ABDULSAB RAJASAB GULEDGUD Vs. MAHIBOOBSAHEB WD KHADIRSAHEB

JUDGEMENT

(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. Thore is a mosque in Pendharigalli in Bagalkot Town, variously styled as 'Pendhari Masjid, Pankha Masjid and Mecca Masjid.' According to the petitioners, this mosque was built by a sub-sect of muslims known as 'Pendharis' most of whom were residents of Pendharigalli 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 Mis. Appl. 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. As a result, two persons were co-opted. These 8 persons have preferred the present Writ Petition. After the elections were held pursuant to the directions of the District Court in Mis. Appl. No.37/58, the first two respondents herein preferred Mis. Appl. No. 76 of 1961 on the file of the First Additional District Judge, Bijapur, challenging the elections so held. Litipation 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 enactment, respondents 1 and 2 preferred an application under Ss. 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 "Mutta walli". 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 'Pcndhari' or 'Mecca Masjid' of Bagalkot Town.

(3.) 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. The principal contention urged by Sri S. G. 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 any 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 S 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. 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. We are clearly of the opinion that the above contention of Sri Bhat must be accepted as correct.