Karnataka High Court
Madina Masjid, Represented By Its ... vs Kareemulla Sheriff S/O Fazlul Sheriff ... on 21 March, 2007
Equivalent citations: 2007(3)KARLJ318, 2007 (3) AIR KAR R 306
ORDER H.V.G. Ramesh, J.
Page 0918
1. In this petition, the petitioner has sought for issuance of a writ of certiorari quashing the order passed by the VI Additional City Civil Judge at Bangalore in M.A. No. 72/2003 dated 22-9-2003 vide Annexure-A and for such other reliefs.
2. The petitioner is said to be a Madina Masjid situated at Sulthan Gi Gunta Road, Bangalore owning a property let out to the first respondent at Babmoo Bazaar. According to the petitioner, the property in question is a wakf institution and it belongs to the management of the petitioner. It is the case of the petitioner that the first respondent is an unauthorised occupant in respect of a portion of the property bearing No. 40 at Sulthan Gi Gunta Road and ha is using it for housing about 50 and more cattle and it has become a nuisance to the entire area. Inspite of the requests and complaints, the first respondent did not vacate the premises and hence Page 0919 the petitioner said to have initiated the proceedings under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (for short "KPP Act, 1974") and also it is alleged that the first respondent is encroaching upon the surrounding area. In this regard, the second respondent issued a show cause notice as contemplated under Section 4(1) of the KPP Act, 1974 and to the said notice, the first respondent has issued a reply contending that he is not a tenant under the petitioner and he is a tenant under the Wakf Board and also that he is not an unauthorised occupant. However, after issuance of notice, eviction proceedings was initiated before the Competent Officer who passed an order under Sections 5 and 7 of the KPP Act, 1974 holding that the first respondent is an unauthorised occupant and directed him to vacate the schedule premises. Being aggrieved by the order of the Competent Officer, the first respondent moved the VI Additional City Civil Court in M.A. No. 72/2003 wherein the learned Judge held that the notice itself a defective one and quashed the eviction order passed by the Competent Officer. Hence, the petition is before this Court in this writ petition.
3. Heard the learned Senior counsel Sri. S.P. Shankar, appearing on behalf M/s. S.Z.A. Khureshi Associates and the learned Counsel appearing for Respondents 1 and 2.
4. It is the submission of the learned Counsel appearing for the petitioner that the first respondent was duly served with the notice as per Section 4(1) of the KPP Act, 1974 along with a copy of the complaint which clearly discloses the grounds under which he was sought to be evicted and to hold that he is in an unauthorised occupant. The notice accompanied by a copy of the complaint is a sufficient proof to hold that the first respondent is an unauthorised occupant. The premises was let out only for a period of 11 months and on such expiry of the said period, as rightly observed by the Competent Officer, his continuation in the premises is nothing but an unauthorised occupant. The Competent Officer passed an eviction order after hearing the first respondent giving due opportunity to him and the order of the Appellate court stating that the notice is defective is without any basis and passed without looking into the contents of the complaint which was accompanied with the notice under Section 4(1) of the KPP Act, 1974. Accordingly, submitted that the order of the Competent Officer is in accordance with law. If the permission granted to the first respondent to put up structure is only a temporary in nature, by an order of the Wakf Board, his contention that the property belongs to the Wakf Board and not to petitioner is without any basis and accordingly submitted that the impugned order passed by the District Judge cannot sustain.
5. Per contra, the learned Counsel appearing for the first respondent has vehemently argued that the property in question belongs to the Wakf Board and not to the petitioner and the first respondent is not an unauthorised occupant of the premises. It is also submitted that the proceedings under the provisions of KPP Act, 1974 can be invoked only against the property let out by the Board and not against the building put up by the first Page 0920 respondent under the permission of the Wakf Board. It is his further submission that the Appellate Court relying upon a decision of this Court has rightly held that the notice is defective and accordingly submitted that the petition itself is not maintainable. He further relied upon a decision in the case of Express Newspaper Private Limited v. Union of India to contend that the proceedings under the KPP Act, 1974 can be initiated only in respect of the building let out by the Authority and not in case where the building is put up by the Lessee.
6. Learned Counsel appearing for the second respondent justifying the action of the Competent Officer submitted that the petitioner institution is registered under the Wakf Board and the Board is only a Controlling Authority. Notice along with a copy of the complaint issued by the petitioner is in accordance with the provision under Section 4(1) of the KPP Act, 1974. It is the further submission of the learned Counsel that on the expiry of lease period as per Section 2(g) of the Act, the first respondent became an unauthorised occupant and following the procedure as contemplated under the provisions of the KPP Act, 1974, as eviction order was passed by the Competent Officer and there is no illegality in the said order.
