Karnataka Board of Wakfs vs State of Karnataka

Chidananda Ullal, J.—The instant Petition is registered when case records in LRA No. 64/88 were received from the Authorities

consequent to the abolition of the Land Reforms Appellate Authority, Tumkur, on the filing of C.P.No.363/90 for that purpose and further to treat

the Appeal as Writ Petition. Hence, what is before this Court is the Appeal in No. LRA 64/88 in the form of a Writ Petition.

I heard the learned Counsel for the petitioner Sri Basavaraj V. Sabarad and the learned High Court Government Pleader Sri S.S. Guttal for the

respondents No. 1 and 2 and the learned Counsel Sri K.R. Balakrishna for the respondent No. 3.

The petitioner herein had filed originally Appeal No. 64/88 to challenge the rejection of the claim of the petitioner for grant of occupancy right in

respect of lands in S.No. 14/3, 14/5, 14/8 and 14/9 of Ashur Khan (Bobayyana Gudi) in passing the order dated 8-6-88 of the respondent No. 2

- Land Tribunal, Tumkur,

The brief facts of the case are as follows:

The petitioner and Respondent No. 3 and 4 had applied for grant of occupancy rights in respect of the lands in Form No. 1 u/s 5 of Karnataka

Certain Inams Abolition Act, 1977. During the course of enquiry, the Respondent No. 3 had given up his claim, whereas the petitioner on the one

side and the Respondent No. 4 on the other asserted their respective claims. They also adduced their side of the evidence in support of their

respective claim.

The Respondent No. 2 - Land Tribunal having heard the parties and on appreciation of evidence on record passed a considered order dated 8-

6-88 now under challenge in the instant Writ Petition whereby the Tribunal had rejected the claim of the applicant as well as the claim of the

Respondent No,4 for grant of occupancy right. It is the said order dated 8-6-88 now under challenge in the instant Writ Petition.

The learned Counsel for the petitioner Sri Basavaraj V. Sabarad argued that the Land Tribunal rejected the claim of the petitioner illegally mainly

on the ground that the petitioner failed to show the basis on which the lands in the case are included in the Gazette notification as the ones

belonging to the petitioner - Wakf Board. It is his argument that the Gazette Notification is conclusive proof of the ownership of the subject lands in

the case, as owned by the petitioner - Wakf Board and that it is not open for the Land Tribunal to dispute that legal position. He had also cited

before me two decisions in support of his argument. They are: (i) 1979 S.C.289 , Board of Muslim Wakfs v. Radha Kishan and another (ii)

Karnataka Board of Wakfs Vs. Hazrath Attulla Shah Dhargah, . The said decisions are to the point that the persons claiming right as against the

properties notified in the Gazette Notification as the one belonging to the Wakf Board has to challenge the same in a declaratory suit before a Civil

Court, well in time u/s 6(2} of the Karnataka Wakf Act.

Therefore, the submission of the learned Counsel for the petitioner is that the subject lands in Survey Nos. in question of Biddihalli village,

belonged to the petitioner and they are entitled to be registered under Sub-section 3 of Section 5 of the Karnataka Certain Inams Abolition Act,

1977 and therefore he prayed, that the impugned order be quashed and the matter be remanded to the Land Tribunal with a direction to grant the

occupancy right to the petitioner - Wakf Board.

The learned Government Pleader mainly supported the order passed by the Land Tribunal.

Having heard both sides, the point that arises for my consideration is whether the impugned order passed by the Respondent No. 2 - Land

Tribunal, Tumkur, now under challenge is sustainable or not.

At the outset, it is to be mentioned here that the Respondent No. 2 - Land Tribunal had not treated the claim of the petitioner as one of the

claimants as that of the claims of the Respondent No. 3 and 4 herein. On perusal of the order, it appears to me that the Land Tribunal had treated

the Respondents No. 3 and 4 as the applicants and the petitioner herein as the opponent as if the case is one u/s 48A of the Land Reforms Act. To

advert to the operative portion of the impugned order, the same reads as follows:

From the above, it is not clear whether the claim of the petitioner for grant of occupancy right was rejected by the Land Tribunal or not, but by

reading the order as a whole, it can be gathered that the Tribunal did reject the claim of the petitioner on the ground that the petitioner failed to

prove the basis on which the subject properties were notified in the Gazette as the one belonging to it. On going through the records, particularly,

the impugned order, it appears to me that the Land Tribunal had not properly understood the case of the petitioner and further the law applicable

to them. It is necessary for me to reproduce Section 5 of the Karnataka Certain Inams Abolition Act, 1977, under which the petitioner as well as

the Respondents No. 3 and 4 had put forth their respective claim by resorting to Form No. 1 as contemplated in law. Section 5 of the Karnataka

Certain Inams Abolition Act, 1977 reads as follows:

Right to be registered as occupants: Save as otherwise provided in this Act, with effect from all or the appointed date,-

(1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered as an occupant of lands in respect of which he was a

tenant immediately before first day of March, 1974.

