Karnataka High Court
Everest Hotel Vijaypur vs City Corporation Vijaypur on 22 February, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.No.205912/2016 (LB-RES)
C/w
W.P.No.82573/2012 (GM-PP)
In W.P.No.205912/2016
BETWEEN:
Everest Hotel Vijaypur
By its Manager,
Zameer Ahmed S/o Basheer Ahmed
Bagalkot, Age 41 years
Occ. Business, R/o Vijaypur
.... Petitioner
(By Sri Sanjaya M.Joshi &
Sri. D.P.Ambekar Advocates)
AND:
City Corporation Vijaypur,
Rept. By its Commissioner - 584 101.
.... Respondent
(By Sri Amaresh S.Roja, Advocate)
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This Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ,
direction or order in the nature of certiorari by quashing
Annexure-M passed by respondent Corporation dated
03.11.2016.
In W.P.No.82573/2012
BETWEEN:
1. Smt.Amirunisa W/o Abdul Rasid
Aged about 70 years
R/o Near Dhanvantri Hospital,
Bijapur - 586101
2. Smt.A.Kariunisa
W/o A.Mahammod Zakriya
Aged about 75 years,
R/o Near Dhanvantri Hospital,
Bijapur-586 101.
.... Petitioners
(By Sri Sanjeevkumar C.Patil Advocates)
AND:
1. Thalabvadi Mosque and
Syed Niyamathulla Quadri
Allahukhar Dargah, Bijapur (Sunni)
Bijapur, through Mutawalli
Syed Hasan Miyan @ Nayeem Khadri
S/o Imamuddin Khadri, Sajjad-e-nashin &
Mutawalli, Darga Syed Niyamuthulla Quadri
Sakaf Roza, Bijapur - 586 101.
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2. The Competent Authority
Under Karnataka Public Premises
(Eviction of Unauthorized Occupants) Act,
Sri.Mirza Akbarulla, KAS 6
Cunningham Road, Bangalore-52
3. The Karnataka Board of Waqf
Through its Secretary
6, Cunningam Road,
Bangalore - 560 052.
4. Zameer S/o Basheer Ahmed
Aged about 38 years
R/o Tippu Sultan Chowk,
Bijapur - 586101
.... Respondents
(By Sri Ameet Kumar Deshpande Advocate for R1
Sri.A.Vijaykumar Advocate for R2 & R3
Sri.D.P.Ambekar and Sri.Gururaj Kakkeri
Advocates for R4)
This Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to:
(i) Issue a writ, direction or order in the nature of
certiorari by quashing Annexure-G order passed in
No.PP/44/BJP/2010 dated 18.1.2011 passed by
the Competent Officer.
(ii) Issue a writ, direction or order in the nature of
certiorari by quashing Annexure-H order passed in
Misc.Appeal No.3/2011 dated 30.8.2011 passed
by the Fast Track Court-I/II Bijapur at Bijapur.
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These petitions coming on for orders this day, the
Court made the following:
ORDER
These two writ petitions are taken-up together for disposal since parties in both the petitions are one and the same, dispute relates to the same property and facts that would be discussed, analyzed and adjudicated in both the writ petitions would overlap each other.
2. In W.P.No.82573/2012 Rule came to be issued on 07.06.2013 and W.P.No.205912/2016 was ordered to be listed along with W.P.No.82573/2012 by order dated 15.12.2016.
