JUDGMENT
1. The appellant being aggrieved by the order of the learned Single Judge in Majlis-e-Millia, Dargah-e-Hazrath-Shamsuddin Auliya Trust, Bangarpet v. State of Karnataka and Ors., 2001(1) Kar. L.J. 126, has preferred this writ appeal.
2. The facts of the case as set-out by the appellant which ultimately led the appellant filing a writ petition unsuccessfully are as follows:
3. The Majlis-e-Millia, Dargah-e-Hazrath-Shamsuddin Auliya Trust, Bangarpet, Kolar District, is a registered Trust. A Muslim saint by name Hazrath Shamsuddin Auliya lived in Bangarpet Taluk of Kolar District in the early part of the century. Upon his death he was buried in Bangarpet Dargah area and a tomb in his memory came to be constructed. A Dargah Committee was constituted to lookafter and maintain the entire Dargah area, the tomb of Hazrath Shamsuddin Auliya and other structures. The Committee, known as Majlis-e-Millia was in full control of the affairs of the Dargah and its properties and always maintained a private and distinct identity. At no point of time the ownership and possession of the Dargah Committee over the Dargah area has been disputed by anybody including the respondents. It is submitted that in order to improve the property the Committee formed a Trust under the name of “Majlis-e-Millia Dargah Hazrath Shamsuddin Trust Bangarpet”, and registered it under the provisions of the Indian Trust Act on 15-3-1985. Thereafter, the Trust is in full control of the affairs of the Dargah.
4. It is submitted that after formation of the Trust a lot of developmental activities have taken place in the Dargah property. With the help of donors and philanthropic persons belonging to Muslim and Hindu Communities, the Trust has constructed.–1. A Shadi Mahal 2. Masjid-a-Shams, 3. Residential Quarters for the Masjid and Dargah staff, 4. Office Room, 5. Meeting Hall, 6. Mussaffir Khana and vacant space etc. (hereinafter referred to as ‘disputed properties’).
5. It is stated that at no point of time the Dargah and its properties were dedicated to the Wakf or treated as Wakf by the Wakf Board. However, Wakf Board tried to coerce the Trust to register them as a Wakf in the year 1990. On their instructions attempts were made by the District Wakf Committee, Kolar in this regard, in the year 1991. But the
petitioner did not agree for the proposal and the matter stopped at that stage.
6. The ex-Secretary of the 4th respondent submitted an application dated 5-9-1994 to the 2nd respondent for registering the properties of the appellant as Wakf properties. Public notice was also issued by the 2nd respondent. In response to the same the appellant has filed objections.
7. The 2nd respondent issued a notice dated 21-4-1995 informing that a meeting is convened on 27-4-1995 for discussion in connection with the registration of the properties under Section 25 of the Wakf Act.
8. It is submitted that on 27-4-1995 at the instance of the appellant, the proceedings came to be adjourned to 10-5-1995. The appellant submits that no representation could be made before the 2nd respondent on 10-5-1995 as its representative could not come over to Bangalore from Bangarpet on the same day of the receipt of the notice. Consequentially, the 2nd respondent proceeded to pass an ex parte order on 10-5-1995 recording that the objector-appellant did not appear till 5.30 p.m. Further, the 2nd respondent rejected the objections of the appellant without assigning any reasons whatsoever and passed an order dated 10-5-1995 as per Annexure-F.
9. Aggrieved by this the appellant filed the W.P. No. 17409 of 1995.
10. The learned Single Judge in a strongly worded order dismissed the writ petition filed by the petitioners. The learned Single Judge at paragraph 16 held as follows:
“16. Lot of time has been spent on this frivolous and misconceived petition. Therefore, it is a fit case for imposing costs on the petitioners.
For the aforesaid reasons, the writ petition is devoid of merit and it is accordingly dismissed with cost of Rs. 5,000/- (five thousand) payable proportionately by the four petitioners to respondents 3 and 4″.
11. The reasoning of the learned Single Judge appears in our view to be flawed. The learned Single Judge took upon himself the onus of dealing with the merits of the matter when what was sought for by the petitioners was only an opportunity to present their case before the Wakf Board at Bangalore where the matter was pending.
