Syed Nishat Quadri vs The Chief Executive Officer, the Karnataka State Board of Wakfs and Others

B. Manohar, J.—1. Petitioner in this writ petition has sought for quashing the order dated 26.11.2015 made by the 1st respondent appointing an administrator to manage Jamia Masjid (Sunni), Kamalapur, Hospet Taluk, Ballari District, vide Annexure-A.

The main grievance of the petitioner is that his great-grand father, Syed P Sabjansab had dedicated his properties to religious purposes. During his life time, all the religious functions of the Jamia Masjid (Sunni) including conducting every day to day prayers, special prayers on Fridays and Ramzan month were carried out. His father was appointed as Mutawalli since earlier Mutawalli had resigned for the said post due to his ill-health. His father had expired on 7.9.2015. Thereafter a meeting was called and the name of the petitioner was unanimously proposed to the post of Muthawalli. In the meantime, the District Wakf Advisory Committee made a recommendation for appointment of Administrator to the Jamia Masjid (Sunni) Kamalapur. The Wakf Board without applying the mind to the provision of Section 65 of the Wakf Act has appointed the 3rd respondent with a direction to frame a Scheme of Administration on par with the model Scheme of Administration of the Board and submit the same to the Board for approval. Being aggrieved by the order dated 26.11.2015 appointing an Administrator to Jamia Masjid (Sunni), Kamalapur, petitioner has filed this writ petition.

Learned Advocate appearing for the petitioner contended that the order passed by the Wakf Board is contrary to Section 65(1) of the Act. The Wakf Board can appoint an Administrator in case no suitable person is available for appointment as a Mutawalli or where the Board is satisfied, for reasons to be recorded by it in writing that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the wakf, in those circumstances, the Wakf Board can appoint a Mutavalli to manage Jamia Masjid (Sunni), Kamalapur. In the instant case, on recommendation made by the District Wakf Advisory Committee, Wakf Board has passed the order appointing an Administrator to manage the Jamia Masjid (Sunni), which is contrary to law. He further contended that Mutavalli has to be appointed by customs. While notifying the Jamia Masjid, Kamalapur, it has been notified as an Administrator by customs. In the instant case, after the death of great-grand father, the father of the petitioner, Syed Sajjad Ahmed Khadri was appointed as Mutawalli. After his death, his son has been appointed as Mutawalli. The appointment has to be made on customary basis. The Wakf Board has no power to appoint an Administrator. Therefore, learned Advocate submits that the order impugned may be quashed.

Sri F V Patil, learned Advocate appearing for the 3rd respondent argued in support of the order passed by the Wakf Board and contended that in view of two faction in the Wakf Institution to resolve the dispute between the parties, the recommendation has been made. The office is not the hereditary customary office. The father of the petitioner was appointed as Mutawalli in the year 1988 i.e. with the pleasure of the Wakf Board. Hence, petitioner cannot maintain this writ petition. Therefore, learned Advocate sought for dismissal of the writ petition.

Smt. Azra J Dundge, learned Advocate appearing for respondents No. 1 and 2 argued in support of the order passed by the Wakf Board and contended that Jamia Masjid (Sunni) does not have hereditary office of Mutawalli or by customs, but it is only an appointment by the Wakf Board. In view of dispute regarding appointment of Mutawalli, the Board has passed the order. Therefore, learned Advocate sought for dismissal of the writ petition.

The records clearly disclose that Jamia Masjid (Sunni), Kamalapur is a notified Wakf institution. It was managed by hereditary by appointing mutawalli by customs. The great-grand father of the petitioner had gifted the properties to the institution. In the notification issued by the Wakf Board, the mutawalli was appointed by "customs". The great-grand father and father of the petitioner were managing the institution. After his death, the father of the petitioner was functioning as Muthawalli till 7.9.2015. However, on recommendation made by the District Officer, an Administrator has been appointed. Section 65(1) of the Wakf Act provides for appointment of Administrator. A reading of the said provision clearly contemplates that where no suitable person is available for appointment of mutawalli or where the Board is satisfied that appointment will be prejudiced to the interest of the wakf, then only an administrator can be appointed. In the instant case, a suitable person is available as on the date of recommendation made by the District Officer, the Board cannot invoke Section 65(1) of the Act and appoint an Administrator. The order passed by the Wakf Board cannot be sustained. This Court in a judgment reported 2001(2) KLJ 590 held at para 8 that Section authorizes the Board to assume direct management of the Wakf Institution in a case where no suitable person is available for appointment for the post of Muthavalli or where the Board is satisfied that filling up of the vacancy will be prejudicial to the interest of the Wakf. In the instant case, the Wakf Board without application of mind, on the basis of the report submitted by the District officer, an administrator has been appointed, which is not in accordance with law and runs contrary to Section 65(1) of the Act. The Wakf Board without application of mind has passed the order and Board has to reconsider the matter afresh in accordance with Act. Hence, the order impugned is liable to be quashed. Accordingly, I pass the following:

ORDER

The writ petition is allowed. The order dated 26.11.2015 passed by the 1st respondent is quashed and the matter is remitted to the 1st respondent to reconsider and pass appropriate order in accordance with law after issuing notice to the petitioner within a period of eight weeks and the consequential order dated 11.3.2016 passed by the Administrator, Jamia Masjid (Sunni), Kamalapur, is also quashed.

In view of allowing of the writ petition, all I.As. are disposed of.