3. Parties are referred to as per their rank in W.P.No.82573/2012.
4. First respondent issued a notice on 22.02.2010 under Section 4(1) of the Karnataka Public Premises (Eviction of Unauthorised occupants) Act 1974 (for short 'Public Premises Act') calling upon the fourth 5 respondent to show cause on or before 27.05.2010 as to why the order of eviction should not be passed against him in respect of the premises belonging to Hazarath Nyamathulla Quadri, Bijapur and as to why an order of eviction should not be made against him under sub- Section (1) of Section 5 of the Act. Said notice was duly served on the fourth respondent and he did not choose to appear and contest the matter. However, he had replied to the notice issued under Section 4(1) admitting the nature of property. The competent Authority namely
- second respondent by order dated 18.01.2011 - Annexure-G (in W.P.No.82573/2012) passed an order under Section 5(1) of the Act ordering fourth respondent or any person who may be in occupation of the said premises or any part thereof to vacate the said premises within forty five days from the date of publication of the order. The reasons assigned by the competent Authority for eviction was that fourth respondent is an unauthorized occupant as defined under Section 2(g) of 6 the Act and he had not obtained permission to occupy the premises and there was no assignment of right and it came to further held that previous tenant had sold the rights in the demised property to the fourth respondent and he could not have assigned the right or created a sublease. It has been further held that the executors of the unregistered General Power of Attorney have admitted that the lessee namely late Sri.O.A.Majeed and his wife Smt.Noorunnisssa had expired issueless and as such assignment of lease hold rights by the alleged heirs is not accepted by the lessor. It was also held that by virtue of Section 56 of Waqf Act, 1995 a lease deed executed beyond three years created before Act came into force Act was void and was of no effect and the Power of Attorney dated 11.09.2002 (which is factually on 04.09.2002 - Annexure-E) had come into existence after Waqf Act, 1995 came into force and therefore it would not vest or create any right in the property in favour of alleged legal heirs and notice of termination 7 dated 01.08.2003 would also indicate that the tenancy rights have been terminated and as such the fourth respondent was not in legal occupation of the land. On these grounds, the competent Authority passed an order of eviction on 18.01.2011 - Annexure-G.
5. Being aggrieved by this order an appeal came to be preferred before the jurisdictional District Court namely Fast Track Court, Bijapur in M.A.No.3/2011 - Annexure-H and Appellate Court by its order dated 30.08.2011 - Annexure-H dismissed the appeal and affirmed the findings of the competent Authority by referring to Section 2(f) of the Waqf Act, 1995 to arrive at a conclusion that fourth respondent is an 'unauthorized occupant' of a public premises. Being aggrieved by these two orders the alleged and purported legal heir of the original lessee late Sri.O.A.Majeed have preferred W.P.No.82573/2012.
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6. Fourth respondent herein being aggrieved by the said order passed in M.A.No.3/2011 filed W.P.No.83846/2011 before this Court which came to be dismissed as withdrawn whereunder liberty was reserved to the petitioner therein i.e., fourth respondent herein to pursue the connected writ petitions i.e., W.P.No.82573/2912 and also noticing that said alleged legal heirs of O.A.Majeed had also filed an interlocutory application i.e., I.A.No.1/2012 in W.P.No.83846/2011 to get themselves impleaded and on account of the said writ petitions having been dismissed as withdrawn and said application for impleading also having been dismissed as not surviving for consideration by order dated 03.12.2012.
7. The City Corporation, Vijapura (sole respondent in W.P.No.205912/2016) is said to have issued a notice to the fourth respondent and locked the premises on 22.08.2016 which was challenged in W.P.No.204626/2016 which came to be disposed of 9 15.09.2016 with a direction to the fourth respondent to appear before the Corporation and Corporation was also directed to pass appropriate speaking order after giving an opportunity of hearing to the petitioner therein within one week. On 03.11.2016 an order is said to have been passed by the Municipal Corporation, Vijayapura vide Annexure-M rejecting the application filed by fourth respondent for grant of trade licence to run the hotel under the name and style of 'Everest Hotel'. Being aggrieved by said order of rejection fourth respondent has filed W.P.No.205912/2016 seeking quashing of the order dated 03.11.2016 -Annexure-M and for a direction to Municipal Corporation to issue licence.
8. Elaborate and lengthy arguments have been advanced on behalf of writ petitions as well as respondents. I have heard the arguments of Sriyuths Sanjaya M Joshi, D.P.Ambekar, Sanjeevkumar C.Patil appearing for petitioners and Sriyuths Ameetkumar 10 Despande, A.Vijaykumar, Amresh S.Roja and Gururaj Kakkeri appearing for respondents No.1 to 4 respectively. Writ petitioners in W.P.No.82573/2012, petitioners in W.P.No.205912/2016 who is also fourth respondent in W.P.No.82573/2012 are all sailing together.
