Gujarat High Court
Heir Of Decd Mukundrai Muljibhai ... vs Waqf Hajimohmad And Hajihasam ... on 4 April, 2025
NEUTRAL CITATION
C/CRA/24/2025 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 24 of 2025
With
R/CIVIL REVISION APPLICATION NO. 28 of 2025
With
R/CIVIL REVISION APPLICATION NO. 29 of 2025
With
R/CIVIL REVISION APPLICATION NO. 30 of 2025
With
R/CIVIL REVISION APPLICATION NO. 31 of 2025
With
R/CIVIL REVISION APPLICATION NO. 32 of 2025
With
R/CIVIL REVISION APPLICATION NO. 33 of 2025
With
R/CIVIL REVISION APPLICATION NO. 34 of 2025
With
R/CIVIL REVISION APPLICATION NO. 35 of 2025
With
R/CIVIL REVISION APPLICATION NO. 36 of 2025
With
R/CIVIL REVISION APPLICATION NO. 37 of 2025
With
R/CIVIL REVISION APPLICATION NO. 38 of 2025
With
R/CIVIL REVISION APPLICATION NO. 39 of 2025
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HEIR OF DECD MUKUNDRAI MULJIBHAI LAKHANI JYOTSNABEN
MUKUNDRAI LAKHANI
Versus
WAQF HAJIMOHMAD AND HAJIHASAM PIRAMAHAMAD
MUSAFARKHANA & ANR.
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Appearance:
MR RAJESH K SAVJANI(2225) for the Applicant(s) No. 1
FOUZAN N SONIWALA(8442) for the Opponent(s) No. 2
MR ARSHAD SHAIKH(11761) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
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1. The present revision application has been filed challenging the order dated 21.11.2024 passed by the Waqf Tribunal, whereby the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for brevity, "the Code") below Exhibit 17 has been rejected. For the sake of brevity, the parties are referred to in their original capacities. BRIEF FACTS OF THE CASE:
2. The plaintiff instituted a suit under Section 83(1) of the Waqf Act, 1995 (for brevity, "the Act of 1995") read with the Waqf Properties Lease Rules, 2014. The plaintiff, in his capacity as the Executive Officer of the Waqf, has sought recovery of possession of the suit property, which is a Waqf asset, from the defendant. Additionally, the plaintiff has prayed for an injunction restraining defendant No. 1 from carrying out any temporary or permanent construction on the suit property, demolishing any structure thereon, or alienating, assigning, or subletting the same. Furthermore, the plaintiff has claimed mesne profits in respect of the unauthorized possession of the suit property. 2.1. Upon service of summons, defendant No. 1 filed an application under Order VII Rule 11 of the Code, contending that the suit was not maintainable. It was asserted that the rent agreement executed between the plaintiff and defendant No. 1 contained no provision for renewal.
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Moreover, it was contended that the authorized signatory of the plaintiff, who instituted the suit in the capacity of an Executive Officer, was appointed for a fixed term from 08.03.2021 to 30.09.2021. Since the suit was instituted on 27.10.2021, it was argued that, at the time of filing, the said signatory lacked the requisite authority to initiate legal proceedings on behalf of the Waqf.
2.3. After perusing the plaint and the documents annexed thereto, the Tribunal dismissed the application under Order VII Rule 11 of the Code. Aggrieved by the said order, the present revision application has been preferred.
SUBMISSION OF DEFENDANT:-
3. The learned advocate for defendant No. 1 has primarily contended that, in light of the provisions of the Act of 1995 and the rules framed thereunder, the authorized signatory was not competent to institute the present suit. It has been argued that only the Chief Executive Officer was empowered to file such a suit. Furthermore, upon a plain reading of the plaint filed before the Tribunal, it is evident that the plaintiff has alleged that defendant No. 1 is an encroacher and has unlawfully encroached upon Waqf property. Consequently, the reliefs sought--particularly those enumerated in prayers 9 and 11(a)--pertain to the removal of the alleged Page 3 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined encroachment. Therefore, in accordance with Section 3(d) read with Section 23 of the Act of 1995, it is submitted that only the Chief Executive Officer is vested with the authority to initiate such proceedings.
