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Mohammed Ghouse Vs. the Secretary, Karnataka Board of Wakfs, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 5487 of 1985
Judge
Reported inAIR1986Kant12; ILR1986KAR1523
ActsWakf Act, 1954 - Sections 2, 4, 5, 15 and 26; Constitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 8
AppellantMohammed Ghouse
RespondentThe Secretary, Karnataka Board of Wakfs, Bangalore and ors.
Advocates:K. Channabasappa, Adv.
Excerpt:
.....- the petitioner has failed to have the wakf registered under chap. the petitioner cannot make virtue out of his own lapse for having failed to have the wakf registered......at the instance of the members of the muslim community of the village it was his duty to have the wakf registered under chap. iv of the act. in addition to this, it is pertinent to note that the board has contributed considerable sum for reconstruction of the mosque in question. it is stated in the petition that the board has contributed rs. 11,000/- for the purpose of construction of the mosque. the petitioner has failed to have the wakf registered under chap. iv of the act. if only the petitioner had got it registered as wakf, it would have been entered in the register of wakfs which is required to be maintained under s. 26 of the act. the petitioner cannot make virtue out of his own lapse for having failed to have the wakf registered. under s. 15(l) of the act, general.....
Judgment:
ORDER

1. In this petition under Arts. 226 and 227 of the Constitution, the petitioner has sought for quashing the order dt. 12th Mar., 1985, passed by the Board of Wakfs (hereinafter referred to as the Board') in No. KTW/CMC/35 SMA 83-84 constituting the Managing Committee of nine members for the management of the Wakf institution known as Jamia Masjid of Mattikote village, Shikaripur taluk, Shimoga District.

2. The contentions urged by Sri K. Channabasappa, learned Counsel for the petitioner admit of following points for determination - (i) Jamia Masjid of Mattikote village has not been registered as Wakf under the provisions of Wakf Act, 1954 (hereinafter referred to as the Act), therefore, the Board has no jurisdiction or authority to exercise control over it and appoint a committee of Management; (ii) that even if it is assumed that such power resides in the Board, the constitution of the members of the Managing Committee is without the application of mind in that the order proclaims that it is done in exercise of power under S. 10 of the Act which does not confer such power on the Board.

3(i) Point No. 1: - It is the case of the petitioner that Jamia Masjid in question has not been registered, therefore, it is not a wakf coming under the purview of the Act. S. 2 of the Act specifically provides that save as otherwise expressly provided under the Act, the Act shall apply to all Wakfs whether created before or after the commencement of the Act. The proviso thereto specifically excludes certain Wakfs from the purview of the Act. That Wakf is Durgah, Khawaja Saheb, Ajmer to which the Durgah Khawaja Saheb Act 1955 applies. There is no other provision The Act excluding the Wakf of the type in question from the purview of the Act. The immoveable property in question is a Wakf. It is claimed by the petitioner himself in the petition that the Masjid in question has been in existence from time immemorial. A Masjid or Mosque is a place of worship of God and it is not capable of human ownership or possession. It belongs to God and is dedicated to His Worship. Thus a Masjid or Mosque is Wakf as defined in the Act whether it, is registered or not. It is the bounden duty of the authority exercising power under Ss. 4 and 5 of the Act to enlist Mosque or Masjid as Wakf and it is also the duty of the Board to register a Mosque or Masjid as Wakf. That being so, it is not possible to hold that Jamia Masjid in question cannot be considered to be the Wakf coming under the purview of the Act, because it is not registered.

3(ii). In support of the contention that it is not registered under the Act and, therefore, it does not come under the purview of the Act, reliance is placed on the provisions contained in Ss. 4 and 5 of the Act which provide for listing of the Wakfs and properties of Wakf and publication of the list of those. Merely because it is not included as contended by the petitioner, in the list of Wakfs, it does not cease to be a Wakf. As long as it does not cease to be a Wakf, and it continues to be a Wakf, it comes under the purview of the. Act. Consequently it comes under the control of the Board. There is a special chapter for registration of Wakfs. In fact if the petitioner has been in the management of the Wakf in question on his own or at the instance of the members of the Muslim community of the village it was his duty to have the Wakf registered under Chap. IV of the Act. In addition to this, it is pertinent to note that the Board has contributed considerable sum for reconstruction of the Mosque in question. It is stated in the petition that the Board has contributed Rs. 11,000/- for the purpose of construction of the mosque. The petitioner has failed to have the Wakf registered under Chap. IV of the Act. If only the petitioner had got it registered as Wakf, it would have been entered in the register of Wakfs which is required to be maintained under S. 26 of the Act. The petitioner cannot make virtue out of his own lapse for having failed to have the wakf registered. Under S. 15(l) of the Act, general superintendence of all Wakfs in the State vests in the Board. It also further provides that it shall be the duty of the Board 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 purposes for which wakfs were created or intended. Under S. 15(2)(g) of the Act, one of the functions of the Board is to appoint and remove Mutawallis in accordance with the provisions of the Act Therefore, the Ist point is answered as follows Even though the Masjid in question is not registered as Wakf under Chap. IV of the Act, and is not entered either in the Register of Wakfs or in the list of Wakfs or Wakf properties, it being a wakf as defined in the Act, it comes under the purview of the Act and consequently under the superintendence and control of the Board. It is always open to the Board to register such Wakfs and enter them in the register of wakfs. Thus, the 1st point is answered against the petitioner.

4. Point No. (ii) : - No doubt in the impugned order constituting the committee of management, the Board of Wakfs has stated that it is constituted in exercise of its power under S. 10 of the Act. Learned Counsel is right in saying that Sec. 10 does not confer any such power. But, that is not an end of the matter. There is power vested in the Board to appoint a Committee of Management as pointed out above. A wrong recital of a provision of law in the order does not vitiate the order as long as there is such power vested in the Board (See : 1985CriLJ751 State of Karnataka v. Muniyalla). On the ground that wrong provision of law is recited in the order, learned Counsel has constructed another argument that it amounts to non-application of mind. It is also not possible to accept this contention because the Committee of Management has b6en constituted on the recommendation. of the Chairman of the District Wakf Committee and also on receiving suggestions from the public. In addition to this, it is not the case of the petitioner that any of the members constituting the Committee of Management is not fit to hold the position. That being so, it is not possible to hold that the Committee of Management is constituted without applying the, mind as to suitability of the persons appointed. Accordingly, the second point is answered against the petitioner.

5. No other contention is urged. Hence, I do not see any ground to issue rule. The writ petition is accordingly rejected at the stage of preliminary hearing.

6. Petition dismissed.


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