1. The petitioners are before this Court seeking for the following reliefs :

"(a) Issue a writ of Certiorari to quash notice dated 25.10.2007, in case No.PP/179/BGM/2007 (Annexure-H) issued by the 2nd respondent.

(b) Issue any writ or order or direction Court deems fit."

2. The petitioners claim that Survey No.915, totally measuring 3 acres 30 guntas situated at Belagavi city was owned by Sri. Nanu Pachha Syed Kashim Sahib who had leased the property for a period of ten years in favour of Sadanand and brothers on 01.10.1949. Since from that date, the petitioners are in possession of the property. After the expiry of the said lease, a permanent lease had been executed on 24.03.1960 in favour of Sri. Shankar Yeshawanth Desai, as regards the said property. The said permanent lessee has put up construction on the property by investing huge amounts of money and establishing a sawmill.

3. After the demise of the permanent lessee, he was succeeded to the estate by his sons, but one of the sons expired and it is the surviving son and the legal representatives of the deceased son who are the petitioners herein.

4. It is contended that, there was an earlier suit filed in the year 1947 regarding the property by one Mr. Abdul Rahiman Allisaheb Mujawar contending that the property in R.S.No.915 is a Wakf property, the said suit came to be dismissed. Thereafter, the appeal came to be filed which was also dismissed. In that background, it is contended that, the property is not a Wakf property despite which on 10.04.2007, the 3rd respondent issued a legal notice stating that the permanent lease executed by the Mutavalli of the Dargha in favour of the Shankar Yashwant Desai is illegal and vide under Section 56 of the Wakf Act, 1955 and therefore, called upon them to vacate the premises and handover the possession and as also to make payment of the damages. A reply was also given to the legal notice.

5. Thereafter, a notice dated 25.10.2007 came to be issued under Section 4(1) of the Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 on the ground that, the property had been illegally leased out without the permission of the Assistant Charity Commissioner. The petitioners appeared in the said matter. However, it is contended that respondent No.2 has acted in an arbitrary manner. Hence, being aggrieved by the notice issued by the 2nd respondent contending that the same is issued without jurisdiction. The petitioners are before this Court seeking for the aforesaid reliefs.

6. Sri. T.M.Nadaf, learned counsel for the petitioners submits that, the notice dated 25.10.2007 is without jurisdiction, without authority, perverse and arbitrary. In the suit filed in the year 1947 it has been held that the property is not a Wakf property and therefore, the Wakf could not claim any right in the property. He further submits that, as regards notices which have been issued to certain other tenants, the said tenants had challenged the order of the eviction by filing the necessary appeal under Section 10(1) of the Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974.

7. In the said proceedings he submits, the issue as regards whether the land was owned by the Wakf and/or the trust was considered and the said District Court came to the conclusion that the respondent No.2 had not applied his mind and in a summary manner, merely because the property was registered under the Bombay Public Trust Act, 1950 arrived at a presumption that the property is a Wakf property and directed the appellants therein to vacate the property. The District Court held that it is required for the Wakf Board to obtain the declaration or a finding from the competent tribunal in that regard to say that the properties are Wakf property and only then initiate the proceedings under the Bombay Public Trust Act.

8. He therefore, submits that the said order would be equally applicable to the present case and unless the Wakf were to obtain an order from the tribunal that the properties are Wakf properties, the notice under Section 4(1) of the Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 could not have been issued. The order of eviction itself having been set aside by the District Court in M.A.No.26/2008, the said benefit is required to be extended to the petitioners herein and the petition be allowed.

