JUDGMENT :

PUSHPENDRA SINGH BHATI, J.

1. This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:

“It is therefore respectfully prayed that the petitioner’s petition may kindly be accepted, the judgments of respondent No. 3 and No. 4 Ex.6 and Ex.7 may kindly be quashed and the whole proceedings initiated by respondent No. 1 and 2 may kindly be held be null and void. The provisions of section 2 (viii) of the Rajasthan Public Premises (Eviction of unauthorised Occupants) Act and the notification dated 20th August, 1976, issued by the Govt. of Rajasthan may kindly be declared unconstitutional.”

2. Brief facts of the case, as placed before this Court by learned counsel for the petitioners, are that the petitioner no. 2 was a tenant in a Wakf known as ‘Dargah Masjid Sindhian and Kabristan’ and paid Rs. 20/- per month as rent to the private respondents no. 1 & 2; later on, petitioner no. 2 handed over the possession of said premises to petitioner no. 1; an application came to be filed by the respondents no. 1 & 2 before the Estate Officer (Sampada Adhikari) City Magistrate, Udaipur (respondent no. 3) against the petitioners no. 1 & 2 for vacating the said premises, as the same had been taken for 11 months and after the expiry of the said period, they were not entitled to remain in occupation of the premises in question. The petitioners filed reply to the said application.

2.1. Thereafter, the learned Estate Officer vide the impugned order dated 05.01.1985 allowed the application of the respondents and held that the petitioners occupation in the premises in question as unauthorized, and directed the petitioners to hand over the possession of the premises in question to the respondents. Being aggrieved, the petitioners preferred an appeal before the learned District Judge, Udaipur, but the same was dismissed vide the impugned order dated 29.10.1985.

3. Learned counsel for the petitioners submitted that the a Wakf is a Trust and according to Section 48 of the Indian Trust Act, 1982, co-trustee cannot act singly, except where an instrument of the Trust, otherwise provides. It was further submitted that according to Section 47 of the Indian Trust Act, 1982, a Trustee cannot delegate his office or any duties either to a co-trustee or to any stranger, unless the instrument of Trust so provides.

3.1. Learned counsel further submitted that the Instesamia Committee had authorized the respondent nos.1 and 2 for seeking vacation of the premises in question, but no cogent evidence was shown by the respondent nos. 1 & 2 to prove such authorization by the Instesamia Committee. Therefore, as per learned counsel, the impugned orders are not justified in law.

3.2. Learned counsel also submitted that the burden of the proving unauthorized occupation of the petitioners over the premises in question lies on the part of the respondent nos. 1 & 2, but the respondent nos. 1 and 2 could not prove the same by producing any cogent evidence on record, and therefore, the impugned orders are not sustainable in the eye of law.

4. On the other hand, the learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions on behalf of the petitioners, submitted that the premises in question is a Wakf property, which has been declared as a public premises and the petitioners were holding the same as tenant. It was further submitted that the notice under Section 4 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as ‘Act of 1964’) issued to the petitioners was received by them on 06.02.1984, and therefore, the entire impugned action was taken after giving proper opportunity of hearing to the petitioners.

4.1. It was further submitted that as per notification dated 22.09.1976 issued under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Wakf properties have been exempted from the purview of the said Act and tha