IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No. 15999/2015(LB-RES) BETWEEN:
MASJID-E-BAZAR TRUST REP. BY ITS SECRETARY WAZEER AHMED KHAN S/O LATE. ABDUL REHMAN KHAN M G ROAD, KHAZI STREET TARIKERE TALUK-577 228 DISTRICT CHIKMAGALUR-277228.
(BY SRI. P.S.MALIPATIL, ADV. ) AND 1. TOWN MUNICIPAL COUNCIL BY ITS CHIEF OFFICER TARIKERE-577 228 DIST CHICKMAGALUR .
2. NAYAZ AHMED KHAN S/O NAZEER AHMED KHAN AGE 54 YEARS 3. T N AMEER AHMED S/O NAZEER AHMED KHAN AGE 45 YEARS 4. T N KALEEL AHMED ... PETITIONER S/O NAZEER AHMED KHAN AGE 55 YEARS 5. ZAHEEDABI W/O NAZEER AHMED KHAN AGE 35 YEARS 6. T N MUMTAZ KHAN D/O NAZEER AHMED KHAN AGE 34 YEARS ALL ARE R/O KHAZI STREET M G ROAD, TARIKERE DISTRICT CHICKMAGALURU 577 228.
... RESPONDENTS (BY SRI.D.C. JAGADEESH, ADV. FOR R1 SRI. ASHOK S. MENSINRAI, ADV. FOR R2 TO R6.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED:26/02/2015 VIDE ANNEXURE-K ISSUED BY THE RESPONDENT NO.1. AND DIRECT THE RESPONDENT NO.1 TO ISSUE KHATA CERTIFICATE IN THE NAME OF THE PETITIONER WAQF AS PER ANNEXURE-J DATED: 25/02/2014.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the endorsement dated 26.2.2015 issued by the respondent No.1 vide Annexure-K.
2. The case of the petitioner is that the petitioner is a Waqf institution registered under the Waqf Act as per the extract of “Kitabul Awaqf” and the total measurement of the property is 250X200 ft. It is registered in the Kitabul Awaqf mentioning that the property pertains to the petitioner-Trust. On the basis of the documents available, the petitioner has filed an application before the respondent No.1 vide Annexure-B for change of katha in the name of the petitioner-Trust. By endorsement dated 26.2.2015 vide Annexure-K issued by the respondent No.1, the application of the petitioner has been kept pending on the ground that the respondent Nos.2 to 6 herein had filed the complaint stating that there is a civil dispute pending between the parties. Being aggrieved by the endorsement issued vide Annexure-K, the petitioner has filed this writ petition.
3. Sri.M.S.Malipatil, the learned counsel appearing for the petitioner submits that the petitioner is a Trust. The property in dispute was entered in Kitabul Awaqf. He further contended that the original suit i.e., O.S.No.221/2000 filed by the respondent No.2 herein is only for a bare injunction and the suit has been decreed on 13.4.2008. Against the said judgment and decree, the petitioner herein had filed R.A.No.26/2008. The said regular appeal was allowed by judgment and decree dated 27.8.2013 and consequently the suit of the plaintiff/respondent No.2 was dismissed. Being aggrieved by the judgment and decree dated 27.8.2013, the respondent Nos.2 to 6 herein had filed RSA No.792/2014 before this Court. There is no interim order passed in the said RSA against the petitioner and the appeal has not yet been admitted. He further contended that the civil dispute was only in respect of the injunction. The petitioner has produced documents to show that the property belongs to petitioner No.1-Trust. The respondents have not produced any documents to establish that they are the owners of the property. Without giving any opportunity to the parties, the impugned endorsement has been issued vide Annexure-K. Hence, he sought for allowing the petition.
4. Per contra, Sri.D.C.Jagadeesh, the learned counsel appearing for the respondent No.1 submitted that since there is a civil dispute between the parties and matter is pending and after obtaining legal opinion, the impugned endorsement is issued. Hence, he sought for dismissal.
5. Heard learned counsel appearing for the parties.
6. On the basis of the Kitabul Awaqf registered vide Annexure-A, the petitioner has filed an application to enter the name of the petitioner in the katha register of respondent No.1-Municipality. The suit which is filed by the respondent No.2 before the Civil Judge (Jr.Dn.) and Additional JMFC, Tarikere is only for the bare injunction. By judgment and decree dated 15.4.2008, the suit of the plaintiff was decreed. Against the said judgment and decree, the petitioner herein had filed R.A.No.26/2008 before the Senior Civil Judge and Principal JMFC, Tarikere. By judgment and decree dated 21.8.2012, the said appeal was allowed and consequently, the suit of the plaintiff was dismissed. Being aggrieved by the same, respondent No.2 herein had filed RSA No.972/2014 before this Court. There is no interim order in favour of the appellant/respondent No.2 herein in RSA and the said appeal has not yet been admitted. The suit which is filed by the respondent No.2 herein is only for the bare injunction. The endorsement which is issued by the respondent No.1 vide Annexure-K is without considering the documents produced by the petitioner and no opportunity has been given to the petitioner-Trust to establish their case. Only on the basis that there is a civil dispute, endorsement has been issued. The endorsement issued vide Annexure-K has been issued without application of mind and it is not a speaking order.
7. In view of the above observations, the writ petition is allowed. The endorsement issued vide Annexure-K is quashed. The matter is remanded back to respondent No.1 to consider the same after giving opportunity to the petitioner No.1 and respondent Nos.2 to 6 and thereafter shall pass orders in accordance with law within three months from the date of receipt of copy of this order.
Sd/- JUDGE DM