- (1.) THE petitioner has filed this writ petition assailing the order at annexure-m, dated 8-10-1998 passed by the first respondent-wakf board (hereinafter referred to as 'the board') under Section 65 of the Wakf Act, 1. 995 (hereinafter referred to as 'the act') appointing an administrator to dargah hazrath mardan-e-ghaib at shivanasamudram.
(2.) THE brief facts of the case are as under. (a) one syed mohammed peer pasha khadri was the sajjada nashin of the hazrath mardan-e-ghaib dargah at shivanasamudram (hereinafter referred to as 'the dargah'), which is a wakf institution. These facts are evident from the notification at Annexure-A published by the board. petitioner states that the office of sajjada of the dargah is a hereditary and as per the custom and usage, the eldest son would be entitled to be the sajjada on the death or retirement of the sajjada. (b) the petitioner states that the aforesaid syed mohammed peer pasha khadri nominated his eldest son syed akhil pasha khadri, who is the father of the petitioner, as sajjada to be the successor of the dargah under a deed dated 20-10-1966. But unfortunately the nominated sajjada died on 27-10-1980. It is stated that in order to save the institution, the original sajjada nominated the petitioner as his successor on 26-2-1981 in the presence of sajjada nasheen, muthavalli and mujavars of various dargahs. The proceedings had been reduced to writing and attested by the gathering, including the 3rd respondent herein, as per annexure-b. The original sajjada died on 6-10-1988 and as per the deed of khilafat the petitioner claims to have succeeded to the office of sajjada and has been discharging the functions as such. (c) when the things stood thus, the 5th respondent, who is the 3rd son of deceased sajjada has filed suit in o. s. No. 724 of 1988 in the court of the ii additional civil judge, mysore, against respondents 1 and 2 herein seeking a declaration that he is the sajjada nashin on the basis of some documents and obtained temporary injunction restraining the board from interfering with his management of the dargah. The petitioner filed an impleading application in that suit and it is stated that no orders were passed thereon till 1995. The said interim order was subsequently made absolute. Against that Order, the board filed miscellaneous appeal nos. 30 and 31 of 1988 in the district court at mysore and the said appeals had been dismissed. The board preferred c. r. p. nos. 1926 and 1929 of 1990 before this court challenging the dismissal of the miscellaneous appeals. The said revision petitions also were dismissed on 22-11-1994. (d) it is stated that the 5th respondent filed suit in o. s. No. 113 of 1992 against the petitioner in the court of the j. m. f. c. at kollegal and obtained an injunction order against the petitioner and his brothers. after contest, the injunction order came to be vacated on 8-10-1992. The 5th respondent filed m. a. No. 75 of 1992 challenging the said order. The said appeal was dismissed on 28-9-1994. C. r. p. No. 3780 of 1994 filed against that order also was dismissed by this court. By virtue of these proceedings, petitioner claims that the courts have accepted him as the sajjada nashin of the dargah. (e) the litigation did not end there. The 5th respondent filed another suit in o. s. No. 266 of 1992 against the petitioner and others seeking a declaration that he is the sajjada nashin of the dargah. In that suit an order of temporary injunction was granted. In m. a. No. 34 of 1993 filed against the said Order, the injunction order was stayed. The appeal filed against it, is stated to be pending. (f) it appears that the petitioner had also filed a suit in o. s. No. 233 of 1989. In that suit the petitioner and the 5th respondent came to an understanding on 13-2-1994 to look after the affairs of the dargah mutually. as per the said arrangement, it is claimed that the entire supervision and management of the dargah is being looked after by the petitioner and the 5th respondent is looking after the daily poojas, rituals etc. (g) when things stood thus, the first respondent has passed the impugned order at annexure-m appointing administrator to the dargah. aggrieved by the same, the petitioner has filed this writ petition seeking to quash the same and to forbear respondents 1 and 2 from interfering with the affairs of the dargah.
(3.) MR. Kumar, learned counsel for the petitioner contends that as per the agreement, the petitioner and 5th respondent are looking after the affairs of the dargah without causing any prejudice to the institution. according to him, there was no vacancy in the office of sajjada nashin to exercise the power conferred under Section 65 of the act. He further submits that administrator could be appointed if there are no suitable person available for appointing to the office and in the impugned order it is not stated that no suitable person is available. Since the affairs and properties of the dargah are under direct control of petitioner and 5th respondent, the exercise of power under Section 65 of the act appointing the 4th respondent as administrator was unwarranted and uncalled for. he submits that the impugned order suffers from legal malice. It is stated that since the procedure prescribed has not been followed, the impugned order is contrary to the law laid down by the Supreme Court in (1999)3 SCC 432 (sic ). In view of all these, the counsel prays for allowing the writ petition and to grant the reliefs sought for therein.;