7. In the light of the arguments advanced, by the learned Counsel for the parties, let me to consider whether the impugned order passed by the Appellate Judge calls for interference?
8. It appears, on perusal of Annexure-B in this writ petition, notice shown to have been served on the first respondent as contemplated under the Provisions of Section 4(1) of the KPP Act, 1974 and a copy of the complaint is also enclosed which has not be disputed by either side. In the complaint it is stated that as noted by the Competent Officer that the period of lease has also expired and there is also encroachment and the first respondent apart from using the premises for the purpose for which it is let out also said to have sub-let the property and causing nuisance by putting cattle in the temporary shed put up by him.
9. It is seen that even as per the approved plan, the first respondent was only permitted to put up temporary shed to make use of the open land which was let out to him by the petitioner. The decision of the Apex Court noted above is with reference to the permanent structure that is being raised by the Express Newspaper Private Limited. Under the circumstances, the Apex Court was of the view that the matter ought to have been adjudicated by the Competent Civil Court and accordingly, it is ordered that the provision of the KPP Act, 1974 is not applicable. In the case on hand, admittedly the structure being put up by the first respondent is in the form of temporary shed and not permanent structure as is considered by the Apex Court in the above noted decision. The act of the first respondent is illegal in sub-letting the premises in question apart from using the property for the purpose other than to which it was let out. As Page 0921 per the definition of Section 2(g) of the Act, the first respondent is in unauthorised occupation. Notice is said to have been issued as per Section 4(1) of the Act along with a copy of the complaint which depicts the grounds on which the first respondent was sought to be evicted and also that he is an unauthorised occupant.
10. The finding of the Appellate Court is that the notice must specifically contend the basis for passing the order, but the Competent Officer came to the opinion that the first respondent is an unauthorised occupant based on the grounds mentioned in the notice whereas the notice itself is invalid in law. It is specifically mentioned that the notice has been despatched along with the copy of the complaint wherein several acts of the first respondent have been alleged for sub-letting the premises apart from using it in the manner causing nuisance to other persons and also there said to be an encroachment. As per Section 2(g) of the Act, on expiry of the lease period, the continuation of possession by the first respondent shows that he is an unauthorised occupant. Even in paragraph 7 of the order, the learned Judge has noted the definition of Section 2(g) under the KPP Act, 1974 that after the expiry of the lease period, the possession will become unlawful and the party has to show that he has obtained permission or authority to continue in possession. In the absence of any authority or permission, the possession cannot be concluded as lawful possession. Even though it is noted that the Competent Officer has already held that the first respondent is in unauthorised occupation, in the subsequent paragraph, the Appellate Judge, only on technical ground shown to have passed an order holding that the notice issued under Section 4(1) of the KPP Act, 1974 is not in accordance with law as it did not contend any ground as to how the Competent Officer came to the opinion that the first respondent is in unauthorised occupation of the premises.
11. In the decision relied upon by the Appellate Judge reported in 1996(7) Karnataka L.J. 179, it is specifically referred that the grounds should be specified on the basis of which the eviction order is proposed to be made and if the notice does not specify facts. In the instant case, Section 4(1) notice accompanied by the complaint clearly adjudicated the grounds on which the first respondent was sought to be evicted from the premises in question. The Appellate Judge failed to take note of this aspect and simply proceeded to pass an order on mechanical manner ignoring the effect of Section 2(g) of the act, although the Competent Officer has rightly passed an order of eviction.
12. Taking all these facts into consideration, the Appellate Judge on technical and flimsy grounds has tried to dislodge the case of the petitioner stating that no proper notice has been served and also that the notice did not contain the grounds on which the first respondent was sought to be evicted and further the first respondent is an unauthorised occupant.
13. As noted above, the decision relied upon by the counsel for the first respondent is not applicable to be case on hand as the structure put up by the first respondent in the premises in question is the temporary structure Page 0922 namely a shed put up under the permission of the Wakf Board, whereas in the case referred by the first respondent it is in respect of the permanent structure put up by the Lessee.
14. As rightly argued by the learned Counsel appearing for the second respondent, the Wakf Board is only a controlling authority and the property belongs to the petitioner which is registered as one of the Institution under the Wakf Board. Under the circumstances, the say of the first respondent that the property belongs to Wakf holds no water.
15. Since, the Appellate Judge without properly appreciating the grounds raised in the notice be the complaint offered to notice which was issued under Section 4(1) of the KPP Act, 1974, passed an impugned order which requires interference. Accordingly, the petition is allowed, and the impugned order passed by the Appellate Judge in M.A. No. 72/2003 is quashed while upholding the order passed by the Competent Officer holding that the first respondent is an unauthorised occupant.
However, the first respondent is given time for two months to vacate and hand over the vacant possession of the premises in question to the petitioner.