- 1 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE R. NATARAJ WRIT PETITION NO. 42546 OF 2014 (GM-PP) C/W WRIT PETITION NO. 42547 OF 2014 (GM-PP) WRIT PETITION NO. 42548 OF 2014 (GM-PP) IN WP No. 42546/2014: BETWEEN: 1. SRI. ABDUL REHMAN @ NAWAB SINCE DECEASED REPRESENTED BY HIS SONS 1(a) MOHAMMED HYATH S/O NAWAB JAN NO.41, HARRIS ROAD, BENSON TOWN, BANGALORE, KARNATAKA-560046 1(b) MOHAMMED SADIQ S/O NAWAB JAN NO.41, HARRIS ROAD, BENSON TOWN, BANGALORE, KARNATAKA-560046 INSERTED VIDE ORDER DATED 21.04.2025 …PETITIONERS (BY SRI. P.K.SRIKARA AND SRI. RAYAPPA Y. HADAGALI, ADVOCATES FOR DUA ASSOCIATES) AND: 1. DARGAH HAZARATH KAMBAL POSH SHA KHADRI ASTANA-E-HAZARATH KHADAR HUSSAIN AULIA AND Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 ALLIED WAKF INSTITUTIONS, H.K.P (BROADWAY) ROAD, BADA MAKAN (WAKFS), BANGALORE REPRESENTED BY ITS ADMINISTRATOR 2. THE COMPETENT OFFICER, [BOARD OF WAKF] UNDER KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974, DARUL-AWKUF, NO.6, CUNNINGHAM ROAD, BANGALORE - 560051 3. STATE OF KARNATAKA MINORITY WELFARE DEPARTMENT VIDHAN SOUDHA, AMBEDKAR VEEDHI, BENGALURU KARNATAKA-560001 REPRESENTED BY THE PRINCIPAL SECRETARY INSERTED VIDE ORDER DATED 21.04.2025 …RESPONDENTS (BY SRI. P.S.MALIPATIL, ADVOCATE FOR RESPONDENT NO.1; SRI. SYED SUHAIL ALI, ADVOCATE FOR RESPONDENT NO.2; SRI. SRINIVASA KUMAR M., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT SECTION 2(e)(v) OF THE KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974 AS AMENDED BY ACT NO.22/1999 IS UNCONSTITUTIONAL, ILLEGAL, ULTRA VIRES AND INVALID AND CONSEQUENTLY QUASH THE SAME AND ETC. IN WP NO. 42547/2014 BETWEEN: SRI. MUDDASSAR JAVEED @ MUDDASSAR SHARIFF AGED ABOUT 40 YEARS, S/O LATE BASHEER AHMED, SHOP NO.2, PORTION OF PREMISES OF - 3 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 MOSQUE AND HAZRATH KAMBAL POSH SHAH KHADRI AND ALLIED WAKF INSTITUTIONS H.K.P (BROAD WAY ROAD), SHIVAJINAGAR, BANGALORE - 560001 ...PETITIONER (BY SRI. P.K.SRIKARA, ADVOCATE FOR DUA ASSOCIATES) AND: 1. DARGAH HAZARATH KAMBAL POSH SHA KHADRI ASTANA-E-HAZARATH KHADAR HUSSAIN AULIA AND ALLIED WAKF INSTITUTIONS H.K.P (BROADWAY) ROAD, BADA MAKAN (WAKFS), BANGALORE - 560001 REPRESENTED BY ITS ADMINISTRATOR 2. THE COMPETENT OFFICER [BOARD OF WAKF] UNDER KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974, DARUL-AWKUF, NO.6, CUNNINGHAM ROAD, BANGALORE - 560052 3. STATE OF KARNATAKA MINORITY WELFARE DEPARTMENT VIDHAN SOUDHA, AMBEDKAR VEEDHI, BENGALURU, KARNATAKA-560001 REPRESENTED BY THE PRINCIPAL SECRETARY INSERTED VIDE ORDER DATED 21.04.2025 ...RESPONDENTS (BY SRI. P.S.MALIPATIL, ADVOCATE FOR RESPONDENT NOS.1 AND 2; SRI. SRINIVASA KUMAR M., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT SECTION 2(e)(v) OF THE KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974 AS AMENDED BY ACT NO.22/1999 IS UNCONSTITUTIONAL, ILLEGAL, ULTRAVIRES AND - 4 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 INVALID AND CONSEQUENTLY QUASH THE SAME AND ETC. IN WP NO. 42548/2014 BETWEEN: SRI. SYED NAZIR AGED ABOUT 56 YEARS, S/O SYED MOOSA SHOP NO.3, PORTION OF PREMISES OF MOSQUE AND HAZRATH KAMBAL POSH SHAH KHADRI AND ALLIED WAKF INSTITUTIONS, H.K.P. (BROADWAY ROAD), SHIVAJINAGAR, BANGALORE-560051. ...PETITIONER (BY SRI. P.K.SRIKARA, ADVOCATE FOR DUA ASSOCIATES) AND: 1. DARGAH HAZARATH KAMBAL POSH SHA KHADRI ASTANA-E-HAZARATH KHADAR HUSSAIN AULIA AND ALLIED WAKF INSTITUTIONS H.K.P (BROADWAY) ROAD, BADA MAKAN (WAKFS), BANGALORE - 560051 REPRESENTED BY ITS ADMINISTRATOR 2. THE COMPETENT OFFICER, [BOARD OF WAKF] UNDER KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974, DARUL-AWKUF, NO.6, CUNNINGHAM ROAD, BANGALORE - 560052 3. STATE OF KARNATAKA MINORITY WELFARE DEPARTMENT VIDHAN SOUDHA, AMBEDKAR VEEDHI, BENGALURU, KARNATAKA-560001 REPRESENTED BY THE PRINCIPAL SECRETARY INSERTED VIDE ORDER DATED 21.04.2025 ...RESPONDENTS (BY SRI. P.S.MALIPATIL, ADVOCATE FOR RESPONDENT NO.1; - 5 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 SRI. SYED SUHAIL ALI, ADVOCATE FOR RESPONDENT NO.2; SRI. SRINIVASA KUMAR M., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT SECTION 2(e)(v) OF THE KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1974 AS AMENDED BY ACT NO.22/1999 IS UNCONSTITUTIONAL, ILLEGAL, ULTRA VIRES AND INVALID AND CONSEQUENTLY QUASH THE SAME AND ETC. THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R. NATARAJ ORAL ORDER The petitioner (since deceased) in W.P.No.42546/2014 has sought for a declaration that Section 2(e)(v) of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974 (henceforth referred to as 'Act of 1974') as amended by Act No.22/1999 is unconstitutional, illegal, ultra vires and invalid. He has also sought for a direction to quash the order dated 16.02.2010 passed by respondent No.2 and the order dated 01.07.2014 passed by XLI Additional City Civil and Sessions Judge, Bengaluru in M.A.No.21/2010. 