Karnataka High Court
Nawab S M Kamaluddin Hussain Khan vs State Of Karnataka Through D.C Bidar on 17 September, 2024
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NC: 2024:KHC-K:6986
WP No. 203697 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO. 203697 OF 2016 (GM-PP)
BETWEEN:
1. NAWAB S.M. KAMALUDDIN HUSSAIN KHAN
S/O LATE NAWAB S.M. JAMALUDDIN
HUSSAIN KHAN,
AGE: 65 YRS, OCC: AGRICULTURE
BASAVAKALYAN, DIST: BIDAR
SINCE DECEASED BY LRS
1(a) KANEZ FATIMA @ SHENAZ BEGUM
W/O LATE NAWAB S.M. KAMALUDDIN
HUSSAIN KHAN
1(b) QHAMER JAHAN BEGAM
W/O LATE NAWAB S.M. KAMALUDDIN
HUSSAIN KHAN
Digitally signed 1(c) NASR FATIMA
by W/O PARVEZ KHAN
MARKONAHALLI
RAMU PRIYA (D/O LATE NAWAB S.M. KAMALUDDIN
Location: HIGH HUSSAIN KHAN)
COURT OF
KARNATAKA
1(d) S.M. BILALUDDIN HUSSAIN KHAN
S/O LATE NAWAB S.M. KAMALUDDIN
HUSSAIN KHAN
1(e) S.M. ABRAR HUSSAIN KHAN
S/O LATE NAWAB S.M. KAMALUDDIN
HUSSAIN KHAN
1(f) FAZAL FATIMA
W/O AHMED SIDDIQU
(D/O LATE NAWAB S.M. KAMALUDDIN
HUSSAIN KHAN)
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NC: 2024:KHC-K:6986
WP No. 203697 of 2016
1(g) S.M. JAMALUDDIN HUSSAIN KHAN
S/O LATE NAWAB S.M. KAMALUDDIN
HUSSAIN KHAN
ALL R/O BASAVAKALYAN
DIST: BIDAR
(AMENDED AS PER ORDER DATED 16.06.2023)
...PETITIONERS
(BY SRI. AMEETKUMAR DESHPANDE, SENIOR ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH D.C BIDAR,
PIN 588401.
2. DIRECTOR,
DEPARTMENT OF ARCHEOLOGY
GOVT. OF KARNATAKA
BENGALURU,
THROUGH ITS ASST.CURATOR,
BASAVAKLYAN, DIST.BIDAR-585401.
3. THE ASST. COMMISSIONER
OFFICE OF THE ASST. COMMISSIONER
BASAVAKALYAN, DIST: BIDAR-584101.
4. ASST. SUPERVISOR GOVT. MUSEUM
DEPT. OF ARCHEOLOGY
BASAVAKALYAN, PIN-585401.
5. TAHASILDAR
BASAVAKALYAN
PIN 585401.
...RESPONDENTS
(BY SRI. RAJKUMAR A. KORWAR, HIGH COURT GOVERNMENT PLEADER) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE ASSISTANT COMMISSIONER, BASAVAKALYAN DATED-03.09.2010 IN FILE NO-SDB-MUN/CR-1/90/3187-3192 AS PER ANNEXURE-G AND ETC.
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 26.06.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
CAV ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ)
The petitioner (since deceased) has challenged an order dated 03.09.2010 passed by respondent No.3 in Case No.SDB/MUN/CR-1/90-91/3187-3192 by which, he was ordered to quit and deliver vacant possession of a public premises. The petitioner has also challenged an order dated 14.03.2016 passed by the II Additional District and Sessions Judge, Basavakalyana in M.A.No.85/2010.
