct management of the Board as per Section 65 of the Wakf Act, 1995, with immediate effect and until further orders.
It is further ordered that Sri Syed Vali Pasha, Advocate, Bangalore, is appointed as Administrator of the said Wakf Institution to manage the affairs of the institution and its properties and to look after the religious and spiritual ceremonies to be performed.
By Order of the Board
…..
Chief Executive Officer,
Karnataka State Board of Wakfs”.
2. Brief history of the case:
Petitioners are the legal representatives of late Khaleefa Abdul Khader, who was the sole trustee, beneficiary and Muthavalli of the Wakf Institution known as Asthan-e-Khadria.
3. One late Sri Peer Syed Hyder Shah Quadri Peer Bhidwala was acknowledged religious and spiritual leader acknowledged as such by the members of Cutchi Memon Community. His brother late Sri Peer Syed Nawaz Quadri Peer Bhidwala, who was also an acknowledged saint was buried in the land bearing Nos. 31 and 32, Jayamahal Road, Bangalore. Some time in the year 1935, his mother and wife were also laid to rest in the same land and a mausoleum is constructed over their graves. That is how it is said that Asthan-e-Khadria has come into existence. During his lifetime, it is said that late Sri Peer Syed Shah Quadri had made improvements in the land and also celebrated ‘urus’ and ‘fateha’ ceremonies of late Sri Peer Syed Shah Nawaz Quadri during the month of Rabu-Ul-Sani every year and also performed Fateha ceremonies of his wife and mother.
4. The spiritual leader, keeping in view the sentiments of members of Cutchi Memon Community and the spiritual significance of Asthan-e-Khadria had created a trust and had registered the same before the Sub-Registrar of Assurances, Bangalore North Taluk. Under the deed, the Board of Trustees had been constituted for the purpose of control and management of Asthan-e-Khadria and its properties and funds. Initially the Board of Trustees comprised of five life members and all of them were members of Cutchi Memon Community. Since the life trustees did not show sufficient interest in the affairs of the trust, the author
of the trust cancelled the earlier trust deed and fresh trust was formed and the deed came to be registered before the competent forum on 14-5-1953, associating with him only the father of the petitioners late Khaleefa Abdul Khader, who was helping him all along in the control and management of Asthan-e-Khadria and its properties and funds. By the said deed, the settlor of the trust had declared that himself and Khaleefa Abdul Khader will be the trustees to manage the affairs of Dargah Asthan-e-Khadria and during his lifetime, the second party will act under the general control, direction and supervision and after his death the second party shall be the sole trustee and would perform ‘urus’ and ‘fateha’ ceremonies and will be in possession of properties and funds of the Wakf Association. The final clause of disposition in the said deed is to the following effect:
“The second party is at liberty to nominate or appoint a sole or Board of Trustees in his place to be in management of the said Asthan-e-Khadria and its properties after his death”.
5. The case of the petitioners before this Court is that Khaleefa Abdul Khader, the sole trustee and the beneficiary passed away on 6-5-1994 and before his death at his bedside appointed petitioners 2 to 6 as trustees to carry on the activities of the private Wakf Asthan-e-Khadria and it is their further case that they assisted their father Khaleefa Abdul Khader in performing religious functions such as urus and fateha ceremonies.
6. To complete the narration of facts, there is one more aspect of the matter which requires to be noticed i.e., with regard to filing of Miscellaneous Petition No. 581 of 1996 before the Trial Court by Sri Hazi Abdulla Sait and Sri Omar Sait, members of Cutchi Memon Community under Section 92 of the Code of Civil Procedure against petitioners, inter alia seeking permission to institute a scheme suit to frame a scheme for the management of the Wakf Asthan-e-Khadria. The petition came to be dismissed by the learned Trial Judge by his order dated 7-6-1997 by holding that Asthan-e-Khadria is a private family trust and that the petitioners in miscellaneous petition has no locus standi to file a petition, seeking permission to institute a scheme suit to frame a scheme for the management of the private trust and the petition filed does not fall under the ambit and scope of Section 92 of the Code of Civil Procedure.
