IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.55252/2017(GM-PP) BETWEEN:
AFROZ PASHA @ APPU, S/o LATE HAJI MOHAMMAD AMEER, A/a 49 YEARS, R/o D.No.395, NEW No.1/1 SITUATED AT GIRLS ORPHANAGE ROAD, LASHKAR MOHALLA, MYSURU.
... PETITIONER (BY SRI RAGHUPATHY T.N., ADVOCATE) AND:
1. MASJID-E-AZAM, BY ITS PRESIDENT OF ITS MANAGING COMMITTEE, ASHOKA ROAD, LASHKAR MOHALLA, MYSURU-570001.
2. THE COMPETENT OFFICER AND CHIEF EXECUTIVE OFFICER, KARNATAKA STATE BOARD OF WAKF, No.6, CUNNINGHAM ROAD, BENGALURU-560001.
... RESPONDENTS (BY SRI KRISHNAMURTHY G. HASYAGAR, ADV., FOR C/R1; SRI M. H. HANEEF, ADVOCATE FOR R2) …… THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE JUDGMENT DATED 26.4.2016 PASSED BY THE COMPETENT OFFICER VIDE ANNEXURE-A AS ILLEGAL AND QUASH THE SAME AND TO QUASH THE JUDGMENT DATED 20.11.2017 PASSED BY THE V ADDL. DISTRICT & SESSIONS JUDGE, MYSURU, MADE IN M.A.No.19/2016, VIDE ANNEXURE-B.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER IS COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner in the present writ petition has sought for a writ of certiorari to declare the order dated 26.04.2016 made in No.PP/58/MYE/2003-04 passed by the second respondent/Competent Officer, vide Annexure-A, as illegal and to quash the judgment dated 20.11.2017 made in M.A. No.19/2016 passed by the V Addl. District and Sessions Judge, Mysuru, Annexure- B, as illegal.
I. BRIEF FACTS OF THE CASE 2. It is the case of the petitioner that the premises measuring 13 feet x 35 feet situated at Lashkar Mohalla, Mysuru, was belonging to Masjid-E-Azam/first respondent, which is a wakf institution. The petitioner was in actual possession of an additional area of 40 ft x 45 ft together. These two portions were being used as small scale industry viz., fixing nails (laala/reed) to the hoofs of oxen and horses. When things stood thus, the second respondent initiated proceedings under the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974, (‘the Act’ for short), in respect of both the portions and petitioner was dispossessed from the entire premises including the premises not belonging to the first respondent. It is further contended that the Competent Officer/second respondent, by the Order dated 11.12.2006, directed the petitioner to vacate and hand over the vacant possession of the premises to the first respondent, within 45 days from the date of publication of the Order. Aggrieved by the said Order, the petitioner filed an appeal in M.A.No.4/2007 under the provisions of Section 10 of the ‘Act’ before the II Addl. District Judge, Mysuru, who, after hearing both the parties, by the judgment dated 19.01.2009, allowed the appeal and set- aside the Order passed by the second respondent and remanded the matter to the second respondent with a direction to provide an opportunity to both the petitioner and the first respondent to adduce their further evidence and to produce documents, if any, and thereafter dispose of the matter afresh, in accordance with law.
3. It is further case of the petitioner that after remand, again the second respondent, by the Order dated 22.04.2010 directed the petitioner to vacate and hand over the vacant possession of the property to the first respondent. Aggrieved by the said Order, petitioner filed M.A.No. 29/2010 before the III Addl. District Judge, Mysuru, who after hearing both the parties, by the judgment dated 15.03.2011, allowed the appeal and remanded the matter to the second respondent for fresh disposal, in the light of the observation made in the said M.A.No.29/2010. After remand for the second time, the second respondent, considering the entire material on record, by the impugned Order dated 26.04.2016, vide Annexure-A exercising powers under sub-section (1) of Section 5 of the ‘Act’, directed the petitioner to vacate the premises within 45 days of the date of publication of the Order. Aggrieved by the said Order, the petitioner filed M.A.No.19/2016 on the file of the V Addl. District and Sessions Judge, Mysuru, who after hearing both the parties, by the impugned Order dated 20.11.2017, dismissed the appeal. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
II ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PETITIONER 5. Sri T.N.Raghupathy, learned counsel for the petitioner contended that the impugned Orders passed by the second respondent directing the petitioner to vacate and hand over the vacant possession of the premises within 45 days of the date of publication of the order, confirmed by the appellate authority is erroneous, illegal and contrary to the material on record. He further contended that the petitioner’s father was a tenant under the first respondent under lease deed dated 17.09.1978 on a monthly rent of `75/- for a period of 11 (eleven) months. The schedule to the lease deed does not depict the measurement of the property in question. In the absence of identity of the property, the very eviction order passed by the second respondent, confirmed by the appellate authority, cannot be sustained.
