THE KARNATAKA STATE BOARD OF WAKFS, vs. THE STATE OF KARNATAKA,

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 21ST DAY OF APRIL, 2021 PRESENT

THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

AND

THE HON’BLE MR.JUSTICE E.S.INDIRESH

WRIT APPEAL NOS.31367-71/2013 (LR) C/W. WRIT APPEAL NOS.31356/2013 & 100094-97/2014

IN WA NOS.31367-71/2013

BETWEEN

REP. BY ITS CHAIRMAN, D.AYAZ AHAMED S/O D. SHAIKVALI, TANK BUND ROAD, BELLARY. BELLARY DISTRICT

: 2 : (BY SMT. S.R. ANURADHA AND SRI. D.L. LADKHAN, ADVOCATES)

AND

3A. HABEEBUNNISA BEGUM W/O LATE MULLA IBRAHIM BAIG, AGED: ABOUT 63 YEARS, R/O: GOLDSMITH COLONY, NO.62/28, I STAGE, 3RD CROSS, BANDIHALLI RAOD, COWL BAZAR BUILDING, BELLARY-02

3B. M. RIYAZ ALI AHMED BAIG S/O LATE MULLA IBRAHIM BAIG, AGED: 33 Y EARS, R/O: GOLDSMITH COLONY, NO.62/28, I STAGE, 3RD CROSS, BANDIHALLI ROAD, COWL BAZAR BUILDING, BELLARY 02

SINCE DECEASED REPRESENTED BY HIS LRS

4A. NOORJAHA USMAN BAIG

W/O LATE MULLA USMAN BAIG

AGED ABOUT 70 YEARS,

OCC: AGRICULTURE

: 3 :

4B. JANEY BAIG

S/O LATE MULLA USMAN BAIG

AGED ABOUT 48 YEARS, OCC: AGRICULTURE

4C. ROSHAN ARA

S/O LATE MULLA USMAN BAIG

AGED ABOUT 46 YEARS,

OCC: AGRICULTURE

RESPONDENTS 4(A) TO 4(C) ALL ARE

R/O PLOT NO.67, KHADEER MANZIL,

2ND CROSS, SHANKAR COLONY,

S.N.PET, GALUA, DISTRICT BELLARY.

5A. SMT.RAZIYA BEGUM

W/O LATE M USMAN BAIG

AGED ABOUT 59 YEARS,

OCC: AGRICULTURE

R/O VISHWANATHPURAM, DOOR NO.49, WARD NO.16

NEAR GOVERNMENT GUEST HOUSE

TQ AND DIST: BELLARY.

5B. M. ABBAS BAIG S/O LATE M.USMAN BAIG

AGED ABOUT 43 YEARS,

OCC: AGRICULTURE

R/O HMJ DARGHA COMPOUND

WARD NO.15, OPP. SANGAM TALKIES

TQ AND DIST: BELLARY.

(AMENDMENT CARRIED OUT AS PER

COURT ORDER DT: 16.12.2015)

: 4 : 6A. M.AMMERSAB S/O LATE ABDUL RAHIMSAB

AGE: 62 YEARS, R/O SRINIVAS NAGAR

SIRUGUPPA ROAD,

AVVAMMA BHAVI, BELLARI

6B. M.RASHEED AHMED S/O LATE ABDUL RAHIMSAB

AGE: 56 YEARS, R/O SRINIVAS NAGAR

SIRUGUPPA ROAD,

AVVAMMA BHAVI, BELLARI

6C. M.BASHIR AHMAD S/O LATE ABDUL RAHIMSAB

AGE: 39 YEARS, R/O SRINIVAS NAGAR

SIRUGUPPA ROAD,

AVVAMMA BHAVI, BELLARI

6D. M.HALEEMA BEE W/O LATE ABDUL RAHIMSAB

AGE: MAJOR, R/O SRINIVAS NAGAR

SIRUGUPPA ROAD,

AVVAMMA BHAVI, BELLARI

(AMENDMENT CARRIED OUT AS PER

COURT ORDER DT: 27.01.2021)

(BY SRI. SHIVAPRABHU S HIREMATH, AGA FOR R1 AND R2, SRI.V.M.SHEELAVANT, ADV FOR C/R3(A)-(B), 4(B), 6(A-D) & R8; R4(A), R4(C), R5(A), R5(B) AND R7 ARE SERVED)

THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, AND RULE 27 OF THE WRIT PROCEEDINGS RULES, PRAYING TO, SET ASIDE THE

: 5 : ORDER OF THE LEARNED SINGLE JUDGE IN W.P.NO.68246/2010 & W.P.NO.68713-716/2010 DATED 09/10/2013 & THE ORDER OF THE LAND TRIBUNAL, BELLARY DATED 08/09/2010 PASSED IN NO.5134/84-85, 512/83-84, 1013/84-85, 487/84-85 & 5139/84-85 VIDE ANNEXURE-K IN THE WRIT PETITION AND FURTHER DIRECT LAND TRIBUNAL TO HOLD FRESH ENQUIRY AFTER ISSUING NOTICE TO THE APPELLANTS AND ETC.

IN WA NOS.31356/2013 & 100094-97/2014

BETWEEN

MULLA HUSSAIN BAIG, S/O AMEER SABU @ MULLA AMIR BAIG AGE: 53 YEARS, OCC: AGRICULTURE/ TEA SELLER, R/O MOCHIBEEDI, BRUCEPET, BANGALORE ROAD, BELLARY. …APPELLANT (BY SRI. F.V.PATIL, ADVOCATE)

AND 1. THE LAND TRIBUNAL, BELLARY

M. YOUSUF BAIG SINCE DECEASED BY LRS,

M IBRAHIM BAIG S/O YOUSUF BAIG, SINCE DECEASED BY LRS

: 6 : S/O MULLAR IBRAHIM BAIG, AGED: ABOUT 32 YEARS.

BOTH ARE R/O: GOLDSMITH COLONY, NO.62/28, 1ST STAGE, 3RD CROSS, BANDTHATTI ROAD COWL BAZAAR, BELLARY-2

7A. NOORJAHA OSMAN BAIG

W/O LATE MULLA OSMAN BAIG

AGE: 70 YEARS, OCC: AGRICULTURE

7B. JONEY BAIG S/O LATE MULLA

OSMAN BAIG, AGE: 48 YEARS,

OCC: AGRICULTURE

7C. ROSHAN ARA S/O LATE MULLA

OSMAN BAIG, AGE: MAJOR,

OCC: AGRICULTURE

7(A) TO 7(C) ARE RESIDING AT

C/O PLOT NO.67, KHADEER MANZIL,

2ND CROSS, SHANKAR COLONY,

S.N.PET, TQ AND DIST: BELLARY.

