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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