1. All these cases pertain to the affairs of an institution called ‘Masjid-E-Islamabad’, Bangalore and they are inter connected. I, therefore, propose to dispose of these cases by a common order.

2. The institution is the petitioner in Writ Petition No. 6888 of 1980 which is the main writ petition. Writ Petitions Nos. 17235 and 19808 of 1980 filed by various other individuals that are interested in the affairs of the institution have arisen out of the delay in the disposal of the main writ petition, the communication of the interim order or as a result of the various interim orders made in that writ petition. Writ Petition No. 6888 of 1980 has been filed by the petitioner challenging an order bearing No. KTW 61 MSC-BNU 80 dated 14-3-1980 (Annexure-D) and letter No. KTW 61 MSC-BNU 80 dated 1-4-1980 (Annexure-E) of the Karnataka Board of Wakfs (hereinafter referred to as the Board), who is respondent No. 1 in that writ petition. The petitioner in his writ petition is represented by one Sri Musheer Ahmed Qureshi who has described himself as the Secretary of the institution. The petitioners in Writ Petition No. 17235 of 1980 claim to be the office bearers of the institution. In Writ Petition No. 19808 of 1980, petitioners 1 to 10 also claim to be the office bearers of the institution, which is petitioner No. 11. Petitioner No. 11 in the said writ petition is represented by one Sri Mohammed Rasheed Macci who claims to be the Secretary of the institution. In Writ Petitions Nos. 17235 of 1980 and 19080 of 1980 the Board is the first respondent. In Writ Petition No. 6888 of 1980 five persons who claim to have an interest in the institution have sought for permission to implead them as additional respondents in that case. Without making an express order, I have treated them as additional respondents in that case and heard their counsel on merits. In the course of my order, I will refer to the petitioner in Writ Petition No. 6888 of 1980 as the petitioner, the Board as respondent No. 1 and all other private individuals whether they are respondents or petitioners in the aforesaid writ petition or other writ petitions as other respondents. Under the Mysore Societies Registration Act of 1904 (Mysore Act No. III of 1904) that was then in force in the old Mysore area, the petitioner has been registered as a society during the year 1956–1957 for the promotion of the purposes and objects set out in its memorandum of association. The society has its own Rules and Bye-laws approved by the Registrar, commonly called as ‘Constitution’ and hereafter referred to as such. The society continues to be a society under the uniform Karnataka Societies Registration Act of 1960 that came into force on 6-6-1961 replacing the corresponding Acts on the subject in the various integrating areas of the new State of Karnataka.

3. On the extension of the Wakfs Act of 1954 (Central, Act No. 29 of 1954) to the old Mysore area, the petitioner has also been registered as a wakf in the register of wakfs maintained by the Board as early as in the year 1962. Article 8 of the Constitution vests the management of the petitioner in a governing body called ‘Majlis-e-Muntazima’ consisting of a President, a Vice-President, a Secretary, a Joint Secretary, a Treasurer and a Committee of 14 elected members and four members who can be co-opted by the committee. Elections to the governing body have to be held once in three years between Bakrid and Moharam of the year by the General Body of the Society which is called as Majlis. Indisputably, elections to the governing body of the petitioner were held some time in July, 1977 and all the office bearers of the governing body were duly elected by the general body and the same having duly taken over the management, was functioning for some time satisfactorily. But, as it happens in many an institution, unfortunately, differences appear to have arisen among the members of the governing body some time in the early part of this year. The petitioner asserts that the President and certain other office bearers tendered their resignation of different dates and the same has been accepted by the governing body. But, this assertion is disputed by those who are alleged to have tendered resignation. The disputes between the two groups of the governing body naturally had its own adverse effects on the members of the petitioner. With the laudable object of settling the disputes between the different groups, the Minister for Wakfs met the different groups and their followers in his chambers on 13-3-1980. Evidently, in pursuance of the decisions taken by the Minister at that meeting, respondent No. 1 made an order on 14-3-1980 (Annexure-D) in the following terms:

“ORDER No. KTW 61 MSC-BNU 80 DATED 14-3-1980.

Sri Abdulla Khazi, Chairman, District Wakf Committee (Urban) District, is hereby authorised to call for a General Body Meeting of the Masjid-E-Islamabad, Basavangudi, Bangalore and conduct elections to the Managing Committee within ten days. He will also start the construction work from 15th March, 1980 under his supervision.

