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Jamia Masjid Magadi Town vs Karrataka Board Of Wakfs, … on 25 August, 1980

Karnataka High Court
Jamia Masjid Magadi Town vs Karrataka Board Of Wakfs, … on 25 August, 1980
Equivalent citations: AIR 1981 Kant 37, ILR 1981 KAR 171, 1981 (1) KarLJ 63
Bench: K Swami


ORDER

1. In this petition under Article 226 of the Constitution the petitioner has sought for quashing of the order dated 11-7-1980 passed by the State Government in No. RD. 88 CWF 77 (Annexure-C) and also for a writ in the nature of mandamus directing respondents 1 and 2 to notify and hear the committee of management constituted under the order dated 17-5-1980 passed by the State Government in No. RD 88 CWF 77 (Annexure-B).

2. There is a wakf known as Jamia Masjid at Magadi. This institution came to be handed over to the Wakf Board on 21st April, 1975 by the Muzrai Department. The term of the committee which was constituted to manage the affairs of the wakf in question under the Notification dated 21st August, 1973 by the Assistant Commissioner, Ramanagaram, Muzrai Officer, expired on 20th Aug., 1076, On 29th March, 1977, the Administrator, Wakf Board addressed a letter to the State Government stating that the term of the committee appointed under the aforesaid notification dated 21st Aug., 1973 expired on 20th August, 1976 and a new committee be appointed for a period of two years and for that purpose, the Administrator, Wakf Board, also suggested certain names. Those names are found in Annexure-A.

3. Sri Syed Hyder Saheb was proposed to be the President of the committee. Thereafter, the State Government, by its order dated 17-5-1980 (Annexure-B) bearing No, RD 88 CWF 77, accorded its approval for constituting the new committee of management consisting of the persons named in Annexure-A for a period two years from the date of publication or until further orders whichever is earlier. Ex post facto approval was also accorded for the continuance of the old committee from 20-9-1976 till the date of notification constituting the committee as approved by the order dated 17-5-1980 (Annexure B). Pursuant to the order dated 17-5-1980 (Annexure-B), the Wakf Board has not issued an order constituting the committee of management. But, in the meanwhile, the State Government, by its Order dated 17-5-1980 bearing No. RD 88 CWF 77 (Annexure-B), has cancelled the earlier order dated 17-5-1980 and has accorded approval for reconstitution of the Committee of management consisting of different persons i.e. respondents 3 to 9 for a temporary period of four months from the date of issue of the order by the Wakf Board. The validity of this order Annexure ‘C’, is challenged in this writ petition.

4. One more fact to be noticed is that pursuant to the ‘ order dated 11-7-1980, the Wakf Board has issued an order dated 11-7-1980 (Annexure R-5) reconstituting the committee of management. Respondents 3 to 9 are named as members of the committee of management of the Wakf in question and respondent No. 3 as convenor of the said committee. It is also to be noticed that the petitioner has not challenged the validity of the order dated 11-7-1980 (Annexure R-5) issued by the Wakf Board.