2. (i) The petitioner contends that he is the owner in possession and enjoyment of the property bearing No.38/98, New No.44-105, situate outside Kalyani Fort abutting the Moat in Basavakalyan, Bidar District. The petitioner contends that the above property, which was earlier known as 'Bargah - E - Hussaini' was constructed by his great grandfather named, Mr. Syed Babar Hussain Khan during 1307 Hijri, which corresponds to the year 1883 AD. From then on, it was known as 'Bargha - -4-
NC: 2024:KHC-K:6986 WP No. 203697 of 2016 E - Hussaini Ashoor Khana'. The petitioner contends that this property is a separate and distinct structure, situate away from the Kalyani Fort, which is surrounded by a moat. The petitioner contends that the property mentioned above is outside the moat. This building was purportedly constructed for the purpose of installing Alams during the Moharam festival. The property was assessed to tax by the Town Municipal Council, Basavakalyan and that he was paying the property tax.
(ii) He contends that the erstwhile Government of Hyderabad by a notification dated 11.06.1953 notified the Kalyani Fort situate at Basavakalyan along with other sculptures and rock excavation as an ancient monument. He claimed that Bargah - E - Hussaini was not notified as an ancient monument either by the Government of Hyderabad or by the State of Karnataka after reorganization of States. The petitioner contends that the then Collector had conducted a joint inspection of the Jagir buildings on 21.10.1955 and found that Bargah - E - Hussaini was under the control of the father of the petitioner.
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(iii) The petitioner contends that he is running a Urdu Primary School in Bargah - E - Hussaini, which is evidenced by a certificate dated 01.08.1978 issued by the Assistant Education Officer, Basavakalyan. The institution was admitted to grant-in-aid by the Director of Public Instructions, State of Karnataka by a memo dated 21.05.1973.
(iv) He contends that the Karnataka Board of Waqf, Bengaluru, tried to lay a claim to Bargah - E - Hussaini and filed a suit in O.S.No.47/1966 before the Civil Judge, Bidar, against the Department of Archeology seeking for a declaration that it was the owner and in possession of the Ashoor Khana and for perpetual injunction. The suit was decreed. An appeal preferred in R.F.A.No.54/1969 before this Court by the Archeological Department was allowed in terms of the judgment and decree dated 28.05.1973. The petitioner contends that this Court had kept open the question, whether Bargah - E - Hussaini was a private property of Jamaluddin or not. He contends that the evidence led by the Archeological Department did not disclose that Bargah - E - Hussaini was taken over by the State Government and/or that it was situate outside the Fort and the moat area.
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(v) Nonetheless, the Director of Archeological Department, Karnataka addressed a letter dated 17.11.1975 to the Assistant Commissioner, Bidar to initiate proceedings under the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (henceforth referred to as 'Act of 1974') to evict the Taj Urdu Primary School that was run by the petitioner in Bargah - E - Hussaini. The petitioner opposed it by filing his objections and contended that it was his private property as appearing in the Municipal records and not an ancient monument. Despite this, the Assistant Commissioner by order dated 15.03.1976 directed eviction of the school run by the petitioner.
(vi) Aggrieved by the said order, the petitioner filed M.A.No.3/1976 before the District Judge, Bidar, which was dismissed in terms of the order dated 20.07.1978. The petitioner questioned the said order in W.P.No.10226/1978. This Court allowed the writ petition in terms of the order dated 25.05.1988 and remitted the case back to the District Judge for fresh consideration. It is contended that this Court specifically directed the District Judge to decide, whether Bargah - E - Hussaini was a private property of Jamaluddin Khan and -7- NC: 2024:KHC-K:6986 WP No. 203697 of 2016 whether it formed part of the ancient monument declared by the erstwhile Government of Hyderabad by a notification dated 12.01.1953. It is contended that this Court specifically held that the Department of Archeology has to adduce cogent evidence to establish that Bargah - E - Hussaini was part of the ancient monument and that the petitioner was in unauthorized occupation. The petitioner contends that the District Judge, Bidar, by order 28.08.1992 set aside the order passed by the Assistant Commissioner, Bidar dated 15.03.1976 and remitted the case to him for fresh enquiry.
