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2017 DIGILAW 824 (KAR)

Khasimkhan Khan v. State by its Chief Secretary

2017-05-04

B.S.PATIL

body2017
JUDGMENT : 1. This petition is filed by respondent No.1 in Application No.5/2004 before the Karnataka Wakf Tribunal, Bengaluru, aggrieved by the order dated 28.06.2010 passed by the Tribunal allowing the said application filed by respondents 3 & 4 herein namely Sri Baba Jan Sab and Md. Akbar respectively. They had filed the said application under Section 83(2) of the Wakf Act, 1995 seeking the following reliefs: i. declaring that the villagers of Muslim Community from Shaik Ali Risala and Ahmed Khan Risala Village of Hollena Halli Grama of Thippasandra Hobli have right to use as Khabarstan burial ground (the suit schedule properties; ii. pass an order permanently restraining the respondents and other residents of Ahmed Khan Risala Village Muslim Community from interfering with the enjoyment of the schedule lands as Khabarstan lands of Hollenhalli Grama Panchayat along with costs of this suit. 2. The suit schedule lands are land bearing Sy.No.9 measuring 2 acres 11 guntas, Sy.No.10 measuring 3 acres 22 guntas and Sy.No.11 measuring 38 guntas situated at Hullenhalli Village, Thippasandra Hobli, Magadi Taluk. They are described with common boundaries in the application. 3. According to the applicants/respondents 3 & 4 herein, they are residents of Shaik Ali Risala of Thippasandra Hobli, whereas, respondents therein are residents of Ahmed Khan Risala of Thippasandra Hobli, both situated in Magadi Taluk, the suit schedule wakf properties, fell within the jurisdiction of Hullenahalli Gram Panchayat; they were meant for the purpose of burial of dead bodies of people belonging to muslim community of the two hamlets (Shaik Ali Risala and Ahmed Khan Risala). Applicants contended that people of both the hamlets were using the suit schedule lands as burial ground and there were several tombs of both the villagers. 4. It is the case of the applicants that a notification dated 29.09.1965 was issued under Section 5(2) of the Wakf Act by the Karnataka State Board of Wakfs (for short, ‘Wakf Board’), which was published in the Karnataka Gazette dated 08.02.1968 declaring the suit schedule lands as wakf properties. In the said notification, Sy.No.11 measuring 3 acres 38 guntas was shown as Khabarstand Sunni of Ahmed Khan Risala Village. In the said notification, Sy.No.11 measuring 3 acres 38 guntas was shown as Khabarstand Sunni of Ahmed Khan Risala Village. However, subsequently, the Wakf Board issued a corrigendum dated 29.09.1988 which was published in the Karnataka Gazette on 06.07.1989 by which the name of the wakf was shown as Khabarstan Sunni and survey numbers were shown as of Hullenahalli Grama, Thippasandra Hobli, Magadi Taluk and the name of Ahmed Khan Risala Village was deleted. It is thus contended that people of muslim community of both the hamlets namely Shaik Ali Risala and Ahmed Khan Risala were entitled to use the suit schedule lands as khabarsta (burial ground). However, respondents therein of Ahmed Khan Risala village obstructed the use of suit schedule lands by Shaik Ali Risala Villagers as burial ground and therefore, applicants were constrained to file an application before the Wakf Tribunal seeking aforementioned reliefs. 5. This application was contested by the present petitioner along with other respondents in the application contending inter alia that the suit schedule lands were granted in favour of Ahmed Khan Risala village for educational purpose and also for the purpose for conducting prayers during Moharram and Idgah and also as burial ground. They urged that the competent authority of the Wakf Department periodically appointed a Committee to manage and look after the affairs of the suit schedule lands and the said committee was looking after the affairs of the suit schedule lands submitting their periodical reports to the concerned authorities. According to respondents therein, the Committee, which was in charge at the time when the objection was filed, was appointed by the Chief Executive Officer of the Wakf Board vide order dated 04.10.2002. 6. Defendant No.1/petitioner herein contended that he was the President of Masjid-E-Ahmed Khan Risala and was managing the affairs of the suit schedule lands. He denied the rights of the residents of Shaik Ali Risala to use the suit schedule lands particularly Idgah and space meant for conducting prayers. 