3.1. The learned advocate for defendant No. 1 has further submitted that the authorized signatory of the plaint is not the Chief Executive Officer but merely an Executive Officer appointed under Section 38 of the Act of 1995. As such, it is contended that an Executive Officer appointed under Section 38 lacks the legal competence to institute the suit. Additionally, it has been argued that the term "encroacher" is defined under Section 3(ee) of the Act of 1995, whereas "encroachment" is defined under Rule 2, Clause 11 of the Gujarat State Waqf Rules, 2023. The crux of the defendant's argument is that the authorized signatory of the plaintiff lacks locus standi to file the suit, and, therefore, the plaint is liable to be rejected as it is barred by law, as evident from a plain reading of the plaint and the documents annexed thereto. 3.2. Moreover, the learned advocate for defendant No. 1 has contended that, in the absence of an inquiry as contemplated under Section 54 of the Act of 1995, the suit could not have been validly instituted. It has also Page 4 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined been argued that the reliefs pertaining to mesne profits, as well as the injunctions restraining the defendant from carrying out construction or alienating the suit property, are merely ancillary to the principal relief sought--namely, possession of the suit property on the ground that defendant No. 1 is an encroacher. As the principal relief sought is the removal of alleged encroachment, it is contended that the suit falls within the ambit of Section 54 of the Act of 1995, under which only the Chief Executive Officer is competent to institute proceedings. Accordingly, it is urged that the suit is liable to be dismissed for want of jurisdiction. 3.3. The learned advocate for defendant No. 1 has further contended that where a statute prescribes a specific procedure for initiating an action, the same must be strictly adhered to. In the present case, Section 54 of the Waqf Act, 1995 mandates the conduct of an inquiry before any action can be initiated by the Chief Executive Officer. It is argued that, since no such inquiry has been conducted, the present suit is legally untenable and liable to be rejected as being barred by law. 3.4. In support of his submissions, the learned advocate for defendant No. 1 has placed reliance on the following judicial precedents: Rashid Wali Beg v. Farid Pindari & Ors., (2022) 4 SCC 414, (2008) 1 SCC Page 5 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined 618, (2006) 6 SCC 207, (1970) 2 SCC 355, 2020 (2) KLT 619, (2019 (2) KHC 527).
SUBMISSION OF THE PLAINTIFF:-
4. Per Contra, the learned advocate for the original plaintiff has relied on Section 83(2) of the Waqf Act, 1995, contending that the statute recognizes three categories of persons who may approach the Tribunal: A Mutawalli (Waqf Manager); A person interested in a Waqf; and any other person aggrieved by an order passed under the Act or the Rules framed thereunder.
4.1. Accordingly, the learned advocate for the plaintiff has argued that the authorized signatory who has instituted the suit on behalf of the plaintiff qualifies as a Mutawalli and also as a "person interested in a Waqf." Furthermore, it is contended that, as an Executive Officer appointed under Section 38(2) of the Act of 1995, the authorized signatory is responsible for administering Waqf property, thereby bringing him within the purview of the definition of Mutawalli under Section 3(i) of the Act of 1995.
4.2. The learned advocate for the plaintiff has further contended that the Page 6 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined suit has been instituted for possession of the suit property, an injunction concerning the said property, and a claim for mesne profits. It is argued that there is a clear disclosure of the cause of action, thereby entitling the plaintiff to maintain the suit.
4.3. It has also been submitted that Section 83(1) of the Waqf Act, 1995 explicitly provides that the Tribunal is empowered to adjudicate upon any dispute, question, or matter relating to Waqf or Waqf property, including the eviction of a tenant and the determination of the rights and obligations of a lessor and lessee of such property. It is the plaintiff's contention that Sections 54 and 83 of the Act of 1995 provide alternative legal remedies, and therefore, there is no statutory bar preventing a Mutawalli or a person interested in the Waqf from instituting a suit for eviction or for recovery of arrears of rent before the Tribunal.
4.4. Further, it is argued that, while the Chief Executive Officer (as defined under Section 3(d) read with Section 23 of the Act of 1995) is authorized to initiate proceedings for the removal of encroachments under Section 54, there is no restriction under Section 83 prohibiting a Mutawalli or an interested person from initiating legal action concerning Waqf property. Moreover, the learned advocate for the plaintiff has Page 7 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined contended that the reliefs sought in respect of injunction and mesne profits do not fall within the ambit of Section 54 of the Act of 1995 and can only be granted under the provisions of Section 83 of the Act. 4.5. Therefore, even assuming for the sake of argument that the relief of possession of the suit property is barred by law and that only the Chief Executive Officer is competent to initiate action for the removal of an encroacher, the other reliefs such as the prayer for a temporary injunction and a claim for mesne profits are undoubtedly maintainable under Section 83 of the Act of 1995. Since these reliefs are not barred by law, the Court cannot reject the plaint in its entirety.
