- 1 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT APPEAL NO. 100503 OF 2023 (GM-WAKF) BETWEEN: 1. THE KARNATAKA WAKF BOARD, NO.6, CUNNINGHAM ROAD, BANGALORE-560052, REP. BY ITS CHIEF EXECUTIVE OFFICER. 2. COMPETENT OFFICER UNDER KARNATAKA PUBLIC PREMISES ACT, KARNATAKA WAQF BOARD, NO.6, CUNNINGHAM ROAD, BANGALORE-52. 3. PEER SHAH KHATALWALI DARGAH TRUST, OLD P.B.ROAD, BELGAUM-590005, REPRESENTED BY ITS MANAGING TRUSTEE. …APPELLANTS (BY SRI. B. MUHAMMED ALI, ADVOCATE) AND: 1. SRI. AVINASH S/O. JAYAWANTH DESAI, AGE: 45 YEARS, R/O. DESAI ROAD, KAKATI DIST. BELGAUM-591113. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 2. SMT. LEELAVATHI W/O. JAYAWANTH DESAI, AGE: 70 YEARS, R/O. DESAI ROAD, KAKATI DIST. BELGAUM-591113. 3. SMT. ARCHANA W/O. PRAMOD LAMBE, AGE: 50 YEARS, R/O. DESAI ROAD, KAKATI BELGAUM-591113. 4. SMT. MAMTA W/O. RAMESH BHARMADE, AGE: 48 YEARS, R/O. DESAI ROAD, KAKATI, BELGAUM-591113. 5. SRI. SADANAND S/O. SHANKAR RAO DESAI, AGE: 88 YEARS, R/O. LEESBURG, VIRGINIA, USA-20175, REP. BY HIS GPA HOLDER SRI. AVINASH S/O. JAYAWANTH DESAI, AGE: 45 YEARS. …RESPONDENTS THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.6306/2008 (GM-WAKF) AND TO ALLOW THE WRIT APPEAL AND ETC. THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL - 3 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV) The present writ appeal has been filed by the Karnataka State Wakf Board calling in question the correctness of the order passed by the learned Single Judge in W.P.No.6306/2008. By virtue of the order passed in W.P.No.6306/2008, the petition filed by Avinash and Others questioning the notice dated 25.10.2007 issued by the competent officer under the Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 (for short, ‘the Act’) came to be allowed setting aside such show-cause notice. Learned Single Judge had come to a finding that the power to adjudicate under the Act being limited, all substantive contentions which require adjudication touching upon the title are the matters that could be decided only by the Wakf’s Tribunal under Section 83 of the Act. Learned Single Judge while allowing the petition, had observed in the operative portion of the order as follows: - 4 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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. 2. The said order is called in question by the Wakf Board. 3. Parties are referred to by their ranks in the writ proceedings for the sake of convenience. 4. The learned counsel for the Wakf Board has assailed the order of the learned Single Judge and submitted that the persons in occupation were claiming - 5 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 rights under a suit in O.S.No.269/1947 and that suit was decided in the absence of the Wakf Board and therefore, is not binding on the Wakf Board. 5. It is further submitted that certain observations as regards its legal effect were also made in a Civil Revision Petition and accordingly, the learned Single Judge ought to have noticed that the rights claimed by the occupants were one that could have been decided under the provisions of the Act. 6. Perused the order of the learned Single Judge. The relevant observations of the order from paragraph Nos.13 to 22 are of relevance and are extracted as below: “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 - 6 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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 at paragraph Nos.47, 48, 49 and 50 has held as under: “47. The question involved in Express Newspapers case 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 - 7 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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. - 8 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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). 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 - 9 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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. - 10 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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 - 11 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 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 of 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.” 7. A perusal of the above said observations make it clear that the occupants have placed reliance on lease granted by private individuals, while the Wakf Board contends that such lease is non-est in law, clearly the question regarding entitlement of the parties including - 12 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 whether the property belongs to Wakf or not and whether the Wakf can seek for vacation of the occupants or not as noticed in paragraph No.14 is an issue to be decided. Though counsel for the Karnataka Wakf Board would vehemently contend that the occupants cannot trace their title to any valid document, that very defence raised however, feeble is an aspect that cannot be adjudicated by the authority under the Act. 8. In light of the law laid down by the Apex Court in the case of Kaikhosrou (Chick) Kavasji Framji Vs. Union of India and another, reported in (2019) 20 SCC 705, it is clear that all questions which raise a issue which requires adjudication are the matters that has to be decided by a Civil Court and where the powers of the Civil Court have been vested to a Tribunal under Section 85 of Wakf Act. We find that the approach of the learned Single Judge to be in consonance with the law. We make it clear that we are not expressing any opinion regarding the legality of the contentions raised and noticed by the - 13 - HC-KAR NC: 2025:KHC-D:10031-DB WA No. 100503 of 2023 learned Single Judge and leaving all contentions of both sides open to be decided in the manner as contemplated by the learned Single Judge i.e., by taking recourse to proceedings under Section 83 of the Wakf Act. Accordingly, the petition is disposed off. It is clarified that the findings of the Single Judge in the writ proceedings or by this Court are not to be construed to be findings on merits of the contentions and are limited to the present proceedings and would not bind the parties in subsequent proceedings by the Appellant. 9. Needless to state that the appellants are at liberty to pursue appropriate proceedings as is permissible for the purpose of evicting the occupants. Sd/- (S.SUNIL DUTT YADAV) JUDGE Sd/- (VIJAYKUMAR A.PATIL) JUDGE RKM /CT-AN List No.: 1 Sl No.: 3