7. Petitioners further assert that petitioners in miscellaneous petition having failed in their attempt in getting permission to institute a scheme suit to frame a scheme for management of Asthan-e-Khadria, with the active assistance and co-operation from the third respondent herein has persuaded the Karnataka State Board of Wakfs to issue the impugned notification dated 19-7-1997 to take over under its direct management Wakf Asthan-e-Khadria and its properties and also to appoint an administrator to manage the affairs of the Wakf, its properties and funds.
8. The Board and the contesting respondents have filed their objection statement disputing the factual assertions made and resisting the relief sought in the writ petition. They contend that Asthan-e-Khadria is
a public Wakf and the same was notified as a Wakf property by the Board by issuing appropriate notification some time in the year 1965 as required under the Wakf Act, 1954 and Khaleefa Abdul Khader, had been notified as the Muthavalli to manage the affairs of the Wakf property. They further state that after the death of the notified Muthavalli, certain persons were claiming to be self-styled trustees and beneficiaries had been mismanaging the affairs of Asthan-e-Khadria, its properties and funds, which necessitated the Board to hold a detailed enquiry and based on the findings and in the best interest of the Wakf Institution, the Board had resolved to take over the management of the Wakf Institution, its properties and funds under its direct control. The Board also contends that Asthan-e-Khadria is not a private trust and the petitioners are neither trustees nor the beneficiaries under the trust deed. They further assert that during his lifetime Khaleefa Abdul Khader did not appoint or nominate a sole or Board of trustees to the management of Asthan-e-Khadria and its properties and after his death, the post of Muthavalli was lying vacant and the claim of the petitioner that they were appointed as Muthavallis to act in rotation and to take care of the interest of Asthan-e-Khadria is nothing but figment of their own imagination. The assertion made by the Board is supported by the other contesting respondents in their statement of objections.
9. Petitioners’ learned Counsel Sri L.S. Venkatakrishna while reiterating the factual assertions made in the petition submits that the impugned notification is bad in law and in violation of principles of natural justice, since the petitioners who are beneficiaries and persons interested in the Wakf Asthan-e-Khadria were not issued with any show-cause notice nor they were afforded a reasonable opportunity of hearing before taking over the Wakf Institution and its properties under its direct management in exercise of its power under Section 65 of the Wakf Act, 1995. Second limb of the contention is that the Board had no authority of law or jurisdiction to meddle and interfere with the management of private Wakf Institution. Thirdly, it is stated that the impugned notification is smacked with arbitrariness and suffers from legal mala fides. In support of these submissions, the learned Counsel draws my attestation to certain passages in the cases decided by Apex Court and other Courts.
10. Per contra, learned Counsel Sri D.L.N. Rao, for the Board contends that petitioners are not persons interested in the Wakf Asthan-e-Khadria and the committee constituted by them is a self-styled committee, which has no legal status whatsoever and therefore they cannot question the legality or otherwise of the notification issued by the Board in exercise of its powers under Section 65 of the Act and secondly submits that the Board was not obliged either under the Act or on the common law principle to issue any notice of enquiry or an opportunity of hearing to the petitioners before framing the notification dated 17-7-1997. Thirdly submits that by a notification dated 7-7-1965, the Board has notified the Wakf Asthan-e-Khadria as a Wakf property in the Official Gazette and since nobody had questioned the same before any forum at any point of time, petitioners now cannot contend that the Wakf
Institution is a private trust or private Wakf and the Board has no jurisdiction to take any steps to appoint an administrator for the management of Wakf Asthan-e-Khadria. Lastly, it is stated that on the admitted facts since only one conclusion is possible, even if this Court comes to the conclusion that there is violation of principles of natural justice while framing the impugned notification, this Court need not issue any writ, since no purpose would be served even if notice of enquiry is issued to the petitioners to afford them an opportunity of hearing. In support of these contentions, the learned Counsel relies upon the decision of this Court in the case of Karnataka Board of Wakfs v Masjid Aga and Another, Karnataka Board of Wakfs v Janab Abdul Azeez and the law laid down by Apex Court in the case of M.C. Mehta v Union of India.
11. From the arguments advanced by learned Counsels, the following issues fall for consideration. They are:
I. Whether the impugned notification is bad in law for want of show-cause notice to the petitioners who claim interest in the
Wakf Asthan-e-Khadria?