3. The petitioner contends that after remand, the Assistant Commissioner, Bidar took up the case without notifying the date of hearing and proceeded to pass an ex-parte order dated 22.01.1994, which was again challenged before the District Judge, Bidar in M.A.No.23/1994. The learned District Judge by an order dated 03.08.1996 dismissed the appeal, which again was challenged before this Court in W.P.No.11617/1997. This Court allowed the writ petition vide order dated 06.09.2000 and remitted the case back to the Assistant Commissioner, Basavakalyan. -8-
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4. (i) After remand, the petitioner was notified of the proceedings and the Assistant Curator of the Archeological Department, Basavakalyan was also notified. A spot inspection was conducted in presence of both the parties and after hearing both the parties, the respondent No.3 by order dated 03.09.2010 held that Bargah - E - Hussaini was an ancient monument, which had vested in the Archeological Department and therefore, ordered eviction of the petitioner within 45 days from the date of the Order.
(ii) The petitioner challenged this order before the II Additional District and Sessions Judge, Basavakalyan in M.A.No.85/2010. In the said proceedings, some applications were filed by third parties to be impleaded on the ground that Bargah - E - Hussaini was subject of the matter of suit in O.S.No.34/2005, which was pending consideration before the Senior Civil Judge at Basavakalyan. The said third parties filed M.A.Nos.149/2015 and 150/2015 questioning the order dated 03.09.2010 passed by the respondent No.3, which was dismissed on the ground of delay. However, the appeal filed by the petitioner was heard on merits and the District Judge held that Bargah - E - Hussaini belonged to the ancestors of the -9- NC: 2024:KHC-K:6986 WP No. 203697 of 2016 petitioner but was part of the protected monument and therefore, held that the petitioner was in illegal occupation of Bargah - E - Hussaini and hence, by order dated 14.03.2016 dismissed the appeal filed by the petitioner.
5. Being aggrieved by the said order, the petitioner has filed this writ petition.
6. During the pendency of this writ petition, the petitioner died and his legal representatives are brought on record.
7. The learned Senior counsel representing the petitioner submitted that Bargah - E - Hussaini was not part of any ancient monument. He submitted that the Assessment Register of the Town Municipal Council, Basavakalyan for the year 1966-67 showed that the property bearing Old No.3697 and New No.38/98 was owned by Qila Nawab Jamaluddin Khan. He invited the attention of the Court to the notification issued by the erstwhile Hyderabad Government dated 11.06.1953 and contended that it was only the Kalyani Fort, rock-hewn excavations and sculptures that were notified and not Bargah - E - Hussaini. He therefore, contended that there was nothing to
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 establish that Bargah - E - Hussaini was a protected monument. He then referred to the judgment and decree passed in R.F.A.No.54/1969, where a Division Bench of this Court had held "We however make it clear that we have not expressed our opinion on the question whether the suit property was the private property of Jamaluddin or not. The said question is left open. Even on the basis that it belonged to Jamaluddin, it has to be held that the plaintiffs have not established that the property had become a wakf property by dedication."
8. The learned Senior counsel contends that the Waqf Board had admitted that it was Jamaluddin, who had dedicated the property. He contends that if the property was notified as an ancient monument, then this Court would have issued a declaration that Bargah - E - Hussaini was an ancient monument. He therefore, contends that even as per the case of the Archeological Department, Bargah - E - Hussaini was not an ancient monument. He therefore, contends that the premise on which the instant proceedings are taken out against the petitioner under the provisions of the Act of 1974, is wholly incorrect and it is for the Department of Archeology to establish
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 the fact in a civil suit and not in a summary proceeding. He therefore, contends that this question was beyond the jurisdiction of the respondent No.3 and hence, he must have directed the parties to work out their remedy before the Civil Court.