9. It is the contention of Mr.Sanjeevkumar C.Patil that writ petitioners in W.P.No.82573/2012 are the legal heirs of original lessee of late Sri.O.A.Majeed and the registered lease deed executed by first respondent in favour of original lessee late Sri.O.A.Majeed on 20.08.1991 is for a period of 30 years and during the subsistence of lease, said late Sri.O.A.Majeed lessee expired on 18.04.2002 and his wife Smt.Noorunnissa who succeed to his estate also expired on 22.08.2002 and during their lifetime they had executed a Power of Attorney in favour of fourth respondent (Mr.Zameer) to run and manage the hotel in the demised property and said Power of Attorney did not 11 possess any larger right than being an agent of the principal. It is contended that petitioners in W.P.No.82573/2012 are the sisters of late Sri.O.A.Majeed and tenency of late Sri.O.A.Majeed came to be inherited by them on the demise of Smt.Noorunnissa wife of late O.A.Majeed and as such the proceedings initiated under Public Premises Act against an agent is bad in law and the said order is in violation of principles of natural justice since they were not notified of such proceedings nor they were made parties to the said proceedings. Learned counsel has very heavily relied upon the Survivorship Certificate dated 20.01.2003 - Annexure-D1 issued by the Tahasildar, Vijayapura, which was also affirmed by this Court in W.P.No.9286/2003 by order dated 13.09.2005
- Annexure-D to contend that petitioners have succeeded to the tenancy of late Sri.O.A.Majeed and the proceedings initiated by the Competent Authority without notice to legal heirs of the lessee is bad in law 12 and it is also vitiated for non-joinder of necessary and proper parties. As such he prays for order passed by the competent Authority dated 18.01.2011 and the order dated 30.08.2011 passed by District Judge in M.A.No.3/2011 - Annexure-H be set-aside.
10. It is also the contention of learned Advocates appearing on behalf of writ petitioners in W.P.No.82573/2012 and the fourth respondent in the said writ petition that lease of the land in favour of late Sri.O.A.Majeed was for a period of 30 years and as such he had put-up construction in the said property by virtue of terms of the lease enabled the lessee to do so and as such doctrine of dual ownership would step in and during the subsistence of lease, the lessee would have the ownership of the building and as such the proceedings for eviction of fourth respondent without making or impleading the legal heirs of original lessee would be bad in law. In this ground also they sought for quashing of the impugned orders. It is further 13 contended that fourth respondent is only a Power of Attorney Holder and he cannot be construed as a person to be in occupation of the premises and when the second respondent has accepted the rent paid by the legal heirs of late Sri.O.A.Majeed, second respondent is now estopped from contending that writ petitioners are not the legal heirs of deceased O.A.Majeed or tenancy has not devolved on them. Hence, they have sought for quashing of the impugned order.
11. It is also further contended that no right is given to the Power of Attorney Holder and petitioners being Pardanishan ladies they are prevented from carrying on the business personally and as such they have executed the Power of Attorney in favour of their agent i.e., fourth respondent to carry on hotel business in the premises in question and no other right is granted or conferred to him and as such he could not be considered as a person in occupation of the premises as a lessee or in any other capacity but on the other hand 14 it is the petitioners being the lessee or legal heirs of the original lessee they were required to be notified before any proceedings was initiated against them the lessee in respect of premises in question.
12. Per contra Sri.Ameet Kumar Deshpande learned counsel appearing for respondent No.1 has defended the impugned orders by contending that writ petitioners had filed a suit in O.S.No.194/2012 challenging the order of the Competent Court and said suit came to be dismissed on 27.06.2012 and this order having not been challenged the order of eviction passed on 18.01.2011 - Annexure-G has become final. He would also contend that the alleged legal heirs of late Sri.O.A.Majeed have filed a writ petition before this Court in W.P.No.83846/2011 challenging the order passed in M.A.No.3/2011 and said writ petition having been dismissed as withdrawn on 03.12.2012 and said order having become final, petitioners would not get any right to file or pursue W.P.No.82573/2012. He would 15 also contend that provisions of Waqf Act, 1994 is attracted and question of legal heirs succeeding to the tenancy of late Sri.O.A.Majeed would not arise, since actual occupation is different from possession and the possession of the demise property having been handed over to fourth respondent, petitioners would not get any right to challenge the impugned orders. He would also contend that Power of Attorney Holder is in actual occupation and running the business in the premises and there being assignment of right, it is contrary to the term of the lease and neither the lessee nor the fourth respondent having obtained permission from the Waqf Board to assign the rights, said assignment by lessee late Sri.O.A.Majeed by handing over possession of demised premises is contrary to the terms of the lease and as such lease came to be terminated and there is no infirmity in this regard and the proceedings initiated for eviction under the provisions of Public Premises Act, 16 1974 is just and proper and as such impugned orders do not call for interfere.
