Karnataka High Court
Hazarth Hussain Basha Khadri vs The Competent Officer-Cum-Municipal ... on 29 November, 2012
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.39097 & 39581/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
WRIT PETITION Nos. 39097 & 39581 OF 2010 (GM-WAKF)
BETWEEN :
1 HAZART H HUSSAIN BASHA KHADRI
@ JODI MAZAR (WAKF) B H ROAD,
TUMKUR REPRESENTED BY ITS
PRESIDENT & SECRETARY
2 KARNATAKA STATE BOARD OF WAKFS
NO.6, CUNNINGHAM ROAD,
BANGALORE
REPRESENTED BY CEO.
...PETITIONERS
( By SMT. S R ANURADHA, ADVOCATE )
AND :
THE COMPETENT OFFICER-CUM-
MUNICIPAL COMMISSIONER
CITY MUNCIPAL COUNCIL
TUMKUR.
...RESPONDENT
( By Sri. M NIKHILESH RAO, ADVOCATE )
THESE WRIT PETITIONS ARE FILED UNDER ART.226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
CALL FOR THE RECORDS IN MA.NO.7/06 & MA.NO.8/06 ON
THE FIRST ADDL. JUDGE, AT TUMKUR AND QUASH/ SET
ASIDE THE ORDER DT.19.11.2010 IN M.A.NO.7/06 &
MA.NO.8/06 ON THE FILE OF THE FIRST ADDL. JUDGE, AT
TUMKUR VIDE ANN-A AND QUASH/SET ASIDE THE ORDER
DT.15.04.2006 PASSED BY THE RESPONDENT VIDE ANN-B;
AND ETC.
2
W.P.39097 & 39581/10
THESE WRIT PETITIONS COMING ON FOR FURTHER
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The 1st petitioner, a registered WAKF and the 2nd petitioner, the Karnataka State Board of WAKFs., aggrieved by the common order dt. 19/11/2010 in Misc. Appeal Nos. 7/06 and 8/06 dismissing the appeals and confirming the order dt. 15/4/2006 in CMC/CR 17/2005-06 of the Municipal Commissioner and Competent Officer and extending 2 months time to the petitioners to vacate the petition schedule premises, from the date of judgment, under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, for short 'KPP Act', have presented this petition.
2. Facts in brief are, respondent - Municipal Commissioner as also the Competent Officer under the KPP Act, issued a notice dt. 13/3/2006 - Annex.G calling upon 1st petitioner to show cause as to why the it should not be treated as an unauthorized occupant and evicted from the municipal property located in the middle of the 3 W.P.39097 & 39581/10 B.H.Road measuring 36 x 40½ mtrs. bounded on, East by B.H.Road, West by B.H.Road, North by B.H.Road and South by B.H.Road & school compound. The 1st petitioner caused a reply dt. 24/3/2006 - Annex.H asserting that by notification dt. 10/7/1965, the State government declared the notice schedule property as a WAKF wherein the mortal remains of two Muslim saints were buried and that the said notification was gazetted in the Mysore Gazette on 15/2/1968, exercising jurisdiction under Sec.5(2) of the Mysore WAKF Act, 1954. It was also pointed out that the WAKF property was not in the middle of the B.H.Road and further that the Competent Officer under the KPP Act in respect of that property was the WAKF Board, the 2nd petitioner, and therefore the show cause notice was one without jurisdiction. The Competent Officer by order dt. 15/4/2006 - Annex.B, under Sub-sec.