: 7 :

8A. SMT.RAZIYA BEGUM

W/O LATE M.OSMAN BAIG,

AGE: 59 YEARS, OCC: AGRICULTURE

R/O VISHWATHPURAM, DOOR NO.49

WARD NO.16, NEAR GOVERNMENT GUEST HOUSE

TQ AND DIST: BELLARY.

8B. M.ABBAS BAIG S/O LATE M.OSMAN BAIG,

AGE: 46 YEARS, OCC: AGRICULTURE,

R/O MMJ DARGHA COMPOUND

WARD NO.15, OPP. SANGAM TALKIES,

TQ AND DIST: BELLARY.

M. ABDUL RAHEEM SAB SINCE DECEASED BY LRS

9A. M.AMEERSAB

S/O LATE ABDUL RAHIMSAB

9B. M.RASHEED AHMED S/O LATE ABDUL RAHIMSAB

9C. M.BASHIR AHMAD S/O LATE ABDUL RAHIMSAB

9D. M.HALEEMA BEE W/O LATE NAZIR AHMAD

ALL ARE RESIDENTS OF SRINIVAS NAGAR SIRUGUPPA ROAD, AVVAMMA BHAVI, BELLARI.

: 8 : PINJARAVADI PANJE ASHOOR KHANA BELLARY, REP. BY PRESIDENT

(BY SRI.SHIVAPRABHU S HIREMATH, AGA FOR R1 & R11; SMT. S.R.ANURADHA AND SRI.D.L.LADKHAN, ADVS. FOR R2; SRI.V.M.SHEELAVANT, ADV. FOR C/R3 TO 6, 7(A), 7(C), 8(A-B), 9(A-D); SRI P. ABDUL, ADVOCATE FOR R10; R7(B) SERVED)

THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, AND RULE 27 OF THE WRIT PROCEEDINGS RULES, PRAYING TO, SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE IN W.P.NO.60570/2011 DATED 09/10/2013 BY ALLOWING THESE APPEALS AND THE WRIT PETITION MAY KINDLY BE ALLOWED BY QUASHING THE IMPUGNED ORDER DATED BELLARY DATED 08/09/2010 PASSED IN NO.5134/84-85, 512/83-84, 1013/84-85, 487/84-85 & 5139/84-85 VIDE ANNEXURE-A PASSED BY THE LAND TRIBUNAL, BELLARY-RESPONDENT NO.1.

IN THESE APPEALS ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, INDIRESH, J., DELIVERED THE FOLLOWING:

J U D G M E N T

Appellants in Writ Appeals No.31367-71 of 2013 are the petitioners in Writ Petition No.68246 of 2010 and connected matters; and appellant in Writ Appeal No.31356 of 2013 is the

: 9 : petitioner in Writ Petition No.60570 of 2011. Appellants in these appeals have assailed the order dated 09th October, 2013 passed by the learned Single Judge in the aforesaid writ petitions. 2. Brief facts of the case for the purpose of adjudication of these appeals are as follows:- It is the case of the appellants in Writ Appeals No.31367- 71 of 2013 that the lands in question are part of Sy.No.184, 192 and 868 measuring 70 acre 42 cents; 12 acre 72 cents; and 10 acre 89 cents respectively, situated at Ballari. The contesting private respondents claimed occupancy rights in respect of different portions of the aforementioned lands by filing Form No.1 under the provisions of Karnataka Certain Inams Abolition Act, 1977 (for short hereinafter referred to as ‘Inams Abolition Act’). They claimed that they were cultivating the land as inamdars right from the period of their ancestors and the subject land was in their absolute possession and ownership. Before the Land Tribunal, they denied that the subject land was a Waqf property and averred that the Waqf Board, Ballari had no right over the lands in question. The Land Tribunal, by its order dated

: 10 : 08th September, 2010 (produced as Annexure-K to the writ petition) granted occupancy rights in their favour. 3. The appellant/Waqf Board contended that the contesting respondents were appointed as Mutawalis on 15th April, 1976 and hence they had no right to claim occupancy rights insofar as the lands in question. It is further stated by the appellant-Waqf Board that the entries in the revenue records disclose the name of the District Waqf Board, pursuant to the notification dated 17th October, 1964. It is also the case of the appellant-Board that, the lands in question had been declared as Waqf property and therefore, conferment of occupancy rights in favour of the private contesting respondents by the Land Tribunal was contrary to records. The Land Tribunal, without affording opportunity to the appellants herein, passed the order Annexure-K dated 08th September, 2010 and as such, the appellants filed Writ Petition No.68246 of 2010 and connected matters before this Court, challenging the order of the Land Tribunal. 4. Appellant in Writ Appeal No.31356 of 2013 who was the petitioner in Writ Petition No.60570 of 2011, challenged the

: 11 : order passed by the Land Tribunal dated 08th September, 2010 and contended that the father of the petitioner was the owner of the property in question and that without impleading him, the Land Tribunal granted occupancy rights in favour of the contesting respondents/applicants. It is also his contention that the lands in question were not Waqf property and as such, he filed a Suit, OS.No.254 of 2005 before the II Additional Civil Judge (Jr.Dn.) Ballari, seeking declaration and consequential relief in respect of subject lands. It is the contention of the writ petitioner that the Land Tribunal, without considering the factual aspects of the case and having not considered his legitimate right in the right perspective, granted occupancy rights in favour of the contesting respondents herein. The two writ petitions were clubbed, heard together, and dismissed by the learned Single Judge, by order dated 09th October, 2013, which is impugned in these writ appeals. 5. We have heard Smt. S.R. Anuradha, learned counsel appearing for the Waqf Board/appellants in Writ Appeals No.31367-71 of 2013; Sri F.V. Patil, learned counsel appearing for the Appellant in Writ Appeal No.31356 of 2013; Sri V.M.Sheelavant, learned counsel appearing for the contesting