9. Per Contra, the learned High Court Government Pleader for the respondents contended that the respondent No.3 relied upon a joint inspection report conducted by Mr. M.S. Palnitkar, District Collector and Mr. K. Vasudevrao, Deputy Jagir Administrator. In this report, the Jagir buildings lying within Basavakalyan were inspected and a building-wise report was recorded. He submits that Sl.No.1 of this report was Bargah - E - Hussaini and it was recorded as "This building lies on the left side of the main entrance to the Fort. The Munciff Court, Taluk Office and Tahasildar's office are situate in this building. In one of the rooms of the building, 'Alam' articles were stored every year. The building was in good condition."
"Our enquiries reveal that except Baradari building, all other buildings were used for administrative purposes.
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 The whole Fort and its buildings have been notified as State protected monuments under Government Notification No.49/11/111/ARCH/51, dated 12.01.1953 vide page No.(11) of the list of Antiquarian Remains in Hyderabad State.
We are therefore, of the opinion that except Baradari, all buildings should be declared as administrative buildings and should be utilized for Government and public purposes according to the requirements.
As regards Bargah - E - Hussaini, the setting up of "Alam" during Moharam may be permitted. Bargah - E - Hussaini to be exclusively used for Government and public purposes. As regards the "Alam" samans preserved in various rooms, they may be suitably shifted to one of the outhouses by the Tahasildar preferably in the former sub-jail near the main gate."
10. He further submitted that the Assistant Curator had inspected Bargah - E - Hussaini on 17.08.2010 in the presence of the petitioner and he recorded his inspection note as follows:-
"«ZÁgÀuÉ PÁ®PÉÌ ²æà PÀªÀiÁ¯ÉÆâÝÃ£ï §UÁð-J-ºÀĸÉä PÀlÖqÀ PÉÆÃmɬÄAzÀ ¨ÉÃgÉ EzÀÄÝ, PÉÆÃmÉUÀÆ §UÁð-J-ºÀĸÉä
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 PÀlÖqÀPÀÆÌ ¸ÀA§AzsÀ«®è. EzÀ£ÀÄß ¸ÀܼÀ vÀ¤SÉ ªÀiÁr ¥Àj²Ã°¸ÀĪÀAvÉ ªÁ¢¹gÀÄvÁÛgÉ CzÀgÀAvÉ ¢£ÁAPÀ: 17-08-2010 gÀAzÀÄ ²æà PÀªÀiÁ¯ÉÆâÝÃ£ï ºÁUÀÆ C¹¸ÉÖAmï PÀÆågÉÃlgï gÀªÀgÉÆA¢UÉ £Á£ÀÄ ¸ÀévÀB ¸ÀܼÀ vÀ¤SÉ ªÀiÁrgÀÄvÉÛãÉ. ¸ÀܼÀ vÀ¤SɬÄAzÀ w½¢zÉÝãÉAzÀgÉ §UÁð-J-ºÀĸÉä PÀlÖqÀ PÉÆÃmÉAiÀÄ ªÀÄÄRå zÁégÀªÁVgÀÄvÀÛzÉ. §UÁð-J-ºÀĸÉä PÉÆÃmÉAiÀÄ C«¨sÁdå CAUÀªÁVgÀÄvÀÛzÉAiÉÄà ºÉÆgÀvÀÄ ¨ÉÃgÉAiÀiÁVgÀĪÀÅ¢®è. §UÁð-J- ºÀĸÉäAiÀÄ ªÀÄÄRå zÁégÀ ©lÖgÉ PÉÆÃmÉUÉ ¨ÉÃgÉ zÁjAiÉÄà EgÀĪÀÅ¢®è. DzÀÝjAzÀ §UÁð-J-ºÀĸÉä Q¯ÁèzÀ MAzÀÄ ¨sÁUÀ. ªÉÄïÁÌt¹zÀ J®è «ªÀgÀuÉUÀ¼ÀÄ ªÀÄvÀÄÛ zÁR¯ÉUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É F ¥ÀæPÀgÀtzÀ°è GzÀ㫹gÀĪÀ ¥Àæ±ÉßUÀ½UÉ F PɼÀV£ÀAvÉ GvÀÛj¸À§ºÀÄzÁVzÉ.
