Karnataka High Court
Chikkahanumaiah vs The Secretary Karnataka Wakf Board on 1 December, 2008
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
2
R / O BELIGUMBA VILLAGE
KASABA I-IOBLI
RAMANAGARAM TALUK
BANGALORE RURAL DIST
ABDUL JABBAR KHAN
S /O LATE USMAN KHAN
MAJOR, D.NO.2156, III WARD
NEAR JNATHA NURSING HOME"
DODDABALLAPUR TOWN
BANGALORE RURAL DISTRICT '
{By Sri : P' V PATIL, T VENUGOPAL; ) 2 '
AND :
THE SECRETARY 1 T,
KARNATAI<;A"wA'1<FBOART) "
CUNNIN_GHAM';_RQAvD_' _
.,:,: :;,. ,
THEBEPUVTY'GOMMIASSTONER
BANGALORE RURAL' DISTRICT
VISHWESHWARAIAH TOWERS
VIDHAN VEEDHI, BANGALORE 1
A OE KARNATAKA
* -BY I,TS.%S:EGRETARY FOR REVENUE
,MULT1S'TOREyEB BUILDING
- A "BANGALORE 1
R4
;f"I~IE"~-GECRRETARY
ANJUMAN HAMIYATI-IULLA ISLAM
" r ARAMANAGARAM
g _B'ANGALORE RURAL DIST
MOHAMED IBRAHEM KHAN
S/ O LATE USMAN KHAN
AGE ABOUT 70 YEARS
PALANAJOGIHALLI, KASABA I-IOBLI
DODDABALLAPUR TALUK
BANGALORE RURAL DIST. J
'\
iJ\
. PET*I'T1jONER1S '
6 ABDUL RAHIM KHAN
S / O LATE USMAN KHAN
REP.BY GPA HOLDER
SRLFARUQUE KHAN
MUTHURU III WARD, VI DIVISION
DODDABALLAPUR TOWN
BANGALORE RURAL DIST
(By SMT: S R ANURADHA, ADV FORR1 E f) .,
RESPo_1$IDEAiT'S A'
(BY SMT . SAROJINI K MUTHANNA, AGA FDR; R2.&[RS)' 7
(BY SR1. A G SHIVANNA 85 M S ASWATHAREDDY,' - . «.
ADV FOR R4) '
(BY SR1. B RUDRAGOWDA, ADV 'FORR5 &*R6)--.._
THIS WRIT PETITIONIS 1«"1LEDIU~NDER ARTICLES 226
AND 227' OF THE CONSTITEJTI-'QN,Q}«"..,_I~ND1A PRAYING To
QUASH VIDE ANNE DATED 6.'1o,2.'ooo PASSED BY R2 AND
DIRECT R2 TO TAKE U_P__'*THE._E1LE~S -"CASE AND
ENTERTAIN THE; 'RENDING*~APRLTQATIDNS OF THE
PETITIONERS U:'\rDER'TH:E INAMS" .ABCaLITiON LAWS AND
PASS AP1§RoPRI'ATE_a(§?RI3ERs,_ _ --
THIS l5E{i'ITTOViN_ CDMLNG ON FOR HEARING THIS
DAY TRE coUR'3i 'MADE THE FOLLOWING:
._ 1 to 5 filed applications in form
No.7'O"t1ncl.er'§ec.48~A of the Karnataka Land Reforms
D. for grant of occupancy rights in respect of
igcertlaizij agricultural lands of which they claim to be
"-(tenants, While petitioner No.6 and the 1st respondent
.4 Wakf Board filed applications in form No.1, under the A A 'fj Mysore Religious and Charitable Inarns Abolition Act, 1955, for short "inarns Abolition Act", for grant of occupancy rights of certain agricultural lands. The Land Tribunal by separate orders granted occuparic3?. rights, which when questioned before this co_u'rt',«l writ proceeding at the instance of the A' were quashed and the proceeding iremittedl ;_e .l Tribunal for fresh consici.e1=aVtionll.'~._ l'l'herea1i'ter.,.._,, tlfiie ii proceedings were transferred-..,_ to itiiegl Deputy Commissioner, Bangalore ; D'ist2jict_, Bangalore, the autl,ioritjI;" "In.alrt1"s Abolition Act", for consideration'.p 'I'h_e' Asaidnalutliority having noticed the lands sin ,<TK1esti,0'n~st.ood. vested in the State on Wq_4il3..1p.iI€l5§'i:'thie__dateHoflcoming into force the amended prov'iisioinsfof the" "Inarns Abolition Act", and notified, _duriri'g l.965iA«:""by the State in the list of properties it it it the Wakf Board, observed that a Wakf once _l_jcr"eated, continues to be, as such and the properties of A withei Walif governed by the Wakf Act, 1995, more A4 A. appropriately in View of Sec.6 of the said Act, held that the authority did not have the jurisdiction to deal with M the applications and accordingiy, by order dated 6.10.2000 AnneXure~»~E transferred the proceedin«g's--ii_'to"'*._ the respective jurisdictional Tribunals A ' under the Wakf Act, for conside1"fation.--'_4i writ petition.
