LAWS(KAR)-1992-10-22

STATE OF KARNATAKA Vs. ABDUL RAHAMAN SHARIFF

Decided On October 20, 1992
STATE OF KARNATAKA Appellant
V/S
ABDUL RAHAMAN SHARIFF Respondents

JUDGEMENT

(1.) This writ appeal is preferred against the order dated 12-6-1991 passed by the learned single Judge in Writ Petition No. 5679 of 1991. The learned single Judge has allowed the writ petition and quashed the orders dated 21-1-1991 (Annexure 'C') and 21-1-1991 (Annexure 'D') and has further directed the 3rd respondent in the writ petition to proceed to hold the elections from the stage it was interrupted by the impugned orders. 1.1. There is a Wakf known as 'Jamia Masjid and Alhaj Mohammed, Rasool Shadi Mahal', J.C. Nagar, Bangalore. Election to the Managing Committee "of the said Wakf was proposed to be held as per Annexure 'B' produced in the writ petition. Before the actual voting took place, respondent No. 1 issued an order dated 21-1-1991 (Annexure 'C'). As a consequence of the said order, respondent No. 3 also issued another order dated 21-1-1991 (Annexure 'D'). Consequently, the election was postponed. 1.2. The learned single Judge has held that Section 63 of the Wakf Act, 1954 (hereinafter called the 'Act') does not empower the State Government to postpone the election. The learned single Judge has followed a decision of this court rtrJamia Masjid, Magadi v Karnataka Board of Wakfs & Others, 1981(1) Kar. L.J. 63.

(2.) It is contended by Sri N.K. Guptha, learned Government Advocate, that having regard to the provisions contained in Section 63 of the Act, the decision in Jamia Masjid, Magadi's case cannot be made applicable to the case on hand. It is submitted that the said case related to the assumption of he powers of the Wakf by the State Government in the purported exercise of its power under Section 63 of the Act and, therefore, this court held that it did not fall within the scope of Section 63 of the Act, whereas in the instant case, the State Government has postponed the election taking into consideration the situation that was prevailing in the area wherein the Wakf in question is situated that it was not at all in the interest of the voters to allow the election to go on, because the area was very sensitive and at any time breach of peace was likely to occur due to heat of the election movement. Therefore the State Government properly exercised the power under Section 63 of the Act.

(3.) Section 63 of the Act reads thus :"Subject to any directions on questions of policy issued under Section 62, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with any such directions." Though the exercise of power under Section 63 of the Act is subject to the directions on questions of policy issued from time to time by the Central Government in exercise of its power under Section 62 of the Act, in the absence of any such direction issued by the Central Government, it is open to the State Government from time to time to give to the Board such general or special directions as it deems fit and the Wakf Board in the performance of its functions shall comply with such directions. As already pointed out in Jamia Masjid, Magadi's case, the question that specifically arose was as to whether the Government could assume the power of the Wakf Board in the purported exercise of its power under Section 63 of the Act and the Icamed single Judge of this court held that it was not open to the State Government to assume power of the Wakf Board in the purported exercise of the power under Section 63 of the Act and the assumption of the power of the Wakf Board would be to nullify the provisions of the Act, which specifically provides for the constitution of Wakf Board and vests the general superintendence and the administration of the Wakfs in the Wakf Board itself. We are of the view that the decision in Jamia Masjid, Magadi's case does not cover all types of cases wherein the Government may issue general or special directions to the Wakf Board. 3. In the instant case, the election was proposed to be held to the Wakf and if the situation existing in the area where the Wakf in question is situated, was such that it was not in the interest of the members of the Muslim community and members of the public to allow the election to take place in such an event, it was likely to result in breach of peace and thereby causing injury to the life and property of the citizens, it would open to the State Government to issue such general or special directions to Wakf Board to postpone the election. But what is necessary in order to exercise the power in that regard is that there must be a specific reliable material before the State Government enabling it to exercise the said power and issue a direction to the Wakf Board to postpone the election. In other words, the situation must be such as to endanger the interest of the general public and in such a situation, it would not at all be safe to allow the election to take place. The records do not reveal that there was any authentic report made regarding the situation that was prevailing in the area which warranted postponement of the election. Therefore, even though we are of the view that it is open to the State Government in exercise of its powers under Section 63 of the Act, to direct the Wakf Board to postpone the election to the Wakf, but for the Government to exercise such an extraordinary power under Section 63 of the Act, there must be adequate and authentic material before the State Government that in the event the elections were allowed to take place, there is likelihood of breach of peace resulting in injury to the life and property of the citizens of the area. The learned Government Advocate read over the letter of the Secretary, Wakf Board, which in turn did not refer to any other material. We are of the view that there was no sufficient material before the State Government to enable it to exercise the power under Section 63 of the Act, to postpone the election. Thus, for the reasons stated by us, the ultimate view taken by the learned single Judge in quashing the orders, is correct and it does not call for interference. 4, Accordingly, for the reasons stated above, the writ appeal is rejected.