¥Àæ±Éß-1 §¸ÀªÀPÀ¯ÁåtzÀ°ègÀĪÀ PÉÆÃmÉ ºÁUÀÆ CzÀgÀ G¥ÀPÀlÖqÀUÀ¼ÀÄ ¥ÁæZÀåªÀ¸ÀÄÛ ºÁUÀÆ ¸ÀAUÀæºÁ®AiÀÄ E¯ÁSÉUÉ ¸ÀA§A¢ü¹gÀĪÀÅzÁV zÁR¯ÉUÀ½AzÀ ¸ÀàµÀÖªÁV PÀAqÀÄ §gÀÄvÀÛzÉ.
¥Àæ±Éß-2 «ªÁ¢vÀ PÀlÖqÀzÀ°è ²æà JA.J¸ï.PÀªÀįÉÆÃ¢Ý£ï ºÀĸÉägÀªÀgÀÄ GzÀÄð ±À¯É £ÀqɸÀÄwÛgÀĪÀÅzÀÄ ¤«ðªÁzÀ «µÀAiÀĪÁVgÀÄvÀÛzÉ. DzÀgÉ EzÉ MAzÀÄ PÁgÀtPÁÌV CªÀgÀÄ D PÀlÖqÀzÀ ªÀiÁ°ÃPÀgÁUÀĪÀÅzÀÄ CxÀªÁ ºÁUÀAvÀ M¦àPÉƼÀÄîªÀÅzÀÄ C¸ÁzsÀåzÀ ªÀiÁvÀÄ. zÁR¯ÉUÀ¼Éà F «µÀAiÀĪÀ£ÀÄß ¸ÀàµÀÖ ¥Àr¸ÀÄvÀÛªÉ.
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 ¥Àæ±Éß-3 §UÁð-J-ºÀĸÉä PÉÆÃmÉAiÀÄ C«¨sÁdå CAUÀ.
PÉÆÃmÉAiÀÄ ºÉÆgÀvÁzÀ PÀlÖqÀªÀ®è JA§ÄzÀÄ ¸ÀܼÀ vÀ¤SɬÄAzÀ w½zÀħA¢gÀÄvÀÛzÉ."
He therefore, contends that Bargah - E - Hussaini was also part of the protected monument and was a public premises and hence, proceedings initiated against the petitioner was just and proper. He further contends that several portions of Bargah
- E - Hussaini were used for housing various Government Offices. Therefore, he contends that the impugned order is just and proper and does not call for interference.
11. I have considered the submissions made by the learned Senior counsel for the petitioner as well as the learned High Court Government Pleader for the respondents. I have also perused the records produced along with the writ petition, the records of the Appellate Court as well as the records of the Assistant Commissioner, Basavakalyan.
12. The records reveal that the erstwhile Government of Hyderabad had issued a notification dated 12.01.1953 under Section 3(1) of the Hyderabad Ancient Monuments Preservation Act, 1337 Fasli declaring the monuments specified in the
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 schedule thereto as protected monuments within the meaning of the said Act with effect from the date of publication of the notification in the Official Gazette. Sl.No.19 in the schedule related to Kalyani Fort and the particulars of the monument showed that it included the Fort and rock-hewn excavations and sculptures. A joint inspection of the Jagir building situate in the Fort at Kalyani by the then Collector Mr. M.S. Palnitkar on 21.10.1955 shows that Bargah - E - Hussaini was also part of the Jagir buildings. In one of the rooms locked by the Jagirdar, there were few wooden boxes and few articles of "Alam" used during Moharam. In terms of his report dated 04.11.1955, he opined as follows:
"As regards Bargah Hussaini, the setting up of "Alam" during Moharam may be permitted. However, we are of the opinion that there is a better place for "Alam" right in front of the Bargah Hussaini in the shape of a general audience platform of sufficient height and dimensions which is said to be used for Darbar purposes. Thus, facilitating the Bargah Hussaini to be exclusively used for Governmental and public purposes. As regards the "Alam" samans preserved in various rooms, they may be suitably shifted to one of the outhouses to be selected by the
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 Tahsildar preferably in the former sub-jail near the main gate."
