Saturday 23 April 2022

Can Wakf tribunal decide suit relating to encroachment and tenancy over wakf property?

 It is clear that the Legislature has

added the underlined portion in the earlier

Section 83. If the amended Section 83(1) is

perused, it is quite apparent that any dispute,

question or other matter relating to Waqf

property, eviction of a tenant or determination of

rights and obligation of the lessor and the lessee

of such property i.e. Waqf property is to be

decided by the Waqf Tribunal. The amended

provision came into effect on 1st November 2013 and

naturally when the Waqf Tribunal decided the

Application on 5th May 2014, it was within its

jurisdiction to consider the dispute of tenancy

also, which was raised. This is apart from the

fact that the basic dispute the Tribunal was

dealing with, was whether or not the Applicant was

a trespasser as found under Section 54 of the Waqf

Act. To decide that dispute, it was required to

deal with the defence of the claim of tenancy.

10. Tribunal considered the admitted facts,

the law and opportunity given to applicant by

C.E.O. and rejected the application. The Applicant

is unable to show that the impugned order is not

correct, legal or proper. Consequently, there is

no substance in the Revision application.{Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.127 OF 2014

Ishtaque Ali Sayyad Ali, Vs  Maharashtra State Wakf Board,

CORAM: A.I.S. CHEEMA, J.

DATED : 17TH FEBRUARY, 2015.


1. The Applicant filed Application under

Section 83(2) of the Waqf Act, 1995 against orders

dated 16th May 2012 passed under Section 54 of the

Waqf Act in Case No.54/417/2010 by the Chief

Executive Officer (for short “C.E.O.”) of

Maharashtra State Waqf Board, at Aurangabad. The

C.E.O. held the Applicant as trespasser and

directed him to handover the property in dispute.

In the Application filed before the Waqf Tribunal,

the Applicant claimed that he was not a trespasser

and he was tenant who inherited tenancy, of the

shop in dispute, from his father.

2. Area admeasuring 13 ft. X 12 ft. out of

City Survey No.885 admeasuring 51 Sq. Meters,

belonging to Barabhai @ Andarpura Mohalla Trust,

Amalner, DistJalgaon,

which is a Waqf is in

dispute. The Applicant claims that father of the

Applicant was inducted in such portion as a tenant

in the shop more than 50 years before and in his

life time the father was the tenant. After the

demise of the father, the Applicant is in

possession of the said premises and carrying on

business. The Applicant claimed that he had become

the tenant. The Respondent No.2 Masjid

Barabhai

instituted application before C.E.O. claiming the

property from the Applicant. C.E.O. passed orders

dated 16th May 2012 observing that inspite of

notice being served on the Applicant and inspite

of keeping the matter pending for hearing, the

Applicant had not appeared and filed reply. He

considered the application filed by Respondent

No.2 and noted that the property was part of Waqf

and was required for religious purposes to fulfill

objects of the Waqf and tenancy cannot be

inherited in view of provisions of Section 56 of

the Waqf Act and consequently directed the

Applicant to handover possession within fifteen

days. The Applicant himself filed Application

under Section 83 of the Waqf Act to the Waqf

Tribunal and raised dispute that he was present

before C.E.O. but he was treated as absent and

that he was not an encroacher, but that he was a

tenant.

3. The Waqf Tribunal dealt with the

Application and considered whether the order

passed by the C.E.O. could be said to be illegal,

erroneous and against the law. Tribunal noticed

that there was a tenancy between father of the

Applicant and Respondent No.2. The Tribunal held

that the tenancy came to an end at the moment of

death of father of the Applicant. It recorded that

tenancy was not heritable and Applicant had no

right to continue to be in possession. It recorded

that there was no lease agreement between the

Applicant and Respondent No.2. Applicant, although

claimed that he used to pay rent to Respondent

No.2, his name was not appearing in the receipts.

It was argued before the Tribunal that under

Section 56 of the Waqf Act, lease or sublease

of a period exceeding period specified shall be void

and shall be of no effect and that for creation of

lease exceeding one year, sanction of the Board

was required. Tribunal found that lease exceeding

period specified in the Act cannot at all be

created and cannot exist. The Tribunal discarded

the claim of the Applicant that he was present

before the C.E.O. but was marked as absent, in

view of the record of the C.E.O. The Tribunal

found that before passing the impugned order, the

application was kept for hearing for various dates

but at that time the Applicant remained absent and

did not submit his say. Thus, it found that the

Applicant had been given the necessary

opportunity. The Tribunal held that the C.E.O.

rightly considered the possession of the Applicant

as illegal and as that of encroacher.

4. The question is, whether the impugned

order of the Tribunal is correct, legal and

proper.


