Waqf Board Can't Recall Administrator's Order Declaring Property As 'Private' Through Committee, Must Approach Court/ Tribunal: Karnataka HC

The Karnataka High Court recently has set aside an order passed by the Karnataka State Waqf Board, constituting a Law Committee to review and recall an order passed in the year 1976, by then Administrator of the Board which held that a portion of a property situated in Kumbarpete area of Bengaluru was private property and not Waqf Property.

A single judge bench of Justice M G S Kamal allowed the petition filed by one Jabir Ali Khan @ Shuja who had questioned the constitution of the law committee. It directed the Board to approach Karnataka Waqf Tribunal by instituting the proceedings as contemplated under the Waqf Act.

The court said, “Karnataka State Waqf Board has proceeded to constitute the present Law Committee to annul the order passed by the Administrator on the premise of the principles "once a waqf is always a waqf" and not on the allegation of any fraud, misrepresentation or misleading.”

It added, “Assuming if the order passed by the Administrator is a nullity and void-ab-initio, until and unless the same is set aside by an order of a court of competent jurisdiction, the same continues to be in force."

The petitioner contended to be the descendant of the original owner of the property in question.

It was submitted that on 07.06.1965, a Notification was issued by the then Mysore State Board of Waqfs under Section 5(2) of the Waqf Act, 1954, listing the aforesaid property as a Waqf property.

Subsequently, the Administrator passed an order on 26.11.1976, declaring the property as private property of Petitioner's ancestor. Pursuant to this, a notification dated 05.03.1977 was issued by the Karnataka State Board of Waqf deleting the said property from the list of Waqf.

However, in 2020, the Board termed the petitioner as a trespasser and claimed that the property was illegally made over in his name. Following this a Law Committee was constituted which declared the property as Waqf property.

The petitioner contended that the constitution of the Law Committee to enquire into the matter is illegal and contrary to the law. Further, the very same members who had expressed such opinion in the Board meeting had been assigned with the task of enquiring into the matter. He submitted that such procedures run contrary to the principles of natural justice and are tainted with bias.

It was also claimed that under Section 18 of the Act power of this nature determining the character of the property cannot be delegated to a Law Committee, it has to be dealt with under the provisions of Sections 6 and 7 of the Waqf Act, 1995 before a Tribunal.

The Board opposed the plea and referred to Section 32(2)(h) of the Act and submitted that it is incumbent upon the Waqf Board to recover its lost properties. Reference was also made to Section 52 of the Act and the Karnataka Waqf Regulations, 2010 to justify the constitution of the Law Committee for the purpose of enquiry and necessary action to recover the lost properties.

Findings:

The bench noted that order that was passed on 26.11.1976 by the then Administrator of the Karnataka Board of Waqf. The aforesaid order has remained unchallenged until the constitution of the present Law Committee.

Then it said, “Admittedly at the relevant period there was no Board constituted as contemplated under the then Waqf Act, 1954 and the Karnataka State Waqf Board was under the management and control of the State through its Administrator. Needless to state that an administrator was invested with the power and authority to discharge the functions of the Board pertaining to the affairs of the Waqf institutions as provided under the Wakf Act.”

Court observed that if any action taken or order passed by the said Administrator was required to be reversed or annulled, the same may have to be done in the manner known to law and under the relevant express provisions of the Act.

“The order passed by the Administrator is akin to the order passed by the Board. Any order thus passed is amenable for appeal or review or revision as the case may be as provided under the law. Unless a specific provision is provided under the Waqf Act, the authority which has passed the order, whether the Board or the Administrator in this case, cannot recall or review its own order. Nothing is pointed out regarding any such power or jurisdiction being vested with the Karnataka State Waqf Board under the scheme of Waqf Act, 1995, enabling it to recall or review its own order.”

Court said the authority which passes an order determining the rights of the subjects in exercise of its quasi judicial jurisdiction in the absence of any specific provision can recall or review its order only if such an order is obtained by playing fraud, misrepresentation or misleading the authority.

“Therefore, the proceedings dated 12.03.2020 by the respondent-State Board of Waqf constituting a Law Committee to annul the order of the Administrator is outside the purview of the provisions of the Waqf Act. The reliance placed on by the learned counsel for the respondent -State Board of Waqf to the provision of Sections 18, 32 (2)(h), 52 and 107 of the Waqf Act 1995 are of no avail under the facts and circumstances of the case,” it said.

Allowing the petition the court said, “Since the claims and rival claims made in this petition would go to the root of the question regarding the nature of the property, continuation of proceedings by the law committee under the guise of power delegated under Section 18 of the Act, cannot be countenanced in view of the expressed provisions contained under Sections 6 and 7 of the Act.”

Appearance: Senior Advocate G Krishnamurthy for Advocate Mohammed Arif Khan Makki for Petitioner.

Advocate Haneef FOR R1, R2 AND R4.

Advocate Mohammed Niyaz S FOR R3.

Advocate Manmohan P N for C/R5.

Advocate Ayaz Ahmed FOR R6 AND R12.

Citation No: 2024 LiveLaw (Kar) 471

Case Title: Jabir Ali Khan alias Shuja AND Karnataka State Board of Wakfs & Others

Case No: WRIT PETITION NO. 24600 OF 2022

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