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1987 DIGILAW 298 (KAR)

JANAB IMTIAZ ALI v. KARNATAKA BOARD OF WAKFS

1987-09-10

M.RAMA JOIS

body1987
RAMA JOIS J. ( 1 ) THE petitioner has presented this petition questioning the legality of the order made by the Wakf Board appointing a Managing Committee consisting of five persons for managing the affairs of Darga hazrath Kambafposh Shah Khadri, Bangalore, and also purporting to remove the managing Committee of the Darga. ( 2 ) THE facts of the case, in brief, are as follow : The second respondent- institution was established in the name of Holy Saint Hazrath Syed Shaw Mohi- dden Shah Kadri Kambolposh who was a preacher of Islam in the early parts of 19th Century. This institution was dedicated for the benefit of muslim community in general and in particular to the muslim community who reside in Broadway locality, Bangalore, In Original Suit no. 89/1952-53, the District Judge, Civil station, Bangalore, framed a scheme for the management of the institution on 19-9-1960. According to the Scheme, a managing committee consisting of 15 persons is required to be elected once in three years. The provision relating to election is contained in Section 24 of the scheme. It reads ; "section : 24 - Elections : the election of the muntazima shall be conducted once in three years. Three months before the expiry of the 3rd year the mun azima the in office shall appoint an election committee to hold elections of the institution. The committee snail consist of 5 members three members shall be non-residents and 2 residents of broadway locality who would not participate in the ensuing election. The munt zima shall place at the disposal of this committee for defraying the expenses of the election necessary funds Election committee shall be independent of the muntazima. 1. The election committee shall prepare and publish the electoral role within 15 days of the date of publications of electrol role the election committee received any representation for consideration and its decision shall be final. 2. In preparing the electrol roll the election committee shall include to the electrol roll the names of all those muslims who own 21 years age or above and had not otherwise disqualified under this scheme on the grounds of unsoundness of mind or convicted if an offence involving moral turptude or a habitual offence. 2. In preparing the electrol roll the election committee shall include to the electrol roll the names of all those muslims who own 21 years age or above and had not otherwise disqualified under this scheme on the grounds of unsoundness of mind or convicted if an offence involving moral turptude or a habitual offence. ( 3 ) AT least one month prior to the date proposed for holding the election the election committee shall publish a table of events and shall call for nomination papers from the candidates along with such fee as it would decide at its discretion. ( 4 ) AFTER receiving the nomination papers the committee shall scrutinise the papers if the papers are not in accordance if the candidate does not possess sufficient qualifications or suffers any disqualification the election committee shall reject the papers and intimate the candidate. ( 5 ) THE committee shall fix date for withdrawal of the nomination papers and after the expiry of such date the committee shall publish the list of the names of the candidates contesting the election as per final lists. ( 6 ) THE election committee shall submit a partition before the court of the Hon'ble District Judge Civil Station bangalore for appointing a commissioner to supervise the conduct of the election. ( 7 ) IMMEDIATELY after the election and counting of votes is over the commissioner shall declare the results. The election Commissioner shall intimate the names of the new elected muzlise mum amiza to the outgoing muntazima to the court of the names to be affixed to notice board for general information. ( 8 ) WITHIN 15 days of the declaration of results the election committee shall prepare a statement of accounts and a report and shall hand over the same to the muntzima and after that the election committee shall be deemed to be functus officio. " in terms of the above scheme, a managing committee had been elected and it entered office on 24-2-1984. Its term of office was to come to an end on 24-2- 1987. According to Section 24. extracted above the Managing Committee had to take steps for election of a new managing Committee. It appears that the managing Committee, for that purpose, also appointed an Election Committee on 7-2-1987. But for one reason or the other, the election was not held. According to Section 24. extracted above the Managing Committee had to take steps for election of a new managing Committee. It appears that the managing Committee, for that purpose, also appointed an Election Committee on 7-2-1987. But for one reason or the other, the election was not held. As a result on and after 24-2-1987 there was no managing committee elected in terms of the scheme. It is not disputed that there is no provision in the entire scheme that the Managing Committee elected once will continue in office notwithstanding its expiry of tenure of 3 years, until another managing committee is elected. In the circumstances, the Wakf Board made the impugned order. It reads : "the KARNATAKA BOARD OF WAKFS sub : Affairs of Dargah Hazrath kambalposh Shah Khadri (R. A.) hazrath Kambal Posh Road (Broadway Road), Bangalore-1, constitution of adhoc committee -regarding. Preamble : whereas the term of the appointment of the Managing Committee of the above Dargah has expired in February 1987. As per the Scheme of Management (Bye Laws) of the institut'on, elections have to be held to constitute a Managing Committee. This has to be expedited by giving directions to the election Committee entrusted withholding of the elections. And whereas in view of the grave allegations made against the present Managing committee of the above Dargah and the undesirable state of affairs of the institution existing now, it is not proper or wise to permit the Managing Committee to continue in management until elections are held. An Adhoc Committee for the limited purpose of looking after the day-to-day management of the institution has to be constituted until a regular managing committee is constituted by holding elections. Hence the following order : order No KTW 71 MSC BNU 85-86 dt. 20-7-1987. In view of the facts mentioned in the preamble above the present Managing committee of Dargah Hazrath Kambal posh Sha Khadri (R. A ) Hazrath kambaipost Road, Bangalore-1, is hereby removed from the management of the above said Largah as their tenure of office has long since expired and in its place an adhoc committee is hereby constituted under Sec. 16 of the Wakf act of 1954 comprised of the following five members for the interim period till the election are held for constituting a regular Managing Committee for the management of the above said Dargah as per the provisions of the scheme of management. Sriyuths :1. Syed Ali, Chairman, Dist. Wakf committee, Bangalore (U) Dist. (Chairman)2. Mirza Akabarulla, Muzrai Officer, karnataka Board of Wakfs, Bangalore (Secretary)3. Syed Muneer Ahmed, Vice Chairman, dist. Wakf Committee, Bangalore U dist. 4. Syed Usman Ali Jeelani, Member, dist. Wakf Committee, Bangalore U dist. 5. G. M. Mujeeb Qureshi, Member, dist. Wakf Committee, Bangalore U dist. By order of the Board, sd/- Secretary, karnataka Board of Wakfs. " questioning the legality of the said order, the petitioner who was the Vice president of the institution has presented this writ petition. 