(1) of Sec.5 of the KPP Act, held the 1st petitioner as an unauthorized occupant and directed it to vacate the said premises. That order-Annex.B when called in question in two appeals, preferred separately, by the petitioners, 4 W.P.39097 & 39581/10 numbered as Miscellaneous Appeal 7/06 and 8/06 respectively, the I Addl. District Judge, Tumkur, declined to accept amongst others, the plea of the petitioners, by observing that the village map 100 years old, did not disclose the existence of the dargah on B.H.Raod and that the name of the WAKF or the name of the dargah as set out in the Mysore Gazette was not entered in the concerned municipal records, as belonging to WAKF Board, to hold that the publication in the gazette was not acted upon, while placing reliance upon the order of the Apex Court in Special Leave to Appeal (Civil) No. 2519/2006 directing that no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara, on public streets, public parks or other places, as an interim measure, accordingly by the order impugned dismissed the appeals, confirmed the order of the Competent Officer and extended two months time to vacate and handover the petition schedule property.5
W.P.39097 & 39581/10
3. In the memorandum of writ petitions it is asserted, amongst others, that pursuant to an enquiry under Sec.4 of WAKF Act, 1954, by the State government, an extent of 30 x 40 ft. vacant site enclosed by a brick compound in front of the College which had two tombs therein, issued notice under Sec.4(4) of the WAKF Act on 31/5/1963, Annex. D & E respectively, and after a full- fledged enquiry, the property was notified as a WAKF property under Sec.5(2) of the WAKF Act on 10/7/1965 and published in the Mysore Gazette on 15/2/1968 - Annex.F. The notification having become final, it is said is binding on the respondent. The two tombs of great saints who lived many centuries ago, on their death, when buried as per Muslim customs, the petitioners' state, prayers are offered and that the tomb in Urdu language, is called a dargah. It is the allegation of the petitioner that Competent Officer as well as the Appellate Court having failed to hold a proper enquiry into the claims of the parties, jumped to conclusions. In addition, it is alleged that the Appellate Court fell in error in recording a finding 6 W.P.39097 & 39581/10 that the notification was not acted upon, merely because the name of the dargah was not entered in the municipal records. According to the petitioners, the order dt. 7/12/2009, in SLP 8519/06 of the Apex Court, has no application to facts and circumstances. It is also contended that during the year 1970, O.S.No.428/70 when instituted by one Shahdthulla Sha Kalifa Rafai @ Mahamed Iman, S/o. Garib Sab, against certain persons who had interfered with the dargah premises, the Addl. Munsiff at Tumkur, by judgment and decree dt. 27/10/1971, allowed the suit and directed permanent injunction restraining the defendants therein from interfering with the plaintiff's possession and enjoyment of the suit schedule property. It is lastly stated that the positive photographs Annex.R & R1 said to have been taken in the year 1924, shows the existence of the two tombs and the compound of the college behind it.
4. Petition is opposed by filing Misc. 12600/10 for vacating stay interalia denying the factual averments set out in the memorandum of writ petition and asserting that 7 W.P.39097 & 39581/10 the schedule premises jutting into the Bangalore- Honnavara Road (B.H.Road) being one of the main arterial roads in Tumkur city, is an illegal encroachment over the road a public premises, and the Competent Officer was fully justified in directing its removal and eviction, more appropriately in the light of the decision of the Apex Court directing removal of such unauthorized occupation of public premises. According to the respondent, City Municipal Council, the survey map of Tumkur town of the year 1906, said to be an undisputed document, does not show the existence of the dargah. It is the allegation of the respondent that the Assistant Commissioner of WAKF, Tumkur, having received a representation in the year 1963 over the existence of a tomb of Hussain Basha Khadri @ Jouddi Madar situated at B.H.Road in front of DB Buildings, said to be a WAKF, is not the very same tomb in the public premises since there is no structure known as DB Building in the vicinity, and therefore the alleged tombs are but encroachments into the public premises. Even otherwise, it is stated that the unilateral 8 W.P.39097 & 39581/10 representation does not bind the Municipal authorities. Moreover it is asserted that in the revenue records, at no point of time, disclosed the existence of a WAKF. In paragraph 9 of the application, it is specifically asserted that item No. 285 in the Gazette notification, Annex.F, is not the very same premises, subject-matter of the proceeding under the KPP Act, more so in the absence of clarity over the boundaries of the property described at Sl.No.285. The description of the property at Sl.No.285 is said to be a vacant site measuring 30 x 40 ft. and makes no mention of the tombs. The respondent states that even assuming, without conceding that the schedule property is the very same property that is described as Sl.No.285 in Annex.F, gazette notification, nevertheless its existence is not enquired into as mandated by the WAKF Act. In the absence of a permanent dedication by a person professing Islam for any purpose recognized by the Muslim Law as pious, religious or charitable, regard being had to the definition of the term 'WAKF' under the WAKF Act, 1954, it is pointed out that it is not the case of the petitioners 9 W.P.39097 & 39581/10 that a grant was made by the government of public land for burying the mortal remains of saints. Yet another objection of the respondent is that the endorsement dt. 31/5/1963, Annex.E, discloses the construction having put up around that time and not three centuries ago, as claimed. The orders of the Competent Officer and that of the Appellate Court, it is stated, are well-merited, fully justified and do not call for any interference.
