The Commissioner vs Dargah Hazrat Shah Ruknoddin Tola ...
2023 Latest Caselaw 1916 Kant

                           1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 17TH DAY OF MARCH, 2023

                        BEFORE

       THE HON'BLE MR.JUSTICE C.M.POONACHA

     CIVIL REVISION PETITION No.200017 OF 2019

BETWEEN

THE COMMISSIONER
CITY CORPORATION KALABURAGI,
PUBLIC GARDEN MAIN ROAD,
KALABURAGI-585101
                                         ...PETITIONER
(BY SRI GIRISH P S, ADVOCATE)

AND

1.     DARGAH HAZRAT SHAH RUKNODDIN TOLA
       ALIAH REHMA SUNNI VILLAGE PALLAPUR,
       TQ DIST KALABURAGI-585103
       REPRESENTED BY GADDI NASHIN
       AND MUTAWALLI MUHAMMAD ANWAR HUSSAIN
       S/O LATE MUHAMMAD LADLE HUSSAIN

2.     STATE OF KARNATAKA
       REPRESENTED BY THE DEPUTY COMMISSIONER
       KALABURAGI.
       OFFICE OF THE DEPUTY COMMISSIONER
       MINI VIDHAN SOUDHA MAIN ROAD
       KALABURAGI 585102.

3.     THE SECRETARY,
       URBAN DEVELOPMENT DEPARTMENT,
       MUNICIPALITIES AND URBAN
       DEVELOPMENT AUTHORITY
       GOVERNMENT OF SECRETARIAT
       GOVT OF KARNATAKA,
                                 2



      ROOM NO. 435, 4TH FLOOR,
      VIKAS SOUDHA,
      BENGALURU-560001.

4.    THE KARNATAKA STATE BOARD OF AUQAF,
      BY ITS CHEIF EXECUTIVE OFFICER,
      #6, CUNNINGHAM ROAD,
      "DAR-UL-AUQAF"
      BENGALURU-560052
                                        ...RESPONDENTS
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE FOR R4
    SRI SHARANABASAPPA M PATIL, HCGP FOR R2, R3
    NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

     THIS CRP IS FILED U/S.115 OF THE CPC, PRAYING TO
SET ASIDE ORDER DATED-14.12.2018 PASSED ON I.A.NO.3 AS
PER ANNEXURE-A IN O.S.NO.10/2018 ON THE FILE OF
PRESIDING   OFFICER    KARNATAKA    WAQF.    TRIBUNAL,
KALABURAGI DIVISION KALABURAGI AND ETC.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR   ORDERS    ON   07.02.2023, COMING  ON   FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-
                         ORDER

The present Revision Petition is filed under Section

115 of the Code of Civil Procedure, 1908 (for short 'CPC')

by the third Defendant challenging the order dated

14.12.2018 passed on IA.3 in OS No.10/2018 on the file of

the Presiding Officer, Karnataka Wakf Tribunal, Kalaburagi

Division, Kalaburagi (for short 'Wakf Tribunal'),

whereunder the application filed by the third Defendant

under Order VII Rule 11(d) of the CPC was rejected.

2. For the sake of convenience, the parties will be

referred to as per their rank before the Wakf Tribunal.

3. The Respondent No.1 - Plaintiff filed a suit for

possession in OS No.10/2018 before the Wakf Tribunal.

The Petitioner who was arrayed as the third Defendant

entered appearance in the said suit and contested the

same. The third Defendant filed IA.3 under Order VII Rule

11(d) read with Section 151 of the CPC for rejection of the

plaint. The Plaintiff filed objections to the said IA. The

Wakf Tribunal, vide its order dated 14.12.2018, dismissed

the said application. Being aggrieved, the present Revision

Petition is filed.

4. The learned Counsel for the Petitioner/third

Defendant has putforth the following arguments:

i) that the notice issued by the Plaintiff under

Section 80 of the CPC will not tantamount to compliance of

Section 482 of the Karnataka Municipal Corporations Act,

1976 (for short 'KMC Act');

ii) KMC Act being a special law, which is

subsequently enacted, having regard to Article 254(2) of

the Constitution of India, the provisions of the said Act will

be required to be complied with;

In support of his contentions, the learned Counsel

relied upon the judgment of the Hon'ble Supreme Court in

the case of Jaycee Housing Private Ltd., v. Registrar

(General), Orissa High Court, Cuttak1 .

5. Per contra, learned Counsel for Respondent

No.4 and the learned High Court Government Pleader for

Respondent Nos.2 and 3 justifies the order passed by the

Wakf Tribunal.