2. The petitioner in W.P.No.42547/2014 has sought for a declaration that Section 2(e)(v) of the Act of 1974 as amended by Act No.22/1999 is unconstitutional, illegal, ultra - 6 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 vires and invalid. He has also sought for a direction to quash the order dated 16.02.2010 passed by respondent No.2 and the order dated 01.07.2014 passed by XLI Additional City Civil and Sessions Judge, Bengaluru in M.A.No.22/2010. 3. The petitioner in W.P.No.42548/2014 has sought for a declaration that Section 2(e)(v) of the Act of 1974 as amended by Act No.22/1999 is unconstitutional, illegal, ultra vires and invalid. He has also sought for a direction to quash the order dated 16.02.2010 passed by respondent No.2 and the order dated 01.07.2014 passed by XLI Additional City Civil and Sessions Judge, Bengaluru in M.A.No.23/2010. 4. (i) The petitioner (since deceased) in W.P.No.42546/2014 claimed that a scheme was formulated by the District Court, Bengaluru in O.S.No.89/1952-53 constituting a Managing Committee for the administration of Dargah-E- Hazarath Kambal Posh Shah Khadri, Broadway Road, Shivajinagar, Bengaluru. The Managing Committee had leased portion of the property belonging to the Dargah namely, shop No.7 in favour of the petitioner in the year 1966 on a monthly rent of Rs.25/-. The petitioner claimed that he developed the - 7 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 premises and running a garage under the name and style 'Nawab Garage' and he continued as a tenant under the Managing Committee of Dargah by paying enhanced monthly rent of Rs.400/-. The petitioner claimed that he was regular in paying monthly rent to the Managing Committee upto December, 2008. He contends that the Karnataka State Board of Wakf issued a notification dated 22.11.2008 appointing an Administrator to manage the affairs of the Dargah and its properties. (ii) The petitioner claimed that he continued to be a tenant in the premises. He claimed that several litigations in respect of the said premises broke out between the Wakf Board, its Administrator and Managing Committing, Interim Action Committee, members of the Committee, disciples/devotees of Dargah and the public at large. He claimed that he and other tenants were served with notices by the Administrator on 05.01.2009 describing them as unauthorized occupants. The petitioner submitted his reply to the said notice consequent to which proceedings were initiated before the respondent No.2 under the Act of 1974. The respondent No.2 issued a notice dated 15.07.2009 under - 8 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 Section 4 of the Act of 1974. The petitioner appeared and filed his objection. The respondent No.2 however, in terms of an order dated 16.02.2010 under Section 5 of the Act of 1974 directed eviction of the petitioner and his brother from the premises. Being aggrieved by the said order, the petitioner filed M.A.No.21/2010 and the said appeal was also dismissed. The petitioner is therefore, before this Court challenging the order of the respondent No.2 as well as the order of the District Court. 5. The petitioner in W.P.No.42547/2014 was also tenant in occupation of the premises belonging to Dargah against whom a notice was issued under Section 4 of the Act of 1974 on 05.01.2009. The petitioner submitted his reply following which the respondent No.2 passed an order dated 16.02.2010 under Section 5 of the Act of 1974 and it directed eviction of the petitioner and his brother from the premises within forty five days. Being aggrieved by the said order, the petitioner filed M.A.No.22/2010 before the District Court which too was dismissed. The petitioner is therefore, before this Court. The petitioner has also challenged the constitutional validity of Section 2(e)(v) of the Act of 1974. - 9 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 6. Similarly, the petitioner in W.P.No.42548/2014 claimed to be a tenant in a portion of the premises belonging to Dargah and that respondent No.2 had also issued a notice dated 05.01.2009 to him under Section 4 of the Act of 1974. The petitioner had submitted his reply and by order dated 16.02.2010, the respondent No.2 directed eviction of the petitioner from the premises under Section 5 of the Act of 1974. Being aggrieved by the said order, the petitioner filed M.A.No.23/2010 which too was dismissed. The petitioner is therefore before this Court. The petitioner has also challenged the constitutional validity of Section 2(e)(v) of the Act of 1974. 