6. He further contended that the lease agreement came to be entered into between the petitioner and first respondent on 22.04.1996 and the rent was fixed at `225/- per month. In the said lease agreement, except mentioning the property number and the location/area, no other details are mentioned. The measurement and boundary of the property are not mentioned. The schedule to the lease deed is left blank. He further contended that, the property measuring 13 ft. x 35 ft. is under tenancy and remaining area of the property belongs to the petitioner and when there are disputed facts, the second respondent has no jurisdiction to pass the eviction Order which is confirmed by the Appellate Authority.
7. He further contended that the appellate authority, at para 18 of the impugned judgment, has come to the conclusion that, ‘the agreement was only for a portion of the property and the remaining portion of the property, which is now claimed by the petitioner was not subject matter of the lease’. Inspite of the same, the appellate authority proceeded to dismiss the appeal, erroneously. In view of the provisions of sub-Section (2) of Section 5 of the ‘Act’, it is mandatory to issue notice for taking possession. In pursuance of the original order passed by the second respondent confirmed by the Appellate Authority, petitioner was forcefully dispossessed from the premises and possession was taken and the entire building was demolished. Therefore, the impugned Order passed by the second respondent, confirmed by the Appellate Authority is in utter violation of sub Section (2) of Section 5 of the ‘Act’ and the same cannot be sustained. Therefore, he sought to allow the writ petition.
8. In support of his contentions, learned counsel relied upon the following Judgments:
(i) W.P.No.8536/2006 (GM-PP) dated 13.01.2019 in the case of Shri Naagesh Rao vs. The Commissioner, Bangalore Mahanagara Palike, para 3 and 9, wherein it is held that, ‘when there is serious dispute as to the location and identity of the property, the title of the property has to be decided by competent Civil Court, having regard to the evidence adduced by either of the parties’.
(ii) State of U.P. and another vs. Zia Khan reported in (1998)8 SCC 483, para-3, it is held that, ‘to decide the disputed fact with regard to measurement, boundary and title of the property, only competent authority is the Civil Court’.
(iii) M/s Patil Exhibitors (P) Ltd. vs. Corporation of the City of Bangalore reported in ILR 1985 KAR 3700 to the effect that, ‘the tenant, on the expiry of the lease, may not be in ‘lawful possession’, but the tenant’s possession in such a situation is ‘juridical possession’ and such a possession is protected by law against wrongful dispossession though ‘juridical’ possession cannot always be equated with ‘lawful’ possession’.
(iv) Krishna Ram Mahale (dead) by his LRs vs. Mrs. Shobha Venkat Rao reported in AIR 1989 SC 2097, para-8, to the effect that, ‘where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law’.
(v) Mohammed Hanif vs. The State of Assam reported in 1969(2) SCC 782 para-5, to the effect that, ‘the only object to a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction and the writ is always granted for the protection of public interest and primarily by the Court of King’s Bench, etc’.
III. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE FIRST RESPONDENTS 9. Per contra, Sri Krishnamurthy G. Hasyagar, learned counsel for the respondent No.1 sought to justify the impugned Orders passed by the second respondent as well as the Appellate Authority and contended that after expiry of the period of lease agreement, the second respondent who is the competent authority, after following the procedure contemplated under the provisions of ‘Act’, has passed the eviction Order and the same is confirmed by the Appellate Authority and therefore, the impugned orders cannot be interfered by this Court.