: 12 : private respondents; and Sri Shivaprabhu S Hiremath, learned Additional Government Advocate appearing for the respondent- State. 6. Smt. Anuradha, learned counsel appearing for the Waqf Board contended that the contesting respondents were appointed as Mutawalis of the Appellant No.3-Waqf. The lands in question are Waqf property registered under Section 5(2) of the Waqf Act, 1954 (for short hereinafter referred to as “Waqf Act”). The lands were granted to masjid as per title deeds No.2011 and 2695 (Annexure-M to the writ petition) pursuant to survey report submitted to the State Government by the Waqf Surveyor and therefore, it is the submission of Smt. Anuradha, that the contesting respondents were Mutawalis rendering service to the Masjid, inter alia, they were cultivating the lands in question as on 01st March, 1974 and prior to the said date also. She further contended that since lands in question were registered as Waqf properties under notification dated 17th October, 1964, these lands cannot be treated as inam lands, accordingly the applications made by the contesting respondents in Form No.1 under Inams Abolition Act were not maintainable before the Land

: 13 : Tribunal and this aspect of the matter was not considered by the learned Single Judge while passing the impugned order. 7. Emphasising on the facts of the case, Smt Anuradha argued that the District Waqf Committee was impleaded as respondent before the Land Tribunal, however, the Waqf Board was not a party before the Land Tribunal. She vehemently contended that the Land Tribunal ought to have issued notice to the Waqf Board under Section 13 of the Waqf Act before concluding the proceedings in favour of the contesting respondents. It is her submission that, as per Section 90 of the Waqf Act, in every suit or proceedings relating to title of the Waqf property, the Court or Tribunal is required to issue notice to the Waqf Board and in the instant case, entire proceeding before the Land Tribunal was conducted without hearing the Waqf Board, and therefore, the proceedings before the Land Tribunal was bad in law. She further argued that, since no notice had been issued to the Waqf Board by the Land Tribunal, entire proceeding before the Land Tribunal was illegal and as such, the finding recorded by the learned Single Judge that the District Waqf Committee was duly notified by the Land Tribunal and that the second appellant herein was made as respondent

: 14 : before the Land Tribunal is contrary to law and therefore, the impugned order requires to be set aside. 8. Emphasising on these lines, learned counsel appearing for the Waqf Board submitted that the District Waqf Committee is not a statutory committee and it has no statutory power either to represent Waqf Board or to protect Waqf property. She further submitted that Appellant No.3 is a Committee constituted for the management of the Waqf property by the Waqf Board and therefore, the finding recorded by the learned Single Judge that service of notice on District Waqf Committee (Appellant No.3) by the Land Tribunal was sufficient to hold that the interest of the Waqf property was taken care of, is illegal and unsustainable in law. She further contended that the finding recorded by the learned Single Judge confirming the order of the Land Tribunal is not sustainable under law as the record of rights produced by the appellants would clearly indicate that contesting respondents No.3 to 6 never cultivated the lands as inamadars so as to register occupancy rights under Inams Abolition Act and therefore, the impugned order of the Land Tribunal, affirmed by the learned Single Judge are illegal and are liable to be quashed.

: 15 : 9. Smt Anuradha, further, contended that the finding recorded by the learned Single Judge at paragraph 11 and 12 of the impugned Order is not correct and no cogent reasons are given while answering the issues involved in the writ petition. She further contended that, the relevant date of vesting of land under the Inams Abolition Act was 05th June, 1978 and the lands in question were dedicated for the management of the masjid and not in any individual capacity to the contesting respondents. She further contended that as per order dated 15th April, 1976, contesting respondents were appointed as Mutawalis and the lands were granted under Section 5(2) of the Inams Abolition Act and not under Section 5(3) of the said Act. Referring to provisions of Sections 4(1), 4(3), 4(5), 5(1), 5(2) and 6 of the Inams Abolition Act, she submitted that there was no material before the Land Tribunal to substantiate to confer occupancy rights in favour of the contesting respondents, in their individual capacity and the Land Tribunal ignored the factual aspects that the contesting respondents were rendering religious service in the masjid. 10. Nextly, Smt Anuradha contended that the contesting respondents were appointed as Mutawalis as per order dated

: 16 : 15th April 1976 and it is the duty of the mutawali to manage the affairs of the Waqf property and he has no personal right and he cannot be considered as tenant/inamadar and Mutawalis appointed by appellants herein cannot maintain application for grant of occupancy rights in respect of Waqf properties. Continuing her arguments on these lines, she submitted that the contesting respondents could not have claimed occupancy rights in respect of the lands by making Form No.1 in their personal capacity before the Land Tribunal under the provisions of the Inams Abolition Act. She further contended that the finding recorded by the learned Single Judge that the appellants herein have not produced any iota of material, like grant/sannat dedicating the property in question in order to establish their right in respect of the land in question, is without application of mind and same requires to be set right in these appeals. 11. Nextly, Smt Anuradha argued that in the year 1964 itself the lands in question were registered as Waqf properties and after 20 years, contesting respondents filed application for grant of occupancy rights and the same was accepted by the Land Tribunal without considering the nature of property or without providing an opportunity of hearing to the appellants

: 17 : herein, so also, without verifying the records and as such, the Land Tribunal acted illegally by registering the occupancy rights in favour of the contesting respondents and the same amounts to violation of principle of natural justice. It is her contention that once the property is dedicated as Waqf, it shall be always a Waqf property and this aspect of the matter was ignored by the learned Single Judge. She further contended that, learned Single Judge failed to consider the argument advanced by the writ petitioners with regard to application of Sections 5(2) or 5(3) of the Inams Abolition Act. To fortify her submission, she places reliance on the judgment of this Court in the case of KARNATAKA BOARD OF WAKFS v. HAZRATH ATTULLA SHAH DHARGAH reported in ILR 1992 KAR 586 for the proposition that the Waqf Board is an interested person under Section 5(2) of the Inams Abolition Act. She submitted that the above principle was reiterated in Writ Appeals No.5504-05/1998 and W.A.No.3633/2012. Further, she places reliance on the judgment of this Court in the case KARNATAKA BOARD OF WAKF BANGALORE v. LAND TRIBUNAL AND OTHERS reported in ILR 2000 KAR 1859 to the effect that the mutawali cannot be construed as a tenant in respect of land described as Waqf

