MD GOUSIDDIN S/O LATE JALALUDDIN AND ANR vs. THE CHIEF EXECUTIVE OFFICER AND ORS

1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH, GULBARGA DATED THIS THE 21ST DAY OF SEPTEMBER, 2012 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No.85574/2012 (GM-CPC) BETWEEN: 1. MD GHOUSUDDIN S/O LATE JALAUDDIN AGE:31 YEARS, OCC:MECHANIC 2. MD NASEERUDDIN S/O LATE MD JALALUDDIN AGE:27 YEARS, OCC:ELECTRICIAN BOTH REP BY GPA HOLDER MD GALIB PASHA S/O ABDUL KAEEM AGE:60 YEARS, OCC:BUSINESS R/O YATEEM KHANA QUARTERS BEHIND HOTEL PARIWAR AIWAN-E-SHAHI ROAD GULBARGA …PETITIONERS (BY SRI:N KRISHNACHARYA, ADVOCATE) AND: 1. THE CHIEF EXECUTIVE OFFICER KARNATAKA STATE BOAD OF WAKF DARUAL AWAKF, # 6, CUNNINGHAM ROAD BANGALOE – 560 053 2. THE DISTRICT WAKF ADVISORY COMMITTEE DISTRICT WAKF BOARD MADINA BUILDING

2 CENTRAL KAMAT HOTEL MAIN ROAD, GULBARGA – 585 102 REP BY ITS ADMINISTRATOR 3. THE WAKF SECRETARIAT BOARD M S BUILDING BANGALORE – 560 053 4. THE REGIONAL COMMISSIONER GULBARGA DIVISION MINI VIDHANA SOUHDA GULBARGA – 585 102 5 SYED HABEEB SYDU MIYAN S/O MAHEBOOD KHAN, MAJOR MEMBER MANAGING COMMITTEE FOR THE MANAGEMENT OF YATEEM KHANA ANJUMAN-E-ANSARUSUFFA R/O H.NO.1-150-D, STATION BAZAR ORIENT LODGE, POLICE STATION GULBARGA – 585 102 6 ABDUL MAJEED MUSTAFA S/O ABDUL WAHAB SAB MAJOR, MEMBER MANAGING COMMITTEE FOR THE MANAGEMENT OF YATEEM KHANA ANJUMAN-E-ANSARUSUFFA R/O HOUSING BOARD COLONY OPP OF BUS STAND M S K MILL ROAD GULBARGA – 585 102 7 MD YASEEN S/O MD.RAJA SAB MAJOR, MEMBER MANAGEMENT COMMITTEE FOR THE MANAGEMENT OF YATEEMKHANA ANJUMAN-E-ANSARUSUFFA UPPER LANE, STATION BAZAR GULBARGA – 585 102 8 SYED ZAHEB HUSSAIN S/O ISMAIL HUSSAINI MEMNER MANAGEMENT COMMITTEE FOR THE MANAGEMENT OF YATEEM KHANA

3 ANJUMAN-E-ANSARUSUFFA R/O VIDYA NAGAR M S K MILL OAD GULBARGA – 585 102 9 SHAMSHUL ISLAM S/O NOORUL ISLAM MEMBER MANAGING COMMITTEE FOR THE MANAGEMENT OF YATEEMKHANA ANJUMAN-E-ANSARUSUFFA R/O NOORUL ISLAM COMPOUND OPP TO GOVT PRESS, M S K MILL ROAD, GULBARGA – 585 102 10 MD.AFIQ S/O MD IBRAHIM PATVEGAR MEMBER MANAGING COMMITTEE FOR THE MANAGEMENT OF YATEEM KHANA ANJUMAN-E-ANSARUSUFFA R/O KHARI BOWLI MOMINAPUR GULBARGA – 585 102 11 KHURSHEED ALI MULLAN S/O AHMADSAB MULLAN MEMBER MANAGING COMMITTEE FOR THE MANAGEMENT OF YATEEM KHANA ANJUMAN-E-ANSARUSUFFA R/O GUNJ ROAD, LINES GULBARGA – 585 102 12 MD.ZAHEB S/O ABDUL SATTAR MEMBER MANAGING COMMITTEE FOR THE MANAGFEMENT OF YATEEM KHANA R/O RAHAMATH NAGAR GULBARGA – 585 102 13 QUMARUL ISLAM S/O NOORUL ISLAM MEMBER MANAGING COMMITTEE FOR THE MANAGEMENT OF YATEEM KHANA ANJUMAN-E-ANSARUSUFFA R/O NOORUL ISLAM COMPOUND OPP TO GOVT PRESS