10. He further contended that the petitioner has not produced any document to show that he is the owner in respect of the remaining portion of the property in dispute. He contended that though the petitioner in his deposition, has categorically admitted that the remaining portion of the property belongs to the Corporation, but has not produced any document to prove that he is in possession and enjoyment of another portion of the property. He contended that in the year 1965 itself, the notification came to be issued declaring the property in question as wakf property which was produced before the second respondent and a corrigendum dated 28.09.2011 was issued by the Karnataka State Board of Wakfs regarding schedule property held by the first respondent, after issuing public notice on 01.08.2011. No objections were filed by the petitioner or any other person with regard to the said notification/corrigendum. In the said corrigendum, the description of the property is mentioned as property No.395/1, L-1/1, Sawday Road, 3rd Cross Galli (9th Cross), Lashkar Mohalla, Mysore, measuring 37 ft. x 54 ft. Admittedly, petitioner has not challenged the said corrigendum in any form, till today.
Therefore, writ petition is not maintainable and liable to be dismissed.
11. He further contended that during the proceedings before the second respondent, a Court Commissioner was appointed to inspect the spot and submit report to identify the property in question. The Appellate Authority, in the impugned Judgment, at paragraph 15 has observed that, ‘subsequent to the appointment of Court Commissioner and his report, the petition has been amended and the claim is restricted to 34.09 feet x 54 feet only’. The boundaries mentioned in the impugned Order, Annexure-A, in the Corrigendum dated 28.09.2011 and the property which has been unauthorizedly occupied by the petitioner which is the subject matter of the proceedings before the competent authority are one and the same. Therefore, he sought to dismiss the petition.
12. He further contended that both the authorities below concurrently held that the petitioner is in unauthorized occupation of the property in question and liable to be evicted. Such a finding of fact recorded by the second respondent and the District Judge cannot be interfered by this Court under extraordinary writ jurisdiction. He contended that the petitioner has delivered possession of the schedule premises on 30.11.2017. The present writ petition filed has virtually become infructuous as the impugned orders Annexures- A and B have already been implemented and executed in accordance with law, even before filing of the present writ petition. Therefore, he submits that the writ petition is liable to be dismissed.
13. He also pointed out that the second respondent passed the impugned order on 26.04.2016 as per Annexure-A, the Appellate Authority passed the impugned Order on 20.11.2017 as per Annexure-B, the Order under Section 5(2) of the ‘Act’ for taking possession of the property came to be passed on 28.11.2017, possession was taken in accordance with law on 30.11.2017 and writ petition was filed on 07.12.2017 (after delivery of possession). He further contended that the petitioner has not produced any registered sale deed or title deed to show that he is the owner of the remaining portion of the property in question. Since there are several disputed questions of facts and law, the petitioner cannot seek restoration of the property. Therefore, he would contend that the impugned orders passed by the second respondent confirmed by the Appellate Authority cannot be interfered by this Court and sought to dismiss the writ petition.
14. In support of his contentions, learned counsel sought to rely on the following judgments:
(i) Roshina T Vs. Abdul Azeez K.T. & others made in Civil Appeal No.11759/2018 dated 03.12.2018, at para 10, it is held that, “the writ petition filed by the first respondent under Article 226/227 of the Constitution of India against the appellant before the High Court for grant of relief of restoration of the possession of the flat in question was not maintainable and the same ought to have been dismissed in limine as being not maintainable. In other words, the High Court ought to have declined to entertain the writ petition in exercise of extra ordinary jurisdiction under Article 226/227 of Constitution for grant of reliefs claimed therein”.
(ii) Sayyed Ali and others vs. A.P.Wakf Board, Hyderabad and others reported in AIR 1998 SC 972, para-8 (iii) Mohammed Galib Pasha vs. The Competent Officer and others made in W.P.83866/2011 & 84152/2011 dated 23.01.2013.
(iv) Mr.Basheer Ahmed vs. Dargah Hazarath Safdar Alia Shah & another made in W.P.Nos.43470-210/2016 dated 29.08.2017.
(v) Narasimha Shastry vs. Mangesha Devaru reported in ILR 1988(1) KAR 554 to the effect that, “in ascertaining actual area sold, recitals as to boundaries should prevail”.
(vi) Mohandas Dattaram Prabhu and ors vs. U.F.M. Mukund Honnappa Naik reported in ILR 2003 KAR 2420.
(vii) Rajasthan Wakf Board vs. Devki Nandan Pathak and others reported in AIR 2007 SC 2155, para 24, 27.
(viii) Sri Abdul Subhan vs. Masjid And Dargah Hazarath & another made in W.P.No.38108/2016 dated 20.02.2018, to the effect that, “after following the procedure as contemplated under the Act, when possession has been taken as far back as on 15.07.2016, the challenge made to the eviction order passed against the petitioner would not be sustainable”.