(2) where the inamdar is an institution of religious worship, a person -

(i) rendering religious service in or maintaining the institution as a pujari, archak or the holder of a similar office by whatever name called, or

(ii) rendering any service in such institution,

and personally cultivating for a continuous period of not less than three years prior to the first day of March, 1974, by contributing his own physical

labour or that of the Members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as

such in money or in kind to that institution in respect of such land, shall be entitled to be registered as an occupant of such land;

(3) every inamdar including the holder of a minor inam, shall be entitled to be registered as an occupant of all lands he was personally cultivating

immediately before the said date.

From the above, it is clear that the claim of the petitioner has to be considered by the Respondent No. 2 - Land Tribunal under Sub-section 3

of Section 5 of the said Act, whereas the claim of the Respondent No. 4 has to be considered under Sub-section 2 of Section 5 of the said Act. In

this context, it is to be stated here that Sub-section 2 of Section 5 is applicable to the person who is in continuous possession of the land three

years prior to 1-3-74, whereas under Sub-section 3 of Section 5, one has to hold the subject land either on 1-3-74 or prior to that date. The said

two sub-sections u/s 5 of the said Act are provided for therein to meet two different situations as set out therein.

With regard to the legal position of the Gazette publication of the Wakf property, it has to be clarified here that the Gazette notification is

conclusive proof as to the ownership of the properties of the Wakf, unless the same was challenged and decree obtained in a civil suit as

contemplated u/s 6(1) of the said Act. In the absence of any declaratory decree thereto, as against the publication of list of Wakfs in the Gazette

notification, the properties listed therein in the list of Wakfs is construed in law to be belonging to the Wakf. It is nobody''s case before the

Respondent No. 2 - Land Tribunal that any decree or decrees in a suit/s was/were obtained by anybody.

That being the case, it was not open for the land Tribunal to doubt the claim of the petitioner that they were not the owners of the subject

lands. As a matter of fact, on the face of the Gazette notification, the Respondent No. 2 - Land Tribunal would have accepted the contention of the

petitioner that the subject land belonged to them. To advert to the decisions cited by the learned Counsel for the petitioner in Board of Muslim

Wakfs, Rajasthan Vs. Radha Kishan and Others, and Karnataka Board of Wakfs Vs. Hazrath Attulla Shah Dhargah, , my considered view is that

the same are not applicable to the case in hand for the said two decisions are referable to the point of limitation to resort to civil suit u/s 6(2) of the

Wakf Act by a Muslim and a non-Muslim respectively. Therefore, the said two decisions are not helpful to the petitioner in support of their

contention.

To come back to the correctness or otherwise of the impugned order passed by the Land Tribunal, it is to be observed here that the Land

Tribunal had not addressed itself to the issue before it justly and properly while considering the claim of the petitioner on the one side and the

Respondent No. 4 on the other. The Land Tribunal should have considered the claim of the petitioner under Sub-section 3 of Section 5 of the

Karnataka Certain Inams Abolition Act, 1977, and the claim of the Respondent No. 4 under Sub-section 2 of Section 5 of the said Act.

In that view of the matter, it is just and proper for this Court to quash the impugned order and further to remand the matter to the Land

Tribunal.

In the result, the impugned order dated 8-6-88 in No. INA.ULRM.65, 108/83-84 passed by the Respondent No. 2 - Land Tribunal,

Tumkur, whereby the Tribunal had rejected the claim of the petitioner for grant of occupancy right as claimed by the petitioner in respect of the

lands as set out in their Form No. 1 filed before the Tribunal, is quashed; the matter is remanded to the Land Tribunal with a direction to hold de

novo enquiry in strict compliance of Rule 17 of Land Reforms Rules and to pass a considered order thereon.

Let the Land Tribunal hold such an enquiry after issuing notices to all the parties concerned other than the Respondent No. 3 who had

abandoned his claim before the Land Tribunal, Tumkur.

The Writ Petition is accordingly allowed. Rule made absolute.

In view of the above order, the office is directed to return the original records of the Tribunal, now on the case file of this Court to the Land

Tribunal, Tumkur, Tumkur District, at the earliest.