II. Whether the Board could have exercised its power under Section 65 of the Act to assume direct management of Wakf Asthan-e-Khadria without holding an enquiry?
III. Whether the Board is competent under the Wakf Act to interfere with the affairs of Wakf Asthan-e-Khadria which petitioners claim as a private Wakf/Trust?
12. To answer these issues in my opinion, it is necessary to notice the meaning of some of the expressions in the Wakf Act, 1995, insofar as they are relevant to the question as to the persons who are entitled to be heard. Section 3 of the Act is the dictionary clause. Section 3(a) defines the expression ‘beneficiary’ to mean a person or object for whose benefit a Wakf is created and includes religious, pious and charitable objects and any other object of public utility sanctioned under the Muslim Law. Section 3(r) defines the expression ‘Wakf’ which means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by Muslim Law as pious, religious or charitable. The expression ‘Muthavalli’ is an inclusive definition which means any person appointed either verbally or under any deed or instrument by which Wakf has been created or a Competent Authority to be a Muthavalli of a Wakf by virtue of any custom or who is Naib-Muthavalli, Khadim, Mujawar, Sajjadanashin, ameen or other person appointed by Muthavalli to perform the duties of a Muthavalli and same as otherwise provided in this Act, any person, committee or Corporation for the time being managing or administering any Wakf or Wakf property.
13. Section 3(k) or the Act defines person interested in a Wakf which means :
“any person who is entitled to receive any pecuniary or other benefits from the Wakf and includes:
I. any person who had a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf;
II. the Wakf and any descendant of the Wakf and the Muthavalli”.
14. This definition is wide enough to include not only persons entitled to any financial benefit but also other benefits. It includes worshippers and persona entitled to perform any religious rites or to participate in any religious or charitable institution under the Wakf. The Trustees or Muthavallis and the descendant of the Wakf and the Muthavalli is also covered by the definition. It seems to me, a person becomes a ‘person interested’ even if a person claims that he is the descendant of the Wakf and the Muthavalli. But the question would be whether such a person requires to be issued with notice of enquiry by the Board before exercising its powers under Section 65 of the Act. I will answer this a little later.
15. The assumption of direct management of certain Wakfs under certain circumstances by the Wakf Board is authorised under Section 65 of the Act. The said provision is as under:
“Assumption of Direct Management of certain Wakfs by the Board.–(1) Where no suitable person is available for appointment as a Muthavalli of a Wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling of a vacancy in the office of a Muthavalli is prejudicial to the interest of the Wakf, the Board may, by notification in the Official Gazette, assume direct management of the Wakf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification.
(2) The State Government may, on its motion, or on the application of any person interested in the Wakf, call for the records of any case for the purpose of satisfying itself as to the correctness, legality or propriety of notification issued by the Board under sub-section (1) and pass such orders as it may think fit and the order so made by the State Government shall be final and shall be published in the manner specified in sub-section (1).
(3) As soon as possible after the close of every financial year, the Board shall send to the State Government a detailed report in regard to every Wakf under its direct management, giving therein.–
(a) the details of the income of the Wakf for the year immediately preceding the year under report;
(b) the steps taken to improve the management and income of the Wakf;
(c) the period during which the Wakf has been under the direct management of the Board and explaining the reasons as to why it has not been possible to entrust the management of the Wakf to the Muthavalli or any committee or management during the year; and
(d) such other matters as may be prescribed.
(4) The State Government shall examine the report submitted to it under sub-section (3), and after such examination issue such directions or instructions to the Board as it may think fit and the Board shall comply with such directions or instructions on receipt thereof”.
16. Section 65 is on par with Section 43-A of 1954 of the Wakf Act. Sub-section (1) presupposes a vacancy in the office of Muthavalli of a Wakf. The section authorises the Board to assume direct management of the Wakf Institution in a case where no suitable person is available for appointment for the post of Muthavalli or where the Board is satisfied that the filling up of the vacancy will be prejudicial to the interest of the Wakf by issuing appropriate Gazette notification for a period not exceeding five years in the aggregate. The reading of the provisions clearly shows that it does not contain any provision for giving the concerned parties an opportunity to be heard before an order for assuming the direct management is made by the Board. But, the Courts have read into the provisions of the relevant sections, a requirement of giving a reasonable opportunity of being heard to the ‘persons interested’ in the Wakf before an order is made by the Board for assuming direct management of the Wakf Institution.
