Karnataka High Court
D.H. Venkata Ramaiah (Deceased) By L.Rs ... vs State Of Karnataka And Ors. on 20 January, 2004
Equivalent citations: 2004(2)KARLJ312, 2004 AIR - KANT. H. C. R. 1439, 2004 AIHC 2162, (2004) 2 KANT LJ 312, (2004) 2 KCCR 923
Author: H. Rangavittalachar
Bench: H. Rangavittalachar
ORDER H. Rangavittalachar, J.
1. The petitioner-Sri D.H. Venkata Ramaiah since deceased by his legal representatives and several others had filed applications for grant of occupancy rights under the Karnataka (Religious and Charitable) Inams Abolition Act, 1955 in respect of 3.25 acres in Sy. No. 51 situate in Odigehalli Village which formed part of 'Fakir inam'. The Land Tribunal, Doddaballapur allowed their applications and granted occupancy rights which order came to be challenged by the Wakf Board before this Court and this Court after quashing the order of the Tribunal remanded the case to the file of Deputy Commissioner, Bangalore Rural District for a fresh enquiry. After remand, Deputy Commissioner took on his file the petitioner's application along with several similar applications filed by others and by a common order dated 6-10-2000 - Annexure-M ordered for transferring all the cases including that of the petitioner in No. LRF INM 40/98-99 before the jurisdictional Wakf Tribunal, Bangalore relying on Section 83 of the Wakf Act, 1995. This order is challenged.
2. The Deputy Commissioner has held that the claim of occupancy rights by the petitioners is in respect of 'Wakf property'. Therefore, it is the Tribunal constituted under the Wakf Act alone that has the jurisdiction to decide the claim and accordingly ordered for transferring the cases.
3. In my view, the reasoning of the Deputy Commissioner cannot be supported. The Deputy Commissioner has overlooked the difference in the scope enquiry of applications filed under the provisions of the two Acts. The relevant provisions of the two Acts are briefly referred to herein to bring out the difference. Under the 'Mysore (Religious and Charitable) Inams Abolition Act', with the abolition of the inams, all rights, title and interest of all persons including that of the inamdar stand abolished and the entire inam vests absolutely in the State Government, except such rights which are created by the Act, among them being 'tenancy rights' i.e., if a person is cultivating the lands as a 'tenant' as defined under Sections 4, 5, 5-A, 6-A, 7 and 8 under the inamdar, he is entitled to make an application in that regard before the Deputy Commissioner for grant of occupancy rights. On receipt of the application, the Deputy Commissioner is obliged to hold an enquiry under Section 9 of the Karnataka (Religious and Charitable) Inams Abolition Act and decide his claim. Relevant clauses of Section 9 is extracted for ready reference. It reads:
Section 9. Determination of claims for registration of occupancy and continuation of tenancy.--(1) The Tribunal shall examine the nature and history of all lands in respect of which a person claims to be registered as an occupant under Sections 4, 5, 5-A, 6-A, 7 and 8 as the case may be, or in respect of which any person claims to be continued as tenant under Section 6, and decide in respect of which lands the claims should be allowed.
(2) (a) No person shall be entitled to be registered as an occupant under Sections 4, 5, 5-A, 6-A, 7 and 8 unless the claimant makes an application to the Deputy Commissioner. Every such application shall be made.
And the decision of the Tribunal shall be final (now the Deputy Commissioner exercises the power of Tribunal).
4. On the other hand, the Wakf Act, 1995 which has repealed the earlier Act of 1954, is enacted for better administration of Wakf and Wakf properties. Under the scheme of the Wakf Act, the Wakf Board which is a creature of statute is given the power to locate and identify the 'Wakf properties' by conducting a survey and notify accordingly in 'gazette'. On such notification the 'notified' properties will be deemed to be Wakf properties. Any person whose title to property is affected by such a notification, is entitled to raise a dispute questioning the correctness of inclusion of the property under Section 6 of the 1995 Act. Section 6 of the Act reads:
Section 6. Disputes regarding Wakfs,--(1) If any question arises whether a particular property specified as Wakf property in the list of Wakfs is Wakf property or not or whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf, the Board or the mutawalli of the Wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs.
(2) .....
(3) .....
(4) The list of Wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under Sub-section (1), be final and conclusive.
(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in Sub-section (1). Earlier under the 1954 Act, it was the Civil Court which was the dispute resolving forum. But now, it is the 'Tribunal' constituted under Section 83(1) of the 1995 Act. Section 83(1) reads as under:
Section 83. Constitution of Tribunals, etc.--(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
5. Thus by a reading of the relevant provisions of the Inams Abolition Act, 1955 and the Wakf Act, 1995, it is clear that the scope of enquiry under the Former Act where a person claims 'occupancy rights' is confined to the determination of 'tenancy rights' and not to 'ownership' of property as the State becomes the 'owner' by operation of law (See Section 3 of the Act). But, in the latter case (under the Wakf Act), the enquiry will relate to the 'title to the property' viz., 'whether the notified property is or is not a Wakf property' and not to tenancy rights. For that matter, the Wakf Act never creates tenancy rights nor provides for an adjudicating forum.
6. In other words, the scope of enquiry under Section 83(1) of the Wakf Act and the scope of enquiry under Section 9 of the Karnataka (Religious and Charitable) Inams Abolition Act are totally different. In the latter case what is required to be determined is the status of a person vis-a-vis the property in question i.e., whether the applicant is or not entitled to the tenancy rights no matter to whom the property belongs including a Wakf institution. In the former case the enquiry relates to the status of the property namely, whether it is or it is not a Wakf property. And what is more under Section 83 of the Wakf Act is, the Tribunal is not invested with the power of deciding the rights of a person claiming occupancy right; notwithstanding the property being a Wakf property still an enquiry under Section 9 of the Karnataka (Religious and Charitable) Inams Abolition Act has to be held in respect of an application filed under the said Act even though the property belongs to Wakf and it is only the Special Deputy Commissioner who is the adjudicating authority under Section 9 of the Karnataka (Religious and Charitable) Inams Abolition Act and not the Wakf Tribunal. But the Deputy Commissioner has lost sight of this important distinction between the two Acts.
In the result, the writ petitions are allowed and the matter is remitted to the file of the Deputy Commissioner to hold an enquiry under Section 9 of the Karnataka (Religious and Charitable) Inams Abolition Act, 1955 and pass orders according to law.