Sd/- xxx

(Ghouse Mohiyuddin) Secretary,

Karnataka Board of Wakfs”

4. Along with the said order or separately, the Secretary of the Board addressed the letter dated 1-4-1980 (Annexure-E) to the Secretary of the petitioner stating that the elections to the governing body should be held in accordance with Art. 9 of the Constitution. A draft calendar of events was also annexed to the letter indicating the period within which the electoral roll should be prepared and the elections should be completed. On 30-4-1980, the petitioner approached this Court under Art. 226 of the Constitution of India challenging the aforesaid order of the Board and the letter written by it. On 1-5-1980 I issued rule nisi and made an interim order in effect staying the operation of the said orders. On 22-5-1980 Venkatachala, J., made an order that elections scheduled to be held on 25-5-1980 can take place withholding the declaration of results. On 26-5-1980 the same learned Judge in disposing of I.A No. 2 declared that the validity of the elections, if any, held could be urged by the parties. On 9-10-1980, Venkatesh, J. directed that the petitioner should not proceed with the further construction of the building in dispute.

5. The petitioner has urged that the orders issued by the Board are beyond its competence, contrary to the provisions of the Act and the principles of natural justice.

6. Respondent No. 1 in its return has resisted the petition on more than one ground. It has urged that the petitioner is a mosque and is not a juristic person. It claims that with the resignation of 12 members of the governing body out of 23, there is no governing body and the person who claims to be the Secretary and has filed the petition was not the Secretary. Lastly, respondent No. 1 has urged that the petitioner being a wakf is amenable to its supervisory jurisdiction under the Act and the impugned orders are within its power, legal and valid. The other private respondents have taken varying stands. As the validity of the impugned orders, depends on the stand taken by respondent No. 1, it is not very necessary to notice the stands taken by others in their separate returns filed in the case.

7. In Writ Petition No. 17235 of 1980 the petitioners while challenging the two orders challenged in Writ Petition No. 6888 of 1980 have also sought for quashing the elections alleged to have been held on 25-5-1980; On 5-9-1980 Swami, J. ordered notices to be issued to show cause as to why rule nisi should not be issued. In pursuance of the earlier order made by Venkatesh, J. on 2-9-1980 and by me on 23-10-1980 this case has been heard along with Writ Petition No. 6888 of 1980.

8. In Writ Petition No. 17235 of 1980 the petitioners claim that no elections as such have been held on 25-5-1980 and, even if held, were held when only 144 members were present which would not even constitute 25 per cent of the total number of members of the general body.

9. In their returns, the Board and certain others who are supporting the Board, have urged that the elections have been validly held on 25-5-1980.

10. In Writ Petition No. 19808 of 1980, the petitioners have challenged a notice issued by Shri Musheer Ahamed Qureshi, Honorary Secretary of Masjid-E-Islammabad, Basavanagudi, Ban-galore-4, stating that the general body meeting of the society will be held on 26-10-1980 in the mosque premises under the Presidentship of one Mr. Zahedulla Macci to consider the subjects detailed in that notice. The petitioners claim that the Secretary and the President have no right to issue notice much less hold the general body meeting as notified in the notice. On 24-10-1980, this case was posted before me for preliminary hearing with the prayer for stay. On that day Sri A.V Albal entered appearance for respondent No. 3 and stated that the resolutions, if any, to be passed by the general body on 26-10-1980 will not be given effect to till this writ petition is heard and decided on the question of maintainability and other questions. Noticing the said undertaking of Sri Albal, I directed this writ petition to be called along with Writ Petition No. 6888 of 1980. So far no rule nisi has been issued in this case and the same has been heard along with the other cases.

11. As the result of Writ Petitions Nos. 17235 and 19808 of 1980 depends on the result of Writ Petition No. 6888 of 1980, I will first deal with the questions that arise for determination in that case and then deal with the other cases either together or in their order.

12. Sri Albal has contended that the order made by the Minister for Wakfs/Government and carried out by the Board are without the authority of law, contrary to the principles of natural justice and Sections 15 and 63 of the Act.