: 18 : property. Learned counsel appearing for the Waqf Board referred to the judgment of the Hon’ble Supreme Court in the case of SYED MOHD. SALIE LABBAI (DEAD) BY LRS AND OTHERS v. MOHD. HANIFS (DEAD) BY L.Rs. AND OTHERS reported in AIR 1976 SC 1569 with regard to what constitutes dedication to Waqf; and also relied on the decision in the case of LANCO HILLS TECHNOLOGY PARK PRIVATE LIMITED v. MAHABOOB ALAM KHAN AND OTHERS reported in (1998) 2 SCC 642, for the proposition that once a Waqf, always a Waqf. 12. Sri F.V. Patil learned counsel appearing for the sole appellant in Writ Appeal No.31356 of 2013 and connected matters, submitted that the finding recorded by the learned Single Judge that the appellant is neither the owner of the land nor the inamdar or a tenant is not correct. He submitted that the finding recorded by the learned Single Judge that once land is vested with the State Government, only those who had filed Form No.1 or Form No.7 shall have a locus standi to maintain writ petition challenging the order passed by the Land Tribunal is wholly erroneous. It is his submission that the appellant is the owner of the land in question and he had produced record of rights before the learned Single Judge, but same were not

: 19 : considered while passing the impugned order. He further argued that, the contesting respondents or the Land Tribunal did not array the appellant in the Land Tribunal proceedings despite the fact that the appellant was the “interested person” and owner of the lands in question and as such, he submitted that the entire proceedings are liable to be remanded to the Land Tribunal for fresh consideration to afford fair opportunity of hearing to the appellant. It is further contended that the record of rights produced by the contesting respondents did not contain the name of the ancestors of the contesting respondents and this aspect of the matter was brushed aside by the learned single judge while passing the impugned order. He further contended that conferment of occupancy rights in favour of the contesting respondents by the Land Tribunal is without considering the material on record and that, same ought to have been interfered with by the learned Single Judge and therefore, he contended that the impugned order passed by the learned Single Judge requires to be set aside in these appeals. He places reliance on the judgment of this Court in the case of GOVINDAPPA v. STATE OF KARNATAKA AND OTHERS reported in ILR 1998 KAR 2215 to substantiate that the Land Tribunal ought to have issued notice

: 20 : to the appellant, being a owner of the land in question. He further relied upon the judgment of this court in the case of LAGMA v. THE LAND TRIBUNAL AND OTHERS reported in ILR 1998 KAR 417 and submitted that the Land Tribunal had granted occupancy rights in respect of the disputed land to the tenants (contesting respondents), which is wholly erroneous. 13. Sri F.V. Patil, further contended that as per Rule 4 of Inam Abolition Rules, 1975, whenever any application is made by any person other than the inamadar, the inamadar shall be made as respondent to the application and in the instant case, the appellants in these appeals were the inamadars and no notice was served on him by the Land Tribunal and therefore, there is procedural irregularity in conducting the proceedings by the Land Tribunal. He further submitted that the appellant got independent right in respect of the subject land by virtue of the gift deed executed by his grandmother and same is reflected in the revenue records and accordingly, he argued that the impugned order passed by the learned single judge requires to be set aside in this appeal.

: 21 : 14. Shri V.M. Sheelavant, learned counsel appearing for the contesting respondents, argued that the appellant in W.A.No.31356/2013 is neither a tenant nor an applicant before the Land Tribunal nor having any interest in the land in question and therefore, he refuted the arguments of Sri F.V.Patil and further submitted that the appeal itself is not maintainable. It is the submission of Sri V.M.Sheelavant that the predecessors of contesting respondents were issued with original grant certificate conferring title by the Inam Commissioner of Madras during 1861 bearing patta No.2011 and 2695 and these documents would convey that the predecessors of contesting respondents were the tenants in possession of the lands. He contended that the contesting respondents produced grant certificate before the Land Tribunal and evaluation of the finding recorded by the Tribunal would disclose that title of the lands in question had been granted in favour of the ancestors of the contesting respondents by the then Inam Commissioner, Madras vide certificate No.2011 and 2695 on behalf of the Governor in Council of Madras. Emphasising on these documents, he submitted that no conditions were imposed by virtue of these grant certificate by the Inam Commissioner. It is not stated in

: 22 : the grant certificate that the lands were endowed or dedicated to Masjid. He further argued that there is no document to show that the lands in question had been endowed for religious purpose or for the purpose of masjid and it is his categorical submission that the lands were granted to them for their own use; the grant would establish their ownership in their individual capacity and not that of masjid. 15. Refuting the submissions of Smt Anuradha with regard to not providing opportunity of hearing to the Waqf Board by the Land Tribunal, Sri V.M. Sheelavant submitted that the District Waqf Committee-appellant no.3 had been duly notified by the Land Tribunal, however, for the reasons best known to it, the District Waqf Committee did not appear before the Land Tribunal and there was no material before the Land Tribunal to establish that the lands in question was a Waqf property and therefore, he submitted that the Waqf Board cannot contend that it had not been issued with any notice by the Land Tribunal, that too at a belated stage in this appeal. The learned Single Judge, after considering the entire material on record, found that the notice was issued by Land Tribunal to the District Waqf Committee and same was served on them and they failed to

: 23 : appear before the Land Tribunal to establish their right in respect of the lands in question. 16. Shri V.M. Sheelavant contended that the Land Tribunal recorded a finding that applicants/contesting respondents, being inamadars, were in actual possession and cultivation of different portions of the lands in question and they were growing crops in the said lands. The Land Tribunal conducted spot inspection and found that the name of the District Waqf Board was erroneously entered in the revenue records in respect of the lands in question without issuing any notice to the actual occupants of the lands. Arguing on these lines, Sri V.M.Sheelavant submitted that, this aspect of the matter was considered in detail by the learned Single Judge and therefore he further submitted that no interference is called for in these appeals. He further pointed out that order dated 17th March, 1982 passed by the Land Tribunal, rejecting the claim of the District Waqf Board was challenged before this Court in Writ Petition No.27690 of 1982 and thereafter, same was re- registered as Writ Petition No.40029 of 1993. But the Waqf Board withdrew the aforesaid writ petition and in that view of the matter, the appellant/Waqf Board could not have re-agitated the

: 24 : matter afresh in the writ petition and therefore, the learned Single Judge, having taken note of the entire materials on record has passed the impugned order, which requires to be affirmed in these appeals. 17. Shri V.M. Sheelavant further submitted that the writ petition itself was not maintainable before the learned single judge as the appellants herein had claimed title in respect of the lands in question and same cannot be declared in the writ proceedings and the appellants ought to have filed suit before the competent court to urge their claim with regard to the subject lands. He further argued that the role of the contesting respondents as Mutawalis in the masjid is of a different capacity, and cultivation of the lands is in their individual capacity. He further contended that in the light of the order passed by the Land Tribunal, the lands cannot be identified and declared as Waqf property. There was no impediment for the appellants to contest before the Land Tribunal, however, for the reasons best known to it, Board did not contest the case on merits. The Land Tribunal, conferred occupancy rights under Section 5(2) of Inams Abolition Act in favour of the contesting respondents. Referring to the submission of the learned counsel appearing for