(ix) The Judgment of the High Court of Kerala at Ernakulam in the case of Abdul Khader vs. The Intelligence Officer and another made in RP No.381/2016 dated 10.05.2016, to the effect that, “if petitioner has not come to the Court with clean hands and suppress the material facts, he is not entitled to any relief”.
15. Sri M.H.Haneef, learned counsel for the second respondent sought to justify the impugned Orders and contended that the petitioner has not produced any documents to show that he is the owner of the remaining portion of the property and therefore the eviction order passed by the second respondent confirmed by the appellate authority cannot be interfered by this Court. He further contended that even after remand on two occasions, both the second respondent as well as the appellate authority concurrently held that the petitioner is liable to be evicted and therefore, this Court cannot interfere under Articles 226 and 227 of the Constitution of India. Accordingly, he sought to dismiss the writ petition.
IV. POINTS FOR CONSIDERATION 16. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration are:
(i) Whether the second respondent is justified in passing the eviction order exercising powers under the provisions of Section 5(1) of the ‘Act’, which is confirmed by the Appellate Authority?
(ii) Whether the petitioner has made out any case to interfere with the impugned Order passed by the second respondent confirmed by the Appellate Authority under Articles 226 and 227 of the Constitution of India?
V. CONSIDERATION 17. Having heard the learned counsel for the parties, it is the specific case of the petitioner that his father was a tenant in respect of the property measuring 13 ft x 35 ft situated at Lashkar Mohall, Mysuru, under the lease deed dated 17.09.1978 and remaining portion of the property measuring 40 ft x 45 ft belongs to the petitioner and he is in possession of the same. It is the specific case of the first respondent that the entire property belongs to first respondent who issued gazette notification in the year 1965 itself declaring that the property in question is a wakf property and subsequently corrigendum came to be issued on 28.09.2011. It is further case of the first respondent that, the second respondent appointed the court commissioner to identify the property in question and thereafter, the claim was restricted to 35 ft x 54 ft. The boundaries mentioned in the impugned Order, Annexure-A, in the Corrigendum dated 28.09.2011 and the property which has been unauthorizedly occupied by the petitioner which is the subject matter of the proceedings before the competent authority are one and the same.
18. It is also not in dispute that on an earlier occasion i.e., on 11.12.2006, the second respondent, exercising his powers under Section 5(1) of the ‘Act’ passed an Order which was subject matter of M.A.No.4/2007 before the II Addl. District Judge, Mysuru, who recorded a finding that, “on careful examination of the records of the Court below the first respondent has failed to satisfy the Court below to the effect that the entire property which is in occupation of the petitioner is the wakf property. The competent authority has failed to ascertain whether the entire property in question is the wakf property and the petitioner is liable to hand over the vacant possession of the entire property in question. The petitioner is also claiming his ownership in respect of the adjacent property of the Wakf Board which is in his possession. Since the Competent Authority has failed to consider the fact that whether the entire property which is in occupation of the petitioner is wakf property, as such, the order under appeal is frivolous, vexatious, opposed to law, facts and probabilities of the case. Since the first respondent has failed to prove by adducing the cogent oral evidence and by producing sufficient documentary evidence that the entire property measuring East to West 35 ft and North to South 40 feet is the property of the Wakf Board, it is just and necessary to set-aside the order under appeal and to remand the matter to the competent authority”.
19. It is also not in dispute that after remand, the second respondent passed the eviction order on 22.04.2010 which was subject matter of Appeal in M.A. No.29/2010 before the III Addl. District Judge, Mysuru, who after hearing both the parties, has recorded a finding that, “On going through the impugned order of the competent officer it can be seen that competent officer has overlooked the fact that the petitioner has given wrong boundaries in the petition and those boundaries do not tally with the boundaries mentioned in the lease agreement entered into with the father of respondent. The competent officer has also ignored the fact that the measurement of the property was not mentioned in the lease agreement earlier and the petitioner for the first time, has claimed that the measurement of the property leased to the father of respondent was 55 x 40 feet. There is no clinching evidence to show that the measurement of the property leased to the father of respondent was 55 x 40 feet. There is also no evidence on record to ascertain as to what happened to the conservancy lane which was situated on the west and north of the property leased to the father of the respondent. Even though a court commissioner was appointed in the case no efforts appears to have been made to find out the exact extent of the land which appears to have been encroached by the respondent and what was the real extent of the property which was actually leased to the father of the respondent. Therefore, the impugned order passed by the competent officer is not sustainable in law and the impugned order is contrary to the documents of the petitioner and also the evidence on record”. Accordingly, the order passed by the first respondent was set-aside and remanded for fresh enquiry.