12. It was the contention of the petitioners before the learned Single Judge that the appellants sought for an adjournment on 27-4-1995 for furnishing the details. The case was adjourned to 10-5-1995. On 10-5-1995 when the case was called the appellants were absent and the Secretary of the Wakf Board pronounced the orders on 10-5-1995 itself without hearing the appellant.
13. All that the appellants wanted was that they should be heard in the matter so that the objections of the appellants could also have been taken into account before passing the orders.
14. In order to appreciate whether the principles of natural justice was complied with we perused the order sheet relating to this case.
15. It appears that a public notice was issued on the basis of a representation by a rival Trust (4th respondent) that additional properties existing and belonging to the Wakf Board should be formally registered. In response to the public notice the appellants have filed their objections on 31-10-1994. On 16-1-1995 according to the order sheet one Sri B.V. Purshotham, Advocate from Kolar also filed his objection for the registration of the said property. On 21-4-1995 the case was posted to 27-4-1995 and notice was issued to the appellant-Trust to be present on 27-4-1995 at 3 p.m. On 27-4-1995 the case was called, the appellants were also present and they requested for an adjournment for furnishing details in the case and the case was adjourned to 10-5-1995 at 3 p.m. On 10-5-1995 since the appellants were absent ex parte orders were pronounced. The order sheet of the Wakf Board from the file reads as follows.–
“THE
KARNATAKA BOARD OF WAKFS, BANGALORE-52
Present:
Secretary, Karnataka Board of
Wakfs
Applicant:
Secretary, Muslim Jamath Ahle Islam and Muslim Charitable Fund Trust,
Masjid-e-Azam, Bangarpet
Objector:
Haji Shaik Ismail, Bangarpet. No.
KTW/REG/13/KLR/94-95
No. KTW/REG/13/KLR/94-95
24-9-1994
The Secretary, Muslim Jamath
Ahle Islam and Muslim
Charitable Fund Trust,
Masjid-e-Azam, Bangarpet, in his letter dated 5-9-1994 has submitted a
proposal for the registration of additional properties existing in
Idgah, Ashoorkhana and Khabrasthan (Sunni), Bangarpet.
Issue public
notice.
Secretary.
21-10-1994
In response to public notice,
the Chairman, District Wakf Committee, Kolar, has submitted the mahazar drawn
up by the Inspector-cum-Auditor, Kolar.
Secretary,
The Karnataka Board
of Wakfs.
31-10-1994
One Mr. Shaik Ismail and
others have filed their objections to the registration.
Secretary,
The Karnataka Board
of Wakfs.
16-1-1995
Sri B.V. Purshotham, Advocate,
Kolar, has filed an application on behalf of Majlis-e-Mil-lia,
Dargah-e-Hazrath, Shamsuddin Auliya, Bangarpet, Kolar District, objecting for
the registration.
Secretary,
The Karnataka Board
of Wakfs.
21-4-1995
Case is posted to 27-4-1995 at
3.00 p.m.; issued notice to Mr. Shaikh Ismail.
Secretary,
The Karnataka Board
of Wakfs.
27-4-1995
Case called. Mr. Shaik Ismail is present. He requested a short
adjournment for furnishing the details in the case is adjourned to 10-5-1995
at 3.00 p.m.
Secretary,
The Karnataka Board
of Wakfs.
10-5-1995
Case
called. Objector is absent.
Order passed and pronounced.
Secretary,
The Karnataka Board
of Wakfs".
(emphasis supplied)
16. It was the contention of the appellants that the notice was served on 10-5-1995 at 12 noon and that the appellants could not be present since they had to come from Kolar to Bangalore to attend the hearing.
17. An endorsement of the Postal Department regarding service of notice has been placed before us as Annexure-P. Annexure-P in the rejoinder filed by the appellants before the learned Single Judge. It was submitted that the copy of the Annexure-P was obtained on 23-6-1995 which indicates that notice was served for the appearance of the appellants on 10-5-1995 by the Wakf Board and the postal acknowledgment also indicates that the same was delivered on 10-5-1995. Thus, it was the case of the appellants that it was not possible for the appellants to be present at Bangalore, since they received the notice only on 10-5-1995 at Bangarpet.
18. The learned Single Judge zealously made an in-depth study and came to the conclusion that the order sheet on 27-4-1995 revealed that the case was adjourned to 10-5-1995 at 3 p.m. and since the appellants were very much present on 27-4-1995 they had knowledge of the date of hearing on 10-5-1995.