: 25 : the appellant, Shri Sheelavant submitted that no documents were produced by the appellants to treat the subject lands as a Waqf property as it is settled principle that Waqf should be dedicated for some pious, religious or charitable activities. No proof of dedication is proved by the appellant-Board and the Land Tribunal, after recognizing the service of the contesting respondents, re-granted the lands and therefore, the writ court, rightly held that the contesting respondents were holding title in respect of the subject land in their individual capacity and not as Mutawalis of Masjid and therefore, he submitted that the appeals filed by the Waqf Board and the private appellant require to be dismissed. 18. Sri Shivaprabhu Hiremath, learned Additional Government Advocate supported the order of learned Single Judge and produced the original records. 19. Smt Anuradha, in her reply, argued that applications made by the contesting respondents are under the provisions of the Karnataka Land Reforms Act, 1961 (for short hereinafter referred to as ‘KLR Act’) seeking occupancy rights and same cannot be considered for re-grant as the land comes under the

: 26 : provisions of Inams Abolition Act. She submitted that the contesting respondents have not produced the material before the Tribunal to consider their case for granting of occupancy rights as they were never tenants under a particular owner of the land in question. 20. We have carefully considered the arguments advanced by the learned counsel appearing for the parties, perused the writ appeal papers and examined the records produced by the learned AGA. 21. Before adverting to the facts of the case, it is relevant to consider the following provisions under different enactments. The Karnataka Certain Inams Abolition Act, enacted on 08th May, 1978 provides for abolition of some personal, religious and charitable inams in the State of Karnataka. Section 4 of the Inams Abolition Act provides for abolition, vesting of inams and consequences thereof. Section 5 of the Act confers right to some persons to be registered as occupants. Section 5 of the Act reads as hereunder: “5. Right to be registered as occupants.- Save as otherwise provided in this Act, with effect from and on the appointed date.-

: 27 : (1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered as an occupant of lands in respect of which he was a tenant immediately before first day of March, 1974; (2) where the inamdar is an institution of religious worship, a person,- (i) rendering religious service in or maintaining the institution as a pujari, archak or the holder of a similar office by whatever name called, or

(ii) rendering any service in such institution,

and personally cultivating for a continuous period of not less than three years prior to the first day of March, 1974, by contributing his own physical labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money or in kind to that institution in respect of such land, shall be entitled to be registered as an occupant of such land; (3) every inamdar including the holder of a minor inam, shall be entitled to be registered as an occupant of all lands it was personally cultivating immediately before the said date.”

: 28 : occupant of land should establish that (i) he was rendering religious service in or maintaining the institution as a Poojari, Archak of a Hindu Temple or of holder of a similar office whatever name called or was rendering any service in such institution; (ii) he was personally cultivating that land by contributing his own physical labour or that the members of his family, for a continuous period of not less than three years prior to 01st March, 1974; and (iii) he was enjoying the benefits of such land without paying rent, as such, in money or in kind to that institution in respect of such land. Before granting occupancy right, the Land Tribunal should examine whether the claimants had established that all the above requirements had been fulfilled. Plain reading of Section 5(2) provides that the person who is in continuous possession of the land three years prior to 01st March, 1974 shall be entitled to be registered as an occupant, whereas under Section 5(3), one should have held the subject land either as on 01st March, 1974 or prior to that date. The above two sub-sections under Section 5 of the said Act are provided to meet two different situations. A careful reading of provisions of Section 5(3) makes it clear that every inamadar who was personally cultivating the lands immediately prior to the

: 29 : appointed date was entitled to be registered as an occupant of the lands. Section 3(f) of Inams Aboliton Act defines “inamadar” to mean, “successor in interest” as well. Successors in interest, will necessarily mean a person deriving interest in a property either through a testamentary or intestate succession. Section 11 of the Inams Abolition Act provides for procedure for registration as an occupant. 23. The relevant provisions under the Waqf Act for the purpose of adjudication of these appeals are Sections 4 to 7, 13 and 90. Section 4 of the Waqf Act provides for preliminary survey, with due inspection, for the purpose of making notification under Section 5 of the Waqf Act. Section 5 provides for publication of list of properties belonging to the Board. Sections 6 and 7 provide for disputes relating to the Waqf property to be determined by the competent Tribunal under the Waqf Act. Section 13 of the Waqf Act provides for establishment of Board. Section 90 of the Waqf Act provides for issuance of notice of suits, the said Section reads thus: “90. Notice of suits, etc., by courts.—

: 30 : (1) In every suit or proceeding relating to a title to or possession of a wakf property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding. (2) Whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the court, Collector or other person under whose order the sale is notified. (3) In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf. (4) In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.” 24. The relevant provisions under Karnataka Land Reforms Act, 1961 for adjudication of these appeals are Section 44, 45 and 48(A). Section 44 of the KLR Act provides for vesting of lands in the State Government and the relevant date is of 1st

: 31 : March, 1974; Section 45 provides for tenants to be registered as occupants of land on certain conditions. Section 48(A) provides for enquiry to be made by the Tribunal for conferring occupancy rights in favour of the tenants. 25. The undisputed facts are that the contesting respondents filed Form No.1 under the provisions of Inams Abolition Act, seeking occupancy rights in relation to the lands. The Land Tribunal issued notice to the District Waqf Committee for arraying it as a respondent. The District Waqf Committee did not appear and contest the case before the Tribunal. It is also not in dispute that the District Waqf Committee had earlier sought grant of occupancy right in respect of the lands in question and the said application was rejected by the Land Tribunal on 17th March, 1982 and being aggrieved by the same, the District Waqf Committee filed Writ Petition No.27690 of 1982 before this Court. Thereafter, the said writ petition was transferred to the Appellate Authority, pursuant to the amendment made to the KLR Act. After abolition of the Appellate Authority, again the matter was reassigned to this Court and same was registered as Writ Petition No.40029 of 1993 and the said writ petition was dismissed as withdrawn on