13. It is also contended by Mr. Ameet Kumar Deshpande that under Section 36F of Waqk Act 1954, there is absolute prohibition for any lease being created in respect of Waqf Property for more than three years without express permission from the Waqf Board and even if any such lease is created it would be void and of no effect. He would also elaborate his submission by contending that even Section 36F of Waqf Act 1995 provides for such restriction namely, a lease or sublease created in respect of any property exceeding three years would be void and of no effect.
14. Sri.A.Vijaykumar learned counsel appearing for respondent Nos.2 and 3 would also support the impugned orders and he would contend that petitioners never attempted to get themselves impleaded in any of the proceedings and they have never intimated the Waqf 17 Board about they being legal heirs of deceased late Sri.O.A.Majeed and the reliance placed by them on the survivorship certificate and said certificate having been affirmed in W.P.No.9286/2003 - Annexure-D to contend they are legal heirs of deceased lessee late Sri.O.A.Majeed could not bind the Waqf Board inasmuch as, Waqf Board was not party to the said proceedings and it has no relevancy to the dispute involved.
15. Sri.D.P.Ambekar and Sri.Gururaj Kakkeri learned counsel appearing for respondents in chorus would contend that Section 36F of the Waqf Act, 1995 which was introduced by Act 69 of 1984 was never made applicable in so far as State of Karnataka by issuance of notification as provided under the amended Act vide Section 1(2) and in the absence thereof the embargo placed on Section 36F of the Waqf Act, 1995 would be in applicable. Insofar as the lease deed in question i.e., lease dated 09.01.1992 - Annexure-B, it is 18 also contended that the provision of 1995 Act would not applicable inasmuch as the said Act having come into force with effect from 22.11.1995 and thus there was no embargo for the first respondent to execute a lease deed in favour of late Sri.O.A.Majeed for a period of 30 years in the year 1992 and as such they have prayed for allowing the writ petitions.
16. It is the contention of Sri Sanjay M Joshi learned counsel appearing for petitioner in W.P.No.205912/2016 that when Tahasildar Vijayapura has granted heirship certificate to the petitioners in W.P.No.82573/2012 after conducting due enquiry which was also approved by this Court in W.P.No.9286/2003 the Municipal Corporation Vijayapur could not have rejected the prayer of the applicant for renewal of trade licence particularly when said authority had accepted the renewal fee and as such he prays for setting aside the order dated 03.11.2016 passed by Vijayapur City Corporation - Annexure-M 19 and seeks for a writ of Mandmus to the said Authority to grant trade licence in favour of fourth respondent.
17. Having heard the learned Advocates appearing for the parties and on perusal of records it would disclose that, one late Sri.O.A. Majeed had obtained on lease the property bearing CTS No.438 of Ward No.6 measuring 60 feet East-West and 90 feet North-South for a period of 30 years under a registered lease deed dated 09.01.1992 Annexure-B from first respondent. Respondent No.3 herein by order dated 20.08.1991 had accorded its approval or sanction for grant of lease of said land in favour of said late Sri.O.A.Majeed which property undisputedly belonged to first respondent. Accordingly, lease deed came to be executed by first respondent in favour of late Sri.O.A.Majeed which was also duly registered with the jurisdictional office of the Sub-Registrar. Said late Sri.O.A.Majeed expired on 18.04.2002 leaving behind his wife Smt.Noorunisa to succeed his estate. Said 20 Smt.Noorunisa also expired on 22.08.2002 and these facts are not in dispute. Said late Sri.O.A.Majeed is said to have executed a power of attorney in favour of respondent No.4 herein to manage and run the business of the hotel styled as "Hotel Everest" and by virtue of same fourth respondent was said to be running the business. It was also contended that on the death of late Sri.O.A.Majeed his wife Smt.Noorunisa also executed a power of attorney on 12.08.2002 in favour of fourth respondent as per Annexure-C, and as such fourth respondent is said to have continued to mange the business during the lifetime of said Smt.Noorunisa also. It is further claimed by respondent No.4 that on the death of Smt.Noorunisa on 12.08.2002 the writ petitioners executed a power of attorney on 06.09.2002 Annexure-E on the same lines of Power of Attorney executed by Smt.Noorunisa and as such he continued the business in the premises in question after the demise of Smt.Noorunisa.