2. The petition is netpopptoseh-di istateznent of objections of the respiondentsiiiiffhepiisttii.respondent is the Secretary of 2 and 3, are Rural District, Bangalore iiii Iiarnataka, the 4th respondent "is of Anjuman-e-
HamiY?1thu11aii"is1a;rn'§' .i'Re.s.pondent-5 claims to have i§{pp1£;cationviiiifor grant of occupancy rights and be a person interested in a certain 0 00 _immo"v.ea'bf1e -property, subject matter of the appiications 0 it " ' for gzfant occupancy rights.
3. Learned counsel for the petitioners submits it "that the Eands in question were Devadaya Inam faliing within the definition of the term 'Inam' under the QW Inams Abolition Act,1959 and as on 13.1.1959 stood vested in the State, as a consequence of which,~:.f'in:"*.,, terms of Sec.3 of the Act, entitled the petitionerfshito V' claim occupancy rights by filing necessary According to the learned counsel, the :"puzhlica't_ior:.,o«f list of Wakfs, in the year 19i65:,e:"byincluding:"the,:lands in question, in accordance 'thjeflvtlakf «'hAct,"VE1954, declaring that the said piepeitieei the Wakf, did not take aweayiorf 'derl.ud,e the petitioner's to claim to the vesting in the iihtleiflhthe lhems Abolition Act, 1955'; hastens to add that the lnams;'Abolition' 'Act, does not exclude from *.l_Zh€ arlrllications for grant of occupancy Act, in respect of property belong to the W'akt'«i"'Board, While under the Wald Act, the fl'---Trih1.1na1"constituted under Sec.83 does not invest a .'_eju°1?iVsdiction to consider grant of occupancy rights under T itjthei mains Abolition Act, 1955, and therefore the Eeputy Commissioner fell in serious error in holding 4 rli the applications as not maintainable, for lack of jurisdiction.
4. Per contra, Smt Anurad_~h;a,'--1.earned4ii"counsei. for the 1st respondent--Wakf Boardig that the Wakf Board too filedVanipiigappliicationfor "of occupancy rights under 'Act',7§1955, in respect of certain' ji{i'op.ertYa being agricultural iof.yp_r:opierties notified during 1965;" that by itself did not ' the constituted under Sec.83 utlrie ' 9 having jurisdiction, to consid_er..+_he izior grant of occupancy rights. Eéblliisel out to Secs.6 and 83 of the cfontend that any dispute in respect of the rhatters-concerning wakf properties must be by the Tribunal constituted under the 'Act. Learned counsel hastens to add that on the i --ii..:'d'edication of the property as a Wakf, any legal ii "encumbrance on that property ought to be proceeded by an authorization of the Wakf Board, on and after il"§ coming into force of 1954 Act and being a pure question of fact requires determination by the Tribunal. Learned counsel further contends that the publication in the Official Gazette of the list of the prepertiee including the properties in question in the . invoking the provisions of the ll Commissioner, the authority undef':.the:_'£nVa1ns Act, was denuded power it the" to adjfidicate upon cla.i1I1,=.Inad¢'t"'"iiiflll'7¢SPé¢t'vv.Df,..v'§th0S€ properties and therefore, the A. _ we . Commissioner was a finding that the applications "for'grar1't.iiiof..:oc.cupancy rights under the Inarns 51-'.bpolitlionVAct', 1.955: in respect of Wakf property rightly so, transferred the pr'ocoedi11-,<,v,fs«.tio Wakf Tribunal, for consideration. A. Learned counsel for respondents No.5 and 6 no submission. Learned Addl,. Govt. Advocate A --«l..:for° State is unable to answer a pointed question of this court as to whether after the vesting of the lands in question, as on 13.12.1959, under the Inams Abolition Act, 1955, the petitioners' rights, to claim occupancy___of the properties in question, as consequence of ve«sti.n'g,"'*.,' was extinguished, and the Deputy Comiiiiss.iio'1i:e'1~ii-- denuded of his jurisdiction -,eonf,sid_ei>7Z,r, such. applications, after the publicationnifiof 'dof, properties of Wakf in the' "the provisions of the Wakf Ac.t,l954? ._
