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Abdulsab Rajasab Guledgud and ors. Vs. Mohiboobsaheb Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2475 of 1970
Judge
Reported inAIR1972Kant60; AIR1972Mys60; (1971)2MysLJ518
ActsWakf Act, 1954 - Sections 15(2), 42 and 44; Bombay Public Trusts Act
AppellantAbdulsab Rajasab Guledgud and ors.
RespondentMohiboobsaheb Patel and ors.
Appellant AdvocateS.G. Bhat, Adv.
Respondent AdvocateS.D. Chatre and ;K.S. Savanur, Advs.
DispositionPetition allowed
Excerpt:
.....commencing from misc. it is clear from the earlier narration of facts that the fact that these petitioners were duly elected trustees of the mosque in question was well within the knowledge of the sub-commit tee of the wakf board, which was enquiring into the matter, in l. 10. for all these reasons, we are clearly of the opinion that the impugned order deserves to be set aside......application was registered as l. c. c. no. 18 of 1967 and the sub-committee of the mysore state wakf board after holding an enquiry made the impugned order and framed a certain scheme for the management of the 'pandhari' or 'macca masjid' of bagalkot town.4. it is also relevant to notice that in the aforesaid proceedings, l. c. c. no. 18 of 1967, only petitioners 1 and 2 herein were made parties as 'opponents'. in the objections to the application filed by the 'opponents' therein, it was specifically contended that the application would not be maintainable since all the trustees had not been made parties. subsequent to the lodging of the said objections, on 22-12-1969, a memo was filed by the present petitioners 1 and 2 naming 8 persons who were none other than the present.....
Judgment:

Venkataswami, J.

1. The petitioners have sought for the issue of a writ of Certiorari quashing the order of the Sub-Committee of the Mysore State Board of Wakfs at Bangalore, made in L. C. C. No. 18 of 1967 on 21-3-1970.

2. A few relevant facts may be stated. There is a mosque in Pandharigalli in Bagalkot Town, variously styled as 'Pandhari Masjid, Pankha Masjid and Mecca Masjid'. According to the petitioners, this mosque was built by a sub-sect of muslims known as 'Pandharis' most of whom were residents of Pandharigalli of Bagalkot. It would appear that there were 7 mosques in the town similarly constructed by the Muslims of the localities concerned and used by them separately and exclusively. Since the original Trustees were all dead or had migrated, some of the petitioners herein moved the District Judge Bijapur in Misc. Applications Nos. 36 of 1952 and 37 of 1958. Although the first of the above said applications was dismissed, on the other application, the District Court directed holding of election to the office of Trustees in accordance with the provisions of the Bombay Public Trusts Act, which was applicable to the mosque in question. Accordingly, elections were held and 8 persons were chosen as Trustees. Out of the 8, two passed away subsequent to the elections. A.s a result, two persons were co-opted. These 8 persons have preferred the present writ petition.

3. After the elections were held pursuant to the directions of the DistrictCourt in Misc. Application No. 37/58, the first two respondents herein preferred Misc. Application No. 76 of 1961 on the file of the First Additional District Judge, Bijapur, challenging the elections so held. Litigation in this behalf was ended by an order passed by this Court in C. R. P. No. 14 of 1967, on 20-10-1967. The final result of these proceedings was that the election of the Petitioners 1 to 6 stood confirmed. In the meanwhile the Wakf Act, 1954 (Central Act 29 of 1954) came into force. Obviously taking advantage of the said amendment, respondents 1 and 2 preferred an application under Sections 42 and 44 of the said Wakf Act before the Mysore State Wakf. Board. The relief sought in the said application was for holding of an enquiry into the affairs of the aforesaid mosque and for the appointment of a 'Muttawalli'. The said application was registered as L. C. C. No. 18 of 1967 and the Sub-Committee of the Mysore State Wakf Board after holding an enquiry made the impugned order and framed a certain scheme for the management of the 'Pandhari' or 'Macca Masjid' of Bagalkot Town.

4. It is also relevant to notice that in the aforesaid proceedings, L. C. C. No. 18 of 1967, only petitioners 1 and 2 herein were made parties as 'opponents'. In the objections to the application filed by the 'Opponents' therein, it was specifically contended that the application would not be maintainable since all the Trustees had not been made parties. Subsequent to the lodging of the said objections, on 22-12-1969, a memo was filed by the present petitioners 1 and 2 naming 8 persons who were none other than the present petitioners, presumably in response to a direction issued by the Sub-Committee of the Mysore State Wakf Board which was enquiring into the matter, to suggest names of some persons for the purpose of appointment as 'Trustees' in accordance with the scheme proposed to be framed. It is, therefore, clear from these circumstances, that the Committee was fully aware of the existence of certain Trustees in regard to the said mosque.

5. The principal contention urged by Sri S. C. Bhat, the learned counsel appearing on behalf of the petitioners, is that the petitioners who have been duly elected as Trustees under the Bombay Public Trusts Act, were persons who were interested in the mosque and therefore, would be affected by auy change in the scheme of management of the mosque. Hence, they should have been heard before making the impugned order, having regard to the provisions of the Proviso to Section 15 (2) (d) of the Wakf Act, 1954. Not having made the petitioners 3 to 8 herein as parties in the proceedings in L.C.C. No. 18 of 1967, the order made by the Sub-Committee of the Wakf Board in such proceedings was clearly violative of the statutory injunction enacted in the said proviso.

6. We are clearly of the opinion that the above contention of Sri Bhat must be accepted as correct,

7. It is clear from the various proceedings commencing from Misc. Application No. 37 of 1958 before the District Judge, Bijapur, and culminating in -an order of this Court in G. R. P. No. 14 of 1967, the petitioners . were duly elected as Trustees and therefore, are persons who are eminently interested in the management of the said mosque. It follows, therefore, that any settlement of the scheme of management of the said mosque would affect them for one reason or other. Hence, for the purposes of the Proviso to Section 15 (2) (d) of the Wakf Act, they were in the position of 'parties affected'. The relevant portion of the said section reads thus:--

'15. Functions of the Board:

(1) *****

(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-

(a) *****

(b) *****

(c) *****

(d) to settle schemes of management for a wakf: Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; *****

8. It is clear from the above provision that it is imperative on the part of the Wakf Board to have heard the 'parlies affected' before settling any scheme of management of a mosque.

9. We have already held that the petitioners herein, or at any rate petitioners 6 to 8, answer to the description of 'parties affected' under the said provision. It is clear from the earlier narration of facts that the fact that these petitioners were duly elected Trustees of the mosque in question was well within the knowledge of the Sub-Commit tee of the Wakf Board, which was enquiring into the matter, in L.C.C. No. 18 of 1967, in which the impugned Order had been made- It was, therefore, (heir duty to have heard them in accordance with Section 15 (2) (d) of the Wakf Act.

10. For all these reasons, we are clearly of the opinion that the impugned order deserves to be set aside. We accordingly quash the same by the issue of a writ as prayed for by the petitioners.

11. In the result, the petition succeeds and is allowed. The Wakf Board is at liberty to dispose of the matter afresh in accordance with law.

12. In the circumstances of the case, we make no Order as to costs.


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