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1996 DIGILAW 546 (KAR)

KARNATAKA BOARD OF WAKFS v. STATE OF KARNATAKA

1996-09-11

CHIDANANDA ULLAL

body1996
CHIDANANDA ULLAL, J. ( 1 ) THE instant petition is registered when case records in l. r. a. No. 64 of 1988 were received from the authorities consequent to the abolition of the land reforms appellate authority, tumkur, on the filing of civil petition No. 363 of 1990 for that purpose and further to treat the appeal as writ petition. Hence, what is before this court is the appeal in l. r. a. No. 64 of 1988 in the form of a writ petition. ( 2 ) I heard the learned counsel for the Petitioner Sri Basavaraj V. Sabarad and The Learned High Court government pleader Sri S. S. Guttal for the respondents 1 and 2 and the learned counsel Sri K. R. Balakrishna for the respondent 3. ( 3 ) THE petitioner herein had filed originally appeal No. 64 of 1988 to challenge the rejection of the claim of the petitioner for grant of occupancy right in respect of lands in survey nos. 14/3, 14/5, 14/8 and 14/9 of ashur khan (bobayyana gudi) in passing the Order dated 8-6-1988 of the respondent 2-land tribunal, tumkur. ( 4 ) THE brief facts of the case are as follows: the petitioner and respondents 3 and 4 had applied for grant of occupancy rights in respect of the lands in form No. 1 under Section 5 of Karnataka certain inams abolition Act, 1977. During the course of enquiry, the respondent 3 had given up his claim, whereas the petitioner on the one side and the respondent 4 on the other asserted their respective claims. They also adduced their side of the evidence in support of their respective claim. ( 5 ) THE respondent 2-land tribunal having heard the parties and on appreciation of evidence on record passed a considered Order dated 8-6-1988 now under challenge in the instant writ petition whereby the tribunal had rejected the claim of the applicant as well as the claim of the respondent 4 for grant of occupancy right. It is the said Order dated 8-6-1988 now under challenge in the instant writ petition. It is the said Order dated 8-6-1988 now under challenge in the instant writ petition. ( 6 ) THE learned counsel for the Petitioner Sri Basavaraj V. Sabarad that the Land Tribunal Rejected the claim of the petitioner illegally mainly on the ground that the petitioner failed to show the basis on which the lands in the case are included in the gazette notification as the ones belonging to the petitioner-wakf board. It is his argument that the gazette notification is conclusive proof of the ownership of the subject lands in the case, as owned by the petitioner-wakf board and that it is not open for the land tribunal to dispute that legal position. He had also cited before me two decisions in support of his argument. They are: (i) The Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others and (ii) Karnataka Board of Wakfs v. Hazrath Attulla Shah Dhargah, Bangalore and others. The said decisions are to the point that the persons claiming right as against the properties notified in the gazette notification as the one belonging to the wakf board has to challenge the same in a declaratory suit before a civil court, well in time under Section 6 (2) of the Wakf Act. ( 7 ) THEREFORE, the submission of the learned counsel for the petitioner is that the subject lands in survey numbers in question of biddihalli village, belonged to the petitioner and they are entitled to be registered under sub-section (3) of Section 5 of the Karnataka certain inams abolition Act, 1977 and therefore he prayed that the impugned Order be quashed and the matter be remanded to the land tribunal with a direction to grant the occupancy right to the petitioner-wakf board. ( 8 ) THE learned government pleader mainly supported the Order passed by the land tribunal. ( 9 ) HAVING heard both sides, the point that arises for my consideration is whether the impugned Order passed by the respondent 2-land tribunal, tumkur, now under challenge is sustainable or not. ( 10 ) AT the outset, it is to be mentioned here that the respondent 2-land tribunal had not treated the claim of the petitioner as one of the claimants as that of the claims of the respondents 3 and 4 herein. ( 10 ) AT the outset, it is to be mentioned here that the respondent 2-land tribunal had not treated the claim of the petitioner as one of the claimants as that of the claims of the respondents 3 and 4 herein. On perusal of the Order, it appears to me that the land tribunal had treated the respondents 3 and 4 as the applicants and the petitioner herein as the opponent as if the case is one under Section 48-a of the land reforms act. To advert to the operative portion of the impugned Order, the same reads as follows: ( 11 ) FROM the above, it is not clear whether the claim of the petitioner for grant of occupancy right was rejected by the land tribunal or not, but by reading the Order as a whole, it can be gathered that the tribunal did reject the claim of the petitioner on the ground that the petitioner failed to prove the basis on which the subject properties were notified in the gazette as the one belonging to it. On going through the records, particularly, the impugned Order, it appears to me that the land tribunal had not properly understood the case of the petitioner and further the law applicable to them. It is necessary for me to reproduce Section 5 of the Karnataka certain inams abolition Act, 1977, under which the petitioner as well as the respondents 3 and 4 had put forth their respective claim by resorting to form No. 1 as contemplated in law. Section 5 of the Karnataka certain inams abolition Act, 1977 reads as follows:"5. Right