19. The learned Single Judge in that view of the matter also justified the ex parte order passed by the respondent 2.
20. The learned Single Judge was conscious of the fact that it was not open for this Court under Article 226 of the Constitution to go into disputed questions of fact. At paragraph 12 of the order the learned Single Judge held as follows.–
“12. Assuming that the contention taken by the petitioners in the rejoinder is true, since it is a disputed question of fact, the
same cannot be gone into in writ jurisdiction by this Court. The proper forum for the petitioners is to establish its right in the jurisdictional Civil Court. On this ground also the writ petition is liable to be dismissed in limine”.
21. Having held so the learned Single Judge went into the disputed questions of fact minutely and decided that the property was Wakf property and dismissed the writ petition with exemplary cost.
22. On the one hand, the learned Single Judge perfectly understood the limitation of the Court while dealing with disputed questions of fact and on the other hand, erroneously dealt with the merits of the case and foreclosed the appellants from adducing evidence and placing materials before the 2nd respondent or before the Civil Court.
23. A finding was rendered by the learned Single Judge that once the appellants stated that the funds are raised from the public and improvements have been made, private identity no longer exists and it becomes a public Trust.
24. Although, it was not necessary for the Wakf Board to have filed its objections, it would have been prudent and in the interest of justice and equity that the Wakf Board ought to have filed its objections before the learned Single Judge. Even that was not done before the learned Single Judge and the entire case was disposed off on the basis of the records and objections filed by the rival Trust (4th respondent) and after hearing the Counsel for the Wakf Board.
25. The approach of the learned Single Judge cannot be faulted in not requiring the Wakf Board to file its objections. But, equally when averments were made in the writ petition that the appellant-Trust could not be present when the case was called on 10-5-1995, it would have been appropriate for the learned Single Judge to have called upon Wakf Board to file its objections which in fact is really the contesting respondent.
26. Chapter IV of the Wakf Act, 1954 (hereinafter referred to as ‘the Act’) deals with Registration of Wakfs. Section 25 deals with registration of every Wakf created before or after the commencement of the Act.
27. Section 25(5) indicates that every application for registration shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure.
28. Section 25(7) relates to any receipt of application for registration and if any application is received by the Board, the Board shall before registration of the Wakf give notice of the application through the person administering the Wakf property and shall hear him if he desired to be heard.
29. Section 25(8) relates to the period of limitation for the creation of Wakf.
30. In other words, in Chapter IV, Section 25 deals with registration of Wakfs.
31. The public notice in this case was under Section 25 of the Act. The meeting notice dated 3-5-1995 addressed to the appellants was in fact for discussion in connection with the registration of Masjid-e-Shams, Shams Memorial Hall and Dargah of Hazrath Shamsuddin Auliya, under Section 25 of the Wakf Act, 1954.
32. However public notice dated 24-9-1994 seems to indicate that the registration was with respect to additional properties under Sections 25 and 26 of the Act. It is not known how Section 25 applies unless it was the intention of the Wakf Board to register the Schedule properties as of Wakf for the first time.
33. Mr. D.L.N. Rao, appearing for the Wakf Board vehemently submitted that although notice was under Sections 25 and 26 of the Act, the matrix of the notice was registration of additional properties. He further submitted that the registration of additional properties would be only under Sections 27 and 28 of the Act and not under Section 25 of the Act.
34. Section 27 of the Act deals with the right of the Board to collect information where some properties have been left out and should be included as Wakf properties.
35. Section 28 of the Act deals with the right of the Wakf Board to direct the Mutawallis to apply for registration of Wakf properties which has been left out and to register the same as Wakf property.
36. Mr. D.L.N. Rao, learned Senior Counsel for the Wakf strenuously submitted that even on 21-7-1965 the Idgah, Khabrasthan, site for mosque, Ashroorkhana, Masjid-e-Azam was already registered as Wakf property under Section 5(2) of the Act.
37. On 2-9-1994 the trustees gave, a representation for the buildings built on the Wakf property to be registered as Wakf properties.
38. However, the learned Counsel submits that from 1965 till 24-9-1994 the additional properties were not brought within the scheme of Wakf properties due to Mutawallis not taking diligent steps.
39. It was the contention of the Wakf Board that the additional properties are only improvements made in the original Wakf property which was registered on 21-7-1965 as Wakf property.