6. I have considered the submissions made by

the learned Counsel appearing for the parties and perused

the material available on record. The question that arises

for consideration is, 'Whether the order dated 14.12.2018

(2023) 1 SCC 549

passed by the Wakf Tribunal is liable to be interfered with

in this Revision Petition?"

7. The Plaintiff has filed the suit for

possession, inter alia, contending that the suit land is wakf

land of the Plaintiff and it is entitled to hold, occupy and

enjoy all the benefits of the said land. Admittedly, before

filing the suit, the Plaintiff has issued notice under Section

80 of the CPC. The third Dependent has filed IA.3 under

Order VII Rule 11(d) of the CPC to reject the plaint in

respect of the said defendant since the Plaintiff has not

issued a statutory notice under Section 482 of the KMC Act

and under Section 178A of the Act the jurisdiction to

decide any claim by or against the Corporation relating to

properties vests with the Regional Commissioner. The said

application was opposed by the Plaintiff by filing statement

of objections.

8. The Trial Court, while considering IA.3

noticed that Section 482 of the KMC Act is in pari materia

with Section 80 of the CPC and since the Plaintiff has

issued notice under Section 80 of the CPC, rejected the

contention of the third Defendant regarding issuance of

notice. The Trial Court, further noticing that the suit is one

for possession, held that question arising in the suit cannot

be decided by the Regional Commissioner under Section

178A of the KMC Act and rejected the contention of the

third Defendant, consequently rejected IA.3.

9. Section 482 of the KMC Act contemplates

that no suit is to be instituted until the expiry of 60 days

after the notice has been issued. Under Section 80 of the

CPC, no suit is required to be instituted until the expiry of

2 months after issuance of the notice. The purpose behind

issuance of such statutory notice is so that, no ex parte

order is passed without the statutory authority/State being

duly notified of the proceedings. Having regard to the fact

that the third Defendant has been issued with the notice

under Section 80 of the CPC, it can be deemed that the

third Defendant has been sufficiently notified of the

proceedings that the Plaintiff sought to institute.

10. The contention of the learned Counsel for

the Petitioner/third Defendant that having regard to Article

254(2) of the Constitution of India, Section 482 of the

KMC Act is mandatorily required to be followed

notwithstanding the fact that a notice under Section 80 of

the CPC has been issued by the Plaintiff since the KMC Act

is a Special law, is liable to be rejected inasmuch as,

Article 254(2) of the Constitution of India stipulates that if,

the law made by the State in respect of any of the matter

enumerated in the Concurrent List contains a provision

repugnant to the provisions of an earlier law made by the

Parliament then, the law made by the State shall prevail.

Here, it is to be noticed that there is no contradiction

between Section 80 of the CPC and Section 482 of the KMC

Act. Hence, question of repugnancy does not arise and the

said contention of the learned Counsel for the

Petitioner/third Defendant is liable to be rejected.

11. The judgement in the case of Jaycee

Housing Private Ltd., (supra) will not aid the case of the

Petitioner, inasmuch as, in the said case the Hon'ble

Supreme Court was considering a question regarding

conflict between the provisions of the Arbitration and

Conciliation Act, 1996 and the Commercial Courts Act,

2015 and in the said context held that later law will prevail

in view of the presumption that the legislature was

conscious of the provisions of a prior legislation. The same

is wholly inapplicable to the facts of the present case since

there is no conflict between Section 80 of the CPC and

Section 482 of the KMC Act.

12. The contention of the Petitioner that the

Plaintiff ought to have approached the Regional

Commissioner under Section 178A of the KMC Act, is also

liable to be rejected since the Plaintiff is seeking

possession of the suit land contending that it is entitled to

hold, occupy and enjoy the benefits of the suit land. As

rightly held by the Trial Court, the said question cannot be

decided by the Regional Commissioner under Section 178A

of the KMC Act.

13. The Trial Court, after considering all aspects

of the matter has, rightly rejected the application filed by

the Petitioner.

14. No ground is made out by the Petitioner to

demonstrate that the order has been passed by the Trial

Court by exercising a jurisdiction not vested in it or failed

to have exercised jurisdiction so vested or has exercised

jurisdiction illegally or with material irregularity. In the

absence of the same, no ground is made out to warrant

interference with the order passed by the Trial Court.

Accordingly, the question framed for consideration is

answered in the negative.

15. Hence, this Revision Petition is dismissed as

being devoid of merits.

No costs.

SD/-

JUDGE

nd