: 32 : 11th October, 2001. Thereafter, no proceedings were conducted on behalf of the appellant or the District Waqf Committee and the same reached finality. Perusal of the Land Tribunal order, would indicate that the Tribunal conducted spot inspection and found that the inamadars-applicants/contesting respondents were in actual possession and cultivation of different portions of the land and that they were growing crops in the said lands. The Tribunal also found that certain construction had come up in the lands. The Tribunal, after considering the material on record and taking note of the fact that the District Waqf Committee had withdrawn the Writ Petition No.40029 of 1993 on 11th October, 2001 and another fact that the inam title deeds No.2695 and 2011 had been issued by then Madras Commissioner granting inam title land in favour of contesting respondents, recorded a finding that the applicants/contesting respondents were able to prove their right over the lands. The contesting respondents also produced certain land revenue receipts, establishing their possession and cultivation of the lands three years prior to 01st March, 1974 and accordingly granted occupancy rights under Section 5(2) of the Inams Abolition Act. The learned Single Judge, after elaborately discussing the fact that no conditions

: 33 : were imposed by the then Governor in Council of Madras, while issuing title certificates No.2011 and 2695 in the year 1861, and pointing out that the said lands were not endowed or dedicated to Masjid, gave a clear finding that the contesting respondents were not holding the lands in question as Mutawalis and there is nothing to show that it was an endowment in favour of the Masjid. 26. Section 3(r) of the Waqf Act provides for definition of Waqf. “Waqf” means a permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. In the instant case, there is nothing on record to show that there is a permanent dedication by any person for a definite purpose. Perusal of the record further indicates that the District Waqf Committee had been duly notified by the Tribunal and for the reasons best known to it, it did not contest the proceedings before the Tribunal and therefore, the contention raised by learned counsel appearing for the appellants cannot be accepted. Section 4 of the Waqf Act provides for preliminary survey. The same reads as under: “4. Preliminary survey of wakfs.—

: 34 : (1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Wakfs and as many Additional or Assistant Survey Commissioners of Wakfs as may be necessary for the purpose of making a survey of wakfs existing in the State at the date of the commencement of this Act. (1-A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013:

Provided that where no Survey commissioner of Waqf has been appointed, a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement. (2) All Additional and Assistant Survey Commissioners of Wakfs shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of Wakfs. (3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of wakfs existing at the date of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely:—

: 35 : (a) the number of wakfs in the State showing the Shia wakfs and Sunni wakfs separately; (b) the nature and objects of each wakf; (c) the gross income of the property comprised in each wakf; (d) the amount of land revenue, cesses, rates and taxes payable in respect of each wakf; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and (f) such other particulars relating to each wakf as may be prescribed. (4) The Survey Commissioner shall, while making any inquiry, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:— (a) summoning and examining any witness; (b) requiring the discovery and production of any document; (c) requisitioning any public record from any court or office; (d) issuing commissions for the examination of any witness or accounts; (e) making any local inspection or local investigation; (f) such other matters as may be prescribed. (5) If, during any such inquiry, any dispute arises as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed.

: 36 : (6) The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of wakf properties in the State and the provisions of sub-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a survey directed under sub-section (1): Provided that no such second or subsequent survey shall be made until the expiry of a period of twenty years from the date on which the report in relation to the immediately previous survey was submitted under sub- section (3). Provided further that the waqf properties already notified shall not be reviewed again in subsequent survey except where the status of such property has been changed in accordance with the provisions of any law.” (Emphasis supplied by us) 27. Section 4(3) of the Waqf Act contemplates about inquiry. The Survey Commissioner, after conducting inquiry, shall file a report to the Government about the particulars of the property, purpose and such other information relating to dispute. Section 4(4) of the Waqf Act deals with the applicability of the Code of Civil Procedure while making inquiry by the Survey Commissioner. Section 5 of the said Act envisages about the filing of report by the Survey Commissioner under section 4(3)

: 37 : to the Government for appropriate decision. Rule 4 of the Karnataka Waqf Rules provides for submission of report by the Survey Commissioner to the Government and it shall be in Form No.1. No arguments were addressed by the learned counsel appearing for the appellants to establish that such an inquiry was conducted by the Survey Commissioner before notifying the subject land as Waqf property. If at all any such inquiry was conducted by the Survey Commissioner as per Section 4(3) of Waqf Act, such authorities ought to have heard such persons in whose possession the land lay. Nothing is forthcoming during the hearing of the learned counsel for the parties in these appeals. Hon'ble Supreme Court in the case of BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADHA KISHAN AND OTHERS reported in (1979)2 SCC 468 had an occasion to discuss the scheme of Waqf Act, particularly, with reference to Sections 4, 5 and 6 of the Waqf Act. The observations made at paragraphs 21 to 28 of the judgment, read as follows: “21. The Wakf Act, 1954 does, in our opinion, furnish a complete machinery for the better administration and supervision of wakfs. Though sub-s. (3) of s. 4 of the Act is rather unhappily worded, it is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act,

: 38 : and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia. Further, when there is no ambiguity in the statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions rendered therein.

: 39 : was clearly in error in cur tailing the ambit and scope of an enquiry by the Commissioner of Wakfs under sub-s. (3) of s. 4 and that by the Board of Wakfs under s. 27 of the. Act.

"The heading of section 4 with which this chapter started was 'Preliminary survey of wakfs'. The use of the word 'Preliminary' in the heading is one of significance.

The weight of authority is in favour of the view that the marginal note upended to a section cannot be used for construing the section. Lord Macnaghten in Balraj Kunwar v. Jagatpal Singh(1) considered it well settled that marginal notes cannot be referred to for the purposes of construction. This Court after referring to the above case with approval, said in Commissioner of Income-Tax v. Ahmedbhai Umedbhai Umarbhai & Co.:

"Marginal notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construe the statute."

As explained by Lord Macnaghten in the Privy Council, marginal notes are not part of an Act of Parliament.

: 40 : Board and neither the Commissioner nor the Board is required to make any enquiry regarding, the character of the property. That is to say, the making of survey is only an administrative act and not a quasi-judicial act. But, on a closer examination, it is, clear that while making a survey of the existing wakfs in a State under sub-s. (1) of 5. 4, the Commissioner is required by sub-s. (3) to submit a report to the State Government in regard to the serval matters referred to in cls. (a) to (f) thereof. There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards (a) the existence of a wakf, i.e. whether a particular property is wakf property, (b) whether it is a Shia wakf or a Sunni wakf, (c) extent of the property attached to the wakf, (d) the nature and object of the wakf, etc. While making such an enquiry, the Commissioner is invested by sub-s. (4) with the powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of the summoning and examining of any witness, requiring the discovery and production of any document, requisitioning any public record from any court or office, issuing commissions for the examination of any witness or accounts, making any local inspection or local investigation etc. In view of these comprehensive provisions, it is not disputed before us that the enquiry that the Commissioner makes for the purpose of submission of his report under sub-s. (3)? while making a survey of existing wakfs in the Estate under sub-s. (1), is not purely of an administration nature but partakes of a quasi-judicial in character, in respect of the persons falling within the scope of sub-s. (1) of s. 6.