7. In support of the contention that Section 2(e)(v) of the Act of 1974 is unconstitutional, the petitioners contended that Act of 1974 was amended by the Act No.22/1999 with effect from 04.08.1999. By virtue of the said amendment, Section 2(e)(v) of the Act of 1974 was substituted so as to include waqf within the meaning of public premises under the Act. He therefore, contends that the amendment is illegal, invalid, unconstitutional and violative of Articles 14 and 254 of the Constitution of India as the same is repugnant to the Waqf Act, 1995 (henceforth referred to as 'Act of 1995') as the word - 10 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 "encroacher" was defined with effect from 01.11.2013 to include a tenant whose term has expired or determined. They also contended that they were tenants and their tenancy had neither expired nor determined and hence were not unauthorized occupants. 8. (i) The learned counsel for the petitioners submitted that the proceedings were initiated against the petitioners under the Act of 1974 by issuance of notices under Section 4 of the Act of 1974 on 05.01.2009. He contends that under the Act of 1974, the premises belonging to a waqf was treated as "public premises" in view of Section 2(e)(v) inserted by Act No.22/1999 with effect from 04.08.1999. He contends that "encroacher" as defined under the Act of 1995, prior to amendment on 01.11.2013, meant ordinarily a person who had illegally entered into a property belonging to the Waqf. He contended that under Section 54 of the Act of 1995, the Chief Executive Officer was empowered to remove encroachment from Waqf property. He contends that the Act of 1995 was amended and the word "encroacher" was inserted by clause (ee) to Section 3 with effect from 01.11.2013 to include within its scope, a person whose tenancy or lease had expired or has - 11 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 been terminated by the Mutawalli or the Board. He therefore, contends that clause (ee) in Section 3 of the Act of 1995 is clarificatory in nature and therefore by virtue of Section 54 of the Act of 1995, the proper remedy for the respondent No.3 was to move the Tribunal and not to invoke provisions of the Act of 1974. He submitted that the Act of 1995 is a Central enactment traceable to Entries 6, 7 and 28 of List III, while Act of 1974 is State enactment traceable to Entries 6, 7 and 46 of List III of the Constitution of India and therefore, Act of 1974 has to make way for the Act of 1995 in view of Article 254(ii) of Constitution of India. He contends that if this argument is accepted, then the petitions before the respondent No.2 were not maintainable. In support of the above, he relied on Ashoka Marketing Ltd. and another vs. Punjab National Bank and others [(1990) 4 SCC 406] and Maganlal Chhaganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay and others [(1974) 2 SCC 402]. He contended that a Co-ordinate Bench of this Court in Smt. Shanaz Begum (Dead) Her LR son vs. The Muslim Boys Orphanage and another [AIR Online 2021 KAR 3106] had held that the provisions of the Act of 1974 are repugnant to the provisions of the Act of 1995 - 12 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 after the Act of 1995 was amended in the year 2013. He contends that though proceedings under the Act of 1974 was initiated in 2009, the amendment to Section 3 and introduction of clause (ee) in 2013 obliterated the power under Sections 4 and 5 of Act of 1974. He contends that the District Judge while dealing with the appeals must have taken cognizance of the change in position of law. In this regard, he relied on the judgment in Dilip vs Mohd. Azizul Haq and another [(2000) 3 SCC 607]. (ii) He further contends that the petitioners were in occupation of the waqf property as tenants and the tenancy is not terminated. Therefore, unless the tenancy is terminated, the petitioners cannot be treated as unauthorized occupants. He contends that the notice under Section 4 of the Act of 1974 does not even state how the petitioners were unauthorized occupants. He therefore, contends that the proceeding initiated against the petitioners is illegal, unjust and improper. In support of this contention, he relied upon the judgment of a Division Bench of this Court in Indian Bank vs. M/s Blaze and Central (P) Ltd. [ILR 1986 KAR 743]. - 13 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 9. Per contra, the learned