6. Defendant No.1/petitioner herein contended that he was the President of Masjid-E-Ahmed Khan Risala and was managing the affairs of the suit schedule lands. He denied the rights of the residents of Shaik Ali Risala to use the suit schedule lands particularly Idgah and space meant for conducting prayers. In paragraphs 14 and 15 of the objection, respondents therein have contended that on the eastern side of the suit schedule lands, a portion of the land had been earmarked for burial ground and Idgah was located on the western side; there was a common line between two lands; fencing was put up to separate the grave yard from other vacant land in between the Idgah and Khabarstan, but the residents of Shaik Ali Risala destroyed the fencing claiming that they had right over the entire suit schedule lands. In sum and substance, they contended the residents of Ahmed Khan Risala were allowing the residents of Shaik Ali Risala to burry the dead bodies of deceased persons belonging to muslim community up till 23.10.2003, but thereafter, when the residents of Shaik Ali Risala destroyed the fencing which separated the grave yard from other vacant lands situated in Sy.Nos.9, 10 and 11, the Managing Committee was constrained to lodge a complaint before the Wakf Board as well as before the police. In this background, they have denied the fact that there is any legal right in favour of the residents of Shaik Ali Risala to use the suit schedule lands for any purpose and to seek the reliefs as sought in the application. 7. Before the Tribunal, both parties have led evidence. For the applicants, applicant No.1 – Baba Jan has been examined as P.W.1 and Exs.P1 to P4 were produced and marked. For the respondents, three witnesses have been examined and no documents were marked. The Tribunal has framed following points for consideration: i. Whether the applicants prove that the suit schedule properties are the wakf properties and they are meant for the purpose of burial of dead bodies of muslim community people of Ahmed Khan Risala and Shaik Ali Risala Villages? ii. Whether the applicants further proves the interference by the respondents in burying the dead bodies of people of muslim community of Shaik Ali Risala Village in the suit property? iii. ii. Whether the applicants further proves the interference by the respondents in burying the dead bodies of people of muslim community of Shaik Ali Risala Village in the suit property? iii. Whether the respondents 1 to 10 proves that the portion of the suit schedule properties at S1.Nos.155 and 156 are being used by residents of Ahmed Khan Risala for the purpose of burial ground? iv. Whether the respondents 1 to 10 proves that the suit lands are granted in faovur of Ahmed Khan Risala purely for the purpose of education, prayer, Moharram, Idgah and burial purpose as alleged in the objection statement? v. Whether the respondents proves that in the year 1989 the Wakf Board has issued gazette notification showing Sy.Nos.9, 10, 11 in the name of Ahmed Khan Risala as alleged? vi. Whether the applicants are entitled for the relief as prayer for? vii. What order? 8. The Tribunal has answered point No.1 in affirmative holding that the applicants were able to establish that the suit schedule properties were wakf properties meant for the purpose of burying the dead bodies of the people belonging to muslim community of both Ahmed Khan Risala and Shaik Ali Risala villages. It has also found that the applicants were able to prove the interference by the respondents in the burial of dead bodies of people belonging to muslim community of Shaik Ali Risala in the schedule properties. The claim made by respondents 1 to 10 before the Tribunal that portion of schedule properties were being used by residents of Ahmed Khan Risala as burial ground has been negatived. It has also held that there was no substance in the claim of respondents 1 to 10 that the schedule lands were granted in favour of Ahmed Khan Risala purely for educational purpose, prayer, Idgah, etc. The Tribunal has upheld the claim made by the residents of Ahmed Khan Risala and has allowed the application. 9. Contention urged by the learned counsel for the petitioner is that the entire lands are not used as burial ground, inasmuch in as a portion of the land, Idgah is situated, particularly in Sy.No.9 where prayers are conducted and therefore, the Tribunal was not right and justified in issuing a declaration that the suit schedule lands were used by both the villagers as burial ground. It is his next contention that burial ground and Idgah are managed by the Committee consisting of villagers of Ahmed Khan Risala duly appointed in this regard by the Wakf Board and therefore, the villagers of Shaik Ali Risala had no right to interfere with the management of suit schedule lands by the Committee duly constituted in this regard. It is lastly contended by the learned counsel for petitioner that though the suit schedule lands are situated in Hullenahalli grama, Shaik Ali Risala village does not fall within the jurisdiction of Hullenahalli, but falls within the jurisdiction of Tavarekere village and therefore, the premise on which the corrigendum was issued on 29.09.1989 and the order passed by the Tribunal suffer from illegality. 