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2015 DIGILAW 1073 (KAR)

Parveen Omar v. Karnataka State Board of Wakes

2015-09-09

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. The petitioner is before this Court assailing the notice dated 14-8-2012 issued under Section 54 of the Wakf Act, 1995 (`the Act' for short). The same is impugned at Annexure-T to the petition. The petitioner is also assailing the order dated 31-10-2012 and the order dated 18-2-2013 at Annexures-Y and JJ to the petition. 2. The petitioner claims that she is the owner of the property bearing No. 449 New No. 84, Ashoka Road, Mysuru. The manner in which the petitioner has acquired the property has been referred to in the petition viz., having succeeded to the right which was acquired under the gift deed as at Annexure-A. The present proceedings had been initiated against the petitioner since a claim was made stating that the property regarding which the notice had been issued to the petitioner in fact is a wakf property. The petitioner has also obtained revenue documents relating to the property in question to contend that the property regarding which the proceedings under Section 54 of the Act has been initiated is not the property to which the petitioner claims and therefore the entire proceedings initiated against the petitioner is not justified and the interim orders passed therein preventing the enjoyment of the property is also not justified. In that regard, a perusal of the notice dated 14-8-2012 issued to the petitioner would disclose that the allegation made therein is that the petitioner has encroached the wakf land in Khatha Nos. 449/1, CTS1541 and 1542 of Lashkar Mohalla. It is indicated that the said property is notified as wakf property belonging to Khasim Sarai (Sunni), Mysuru. 3. The petitioner has appeared and filed the objection statement contending that the property bearing No. 449 is different from the property bearing No. 449/1 and therefore in the guise of the proceeding in relation to the property bearing No. 449/1, the right of the petitioner to enjoy the property? bearing No. 449 cannot be prevented. The Enquiry Officer under Section 54 of the Act at this point has arrived at a prima facie conclusion that the claim as put forth by the petitioner cannot be accepted only based on a communication dated 25-7-2008 on which reliance has been placed by the petitioner to claim that the property bearing No. 449 is not a wakf property. 4. 4. What is necessary to be taken note is that the said communication is issued by the first respondent herein. It is no doubt true that a mere communication of the said nature cannot override or take away the effect of the notification where under a property is notified as a wakf property, if it has been thus notified. Even to take into consideration this aspect of the matter, a perusal of the notification, a copy of which is produced at Annexure-F2 would disclose that the property bearing M. No. 449/1 is included as a wakf property in the name of Khasim Sarai (Sunni), Ashoka Road, Mysuru. If in that light, the communication dated 25-7-2008 is kept in view, the same is issued in response to the query made by the petitioner under the Right to Information Act, 2005. The need for seeking for such clarification arose since the petitioner claims to be the owner of the property bearing No. 449 and in that light, a claim according to the petitioner was made against her property in the guise of initiating proceedings relating to the property bearing No. 449/1 belonging to Khasim Sarai (Sunni), Ashoka Road, Mysuru. 5. In that light, if the objection as put forth by the petitioner before the Enquiry Officer, the documents produced along with this petition at Annexures-F1, Q and the Enquiry Register issued by the City Survey Department at Annexure-CC are taken into consideration, certainly it would indicate a serious dispute to the extent of noticing that there are references to two different properties indicated in different names and containing two numbers viz., 449/1 and 449 separately. 6. If that be the position, the contention as raised by the petitioner before the Enquiry Officer that the property owned and being enjoyed by the petitioner is not the property bearing No. 449/1 which is notified as the wakf property needs consideration in appropriate proceedings. The said issue would have to be resolved before a conclusion is reached as to whether the petitioner without there being another property numbered as 449 is in fact in possession of the notified wakf property bearing No. 449/1 as an encroacher or whether the petitioner is being wrongly proceeded against. The said issue would have to be resolved before a conclusion is reached as to whether the petitioner without there being another property numbered as 449 is in fact in possession of the notified wakf property bearing No. 449/1 as an encroacher or whether the petitioner is being wrongly proceeded against. At present, taking note of the documents which have been referred to above and also taking into consideration the scope of the proceedings under Section 54 of the Act and in the said proceedings, the conclusion to be reached by the Enquiry Officer would be prima facie conclusion, the matter would have to be referred to the Tribunal, if such conclusion reached therein is that the person against whom the proceedings initiated is an encroacher and is to be evicted. To that extent, the fact that while disposing of the injunction application, the Enquiry Officer has already arrived at a prima facie conclusion that the case as put forth by the petitioner cannot be accepted cannot be lost sight. 7. Hence, in my opinion, when such serious dispute relating to the very identity of the property and the ownership thereof is also to be decided, it would have to be construed as a dispute arising for resolution in the manner provided under Section 6 of the Act which is to be resolved by the Tribunal. In such situation, it would be appropriate to direct the Enquiry Officer at this stage itself to terminate and transfer the entire proceedings to the Tribunal for a conclusive decision in that regard to be made by the Tribunal. In order to issue necessary directions in that regard, I have also kept in view the provision contained in Section 6 of the Act. As pointed out by the learned Counsel for the respondents, the person who claims right in respect of the property no doubt would have to approach the Tribunal seeking declaration thereof and therefore the learned Counsel for the first respondent contends that even if such declaration is to be made by the Tribunal, it is for the petitioner herein to be the plaintiff and to establish her case before the Tribunal seeking for a declaration that she has a right in respect of the properly. 8. 8. Though in a normal circumstance, this Court would have acceded to the contention put forth by the learned Counsel for the first respondent, a perusal of the provision contained in Section 6 would disclose that the decision to be taken by the Tribunal is also in relation to a dispute, if any as to whether a particular property specified as wakf property in the list is a wakf property or not? If the scope of such consideration is kept in view and the facts in the instant case is taken into consideration, even though the petitioner may not dispute that the property bearing No. 449/1 is notified as wakf property, when the petitioner contends that the property belonging to her bearing No. 449 is a different property from the one that has been notified, but she is being wrongly proceeded against and in that light, when the proceedings under Section 54 had been initiated before the Enquiry Officer of the Board at the behest of Khasim Sarai (Sunni), Ashoka Road, Mysuru and in that light, when the property bearing No. 449/1 is claimed as the wakf property, the said Khasim Sarai (Sunni), Ashoka Road, Mysuru, would be treated as the plaintiff to the referred proceedings and they may be granted an opportunity of filing an appropriate plaint to which the petitioner as a defendant may file her written statement and thereafter a conclusion be reached by the Tribunal with regard to the identity and the exact property which is to constitute the notified property and if the property as claimed by the petitioner is different from the notified property. 9. In the above background, the need to quash the notice or the impugned orders at this stage would not arise since in view of this order, the proceedings under Section 54 before the Enquiry Officer shall stand terminated and be transferred to the Tribunal. The Enquiry Officer shall therefore transfer the same in the manner as indicated above within three weeks from the date on which a copy of this order is furnished. The parties are granted the liberty of filing appropriate applications before the Tribunal for any interim orders in the matter. In terms of the above, the petition stands disposed of.