6. There being no lands in question stood vested in""'tne, 13.12.1959 under the Aldolitio11:--_'Act, and consequence, invested rights and protected tenant,i;,--,., to be riegisterediwas occupants of the lands on conditi.ons. lnam Abolition Act does not excluideii 'its-«.,Vap.Tp1i--cation to registration of occupancies V it _upon"'iands' belonging to the Wakf institutions. .. . 'Section 4 of the Wakf Act, 1954 provides for survey of the Wakf which includes holding enquiry by Way of local inspection, local h investigation and following such procedure as irk 10 mentioned therein, leading to the publication of list,_of Wakfs under Sec.'5 of the Wakf Act. It is dispute that the lands in question are Wakf A V' as mentioned in the iist notified_~'"in*--.thei_4 Section 6 of the Wakf Act 1995 Act, 1954 provides for determination' regarding a Wakf, rnore approp'riate1_V}.._on questions as
- to whether a particular' as the property in the or not, so also sunni Wakf, by the ziiiidézéiii Sec.83 of the Wakf Act. Front "ad of Section 83 what is discernable thiAa't~~fhei'-Tribunals jurisdiction does not enc.orripass' adetermination of disputes over registration of'- arising pursuant to the vesting of the agtricuituraii lands under the Inams Abolition Act. ii"8.'i The import of the publication of the list of it ii.gp'ro'perties under Sec.5 of the Wakf Act, 1954 is that the said properties belong to the Wakf institution and does not extinguish the earlier vesting of the Inamis in W9 (J 11 the State under the Inams Abolition Act. It follows, therefore, that the publication of the list of prope'rti_'es"--.,' in the year 1965 invoking Sec.5 of the Wakf Act, . the State did" not intend to extinguish tenants to claim registration of occuparicies, c'o,nsequ'e.rit.. upon the vesting of the under Abolition Act.
9. The properties under the jurisdiction to considerfll llll lithe petitioners for registratioraiof the Inams Abolition Act, stood vested 'wiith.l'thie. Deputy Commissioner. . _ in is' no doubt true that once a Wakf is always by the Apex Court in Sayyed Ali A _vs. Andhra' Firadesh Wakf Board, Hyderabad, reported AIR 1i9'9i3 SC 972. The question for decision making sin'-Sayy'e<i Aii's case, relate to the power of the Tahsildar A .il_4'to~'adjudicate upon the controversy as to Whether a it .4 iparticuiar immovable property was a Wakf property. § } lrk 12 That question does not arise for consideration in this case. In that View of the matter, the Deputy Commissioner misdirected himself in V. said observation to conclude that he has no jtirisdictionri, T' and hence the applications were not maintaé_na_'p'1e:,'*so,__as__ to transfer the applications, to the 1 V consideration.
In my considered opiri_ion',fit1i1e 'iorderivviriopugned is iilegai and callfor it hi%herasah;.fh¢%§ajtpeaaon a;anoumdi The order dated' " _6£§~; 2000, Annexure-E is the'--vpr_o_ceeding remitted to the Deputy ":Com'1'nission.er_"for consideration afresh and to pass ordersiaiistrictiy in accordance with law, in any event period of 3 months from the date of receipt of af'certifi:ed copy of this order.
Sdlfi Iudge