13. The records of the Assistant Commissioner discloses a report of the Archeological Department of His Highness the Nizam's Dominiors for the year 1344 Fasli corresponding to 1934-35 printed at Baptist Mission Press. A note on the Antiquities of Kalyani by G. Yazdani M.A. O.B.E., Director of Archeology of Hyderabad State shows, "The only approach to the Fort is from the south where we enter through a lofty arch, which is however, modern having been built in 1301 Fasli by a Kalyani Nawab. The Court which is beyond this arch is very spacious and has building all around and a large hall towards the west which was used for the administration of justice as well as for the social and religious functions. The ceiling of the hall is supported by several rows of wooden columns, which are neatly carved. But the most interesting features are the furniture and decorations of hall which include uncouth tables and chairs and a vast array of chandeliers and mirrors. The hall is called the ..... i.e. the court dedicated to Hussain, the grandson of prophet Mohammed died as a martyr in the battle of kerbala. On the tenth of Muharram, the forces of Kalyani Nawabs assembled here to show
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 their sense of grief at the unjust murder of Hussain."
14. The documents also disclose that Mr.Syed Mohammed Kamaluddin Hussaini Khan was appointed as Mutawalli of Madina Masjid, Allah Nagar Masjid, Darga Peerpasha (Chilla) and Ashoor Khana Bargah Hussaini, Kalyani. However, the fact remains that a Division Bench of this Court in RFA No.54/1969 had categorically held that Bargah - E - Hussaini was not dedicated to the Almighty and therefore, was not a wakf property. A black and white photograph of the Fort, placed on record, shows that there is only one entrance to the Fort and the property claimed as Bargah - E - Hussaini by the petitioner is at the entrance of the Fort. Though it is contended by the learned Senior counsel for the petitioner that Bargah - E
- Hussaini was situate away from the Fort and moat, he did not dispute that Bargah - E - Hussaini lay at the entrance to the Fort. As a matter of fact, the impugned order shows that an inspection was conducted on 17.08.2010 by the Assistant Curator along with the petitioner, which was at the behest of the petitioner. It was found from the spot inspection that Bargah - E - Hussaini was a part of the entrance to the Fort and
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 therefore, was a part of the Fort. Therefore, it can safely be held that Bargah - E - Hussaini claimed by the petitioner was part of the Kalyani Fort, which was notified as a protected monument under the provisions of the erstwhile Ancient Monuments Preservation Act.
15. Under Section 2(1) of the Ancient Monuments Preservation Act, 1337 Fasli, "ancient monument" is described as follows:-
"ancient monument" means every structure, erection, monument, tumulus, place of interment, cave, stone engravings, rock-sculpture and specimens of engravings on ancient walls, inscriptions, monoliths and utensils and wares of pre- historic age which bear historical, archaeological or artistic character and includes -
(a) the site of an ancient monument; and
(b) such portions of its surroundings as may be required for fencing or protecting or for access for the purpose or inspection to such ancient monuments."
16. Under Section 3, the erstwhile Government of Hyderabad was entitled to declare any ancient monument to be
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 a protected monument. Section 4 provides that upon such declaration, the Taluqdar may, with the sanction of the Government purchase any protected ancient monument or acquire the right of possession thereof. The owner of any protected monument may, in writing, constitute the Director of Archaeology as the guardian of the monument and the Director may with the sanction of the Government accept the responsibility. When the Director has accepted the guardianship, the owner or the holder shall except as provided under the Act, have the same estate, rights, interests and title regarding the monument as if the Director had not been constituted the guardian thereof. Wherever the protected ancient monument is without an owner, the Director shall be its guardian.