counsel for the respondent Nos.1 and 2 submitted that clause (ee) in Section 3 of the Act of 1995 was not clarificatory but was inserted to define the encroachers who were liable to be evicted under Section 54 of the Act of 1995. He contends that clause (ee) was to be given effect to from 01.11.2013. He submits that prior to 01.11.2013, there was no provision under Section 54 of the Act of 1995 to evict a person whose tenancy was terminated by the Board, while Act of 1974 made provision by inserting sub- clause (v) to Clause (e) in Section 2 of the Act of 1974. He therefore, contends that the proceedings initiated by the respondent No.3 before the respondent No.2 was just and proper. He also contends that at the relevant date when the respondent No.3 had initiated proceedings, the subject was occupied only by the Act of 1974 and not the Act of 1995. He therefore, contends that the impugned proceedings initiated before the respondent No.2 are just and proper and no interference is warranted. He also contends that the petitioners in all these petitions have been claiming that they are in occupation of the premises belonging to Dargah from a long time but have no documents to justify how they came into - 14 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 possession. He contends that mere payment of rent does not confer on them the status of 'tenant' and therefore, they are bound to quit and deliver vacant possession of the premises. 10. I have considered the submissions of the learned counsel for the petitioners as well as the learned counsel for the respondent Nos.1 and 2. 11. In order to answer the question regarding constitutionality of Act of 1974, it is first appropriate to refer to a few provisions of the Act of 1974 and the Act of 1995. 12. Section 2(e)(v) of Act of 1974 reads as follows: "2(e) "Public premises" means any premises belonging to or allotted to State Government or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf of:- (i) to (iv) xxxxxxx (v) a Wakf, registered with the Karnataka State Board of Wakfs" 13. Section 4 of the Act of 1974 reads as follows: "4. Issue of notice to show cause against order of eviction.-(1) If the competent officer is of - 15 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 opinion that any persons are in unauthorized occupation of any public premises and that they should be evicted, the competent officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall,- (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of or claim interest in the public premises to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof. (3) The competent officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed whereupon the notice shall be deemed to have been duly given to all persons concerned. (4) Where the competent officer shows or has reason to believe that any persons are in occupation of the public premises then, without prejudice to the provisions of sub-section (3) he shall cause a copy of the notice to be served on every such person by registered post or by delivering or tendering it to that person or - 16 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 failing service by the means aforesaid in such other manner as may be prescribed." 14. Section 5 of the Act of 1974 reads as follows:- "5. Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the competent officer is satisfied that the public premises are in unauthorised occupation, the competent officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (1), the competent officer or any other officer duly authorised by the competent officer in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary." - 17 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 15. Section 54 of the Waqf Act, 1995 reads as follows: "54. Removal of encroachment from waqf property.—(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is waqf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli. (2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed. (3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is waqf property and that there has been an encroachment on any such waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the waqf. (4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be - 18 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property: Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer. (5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property." 16. Section 3(ee) of the Act of 1995 after amendment Act, 2013, reads as follows: "encroacher" means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board." 