17. In the instant case, Board also does not dispute that before assuming the direct management of the Wakf Institution, they are required to give notice of enquiry to all the persons interested in the Wakf under Section 65(1) of the Act. They only contend that the petitioners are not persons interested in the Wakf and therefore, they are not entitled to any notice before taking recourse to Section 65(1) of the Act. Therefore, primary question that requires to be considered and decided is whether petitioners are persons interested in the Wakf.
18. The scheme of the Act seems to be to first deal with beneficiary, who is to get the benefits of the creation of the Wakf. Then we have Muthavalli which means any person appointed either verbally or under any deed by which a Wakf is created or by a Competent Authority and then comes persons interested. The ordinary meaning of the “person interested” is expanded in Section 3(k) for the purposes of this section to include not only persons entitled to any financial benefit but also other benefits. It includes worshippers and persons entitled to perform any religious rites or to participate in any religious or charitable institution under the Wakf. Most significantly it includes the Wakf and the descendants of the Wakf and the Muthavalli. The Courts are keen that a
person claiming interest in the Wakf should be heard before the Board of Wakfs assumes direct control of a Wakf Institution, for the sole reason that the interest of these persons are safeguarded against the arbitrary, unfair and unjust actions of the Board. Under Section 65 of the Act, Board can assume direct management of a Wakf Institution but only under two circumstances and the person interested may oppose such an action by the Board by demonstrating that they are suitable persons for appointment as Muthavalli and filling up of the vacancy will not be prejudicial to the interest of the Wakf. From the above it follows that a person interested in the Wakf requires to be heard by the Board before passing an order for assuming direct management of the Wakf concerned otherwise, the action would be arbitrary and in violation of principles of natural justice.
19. Now to demonstrate petitioners are persons interested in the Wakf, the facts may be once again noticed. The undisputed facts are that petitioner’s father late Khaleefa Abdul Khader, was the sole trustee appointed by the Settlor of the Trust, namely, late Peer Syed Hyder Shaw Quadri Bhidwala under the registered trust deed dated 14-5-1953 to manage the affairs and properties of Wakf Asthan-e-Khadria and to perform religious ceremonies such as ‘urus’ and ‘fateha’ ceremonies every year after his death. The deed specifically permitted the Khaleefa Abdul Khader to nominate or appoint a sole or a Board of Trustees in his place to manage the affairs of Wakf Asthan-e-Khadria and its properties after his death. The sole trustee appointed under the registered trust deed passed away on 6-5-1994. Their case before the Trial Court in the Miscellaneous Petition No. 581 of 1996 that the sole trustee-Khalifa Abdul Khader, who was ailing for some time before his death appointed them as Muthavallis to jointly manage and administer Asthan-e-Khadria at his bedside and such power bestowed by the settlor of the trust under a valid registered Trust Deed is accepted by the Trial Court and that order has become final. Their further case is that after the death of their father they have executed another trust deed dated 11-5-1994 constituting the Board of Trustees for the trust properties. Even this document is accepted by the Trial Court and is also taken into consideration while holding that the wakf in question is a private Wakf and not a public Wakf. A mention is made about this document only for the purpose that the petitioners in association with others are managing the affairs of the Wakf Asthan-e-Khadria and its properties and also are conducting the religious and spiritual functions such as ‘urus’ and ‘fateha’ ceremonies. Petitioners by their communication dated 9-7-1997 addressed to Chief Executive Officer of the Board reiterate that they are descendants of late Khaleefa Abdul Khader, who was the sole trustee, beneficiary and Muthavalli of the Wakf Institution in question and after the demise of their father they are managing the affairs of the Wakf Institution. Inadvertently and without foreseeing the implication they call themselves a ‘self-styled committee’ constituted by them to manage the affairs of the Wakf. Much was said on this expression by Sri D.L.N. Rao, learned Counsel for the Board to drive home the point that the self-styled committee cannot be a person interested in the Wakf. As I