17. Under Section 13(2), where the Taluqdar had purchased or acquired the right of possession of any protected monument, he may make provision for protection of such monument, which include prohibiting entry into the ancient monument or any part thereof of such person who was not entitled to so enter and pass such other orders that he may feel it necessary.
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18. However, in the present case, the petitioner claimed that Bargah - E - Hussaini was the jagir given to his predecessors by the erstwhile rulers. In view of the Hyderabad (Abolition of Jagirs) Regulation, 1358 Fasli, from the appointed day, all Jagirs stood included in the "Diwani" and until it was included in a District constituted under the Hyderabad Land Revenue Act, had to be administered by the Jagir Administrator. Regulation 6(2) declares that the powers, rights and liabilities of the Jagirdar in relation to the Jagir shall cease to be exercisable and enforceable by or against the Jagirdar and shall be exercisable and enforceable by or against the Jagir Administrator. Therefore, the petitioner per se has no subsisting right, title or interest in Bargah - E - Hussaini, but the same stood vested in the erstwhile Hyderabad State. After annexation of Hyderabad, the properties stood vested in the Government of India and after the reorganization of the States, it vested in the State Government of Karnataka.
19. "Public premises" as defined under Section 2(e) of the Act, 1974, means "any premises belonging to or allotted to State Government or taken on lease or requisitioned by or on behalf of the State Government and includes any premises
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 belonging to or taken on lease by or on behalf of local authority or any company where the State Government holds 51% of the paid up share capital or any Corporation established by it or any muzrai institution under its management or a Wakf or any property belonging to the State Government and Government of Andhra Pradesh jointly or any University established under a statute or Co-operative Society or a Federation of Co-operative Societies established under any law in force, in which the Government property or share is involved."
20. It is indisputable that Bargah - E - Hussaini being part of the Kalyani Fort, was vested in the Hyderabad State and administered by the Jagir Administrator and later, notified as a "protected monument" by the Hyderabad State. In view of the subsequent developments namely, the annexation of the Hyderabad State into the Indian polity and the reorganization of States, the property stood vested in the State Government of Karnataka. Therefore, it was a "public premises" as defined under Section 2(e) of the Act of 1974.
21. The petitioner was served with the notice of the proceedings under the Act of 1974 and he had participated in
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 the proceedings, wherein he claimed that he was the Jagirdar of Bargah - E - Hussaini and that he had an independent title to the property and consequently, the provisions of the Act of 1974 were inapplicable.
22. In view of the aforesaid discussion, the petitioner cannot continue to contend that he was the Jagirdar and was entitled to continue in possession of Bargah - E - Hussaini. Once a notice under Section 4 of the Act of 1974 was issued against the petitioner, he was bound to establish that the premises in question was not a "public premises" and that he was entitled to continue in possession in his own right. However, the petitioner has failed to establish the same. The respondents have taken elaborate measures to identify whether Bargah - E - Hussaini claimed by the petitioner was part of the kalyani Fort and have rightly recorded a finding that it was part of the Kalyani Fort and lay at the entrance.
23. In that view of the matter, there is no error committed by the respondent No.3 in ordering the eviction of the petitioner from the public premises. Similarly, there is no error committed by the District Judge, Basavakalyan in
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NC: 2024:KHC-K:6986 WP No. 203697 of 2016 upholding the order dated 03.09.2010 passed by the respondent No.3.
24. Hence, this writ petition lacks merit and is dismissed. The legal representatives of the petitioner are granted three months time from the date of receipt of a certified copy of this Order, to vacate Bargah - E - Hussaini, failing which, the respondent No.3 is at liberty to take such measures to evict them from Bargah - E - Hussaini, in accordance with law.
25. In view of dismissal of the writ petition, pending I.As., if any, do not survive for consideration and the same stand dismissed.
Sd/-
(R.NATARAJ) JUDGE PMR List No.: 19 Sl No.: 2