17. A co-ordinate bench of this Court while considering a case of eviction of an unauthorized occupant in W.P.No.6049/2005 i.e. prior to the amendment dated - 19 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 01.11.2013 to Act, 1995, held that there is no repugnancy between the Act of 1974 and Act of 1995. According to the petitioners, repugnancy has arisen after the amendment dated 01.11.2013 and insertion of Section 3(ee) to the Act of 1995, which if treated as clarificatory denudes the power to evict a tenant whose term has expired or terminated under Sections 4 or 5 of the Act of 1974. 18. The petitioner in W.P.No.42546/2014 has claimed that he was inducted as a tenant by the Managing Committee of respondent No.1 in the year 1966 on monthly rent of Rs.25/-. He claimed that he had paid the rent till December, 2008. The petitioners in W.P.No.42547/2014 and W.P.No.42548/2014 claimed that they were tenants from the years 1969 and 1996 respectively and claimed that they had paid the rents till December, 2008. Though there is nothing on record to show that the Board or the Mutawalli had inducted them into the premises as tenants, assuming that they were tenants, under the Wakf Rules, which were then in force the tenancy of the petitioners without the sanction of the board stood statutorily determined by operation of law. The relevant Rule 5 of the Karnataka Wakf Rules, 1964 is extracted below: - 20 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 "5. Conditions and restrictions subject to which Board may transfer wakfs property.-(1) The Board shall not give previous sanction under section 36A to the transfer of the immovable property of wakf unless it is satisfied that such transfer is necessary or beneficial to the wakf; Any exchange, sale or mortgage and any lease for a term exceeding three years of any immovable property belonging to any wakf shall be null and void unless it is sanctioned by the Board as being necessary or beneficial to the wakf; Provided that a lease for a term not exceeding three years of any immovable property providing for renewals ofr a further term whether subject to any condition to be specified or not, shall be null and void. (2) Any application for such sanction shall be submitted by a mutawalli to the Board and shall contain the following particulars and such other particulars as the Board may consider necessary- (a) nature of the proposed transaction; (b) correct description of the properties relating to the transaction with information regarding the survey number, extent and boundaries, and ward number and door number also in the case of properties within the limits of municipalities; (c) the revenue assessed on the properties relating to the proposed transaction by way of land revenue, cess, quit-rent, ground rent, property tax, and the like; - 21 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 (d) any encumbrances to which the properties relating to the proposed transaction are subject; (e) if the proposal is for mortgage, the amount for which the properties are proposed to be mortgaged; (f) if the proposal is for sale or lease, the probable price of the rental, as the case may be, that is expected. (3) The Board shall, on receipt of an application as is referred to in sub-rule (2) above, from the mutawalli or on its own initiative in the case of properties of any wakfs directly managed by it, publish in the State Gazette a notice of the proposed transaction. (4) A notice published under sub-rule (3) shall contain sufficient details of the transaction and shall specify a reasonable time, not being less than thirty days from the date of publication of the notice, within which objections or suggestions may be sent. A copy of the notice shall be affixed on the notice board of the office of the Board and in any conspicuous place in which the property is situated. Such publication shall be deemed to be sufficient intimation to the person having interest in the property forming the subject matter of the proposed transaction. (5) All objections or suggestions received in respect of the proposed transaction shall be duly considered by the Board before passing order thereon, if necessary, after holding an inquiry, in which case, a - 22 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 reasonable notice of not less than seven full days, shall be given to the parties concerned. A copy of the order sanctioning an exchange, sale or mortgage or leases for a term exceeding three years shall, in addition to being communicated to the mutawalli and persons having interest, if any, who appeared in the proceedings, be published in the manner laid down in sub-rule (3). "(b) where the proposed transaction is in respect of immovable property of a Muzrai wakf, the Board shall forward to the State Government the application together with the objections or suggestions, if any, received and if the Government approves such transaction, accord previous sanction therefor. Explanation: In this sub-rule "muzrai wakf" means immovable property belonging to Muslim institutions which were governed by the Mysore Religious and Charitable Institutions Act, 1927". 