Point of Law: the contention as to special law i.e., the 1974 Act overriding the less special law i.e., 1995 Act does not merit much consideration in the light of 2013 Amendment.

ORDER :

A short but a very significant question of law as to the invocability if not validity of section 2(e)(v) of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974, (hereafter 1974 Act') qua the waqf properties arises for consideration in the following fact matrix:

(a) All the petitioners happen to be the tenants of the structures that admittedly belong to waqf; they have suffered eviction orders made under the provisions of 1974 Act, their contention as to non-invocability of the said Act having been negatived; these orders are called in question in the writ jurisdiction of this Court.

(b) After service of notice, respondent-WAQF Board having entered appearance through its Senior Panel Counsel, vehemently resists the Writ Petitions making submission in justification of the impugned orders and the reasons on which they have been constructed; the essence of the contention is that: the 1974 Act is a special legislation qua the relative provisions of the Waqf Act, 1995 (hereafter 1995 Act') ; the State Act having been assented to by the President of India in terms of Article 254 of the Constitution, over-rides the law enacted inter alia in Sections 83 & 85 of the 1995 Act, if at all there is any conflict.

2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant relief to the petitioners as under and for the following reasons:

(a) More than half a century ago, in Dhulabhai Vs. State of Madhya Pradesh, AIR 1969 SC 78, a Constitution Bench of the ‘ouster of jurisdiction’, has laid down the fundamental principles of judicial procedure to be followed in matters of the kind; these principles having been well established and being animated by decision after decision, (M. Hariharasudhan Vs. R. Karmegam, (2019) 10 SCC 94) do hardly need reproduction; the question as to the jurisdiction of the Waqf Tribunal vis-a-vis that of the civil courts was examined by the Apex Court in Ramesh Gobindram Vs. Sugra Humayum Mirza Wakf, AIR 2010 SC 2897, in the light of Dhulabhai supra; however, it was a case that arose under pre-2013 amendment to the 1995 Act; though it does come to the aid in treating the question raised in these petitions, but not much.

(b) Section 2 of the 1974 Act is its dictionary clause; clause (e) of this section defines the term “Public premises”; it is a “means and includes” definition; sub-Clause (v) of Clause (e) includes waqf and consequently, the waqf properties fall within the definition of “Public premises”; this was by virtue of the Karnataka Act No.28 of 1981 with retrospective effect from 30.09.1980; it needs to be mentioned that this amendment was made to the State Act in the light of the erstwhile Waqf Act, 1954.

(c) The above having been said, one has to hasten to add that the Waqf Act, 1995 repealed the Waqf Act 1954 and the Waqf (Amendment) Act, 1984; presumably, in view of this legislative development, the Karnataka Act No.22 of 1999 was enacted for correspondingly amending the 1974 Act so that the subject matter of eviction from waqf properties continued to be governed by the State Act only; this is not the end of the story, inasmuch as the Parliament enacted Act 27 of 2013 w.e.f. 1.11.2013 inter alia amending Chapter VIII of the 1995 Act which will have a bearing on the question arising in these cases; sections 83 & 85 figure in this Chapter.

(d) Section 83(1) of the 1995 Act prior to 2013 Amendment had the following text:

“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”.

A Co-ordinate Bench of this Court having analyzed the provisions of 1974 Act vis-a-vis un-amended sections 83 & 85 of the 1995 Act, held that the Waqf Tribunal had no jurisdiction to treat in