Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.58644/2015(GM-PP) MASJID-E-AKBARI, (MAJLIS-E-MUNTIZIMA) NEELASANDRA MUSLIM WELFARE ASSOCIATION MASJID STREET, BANGALORE-560047. REPRESENTED BY ITS SECRETARY, MR. SANAULLA BHAI, ... PETITIONER (BY SRI SHUKURE KAMAL M. G., ADVOCATE) AND:
1. THE ESTATE OFFICER STATION HEAD QUARTER CELL, KARNATAKA AND KERALA SUB-AREA, CUBBON ROAD, BANGALORE-560001.
2. THE COMMANDANT CMP CENTRE AND SCHOOL, BANGALORE-560047.
3. THE UNION OF INDIA GOVERNMENT OF INDIA, NEW DELHI-110021, REPRESENTED BY ITS SECRETARY 4. THE KARNATAKA STATE BOARD OF WAKFS No.6 DARUL AWAKAF CUNNINGHAM ROAD, BANGALORE 560052. REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER ... RESPONDENTS (BY SRI MADANAN PILLAI. R., CGC FOR R1 TO R3; SRI M.H. HANEEF, ADVOCATE FOR R4) … THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DATED 13.10.2014 ISSUED BY RESPONDENT 2 TO THE PETITIONER AT ANNEXURE-J AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has filed the present writ petition to quash the notice dated 13.10.2014 and the proceedings initiated in Case No.7224/E/CMP/Q3-01/2015 before the 1st respondent issued by respondent No.2.
2. It is the case of the petitioner that it is a notified Public Wakf published in Gazette Notification on 7.6.1965 being property bearing Sy.No.275 and CTS No. 776, Neelsandra Street (previously Masjid Street), Bangalore-47. The present Managing Committee of the petitioner Wakf was constituted by respondent No.4 and the affairs of it are being managed in accordance with the Wakf Act under the supervision and control of respondent No.4.
3. It is the case of the petitioner that on 6.3.2013, respondent No.2 issued a letter to the Secretary of the Managing Committee viz., Mr. Sanaulla Bhai stating that respondent No.2 was informed that the petitioner- Mosque measuring 308.32 square meters was constructed in Sy.No.275 along Anapalya Road outside the boundary wall of respondent No.2 and hence respondent No.2 had requested the petitioner to provide details of the subject property. The respondent by another Letter dated 8.4.2013 addressed to the petitioner, once again requested for production of details of ownership on or before 20.4.2013 failing which it threatened to initiate proceedings for eviction against the petitioner, in response to which, the petitioner issued a letter dated 17.4.2013 enclosing a copy of the Survey Report made by the then Assistant Commissioner of Wakfs, Bangalore Urban and Rural, Bangalore. The petitioner also issued another letter dated 19.4.2013 to respondent No.2 as a detailed reply stating that it was recognized as being in lawful possession over the subject property has been allotted provisional CTS No.150, Corporation No.B 1322 and Final City Survey No.775 in the City Survey Enquiry Register and property sheet maintained in the Office of the Assistant Director of Land Records, City Survey, Bengaluru. The petitioner also stated that the Deputy Director of Corporation of City of Bangalore had also sanctioned a plan for construction of a new mosque with a provision for shops/office, in the year 1979-80 and it has evidently been in existence since times immemorial to the knowledge of respondent No.2 as evident from the fact that in the year 1983-84 former President of India, Mr. R. Venkataraman, who at the time the Minister of Defence of respondent No.3 had visited the petitioner-Wakf.
4. It is the further case of the petitioner that after a lapse of over 18 months, respondent No.1 issued a notice dated 13.10.2014 under Sections, 4(1), 4(2)(ii) of the Act to it stating that it is in unauthorized occupation of the subject premises and hence called upon the petitioner to appear before it on 17.11.2014 along with necessary material and another letter dated 18.11.2014 postponing the hearing drate from 17.11.2014 to 9.12.2014. Thereafter, the petitioner appeared and filed detailed objections to the said Notice defending the proceedings and affirming its right to the subject property being a Wakf.
5. It is the further case of the petitioner that when the things stood thus and after a period of six months, it was shocked to receive a copy of the Claim Petition in Case No.7224/E/CMP/Q3-01/2015 filed by respondent No.2 before respondent No.1 under the provisions of Section 4 of the Act seeking its eviction from the subject premises. Respondent No.2 at paragraphs-2 and 3 in the claim petition has made categorically false and misleading averments stating that it had failed to comply with the demand made by respondent No.2 in the notice dated 13.10.2014. The petitioner in response to the claim petition filed its statement of objections denying the false allegations stating that the claim being a clear dispute of title requires adjudication and determination by way of detailed trial. Inspite of objections filed, the 2nd respondent initiated proceedings. Hence, the petitioner is before this Court for the relief sought for.
6. Respondent Nos.1 and 2 have jointly filed counter affidavit denying the averments made in the statement of objections and at para-17 of the statement of objections, they have stated as under:
“17. That, admittedly, there is a dispute title between the Petitioner and the Respondent No.2 and hence a detailed trial has to be held before the Competent Court and both the perties have to produce documentary evidence to prove their claim. In the absence of such documentary evidence, the above Writ petition filed by the Petitioner is liable to be dismissed.”