have already noticed that this is a loose expression used by them in their communication and merely because they have called themselves a ‘self-styled committee’, they will not lose their original identity and their valuable right. Therefore, it seems to me that by virtue of Section 3(k) of the Act, petitioners are ‘persons interested’ in the Wakf since they are descendants of the Muthavalli and further since it is their case that they have been appointed to manage the affairs of the trust by the sole trustee and the Muthavalli in office while on death-bed to avoid the Wakf and its affairs being left uncared. Therefore, in my opinion, petitioners are not strangers and according to me, they do have some valuable right in the wakf Asthan-e-Khadria and therefore, they should be heard before the Board initiates proceedings under Section 65 of the Act. However, Sri Rao contends that the Wakf Asthan-e-Khadria was notified as a Wakf by the Board in exercise of its powers under Section 5(2) of the Wakf Act, 1954, on 7th June, 1965 and late Khaleefa Abdul Khader was appointed as Muthavalli and that notification has become final since persons interested had not questioned the same within the prescribed time. The learned Counsel also states that after the death of the notified Muthavalli on 6-5-1994, the post of Muthavalli was vacant and since the Board has not appointed the petitioners as Muthavallis or not recognised the committee constituted by the petitioners, they are not entitled to a notice of enquiry. In support of this assertion, the learned Counsel strongly relies on the observations made by this Court in Masjid Aga’s case, supra. In my considered opinion, the observations made by this Court in the said decision would not assist the Board. That was a case where the Wakf Masjid Aga was notified as Wakf under Section 5(2) of the Wakf Act, 1954. Respondents therein claimed to be the managing committee of the Wakf. The Board in exercise of its power under Section 43-A of the Act had passed an order to assume direct management of the Wakf Institution. The same was questioned by the committee before this Court on the ground that the action of the Board is in violation of principles of natural justice. Their contention was accepted by the learned Single Judge but in the appeal filed by the Board the Division Bench of this Court was pleased to observe:
“5. The contention urged on behalf of the appellant is, once it is admitted that the respondents were not appointed by the Wakf Board, merely because notice was issued proposing to take direct management under 43-A of the Act, that does not mean there is any necessity to hold a further enquiry on that notice after obtaining the reply of the respondents. From this point of view, the order of the learned Single Judge cannot be supported.
6. In opposing to this, the learned Counsel for the respondent would urge they would be Muthavallies within the meaning of Section 3(f) of the Act and therefore, the procedure under Section 43-A cannot be invoked at all. In such a case, the only possible way to remove the Muthavalli is in the manner contemplated under Section 43 of the Act. Hence, the order of the learned Judge does not call for any interference.
7. On a careful consideration of the above, we are of the view that the contention of the appellant has to be upheld because it is a common case between the parties that the respondents were not appointed as Muthavallis by the Wakf Board. In such an event, the question of giving notice to the respondents would not arise at all. Merely because the Wakf Board was generous enough in issuing a notice, it does not follow that the enquiry must be completed as directed by the learned Judge”.
20. The fact situation in the present case is totally different. Firstly, they claim their right to manage the affairs of the Wakf Institution on the ground that their father Khaleefa Abdul Khader was the sole trustee, and beneficiary of the private trust registered as such by the Settlor in the year 1954 and who was permitted under the deed to nominate or appoint Board of Trustees to manage the affairs of the trust. It is their specific case that during his lifetime he had appointed them as Muthavallies to jointly manage and administer the Wakf. Secondly, on the ground that they are descendants of the sole trustee, beneficiary and the Muthavalli of the Wakf Institution and lastly, in view the orders made by a Competent Civil Court in a Miscellaneous petition filed by the members of Cutchi Memon Community seeking permission to institute a scheme suit to frame a scheme for the management of Wakf Asthan-e-Khadria, wherein it has been held:
“Before his death, it was his desire to constitute a Board of Trustees for better management of the Trust and also to appoint Successor to manage the properties and in accordance with the said desire of him, this document has been executed by his sons constituting the Board of Trustees. The terms of this document also go to show that the said Trust properties are to be managed to conduct the ‘urus’ and for performing the ‘fateha’ of the persons burried in the said land, etc.”.