9. Per contra, Sri. I.A.Mulla, learned counsel appearing for the Wakf would submit that, the Wakf is registered under the Bombay Public Trust Act, the properties have been entered into in the relevant registers maintained under the Bombay Land Revenue Court as a property belonging to the Wakf, the same having been allotted to the Wakf in the year 1956. Thereafter, the Wakf was registered as a trust under the Bombay Public Trust Act, the Wakf’s name has been entered into in the extract of Kitabul Awkaf and it is the Wakf that has been making payment of necessary taxes, etc.,

10. He also relies upon the decision of this Court dated 25.09.2000 in W.P.No.27214/1997 to contend that this Court has held that Survey No.915 is a Trust property that belongs to the Wakf and vests with the Wakf Board. Therefore, he submits that, the said finding is sufficient enough to contend that the Wakf is the owner and there is no requirement of the Wakf to approach any authority/Court for the purpose of establishing its title on the property.

11. It is on this basis that, he submits that the notice issued by the competent authority is proper and correct, it is for the petitioner to appear before the competent authority and make his submissions and not approach this Court. As regards the Judgment of the District Court in M.A.No.26/2008 he submits that, the said Court has not taken into consideration the decision of this Court in W.P.No.27214/1997 and as such, there is no need for the Wakf to approach any tribunal since this Court has recognized the Wakf to be the owner of the property. On this ground, he submits that, the writ petition is required to be dismissed.

12. Heard Sri. T.M.Nadaf, learned counsel for the petitioners and Sri. I.A.Mulla, learned counsel for the respondents. Perused the papers.

13. Essentially the dispute is as regards the ownership of the property, inasmuch as the petitioner claiming that the property was owned by an individual, who had leased it out to the forefathers of the petitioners, whereas, the Wakf claiming that the said property is a Wakf property, which could not have been leased in the manner done, without obtaining necessary permission from the Charity Commissioner. Sri. Nadaf, had relied upon the decision in the Civil Suit No.269/1947, according to him, the lease was executed in favour of the forefathers of the petitioners in the year 1949. Thus, as far as back in the year 1949 there is a finding of a Court that the property did not belong to the wakf.

14. Whether the property belongs to the Wakf or not

Whether the Wakf can seek for vacation of the petitioner or not, would have to be determined.

15. The Apex Court in the case of Kaikhosrou (Chick) Kavasji Framji Vs. Union of India and another, reported in (2019) 20 SCC 705 [LQ/SC/2019/515 ;] at paragraph Nos.47, 48, 49, 50, 51 and 59 has held as under:

“47. The question involved in Express Newspapers case7 in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisting of three Judges in State of Rajasthan v. Padmavati Devi. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act could not be resorted to.

48. S.C. Agrawal, J. speaking for the Bench held in para 6 in the following words: (Padmavati Devi case, SCC pp. 292-93)

"6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in State of A.P. v. Thummala Krishna Rao has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.

This view was reiterated in State of U.P. v. Zia Khan.

49. At this stage we consider apposite to take note of the Constitution Bench decision of this Court wherein this Court after examining and upholding the constitutional validity of the PP Act in Kaiser-I-Hind (P) Ltd. v. National Textile Corpn. (Maharashtra North) Ltd.15 reiterated the view taken by this Court in an earlier decision of Northern India Caterers (P) Ltd. v. State of Punjab16 that the PP Act does not create any new right of eviction but it only creates a remedy for a right which already exists under the general law. In other words, it was held that it only provides a remedy which is speedier than the remedy of a suit under the general law.

50. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua Respondent (Union of India).

51. A fortiori, in such case, Respondent 2 has no jurisdiction to invoke the powers under Section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for the appellant's eviction from the suit property. This we say for the following six reasons.

51.1. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long-standing dispute as to who is the owner of the suit property - the appellants or Respondent 1 (Union of India).

51.2. Second, Respondent 1 itself admitted that there exists a bona fide dispute between the appellants and Respondent 1 (Union of India) over the suit property involving disputed questions of facts (see paras 7, 8 and 18 of the review petition filed by Respondent 1 in Civil Appeals Nos. 608-12 of 1980 against the appellants in respect of suit property in this Court).

51.3. Third, Respondent (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeals Nos. 609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the civil court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them.

51.4. Fourth, this Court while granting special leave to appeal on 3-8-200917 had also granted liberty to Respondent (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to.

