- 1 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 3RD DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.201455 OF 2019 (GM-PP) BETWEEN: SHRI MUNSHI KHAJA HUSSAIN AGE: MAJOR, OCCU: RETD. DRIVER, R/O BEHIND USHA LODGE, ANDRONQUILLA, RAICHUR. …PETITIONER (BY SRI. AMEET KUMAR DESHPANDE, SENIOR ADVOCATE ALONG WITH SRI. VENKATESH C. MALLABADI, ADVOCATE) AND: 1. THE KARNATAKA STATE BOARD OF WAKFS ”DARULAWKAF” NO.6, CUNNINGHAM ROAD, BANGALORE-560052. BY ITS COMMISSIONER 2. DARGAH HAZRATHKAMALIWALE BABA (SUNNI) RAICHUR DISTRICT, RAICHUR-584101. REP. BY THE SECRETARY/MUTHAWALI, SYED GHOUSE MOHINUDDIN. 3. THE COMPETENT AND ADDL. CHIEF EXECUTIVE OFFICER (I/C) KARNATAKA STATE BOARD OF AUQAF, # CUNNIGAM ROAD, BANGALORE-560 052. …RESPONDENTS Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 (BY SRI. P.S. MALIPATIL, ADVOCATE FOR RESPONDENT NOS.1 AND 3; SRI. SHIVAKUMAR KALLOOR, ADVOCATE FOR RESPONDENT NO.2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 30.01.2019 PASSED IN M.A.NO.28/2017 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, RAICHUR THE COPY OF WHICH IS AT ANNEXURE-K AND CONSEQUENTLY, QUASH THE ORDERS PASSED BY THE RESPONDENT NO.3 DATED 28.07.2017 ON THE FILE BEARING NO.PP/62/RCR/2011 THE COPY OF WHICH IS AT ANNEXURE-G. THIS PETITION, 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 has challenged an order bearing No.PP/62/RCR/2011 dated 28.07.2017 passed by the respondent No.3 directing the eviction of the petitioner under the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants Act), 1974. The petitioner has also challenged an order dated 30.01.2019 passed by the II - 3 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 Additional District and Sessions Judge, Raichur, in M.A. No.28/2017. 2.(i) The petitioner claims to be the owner in possession of a family graveyard. He contends that his paternal uncle - Mr. Mohammed Ismail, had filed O.S No.34/1961 before the Munsiff Court, Raichur, for declaration of title and perpetual injunction in respect of the graveyard belonging to his family in an area measuring 250 sq. feet. He claimed that the suit was dismissed, following which Mr.Mohd. Ismail filed R.A No.40/1970. The appeal was partly allowed in terms of the judgment and decree dated 04.01.1973, where it was held that the part of the suit property was a family hadwad which lay on the north western corner of the public graveyard near the fort wall of Androon Khilla. (ii). The petitioner contends that the members of the Muslim community were restrained from burying the dead in this family hadwad. He claimed that his uncle filed R.S.A No.1518/1973 before this Court which was dismissed. Later, his uncle filed E.P No.99/1983 to execute the judgment and decree passed in R.A No.40/1970. A Commissioner was appointed who identified the family hadwad. A person named Mr.Syed - 4 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 Ghouse Mohiuddin filed C.R.P No.1110/1986 against the rejection of an application filed by him in E.P No.99/1983. He also filed Civil Misc. No.4/1986 and C.R.P No.6604/1989. All the petitions were dismissed by orders dated 18.03.1986, 22.07.1989 and 16.01.1990 respectively. (iii). He contends that a suit in O.S No.117/1986 was filed by the Karnataka Board of Wakfs (for short, 'the Wakf Board') against the uncle of the petitioner herein, namely, Mr.Mohammed Ismail for declaration and injunction in respect of Dargah Hazrat Kambliwale situate in an area measuring 172 feet x 88 feet bounded on the: East: by khabarasthan; West: by Fortwall and thereafter K.S.R.T.C bus stand North: by wall (compound) and South: by khabrasthan. The said suit was decreed in part on 04.10.1996. The family hadwad that was recognized in R.A No.40/1970 was kept in tact and the petitioner's uncle was restrained from interfering with the possession of the Wakf board excluding the family hadwad. Thereafter, the Wakf board filed O.S No.147/1986 before the Additional Munsiff Court, Raichur for declaration that the judgment/s and decree/s passed in O.S No.34/1961 (stated - 5 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 as O.S No.34/1967 in para Nos.5 and 6 of the petition), R.A No.40/1970 and R.S.A No.1518/1973 are void as no notice was issued to the Wakf Board as mandated under Section 57 of the Wakf Act, 1954. The suit - O.S No.147/1986 was closed and the plaint was ordered to be returned to the plaintiff's counsel for want of jurisdiction in terms of the order dated 20.12.1995 passed by the Additional Munsiff, Raichur and against the said order, the Wakf Board filed M.S.A No.1/1996 before this Court and the second appeal was disposed off on 17.01.1997 directing