5. The contention of the petitioner that the Government could not have issued the order dated 11-7-1980 modifying the earlier order dated 17-5-1980 without hearing the members of the outgoing committee, is not of any material consequence, and it cannot at all be accepted. It is to be noticed that the term of the members of the outgoing committee expired as long back as on 20th August, 1976. Thereafter, there is no order passed by the Wakf Board appointing them as members of. The Managing Committee or as Mutawallis of the Wakf in question or at least continuing them as members of the committee. But, somehow, they have continued to remain in the office even to this day. In this connection, it is to be noticed that the Wakf Board as well as the State Government have proceeded on the basis that the State Government has the final say in the matter of appointment of Mutawallis or committee, of management of a wakf. The provisions contained in the Wakf Act, 1954 (here in after referred to as ‘the Act’) are very clear in this regard. Under Section 15(1) of the Act, the Wakf Board which is a body corporate has been vested with the power of general superintend price of all, the wakfs existing in the State. S. 15 (2) (g) of the Act empowers the Wakf Board to appoint and remove mutawallis in accordance with the provisions of the Act. Section 42 further empowers the Wakf Board to appoint mutawallis in certain cases. Section 43 of the Act empowers the Wakf Board to remove mutawallis. Thus, in the matter of appointment and removal of mutawallis, it is the Wakf Board which is empowerled under the provisions of the Act. As far as removal of a mutawalli is concerned, the order of the Wakf Board removing a mutawalli is made appealable and an appeal lies to the State Government under Section 43 (4A) of the Act and the order of the Government on appeal is made final. But this power enjoyed by the State Government is only as an appellate authority and not as an original authority. There is no provision contained in the Act making it necessary for the Wakf Board to seek an approval of the State Government in the matter of appointment- or removal of the mutawallis. The only provision that can be relied upon by the State Government is Section 63 of the Act. Section 63 ‘ does not enable the State Government to have a final say in the matter of appointment or removal of mutawallis of the wakfs. It empowers the State Government subject to any directions on questions of policy issued by the Central Government under Section 62 of the Act, to issue such general or special directions as it deems fit and the Board shall in the performance of its functions comply with any such directions. The general or special directions contemplated to be issued by the State Government under Section 63 of the Act, must be of general application, and required to be complied with by the Wakf Board in the performance of its functions. Section 63 of the Act, does not empower the State Government to assume the powers of the Wakf Board, nor does it enable the state Government to direct the Wakf Board to get the appointment of mutawallis or committee of management of a wakf approved by the State Government. Such directions would be contrary to the provisions of the Act The power under Section 63 of the Act, cannot be exercised so as to affect the exercise of the power by the Wakf Board as intended by the several provisions ,contained in the Act. In this view of the matter, it is thus clear that the entire proceedings have been carried on, on a wrong assumption of law. That being so, the orders D/- 17-5-1980 and 11-7-1980 issued by the State Government cannot 1have any legal force. At any rate, the Wakf Board has not issued any order pursuant to the order dated 17-5-1980. That being so, the petitioner, namely, Sri Syed Hyder Saheb and other members of the committee whom the petitioner asserts to represent, cannot have any legal right in the matter because their term expired on the 20th August, 1976 and thereafter, they have not been continued.

6. From what has been stated above, it follows that there is no power vested in the State Government either to appoint or accord approval to an appointment of mutawalli or mutawallis or committee of management of a wakf, as such, the order dated 17-5-1980 (Annexure W) did not have the effect of continuing in the office the members of the old committee (Sri Syed Hyder Sab and others), Similarly, the order dated 11-7-1980 (Annexure-C) issued by the State Government does not have any legal force. As already pointed out, the petitioner has not challenger] the order dated 11-7-1980 (Annexure R-5) issued by the Wakf Board appointing respondents 3 to 9 as the members of the managing committee of the Wakf in question, and as already pointed out, the Wakf Board is ‘he only’ authority that is empowered under the Act to make appointments to the committee of management known as mutawallis. Hence, the contention of the peti. tioner regarding hearing before issuing of the order D/- 11-7-1980 (Annexure-C) by the State Government loses all its importance and is of no consequence.

7. Sri K. S. Savanur, learned counsel for the petitioner, relied on a decision of this Court in Syed Mohammed Peer Pasha Khadri v. Karnataka State Board of Wakfs reported in (1979) 2 Kant Li 501. That was a case of removal of a mutawalli and against the order of the Wakf Board removing the mutawalli, there was an appeal preferred before the State Government and it was held by this Court that appellant was required to be heard by the appellate authority before passing an order. in the instant case as already pointed out, there is no question of removal of Sri Syed Hydersab and others from the committee of management otherwise known’ as ‘he committee of Mutawallis. They were not continued as members of the committee of management of the Wakf’ in question on the expirv of the term. of the committee on 20-8-1976, by the Wakf Board. Thus it is not at all a case of removal of the members of the committee of management. That being so, the aforesaid decision is not relevant in the present case. It is also not necessary -to quash the order dated 11-7-1980 (Annexure-C) issued by the State Government as it is held that the said order has no legal force.

8. For the reasons stated above, this writ petition fails and the same is dismissed.

9. The learned II, Additional, Government Advocate is permitted, to file his memo of appearance for respondent No. 2, in six weeks.

10. Writ petition dismissed.

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