HAZART H HUSSAIN BASHA KHADRI @ JODI MAZAR (WAKF) B H ROAD, TUMKUR REPRESENTED BY ITS PRESIDENT AND SECRETARY AND KARNATAKA STATE BOARD OF WAKFS NO. 6, CUNNINGHAM ROAD, BANGALORE REPRESENTED BY CEO Vs. THE COMPETENT OFFICER-CUM- MUNICIPAL COMMIS

JUDGEMENT

(1.) THE 1st petitioner, a registered WAKF and the 2nd petitioner, the Karnataka State Board of WAKFs., aggrieved by the common order dt. 19/11/2010 in Misc. Appeal Nos. 7/06 and 8/06 dismissing the appeals and confirming the order dt. 15/4/2006 in CMC/CR 17/2005 -06 of the Municipal Commissioner and Competent Officer and extending 2 months time to the petitioners to vacate the petition -schedule premises, from the date of judgment, under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, for short 'KPP Act', have presented this petition. Facts in brief are, respondent - Municipal Commissioner as also the Competent Officer under the KPP Act, issued a notice dt. 13/3/2006 - Annex.G calling upon 1st petitioner to show cause as to why the it should not be treated as an unauthorized occupant and evicted from the municipal property located in the middle of the B.H.Road measuring 36 x 401/2 mtrs. bounded on, East by B.H.Road, West by B.H.Road, North by B.H.Road and South by B.H.Road and school compound. The 1st petitioner caused a reply dt. 24/3/2006 - Annex.H asserting that by notification dt. 10/7/1965, the State government declared the notice schedule property as a WAKF wherein the mortal remains of two Muslim saints were buried and that the said notification was gazetted in the Mysore Gazette on 15/2/1968, exercising jurisdiction under Sec. 5(2) of the Mysore WAKF Act, 1954. It was also pointed out that the WAKF property was not in the middle of the B.H.Road and further that the Competent Officer under the KPP Act in respect of that property was the WAKF Board, the 2nd petitioner, and therefore the show cause notice was one without jurisdiction. The Competent Officer by order dt. 15/4/2006 - Annex.B, under Sub -sec. (1) of Sec. 5 of the KPP Act, held the 1st petitioner as an unauthorized occupant and directed it to vacate the said premises. That order -Annex.B when called in question in two appeals, preferred separately, by the petitioners, numbered as Miscellaneous Appeal 7/06 and 8/06 respectively, the I Addl. District Judge, Tumkur, declined to accept amongst others, the plea of the petitioners, by observing that the village map 100 years old, did not disclose the existence of the dargah on B.H.Road and that the name of the WAKF or the name of the dargah as set out in the Mysore Gazette was not entered in the concerned municipal records, as belonging to WAKF Board, to hold that the publication in the gazette was not acted upon, while placing reliance upon the order of the Apex Court in Special Leave to Appeal (Civil) No. 2519/2006 directing that no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara, on public streets, public parks or other places, as an interim measure, accordingly by the order impugned dismissed the appeals, confirmed the order of the Competent Officer and extended two months time to vacate and handover the petition schedule property.

(2.) IN the memorandum of writ petitions it is asserted, amongst others, that pursuant to an enquiry under Sec. 4 of WAKF Act, 1954, by the State government, an extent of 30 x 40 ft. vacant site enclosed by a brick compound in front of the College which had two tombs therein, issued notice under Sec. 4(4) of the WAKF Act on 31/5/1963, Annex. D and E respectively, and after a full -fledged enquiry, the property was notified as a WAKF property under Sec. 5(2) of the WAKF Act on 10/7/1965 and published in the Mysore Gazette on 15/2/1968 - Annex.F The notification having become final, it is said is binding on the respondent. The two tombs of great saints who lived many centuries ago, on their death, when buried as per Muslim customs, the petitioners' state, prayers are offered and that the tomb in Urdu language, is called a dargah. It is the allegation of the petitioner that Competent Officer as well as the Appellate Court having failed to hold a proper enquiry into the claims of the parties, jumped to conclusions. In addition, it is alleged that the Appellate Court fell in error in recording a finding that the notification was not acted upon, merely because the name of the dargah was not entered in the municipal records. According to the petitioners, the order dt. 7/12/2009, in SLP 8519/06 of the Apex Court, has do application to facts and circumstances. It is also contended that during the year 1970, O.S.No. 428/70 when instituted by one Shahdthulla Sha Kalifa Rafai @ Mahamed Iman, S/o. Garib Sab, against certain persons who had interfered with the dargah premises, the Addl. Munsiff at Tumkur, by judgment and decree dt. 27/10/1971, allowed the suit and directed permanent injunction restraining the defendants therein from interfering with the plaintiff's possession and enjoyment of the suit schedule property. It is lastly stated that the positive photographs Annex.R and R1 said to have been taken in the year 1924, shows the existence of the two tombs and the compound of the college behind it.

(3.) DURING the pendency of this petition, on 23/12/2010 parties were directed to have the property surveyed by an engineer and to prepare a sketch pursuant to which one Mirza Akbarulla, the Chief Executive Officer filed an affidavit enclosing a copy of the sketch, also undertaking to remove the compound wall and the temporary structure shown with the alphabet 'E' in the sketch, by 28/12/2010 and to grant time till 31/12/2010 to clear the debri. That affidavit was opposed by filing a statement of objections dt. 28/1/2011 stating that the affidavit is not in conformity with the directions issued by this court on 23/12/2010 on the premise that the structure put up on the petition schedule premises is entirely unauthorized and that the petitioners' case is over the property alleged to measure 30 x 40 ft., while the measurement as indicated in the map enclosed to the affidavit, discloses 34 ft. South to North towards B.H.Road, in other words, 4 ft. in excess of 30 ft. In addition it was pointed out that petitioners had not removed the iron grill and compound wall over the entire area measuring 36 x 401/2 ft. Petitioners filed a reply dt. 16/2/2011 to that objection statement interalia denying the allegations, and asserting that the compound wall was not removed since it was essential to protect the property and that the sketch annexed to the affidavit was a rough sketch and therefore requested this court to direct the survey authorities to survey the land and if found that the compound wall is beyond the notified area, petitioners undertook to remove the same, with liberty to reconstruct on the basis of correct measurements. The iron grills attached to the edge of the tomb to support the tin sheets which shelters the tomb, were claimed to be temporary Shelters.