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Karnataka High Court · body

2023 DIGILAW 208 (KAR)

Zabi Ulla Khan v. State of Karnataka

2023-02-02

M.NAGAPRASANNA

body2023
JUDGMENT/ORDER 1. The petitioner in this writ petition seeks a declaration that the act of the 3rd respondent/Karnataka State Board of Auqaf ('the Board' for short) in sealing the premises, where the petitioner was a lessee, to be contrary to Sec. 54 of the Waqf Act, 1995 ('the Act' for short). 2. Sans details, facts in brief are as follows:- The 4th respondent is the Central Majlis-E-Shoora Jamaia Masjid ('the Auqaf' for short) in Kunigal Taluk, Tumkur District. The 4th respondent, in order to lease out shops in the Auqaf properties, issues an advertisement of auction of the properties. The auction was sought to be conducted in six mosques existing in the surrounding area. The petitioner finding himself eligible to be allotted a shop, participated in the auction, becomes successful and was allotted a shop bearing No.A/46 measuring 250 sq.ft. in the said shop properties. Pursuant to the petitioner getting allotted the aforesaid shop, the 4th respondent enters into a lease with the petitioner on 1/1/2022. The rent amount between the two was also determined at Rs.24.00 per sq.ft., which would amount to Rs.10, 500.00 per month, with refundable security deposit of a month's rent was also paid to the 4th respondent. Pursuant to the lease, the petitioner began utilizing the shop and running a provision store in the said shop. 3. On 22/6/2022, the 4th respondent issues a demand notice to the petitioner to pay arrears of rent. It is claimed that the petitioner had no dues to be paid and the demand notice itself was contrary to law. On the allegation that the rents had fallen in arrears of the leased property, the 4th respondent unauthorisedly sealed the premises and dispossessed the petitioner, which forced the petitioner to knock at the doors of this Court in the subject petition, is the averment in the petition. WRIT PETITION NO.15706 of 2022 4. The petitioners in this petition seek similar declaration as is sought in Writ Petition No.15391 of 2022. The facts in this case are similar to the averments made in the said companion petition. The only difference being sole petitioner and sole lessee in the companion petition and in this petition, there are 18 petitioners. The rest of the facts remain the same i.e., execution of lease and the petitioners running their respective business in the shops that were leased to them. 5. The only difference being sole petitioner and sole lessee in the companion petition and in this petition, there are 18 petitioners. The rest of the facts remain the same i.e., execution of lease and the petitioners running their respective business in the shops that were leased to them. 5. Heard Sri A.Mahesh Chowdhary, learned counsel appearing for the petitioners in both the writ petitions; Smt. Shwetha Krishnappa, learned Additional Government advocate for respondent No.1 in both the petitions; Sri M.H.Haneef, learned counsel for respondent No.2 and respondent No.3 is served and unrepresented in W.P.No.15391 of 2022; Smt. Azra J.Dundge, learned counsel appearing for respondent No.2, Smt. Swathi Ashok, learned counsel appearing for respondent No.3 in W.P.No.15706 of 2022; Sri Vikram Huilgol, learned senior counsel appearing for respondent No.4 in both writ petitions and Sri Jayakumar S.Patil, learned senior counsel appearing for impleading applicants in I.A.No.1/2022 in W.P.No.15706 of 2022. 6. In this petition, an impleading application - I.A.No.1/2022 is filed by six applicants, who claim to be in possession of certain leased premises from the hands of the 4th respondent. The need for permitting the impleading applicants did not arise, as the matter itself was heard for its disposal. 7. The learned senior counsel appearing for the impleading applicants was permitted to make submissions rendering assistance to the Court. 8. I have given my anxious consideration to the submissions made by the learned senior counsel and other respective learned counsel and have perused the material on record. 9. A little history to the claim of impleading applicants is required to be noticed. The impleading applicants were leased out certain shops in the precincts of the 4th respondent/Auqaf. The competent authority demolished certain shops for the purpose of road-widening and after re-construction of shops, when the impleading applicants were sought to be evicted from the Auqaf property, they have approached the Waqf Tribunal in O.S.Nos.12 of 2021 and 24 of 2022, seeking relief of mandatory injunction against the 4th respondent/Auqaf in which, the Tribunal had passed an interim order to keep one shop reserved each in favour of 6 impleading applicants. Therefore, six shops are to be kept reserved in terms of the order of the Tribunal to those six impleading applicants. It is the allegation of the impleading applicants that the petitioners have entered into a lease with the 4th respondent contrary to law. 10. Therefore, six shops are to be kept reserved in terms of the order of the Tribunal to those six impleading applicants. It is the allegation of the impleading applicants that the petitioners have entered into a lease with the 4th respondent contrary to law. 10. The learned counsel appearing for the petitioners would contend that leases that were entered into with them were not contrary but by an act of the 4th respondent. Believing that the 4th respondent had authority to notify the premises for auction, applied, were selected, entered into lease agreements with the petitioners and the petitioners were in occupation of the said premises. The learned counsel would submit that the petitioners in both these cases, who were in possession of leased shops were not aware of any controversy pending between the 4th respondent and the Board and, therefore, had challenged the action of the Board in evicting the petitioners before this Court. He would contend that even if an interim order is granted by the Tribunal, only six shops are directed to be reserved for those impleading applicants, who are before this Court. It is his submission that other shops should be continued to be operated by the petitioners. 