the Wakf Board to file an appeal before the Civil Judge. It is stated that the Wakf Board did not file any appeal and therefore, the judgment passed in R.A No.40/1970 is final and binding on the Wakf Board. (iv). The petitioner contends that his uncle - Mr. Mohd. Ismail filed O.S No.77/1986 for perpetual injunction against the respondent No.2 and others. In the said suit, an application was filed by the Wakf Board for impleadment. The application was rejected and the suit was dismissed on 08.11.1994. Later, the uncle of the petitioner filed R.A No.6/1995, which was renumbered as R.A No.37/2000. The appeal was allowed partly and the judgment and decree dated 08.11.1994 passed by the - 6 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 Additional Munsiff, Raichur, in O.S. No.77/1986 was set aside and the said suit was decreed in part and the defendants in the suit / respondents therein were permanently restrained from interfering with the possession of the hadwad of the family of the uncle of the petitioner herein. (v). The petitioner contends that the Wakf Board having suffered decrees as stated above, entertained a petition filed by the respondent No.2 for eviction of the petitioner and others under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (henceforth referred to as the 'Act, 1974'). The respondent No.3 issued notice to the petitioner who filed his objections and also raised objections regarding maintainability of the petition. However, the respondent No.3 in terms of the order dated 28.07.2017, allowed the petition and directed the petitioner to vacate the schedule premises within 45 days of the date of publication of the said order. (vi). Being aggrieved by the said order, the petitioner filed an appeal in M.A. No.28/2017 before the II Additional District and Sessions Judge, Raichur (henceforth referred to as - 7 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 'the District Court') under section 10(1) of the Act, 1974. The District Court in terms of the judgment dated 30.01.2019, dismissed the said appeal filed by the petitioner herein and confirmed the order dated 28.07.2017 passed by the respondent No.3 herein. 3. Being aggrieved by the said orders passed by the respondent No.3 and the District Court, the petitioner is before this Court. 4. Learned Senior counsel for the petitioner submitted that the decree in R.A No.40/1970 recognized the family hadwad of the petitioner herein and therefore, the petitioner is entitled to be in possession of the hadwad. He contends that a family hadwad is not a 'public premises' as defined under Section 2(e) the Act, 1974 and therefore, the impugned orders passed by the respondent No.3 and the District Court respectively, are liable to be set aside. He contends that as per the sketch prepared by the respondent No.2, it was alleged that the petitioner has put tin sheds in the family hadwad. He contends that therefore, the respondent No.2 has no right to evict the petitioner. Besides this, he contends that the - 8 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 petitioner and others are small vendors who are eking out their livelihood in the bunk shops that they have put. He contends that the impugned order passed by the respondent No.3 and confirmed by the District Court are without jurisdiction and are liable to be set aside. 5. Per contra, the learned counsel for the respondent Nos.1 and 3 submitted that the petitioner has no right to squat over any portion of the public graveyard and do business. He, therefore, contended that the impugned order dated 28.07.2017 passed by the respondent No.3 and confirmed by the District Court is just and proper. He also contends that the decree in R.A. No.40/1970 merely recognized a part of the public graveyard as a family hadwad and except burying the dead, the petitioner has no right to squat over any portion of the graveyard. 6. Learned counsel for the respondent No.2 also reiterated the above contentions and submitted that the petitioner has no right to squat over the graveyard. 7. I have considered the submissions of the learned Senior counsel for the petitioner as well as the learned counsel - 9 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 for the respondent Nos.1 and 3 and learned counsel for the respondent No.2. 