Rajasthan High Court - Jodhpur

Kishan Lal vs Istiyak Ahmed on 6 September, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:27769]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2538/1985

Kishan Lal

----Petitioner Versus Istiyak Ahmed

----Respondent

For Petitioner(s) : Mr. Suresh Shrimali Mr. H.L. Kela For Respondent(s) : Mr. R.D. Bhadu, Dy. GC Mr. Talat Bari

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 16/08/2023

Pronounced on 06/09/2023

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 RajasthanPublic 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

[2023:RJ-JD:27769] (2 of 6) [CW-2538/1985]

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. 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.

[2023:RJ-JD:27769] (3 of 6) [CW-2538/1985]

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

& Eviction) Act, 1950, the Wakf properties have been exempted

from the purview of the said Act and that the Wakf properties

[2023:RJ-JD:27769] (4 of 6) [CW-2538/1985]

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. 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

[2023:RJ-JD:27769] (5 of 6) [CW-2538/1985]

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 lateron 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 28.9.99 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."

[2023:RJ-JD:27769] (6 of 6) [CW-2538/1985]

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.