3. The first contention of the petitioner is that under the provisions of the wakf Act, the Wakf Board had only the power of superintendence and had no power to appoint a managing committee and therefore the impugned order was invalid The second contention of the petitioner is that even assuming that the wakf Board had the power to appoint a managing Committee, unless the existing managing Committee was removed after complying with the rules of natural justice, it could not appoint a managing committee. 4. Sri Janardhan, learned counsel for the petitioner, submitted that under section 16 of the Act, the Board had the power only to appoint a committee for supervision and the power to appoint a committee for supervision did not include the power to appoint a committee of management and hence the impugned order was ultra vires the powers of the board under the Act. Sri K. S. Savanur, learned counsel for the Board, submitted that the general superintendence of all wakfs in the State is vested in the Board and it is also the duty of the Board to exercise its powers under the Act so as to ensure that the wakfs under its super- intendance are properly maintained, controlled and administered. In this behalf, he relied on Sections 15 and 16 of the act, which read as under :"15. In this behalf, he relied on Sections 15 and 16 of the act, which read as under :"15. Functions of the Board : (1) subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established for the State ; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended. XXX XXX XXX 16. COMMITTEES OF THE BOARD : (1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of wakfs. (2) The constitution, functions and duties of such committees shall be determined from time to time by the board : provided that it shall not be necessary for the members of such committees to be members of the Board," section 16 no doubt speaks of appointment of committees for supervision of a wakf only and the power to make such appointment is conferred on the Wakf board. But sub-section (1) of Section 15 of the Act confers power of general superintendence over all wakfs in the state, on the Board and it further provides that it shall be the duty of the Board to exercise its powers under the Act so as to ensure that the wakfs under its superintendance are properly maintained, controlled and administered. From this it follows that once it is held that the board has got power of general superintendance over the wakfs, it has also the duty to ensure that they are properly maintained, controlled and administered. From the facts stated earlier, it is seen that the term of office of the Managing committee had come to an end on 24-2-1987 and there is no provision that the said managing committee would continue until another managing committee is elected. From the facts stated earlier, it is seen that the term of office of the Managing committee had come to an end on 24-2-1987 and there is no provision that the said managing committee would continue until another managing committee is elected. Therefore, the resultant position was that on and after 24-2-1987 there was no properly constituted Managing committee to administer the affairs of the Wakf It is in these circumstances, the Board, in discharge of its duties under the Act, has appointed a Managing committee for carrying on the day-to-day affairs of the wakf and that too only for a short period, that is, till the elections are held Therefore, it appears to me that the impugned order is well within the powers of the Board under sub-section (1) of Section 15, read with Section 16 of the Act. 5. The second contention urged for the petitioner would have been unexceptionable if the term of office of the managing Committee had not expired. If the term of office of the Managing committee had not come to an end and the wakf Board wanted to remove the members of the Managing Committee : assuming that they have the power to do so under sub-section (1) of Section 15 read with Section 16 of the Act ; such a power could be exercised only in conformity with the rules of natural justice. But in the present case, though the impugned order states that the Managing Committee was removed, actually there was no question of removing the Managing committee from office as they stood removed with effect from 24-2-1987 consequent on the expiry of the term of office for which they were elected. Therefore, the fact that an opportunity was not given is no ground to set aside the impugned order as the right of the petitioner and others, who were members of the Managing committee to hold office, had come to an end by efflux of time. 6. Another submission made by the learned counsel for the petitioner was that none of the five persons appointed were residing in Broadway area and therefore they could not have been nominated as Members of the Managing Committee. It may be that according to the scheme only Muslims residing in Broadway locality are eligible for being elected as the Members of the Managing committee. It may be that according to the scheme only Muslims residing in Broadway locality are eligible for being elected as the Members of the Managing committee. But that condition of eligibility would not apply for the purpose of appointment of persons by the Wakf Board as members of the Managing Committee during the period when there is no elected Managing Committee. 7. The only other point for consideration is about the apprehension of the petitioner that there is likely to be mismanagement by the Managing Committee appointed by the Board. The learned counsel for the Board submitted that the interest of the Wakf would be fully safeguarded by taking the following steps : (i) Keeping a perfect account regarding the income and expenditure relating to the institution ; (ii) Holding the election within a period of six months from today, and (iii) The present committee appointed by the Board would not make any alienation of the property belonging to the Wakf during the period of its management. The above submission made by the learned counsel for the Board is sufficient to safeguard the interest of the institution. 8. I should make it clear that in terms of Section 24 (6) of the Scheme, the Managing Committee nominated by the Board would make a petition before the District Judge, Civil Station, bangalore, for appointment of a Commissioner to supervise the conduct of election, and in making that appointment, an opportunity cf hearing shall be given to the petitioner. ( 9 ) IN the result, I make the following order : (I) The writ petition is dismissed, but subject to the submission made by the learned counsel for the Board recorded in paragraph 7 and the taking of steps for holding election, as indicated in paragraph 8 of this order. (II) No Costs. Prepare a carbon copy of this order and furnish the same to the learned counsel for the Board. --- *** --- .