8. The decree passed in R.A. No.40/1970 did not confer any title over the family hadwad of the petitioner's uncle but merely declared that the appellant / plaintiff in O.S. No.34/1961 had his family hadwad on the north western corner of the public graveyard near the fort wall in Androon khilla and within the boundaries as referred to in the said judgment. The respondents in R.A.No.40/1970 / defendants in the suit were restrained from burying the dead in the family "hadwad" of the plaintiff. The Court consciously declared that the appellant / plaintiff had no title to the suit graveyard and is not entitled to claim possession of any portion of the suit graveyard from the defendant No.2. Therefore, the claim of the petitioner in this petition that his uncle was the owner of the property mentioned in O.S. No.34/1961 is false and untenable. It may be that the uncle of the petitioner had filed E.P. No.99/1983 for identifying the area of the family hadwad and that a Court Commissioner appointed had submitted his report which was accepted by the Executing Court. It may also be that Mr.Syed Ghouse Mohiuddin / respondent No.2 had filed C.R.P No.1110/1986 - 10 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 before this Court challenging an order passed by the Executing Court, which was dismissed. The respondent No.1 may have filed a suit in O.S. No.147/1986 against the uncle of the petitioner for declaration that the decree in R.A. No.40/1970 was not binding upon it. The uncle of the petitioner may have filed an application in the said suit for return of the plaint and an order may have been passed directing the respondent No.1 to file a suit before the competent Forum. These proceedings however did not change the character of the graveyard and for all practical purposes, continued to be a public graveyard, part of which was recognized as the graveyard of the family of the petitioner. The right of the uncle of the petitioner in respect of hadwad was only to the extent of burying any person of his family who died. The petitioner and any of his family members did not have any title and were not entitled to claim possession of the family hadwad. A 'Public premises' is defined under Section 2(e) of the Act, 1974 and the same reads as follows: "(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.- - 11 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 (i) xxx (ii) xxx (iii) xxx (iii-a) xxx (iv) xxx (v) a Wakf, registered with the Karnataka State Board of Wakfs; (Underlining by Court) The term 'Unauthorised occupation' is also defined under Section 2(g) of the Act, 1974 and the same reads as follows: "g) “Unauthorised occupation” in relation to any public premises, means the occupation by any person of the public premises, without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever." In view of the judgment dated 04.01.1973 passed by the Civil Judge, Raichur in R.A. No.40/1970, which categorically held that the family hadwad claimed by Mr. Mohammed Ismail was part of a public graveyard where his family members who died were buried, it cannot now be disputed that the 'schedule - 12 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 premises' mentioned in the impugned order passed by respondent No.3 dated 28.07.2017 was a public premises. The right if any preserved in the judgment in R.A.No.40/1970 was that the petitioner's uncle and his family members were entitled to bury any member of their family who died. Likewise, no other Mohammedan could bury the dead in the family hadwad of the petitioner. Except this, the petitioner and his family members had no other right or title and were not entitled to claim exclusive possession over the family hadwad. The petitioner had erected four tin sheds in the area of the Dargah and therefore, was an unauthorized occupant of "Public premises" and was therefore, liable to be evicted. The impugned order passed by the respondent No.3 discloses that the respondent No.3 had caused a notice under Section 4(1) of the Act, 1974 following which the petitioner had filed objections. The respondent No.3 held proceedings and recorded the evidence and thereafter, passed an order under Section 5 of the Act, 1974. Therefore, there is absolute compliance of the provisions of the Act, 1974. Since the petitioner is in unauthorized occupation of a ‘Public premises’, the impugned order passed by the respondent No.3 is just and - 13 - NC: 2025:KHC-K:779 WP No. 201455 of 2019 proper. The impugned order passed by the District Judge is also just and proper in the facts and circumstances of the case. Hence, there is no merit in this petition. However, the petitioner is granted time of three months from the date of receipt of a copy of this order to voluntarily vacate the schedule premises failing which the respondents are at liberty to take such steps as are required to execute the orders impugned in this petition. The writ petition is disposed off on the above terms. Sd/- (R.NATARAJ) JUDGE SMA List No.: 1 Sl No.: 36 CT:SI