13. Sri Murlidhar Rao, learned counsel for respondent No. 1, while supporting the orders made by respondent No. 1 urged that the petitioner is only a ‘mosque’ or a ‘place of worship’ which is not a juristic person and cannot maintain a petition under Art. 226 of the Constitution of India. Sri K.S Savanur, learned counsel for respondents 2 to 11 broadly supported Sri Rao. Sri J.M Raizuddin, learned counsel for the applicants in I.A No. V broadly supported Sri Albal. As the preliminary objection raised by Sri Rao to the maintainability of the petition filed by the petitioner, goes to the root of the matter, I first propose to examine the same.

14. Under the Societies Registration Act, the name of the institution that is registered is Masjid-E-Islammabad. The same institution has also been registered as a wakf in the register of wakfs maintained by respondent No. 1 and that institution is the petitioner in this writ petition. A registered society and a wakf are legal entities and juristic persons and they can sue and be sued is not and cannot be disputed by respondent No. 1. A registered society or a wakf are not living persons and can only be represented by the living persons. Whether a society or a wakf has been properly represented or hot does not touch on the question whether the society or the wakf is suing or has filed a petition before this Court. A mosque or a place of worship is not a legal entity and cannot sue, can hardly be doubted. But, in the present case, the petitioner is not the mosque though the mosque owned by the society, or the wakf is also called by the same name. In this view, the objection urged by Sri Rao that the mosque is the petitioner before this Court being factually incorrect, the legal contention based thereto has no merit.

15. Under S. 15 of the Karnataka Societies Registration Act of 1960 that is now in force, a registered society may sue or be sued in the name of the President, Chairman or Principal Secretary or the Trustees as shall be determined by the rules and regulations of the society and, in default, of such determination, in the name of such person as shall be appointed by the governing body for the occasion. A copy of the rules and regulations of the society furnished to the Court by Sri Albal, does not appear to specifically deal with the subject of suing the society. Whether the governing body of the society has authorised Sri Musheer Ahamed Qureshi the Secretary of the society to file his petition cannot be gahered from the pleadings. In my view, such an objection should have been taken by the office itself before registering the petition. At this belated stage, it would not be proper to raise this objection either by the Court or by any person and throw out the petition solely on that ground. In the circumstances that have developed it would be proper to assume that Musheer Ahamed Qureshi has been authorised to file this petition and he has filed the same with the authority of the governing body on behalf of the society and the petition so filed is competent,

16. At any rate, the society has been registered as a wakf under the Act. A wakf which is a juristic person can sue in its name represented by its mutawalli which term is defined by S. 3(f) of the Act. Whether all the other office bearers of the society would also fall within the meaning of the term mutawalli and should have joined or should have been made parties is a matter of procedure and is not a matter of substance that touches on the maintainability of the petition. For these reasons, I hold that the petitioner in Writ Petition 6888 of 1980 is the registered society which is also a wakf and is not a mosque or place of worship and, therefore, this petition is maintainable.

17. As I have rejected the preliminary objection raised by Sri Rao, it is now necessary to examine the merits of the case.

18. Earlier, I have noticed that institution which is a society and a wakf was managed by a governing body elected at a general body meeting of the members and their term was due to expire on 30-7-1980. Whether under the Societies Registration Act or under the Wakf Act the governing body, subject to the control by the general body, was entitled to manage the affairs of the institution till they are legally displaced in a manner known to law. By the order dated 14-3-1980 the Board has appointed one Abdulla Khazi as virtually the administrator of the institution displacing the legally constituted governing body of the institution. In the other letter, the Board has requested the Secretary of the petitioner to hold elections. Both these orders are not really independent orders made by the Board, but are made in pursuance of a minute or note of the Minister for Wakfs communicated to it.

19. Before ascertaining the true scope and ambit of Ss. 15 and 63 of the Act that alone are necessary and material for deciding the validity of the impugned orders, it is useful to notice the broad features of the Act.

