Karnataka High Court
Smt Leelavathamma vs The Enquiry Officer And on 25 October, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No.57883/2015(GM-WAKF)
C/W
WRIT PETITION No.18499/2012 (GM-WAKF)
IN WP No. 57883/2015
BETWEEN:
1 . JAMIA MASJID,
MALUR,
KOLAR DISTRICT 563130.
REP. BY ITS SECRETARY,
SRI. MOHAMMED ZAMEER AHMED,
S/O M. ABDUL WAHAB,
AGED ABOUT 49 YEARS,
...PETITIONER
(BY SRI KALEEMULLAH SHARIFF, ADVOCATE)
AND:
1 . KARNATAKA STATE BOARD OF WAKFS,
"WARUL AWKAF,
No.6, CUNNINGHAM ROAD,
BANGALORE BY ITS
CHIEF EXECUTIVE OFFICER,
2 . CHOTU SAB,
S/O KHUDDUS SAB,
AGED ABOUT 51 YEARS,
R/O CHOKKANDAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT 562130.
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3 . SMT. B LEELAVATHAMMA,
W/O C. B. RUDRAPPA,
AGED ABOUT 42 YEARS,
R/O CHOKKANDAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT 562130.
...RESPONDENTS
(BY SRI VIVEK RAJ, ADVOCATE FOR
SRI P. USMAN, ADVOCATE FOR R1;
R2 SERVED;
SRI M. NARAYANA REDDY, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER IN O.S.No.4/2010 DATED
12.5.2011 VIDE ANNEXURE-E PASSED BY THE LEARNED
MEMBER OF THE WAKF TRIBUNAL, BENGALURU.
IN WP No. 18499/2012
BETWEEN:
1. SMT. LEELAVATHAMMA,
W/O C. B. RUDRAPPA,
D/O BASAPPA,
AGED ABOUT 42 YEARS,
R/AT JODI CHOKKANADAHALLI,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT-563101.
...PETITIONER
(BY SRI M. NARAYANA REDDY, ADVOCATE)
AND:
1. THE ENQUIRY OFFICER AND
ADDITIONAL CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF WAKFS,
"DAR UL AWQAF",
# 6, CUNNINGHAM ROAD,
BANGALORE-52.
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2. MAKAN (SUNNI),
JODI CHOKKANDAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT-563101,
REP. BY ITS MUTHAWALLI.
3. SRI CHOTE SAB,
S/O LATE KUDDUS SAB,
AGED ABOUT 48 YEARS,
R/AT JODI CHOKKANDAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT-563101.
...RESPONDENTS
(BY SRI VIVEK RAJ, ADVOCATE FOR
SRI P. USMAN, ADVOCATE FOR R1;
SRI KALEEMULLAH SHARIFF, ADVOCATE FOR R2;
SMT. GOWHAR UNNISA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 15.5.12, IN CASE
No.ENQ/158/KLR/2011, PASSED BY THE R1 VIDE ANNEXURE-
A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. ORDER
Heard Sri.M. Narayana Reddy, learned advocate for
the petitioner, Sri. Vivek Raj, learned advocate for Sri. P.
Usman, learned advocate for respondent No.1, Sri.
Kaleemullah Shariff, learned advocate for respondent No.2
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and Smt. Gowhar Unnisa, learned advocate for respondent
No.3 in Writ Petition No.18499/2012;
Sri. Kaleemullah Shariff, learned advocate for
petitioner, Sri.Vivek Raj, learned advocate for Sri. P.
Usman, learned advocate for respondent No.1 and Sri. M.
Narayana Reddy, learned advocate for respondent No.3 in
Writ Petition No.57883/2015.
2. Writ Petition No.18499/2012 is preferred challenging
the order dated 15.05.2012 in case No.ENQ/158/KLR/2011
(Annexure-A) passed by respondent No.1-the Enquiry
Officer and Additional Chief Executive Officer, wherein it is
held that the property in question is wakf property and the
petitioner is in unlawful occupation, further direction to
remove the encroachment and hand over vacant
possession.