: 41 :

"The State Government may, by notification in the official Gazette, appoint for the State a Commissioner of Wakfs... for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act."

It will be clear that the words "for the purpose of making a survey of wakf properties" is a key to the construction of the section The ordinary meaning of the word "survey", as given in the Random House Dictionary of English Language, is 'to take a general or comprehensive view of or appraise, as a situation'. If the Commissioner of Wakfs has the power to make a survey, it is but implicit that in the exercise of such power he should enquire whether a wakf exists. The making o such an enquiry is a necessary concomitant of the power to survey. The High Court was clearly in error in observing:

"Except sub-section (5) there is nothing in section 4 or in the rules made by the State to show that the Commissioner is empowered to adjudicate

: 42 : on a question, if one arises, whether a particular property is a wakf property or not."

"If any question arises whether a particular property specified as wakf property in a list of

: 43 : wakfs published under sub section (2) of section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf .... "

They clearly envisage that the enquiry by the Commissioner is not con fined to the question as to whether a particular wakf is Shia wakf or Sunni wakf. It may also embrace within itself a dispute as to whether a wakf exists. This is a conduction which sub-s. (1) of s.4 must, in its context and setting, bear. Any other construction would, indeed, make the Act unworkable.”

: 44 : appellant with regard to aforementioned case cannot be made applicable to the case on hand. 29. Insofar as law declared by this Court in KARNATAKA BOARD OF WAKF BANGALORE (supra), this Court set aside the conferment of occupancy right in respect of fourth respondent therein and held that the subject land was a waqf property. The facts of the said case is different from the facts of the case on hand, as the Commissioner for Madras, way back in 1861 itself registered the lands in favour of the predecessors of the contesting respondents and the said aspect of the matter was rightly considered by the learned Single Judge in the impugned order. 30. We have also considered the law declared by the Hon'ble Supreme Court in the case of SYED MOHD. SALIE LABBAI (supra) and in the case of LANCO HILLS TECHNOLOGY PARK PRIVATE LIMITED. The law declared by the Hon'ble Supreme Court in the above said cases is, once a Waqf, always a Waqf. The factual aspects of the present case would indicate that even prior to the issuance of the notification in the year 1964 by the respondent-Board notifying the lands as Waqf

: 45 : property, the then Commissioner for Madras by his order passed during 1861, granted occupancy right in favour of the predecessors of the contesting respondents by issuing patta No.2011 and 2695, and therefore, prior to notifying the subject land as the waqf property, no notice or fair opportunity of hearing was given to the contesting respondents and the Waqf Board unilaterally passed an official gazette notifying the subject land as waqf property. Therefore, the law declared by the Hon'ble Supreme Court in the aforementioned cases is also not applicable to the case on hand. 31. It is also relevant to mention that Section 4(2)(b) of Inams Aboliton Act provides that all rights, title and interest of the inamadar ceased and vested absolutely in the State Government. Section 5(2) of the Inams Abolition Act provides that where the inamdar is a Religious Institution, a person rendering service in such institution and personally cultivating the land for a continuous period not less than three years prior to 01st March, 1974 shall be entitled to be registered as an occupant of such land. Section 5(3) of the Inams Abolition Act provides that every inamdar including the holder of a minor inam shall be entitled to be registered as an occupant of all lands

: 46 : which was cultivating personally, immediately before 01st March, 1974. Perusal of the record would indicate that the land being an inam land stood vested in the State Government. The District Waqf Committee claimed occupancy by filing Form No.1 in the year 1982, and it was rejected by the Land Tribunal earlier and thereafter, the said order was questioned in Writ Petition No.40029 of 1993 before this Court and pursuant to the plea made by the writ petitioner (District Waqf Committee), the said Writ Petition came to be dismissed as withdrawn on 11th October, 2001. The said order has reached finality and the same is binding on the parties. In these appeals, appellant No.2 is the District Waqf Advisory Committee and appellant No.3 is the Managing Committee of Pinjaravadi Panje Ashoor Khana, a Committee constituted under Section 18 of the Waqf Act. These two appellants cannot urge that the said finding made by the Land Tribunal earlier is not binding on them. 32. We have also carefully considered the finding recorded by the Land Tribunal. The same reads as hereunder: “F ¥ÀæPÀgÀtzÀ°è CfðzÁgÀgÁzÀ ²æÃ.ªÀÄįÁè G¸Áä£ï ¨ÉÃUï EªÀgÀÄ vÀºÀ²Ã¯ÁÝgÀgÀÄ, §¼Áîj EªÀjUÉ ¢£ÁAPÀ: 24.08.2010 gÀAzÀÄ