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18. When the matter stood thread the competent authority namely respondent No.2 in WP No.82573/2012 issued notice under Section 4(1) of the Public Premises Act, 1974 by treating respondent No.4 herein as an 'unauthorized occupant' as defined under Section 2(g) of the Public Premises Act, 1974 and called upon him to show cause as to why an order of eviction should not be made against him under Section 5(1) of Public Premises Act, 1974. Said notice was duly served and reply came to be submitted by respondent No.4. After considering the objection filed to the notice issued under Section 4(1) of Act, the competent authority proceeded to adjudicate and by impugned order dated 18.01.2011 Annexure-G ordered that respondent No.4 and all persons who may be in the occupation of said premises or any part thereof to vacate same within forty five days from the date of publication of the order and accordingly order came to be passed.
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19. Being aggrieved by said order, respondent No.4 filed an appeal under Section 10 of Act, 1974 before the jurisdictional District Court, and the appellate Court after hearing the learned Advocates appearing for the parties, by order dated 30.08.2011 Annexure-H dismissed the appeal and affirmed the order passed by the competent authority.
20. Though elaborately arguments have been canvassed at the hearing, this Court is of the considered view that the following point alone would arise for consideration :-
"Whether respondent No.4 herein is to be treated as an 'unauthorized occupant' of the premises in question ? and, claim of the writ petitioners that they are the legal heirs of deceased O.A.Majeed is required to be examined or not?"
21. The records would disclose that, before the competent authority when notice came to be issued 23 under Section 4(1) of the Act, respondent No.4 herein replied to the same by filing his written objection admitting the nature of the property. In other words fourth respondent did not dispute that he is in possession of the property in question. For reasons best known he did not participate in the proceedings for eviction initiated under the Public Premises Act, 1974 and as such competent authority based on available documents and records arrived at a conclusion that respondent No.4 had not occupied the premises in question by obtaining it from respondent No.1 or respondent No.3 and as such he was treated as an unauthorized occupant as defined under Section 2(g) of the Public Premises Act, 1974.
22. Being aggrieved by said order of eviction passed by the competent authority on 18.01.2011 Annexure-G respondent No.4 alone preferred an appeal and in said appeal, a specific stand taken by respondent No.4 is to the following effect :-
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a) The tenant O.A. Majeed and his wife Smt.Noorunisa have no issue and both of them during their lifetime had executed power of attorney in his favour to run the business.
b) Sri.O.A.Majeed had two sisters and Tahsildar, Bijapur had issued survivorship certificate on 20.01.2013 declaring that they are the survivors of O.A.Majeed.
c) Two sisters had executed power of attorney in his favour to run the hotel and also to get the lease transferred to his name.
d) The Waqf board has not considered his claim and had directed him to deposit rent to the account of the Waqf board and accordingly he has regularly deposited the rent.
e) He has been running the hotel on behalf of Sri. O.A.Majeed as legal heir and he has been paying the profits according to his own agreement."25
23. It was contended by fourth respondent that though he had engaged an Advocate to appear before the competent authority, said Advocate had failed to appear before the authority. The learned Advocate, who appeared on behalf of respondent No.4 herein before M.A.No.3/2011 not only reiterated the grounds urged in the appeal but also specifically contended that appellant therein i.e. respondent No.4 herein had filed an application to get lease transferred to his name and he has been paying rent and necessary orders in that regard was passed by the Waqf Board.
24. In the light of said contentions raised by respondent No.4 before the appellate Court, same came to be examined and it was held that without prior permission O.A.Majeed had assigned his rights which he acquired under the lease deed dated 09.01.1992 Annexure-B in favour of respondent No.4 and as such respondent No.4 has been rightly treated as an 'unauthorized occupant' as defined U/s 2(g) of Public Premises Act, 1974 and in the light of said finding, it was held that order of eviction passed by the competent authority is legal and proper. Though both the 26 authorities have also held that the original lease itself was in violation of the Waqf Act, 1954 it does not detain this Court for too long to reject said finding or to set aside the same for simple reason, that lease deed in question was executed on 09.01.1992 on which date the Waqf Act, 1954 was in force and much reliance having been placed on Section 36F of the Waqf Act to contend that if lease is beyond the period of three years as indicated in said Section it would indicate that it is void, Said provision would not be attracted to the facts of present case or the lease deed in question, inasmuch as Section 36F of the Waqf Act was not made applicable insofar as State of Karnataka and Sri A. Vijay Kumar, learned counsel appearing for Waqf Board has fairly admitted that there is no such notification issued insofar as applicability of Section 36F of the Waqf Act in the State of Karnataka.