3. Writ Petition No.57883/2015 is against the judgment
and decree dated 12.05.2011 in O.S. No.4/2010 wherein
the suit for permanent injunction is dismissed.
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4. These two writ petitions arise out of two different
orders, one by the authority and another by the Karnataka
Wakf Tribunal. However, both cases are in relation to the
same property. Hence, both petitions were heard together
and are disposed of by common judgment.
5. The facts and the rank of the parties are referred to
as in Writ Petition No.18499/2012 for convenience.
6. The petitioner claims to be owner of site measuring
30 X 40 feet carved out of Survey No.179 of Jodi
Chokkandahalli village, Kasaba Hobli, Malur Taluk.
7. The case of the petitioner is that Survey No.179,
measuring 5 Acres 22 Guntas, is Government Karab land
and is reflected as such in the revenue records. The Block
Development Officer formed sites in Survey No.179, and
sites were allotted to various persons. The Hakku Patras
were issued in favour of the allottees. The Hakku Patra in
respect of site No.15 was issued in favour of
Chikkaveeranna and possession was also delivered. The
Madiwala Grama Panchayath entered the name of
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Chikkaveeranna and effected katha/mutation in the
panchayath records. Sri.Chikkaveeranna died on
16.04.1985 leaving behind Smt. Nyanamma his sole
daughter as legal representative. The revenue and
mutation entries were changed in favour of Smt.
Nyanamma. Smt. Nyanamma executed registered gift
deed on 20.11.1993 in favour of the petitioner. The katha
and other revenue entries are effected in favour of the
petitioner. The petitioner has constructed a house. It is
stated that the up-to-date taxes are paid in respect of the
property.
8. As evident from the records, O.S. No.194/1989 for
declaration and injunction against 21 persons who are
allottees of sites in Survey No.179, was preferred claiming
to be the property of Karnataka Wakf Board by a person
named Sri. G. Mohammad Anwar. The suit was rejected
for default on 03.03.2001. Misc. No.9/2001 filed to recall
the order also dismissed on 06.07.2002. Subsequently,
Sri.Chote Sab and Sri. Mohammad Anwar - the plaintiff in
O.S. No.194/1989, tried to interfere with the
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construction. The petitioner preferred O.S. No.14/1996
for declaration and permanent injunction. The suit is
decreed on 04.12.2004. The judgment and decree is
further confirmed in R.A. No.147/2008 dated 04.03.2010.
9. Another person by the name of Sri.Syed Ashraf,
claiming to be the Secretary of the Managing Committee
of Jamia Masjid, filed suit in O.S. No.4/2010 before the
Karnataka Wakf Tribunal, Bangalore Division. The Tribunal
by order dated 12.05.2011, dismissed the suit. This order
is subject matter in Writ Petition No.57883/2015 dealt in
this common order.
10. Respondent No.1 initiated suo motu proceedings
under the Wakf Act alleging that the petitioner is in
unlawful occupation of the property in question i.e., site
No.15 measuring 30 X 40 feet. Respondent No.1 held that
the petitioner is in unlawful occupation and, declared the
petitioner as an encroacher on the wakf property and
directed to deliver the vacant possession.
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11. Sri. M. Narayana Reddy, a learned advocate
appearing for the petitioner, submits that the respondents
claim that the property in question as wakf property is
only based on the Notification dated 21.07.1965. There
are no other documents issued by the Government to hold
that the property is wakf property. It is submitted that
the Notification does not conform with Section 4(3) of the
Wakf Act. The notification is not conclusive evidence of
the property being wakf property.
11.1 Learned advocate further inviting the attention of
the Court to the result of three suits in O.S. No.194/1989,
O.S. No.14/1996 and O.S. No.4/2010 submits that the
respondents were unsuccessful in demonstrating that the
property in question is a wakf property. The petitioner is
allottee by the government, has put up construction, and
reside in the said house. The Civil Court, in the above-
referred suits, has categorically held that the petitioner is
the absolute owner. Respondent No.1, invoking the
provisions of the Wakf Act, cannot annul the decree of the
Civil Court.
