Wakf Committee Maszid Maniharon, Jaipur v. District Judge, Jaipur
1996-12-17
V.K.SINGHAL
body1996
DigiLaw.ai
Honble SINGHAL, J. – This writ petition has been filed against the order of the District Judge, Jaipur City, Jaipur dated 24th January 1991. The dispute is in respect of two shops situated at Sanganer for which the proceedings under the Rajasthan Public Premises (Eviction of Un-authorised Occupants) Act, 1964 were taken. (2). One of the disputes relates with regard to the notice. The relevant provisions are contained under Section 4 of the Act which reads as under : ``Issue of notice to show cause against order of eviction – (1) If the Estate Officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted the Estate Officer shall issue in the manner here-in-after provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall – (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of or claim interest in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice being date a not earlier than ten days from the date of issue thereof. (3) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (4) Where the Estate Officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. (3). A notice was sent to the petitioner by registered post on 31.5.1985 that his tenancy is determined w.e.f. 30.6.1985. The said notice was refused to be accepted, thereafter, an application was moved to the Estate Officer on 31.10.85. The Rajasthan Wakf Board constituted a committee on 22.10.1984 for management and supervision of Wakf property.
(3). A notice was sent to the petitioner by registered post on 31.5.1985 that his tenancy is determined w.e.f. 30.6.1985. The said notice was refused to be accepted, thereafter, an application was moved to the Estate Officer on 31.10.85. The Rajasthan Wakf Board constituted a committee on 22.10.1984 for management and supervision of Wakf property. The notice was served on the respondents and they appeared before the Estate Officer on 9.10.1985. It was contended that the property in dispute is not a wakf property and there is no shop having No. 75-76. It was also stated that in the two shops they are carrying on the business since last 33 years and one of their son Ashok Kumar is also having interest on whom the notice has not been served. The shop was rented in 1953 to Yasin Mohd.on payment of Rs. 13/- per month and at present Rs. 30/- is being paid which was collected by Shri Sultan Ahmed on account of Panchayat Maniharan Amer and after the death of Sultan Ahmed money order was sent received back. (4). On the question as to whether the notice should have been issued to Ashok Kumar in accordance with the provisions of Section 4, the learned District Judge found that there was no necessity for issuing a separate notice to hear the learned counsel for the respondents has not been able to point out as to what was his interest in the property and how he has been produced. Ashok Kumar has not appeared in this court. Once the notice has been issued in the name of firm and is served on any of the partners, it is not necessary that an individual partner should be served separately. Object of notice u/s. 4 of the Act of 1964 is that person affected must be made aware of the proceedings proposed to be taken against him. The property is occupied by the firm, service on any one partner is sufficient. (5).
Object of notice u/s. 4 of the Act of 1964 is that person affected must be made aware of the proceedings proposed to be taken against him. The property is occupied by the firm, service on any one partner is sufficient. (5). Learned counsel for the respondents has relied the decision given in the case of Mohan Lal vs. State (1), wherein it was observed by this court that the provisions of Sec. 4 are mandatory and the Estate Officer must first form an opinion that the person against whom eviction proceedings are going on is an un-authorised occupier and the premises from which he is sought to be evicted is to be ter- med as public premises. This decision does not help the respondents because in the present case the notice was issued to the firm and has been served upon it through its partners and, therefore, it cannot be interpreted that every partner should be served . It may also be observed that this contention was rejected by the Estate Officer and has not been agitated by the respondents before this Court by way of writ or otherwise and as such even on this ground this contention cannot be allowed to be raised. (6). The other contention which has been decided by the District Judge against the respondents was that inspite of the fact that the management of the property was given to the petitioner in 1984, the proceedings for eviction could not be taken. In this regard the decision of the Apex Court in the case of Raj Kumar vs. State of Punjab (2), has been relied, wherein it was observed as under : ``A person shall be deemed to be in unauthorised occupation of public premises for purposes of S. 3 (a) where he has, before or after the commencement of the Act, entered into possession `thereof, oth- erwise than under and in pursuance of any allotment, lease or grant. The word `thereof makes it clear that the person must have entered into possession of public premises before or after the commencement of the Act in order that he may be deemed to be in unauthorised occupation.
