Karnataka High Court
Mohammed Galib Pasha vs The Competent Officer Ors on 23 January, 2013
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 23RD DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
WRIT PETITION NO.83866/2011 & 84152/2011(GM-CPC)
BETWEEN:
Mohammed Galib Pasha
S/o Abdul Kareem Sab,
Age: 52 years,
Occ: Business,
R/o H.No.1-65/8,
Yateem Khana Quarters,
Behind Hotel Pariwar,
Aiwan-E-Shahi Road,
Gulbarga.
.. PETITIONER
(By Sri: N. Krishnacharya, Advocate)
AND
1. The Competent Officer
Karnataka Board of Wakf,
Cunningham Road,
Bangalore-52.
2. The Muslim Orphange (Sunni)
Also know as Yateem Khana,
Anjuman-E-Ansarusuffa Doddapur,
Station Road, Gulbarga,
Represented by President of,
2
Its Managing Committee.
3. The District Wakf Advisory Committee
Wakf Officer, Gulbarga.
4. The Administrator
Muslim Orphange Yateem Khana,
Anjuman-E-Ansarusuffa (Sunni),
Station Road, Gulbarga,
(MR. Rajnish Goel (IAS,
Mini Vidhan Soudha Gulbarga.
... RESPONDENTS
( By Sri: P.S. Malipatil, Adv for R1&2,
Shri Ameet Kumar Deshpande Adv for R-4,
R2&5 Server & Un-represented.)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO CALL FOR THE RECORDS AND ORDERS
THE WRIT PETITION BY QUASHING IMPUGNED
ORDER DATED 26.08.2011 PASSED BY THE IV
ADDL.DIST.JUDGE AT GULBARGA AS PER
ANNEXURE-L AND IMPUGNED ORDER OF
COMPETENT OFFICER OF KARNATAKA WAKF BOARD
DATED 21.04.2011 IN FILE NO: PP/225/BNU/2009, AS
PER ANNEXURE-D.
This appeal coming on for Orders this day, the
Court made the following
ORDER
This writ petition is preferred challenging the order passed by the original authority as well as the appellate authority holding that the petitioner is an 3 unauthorised occupant of public premise and therefore, he is liable to evicted from the property in question.
2. The subject matter of this proceedings is residential premise bearing No. 1-65/8 situated at Orphanage premises, with fixtures and fittings and service connections. The said property hereinafter referred as schedule property. The schedule property is a wakf property. The said wakf is registered under Karnataka State Board of wakfs, Bangalore. Therefore, the schedule property is a public premise as defined under section 2(e)(v) of the Karnataka Public Premises Eviction of Unauthorised Occupants Act, 1974, for short hereinafter referred to as "the Act". The Writ petitioner occupied the schedule premises under a contract with the previous management some time during 1995 or earlier for a period of 11 months. The lease is not renewed, in accordance with the provisions of Wakf Act 1995 r/w Rule 53 of the said Rules. The original period of lease has expired and he is in occupation of the 4 premises without authority. He is an unauthorised occupant in terms of section 2(g) of the Act. On 24.10.2009 a notice came to be issued under section 4(1) of the Act calling upon the writ petitioner to show cause on or before 19.11.2009 as to why an order of eviction should not be made against him under sub- section (1) of Section 5 of the Act. The notice was served. The Writ petitioner through his advocate filed a written explanation. In the inquiry sufficient opportunity was given but he did not participate. Therefore, the competent authority proceeded to pass an order of eviction treating the writ petitioner as an unauthorised occupant by order dated 21.04.2011.
3. After the said order, the writ petitioner has preferred an appeal before the District court invoking section 10 of the Act. The appellate authority on considering the rival contentions and also taking note of the admission of the writ petitioner in the suit filed in O.S.No. 403/2009 came to the conclusion that the writ 5 petitioner is an unauthorised occupant. He is continuing in possession of the schedule property without authority of law and therefore, he is liable to be evicted. Accordingly the appeal came to be dismissed.
4. Aggrieved by the said order, the present writ petition is filed.
5. The learned counsel for the petitioner assailing the impugned order contended that the writ petitioner has paid more rent than what he was due. He is not in arrears of rent. It is on the ground of non payment of rent, this petition came to be filed and therefore, the impugned order passed is illegal and requires to be set aside. Secondly, it is contended that in the earlier proceedings it was categorically held that the Wakf board has to approach the civil court for eviction. Therefore the proceedings initiated under the Act is not maintainable and therefore, orders passed under the Act are illegal and requires to be set aside. Thirdly it is contended that the Writ petitioner is paying 6 rents regularly. Therefore, he cannot be construed as an unauthorised occupant, when rent are received regularly. Therefore, he submitted that for the aforesaid reasons, impugned order required to be set aside. He relied on judgement of Apex Court in the case of Ramesh Gobindram(dead) through his LRs vs. Sugra Humayun Mirza Wakf, reported in 2010 (4) SC 3343, where Apex Court held that the Tribunal constituted under the Wakf has no jurisdiction to pass an order of eviction against tenant and it is only civil court has jurisdiction.
6. Per contra the learned counsel for the respondent submitted that in view of inclusion of wakf in the definition of Public Premises under the Act, the Act applies to Wakf properties. Section 16of the Act exclude the jurisdiction of the Civil courts in respect of public premises and therefore, the said judgement of the Apex court has no application in view of the amendment to the Act. Though rent is paid by the writ 7 petitioner that would not make his occupation as authorised one. Admittedly lease is for a period of 11 months. Subsequently, it is not renewed in accordance with Wakf Act. Therefore, though the writ petitioner continues in occupation paying the rent, he is an unauthorised occupant as his occupation is beyond 11 months. Therefore, he submits that impugned order passed by the authorities are legal and valid and no interference is called for.
7. The Karnataka Legislature has passed Public Premises Eviction of Unauthorised Occupants Act 1961 to provide speed remedy for the eviction of unauthorised occupants from public premises. Section 2(e) defines what Public Premises means. In the year 1981 and in the year 1991 by Act No. 28/1981 and 22/1989 a Wakf registered with the Karnataka State of Board of Wakfs was included within the definition of Wakf public premises. Therefore, the said Act is applicable to the property belonging to the Wakf. Section 2(g) of the said 8 Act defines who is the unauthorised occupant. A reading of the definition shows the occupation of public premises without authority for such occupation includes continues in occupation by any person of the public premises after the authority and under which he was allotted has expired is unauthorised occupation. Then section 16 of the Act provides that no courts shall have jurisdiction to entertain any suit or proceedings in respect of the eviction of any person who is an unathorised occupation of any public premises. The Civil Courts jurisdiction is taken away by the Act, which is a special legislation and therefore, it overrides all other General laws. The material on record discloses that the schedule property is a wakf property. The wakf is registered under Karnataka State of Board of Wakf. Therefore, the schedule property is public premises under the Act. The Writ petitioner was let in possession for a period of 11 months. Thereafter lease is not renewed. Therefore, though he continues to be in occupation of the premises paying rent, his occupation 9 is not authorised. He is an unauthorised occupant. He was called upon to vacate. He did not vacate and therefore, the proceedings are initiated. In view of the above admitted facts, the order passed for his eviction is legal and valid. Merely because he was paying rent or he has paid excess rent would not enable him to continue in possession of public premises after he became unauthorised occupant. In that view of the matter, I do not see any merit in this writ petition. Accordingly the writ petition is dismissed.
8. In view of the dismissal of Writ petition, the application for interim stay is also dismissed.
Sd/-
JUDGE *MK