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11.2 Learned advocate for the petitioner relied on the
judgment of the Apex Court in the case of Salem Muslim
Burial Ground Protection Committee Vs. State of
Tamil Nadu and Others reported in 2023 LiveLaw (SC)
454 to advance the proposition that Notification under the
Wakf Act is not conclusive proof of fact that the land is a
wakf property.
12. Sri. Vivek Raj, learned advocate appearing on behalf
of Sri. P. Usman, learned advocate for respondent No.1
supported the order impugned.
13. Sri. Kaleemullah Shariff, learned advocate appearing
for respondent No.2 would submit that the property in
question is notified as wakf property under Notification
dated 21.07.1965. It is submitted that the judgment and
decree in O.S. No.14/1996 is not binding as respondent
No.2 is not a party to the proceedings. It is further
submitted that the Civil Court in judgment and decree in
O.S. No.4/2010 has held that the property in question is
not wakf property without considering the Notification.
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Further submits that the Notification dated 21.07.1965 is
not challenged by the petitioner. In the absence of such a
challenge, the order of the Tribunal in dismissing the suit
is unsustainable.
14. The contentions of learned advocate for respondent
No.2 are reiterated by Smt. Gowhar Unnisa, learned
advocate appearing for respondent No.3.
15. Considered the submissions of the learned advocate
for the parties and perused the papers.
16. The petitioner claims right, title and interest in the
property through allotment of site by the Block
Development Officer. The land bearing Survey No.179
measuring 5 Acre 22 Guntas is a Government karab land.
The government has formed sites. The Block
Development Officer has allotted the sites. Hakku Patras
to the allottees are issued. Site No.15 is one such site,
formed in Survey No.179 and allotted in favour of
Chikkaveeranna. The revenue entries were accordingly
entered in his name. Sir. Chikkaveeranna died on
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16.04.1985 and the property was succeeded by his
daughter Smt. Nyanamma in whose favour all the revenue
entries were changed. Smt. Nyanamma gifted the
property under a registered Gift deed dated 20.11.1993 in
favour of the petitioner. The katha and other revenue
entries are changed in favour of the petitioner. The
petitioner constructed house and is in possession. It is
also pleaded that the petitioner is paying up-to-date
necessary taxes. The above sequence of events and dates
would trace the right, title and interest of the petitioner in
the property in question.
17. The respondents claim right, title and interest in the
property in question is through the Notification dated
21.07.1965. As evident from the record and from the
finding of the Civil Court, no other evidence or document
except Notification is produced in support of the contention
that the property in question is a wakf property.
18. It would be relevant to examine as to whether the
property in question can be said to be wakf property on
the basis of the Notification dated 21.07.1965.
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19. The Hon'ble Supreme Court in the judgment referred
to (Supra) held as,
"32. A plain reading of the provisions of the above
two Acts would reveal that the notification under
Section 5 of both the Acts declaring the list of the
wakfs shall only be published after completion of the
process as laid down under Section 4 of the above
Acts, which provides for two surveys, settlement of
disputes arising thereto and the submission of the
report to the State Government and to the Board.
Therefore, conducting of the surveys before declaring
a property a wakf property is a sine qua non. In the
case at hand, there is no material or evidence on
record that before issuing notification under Section 5
of the Wakf Act, 1954, any procedure or the survey
was conducted as contemplated by Section 4 of the
Act. In the absence of such a material, the mere
issuance of the notification under Section 5 of the Act
would not constitute a valid wakf in respect of the
suit land. Therefore, the notification dated
29.04.1959 is not a conclusive proof of the fact that
the suit land is a wakf property. It is for this reason
probably that the appellant Committee had never
pressed the said notification into service up till 1999."