20. In view of the Orders passed by the Appellate Authority on two occasions, it is clear that the first respondent has to satisfy the competent authority to the effect that the entire property which is in possession of the petitioner is the wakf property and the petitioner is liable to hand over vacant possession of the entire property in question. The petitioner is also claiming ownership in respect of additional property of Wakf Board which is in his possession. The competent authority failed to consider whether the entire property in occupation of the petitioner is wakf property and ignored the fact that the measurement of property is not mentioned in the lease agreement and the petitioner has claimed the measurement of the property leased to his father was 13 ft x 35 ft. There is also no evidence on record to ascertain as to what happened to the conservancy lane which was situated to the west and north side of the property leased to the father of the petitioner. Even though the Court Commissioner was appointed, no efforts appears to have been made to find out the exact extent of the land which appears to have been encroached by the petitioner and what is the real extent of the property which actually leased to the father of the petitioner.
21. In view of the concurrent finding of fact recorded by the second respondent and the Appellant Authority, it is worthwhile to consider the boundaries mentioned in the lease deed, eviction notice, eviction petition and the notification issued by the first respondent declaring the property as wakf property.
(1) As per lease deed dated 17.09.1978 (Annexure-F to the writ petition), the first respondent executed the lease in favour of the father of the present petitioner letting out the premises on a rent of `75/- per month. The schedule is mentioned as under:
SCHEDULE Mangalore tiled and country tiled House bearing door No.395 (New L.1) situated at Girls’ Orphanage Road, Lashkar Mohalla, Mysuru, bounded by:
East: Mosque West: Conservancy Lane. North: Conservancy Lane. South: Site belonging to mosque.
It is clear that except the boundaries and door number, measurement of the property which was leased to the father of the petitioner is not forthcoming in the lease deed.
(2) The lease agreement said to have been executed by the first respondent in favour of the petitioner dated 22.04.1996 on monthly rent of `225/- and subsequently, it was enhanced to `400/- though it is disputed by the respondent, the measurement and boundary of the property is not given.
(3) In the notification issued by the Mysore State Board of Wakf, Vidhana Soudha, Bangalore, dated 01.04.1965 vide Annexure- L, at Sl.No.66(8) 5 shops and 5 rooms No.395/1 to 395/10, boundaries or measurement of the property is not mentioned.
(4) The corrigendum dated 28.09.2011 issued by the Karnataka State Board of Wakfs vide Annexure-R3, reads as under:
Existing entries Read the correct entries
Cross) Lashkar Mohalla, Mysore, measuring 37’x54’ and its boundaries are as under:
Boundaries:
East: Masjid-e-Azam property, West: Sawday Road 3rd Cross Galli (9th Cross) North: Sab Jan Sab’s House South: Masjid-e-Azam property.
22. As could be seen from the above table, the description of the property is mentioned as five shops and five rooms No.395/1 to 395/10, out of above properties details of the property No.395/1 is No.395/1, L-1/1, Sawday Road, 3rd Cross Galli (9th Cross) Lashkar Mohalla, Mysore, measuring 37 ft. x 54 ft. and its boundaries are:
East: Masjid-e-Azam property, West: Sawday Road 3rd Cross Galli (9th Cross) North: Sab Jan Sab’s House South: Masjid-e-Azam property.
23. The eviction petition filed under Section 5 of the ‘Act’ by the first respondent before the second respondent on 02.08.2003 as per Annexure-R10 produced by the second respondent along with synopsis dated 18.07.2019 clearly depicts the schedule as, ‘All that part and parcel of building and vacant site of Shop bearing No.395 New No.L1 situated at Girls Orphanage Road, Lashkar Mohall, Mysore, measuring East to West 55 feet, North to South 40 feet, bounded on:
East: Mosque property, West: Sadey Road (9th Cross) North: Mosque property South: Site belonging mosque.