: 47 : ¸À°è¹zÀ PÉÆÃjPÉ CfðAiÀÄ°è ¸ÀªÉð.£ÀA.184 ªÀÄvÀÄÛ ¸À.£ÀA.192, ºÁUÀÆ ¸À.£ÀA.868 d«ÄãÀÄUÀ¼À E£ÁAzÁgÀgÁzÀ vÀªÀÄäUÀ¼À ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÀÄÝ, f¯Áè ªÀPïá ¨ÉÆÃqïð, §¼Áîj EªÀgÀ ºÉ¸ÀgÀ£ÀÄß ¥ÀºÀtÂAiÀÄ°è AiÀiÁªÀÅzÉà £ÉÆÃnÃ¸ï ¤ÃqÀzÉà «ZÁgÀuÉ ªÀiÁqÀzÉà PÁ£ÀÆ£ÀÄ ¨Á»ÃgÀªÁV £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀÅzÀÄ PÀ£ÁðlPÀ ¨sÀÆPÀAzÁAiÀÄ PÁAiÉÄÝ G®èAWÀ£É ªÀiÁrzÀAvÉ DVzÉ. DzÀjAzÀ ¸ÀzÀj d«ÄãÀÄUÀ¼À£ÀÄß ¸ÀܼÀ ¥Àj²Ã®£É ªÀiÁr CPÀÌ ¥ÀPÀÌ ¥ÀmÁÖzÁgÀgÀ£ÀÄß «ZÁgÀuÉ ªÀiÁr ºÉýPÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄ r¸ÀÖøPï ªÀPïá ¨ÉÆÃqïð JAzÀÄ £ÀªÀÄÆzÀÄ DVgÀĪÀÅzÀ£ÀÄß vÉUÉzÀĺÁQ vÀ£Àß EvÀgÉ ºÉ¸ÀgÀ£ÀÄß £ÀªÀÄÆ¢¸À®Ä PÉÆÃjzÀ£ÀéAiÀÄ PÀAzÁAiÀÄ ¥Àj«ÃPÀëPÀgÀÄ, §¼Áîj EªÀgÀÄ «ZÁgÀuÉ ªÀiÁr ºÉýPÉUÀ¼À£ÀÄß ¥ÀqÉ¢zÀÄÝ, ¸ÀzÀj d«Ää£À CPÀÌ¥ÀPÀÌzÀ ¥ÀmÁÖzÁgÀgÀ ºÉýPÉAiÀÄ°è F £Á®ÄÌ d£À E£ÁAzÁgÀgÀÄ ªÉÄïÁÌt¹zÀ «¹ÛÃtðzÀ°è EgÀĪÀAvÉ ¸ÁUÀÄ ªÀiÁqÀÄwÛzÁÝgÉ. ºÁUÀÆ CªÀgÀ CªÀgÀ ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀÄvÀÛzÉAzÀÄ ºÉýPÉ ºÁUÀÆ ªÀgÀ¢UÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹gÀÄvÁÛgÉ. F zÀÈrüÃPÀÈvÀ £ÀPÀ®ÄUÀ¼ÀÄ ¤±Á£É ¦-1, ¦-2 gÀ°è vÉÆÃj¸À¯ÁVzÉ.” 33. The Tribunal has also considered the fact that the Waqf Committee had filed Form No.7 and Form No.1 before the Additional Land Tribunal in LRM Case No.852/1980-81 dated 17th March, 1982. In the order dated 17th March, 1982, the Land Tribunal held as follows: ”In view of the above, the Land Tribunal is of the opinion that the Institution has no locus standi to claim re- grant of inam lands as inamdar, under the Act. The Instituiton also cannot claim the suit land as tenant, it

: 48 : being an incorporate Body that the applications of the Institution is liable to be rejected. The application of the Pinjarwadi Ashur Khana Sunni, Bellary filed through Inspector-cum-Auditor, District Waqf Committee, Bellary is hereby rejected.”

: 49 : respondents figured in the relevant column of RTC to establish their title and possession. On careful examination of RTC extracts, we do not find the names of the contesting respondents being mentioned as Mutawalis, rather they were able to establish before the Land Tribunal that the said lands were being cultivated by them in their individual capacity and not as a Mutawalis of the masjid. The Land Tribunal, having taken note of the entire material on record, confirmed occupancy rights under Section 5(2) of the Inams Abolition Act and the same has been rightly confirmed by the learned Single Judge in the impugned order. For the foregoing reasons, we are of the considered opinion that the appellant-Board cannot, by simply entering the property in the list of Waqfs or registering it in the Register of Waqfs, claim title to the lands in question. We do not find any error committed by the learned Single Judge while affirming the order dated 08th September, 2010 (Annexure-K) passed by the Land Tribunal. 36. We have also noticed that the petitioner in Writ Petition No.60570 of 2011 has filed Original Suit No.254 of 2005 before the II Additional Civil Judge (Jr.Dn.) at Bellary for declaration and a consequential relief, and in the said Suit, the

: 50 : contesting respondents herein had filed an application in IA.IV under Order I Rule 10 of Code of Civil Procedure for impleading themselves in the said suit. The Chairman, District Waqf Board Committee, Bellary, filed IA.VII under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint, and the Trial Court, by order dated 29th May, 2008, dismissed the application filed by the District Waqf Board and same was challenged before this Court in Writ Petition No.30795 of 2008 and this Court by order dated 09th March, 2010, dismissed the writ petition preferred by the District Waqf Board and these aspects would clearly establish the fact that the District Waqf Committee, inter alia, appellant-Board has made all feeble attempts to acquire the property as Waqf property without any title to the lands in question. Though the learned counsel appearing for the appellant referred to the judgments mentioned above, however, they are not applicable to the facts on hand, as the Land Tribunal in the instance case, after considering the material on record with regard to the title certificate issued in the year 1861 in favour of the predecessors of the contesting respondents, conferred occupancy rights. Learned counsel appearing for the appellant fails to show that the lands in question were dedicated

: 51 : or endowed for some pious or charitable purpose. Having considered the entire material on record, we are of the considered view that the learned Single Judge rightly dismissed the writ petitions on merits. Therefore, we do not find any illegality in the impugned order passed by the learned Single Judge. 37. Yet another ground to dismiss the appeals is that the contesting respondents were appointed as Mutawalis by memorandum dated 15th April, 1976, after the lands stood vested in the State, i.e. on 01st March, 1974. The spot inspection report of the Land Tribunal is in favour of the contesting respondents holding that the contesting respondents were in actual cultivation of the lands three years prior to the appointed dated, i.e. 01st March, 1974 and in that view of the matter, we do not find any substance in the arguments of Smt. Anuradha, learned counsel appearing for the appellant. 38. Insofar as, Writ Appeal No.31356 of 2013 is concerned, the findings recorded by us shall hold good to the said appeal too. This appellant is neither the owner of the land nor an inamdar nor a tenant who has claimed occupancy rights.

: 52 : It is settled position of law that a stranger to the property cannot maintain any proceedings without establishing his interest in the property in question. It is also settled principle that once the land is vested in the State as on 01st March, 1974, only the applicants seeking occupancy rights have locus standi as ‘person interested’ under Section 5 of the Inams Abolition Act and therefore, the learned Single Judge was justified in dismissing the writ petition filed by the petitioner in Writ Petition No.60570 of 2011. 39. It is an established principle under Section 11 of the Inams Abolition Act that the person having no right, title of interest in land, cannot be considered as a necessary or proper party merely on the basis of mutation entry. Omission to implead such person does not vitiate proceedings or order passed therein. 40. Hence, we decline to interfere with the impugned order passed by the learned Single Judge. In the result, we pass the following: O R D E R 1. Appeals are dismissed;

: 53 : 2. Order dated 09th October, 2013 passed in Writ Petition No.68246 of 2010 and Writ Petition No.68713-716 of 2010 connected with Writ Petition No.60570 of 2011 is confirmed; 3. Costs made easy.

Sd/- JUDGE

Sd/- JUDGE sh