40. Mr. Vijayashankar, learned Counsel for the appellant submitted that public notice having been given under Section 25 of the Act cannot be converted as a notice under Sections 27 and 28 of the Act. It was further submitted that the identity of the properties in dispute has nothing to do with the Idgah which was Wakf property and registered as such on 21-7-1965.
41. The learned Counsel for the appellant relied on various documents and submitted that the properties in question belong to the appellant-Trust and the dargah is not a Wakf registered institution. It was sought to be argued that the proceedings were under Section 25 and not under Sections 27 and 28 of the Act.
42. It was also submitted that if an opportunity was given to the appellants the appellants would establish before the Board that the
properties in question is not a Wakf property and is being managed by the appellants under the registered Trust deed. It was further submitted that the finding of the learned Single Judge on disputed questions of fact has nullified the rights of parties where evidence will have to be adduced in an enquiry.
43. We are particularly concerned with the question whether the 2nd respondent was justified in passing an ex parte order on 10-5-1995 on disputed questions of fact.
44. We have carefully perused the impugned order passed by the 2nd respondent. In the preamble only the case of the rival Trust (the complainant) has been set-out. There is no reference even in the preamble to the case put forward by the appellants. The latter part of the preamble states that the appellant sought for an adjournment for furnishing details in the matter and the case was adjourned to 10-5-1995 at 3 p.m. The preamble further adds “the case called on 10-5-1995 at 3 p.m. The objector has not appeared till 5.30 p.m., hence this order”.
45. Then we come to the operative portion of the impugned order. The operative portion of the impugned order without assigning any reason states that the case of the appellant stands rejected and disputed property was ordered to be registered as Wakf property under Sections 25 and 26 of the Act.
46. Mr. D.L.N. Rao, learned Counsel for the 2nd respondent justified the order of the 2nd respondent and submitted that it was an open and shut case since the disputed property was already registered as Wakf property as far back as in the year 1965 and what was sought to be added as Wakf property was the superstructure on the disputed property under Section 27 of the Act. He also submitted that the notice was erroneously sent under Section 25 of the Act.
47. In these circumstances it was submitted by Mr. D.L.N. Rao that the appellants had no case to answer and no useful purpose will be served by remanding the matter.
48. We are not able to pursuade ourselves to accept the submissions of Mr. Rao, learned Counsel for the Wakf Board for the simple reason that a Statutory Authority must give valid reasons and pass a speaking order once objections are called for from the public. It is not open for us to go behind the order particularly in a case where there are disputed questions of fact and more particularly when the appellant was not heard,
49. The Supreme Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner. New Delhi and Ors., , has dealt with the situation succinctly. The Supreme Court at paragraph 8 held as follows.–
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it conies to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Commissioner of Police, Bombay v. Gordhandas Bhanji, :
“Public orders publicly made, in exercise of a Statutory Authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older”.
50. We do not wish to dwell at length as to whether the disputed property stand on a Wakf property or not. We also do not wish to give any finding on whether the public notice is under Section 25 or under Sections 27 and 28 of the Act. We equally do not wish to deal with the case of the appellant on merits. All that we can say is that there are disputed questions of fact which have not been addressed to by the 2nd respondent. Those questions of fact have been clearly stated in the objections filed by the appellant before the 2nd respondent. The appellant for whatever reason could not be present to furnish details on 10-5-1995. In these circumstances and in the interest of justice and equity it would be appropriate to give the appellant-Trust one more opportunity to present its case before the 2nd respondent.
51. We have been assured by Mr. Vijayashankar, learned Senior Counsel for the appellant that the appellant will fully co-operate with the 2nd respondent for an early resolution of the dispute. We accordingly set aside the judgment of the learned Single Judge and the impugned order passed by the 2nd respondent dated 10-5-1995 at Annexure-F and remand the matter to the 2nd respondent for disposal of the dispute.
52. The appellant undertakes to be present before the 2nd respondent on 11-11-2002 at 11.00 a.m. without fail. The 2nd respondent shall also hear the other parties who are already before the Board in the proceedings and dispose off the matter in accordance with law without being influenced by any observations made by the learned Single Judge or by this Court.
53. All contentions are left open. Pending enquiry before the 2nd respondent the appellant-Trust shall not alienate or create third party
rights in the disputed property and shall render accounts to the 2nd respondent periodically. No costs.