Karnataka High Court
Karnataka State Board Of Wakf vs Nitin Punja S/O. N.V. Punja on 14 December, 2021
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO.70122/2012 (GM WAKF)
BETWEEN:
KARNATAKA STATE BOARD OF WAKF,
BY ITS CHIEF EXECUTIVE OFFICER,
6TH CUNNINGHAM ROAD, BANGALORE.
...PETITIONER
(BY SRI MUHAMMED ALI, ADVOCATE)
AND
NITTIN PUNJA S/O.N.V.PUNJA,
AGE-MAJOR, OCC-AGRICULTURE,
R/O.VIVAKANAND NAGAR,
GANGAVATHI.
...RESPONDENT
(BY SRI SABEEL AHMED, ADV. FOR SRI A.S.PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE ORDER DATED 13.07.2011 PASSED
BY THE KARNATAKA WAKF TRIBUNAL AT GULBARGA IN
O.S.NO.1/2008 VIDE ANNEXURE-C IN THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
A suit was filed by the Wakf Board (for short, 'the Board') claiming for a declaration that the property bearing Sy.No.96(Old) and Sy.No.198/3 (New) measuring 29 guntas situated at Gangavati was land belonging to the Board and it was actually notified in the Gazette on 04.05.1974.
2. It was the case of the Board that the record of rights of this property also indicated that it was a Muslim graveyard and therefore, they were entitled for a declaration. It was stated that the defendant had obtained permission for construction on the suit property illegally from Town Municipal Council, Gangavati on the ground that it was his property which he had inherited by his father and the Municipal Council despite objections had granted him permission. It was stated that there was interference by the respondent, which constrained the Board to file suit.
3. The defence of the respondent was that the property was not a Wakf property. It was stated that the Gazette Notification did not pertain to the suit property and that by :3: itself disentitled the Board from any relief. The defendant claimed to be the owner of a site measuring 75 feet X 35 feet and that site did not come within the Muslim graveyard and it was thus private property.
4. The trial Court on a consideration of the evidence adduced before it came to the conclusion that there was no material to establish that Sy.No.96 had infact become Sy.No.198/3. The Court had appointed the DDLR as the Court Commissioner and the said DDLR had made enquiry with the Tahashildar, who informed him that there was no document such as co-relation statement indicating that Sy.No.96 become Sy.No.198/3. The DDLR was also opined that the notified Khabarasthan in Sy.No.96 and Sy.No.198/3 were one and the same could not be established on the basis of any document. The Court taking note of this report of the Commissioner came to the conclusion that since there was no document to establish that Sy.No.96 had become Sy.No.198/3, the Wakf Board had failed to establish that the suit property was indeed Wakf property.
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5. The trial Court on consideration of the boundaries mentioned in the notification and the boundaries of the defendant site also came to the conclusion that the boundaries stated in the plaint were different and did not tally and therefore, the property claimed by the Board and the property claimed by the defendant were two different properties. The trial Court has noticed that the Board had filed to prove that the site of the defendant came within the Khabarasthan area.
6. In my view, the finding recorded by the trial Court cannot be said to be capricious and perverse.
7. However, the learned counsel for the petitioner submits that a corrigendum had been issued, by which, Sy.No.96 was to be corrected as Sy.No.198/3. The true copy of the corrigendum, which is produced at Annexure-A1, is dated 07.09.1993, whereas the original gazette notification is dated 25.09.1975. Thus, a notification of the year-1974 published in the year-1975 is sought to be corrected in the year-2003. In my view, the fact that this corrigendum has :5: been issued two decades after the original publication by itself creates a doubt regarding authenticity and veracity of the corrigendum.
8. If the Wakf Board realized that there was a mistake in the gazette notification of the year-1975, it ought to have taken steps immediately and got issued an appropriate corrigendum. Furthermore, the reason as to why the mistake that is alleged to have crept in is also not forthcoming. By a mere publication of a corrigendum nearly twenty years after the original gazette notification, the Wakf Board cannot contend that what was notified was actually Sy.No.198/3 and not Sy.No.96.
9. Apart from the above, there was also no document to show that Sy.No.198/3 had indeed been used as a Khabarasthan from a very long time. On the other hand, the petitioner has produced Sale Deeds and the permission granted for construction of his structure and therefore there is no justification for the Wakf Board to contend that there :6: was an encroachment of Khabarasthan. I find no reason to entertain this writ petition and therefore dismissed the same.
Sd/-
JUDGE CKK