11. The learned senior counsel representing the impleading applicants would contend that the petitioners on the strength of the interim order have got those shops back to them, which were directed to be kept vacant or reserved in favour of the impleading applicants and, therefore, they have no right to hold on to the said shops. 12. The learned senior counsel appearing for the 4th respondent - Auqaf would seek to contend that the impleading applicants are already before the Tribunal and it is for the Tribunal to decide the issue and the petitioners have no right to knock at the doors of this Court for lease of Auqaf property. There is no connection with the other two petitions, which were heard and reserved by this Court. 13. There is no connection with the other two petitions, which were heard and reserved by this Court. 13. In the light of the aforesaid manifold submissions and the disputed questions of fact as to whether the impleading applicants were leased out shops pursuant to construction post and road widening, the proceedings are initiated by the impleading applicants before the Waqf Tribunal in O.S.Nos.12 of 2021 and 24 of 2022 and it is not in dispute that in favour of those plaintiffs before the Tribunal, the Tribunal has granted an interim order for reserving a shop each for the plaintiffs before it, which included the impleading applicants. Therefore, it is for the petitioners to get themselves impleaded into those proceedings before the Tribunal as the issue whether the Auqaf property being rented out or otherwise, cannot become a subject matter of the writ jurisdiction under Article 226 of the Constitution of India. In the light of the Tribunal having complete jurisdiction to consider every aspect of all questions of fact and law unless the action being without jurisdiction under Sec. 83 of the Act. 14. Sec. 83 of the Act reads as follows: "83. Constitution of Tribunals, etc..--(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. (2) Any mutawalli person interested in a waqf or any other person aggrieved by an order made under this Act, or rules made there under, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf. (3) Where any application made under sub-sec. (3) Where any application made under sub-sec. (1) relates to any waqf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the waqf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter: Provided that the State Government may, if it is of opinion that it is expedient in the interest of the waqf or any other person interested in the waqf or the waqf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such waqf or waqf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh. (4) Every Tribunal shall consist of-- (a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman; (b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member; (c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation. (4-A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed. (5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. (5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. 6) Notwithstanding anything contained in the Code of Civil Procedure 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed. (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court. (8) The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908). (9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit." (Emphasis supplied) The Tribunals are constituted in terms of Sec. 83 of the Act, for redressal of grievance of Mutawalli or the Committee of Management as defined under Sec. 3 of the Act. The allegation in the case at hand is concerning action of the Board to be contrary to Sec. 54 of the Act. Sec. 54 of the Act reads as follows: "54. The allegation in the case at hand is concerning action of the Board to be contrary to Sec. 54 of the Act. Sec. 54 of the Act reads as follows: "54. Removal of encroachment from waqf property.--(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is waqf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli. (2) The notice referred to in sub-sec. (1) shall be served in such manner as may be prescribed. (3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is waqf property and that there has been an encroachment on any such waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the waqf. (4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property: Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer. (5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-sec. (5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-sec. (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property." Sec. 54 of the Act deals with power of the Board on receiving any complaint or on its own motion to clear off the encroachment of any land of the Waqf property. The very issue whether petitioners were in possession of valid lease in tune with law or the impleading applicants were in possession validly in the eye of law is to be thrashed out only before the Tribunal. 15. The Tribunal is empowered to examine whether the action of removal of encroachment from a Auqaf property is contrary to Sec. 54 or otherwise. The petitioners have to thus agitate their rights in the aforesaid O.S.Nos.12 of 2021 and 24 of 2022, pending before the Tribunal or institute independent proceedings only before the Tribunal. Since interim orders are operating in the cases at hand right from the date on which the petitions were filed and on the strength of the interim order, the petitioners should be put back in possession, I deem it appropriate to reserve liberty to the petitioners to approach the Tribunal within 15 days from the date of receipt of a copy of this order and the interim order operating as on date shall continue only for those 15 days. 16. It is for the petitioners to seek appropriate orders from the Tribunal before the said period of fifteen days. All contentions of all the parties to the lis including that of the impleading applicants shall remain open to be agitated before the Tribunal. 17. The pendency of the proceedings before the Tribunal will not come in the way of the Board allotting shops to the petitioners, which would all remain subject to the result of the proceedings before the Tribunal. 18. The Writ petitions are disposed of accordingly.