5. During the pendency of this petition, on 23/12/2010 parties were directed to have the property surveyed by an engineer and to prepare a sketch pursuant to which one Mirza Akbarulla, the Chief Executive Officer filed an affidavit enclosing a copy of the sketch, also undertaking to remove the compound wall and the temporary structure shown with the alphabet 'E' in the sketch, by 28/12/2010 and to grant time till 31/12/2010 to clear the debri. That affidavit was opposed by filing a statement of objections dt. 28/1/2011 stating that the affidavit is not in conformity with the directions issued by this court on 23/12/2010 on the premise that the structure 10 W.P.39097 & 39581/10 put up on the petition schedule premises is entirely unauthorized and that the petitioners' case is over the property alleged to measure 30 x 40 ft., while the measurement as indicated in the map enclosed to the affidavit, discloses 34 ft. South to North towards B.H.Road, in other words, 4 ft. in excess of 30 ft. In addition it was pointed out that petitioners had not removed the iron grill and compound wall over the entire area measuring 36 x 40½ ft. Petitioners filed a reply dt. 16/2/2011 to that objection statement interalia denying the allegations, and asserting that the compound wall was not removed since it was essential to protect the property and that the sketch annexed to the affidavit was a rough sketch and therefore requested this court to direct the survey authorities to survey the land and if found that the compound wall is beyond the notified area, petitioners undertook to remove the same, with liberty to reconstruct on the basis of correct measurements. The iron grills attached to the edge of the tomb to support the tin sheets which shelters the tomb, were claimed to be temporary 11 W.P.39097 & 39581/10 shelters.
6. On 7/6/2011 both the parties were directed to hold a spot inspection and check measure the existing size of the plot and file a report. Thereafterwards on 17/6/2011, having heard the learned Counsel for the parties and noticed that the joint spot inspection did not yield a fair and reasonable method of recording measurement, the government advocate was directed to ascertain as to whether government surveyor in revenue department is available in Tumkur for conducting a survey. On 20/6/2011, one Mr.Sheshadri Reddy, DDLR of Tumkur, was directed to conduct a spot inspection and survey in the presence of parties or their representatives on 5/7/2011 at 11 a.m. with a further direction to measure the site and submit a report enclosing a sketch after furnishing copies of the same to the parties. Yet again on 18/8/2011, this court having found that the internal measurement as between the boundary walls and the tombs were not recorded, fresh direction was issued to the Deputy Director of Survey Settlement, Tumkur, to hold 12 W.P.39097 & 39581/10 a spot inspection and submit a report following which the learned Government Advocate filed a memo enclosing a sketch on 26/8/2011. on 29/8/2011, the learned Counsel for the parties submitted that in the light of the sketch enclosed to the letter dt. 19/8/2011 of the Deputy Commissioner indicating the measurements of the property in question, the petitioners undertook to remove the compound wall delineated with the alphabets 'A & B' to fall in line with the demarcated alphabets 'E & F', in other words reduced the dimension on the northern side by 6 ft. 3 inches on the western side and 4 ft. 3 inches on the eastern side, so as to confirm to the measurement of 30 x 40 ft. in terms of the gazette notification. It is not in dispute that pursuant thereto, the area in occupation of the WAKF measures 30 x 40 ft.