10. Counsel for the respondents strongly supports the findings recorded by the Tribunal and submits that admittedly the villagers of both Ahmed Ahmed Khan Risala and Shaik Ali Risala villages have been burying the dead bodies of their villagers belonging to muslim community in the suit schedule lands and therefore, the Tribunal has rightly issued a declaration in this regard. He submits that the question of Management of Idgah or for that matter, the burial ground is not the subject matter of this dispute and therefore, the writ petition is liable to be dismissed. He also points out that as the Tribunal has based its findings on appreciation of evidence, both oral and documentary, this court in exercise of power and jurisdiction under Articles 226 & 227 of the Constitution cannot upset such findings unless any perversity is pointed out in the impugned order. 11. Upon hearing the learned counsel for both parties and on consideration of materials on record. I find that as per Annexure-A- notification dated 08.02.1968, suit schedule lands were declared as wakf properties of Ahmed Khan Risala meant for educational purpose and for prayer during Moharram and also for burial. Indeed, at the time of issuance of this notification, survey numbers, extent and boundaries were not properly shown. Subsequently, a corrigendum was issued on 29.09.1988 which is produced at Annexure-A1, whereunder it is stated that Sy.No.10 measuring 3 acres 22 guntas and Sy.No.11 measuring 38 guntas of Hullenahalli Village, Thippasandra Hobli, Magadi Taluk are wakf properties. The name of wakf has been shown as Khabarstan (sunni). Subsequently, a corrigendum was issued on 29.09.1988 which is produced at Annexure-A1, whereunder it is stated that Sy.No.10 measuring 3 acres 22 guntas and Sy.No.11 measuring 38 guntas of Hullenahalli Village, Thippasandra Hobli, Magadi Taluk are wakf properties. The name of wakf has been shown as Khabarstan (sunni). Insofar as Sy.No.9, measuring 2 acres 11 guntas of Hullenahalli Village, Thippasandra Hobli, Magadi Taluk is concerned, the same is shown as Idgah (sunni). Therefore, it emerges that the land comprised in Sy.No.10 measuring 3 acres 22 guntas and Sy.No.11 measuring 38 guntas is the khabarstan meant for burial of dead bodies of Hullenahalli Village. The earlier description confining it to only Ahmed Khan Risala village has been deleted. It is in this background, the applicants have rightly contended that as they belonged to neighbouring hamlet of Hullenahalli Village namely Shaik Ali Risala, they were also entitled to burry the dead bodies of people belonging to muslim community in the khabarstan. The Tribunal has rightly held that khabarstan was being utilised and has to be utiilised by the villagers of both Ahmed Khan Risala and Shaik Ali Risala. Deletion of reference to Ahmed Khan Risala and reference to Hullenahalli grama does not in any manner affect the rights of residents of both the villages. Insofar as Sy.No.9 measuring 2 acres 11 guntas is concerned, as per the corrigendum, the same is earmarked as Idgah (sunni). Therefore, it has to be utilised as Idgah by the residents of both the villages. Reference to Hullenahalli grama in this regard does not mean that residents of Ahmed Khan Risala alone are entitled and that residents of Shaik Ali Risala are excluded from making use of the same. Indeed, the Tribunal has gone into the evidence in this regard and has come to a just conclusion. I do not find any illegality or perversity in the impugned order. 12. However, it has to be made clear that as regards the management of Khabarstan or for that matter the Idgah, neither any relief is sought in this proceeding, nor the Tribunal has expressed any opinion on the same. Therefore, it is not necessary for this Court to express any opinion in that regard. Suffice to make it clear that proceedings before the Tribunal pertain only to the right of the residents of both the hamlets to burry the dead bodies of muslim community. Therefore, it is not necessary for this Court to express any opinion in that regard. Suffice to make it clear that proceedings before the Tribunal pertain only to the right of the residents of both the hamlets to burry the dead bodies of muslim community. Therefore, if any dispute arises with regard to management of suit schedule lands, the same has to be resolved in accordance with law by initiating appropriate proceedings by either of the parties. Keeping open such rights and contentions of the petitioner and respondents, this writ petition is disposed of declining to interfere in the matter.