24. In the notice issued under Section 4(1) of the ‘Act’ in Form ‘A’ on 13.10.2003 and 29.11.2003 vide Annexure-R11, the measurement of the property is given as given in the eviction petition dated 02.08.2003.
25. As per the report submitted by the Court Commissioner before the second respondent, the schedule of the property is:-premises/shop bearing No.395/1, L/1/1 at Sawday Road, 3rd Cross (9th Cross), Mysore, East West: 54 feet and North South: 34.09 ft. bounded on the-
East by: Masjid-E-Azam’s property, West by: 3rd Cross Sawday Road, North by: Sab Jan Sab’s property, South by: Masjid E-Azam property measuring 26. A careful perusal of the materials on record depicts that in the Notification dated 01.04.1965 no measurement is shown; measurement is not shown in the lease deed dated 17.09.1978, boundary and measurement is not mentioned in the lease agreement dated 22.04.1996; measurement is shown as 37 feet x 54 feet in the corrigendum dated 28.09.2011, 55 feet x 40 feet in the eviction notices dated 13.10.2003 and 29.11.2003; 55 feet x 40 feet in eviction petition dated 02.08.2003; 54 feet x 34.09 feet in the report of the Court Commissioner. The measurement and boundary mentioned in the corrigendum and the eviction petition does not tally with each other. It is also not in dispute that the Court Commissioner appointed by the second respondent, in his report has mentioned the measurement as 54 ft from East to West and 34.09 ft from North South. Whereas, in the eviction petition it is mentioned as East to West 55 ft and North to South 40 ft. The boundaries does not tally with each other.
27. The specific case of the petitioner throughout is that the property is measuring 13 ft. x 35 ft, while the eviction notice issued to the petitioner and the eviction petition filed is in respect of property measuring 55 ft. x 40 ft. In view of the discrepancy of the measurement and the boundaries mentioned in the lease deed, Notification issued by the Mysore State Board of Wakfs, the report submitted by the Court Commissioner and the eviction petition, the next point to be considered is, in the absence of rectification of the boundaries and measurement, whether the first respondent can issue eviction notice under the provisions of Section 4 of the ‘Act’ and can maintain eviction petition and whether the second respondent can pass eviction orders under Section 5 of the ‘Act’.
28. For better understanding, Section 4 of the ‘Act’ is extracted which reads as under:
4. Issue of notice to show cause against order of eviction.— (1) If the competent officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the competent officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall,— (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of or claim interest in the public premises to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof.
(3) The competent officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed whereupon the notice shall be deemed to have been duly given to all persons concerned.
(4) Where the competent officer shows or has reason to believe that any persons are in occupation of the public premises then, without prejudice to the provisions of sub- section (3) he shall cause a copy of the notice to be served on every such person by registered post or by delivering or tendering it to that person or failing service by the means aforesaid in such other manner as may be prescribed.
29. A careful reading of the said provision makes it clear that, If any person who is in unauthorised occupation of any public premises is to be evicted, the competent officer shall issue a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. Such notice shall (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons, who are, or may be, in occupation of or claim interest in the public premises to show cause, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof. The notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed whereupon the notice shall be deemed to have been duly given to all persons concerned. Where the competent officer believes that any persons are in occupation of the public premises then, without prejudice to the provisions of sub-section (3) he shall cause a copy of the notice to be served on every such person by registered post or by delivering or tendering it to that person or failing service by the means aforesaid in such other manner as may be prescribed.
30. The provisions of Section 5 of the ‘Act’ reads as under:
5. Eviction of unauthorised occupants.— (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the competent officer is satisfied that the public premises are in unauthorised occupation, the competent officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (1), the competent officer or any, other officer duly authorised by the competent officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.
31. A careful reading of the said provision makes it clear that, after considering the cause shown by any person in pursuance of a notice under section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, if the competent officer is satisfied that the public premises are in unauthorised occupation, the competent officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. Sub clause (2) specifies that, if any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (1), the competent officer or any, other officer duly authorised by the competent officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.
32. Keeping in view the directions in the judgment passed in M.A. No.4/2007 dated 19.01.2009 and M.A.No.29/2010 dated 15.03.2011 and in view of the discrepancy in the measurement and boundary to the property in the lease deed, the notification, commissioner report, eviction notice and eviction petition, there is a need to verify from the impugned order, whether all such directions have been complied with by the second respondent in the impugned order, before passing the eviction order.