7. Learned Counsel for the petitioners submits that the immovable property in question on being declared a WAKF, under the WAKF Act, 1954, is a public premises under the KPP Act, and as it does not belong to the respondent, Tumkur Municipality, the Commissioner of the 13 W.P.39097 & 39581/10 Municipality, though a Competent Officer under the KPP Act, has no jurisdiction to initiate action under the said Act. It is next contended that since the petitioners disputed the title to the public premises, the Commissioner of the Municipality Act, the Competent Officer under the KPP Act ought to have made a reference to the Civil Court for adjudication of the claim over title and thereafter, if declared to belong to the municipality, to continue the proceedings under the KPP Act for eviction of the 1st petitioner from the public premises. It is next submitted that regard being had to the principles laid down in THE HORTICULTURE PRODUCERS' CO-
OPERATIVE MARKETING & PROCESSING SOCIETY LTD., BANGALORE VS. THE COMPETENT OFFICER & SECRETARY, KARNATAKA BOARD OF WAKFS, BANGALORE & ORS.1, the Appellate Officer for the purpose of KPP Act being the District Judge having jurisdiction over the area in Tumkur district, invested with the jurisdiction to decide both questions of law and of fact including disputed question of title arising out of the issue 1 2000 (6) Kar.L.J. 442 14 W.P.39097 & 39581/10 of notice under Sec.4 of the KPP Act before any final decision could be taken under Sec.5 of the said Act, the Appellate Officer having failed to exercise a jurisdiction vested in him, the order impugned calls for interference. It is lastly submitted that the respondent-Municipality constituted in the year 1964 under the Karnataka Municipalities Act 1964, was vested with the immovable properties excluding the WAKF public premises in existence on the date the municipality was constituted and regard being had to the notice and enquiry held during the year 1963 under the WAKF Act, 1954, the notification issued by the State under Sub-sec.(2) of Sec.5 of WAKF Act which was gazetted on 15/2/1968, is binding on the Municipality.
8. Per contra, learned Counsel for the respondent - Municipality, does not controvert the principles laid down in HORTICULTURE PRODUCERS' CO-OPERATIVE MARKETING & PROCESSING SOCIETY, supra (1). Learned Counsel points to paragraph 38 of the judgment of the Apex Court in V. LAXMINARASAMMA VS. A. 15 W.P.39097 & 39581/10 YADAIAH & ORS.2, to contend that the special enactment namely the KPP Act satisfies the substantial due process in an appeal before the District Judge, and hence would satisfy the legal requirement. It is next submitted that the Municipality not being a party to the enquiry by the Asst. Commissioner in respect of the WAKF claimed by the 1st petitioner, the notification gazetted on 15/2/1968 does not bind the Municipality, by placing reliance upon the decision of this court in the CORPORATION OF THE CITY OF BANGALORE VS. MYSORE STATE BOARD OF WAKF & ORS.3 It is lastly submitted that the decision of claimants to property by or against the Municipal Council requires a decision at the hands of the Deputy Commissioner after an enquiry contemplated by Sec.82 of the Karnataka Municipalities Act, 1964, is inapplicable since KPP Act being a special enactment overrides the provisions of the Karnataka Municipalities Act, a general enactment.
2 (2009) 5 SCC 478 3 Air 1973 Mysore 189 16 W.P.39097 & 39581/10
9. Having heard the learned Counsel for the parties, perused the pleadings, there can be no more dispute over the jurisdiction of the District Judge -Appellate Officer under the KPP Act, having jurisdiction to consider both the questions of law and that of fact including disputed questions of title arising as a consequence of the notice under Sec.4 of the KPP Act, as observed by HLDJ, as he then was, in the HORTICULTURE PRODUCERS' CO-
OPERATIVE MARKETING & PROCESSING SOCIETY'S case supra. Although Smt. S.R.Anuradha,
learned Counsel for the petitioners, submits that the Appellate Authority does not have the jurisdiction to answer the question of jurisdiction of the Competent Officer to issue the notice under Sec.4 of the KPP Act. The Appellate Authority when invested with the jurisdiction to decide title to the property as between the WAKF Board and the Municipality, it is but axiomatic that the Competent Authority in respect of the public premises is the person appointed by either the WAKF Board or the Municipal Commissioners, depending upon the 17 W.P.39097 & 39581/10 declaration of title to the public premises. In other words, if the WAKF Board is declared to be the title holder exercising rights over the public premises in question, then it would be the Competent Officer of the WAKF Board appointed under the KPP Act, but if the title to the public premises is declared in favour of the Municipality, it would be the Commissioner for the Municipality, the Competent Officer invested with the jurisdiction under the KPP Act.