4 MSK MILL ROAD GULBARGA – 585 102 14 IQBAL S/O LAL AHMED AGE:60 YEARS OCC:BUSINESS AWIA-E-SHAHI OPP:MASJID GULBARGA – 585 102 15 ADMINISTRATOR YATEEM KHANA ANJUMAN ANSARUSUFFA SUNNI STATION ROAD, GULBARGA JANAB SYED TAYYAB ALI RTD DEPUTY DIRECTOR FOOD AND CIVIL SUPPLIES H NO.7-888, NAYA MOHALLA NEAR HAJ COMMITTEE GULBARGA – 585 104 16 THE KARNATAKA WAKF BOAD THROUGH CHAIRMAN R ABDUL RIYAZ KAHN S/O RAOUF KHANA ADVOCATE

R/O NO.20/22, SECOND FLOOR BYATAPPA BUILDING CUBBONPET MAIN ROAD BANGALORE – 560 002 17 ADDITIONAL CHIEF EXECUTIVE OFFICER KARNATAKA WAKF BOARD CUNNINGHAM ROAD BANGALORE – 560 002 18 SRI K AHMAN KHANA S/O K KHASIM KHAN R/O 200/C, IIIRD BLOCK 7TH MAIN JAYANAGAR BANGALORE – 560 010 19 SRI.QAMARUL ISLAM S/O NOORUL ISLAM R/O HOUSE NO.1864/5

5 MSK MILL ROAD, STATION BAZAR GULBARGA – 585 101 20 SRI TANVEER SETH S/O LATE AZIA SETH R/O NO.532, 9TH MAIN M G ROAD CROSS, UDYA GHL MYSORE – 570 019 21 DR.MOHAMMED YOUSUF MUTAWALLI R/O MASJID-E-MUZAMMIL TRUST MUZAMMIL MASJID OAD OPP HKDK COLLEGE UMARNAGA, BANGALORE – 560 002 22 SRI.SYED SHAHAH KHSRU HUSSAINI MUTAWALLI R/O DODI DAGA KHAJA BANDENAWAZ RAUZA-BUZRUG GULBARGA – 585 104 23 SRI.YENOPIYA MOHAMMED KUNNI SECRETARY R/O YENOPIYA EDUCATION INSTITUTIONS YENOPIYA UNIVESITY DEVARALA KATTE MANGALURU 24 SRI.ALHAJ NOOR BASHA R/O AL HAJ NO.34, WARD NO.26 YASEEN SAUDI MASJID STREET COWL BAZAR BELLARY – 583 102 25 MOULANA N K M SHAFI SADDI PRINCIPAL SECRETARY SAADIYA EDICAITONAL FOUNDATION KADIRENAHALLI PARK B S K IIND STAGE, BANGALORE – 560 070 26 MOULANA SYED MOHAMMED IBRAHIM R/O NO.15, HOSUR ROAD, RICHMOND TOWN BANGALORE – 560 025

6 27 SRI.H S ISMATHULLA KHAN ADDL. COMMISSIONER COMMERCIAL TAX DEPARTMENT R/O NO.120, 30TH A CROSS EAST END MAIN ROAD JAYANAGAR 4TH T BLOCK BANGALORE – 560 004 28 SYED TAYYAB ALI RETIRED DEPUTY DIRECTOR OF FOOD AND CIVIL SUPPLIES HOUSE NO.7-888 NAYA MOHALLA NEAR HAJ COMMITTEE GULBARGA – 585 104 29 JANAB TAHER ALI S/O MOHAMMED RETIED INCOME TAX OFFICER KHAJA COLONY GULBARGA – 585 104 30 MOHAMMED IKAMUDDIN RETIRED ASST. EXECUTIVE ENGINEER R/O BESIDE MASJID AIWAN-E-SHAHI GULBARGA – 585 102 31 MOHAMMED HUSSIAN SIDDIQUI SADAR QUAZI BHATKAL MOMINPUR GULBARGA – 585 104 32 JANAB BADDRUDUJA WASLI LOWER LANE ONE WAY TRAFFIC STATION I B ROAD, GULBARGA – 585 102 …RESPONDENTS (BY SRI:MANVENDA REDDY, HCGP FOR R-4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI BY QUASHING THE IMPUGNED ORDER OF ANNEXUE-D PASSED BY THE KARNATAKA WAKF TRIBUNAL, GULBARGA IN OS NO.2/2010 DATED 14.09.2012 AND ETC., THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