20. The facts of the present case is examined with the
principle of law as held by the Hon'ble Supreme Court,
only conclusion that can be recorded is that the property
in question is not a wakf property. There is no material on
record to show that any enquiry or survey was conducted
before declaring the property as wakf property. There is
no material or pleading that the process as prescribed
under Section 4 of the Wakf Act is followed before the
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Notification under Section 5 of the Wakf Act. In the
absence of such a procedure as contemplated under
Section 4 of the Wakf Act, in the light of the judgment
referred to supra, it is held that the property in question is
not a wakf property.
21. The series of orders to which the attention of the
Court is invited would demonstrate that the property in
question is not a wakf property. Further, it can be held
that the series of attempts before different forums by the
respondents is in no way short of abuse of the process. It
is apt to summarize the outcome of different proceedings.
The conclusion from various orders is as follows,
a) The Notification dated 21.07.1965 said to be
issued under Section 5 of the Wakf Act is
without following the process laid down under
Section 4. The procedure under Section 4 is a
sine qua non for notifying the property as wakf
property.
b) O.S. No.194/1989 is preferred for declaration
and injunction against all the allottees in Survey
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No.179. The suit was preferred on the premise
that the property in Survey No.179 is
Makan(Sunni). The suit is dismissed for default
and the restoration application is rejected.
(c) While the petitioner commenced construction,
an obstruction was caused, compelling the
petitioner to institute a suit in O.S.
No.14/1996. The suit is decreed on
04.12.2024. Against which R.A. No.147/2008
was preferred and the same was dismissed on
04.03.2010. In the course of the judgment and
decree, it is held that the property was claimed
as Makan by manipulating the records.
Defendant therein has admitted that the land in
Survey No.179 was a Government karab land.
It is further admitted that the Block
Development Officer has formed sites and
allotted to different villagers. Judgment and
decree has reached finality.
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(d) O.S. No.4/2010 has been preferred by another
person again, claiming to be the property in
Survey No.179 as wakf property. The Wakf
Tribunal, while dismissing the suit, has recorded
a finding that the petitioner was the absolute
owner in possession through allotment of the
site by the Block Development Officer, which is
carved out in Survey No.179, which is a
Government karab land. The Tribunal has
concluded that the property in question cannot
be considered as wakf property in the absence
of the procedure followed under Section 4(3) of
the Wakf Act.
22. Respondent No.1 in the impugned order without
taking into consideration the finding recorded by the Civil
Court and the requirement of the procedure under Section
4 of the Wakf Act, has concluded that the petitioner is an
encroacher on the property bearing Site No.15. The order
of the Tribunal is dated 15.05.2012. As on that date, the
judgment and decree in O.S. No.4/2010 and in O.S.
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No.14/1996 were available. The respondent, under the
impugned order, has attempted to sit in appeal over the
judgment and decree of the Civil Court by taking shelter
under Section 32 of the Wakf Act. Section 32 of the Wakf
Act is not applicable in the facts of the present case in
view of the judgment and decree that the property in
question is not a property of Wakf. The respondents have
not placed any documents except the Notification dated
21.07.1965. In the light of the judgment referred
(Supra), the Notification would not constitute conclusive
evidence to hold the property as wakf property.
23. In the light of the discussion and reasoning above, it
is held that site No.15 formed in Survey No.179 is not a
wakf property. For the aforesaid reasons, the following,
ORDER
(i) Writ Petition No.18499/2012 is allowed.
(ii) The order impugned at Annexure-A dated
15.05.2012 passed by the Enquiry Officer and
Additional Chief Executive Officer, Karnataka
State Board of Wakfs is quashed.
(iii) Writ Petition No.57883/2015 is dismissed.
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(iv) The judgment and decree in O.S. No.4/2010
dated 12.05.2011 passed by Karnataka Wakf
Tribunal is confirmed.
(v) The repeated attempts to claim the property in
question as wakf property through multiple
proceedings is abuse of process of law. It is fit
to impose heavy cost. Taking lenient view, cost
is made easy.
Sd/-
(K. V. ARAVIND)
JUDGE
VBS
