JAMIA MASJID, MAGADI v. KARNATAKA BD. OF WAKFS — 1980 DIGILAW 224 (KAR)

K. A. SWAMI, J. ( 1 ) IN this petition under Art. 226 of the constitution the petitioner has sought appointment of mutawalli-Autho- 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 17-5-80 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 as Muzrai officer, expired on 20th august 1976. On 29th March 1977, the adminstrator, Wakf Board addressed a letter to the State Government stating that the term of the committee appointed under the aforesaid notification dated 21st August, 1973 expired on 20th August 1976 and a new committee be appointed for a period of two years and for that purpose, the Adminstrator, 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 17-5-80 (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 of 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 20-8-1976 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. Ex-post facto approval was also accorded for the continuance of the old committee from 20-8-1976 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 mean while, the state Government, by its order dated 11-7-1980 bearing No. RD 88 CWF 77 (Annexure-C), 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 Waki 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 nqt have issued the order dated 11-7-1980 modifying the earlier order dated 17-5-1980 without hearing the members of the out-going 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 out-going 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 Mutavallis 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 Govt. has the final say in the matter of appointment of Mutawallis or committee of management of a wakf. 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 Govt. 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 (hereinafter referred to as 'the Act') are very clear in this regard. Under sec. 15 (1) of the Act, the Wakf board which is a body corporated has 'been vested with the power of general superintendence of all the wakfs existing in the State. Sec. 15 (2) (g) of the Act empowers the Wakf Board to appoint and remove mutawallis in accordance with the provisions of the act. S. 42 further empowers the Wakf board to appoint mutawallis in certain cases. Sec. 43 of the Act empowers the wakf Board to remove mutawaills. Thus, in the matter of appointment and removal of mutawallis, it is the Wakf board which is empowered 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 Sec. 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 S. 63 of the Act. Sec. 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 Sec. 62 of the Act, to issue such general or special directions as it deems fit and the board shall in the performance of Us functions comply with any such directions. It empowers the State Government subject to any directions on questions of policy issued by the Central Government under Sec. 62 of the Act, to issue such general or special directions as it deems fit and the board shall in the performance of Us functions comply with any such directions. The general or special directions contemplated to he issued by the State Government under Sec. 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. Sec. 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 motawalli or mulla wallis 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 Sec. 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 order dated 17-5-1980 and 11-7-1980 issued by the State Government cannot have 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 'b') 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 11-7-80 (Annexure-C) issued by the State government does not have any legal force. As already pointed out, the petitioner has not challenged 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 the only authority that is empowered under the Act to, make appointments to the committee of management known as muta. wallis. Hence, the contention of the petitioner regarding hearing before issuing of the order dated 11-7-1980 (Annexure-C) by the State government loses all its importance and is of no consequences. ( 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 waks (1 ). 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 the committee of Mutawallis. They were not continued as members of the committee of management of the Wakf in question on the expiry 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. --- *** --- .