51.5. Fifth, the effect of quashing the resumption notice dated 21-1-1971 issued by the respondents by the High Court vide order dated 5-2-19792/6-2-1979 in relation to the suit property was that Respondent (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction.

51.6. Sixth, the civil court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act.

59. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and secondly, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition (see Siemens Ltd. v. State of Maharashtra and Whirlpool Corpn. v. Registrar of Trade Marks).”

16. In view of the ratio in the above decision, when a person against whom a notice under Public Premises Act is issued, if such a person rises a bonafide dispute about his right to remain in occupation over such land, the summary remedy to evict such a person under the Act cannot be resorted to. A statutory authority cannot by exercise of powers under the Public Premises Act shortcut the process and procedure of lawfully evicting a person in possession without following due process of law. In such a situation, when a writ petition is filed, questioning the very jurisdiction of issuance of a notice under Section 4 of the Public Premises Act, a writ petition would be maintainable to question the legality and correctness of the notice issued under the Public Premises Act.

17. Section 83(1) of the Wakf Act as it stood in the year 2007 reads as under:

“83. Constitution of Tribunals, etc.,-(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.”

18. A perusal of the said provision would indicate that, a tribunal is to be constituted for determination of any disputed questions or other matter relating to the Wakf or Wakf property. Thus, in the event of there being any dispute as regards the ownership of the Wakf, the same would have to be determined by the tribunal which has been specially constituted under the Wakf Act, 1995.

19. Under the Public Premises Act, in the event of any notice being issued for eviction of public premises, if the title of the persons issuing notice is disputed, then in such case the same would have to be decided by a Civil Court. As regards the Wakf in view of Section 85 of the Wakf Act, the jurisdiction of the Civil Court is barred. The said jurisdiction in terms of Section 83 is vested with the Wakf Tribunal. Thus, whenever there is any dispute as regards the title and or whether the Wakf owns the land, it would be required for the parties to approach the tribunal seeking for such an order.

20. In the present case, the petitioners contend that the Wakf is not the owner and they are the permanent lessees under an owner of the property. If that were to be the claim of the petitioners, the same cannot be adjudicated by this Court on the petitioner challenging a notice under Section 4 of the Karnataka Public Premises Act.

21. In terms of Section 83 of the Act, whenever there is a dispute raised as regards the property being wakf property or not it would be for the wakf who contends that the property is the wakf property to establish its rights by approaching the tribunal. This is more so when such title is disputed on the basis of registered documents in this case, being a registered permanent lease.

22. In the present case, the registered permanent lease as also the decree passed in Civil Suit No.269/1947 gave rise to a dispute as regards the wakf being the owner of the property in question or not. Primafacie, documents have been produced by the petitioner indicate that, the petitioners have a claim over the properties covered under R.S.No.915. The documents produced by the wakf also indicate that there may be a claim of the wakf on the said property. In view thereof, it is for the wakf to approach the tribunal under Section 83 o f the Act, seeking for declaration and confirmation of the title of the wakf. Without doing so, the wakf cannot initiate the summary proceedings under the Public Premises Act.

23. In view of the above, I pass the following:

ORDER

(i) The petition is allowed. A certiorari is issued. The notice dated 25.10.2017 issued by the respondent No.2 in PP/179/BGM/2007 at Annexure-H is hereby quashed.

(ii) In the event of the wakf wanting to initiate proceedings against the petitioner, the Wakf is at liberty to approach Wakf Tribunal, questioning the right of the petitioners as also establish its rights. The Tribunal is directed to hear all the parties and pass necessary orders within a period of 18 months of any proceedings filed by the wakf before it.

(iii) It is made clear that this Court has not expressed any opinion as regards any merits of the matter or the title of the parties. The tribunal would be required to decide the question of ownership and rights of the parties strictly in accordance with law on the basis of pleadings and evidence adduced by the parties uninfluenced by any observation made in this order.