20. The preamble to the Act sets out the object and purpose of the Act. According to the preamble, the Act has been passed to provide for the better administration and supervision of wakfs in the country. Chap.—I Preliminary—deals with the title, extent, commencement, application of the Act and the definitions. Chap.-II — Survey of wakfs — deals with the survey of wakfs, publication of list of wakfs and determination of disputes regarding wakfs. Chap.-IIA deals with an establishment of a Central Wakf Council. Chap.-IV deals with the establishment of a board of wakfs for each State and its functions. Chap.-IV deals with the registration of wakfs. Chap.-V deals with the mutawallis and wakf accounts. Chap.-VI deals with the finance of the Board. Chap.-VII deals with the judicial proceedings. Chapter-VIII — Miscellaneous — makes provisions in respect of matters that are not already provided in the earlier chapter to effectuate the purposes and objects of the Act.

21. A Board constituted under Chapter-III by the State Government is at the apex of the administration of wakfs in that State. The general superintendence of all wakfs in the State vests in the Board and is required to be exercised subject to such rules as may be made by the State Government under the Act. The power of general superintendence conferred by the earlier part of sub-sec. (1) of S. 15 is required to be exercised by the Board to ensure that the wakfs in the State are properly maintained, controlled and administered and the income thereof is duly applied to the objects and purposes for which the wakf is created or intended. The Board with its pivotal position is to be the guardian angel of all wakfs situated in the State. It has a duty to see that all wakfs in the State function properly and achieve the purposes for which a wakf is created or established. The power of superintendence over all wakfs in the State, which necessarily includes each and every wakf, has to be exercised in accordance with and subject to the rules framed by the State Government, the directions and purposes for which that particular wakf is created, usage and custom sanctioned by Muslim law. Sub-sec. (2) only particularises some of the powers that can be exercised by the Board. The opening part of sub-sec. (2) says that it is without prejudice to the generality conferred by sub-sec. (1) of S. 15. The expressions ‘without prejudice to the generality of the foregoing terms’ occurring in sub-sec. (2) cannot be read as limiting the powers conferred by sub-sec. (1) and should be read only as specifying some of the powers that can be exercised.

22. The terms “general superintendence” occurring in sub-sec. (1) of S. 15 of the Act which are not defined in the Act or in the General Clauses Act are not terms of art. Hence, their meaning has to be ascertained in the context in which they occur bearing in mind the other well recognised principles of construction of statutes also.

23. The word ‘superintendence’ is derived from the word ‘superintend’. In the Webster's Third New International Dictionary (Vol. III at page 2294) the words ‘Superintend’ and ‘Superintendence’ are defined thus:

“SUPERINTEND: To have or exericise the charge and oversight of oversee with the power of direction: supervise: to exercise supervision: have charge or oversight.

SUPERINTENDENCE: the act or function of superintending: care and oversight for the purpose of direction: supervision.”

24. The Oxford English Dictonary (Vol. X at 182) defines those terms as hereunder:

“SUPERINTEND: To have or exercise the charge or direction of (operations or affairs); to look after, oversee, superwise the working or management of (an institution, etc.,).

SUPERINTENDENCE: The function or occupation of a superintendent; the action or work of superintending.”

25. In the context, I would hold that the Board is conferred with he power of supervision or supervising the activities of all and every wakf in the State, which however is subject to the limitations noticed earlier.

26. Section 62 of the Act empowers the Central Government to issue directions to the Boards constituted by State Governments on questions of policy for which purpose it is also open to it to call for information and reports from the Boards.

27. Section 63 of the Act empowers the State Government to issue general or special directions to a Board constituted by it in the performance and functions of the Board. The general or special directions to be issued by the State Government which however is subject to the policy direction of the Central Government, if any, issued under S. 62 of the Act, must relate to the performance and functions of a Board which are required to be complied with by the Board. But, this power to issue general or special directions to a Board in its working or in the performance of its functions cannot be construed as empowering the Minister for wakfs or the Government to interfere with the day-to-day functioning of every wakf in the State. The Government cannot act as a manager, director, controller or supervisor of every wakf in the State.

28. On the above analysis of Ss. 15 and 63 of the Act it follows the order or directions issued by the Minister for wakfs and the consequent orders made thereto by the Board are wholly without jurisdiction and are manifestly illegal and they are, therefore, liable to be quashed. Assuming that any elections have been held in pursuance of the impugned orders, on which also there is serious dispute, the elections, if any, held are also invalid. The Board which had earlier supported, that elections have been held had expressed itself to hold fresh elections. The petitioner also agrees that fresh elections should be held and a new governing body that enjoys the confidence of the members should take over the management of the institution. Even, Sri Savanur though initially supported the validity of the elections, in my opinion, rightly submitted that it would be in the interest of all the parties that fresh elections are held so that all controversies connected with the institution could be ended and arrangements made for the smooth functioning of the institution. On the conclusions reached by me as also in the interest of all parties, elections to the institution has necessarily to be held and a new governing body duly elected in accordance with law.