The word `thereof makes it clear that the person must have entered into possession of public premises before or after the commencement of the Act in order that he may be deemed to be in unauthorised occupation. If the appellants were in possession before the date of the sale of the property to the Government, it could not be said that the appellants entered into possession of public premises, for, at the time when they are in occupation of the property, the property was not public premises. Then it was either the joint family property or the property of the Maharaja, namely, Yadavindra Singh. The property was not public premises before it was sold to the Government. So, if the appellants were in possession of the property before it was sold to the Government, it could not be said that they entered into possession of public premises before or after the commencement of the Act and clause (a) of S. 3 of the Act cannot obviously apply and the appell- ants were not in unauthorised occupation of public premises within the meaning of clause (a) of S. 3. Therefore, the question is, whether the appellants were in possession of the property before it was sold to the Government. In the present case, the said property was of Wakf since time immemorial. The Wakf Act, 1954 came into force on 20.1.1955. The respondents have not disputed that the said property is not a wakf property and as such after the notification of the property in Dec. 1965 the petitioner has the jurisdiction to proceed for eviction of any un-authorised occupants. The facts of the case of Raj Kumar, referred to above, are altogether different. The property was public premise at the time the respon- dents entered into the compromise. The respondent has stated that he has taken the shop from Yaseen Mohammad and in the statement of Devi Narain he has admitted this factual position that the property belongs to Maszid. This objection of the learned counsel for the respondents, therefore, cannot be allowed to be raised now. (7). The District Judge has proceeded on the basis that the notice was not proper and for that purpose it was mentioned that the description of the property is not correctly given in the notice.
This objection of the learned counsel for the respondents, therefore, cannot be allowed to be raised now. (7). The District Judge has proceeded on the basis that the notice was not proper and for that purpose it was mentioned that the description of the property is not correctly given in the notice. The object of the notice is to apprise any person of the proceedings proposed to be taken against him. The notice Annexure 3 issued u/s. 4(1) mentions of the two shops having lane on the Eastern side and Amir Khan while on the Western side the land and the house of Bhanwarji is mentioned on the Northern side Goyal Bazar and on the Southern side lane and house of Dudu is mentioned. It was considered that this description of the notice is not correct. Learned District Judge has come to the conclusion that there is no proper descrip- tion of the two shops. The description which has been given cannot be said to be improper and this is besides the fact that in the reply submitted to the Estate Officer the respondents have admitted that the above shops were taken on rent from Karim Mohd. in the year 1953. Not only that it is further stated that the rent was paid to Sultan Ahmed till he died. There was no incomplete description or confusion in description of the property. Assistance is being taken from the plaint submitted before the Estate Officer by the petitioner wherein in para 1 description was given but it was mentioned as that of Wakf samiti. There was a typing mistake that instead of `Sampatti the word `Samiti was written and on that basis the District Judge found that the description is of Jaipur and not of Sanganer. The reliance was placed on the decision of Delhi High Court reported in 1988 (1) Rent Control Reporter 670 (3), and on Amulya Chandra Sutradhar and Anr. vs. Estate Officer (4), where the description of the property was not given and was given differently than it was.
The reliance was placed on the decision of Delhi High Court reported in 1988 (1) Rent Control Reporter 670 (3), and on Amulya Chandra Sutradhar and Anr. vs. Estate Officer (4), where the description of the property was not given and was given differently than it was. This decision is not applicable to the facts of the present case as not only a complete description has been given but in the reply and statement on behalf of the respon- dents, this factual position is sufficiently established that the description of property was at Sanganer where the property is situated and not Jaipur and on this basis reply was given. Even learned counsel for the petitioner assails that the shop No. 755 and 756 exists in Sanganer. In these circumstances, the finding of the learned District Judge that the description of the property has not been given is factually correct (sic-incorrect). The order dated 24.1.90 is accordingly quashed and the writ petition is allowed.