Mohammed Iqbal vs The Karnataka Wakf Board and Others

A.S. Bopanna, J.—The petitioner is before this Court assailing the orders dated 19.09.2011, 31.07.2012 and 27.06.2013 which are impugned at Annexures-G, H and J to the petitions.

The petitioner claims right in respect of the property bearing Sy. No. 140 measuring 10 acres out of 21 acres 6 guntas at Gour (K) village, Afzalpur Taluk, Gulbarga District. The respondents in a proceeding initiated under Section 54 of the Wakf Act, 1995 (for short ''the Act'') has held one Smt. Meharunnisa namely, the sixth respondent herein as an encroacher in respect of the said land by considering it as Wakf property and has directed proceedings to evict her if vacant possession is not delivered. The petitioner claiming to have purchased the property from the sixth respondent under a sale deed dated 15.11.2007 is before this Court contending that the orders impugned herein which have been passed against the sixth respondent should not bind the petitioner since the petitioner had purchased the property in question and he was the owner as on the date the impugned orders were passed.

Respondents No. 1 to 5 would however oppose the contention put-forth by the petitioner. The learned counsel for the third respondent, in particular, would contend that the petitioner cannot claim any right in respect of the said property. Even if the contention put-forth by the petitioner that in view of the purchase made by the petitioner, he has right in respect of the property, the same cannot be accepted since the said right cannot be taken note by this Court as the grant made by the Land Tribunal in favour of the sixth respondent did not exist as on 28.11.2006 when the permission was obtained for the transaction to be entered into between the petitioner and the sixth respondent. In that regard, it is pointed out that the order of grant passed by the Land Tribunal was only on 21.07.2007 and as such, the petitioner cannot claim any right to the property in question.

In the light of the contentions put-forth, I have perused the petition papers.

It is seen that the order passed by the Land Tribunal granting occupancy rights was made on 21.07.2007. By the said proceedings, the grant in favour of the sixth respondent was made. In that regard, what is to be noticed is that respondent Nos. 1 and 3 herein had assailed the order passed by the Land Tribunal dated 21.07.2007 in W.P. No. 13733/2007 which was disposed of on 07.09.2007. This Court upheld the order dated 21.07.2007. If that be the position, the grant made in favour of the sixth respondent has attained finality by the said order.

In that light, the question is as to whether merely because permission to alienate had been taken prior to the said order i.e., on 28.11.2006, the transaction by which the petitioner purchased the property would be invalid as contended by the learned counsel for the third respondent is the aspect to be noticed. The order dated 21.07.2007 was passed by the Land Tribunal in respect of the proceedings which had been remitted to it for reconsideration. By the earlier order also, the Land Tribunal had granted occupancy rights in favour of the sixth respondent. In any event, as to whether the property which has been granted under the provisions of the Inams Abolition Act has been sold contrary to the provisions contained therein is the issue which is to be considered in a proceedings initiated under the Act. It is for the authorities under the relevant Act to take note of the said aspects and not in a proceeding of the present nature.

The only question for consideration in a proceedings initiated under Section 54 of the Act is as to whether the property is notified as Wakf property and a person against whom action is initiated alleging that he is an encroacher be considered as an encroacher. Even if the contention as put-forth by the respondents is taken into consideration, the sixth respondent herein against whom proceedings has been initiated under Section 54 of the Act could not have been considered as an encroacher on 19.09.2011, when the order of grant which enures to her benefit was passed on 21.07.2007 if the proceedings related to the same property and if there was no dispute regarding identity of the property.

Further, the claim as put-forth by the petitioner is based on a sale deed dated 15.11.2007. If that be the position, the petitioner claiming right under the sixth respondent through the said sale deed had already become the owner of the property as on the date the order was passed in a proceeding under Section 54 of the Act. Therefore, the petitioner in any event was entitled for an opportunity to put-forth the contention to claim right to the property regarding which the proceedings was held stating that the property belonging to the Wakf has been encroached. Hence, in any case, the proceedings could not have been concluded behind the back of the petitioner herein who had acquired certain right to the property under the sale deed dated 15.11.2007.

Therefore, if these aspects of the matter are kept in view, the orders dated 19.09.2011, 31.07.2012 and 27.06.2013 impugned at Annexures-G, H and J cannot be sustained. They are accordingly quashed. Liberty is however reserved to the second respondent to redo the process, if the need arises. If such reconsideration or fresh proceeding is deemed necessary by respondent Nos. 1 to 3, the same shall be done only after notifying the petitioner and after providing opportunity to the petitioner to put-forth all contentions before the second respondent which are left open.

The petitions are accordingly disposed of.