29. Whoever may be responsible for the position, the period of the governing body elected in 1977 has admittedly expired on 30-7-1980. There is no provision in the Constitution of the Society or in the Karnataka Societies Registration Act or in the Wakf Act for continuance of the term of the governing body after its term has expired till a new governing body is duly elected and takes over the management of the society. Before the expiry of the term of the previous governing body or thereafter elections to the governing body have not been legally and properly held. In the absence of valid elections, a new governing body does not come into existence which can take over the reins of the institution. The governing body of the society which would be a mutavalli within the meaning of that term occurring in S. 3(f) of the Act, cannot be said to have the competence to continue till a new governing body is elected. From these, it is clear that either a vacancy in the office of the mutavalli within the meaning of S. 42 of the Act or the situation contemplated by S. 27A(1)(b) of the Karnataka Societies Registration Act of 1960 has arisen. A vacancy in the office of mutavalli can be filled up by the Board. But if an administrator has to be appointed for the society under the Karnataka Societies Registration Act, that power has necessarily to be exercised by the Government. Unforunately, a piquant situation has now arisen in the affairs of the institution where there is no legally constituted governing body or mutavalli to administer the affairs of the institution and, therefore, that situation has to be remedied either by the Board exercising the powers under Section 42 of the Act or by the State Government exercising the powers conferred by S. 27A(1)(b) of the Karnataka Societies Registration Act and immediate necessary measures taken for the appointment of a mutavalli or an administrator to look after the affairs of the institution till elections are held and a new governing body takes the reins of the institution.

30. On the conclusions reached by me in Writ Petition No. 6888 of 1980 the other writ petitions viz., Writ Petitions Nos. 17235 and 19808 of 1980 seeking for various reliefs, cannot really survive and they are, therefore, liable to be rejected.

31. On 9-10-1980, Venkatesh, J. has made an interim order in Writ Petition No. 6888 of 1980 directing the petitioner to stop further construction that is being carried on in the premises. With the disposal of this writ petition the said interim order would also stand terminated. Unfortunately, there are serious disputes between the parses on the constructions to be undertaken on the premises.

32. Sri Albal submitted that considerable cement secured by the petitioner will have to be thrown to the drains-if the same is not utilised in the immediate future. What steps, should be taken by the mutavalli or the administrator to be appointed for the preservation or use of the cement that is available is a matter for that authority to decide and no direction can be given by me in that behalf.

33. In the light of my above discussion, I make and issue the following orders and directions:

(a) I quash the order No. KTW 61 MSC-BNU 80 dated 14-3-1980 of the Karnataka Board of Wakfs (Annexure-D) and the letter No. KTW 61 MSC-BNU 10 dated 1-4-1980 (Annexure-E).

(b) I declare that the term of the governing body of Masjid-E-Islamabad elected in 1977 has expired on 30th July, 1980 and thereafter the said governing body cannot legally act as a governing body under the Karnataka Societies Registration Act of 1960 or as a ‘Mutavalli’ under the Wakf Act of 1954. In this view, it is open to the Karnataka Board of Wakfs to appoint a ‘Mutavalli’ for the wakf under S. 42 of the Wakf Act or to the Government of Karnataka to appoint an ‘Administrator’ under S. 27A(1)(b) of the Karnataka Societies Registration Act of 1960 with necessary powers to administer the institution and hold elections and make over the management of the institution to the new governing body to be elected in accordance with law.

34. Rule issued in Writ Petition No. 6888 of 1989 is made absolute. Writ Petition Nos. 17235 and 19808 of 1980 are rejected as having become infructuous.

35. In the circumstances of the cases, I direct the parties to bear their own costs.

36. Let copies of this order be communicated to respondent No. 1 and the State Government for their information and necessary action, within three days from this day.

37. Order accordingly.