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2023 DIGILAW 1688 (RAJ)

Kishan Lal v. Istiyak Ahmed

2023-09-06

PUSHPENDRA SINGH BHATI

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JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs: “It is therefore respectfully prayed that the petitioner’s petition may kindly be accepted, the judgments of respondent No. 3 and No. 4 Ex.6 and Ex.7 may kindly be quashed and the whole proceedings initiated by respondent No. 1 and 2 may kindly be held be null and void. The provisions of section 2 (viii) of the Rajasthan Public Premises (Eviction of unauthorised Occupants) Act and the notification dated 20th August, 1976, issued by the Govt. of Rajasthan may kindly be declared unconstitutional.” 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioners, are that the petitioner no. 2 was a tenant in a Wakf known as ‘Dargah Masjid Sindhian and Kabristan’ and paid Rs. 20/- per month as rent to the private respondents no. 1 & 2; later on, petitioner no. 2 handed over the possession of said premises to petitioner no. 1; an application came to be filed by the respondents no. 1 & 2 before the Estate Officer (Sampada Adhikari) City Magistrate, Udaipur (respondent no. 3) against the petitioners no. 1 & 2 for vacating the said premises, as the same had been taken for 11 months and after the expiry of the said period, they were not entitled to remain in occupation of the premises in question. The petitioners filed reply to the said application. 2.1. Thereafter, the learned Estate Officer vide the impugned order dated 05.01.1985 allowed the application of the respondents and held that the petitioners occupation in the premises in question as unauthorized, and directed the petitioners to hand over the possession of the premises in question to the respondents. Being aggrieved, the petitioners preferred an appeal before the learned District Judge, Udaipur, but the same was dismissed vide the impugned order dated 29.10.1985. 3. Learned counsel for the petitioners submitted that the a Wakf is a Trust and according to Section 48 of the Indian Trust Act, 1982, co-trustee cannot act singly, except where an instrument of the Trust, otherwise provides. 3. Learned counsel for the petitioners submitted that the a Wakf is a Trust and according to Section 48 of the Indian Trust Act, 1982, co-trustee cannot act singly, except where an instrument of the Trust, otherwise provides. It was further submitted that according to Section 47 of the Indian Trust Act, 1982, a Trustee cannot delegate his office or any duties either to a co-trustee or to any stranger, unless the instrument of Trust so provides. 3.1. Learned counsel further submitted that the Instesamia Committee had authorized the respondent nos.1 and 2 for seeking vacation of the premises in question, but no cogent evidence was shown by the respondent nos. 1 & 2 to prove such authorization by the Instesamia Committee. Therefore, as per learned counsel, the impugned orders are not justified in law. 3.2. Learned counsel also submitted that the burden of the proving unauthorized occupation of the petitioners over the premises in question lies on the part of the respondent nos. 1 & 2, but the respondent nos. 1 and 2 could not prove the same by producing any cogent evidence on record, and therefore, the impugned orders are not sustainable in the eye of law. 4. On the other hand, the learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions on behalf of the petitioners, submitted that the premises in question is a Wakf property, which has been declared as a public premises and the petitioners were holding the same as tenant. It was further submitted that the notice under Section 4 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as ‘Act of 1964’) issued to the petitioners was received by them on 06.02.1984, and therefore, the entire impugned action was taken after giving proper opportunity of hearing to the petitioners. 4.1. It was further submitted that as per notification dated 22.09.1976 issued under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Wakf properties have been exempted from the purview of the said Act and that the Wakf properties were included in the Act of 1964, and therefore, impugned orders are justified in law. 4.2. It was also submitted that the petitioners were free to prove their case, but they did not adduce any evidence to show that they were in lawful occupation of the premises in question. 4.2. It was also submitted that the petitioners were free to prove their case, but they did not adduce any evidence to show that they were in lawful occupation of the premises in question. It was further submitted that the proceedings under the Act of 1964 are summary in nature, and therefore, it was not mandatory under the law for the learned Estate Officer to frame issues, prior to passing the impugned order. Thus, as per learned counsel, the learned District Judge was also justified in passing the impugned order dismissing the appeal filed by the petitioners against the impugned order passed by the learned Estate Officer. 5. Heard learned counsel for the parties as well as perused the record of the case. 6. This Court observes that the respondent no. 1 & 2 filed an application for termination of the tenancy of the petitioners, before the learned Estate Officer, which was allowed vide the impugned order dated 05.01.1985, holding that the petitioner’s occupation over the premises in question was unauthorized, and thus, directed the petitioners to hand over the possession of the premises in question to the respondents. Being aggrieved, the petitioner preferred an appeal before the District Judge, Udaipur, but the same was dismissed vide the impugned order dated 29.10.1985. 7. This Court further observes that on the previous occasion i.e. on 28.09.1999, the instant petition was allowed by the Hon’ble Single Bench, whereafter the said order was challenged before the Division Bench of this Hon’ble Court by preferring D.B. Civil Appeal No. 1542/1999, whereupon the Hon’ble Division Bench vide order dated 25.02.2004 allowed the said appeal and restored the writ petition its original number; the said order dated 25.02.2004 is reproduced as hereunder: “This special appeal is directed against the order of the learned Single Judge dated 28.9.99 whereby he allowed the writ petition on the short ground that once the suit against the writ petitioners has been dismissed then merely because of the amendment in the Act came into force later-on it would not entitle the respondents to move an application before the City Magistrate for initiating eviction proceedings against the writ petitioners under the provisions of the Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1950. It is submitted by the learned counsel that the suit property is the wakf property and by the government notification it has been excluded from the operation of the Rajasthan Premises (Eviction of Unauthorized Occupants) Act, 1950 as per the notification of the State Government dated 23rd September, 1996. Thus, the only remedy for eviction is under the Unauthorized Occupants Act, 1964. The learned counsel appearing for the respondents has clearly conceded that it is difficult to support the view taken by the learned Single Judge. We are of the view that simply because the suit for eviction was dismissed, the proceedings under the Unauthorized Occupants Act cannot be said to be illegal. In view of this the judgment of the learned Single Judge deserves to be set aside and the matter is required to be remitted to the learned Single Judge for decision in the case on merit. Consequently, the special appeal is allowed. The order of the learned Single Judge dated 28.9.1999 is set aside. Let S.B. Civil Writ Petition No. 2538/85 be restored to its original number for decision by the learned Single Judge on merits in accordance with law.” 8. This Court further observes that the property in question is a wakf property and it was declared as public property by the State Government. This Court also observes that the tenancy of the petitioners stood terminated or expired, resulting into declaration of the petitioners being unauthorised occupants in the premises in question. Therefore, the impugned orders are justified in law. 9. Thus, in light of the aforesaid observations as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present application. 10. Consequently, the present petition is dismissed. All pending applications stand disposed of.