19. Later, the Wakf Act, 1954 was repealed and replaced by the Waqf Act, 1995. Section 56 of the Act of 1995 reads as follows: "56. Restriction on power to grant lease of waqf property.—(1) A lease for any period exceeding thirty years of any immovable property which is waqf property shall, notwithstanding anything contained in the deed or instrument of waqf or in any other law for the time being in force, be void and of no effect: - 23 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 Provided that a lease for any period up to thirty years may be made for commercial activities, education or health purposes, with the approval of the State Government, for such period and purposes as may be specified in the rules made by the Central Government: Provided further that lease of any immovable waqf property, which is an agricultural land, for a period exceeding three years shall, notwithstanding anything contained in the deed or instrument of waqf or in any other law for the time being in force, be void and of no effect: Provided also that before making lease of any waqf property, the Board shall publish the details of lease and invite bids in at least one leading national and regional news papers. (2) A lease for a period of one year but not exceeding thirty years of immovable property which is waqf property shall, notwithstanding anything contained in the deed or instrument of waqf or in any other law for the time being in force, be void and of no effect unless it is made with the previous sanction of the Board. (3) The Board shall, in granting sanction for lease or renewal thereof under this section review the terms and conditions on which the lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may direct: - 24 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 Provided that the Board shall immediately intimate the State Government regarding a lease for any period exceeding three years of any waqf property and thereafter it may become effective after the expiry of forty-five days from the date on which the Board intimates the State Government. (4) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." 20. Therefore, a lease of a wakf property for a period exceeding one year and not exceeding three years would be void unless it is approved by the board. Hence, even if the petitioner were lessees for a long time, unless it was with the sanction of the board, their tenancy stood statutorily determined and therefore, were unauthorized occupants. There - 25 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 is no material placed on record to show that the board had sanctioned the long lease in favour of the petitioners. Consequently, the petitioners were unauthorized occupants in wakf property. 21. There was no provision in the Act of 1995 to evict a tenant whose term had expired or was determined. The only discernible provision was Section 54 of the Act of 1995 which dealt with "encroachers", which was not defined but ordinarily meant, 'a person who is in illegal possession of a property belonging to another', which obviously could not include a tenant whose tenancy had expired or determined. Perhaps to overcome this difficulty, provision was made in the Act of 1974 to include a premises belonging to a Wakf within the meaning of a "public premises". The proceedings initiated against the petitioners were set in those circumstances and therefore, were valid and justified. 22. (i) The Act of 1995 was amended with effect from 01.11.2013 and sub-section (ee) was inserted in Section 3 defining an "encroacher", which included a tenant whose term had expired or was determined. The petitioners are trying to - 26 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 exploit this by contending that Section 3(ee) is clarificatory in nature and therefore, dates back to the date of passing of the Act of 1995 and hence overrides sub-section (v) to Section 2(e) of the Act of 1974, which was introduced and substituted on 04.08.1999. It is on this premise, it is contended that cases of tenants whose tenancy has expired or determined should be dealt under Section 54 of the Act of 1995 and not