33. It is undisputed fact that, in view of the rival contentions stated supra, the first respondent has to satisfy that the entire property which is in occupation of the petitioner is a wakf property and the first respondent who filed the eviction petition has given wrong boundaries in the petition and those boundaries do not tally with the boundaries mentioned in the lease deed and the second respondent has ignored that the measurement of the property is not mentioned in the lease agreement and for the first time the first respondent has claimed measurement of the property leased to the father of the petitioner is 55 ft. x 40 ft.
34. A careful perusal of the contents of the eviction petition filed by the first respondent before the second respondent, reveals that the property mentioned in the schedule is wakf property and father of the petitioner took the schedule property on lease for monthly rent of `75/- on 17.09.1978 and father of the petitioner died leaving behind the petitioner, his brothers and sisters. The first respondent issued legal notice to vacate the schedule premises. Insptie of the same, present petitioner who was respondent before the competent officer sent reply through his advocate.
35. In the objection filed before the second respondent, the present petitioner who was the respondent, has taken a specific contention that, at the out set, the very petition filed is not maintainable and there is no relationship of landlord and tenant between the petitioner and respondent and therefore, petition is not maintainable. It is specifically stated that the petitioner’s father, late Mohammed Ameer Sab, left behind his brothers and sisters, however, that has nothing to do with the schedule property. The petitioner is in possession and enjoyment of the same in his individual capacity and also admitted that the first respondent issued notice to the petitioner with full of concocted story and accordingly, petitioner issued reply on 14.07.2003 and further contended that the petitioner entered into a lease agreement dated 22.04.1996 with the respondent and leased out the property to an extent of 13 ft. x 35 ft. on monthly rent of `225/-. The first respondent has collected a sum of `10,000/- as advance from the petitioner. The petitioner is using the said premises as his office and store room. The adjoining portion, i.e., on the western side in an extent of East to West 55 feet and North to South 40 feet is in possession, occupation and enjoyment of the petitioner, as its absoluter owner which bears No.395, New No.L/1 and he is paying taxes to the Mysore City Corporation in respect of the said portion. The petitioner institution has nothing to do with the said portion.
36. The second respondent framed the following issues for consideration:
(i) Whether the wakf is registered with Karnataka State Board of Wakf as contemplated under Section 2(e)(v) of the ‘Act’?
(ii) Whether the person concerned has become unauthorized occupant under Section 2(g) of the ‘Act’?
37. The second respondent, considering the entire material on record, has come to the conclusion that, “the petitioner has proved that the wakf is registered with the Karnataka State Board of Wakf as contemplated under Section 2(e)(v) of the ‘Act’.” But, the second respondent/competent officer has not framed any issue with regard to identity of the property in question. When the petitioner (respondent therein) raised a contention that his father was tenant only respect of property measuring 13 ft. x 35 ft. and the remaining portion of the property he is in possession and enjoyment of the same and there is no issue whether the entire property in occupation of the present petitioner is wakf property and whether the first respondent herein has given wrong boundaries in the petition which does not tally with the boundaries mentioned in the lease agreement and the eviction notice issued is in conformity with the provisions of Sections 4 and 5 of the ‘Act’.
38. Inspite of categorical finding recorded by the learned District Judge on two occasions in M.A. Nos.4/2007 and 29/2010, the second respondent has not recorded any finding that the entire property in possession of the petitioner belongs to Wakf Board and it is not the case of the first respondent before the second respondent that though the petitioner claims that his father was tenant in respect of 13 ft. x 35 ft. but petitioner is in unauthorized occupation of the entire property which belongs to wakf. Though in para- 15 of the impugned judgment i.e., M.A.No.19/2016, the learned District Judge has observed that the petitioner restricted his claim to 34.09 ft. x 54 ft. only, it cannot be accepted when the eviction notice and eviction petition filed depicts larger extent and does not tally with the measurement and boundaries, as already stated supra.
39. Absolutely no discussion is made with regard to measurement and boundary with reference to the lease deed relied upon by the petitioner, the notification, commissioner report and the eviction petition relied upon by the first respondent. The boundaries and measurement does not tally with each other. How the notice under Section 4 and eviction order passed under Section 5 of the ‘Act’ is maintainable, when the identity of the property in question is not proved by the first respondent, who filed eviction petition is not forthcoming. The second respondent in the impugned order has not considered the same.