However, Mr.Ameet Kumar Deshpande, learned counsel appearing for respondent No.1 has made a valiant attempt to contend that Section 1 of the Waqf Act, 1954 is a complete answer to the applicability of all the provisions of the Waqf Act, 1954 including Section 36F of the Act, and as such 27 lease created beyond the period of three years would be void as indicated under Section 36F of the Act and same is squarely applicable to the lease on hand since it was created for a period of 30 years. This Court is not inclined to accept said submission inasmuch by Amendment Act No.69 of 1984 a notification was required to be issued by the appropriate Government insofar as the applicability of 36F of the Act in the State of Karnataka is concerned. However as fairly submitted by counsel appearing for Waqf Board that no such notification having been issued by the appropriate Government gainsaid that Section 36F of the Act is attracted or applicable in respect of the lease created on 09.01.1992 and said contention stands rejected
25. Be that as it may. The core issue relates to whether respondent No.4 who was treated an unauthorized occupant by the Competent Authority is to be sustained or not when examined in the background of facts noted herein above, it would disclose that against the order passed by first appellate Court in M.A.No.3/2011 on 30.08.2011 Annexure-H, 28 fourth respondent alone had challenged said order before this Court in W.P.No.83846/2011. However, present writ petitioners did not challenge the order of the competent authority before first appellate Court as required under Section 10 of the Act, 1954 nor they questioned the order dated 30.08.2011 passed in M.A.No.3/2011 before this Court till 11.07.2012. In fact, present writ petitioners had filed an application under Order 1 Rule 10 CPC in W.P.No.83846/2011 to come on record in the said writ proceedings. During the pendency of said writ petition i.e. W.P.No.83846/2011 the present writ petition i.e. W.P.No.82573/2012 came to be filed by them on 11.07.2012 questioning the order dated 18.01.2011 - Annexure-G passed by Competently Authority under Public Premises Act, 1974 and order dated 30.08.2011-Annexure-H passed in M.A.No.3/2011 by Appellate Court. The co-ordinate bench which was adjudicating W.P.No.83846/2011 accepted the plea of the writ petitioner therein to 29 withdraw the writ petition and pursue the present writ petition i.e. W.P.No.82573/ 2012. Since writ petitioners herein had already challenged the order of the Competent Authority dated 18.01.2011 Annexure-G as well as order passed in M.A.No.3/2011 Annexure-H fourth respondent was granted liberty to pursue the writ petition No.82573/2012. Hence, said petition i.e., Writ Petition No.83846/2011 came to be dismissed as withdrawn on 03.12.2012 with liberty as noted herein above. In the light of said writ petition having been dismissed, application filed by the present writ petitioners it get themselves impleaded in Writ Petition No.83846/2011 also came to be held as not surviving for consideration. In the light of said liberty having been granted, respondents 1 to 3 cannot be heard to contend that fourth respondent herein does not have any locus standi to challenge or assail the order of the competent authority as well as the order passed in M.A.No.3/2011. Said contention is hereby rejected. 30
26. As noticed herein supra, fourth respondent did not appear before competent authority in the proceedings initiated for his eviction. Said proceedings has taken place during the year 2010-11. Subsequently, thereafter he has pursued his grievance by challenging the order of competent authority before the appellate Court in M.A.No.3/2011 as noted herein above and said appeal was pending from 11.02.2011 to 30.08.2011. Wife of original lessee late Sri.O.A.Majeed namely Smt.Noorunisa is said to have expired on 22.08.2002. From 22.08.2002 till the date of filing the application for impleading on 15.03.2012 present writ petitioners did not raise their little finger either to assert their right over the premises in question or had submitted any application to respondents 1 and 3 herein bringing it to their notice about having succeeded to the estate of deceased late Sri.O.A. Majeed or Smt.Noorunisa. On the other hand, they have claimed in present proceedings that they had obtained a 31 survivorship certificate in the year 2003 i.e. on 20.01.2003 as per Annexure-D1 and as such they are to be treated as legal heirs of deceased tenant and without notice to them proceedings under Public Premises Act, could not have been proceeded with. If it were to be so it was incumbent upon them to pursue their right at least brining it to the notice of they having succeeded to the estate of deceased tenant and they having not taken any such steps and their claim that they are the legal heirs of late Sri.O.A.Majeed or Smt.Noorunissa based on the alleged survivorship certificate issued by the Tahsildar, Bijapur would not be a ground in these proceedings to adjudicate their claim.
