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2014 Supreme(Kar) 20
High Court of Karnataka
A.N. VENUGOPALA GOWDA, J.
Karnataka Wakfs Protection & Another
Versus
The State of Karnataka & Others
Writ Petition Nos. 43392-43393 of 2011 (GM-WAKF)
Decided on: 08-01-2014
For the Petitioners:B.A. Belliappa, Advocate.
For the Respondents:R1 & R2, Prof. Ravivarma Kumar, Advocate General along with Laxminarayan, H. Kantharaja, AAG, R3, S.R. Anuradha, R4, H.H. Kaladgi, R5, Padmanabha Mahale, Senior Counsel for Naveed Ahmed, R6, Nilloufer Akbar, Advocates.
Headnote:WAKF ACT, 1955 - Section 14(9) & Karnataka Wakf Rules, 1997, Rule 32: [A.N. Venugopala Gowda, J] Challenge to Appointment of Members to the Karnataka State Board of Wakfs - Respondents 4, 5 and 6 were Members of Karnataka State Board of Wakfs for a period of 5 years under Section 15 of the Act vide Notification No. MWD 237 WES 2011 dated 20.8.2011 Government of Karnataka - Only material found in the records was recommendation letter of State President, Bharatiya Janata Party, Karnataka and Note of Chief Minister according approval - Held, The State Government should have with it at least a list of various eminent Muslim Organizations in the State and also the information about the persons managing such institutions and the activities of such Organizations, for the betterment of the Muslim Community. To make a nomination under Section 14(1)(d) of the Act, the person should be a Recognized Scholar in Islamic Theology. Said recommendation, unsubstantiated by any other material and without any kind of verification could not be the basis for the nomination of respondents 5 and 6. Without finding out, whether the respondents 5 and 6 satisfy the required qualification stipulated in the said provisions, they have been nominated. Whimsical exercise of power is very much apparent. The decision making process of respondent No.1 with regard to the nomination of respondents 5 and 6 to respondent No.3 is flawed. Hence, the said nominations cannot be sustained. Nomination of Respondents-5 and 6 were quashed. Direction given to Government to send the nominations in respect of the categories under the clauses (c) and (d) of sub-section (1) of Section 14 of the Act, as amended, vide Amendment Act 27 of 2013, by keeping in view the observations made supra.
1. Challenge in these writ petitions is to the appointment/nomination of the respondents 4, 5 and 6, as Members of the Karnataka State Board of Wakfs (for short ‘the Board’), vide Notification No.MWD 237 WES 2011, Bangalore, dated 20.08.2011, of the Government of Karnataka. By the said notification, in exercise of the powers conferred under S.14(9) of the Wakfs Act, 1995 (for short ‘the Act’) and Rule 32 of the Karnataka Wakfs Rules, 1997, the persons named therein were appointed as members of the Board for a period of five years under S.15 of the Act.
2. The present Act (Act 43 of 1995), which replaced the Wakfs Act, 1954 (29 of 1954) and the Wakfs (Amendment) Act, 1984 (69 of 1984) was enacted to provide for better administration of Wakfs and for matters connected therewith or incidental thereto.
3. Wakfs and matters relating thereto were governed by the Wakfs Act, 1954. Because of the deficiencies noticed in working of the said enactment, especially those governing the Wakf Boards, their power of superintending and control over the management of the individual Wakfs, Parliament brought the comprehensive legislation, i.e., the present Act, 1995, for better administration of the Wakfs and the matters connected therewith or incidental thereto.
4. The Karnataka State Board of Wakfs was established by the State Government, by a Notification published in the Official Gazette, in exercise of the power under S.13 of the Act. S.14 relates to composition of the Board. The said Section, prior to its amendment vide Act 27 of 2013 published in the Gazette of India dated 23.09.2013, in so far as, it relates to the present, is extracted hereunder:
“14. Composition of Board – (1) The Board for a State and the National Capital Territory of Delhi shall consist of –
(a) a Chairperson;
(b) one and not more than two Members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of –
(i) x x x x
(ii) x x x x
(iii) Muslim Members of the Bar Council of the State, and
(iv) x x x x
(c) one and not more than two members to be nominated by the State Government representing eminent Muslim organizations;
(d) one and not more than two members to be nominated by the State Government, each from recognized scholars in Islamic Theology;
xxxx xxxx xxxx
(5) Where there are Shia Wakfs but no separate Shia Wakfs Board exists, at least one of the Members from the categories listed in sub-section(1), shall be a Shia Muslim.
xxxx xxxx xxxx
(8) Whenever the Board is constituted or re-constituted, the Members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board.
(9) The Members of the Board shall be appointed by the State Government by notification in the Official Gazette.”
5. Clauses (c) and (d) of Sub. S.(1) of S.14 provides for nomination by the State Government, one or not more than two members, representing eminent Muslim Organizations and recognized Scholars in Islamic Theology. The respondent 5 and 6 having been nominated by the State Government, in exercise of the said power, as members of the Board, their appointment/nomination has been questioned.
6. The appointment of the 4th respondent – R.Abdul Reyaz Khan, to the Board, though has been questioned in these writ petitions, there is no need to decide the question relating to his appointment, in view of dismissal of W.P.No.33441/2011 on 11.12.2013, thereby, upholding his appointment made under S.14(1) (b) (iii) of the Act.
7. Nomination of 5th respondent to the Board, under S.14(1) (c) of the Act, as representing eminent Muslim Organizations, has been questioned, on the ground that the two institutions, which he claims to represent are not eminent Muslim Organizations.
8. The 6th respondent having been nominated in exercise of the power under S.14 (1) (d) of the Act, as a Recognized Scholar, has been questioned on the ground that he has no credentials to support his nomination a