40. It is also not in dispute that the present petitioner has admitted that his father was tenant in respect of property measuring 13 ft x 35 ft and he is the owner in possession of remaining extent of 40 ft. x 45 ft. as stated at para-4 of the objections to the eviction petition filed before the second respondent. But no documents are produced and absolutely no finding is recorded by the second respondent to that effect. It is well settled that the second respondent who exercised powers under Section 4 and 5 of the ‘Act’ has to satisfy itself about the particulars of the premises of which eviction is sought. In the absence of identity of the property, the very notice issued under Section 4 and the eviction order passed under Section 5 of the ‘Act’ cannot be sustained in the presence of discrepancy of the measurement and boundaries in the document relied upon by both the parties, as stated supra.
41. While confirming the order passed by the second respondent, though the learned District Judge relied upon the boundaries mentioned in the two notices, the learned District Judge has not considered the boundaries claimed by the first respondent under the two notifications and commissioner’s report, thereby, erroneously confirmed the order passed by the second respondent ignoring the earlier directions issued by the learned District Judge in M.A.No.4/2007 and M.A.No.29/2010. Therefore, the impugned order passed by the second respondent, confirmed by the District Judge cannot be sustained.
42. It is also not in dispute that as on the date of filing the above writ petition, it is the specific case of the petitioner that the petitioner has been dispossessed from the entire premises including the premises belonging to the first respondent and the prayer is only to quash the order passed by the second respondent confirmed by the District Judge. Though the learned counsel for the petitioner relied upon several judgments to restore the possession of the property which was taken by the first respondent in violation of Section 5(2) of the ‘Act’, in the absence of any specific boundary claimed by the petitioner about his property with reference to both oral and documentary evidence on record, this Court decline to exercise the power under Articles 226 and 227 of the Constitution of India.
43. Though several judgments are relied upon by learned counsel for both the parties, the said judgments ought to have been applied, if the eviction order passed by the second respondent is with reference to the pleadings, issues and oral and documentary evidence. As already held by this Court, the eviction order passed by the second respondent without reference to the pleadings, without framing proper issues and without considering the discrepancy of measurement and boundaries, is not sustainable. Therefore, the judgments relied upon by learned counsel for the parties are not applicable at this stage.
VI. CONCLUSION 44. For the reasons stated above, the first point raised for consideration in the present writ petition has to be answered in the negative holding that the second respondent is not justified in passing the eviction order which was affirmed by the Appellate Authority, in view of the discrepancy of measurement and boundaries mentioned in the eviction petition. Accordingly, the second point raised for consideration has to be answered in the affirmative holding that the petitioner has made out a case to interfere with the impugned orders, exercising powers under Articles 226 and 227 of the Constitution of India and the matter requires reconsideration by the second respondent, afresh, after issuing fresh notice and after giving opportunity of hearing to both the parties and pass appropriate orders based on oral and documentary evidence to be adduced and produced by both the parties, strictly in accordance with law and in accordance with the provisions of Sections 4 and 5 of the ‘Act’.
45. With regard to dispossession of the petitioner from the property in question by the first respondent even before filing the present writ petition, is always subject to the result of the proceedings before the second respondent and this Court while issuing notice on 12.10.2017, directed the first respondent not to alienate or part with the property which is subject matter of the writ petition. The said order is in force from 2017 till today. Therefore, the first respondent is directed to maintain status quo in respect of the property in question, as on today, including alienation, till the second respondent passes appropriate orders in accordance with law.
46. For the reasons stated above, the writ petition is allowed. The impugned order dated 26.04.2016 made in No.PP/58/MYE/2003-04 passed by the second respondent and the Judgment dated 20.11.2017 made in M.A.No.19/2016 passed by the V Addl. District and Sessions Judge, Mysuru, are hereby quashed. The matter is remanded to the second respondent for reconsideration, after issuing fresh notice and after hearing both the parties and after allowing both the parties to adduce and produce the oral and documentary evidence and pass appropriate orders strictly in accordance with the provisions of Sections 4 and 5 of the ‘Act’ and in the light of the observations made by this Court supra.
Ordered accordingly.
Sd/- JUDGE kcm