10. In CORPORATION OF THE CITY OF BANGALORE VS. MYSORE STATE BOARD OF WAKF & ORS., supra (3), it is held that the Corporation is not bound by the notification issued under the WAKF Act, 1954, declaring a property as a WAKF. The declaration of a property as a WAKF by inclusion in the notification duly gazetted under the WAKF Act, 1954, is not conclusive evidence of the fact that it is WAKF property against a stranger who claims title to property, while it is for the WAKF Board to adduce evidence to establish the factum of enquiry under the Act, to prove the existence of the WAKF. 18
W.P.39097 & 39581/10 Thus the mere inclusion of the public premises in the notification dt. 10/7/1965 gazetted on 15/2/1968, is not conclusive of the fact that it is a WAKF property as against the claim of the municipality over title to the said property. Hence the respondent - Municipality cannot be said to be bound by the said notifications.
11. Though learned Counsel for the Municipality points to the village map of the year 1906 to assert that there existed no such WAKF on the road in question and that the alleged tombs have come into existence at a later point of time, without authority of law and without a grant being made, of public properties for burial of saints, and that the gazette notification is not binding on the Municipality and further that the description of the property at item No. 285 in the gazette notification is not the very same public premises, as it is shown as vacant land and not the tombs, being seriously disputed by the WAKF Board, are disputed facts which cannot be conveniently adjudicated in this petition and requires a trial.
19
W.P.39097 & 39581/10
12. Regard being had to Sub-sec.(2) of Sec.82 of the Karnataka Municipalities Act, 1964, providing an opportunity to the aggrieved party who has suffered an order under Sub-sec.(1) of Sec.82 deciding a claim to immovable property to question the same before a competent Civil Court, when read in conjunction with the principles laid down in HORTICULTURE PRODUCERS' CO-OPERATIVE MARKETING & PROCESSING SOCIETY'S, it is needless to state that the claims to title needs to be adjudicated by a Civil Court of competent jurisdiction and therefore there is no necessity to answer the submission of the learned Counsel for the respondent
- Municipality that the KPP Act being a special enactment overrides the provisions of Sec.82 of the Karnataka Municipalities Act, 1964, a general enactment. That question is left open for consideration in an appropriate case.
13. The order of the District Judge in question in these petitions does not make reference to or a consideration over the claims of the parties in respect of 20 W.P.39097 & 39581/10 title to immovable property and hence calls for interference.
14. In the result, these petitions are allowed in part. The common order dt. 19/11/2010 of the District Judge in M.A.Nos. 7/06 and 8/06 are quashed and the proceeding remitted for consideration afresh after extending reasonable opportunity of hearing to the parties concerned including that of adducing evidence, both oral and documentary, and thereafter to pass orders strictly in accordance with law and in the light of the observations supra. The question of competence of the Commissioner for the Municipality to initiate action under Sec.4 of the KPP Act, deserves to be considered by the Appellate court.
There shall be an interim order of stay of the operation of the order dt. 15/4/2006 - Annex.B, until disposal of the appeal.
Parties since represented by learned Counsel, are directed to be present before the I Addl. District Judge, Tumkur, on 11/12/2012, without further notice. 21
W.P.39097 & 39581/10 The District Judge is directed to conclude the proceedings in any event by the end of February 2013.
Sd/-
JUDGE Rd/-