27. In fact the writ petitioners herein had also filed a suit in O.S.No.194/2012 for declaring the order passed by the competent authority on 18.01.2011 as null and void and said suit itself came to be dismissed as not maintainable by judgment dated 27.06.2012 and said order had reached finality. To put it differently, 32 writ petitioners herein if really had any subsisting right in the demise premises they would not have slept over their rights from 2002 to 2012. The fact that the original lessee himself had made over the lease hold rights by assigning the same in favour of fourth respondent herein would stand fortified by virtue of power of attorney executed by deceased late Sri.O.A. Majeed himself in favour of one Mr. Basheer Ahmed who is none other than the father of fourth respondent herein. Said power of attorney dated 16.04.2002 has been produced by fourth respondent herein on 03.12.2012 in these proceedings which is available on record and same has been perused by this Court. The principal namely the original lessee late Sri.O.A. Majeed has in unequivocal terms admitted that he has submitted an application to the Karnataka Waqf Board, Bangalore to accord permission to assign the lease land in favour of Sri.Zameer Ahmed i.e., fourth respondent 33 herein where under he has admitted about such assignment and reads as under:
"Whereas I have become old and not keeping good health and suffering from several ailments I have to go to Chennai frequently for treatment for that reason I have given General power of attorney in favour of Zameer Ahmed S/o Basheer ahmed Bagalkot, Age: 28 years Occ:
Business, r/o Bijapur to look after Hotel business I have given an application to Karnataka Waqf Board Bangalore to give permission to assign the lease land in favour of said person. I cannot go to Bangalore to get the said permission from the Waqf Board, Bangalore. Hence I execute this power of attorney to do the following acts and deeds."
(Emphasis supplied by me)
28. This recital in the power of attorney executed by O.A. Majeed when read along with the plea raised by fourth respondent in M.A.No.3/2011 would leave no doubt about the fact that the original lessee had parted with possession of demised property in favour of fourth 34 respondent herein by assigning his rights in favour of fourth respondent and that too without obtaining permission from respondents No.1 and 2. It is because of this precise reason, the competent authority at Paragraph No.7 of the impugned order dated 18.01.2011 - Annexure-G has held that fourth respondent herein has entered into occupation and occupied premises in question on the strength of 'assignment of right' made over by tenant late Sri.O.A.Majeed. In fact, fourth respondent asserts in his appeal filed in M.A.No.3/2011 to the effect that Waqf Board had accepted rent after the death of O.A. Majeed paid by him.
29. The writ petitioners are claiming to be the legal heirs of deceased O.A. Majeed in present writ petition or in other words they claim to be the sisters of O.A. Majeed and have placed very heavy reliance on survivorship certificate dated 20.01.2003-Annexure-D1 which certificate was under question in 35 W.P.No.9286/2003 and said writ petition came to be dismissed on 13.09.2005 Annexure-D and as such an attempt has been made by the writ petitioners to contend that the validity of survivorship certificate has stood tested before this Court. This Court has not expressed any opinion with regard to the validity or otherwise of said certificate and on account of plea raised by writ petitioner therein that said certificate has been issued in violation of principles of natural justice, said plea came to be considered and rejected and writ petitioner therein was one of the rival claimants to the demised premises who had contended that it is not a Waqf property. Neither the first respondent nor the third respondent herein were parties to said proceedings. Said finding recorded would be a judgment in personem and not a judgment in rem and it would not be applicable to respondent Nos. 1 and 3 herein.