5. I have heard learned counsel for both

sides. Learned counsel for Applicant submitted

that father of the Applicant was tenant in the

shop concerned since more than 50 years and

according to the learned counsel, father of the

Applicant died four years back and since then the

Applicant was in possession of the shop concerned.

The counsel submitted that the Applicant had sent

rent to the Respondents by post. The learned

counsel was unable to show any receipt issued by

Respondent No.2 in favour of the Applicant, at the

time of arguments. It was argued that it has been

held that a dispute between land lord and tenant

relating to Waqf property is liable to be decided

by the Civil Courts and not the C.E.O. or the

Tribunal.

6. Learned counsel for Respondents argued

that looking to the Scheme of Section 56 of the

Waqf Act, where the law lays down that given lease

could be only of specific period, Waqf properties

could not be leased in perpetuity or could not be

inherited. According to the learned counsel, the

status of the Applicant in the property in dispute

is only as that of an encroacher. The counsel

referred to the amendment made in Section 83 of

the Waqf Act in 2013, to submit that dispute

between landlord and tenant relating to Waqf

property was not earlier covered in Section 83,

but now in view of the amendments in 2013, the

same is required to be decided only by the

Tribunal.

7. Subsection

(1) of Section 54 of Waqf Act

reads as under:

“54. Removal of encroachment from waqf

property.(

1) Whenever the Chief

Executive Officer considers whether on

receiving any complaint or on his own

motion that there has been an

encroachment on any land, building,

space or other property which is waqf

property and, which has been registered

as such under this Act, he shall cause

to be served upon the encroacher a

notice specifying the particulars of the

encroachment and calling upon him to

show cause before a date to be specified

in such notice, as to why an order

requiring him to remove the encroachment

before the date so specified should not

be made and shall also send a copy of

such notice to the concerned mutawalli.”

. Thus, under this Section, it is for

C.E.O. to consider whether there has been

encroachment in the property of Waqf. In the

present matter, there is no dispute regarding the

fact that property concerned is of the Waqf.

Record shows that the C.E.O. was moved by

Respondent No.2 and after considering the

complaint made by the Respondent No.2, the C.E.O.

held the Applicant to be a trespasser. Being

aggrieved by the order of C.E.O., the Applicant

himself moved the Tribunal under Section 83(2) of

the Waqf Act. The Applicant did not move the Civil

Court. The dispute raised before the Waqf Tribunal

was, whether the Applicant was or not encroacher

as held by the C.E.O. The dispute was with

reference to orders passed under Section 54 of the

C.E.O. which were challenged under Section 83(2)

of the Waqf Act. Of course, the Applicant claimed

before the Tribunal that he was not an encroacher

but that he had inherited the tenancy. The

Tribunal while considering the question whether or

not the Applicant was encroacher, has upheld the

order of the C.E.O. on the basis of arguments

raised before it with reference to Section 56 of

the Waqf Act relating to restrictions on the power

to grant lease on Waqf property.

8. Now it is being argued that the C.E.O.

and the Tribunal could not have decided the

dispute as the Applicant claims that he had

inherited tenancy. In this context, Section 83 of

the Waqf Act is relevant. Subsection

(1) of Section 83 of the Waqf Act before amendment of

2013 read as under:

“(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.”

. The above Subsection

(1) of Section 83

has been amended by the Waqf (Amendment) Act, 2013

which has been brought into force with effect from

1st November 2013 and the substituted Subsection

(1) of Section 83 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 waqf or waqf property,

eviction of a tenant or determination of

rights and obligations of the lessor and

the lessee of such property, under this

Act and define the local limits and

jurisdiction of such Tribunals.”

(Emphasis supplied.)

9. It is clear that the Legislature has

added the underlined portion in the earlier

Section 83. If the amended Section 83(1) is

perused, it is quite apparent that any dispute,

question or other matter relating to Waqf

property, eviction of a tenant or determination of

rights and obligation of the lessor and the lessee

of such property i.e. Waqf property is to be

decided by the Waqf Tribunal. The amended

provision came into effect on 1st November 2013 and

naturally when the Waqf Tribunal decided the

Application on 5th May 2014, it was within its

jurisdiction to consider the dispute of tenancy

also, which was raised. This is apart from the

fact that the basic dispute the Tribunal was

dealing with, was whether or not the Applicant was

a trespasser as found under Section 54 of the Waqf

Act. To decide that dispute, it was required to

deal with the defence of the claim of tenancy.

10. Tribunal considered the admitted facts,

the law and opportunity given to applicant by

C.E.O. and rejected the application. The Applicant

is unable to show that the impugned order is not

correct, legal or proper. Consequently, there is

no substance in the Revision application.

11. The Revision Application is rejected.

[A.I.S. CHEEMA, J.]


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