21. In this order, I am referring to all these aspects only to impress that petitioners have some right in the Wakf Institution and the same cannot be taken away by the Board without even issuing a notice to them. In this order, I do not intend to enter into the controversy whether the notification issued by the Board notifying the Wakf Asthan-e-Khadria a Wakf Institution in exercise of its power under Section 5(2) of the Wakf Act, 1954, has become final since nobody has questioned the same before a Competent Civil Court within the prescribed time nor do I intend to say that since the Board has not questioned the decree passed by the Civil Court in Miscellaneous Petition No. 581 of 1996 within one month of the Board’s knowledge of the decree as void, it has become final. These are large issues which requires to be decided by an appropriate forum in an appropriate proceedings.
22. ‘Notice’ means information, an advice or written warning, in more or less formal shape intended to appraise a person of some proceeding in which his interests are involved. Natural justice requires that persons to be directly affected by acts, decisions or proceedings of any authority be given adequate notice of what is proposed so that they may be in a
position to make representation. If this essential of justice is ignored and an order to the prejudice of a person is made, the order becomes nullity in the eye of law. Since these essential requirements are not followed in the present case by the respondent-Board, it is difficult to sustain their order which has been notified in the Official Gazette dated 17-7-1997. The reliance placed by learned Counsel Sri Rao on the observations made by Apex Court in the case of M.C. Mehta, supra, is clearly distinguishable inasmuch as in the said decision their Lordships were dealing with different fact situation altogether. Therefore, the said decision would not assist the respondents.
23. The problem posed before this Court can be looked in another angle also. The provisions of Section 65 of the Act in my opinion, are to be used by the Board under extraordinary and exceptional circumstances. The same to be resorted to in rarest of rare cases and may be very sparingly. Sub-section (1) of Section 65 postulates assumption power of direct management of Wakf, there must he a vacancy in the office of the Muthavalli of a Wakf. Secondly, the Board may exercise this power where no proper person is available for the post of the Muthavalli or the Board may assume direct management in cases of serious mismanagement, to reform administration of an institution; to remove the obstructions and evasive tactics of the trustees or Muthavallis. To take proceedings for later actions, the Board is expected to record its reason in writing that the filling up of the vacancy to the office of a Muthavalli is prejudicial to the interest of the Wakf before passing an order for assuming direct management of the Wakf concerned. Keeping in view the requirements of the section, let me now peep into the impugned notification.
24. The notification merely states that Wakf Asthan-e-Khadria is a notified Wakf property and its notified Muthavalli has expired and has not appointed any Successor for the management of the Wakf and thus the post of Muthavalli is lying vacant and some interested persons have formed self-styled committee without the permission of the Board. Secondly, it is stated that late Khaleefa Abdul Khader as a Muthavalli during his lifetime has mismanaged the Wakf properties. Apart from this, there is nothing else in the impugned notification.
25. The whole exercise to assume direct management of the Wakf Asthan-e-Khadria commenced, as can be seen from the records, on a complaint filed by one of the members of the Board dated 1-7-1997. Pursuant to this complaint and to take further action in the matter, the Assistant Secretary of the Board requested the Administrator of District Wakf Committee, Bangalore, to enquire and furnish a report which is! dated 7-7-1997. After enquiry, the Administrator furnishes his report to the Board by his report dated 9-7-1997 and then clearly states that ‘the persons belonging to then Muthavalli’ are managing the Wakf Asthan-e-Khadria, and the committee with the assistance of other devotees has performed all the spiritual rituals pertaining to the dargah after the death of sole trustee, beneficiary and Muthavalli. The report of the Administrator requires to be extracted and it is as under:
“D.O. No. DWC/11/B(U)/ADM/96-97/183
Date: 9th July, 1997.
From
Syed Ajaz Ahamed, KAS
The Administrator,
District Wakf Committee,
Bangalore (Urban) District.
Dear Maaz Ahamed Saheb, Sub: Appointment of a Committee for the management of Asthan-e-Khadria, Jayamahal Road, Bangalore. Ref: Board's letter No. KTW/CMC/14/BNU/97-98, dated 7-7-1997. I have read the letter written to Chief Executive Officer, Karnataka State Board of Wakfs, Bangalore, by Mr. Altai Hussain proposing a Committee for the management of Asthan-e-Khadria. On this proposal, you have asked us to furnish a report.