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30. Yet another factor which cannot go unnoticed is that the very same writ petitioners who claim that they have executed a power of attorney in favour of fourth respondent only to manage the business in the leased property and they have retained their lease hold rights required to be considered with utmost circumspection, inasmuch as in said power of attorney which has been relied upon by both writ petitioners as well as fourth respondent at internal page 2 they state that they are the legal representatives of Smt.Noorunisa or in other words they claim that they are the sisters of Smt.Noorunisa, whereas in all the pleadings they have contended that they are the sisters of late Sri.O.A. Majeed. No competent civil Court has declared their legal status with reference to their survivorship. Hence, in the absence of any such declaration, they cannot be heard to contend that they are the legal heirs of Smt.Noorunisa or Sri.O.A. Majeed and undisputedly both Smt.Noorunisa and late Sri.O.A. 37 Majeed having died issue less and during the lifetime of late Sri.O.A. Majeed himself the assignment of demise premises in favour of fourth respondent having been taken place, the assignee namely and said assignment being without prior permission or permission granted from respondents No.1 and 3 fourth respondent would necessarily be an 'unauthorized occupant' as defined under Section 2(g) of the Public Premises Act, 1974. As such, no infirmity can be found in the orders passed by the competent authority on 18.01.2011 - Annexure-G as affirmed by the first appellate Court on 30.08.2011 - Annexure-H. Writ petitioners and fourth respondent being in collusion with each other have successfully scuttled the claim of first respondent - Mosque from taking possession of the property which has been declared as Waqf property by third respondent, which enure to the benefit of beneficiaries for whose benefit the Waqf was created by the Wakiff and as such 38 petitioners and fourth respondent are required to be mulcted with costs.
31. Insofar as W.P.No.205912/2016 is concerned, the order rejecting the application dated 03.11.2011 Annexure-M is on the basis of a prayer made by the petitioner for renewal of trade licence and since said licence was not renewed and undisputedly renewal of license was sought for by fourth respondent and incidentally it was contended that as power of attorney holder of Amirunisa and Khairunisa, renewal was sought for, the plea of these two ladies being the legal heirs of late Sri.O.A. Majeed was not accepted, in the absence of any order of competent civil Court to establish that they are the legal heirs of deceased late Sri.O.A. Majeed the application has to fail. It is also the finding recorded by this Court herein above while disposing of W.P.No.82573/2012. Hence, this Court finds that there is no error committed by the authority in rejecting said application and it also requires to be 39 noticed that in the power of attorney dated 11.09.2002 - Annexure-E said to have been executed by Smt.Amirunisa and Khairunisa in favour of fourth respondent at clause-19 they also state that the issue regarding licence is pending before the Deputy Commissioner, Bijapur and steps were being taken to get the license renewed. In other words they claim to have knowledge of the proceedings in the year 2002- itself and yet no application has been filed by them to the Waqf Board under Rule 53 of the Karnataka Waqf Rules for transferring the lease in their favour. As such, this Court is of the considered view that there is no good ground made out to interfere with the order passed by the respondent - Corporation.
32. Learned Advocates appearing for respondents 1 and 3 in chorus have contended that though fourth respondent has paid damages at the rate of ` 1,000/- per day for the use and occupation of demise premises from 11.07.2012 to 12.12.2013, and 40 damages for subsequent period has not been paid and as such they have sought for a direction to fourth respondent to pay similar amount for further period also. It is noticed by this Court that by order dated 12.12.2013 an interim arrangement was made by this Court directing fourth respondent to pay Rs.3,000/- per day which came to be modified by the Division Bench in W.A.No.50412/2013 on 28.04.2014 directing fourth respondent to pay ` 1,000/- per day as undertaken by him before the appellate Court and accordingly payment was ordered. In that view of the matter it would be open to respondents 1 and 3 to initiate appropriate proceedings for recovery of damages and it is made clear that this Court has not expressed any opinion either with regard to quantification or otherwise of damages and contentions of both parties are left open in that regard.
For the aforestated reasons, I proceed to pass the following:
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ORDER (1) Writ petition No.82573/2012 is hereby dismissed with costs of `10,000/- payable equally by petitioners 1 and 2 and respondent No.4 to third respondent -
Waqf Board within an outer limit of two weeks from the date of this order, failing which third respondent would be at liberty to recover the same as arrears of land revenue after obtaining appropriate certificate from the Registry of this Court. (2) Order dated 18.01.2011 Annexure-G and order dated 30.08.2011 Annexure-H are hereby confirmed.
(3) W.P.No.205192/2016 is hereby dismissed and with no costs.
Sd/-
JUDGE sn/rsp/swk