7 ORDER By consent of learned Advocates, matter is taken up for final disposal. 2 Heard Sri Krishnacharya, learned Advocate for petitioners and Sri Manvendra Reddy, learned Government Advocate for respondent No.4. Issue in this writ petition is relating to valuation only and as such notice to other respondents is dispensed with. 3 Petitioners have called in question order dated 14.09.2012 passed by Wakf Tribunal overruling objections filed by petitioners to Commissioner’s report which was called for by Tribunal in exercise of its powers under Section 18 of the Karnataka Court Fees and Suits Valuation Act, 1956 (hereinafter referred to as ‘the Act’). 3. Petitioners have filed a suit for declaration and injunction in respect of plaint 12(A) and (B) schedule

8 properties and had notionally valued the same and paid Court fee Ad valorem under Section 24(d) of the Act. Trial Court was of the view that subject matter of suit property was not valued properly and in order to ascertain as to whether valuation done by plaintiffs is proper or not, it appointed Asst. Executive Engineer PWP and IWT as Court Commissioner, who after notifying both plaintiffs and defendants, conducted spot inspection by identifying properties mentioned in paragraph 12(A) and (B) of plaint and submitted his report to Wakf Tribunal. Detailed objections were filed to said report as per Annexure-C interalia denying certain portions of the report only and also contending that Court Commissioner should be permitted to be cross examined by plaintiffs to disprove contents of said report. 4. In the present writ petition only grievance of petitioners is that opportunity has not been given to

9 plaintiffs to cross examine Court Commissioner to disprove contents of said report. Perusal of statement of objections filed by plaintiffs to Commissioner’s report at Annexure-C would in no way suggest that plaintiffs have disputed valuation made by Court Commissioner either to be exorbitant, excessive or fanciful. In fact, records would disclose that Court Commissioner who was appointed namely, Assistant Executive Engineer, PWD and IWT had also obtained prevalent market value of properties from the office of Sub-Registrar and thereafter determined value of said properties. It is on record that Court Commissioner has left out certain other houses mentioned in para 12(A) of plaint in his report and not disclosing market valuation of five properties which measures around Rs.1262.87 sq.ft. as also three old buildings and new hostel building measuring 3852.75 sq.ft. though claimed in the suit, which obviously enures to the benefit of plaintiffs at this stage. Court fee is a public revenue and as such Court

10 has been vested with wide powers to prevent leakage of revenue. It is in this direction, Tribunal in order to ascertain correct market value of suit schedule properties as described in 12(A) & (B) of plaint has undertaken the exercise of appointing a Engineer as Court Commissioner. 5. It is noticed at this juncture itself that plaintiff did not produce any contra material to disprove contents of Commissioner’s report. If it were to be so, then question of weighing the evidence one against other would have cropped up and in that factual background, plaintiffs would have been justified in claiming their request for cross examining Court Commissioner. In the absence thereof, plaintiffs claim would remain vague and it cannot be allowed since plaintiffs are attempting to fish out evidence and as such contention of Mr.Krishnacharya, learned counsel appearing for petitioners that plaintiffs ought to have been provided

11 with an opportunity to cross examine the Court Commissioner cannot be accepted since the said situation never arose and plaintiffs never contended that valuation done or carried out by Court Commissioner is excessive or exorbitant. Hence, I do not find any good ground to interfere with well reasoned order passed by Court. Accordingly, writ petition stands rejected. Sd/- JUDGE *sp