under Act of 1974. (ii) The above contention is rejected on two grounds, firstly Section 3(ee) of the Act of 1995 came into effect from 01.11.2013 and therefore, did not affect proceedings initiated earlier under Act of 1974, secondly, Section 3(ee) of the Act of 1995 was not clarificatory but it sought to include those who were not 'encroachers' in the real sense of the term. As a result, as on the date of introduction of Section 3(ee) of Act of 1995, all pending proceedings under the Act of 1974 would stand transferred to the Tribunal. Under Section 11 of the Act of 1995, an order passed by the competent authority or the appellate authority is final and therefore, the orders impugned in this petition were final and therefore, are not really affected by introduction of Section 3(ee) to the Act of 1995. These writ - 27 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 petitions cannot dilute the finality of the orders as these petitions are meant to cross-verify compliance of the law as provided under Act of 1974 and nothing else and by no stretch of imagination could it be held that this is an appellate remedy against the order passed by the District Judge. It is well settled that mere change in forum brought during the pendency of proceedings does not affect pending action unless provision is made for transfer (Refer R. Kapilnath (Dead) through LRs vs. Krishna [(2003) 1 SCC 444)). (iii) Therefore, the contention of the petitioners that Section 2(e)(v) of the Act of 1974 is unconstitutional on the ground that it transgresses and is repugnant to the provisions of the Act of 1995, is not tenable and is therefore not accepted. The Act of 1995 is a Central enactment dealing with wakf and its institutions, while Act of 1974 primarily dealt with eviction of unauthorized occupants in public premises and therefore, deal with different subjects and hence, can exist independently. Thus, there is no repugnancy between the two legislations at least in so far as these petitioners are concerned. Therefore, when respondent No.1 initiated proceedings against petitioners, - 28 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 there neither was any conflict nor repugnancy between Act of 1974 and Act of 1995. 23. Besides this, a writ petition under Article 226 of the Constitution of India is not an appellate remedy against the order passed by the competent authority and the District Court in view of the finality of the orders passed under the Act of 1974 in view of Section 11 of the Act of 1974. The examination in these writ petitions is restricted only to the extent whether the procedure prescribed under Act of 1974 was followed or not. It appears that in order to overcome this, the petitioners have challenged the constitutional validity of Section 2(e)(v) of Act of 1974. Therefore, on this count too, the writ petitions are not maintainable. 24. As regards the factual contention that the petitioners were tenants and that their tenancy is not terminated, the petitioners were bound to establish as to how they came into possession and as to how they have continued in such long possession. They were bound to establish that they were lawfully inducted into the premises and whether their tenancy was in force. Unfortunately, except producing some - 29 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 receipts, the petitioners did not produce any material to justify that they were tenants lawfully inducted and their tenancy was in force. Mere payment or acceptance of rent does not confer any better right. 25. Since the petitioners have not denied that respondent Nos.1 and 2 had complied with the provisions of Sections 4 and 5 of the Act of 1974 and petitioners have not denied the fact that the respondent No.1 was lawful owner of the property which was in their occupation, the petitioners are bound to vacate the premises and handover the possession of the premises to the respondent No.1. 26. In that view of the matter, these petitions lack merit and are dismissed. 27. The petitioners are granted forty five days time from the date of receipt of certified copy of this Order to quit and deliver the vacant possession of the premises failing which the respondents are at liberty to use required force to evict the petitioners from the premises. Any amount deposited by the petitioners shall be released to the respondent No.1. - 30 - HC-KAR NC: 2025:KHC:34337 WP No. 42546 of 2014 C/W WP No. 42547 of 2014 WP No. 42548 of 2014 28. In view of the disposal of these petitions, pending I.As., if any, also stand disposed off. Sd/- (R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 20