Karnataka High Court
Mr. Basheer Ahmed vs Dargah Hazarath Safdar Alia Shah on 29 August, 2017
Author: A.S.Bopanna
Bench: A.S.Bopanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29th DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.S.BOPANNA
WRIT PETITION NOS.43470 & 47210/2016 (GM-PP)
C/W.
WRIT PETITION NOS.40539-540/2016 (GM-PP)
In W.P. Nos.43470 & 47210/2016
BETWEEN :
Mr.Basheer Ahmed,
S/o.Late Mohammed Peer,
Aged about 56 years,
Residing at Shot No.11,
298, 1st Main Road,
Rayan Circle,
Chamarajpet,
Bangalore - 560 018. ...PETITIONER
(By Sri.Rakshit K.N., Adv.)
AND :
1. Dargah Hazarath Safdar Alia Shah,
Shamsheer Ali Shah and Dargah,
Hazarath Kas-Ki-Peer,
Chamarajpet, Bangalore,
Represented by its Administrator.
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2. The Competent Authority,
Karnataka Public Premises
(Eviction of Unauthorized
Occupants) Act and C.E.O. ...RESPONDENTS
(By Sri.Malipatil, P.S., Adv. for C/R1,
Smt.S.R.Anuradha, Adv. for R2)
. . . .
These writ petitions are filed under Articles 226
and 227 of the Constitution of India praying to quash
the impugned order passed by the learned third
Additional City Civil and Sessions Judge, Bangalore City
in M.A. No.64/2010 and M.A. No.66/2010 dated
08.06.2016 vide Annexure `A' and consequently the
order passed by the respondent No.2 dated 22.04.2010
vide Annexure `D' and dated 22.04.2010 vide Annexure
`E'.
In W.P. Nos.40539-40/2016
BETWEEN :
1. Syed Iqbal,
S/o.late Syed Abdul Rahim,
Aged 68 years,
Shop No.8, 298,
1st Main Road,
Rayan Circle,
Chamarajpet,
Bangalore - 560 018.
2. Syed Kaleel ,
Since dead by his L.Rs.,
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(a) Faizun,
W/o.Late Syed Kaleel,
Aged about 52 years,
(b) Syed Zabi,
S/o.Late Syed Kaleel,
Aged about 37 years,
(c) Syed Sadiq,
S/o.late Syed Kaleel,
Aged about 32 years,
(d) Syed Sabir,
S/o.late Syed Kaleel,
Aged about 27 years,
Respondent No.2 (a) to (d) are
R/at Puncher Shop 6,
No.298, 1st Main Road,
Royan Circle, Chamrajpet,
Bangalore - 560 053. ...PETITIONERS
(By Sri.Rakshit K.N., Adv.)
AND :
1. Dargah Hazarath Safdar Alia Shah,
Shamsheer Ali Shah and Dargah,
Hazarath Kas-Ki-Peer,
Chamarajpet, Bangalore,
Represented by its Administrator.
2. The Competent Authority,
Karnataka Public Premises
(Eviction of Unauthorized
Occupants) Act and C.E.O.
Darul Awkaf, No.6,
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Cunningham Road,
Bangalore - 560 052. ...RESPONDENTS
(By Sri.Malipatil, P.S., Adv. for C/R1,
Smt.S.R.Anuradha, Adv. for R2)
. . . .
These writ petitions are filed under Articles 226
and 227 of the Constitution of India praying to quash
the impugned order passed by the learned third
Additional City Civil and Sessions Judge (CCH-25),
Bangalore City in M.A. No.65/2010 and M.A.
No.67/2010 dated 08.06.2016 marked as Annexure `A'
and consequently the order passed by the respondent
No.2 dated 22.04.2010 vide Annexure `D' and dated
22.04.2010 vide Annexure `E'.
These writ petitions coming on for preliminary
hearing in `B' Group, this day, the Court made the
following:
ORDER
The petitioners are before this Court assailing the order dated 08.06.2016 passed in M.A. Nos. 64/2010 and connected appeals. In the said appeals the order dated 22.04.2010 passed by the Competent Authority which was assailed has been upheld and the appeals are rejected. In that view the order of the competent authority is also assailed herein.
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2. The respondents have filed objection statement to oppose these petitions.