7. Respondent No.3-Union of India has filed separate statement of objections and at paragraph-8 it has stated as under :
“8. That, with reg. to Para 4 the Respondent No.3 submits that it has not initiated such proceedings. That, any such proceedings violating the provisions of the Waqf Act 1995 shall be treated as void ab initio since the property is Waqf by use and notified waqf since 1965. It is further submitted that only the State Waqf Board of Karntaka is authorized to manage and get the property vacated.”
and sought for dismissal of the writ petition.
8. I have heard the learned Counsel for the parties to the lis.
9. Sri Shukure Kamal M.G., learned Counsel for the petitioner contended that the impugned proceedings initiated by the 2nd respondent before the 1st respondent is illegal and not bonafide. Despite the fact that the petitioner has produced the records before the 2nd respondent to prove that it is the owner of the property in question, still suppressing the objection and documents produced, the 2nd respondent has initiated proceedings before the 1st respondent and the 1st respondent issued notice to the present petitioner despite documentary evidence furnished by the petitioner disclosing the bonafide title dispute reveals the gross illegality of the proceedings causing grave injustice to the petitioner.
10. He would further contend that the Act presupposes that the premises is a public premises and the provisions of the Act do not provide for determination of title disputes and only provide for eviction proceedings which are summary in nature. There being a bonafide dispute of title, respondent No.1 therefore does not have jurisdiction till such time the issue of title has been finally decided by a competent Civil Court and the 1st respondent has no authority to initiate proceedings and decide the title in respect of the parties. He would further content that respondent No.2 has questioned the occupation of the petitioner in respect of the subject property and has rejected its claim as a Wakf despite the fact that the petitioner has been declared and published as a Wakf by Gazette Notification dated 7.6.1965 raising a presumption in favour of the petitioner under Section 81 of the Indian Evidence Act, 1872. In support of his contention, he relied upon the dictum of the Hon’ble Supreme Court in the case of Government of Andhra Pradesh –vs- T. Krishna Rao reported in AIR 1982 SC 1081 para-8 and sought to allow the writ petition.
11. Per contra, Sri Madawan Pillai. R., learned Central Government Counsel for respondent Nos.1 to 3 reiterating the averments made in the statement of objections sought to justify the impugned action of the respondents and contended that what is challenged is only initiation of proceedings and therefore, the very writ petition filed by the petitioner is premature and therefore, sought for dismissal of the writ petition.
12. Having heard the learned Counsel for the parties, it is an undisputed fact that the petitioner on the notice issued by the 2nd respondent filed reply and produced the documents along with Gazette Notification dated 7.6.1965 to show that the petitioner is the owner of the property in question i.e., Sy.No.275, CTS No. 776, Neelsandra Street (previously Masjid Street), Bangalore-47. It is also not in dispute that on the basis of the proceedings filed before the 1st respondent, the 1st respondent initiated proceedings under the provisions of Sub-Section (1) and Clause b(ii) of Sub-section (2) of Section 4 of the Public Premises (Eviction of Unauthorised Occupation) Act, 1971 to which the petitioner filed detailed objections to the said proceedings before the 1st respondent and produced the documents to prove that he is the owner of the property in question. Respondent Nos.1 and 2 while filing objections in categorical terms at paragraph-17 have stated as supra that admittedly there is a dispute between the petitioner and respondent No.2 and hence a detailed trial has to be held before the Competent Court and both the parties have to produce documentary evidence to prove their claim. In the absence of such documentary evidence, writ petition filed by the petitioner is liable to be dismissed.
13. The fact that the petitioner has not produced any material before this Court to prove prima face that the property in question belongs to respondent Nos. 1 to 3. When the petitioner has produced Gazette Notification which is not denied and when the respondents have taken a contention that there are disputed facts which required evidence, this Court cannot decide the disputed facts in exercise of powers under Article 226 of the Constitution of India. The Hon’ble Supreme Court while considering the provisions of Andhra Pradesh Land Encroachment Act in the case of Government of Andhra Pradesh –vs- T. Krishna Rao reported in AIR 1982 SC 1081 at paragraph-8 has held as under:-
“8. The view of the Division Bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far That was also the view taken by the learned single Judge him self in another case which is reported in Meherunnissa Begum v. State of A.P. (1971) which was affirmed by a Division Bench. It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts " which raise a bond fide dispute of title between the Government and the occupant must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is hl occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law.”
14. In view of the dispute in respect of the title of the property in question between the parties and in view of the categorical statement made by respondent Nos.1 and 2 in the statement of objections that there is a dispute title between the petitioner and respondent No.2 and hence a detailed trial has to be held before the Competent Civil Court, respondent No.2 cannot initiate proceedings before the 1st respondent. Therefore, the proceedings initiated by the 1st respondent has to be kept in abeyance till the parties approach the competent Civil Court, who shall decide the dispute title between the parties.
15. For the reasons stated above, writ petition is allowed. The impugned notice dated 13.10.2014 issued by the respondent No.2 as per Annexure-J and the proceedings in Case No.7224/E/CMP/Q3-01/2015 before respondent No.1 initiated by respondent No.2 is kept in abeyance till the party, who denies the title of other party, approaches the Civil Court for declaration of title.
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