to be registered as occupants. Save as otherwise provided in this Act, with effect from all or the appointed date, (1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered as an occupant of lands in respect of which he was a tenant immediately before first day of march, 1974. Right to be registered as occupants. Save as otherwise provided in this Act, with effect from all or the appointed date, (1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered as an occupant of lands in respect of which he was a tenant immediately before first day of march, 1974. (2) where the inamdar is an institution of religious worship, a person, (i) rendering religious service in or maintaining the institution as a pujari, archak or the holder of a similar office by whatever name called; or (ii) rendering any service in such institution, and personally cultivating for a continuous period of not less than three years prior to the first day of march, 1974, by contributing his own physical labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money or in kind to that institution in respect of such land, shall be entitled to be registered as an occupant of such land; (3) every inamdar including the holder of a minor inam, shall be entitled to be registered as an occupant of all lands he was personally cultivating immediately before the said date". ( 12 ) FROM the above, it is clear that the claim of the petitioner has to be considered by the respondent 2-land tribunal, tumkur, under sub-section (3) of Section 5 of the said Act, whereas the claim of the respondent 4 has to be considered under sub-section (2) of Section 5 of the said act. In this context, it is to be stated here that sub-section (2) of Section 5 is applicable to the person who is in continuous possession of the land three years prior to 1-3-1974, whereas under sub-section (3) of Section 5, one has to hold the subject land either on 1-3-1974 or prior to that date. The said two sub-sections under Section 5 of the said ACT are provided for therein to meet two different situations as set out therein. The said two sub-sections under Section 5 of the said ACT are provided for therein to meet two different situations as set out therein. ( 13 ) WITH regard to the legal position of the gazette publication of the wakf property, it has to be clarified here that the gazette notification is conclusive proof as to the ownership of the properties of the wakf, unless the same was challenged and decree obtained in a civil suit as contemplated under Section 6 (1) of the said act. In the absence of any declaratory decree thereto, as against the publication of list of wakfs in the gazette notification, the properties listed therein in the list of wakfs is construed in law to be belonging to the wakf. It is nobody's case before the respondent 2-land tribunal that any decree or decrees in a suit/s was/were obtained by anybody. ( 14 ) THAT being the case, it was not open for the land tribunal to doubt the claim of the petitioner that they were not the owners of the subject lands. As a matter of fact, on the face of the gazette notification, the respondent 2-land tribunal would have accepted the contention of the petitioner that the subject land belonged to them. To advert to the decisions cited by the learned counsel for the petitioner in the cases of radha kishan and hazrath attulla shah dhargah, supra, my considered view is that the same are not applicable to the case in hand for the said two decisions are referable to the point of limitation to resort to civil suit under Section 6 (2) of the Wakf Act by a muslim and a non-muslim respectively. Therefore, the said two decisions are not helpful to the petitioner in support of their contention. ( 15 ) TO come back to the correctness or otherwise of the impugned Order passed by the land tribunal, it is to be observed here that the land tribunal had not addressed itself to the issue before it justly and properly while considering the claim of the petitioner on the one side and the respondent 4 on the other. The land tribunal should have considered the claim of the petitioner under sub-section (3) of Section 5 of the Karnataka certain inams abolition Act, 1977, and the claim of the respondent 4 under sub-section (2) of Section 5 of the said act. The land tribunal should have considered the claim of the petitioner under sub-section (3) of Section 5 of the Karnataka certain inams abolition Act, 1977, and the claim of the respondent 4 under sub-section (2) of Section 5 of the said act. ( 16 ) IN that view of the matter, it is just and proper for this court to quash the impugned Order and further to remand the matter to the land tribunal. ( 17 ) IN the result, the impugned Order dated 8-6-1988 in No. Ina. Ulrm. 65, 108 of 1983-84 passed by the respondent 2-land tribunal, tumkur, whereby the tribunal had rejected the claim of the petitioner for grant of occupancy right as claimed by the petitioner in respect of the lands as set out in their form No. 1 filed before the tribunal, is quashed; the matter is remanded to the land tribunal with a direction to hold de novo enquiry in strict compliance of Rule 17 of land reforms rules and to pass a considered Order thereon. ( 18 ) LET the land tribunal hold such an enquiry after is suingnotices to all the parties concerned other than the respondent 3 who had abandoned his claim before the land tribunal, tumkur. ( 19 ) THE writ petition is accordingly allowed. Rule made absolute. ( 20 ) IN view of the above Order, the office is directed to returnthe original records of the tribunal, now on the case file of this court to the land tribunal, tumkur, tumkur district, at the earliest. --- *** --- .