On perusing the letter of Mr. Altaf Hussain, we find that, the post of Muthavalli for Asthan-e-Khadria is vacant and no committee is functioning from 1994. On enquiry, I learnt that, the Asthan-e-Khadria popularly known as “Siyah Posh Dargah” is managed by a self-styled committee constituted by the persons belonging to the then Muthavalli Mr. Khaleefa Abdul Khader’s family. This committee with the assistance of other devotees has performed all the spiritual rituals pertaining to the Dargah, since the demise of past Muthavalli. The required Wakf contribution has been received in the past.
Keeping in view, the above facts, I feel it is appropriate to guide the present self-styled for registration, if required, some of the members from the list proposed by Mr. Altaf Hussain could be added to the Committee. As I do not find any allegations against the present self-styled committee, the same could be registered by giving proper advice to the existing members.
Mr. Mohamed Shafiq Arshad, whose name appears in the proposed lis of Mr. Altaf Hussain spoke to this office and he has expressed that, he need not be made any member of this committee.
With regards,
Yours sincerely,
Janab Maaz Ahmed Shariff Saheb, KAS,
Chief Executive Officer,
Karnataka State Board of Wakfs,
Bangalore-52″.
26. As I have noticed earlier, the Board can assume direct management of a Wakf Institution only under two circumstances. One is where no suitable person is available for appointment as Muthavalli or where the Board is satisfied that the filling up of the vacancy will be prejudicial to the interest of the Wakf. The Board is mandatorily required to record its reasons in writing. In the instant case, the Administrative Officer, who was asked to inquire and report specifically observes that the committee constituted by late Khaleefa Abdul Khader is managing the affairs of the Wakf Institution and also performing all the religious functions with the assistance of the members of Cutchi Memon Community. He further opines that there are no allegations against the committee which is managing the Wakf Institution. The Board after receiving the report docs not consider the same but merely obeys the dictates of one of its members. It was expected of the Board to have indicated in its order whether there was no suitable person or committee available for appointment as Muthavalli and at the same time should have indicated in its order filling up of vacancy will be prejudicial to the interest of the Wakf. The order made by the Board does not satisfy the requirements envisaged under Section 65 of the Act. Fair play requires recording of relevant and precise reasons when an order affects the rights of a person irrespective of the fact whether it is quasi-judicial or administrative. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It also aids this Court to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person. Since the order made by the Board does not contain precise reason, in my opinion, the order is arbitrary, unfair and unjust.
27. The other question that requires to be considered is whether the Board could have exercised its power to meddle with the affairs of Wakf Asthan-e-Khadria by issuing the impugned notification. The Board claims that the Wakf is a notified Wakf notified as such by a notification dated 7-6-1965 and that notification has become final since aggrieved persons have not questioned the same before a Competent Civil Court within one year from the date of publication of list of Wakfs. However, petitioners assert that in spite of such notification, the property comprised in the trust deed dated 14-5-1953 never got vested with the Wakf Board and the property continued to be in the name of late Khaleefa Abdul Khader who was the sole trustee and beneficiary under the trust deed. In support of this assertion they also rely upon the orders made by the Civil Court in Miscellaneous Petition No. 581 of 1995, wherein the Court has declared Wakf Asthan-e-Khadria is a private trust and not a public trust. These are disputed facts and the question involves investigation of complicated facts and recording of evidence. In my opinion, question posed cannot be satisfactorily decided without taking evidence of the parties. Therefore, I do not intend to decide this issue in this proceedings.
28. It seems to me that petitioners are persons interested in Wakf Asthan-e-Khadria. Their rights are affected by the impugned notification, Therefore, Board was obliged to issue them a notice of hearing.
Since that is not done, the impugned notification of the Board dated 17-7-1997 requires to be set aside. Accordingly, the following:
ORDER
I. Petition is allowed. Rule made absolute.
II. The impugned notification of the respondent-Board in No. KBW.CMC.14.BNU/97-98, dated 17-7-1997 is set aside.
III. Liberty is reserved to the respondent-Board to pass appropriate orders keeping in view the observations made in the course of the order. All the other contentions of both the parties are left open. Ordered accordingly.