3. Considering that this Court in a petition under Article 226 of the Constitution though is required to look into the correctness or otherwise of the order passed by the competent authority under the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (for short the 'KPP Act') and the order passed by the Appellate Judge, certainly this Court would not sit in appeal against the said order except to note as to whether the aspect of the matter relating to the conclusion as to whether the petitioners herein are the authorized occupants of the premises or not has been taken into consideration. In that background, a perusal of the petition papers would indicate that pursuant to the notice issued to the petitioners, the competent authority has passed the order arriving at the conclusion that the petitioners are unauthorized -6- occupants in respect of the petition schedule premises which is a public premise. The Appellate Judge while taking note of this aspect has made a detailed reference to the proceedings before the competent authority and having noticed that no flaw has been committed by the competent authority, has upheld the order.
4. The learned counsel for the petitioners while assailing the concurrent orders passed by the competent authority and the learned Appellate Judge would refer to the provisions contained in Section 9 of the KPP Act to contend that the competent authority would have the powers of a Civil Court and in that view the proceedings therein should also be held as provided under the Civil procedure Code and opportunity of cross-examination of the witness as well as tendering evidence was required to be given to the petitioners. It is his further contention that the initial notice as contemplated under Section 4 of the KPP Act has not -7- been issued to the petitioners and therefore, the initiation of the proceedings before the competent authority is contrary to law. In that light it is contended that the property not being a public premise, the proceedings could not have been held as petitioners were claiming right under the independent persons with whom the agreements had been entered into.
5. The respondents through the objection statement have sought to sustain their action by pointing out that the property in question is notified as a Wakf property and as such is public premises to which the KPP Act was applicable at that point in time. It is contended in that regard that the persons under whom the petitioners claim right themselves had assailed the notification under which the property was notified as Wakf Property, through the writ proceedings and the orders as passed in the said proceedings are produced along with the objection statement as at -8- Annexures `R1' to `R4'. In that light it is contended that if the said persons themselves have failed in the said proceedings, the petitioners cannot claim any better right in the instant proceedings.
6. In the light of the rival contentions and the pleadings, I have heard the learned counsel for the petitioners as also the learned counsel for the respondents and perused the petition papers.
7. Firstly on the contention of the petitioner that the notice issued is not in terms of the provision contained in Section 4 of the KPP Act, what is necessary to be noticed is that the very nature of the contention as put forth by the petitioners herein would indicate that the contention of the petitioners was that the property is not a public premise and that they are not unauthorized occupants. If that be the position when the petitioners have thereafter participated in the proceedings and the contentions have been put forth, this Court at this -9- juncture in a writ petition on that technical aspect need not interfere in the matter since all that is necessary to be noticed herein is as to whether the petitioners have relied upon any document to indicate that the petitioners do not answer the definition of Section 2(g) of the KPP Act, wherein the unauthorized occupant has been defined. In that regard there is absolutely no document on record to indicate that the petitioners have been permitted by the respondents herein to occupy the premises in question. To that extent when through the objection statement, it is pointed out that the property in question is the Wakf property and it has already been held so by this Court in the earlier writ proceedings, at this juncture, the petitioners in any event cannot claim right under any other person.
8. Further with regard to the contention that the petitioners had not been provided sufficient opportunity before the competent authority, as rightly noticed by the
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learned Appellate Judge who has made detailed reference to the order sheet of the proceedings before the competent authority, the rejection of the request by the petitioners to cross-examine the person who had appeared on behalf of the respondents herein before the competent authority would not arise, when no evidence in that regard had been tendered by way of examining the witness before the authority. In that regard though the learned counsel for the petitioners seeks to rely on the provision contained in Section 9 of the Act, the instant proceedings being summary in nature and when the defence as put forth by the petitioners herein does not refer to any authorization in their favour to continue, in a summary proceedings of the present nature, the recording of oral evidence in any event was not mandatory.
9. From the contentions as put forth and the material available before the competent authority, a
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conclusion could be reached as to whether a person against whom the eviction is sought is an unauthorized occupant of the said premises. The same would be sufficient and no particular manner of examination of the witnesses or the recording of the evidence is necessary in that view. Therefore, the conclusion of the Appellate Judge in that regard is justified and does not call for interference. That apart the Appellate Judge has also taken into consideration the delay committed by the petitioners in filing the appeal and also the fact that the petitioners had already been evicted from the premises in execution of the orders passed by the competent authority.
10. Therefore, in a matter of the present nature, where the competent authority as well as the learned Appellate Judge have applied their mind to the factual circumstances and considered all aspects in arriving at their conclusion, this Court in a limited jurisdiction
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available in this writ proceedings would not be justified in interfering with either of the orders.
These petitions being devoid of merits stand disposed of.
Sd/-
JUDGE SPS