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Syed Shah Tayyab Khadri v/s State of Karnataka & Others

Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    Writ Petition No. 107569 of 2019 [GM-WAKF]

    Decided On, 22 April 2019

    At, High Court of Karnataka Circuit Bench At Dharwad


    For the Petitioner: V.M. Sheelavant, Advocate. For the Respondents: A.R. Rodrigues, Additional Government Advocate, D.L. Ladkhan, Advocate.

Judgment Text

1. The petitioner is invoking the writ jurisdiction of this Court assailing the order dated 15-3-2019 made by the respondent-WAKF Board at Annexure-P, which reads as under:

"ORDER No. KSBA/MSC/01/BLY/2018-19, dated 15-3-2019

In view of the facts mentioned in the preamble and in exercise of the powers conferred under Section 65 of the Waqf Act, 1995, the Karnataka State Board of Auqaf, Bengaluru hereby assumed the management of Waqf i.e., Dargah Hazrath Syed Mastan Vali Urf Syed Nabi Peen Khadri Hatcholli Village, Sirguppa Taluk, Ballari District Tahsildar, Sirguppa Taluk, as appointed as Administrator of Dargah Hazrath Syed Mastan Vali Urf Syed Nabi Peer Khadri Hatcholli Village, Sirguppa Taluk, Ballari District for a period of six (6) months, subject to conditions the Administrator should get the Bye-laws approved from the Board within 15 days and enroll members of Managing Committee of the said institution and complete the process for selection of committee before Ramzan month (30-4-2019)."

2. By the said order, third respondent-Tahsildar has been appointed as an Administrator of Dargah Hazrath Syed Mastan Vali Urf Syed Nabi Peer Khadri Hatcholli Village, Sirguppa Taluk, Ballari District after removing the petitioner from the Office of the Muthawalli on the ground that the petitioner was not residing in station and that he has not maintained the Institution properly.

3. After service of notice, the respondents have entered appearance; respondents 1 and 3 are represented by Shri A.R. Rodrigues and respondents 2 and 4 are represented by the learned panel Counsel Sri D.L. Ladkhan.

4. Learned Counsel for the petitioner vehemently contends that the petitioner was abroad for a short period of one and a half months or so; he was not given an opportunity of hearing before removing him from Muthawalliship, which is hereditary; Muthawalliship is the only source of livelihood and removing it amounts to pushing him starvation; therefore, the impugned order removing from Muthawalliship and appointing third respondent as administrator is set at naught.

5. Learned panel Counsel for the respondent-WAKF Board and the learned Additional Government Advocate Sri A.R. Rodrigues per contra submit that the office of Muthawalli in the instant case involves religious functions such as urus and management of the institution and therefore, the personal presence of the petitioner at the station is a must; petitioner was away abroad for long periods for employment; how long he was absent from the country can be known by asking him to produce the Pass-port; notices sent to him returned unserved since he was not available in station; the District WAKF office at Ballari had requested for appointment of a competent Muthawalli after removing the petitioner; these circumstances justify the impugned order.

6. I have heard the learned Counsel for the petitioner and the learned panel Counsel for the respondent-WAKF Board; I have also heard the learned Additional Government Advocate. I have perused the petition papers and interacted with the petitioner-in-person, who is present.

7. Hazarath Mastan Vali Shah Khadri Dargah (Sunni), Hazrath Syed Shah Nabi Peer Khadri, Dargah Hutcholi Village, Sirguppa Taluk, Ballari District is said to be an ancient Dargah registered as Wakf bearing Registration No. KTW/REG/06/BLY/85-86, dated 16-8-1985; petitioner was appointed as a Muthawalli of the said Dargah vide order dated 11-11-2010; admittedly Muthawalliship here inter alia involves religious functions and rituals; thus, personal presence of the petitioner at the station is a must.

8. Petitioner who was personally present before the Court on being questioned specifically admitted that he was aware in the Gulf countries for employment and that his long absence from India as reflected in Pass-port was for that reason. The allegation against the petitioner about his absence and consequent failure to look after the institution and perform the religious activities thus is prima facie established. Therefore, the contention that the allegation on which the impugned order is structured cannot be found fault with.

9. The office of Muthawalli occupies a significant position in the WAKF jurisprudence especially when religious functions are attached thereto. The very nature of the office requires personal presence of the incumbent of the office at the station not only for performing the rituals such as Urus but also to administer the institution of WAKF and to manage its property. In the instant case, admittedly the Muthawalli has to conduct Urus periodically and administer the institution on day-to-day basis. A person who occupies the office of Muthawalli is liable to be removed if he goes abroad and resides therefor long, may be for employment that too without any intimation to the WAKF Board. Such a person on coming back to India cannot complain against removal and appointment of Administrator.

10. Although the learned Counsel for the petitioner Sri V.M. Sheelavant contended that the petitioner was abroad is true, but it was for a short period of about one and a half months, the same is contradicted by the petitioner present in the Court; since the petitioner personally admitted his long absence from the country because of employment abroad, this Court did not consider it necessary to call for his Travel Documents such as Pass-port/VISA, Overseas Bank Records and Employment Cards.

11. In view of the admitted position as to the long absence from the country on account of employment, the question of considering the contention that the petitioner was not given an opportunity of hearing before his removal does not arise. Therefore the complaint that the impugned order is violative of Principles of Natural Justice proves hallow. Nothing would have turned out better even if an opportunity was given. An argument to the contrary could be an insistence on ritualistic adherence to the form disregarding the substance proved by admission. The Apex Court in the case of S.L. Kapoor v. Jagmohan and Others 1981(1) SCR 746 has observed:

"Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice not

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because it approves the non-observance of natural justice but because Courts do not issue futile-writs." 12. The writ petitioner is liable to be non-suited on the ground of suppressio veri as well, inasmuch as nowhere in the petition, he has even whispered about his leaving the country and residing abroad for employment. His contention at paragraph 14 of the writ petition that, he completely depends upon the offerings of the devotees of the Dargah for his livelihood appears to be too far-fetched a pleading. Had it been true, petitioner would not have gone for employment abroad at all. In the above circumstances, petition being devoid of merits stands dismissed. No costs.