4.6. In support of this contention, the learned advocate for the plaintiff has relied upon the following judgments: Central Bank of India and Another v. Smt. Prabha Jain and Others, 2025 SCC Online 121, (2018) 11 SCC 780, Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd., Shantibhai Somabhai Patel v. Ranchodbhai Pujabhai Padhiyar, AIGEL SC 240338, 2020 SCC Online 593, Gurdev Singh v. Harvinder Singh, 2022 SCC Online SC 2193, Sajjan Singh v. Jasvir Kaur and Others, 2023 SCC Online SC 1282, Rashid Wali Beg (supra).
Page 8 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined FINDINGS OF THE COURT:-
5. Having heard the learned advocates for both parties and upon a careful analysis of the plaint and the documents annexed thereto, it is evident that some of the provisions of the Waqf Act, 1995 are pivotal to the adjudication of the present application. The definition of the Chief Executive Officer is provided under Section 3(d) of the Act, which reads as follows:-
"Chief Executive Officer" means the Chief Executive Officer appointed under sub-section (1) of section 23;
Section 23 of the Act of 1995 is as under:-
23. Appointment of Chief Executive Officer and his term of office and other conditions of service:-
"(1) There shall be a full-time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation.
(2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed.
(3) The Chief Executive Officer shall be ex officio Secretary of the Board and shall be under the Page 9 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined administrative control of the Board."
Section 3(ee):- "encroacher" means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board;"
Rule 2 Clause 11 of Gujarat State Waqf Rules, 2023:-
11. "encroachment" in relation to any waqf premises means occupation by any person or institution of the waqf premises without authority for such occupation, and includes the continuation in occupation by any person or Institution of the waqf premises after the authority (whether by way of grant, tenancy or any other mode) under which he was allowed to ocupy the premises, has expired or has been determined for any reason whatsoever, and includes any construction, alteration, addition carried out to the building without authority of the Board;
Mutawalli is defined under section 3 Clause (i), which is as under:-
"a "mutawalli" is defined as any person appointed, either verbally or under a deed, or by a competent authority, to manage a waqf, including those appointed by custom or those who are naib- mutawalli, khandim, or mujawar."
Section 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 Page 10 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined 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.
(2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed.
(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is waqf property and that there has been an encroachment on any such waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the waqf.
(4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property:Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer.
(5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property."
Section 83:- Constitution of Tribunals, etc. :- Page 11 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025
NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined (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.
(2)Any mutawalli person interested in a waqf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf.
(3)Where any application made under sub-section (1) relates to any waqf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the waqf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the waqf or any other person interested in the waqf or the waqf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such waqf or waqf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interest of justice to deal with the application afresh.
(4)Every Tribunal shall consist of--Page 12 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025
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(a)one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman;
(b)one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;
(c)one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation. (4A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed. (5)The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. (6)Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.
(7)The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.
(8)The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).
(9)No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and Page 13 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined may confirm, reverse or modify such determination or pass such other order as it may think fit."
Some of the provisions of Waqf Property Lease Rule, 2014 are also required to be gone through:-
Rule 23:- Default.
"(1) Each of the following events shall constitute an event of default, namely :-
(i) all or any part of the lease rent is not paid by the lessee after it become due for such payment;
(ii) the lessee fails to observe, perform or keep each and every of the covenants, agreements and conditions and fails to rectify or remedy the failure even after one month's notice by the lessor requiring the lessee to so remedy, correct, desist or comply;
(iii) the lessee builds any structure on the land or building without prior sanction or approval of the Board; or
(iv) non-payment by the lessee of lease rentals or lease considerations for three consecutive months.
(2) Upon the occurrence of one or more of the events referred to in sub-rule (1), the lessor may, at its option,-
(i) be entitled to the full amount of the lease rent due and payable;
(ii) have no obligation to refund the security deposit which shall be deemed to be forfeited in favour of the Waqf.
(iii) seize and sell such goods and equipment of the lessee after obtaining an order from the Tribunal and may apply the proceeds thereof to all lease rent to which the lessor is then entitled under the lease:
Provided that any such sale may be effected by public auction or otherwise, and either in bulk or by individual item, as the lessor in its sole discretion may decide;
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and the lessee shall pay to the lessor lease rent for the unexpired portion of the term had it not been terminated."
Rule 21 :-Rights and Obligations of the lessor and lessee.
"(1) The rights and liabilities of the lessee shall include the following, namely:-
(i) Operation of leased premises. - The lessee shall assume full responsibility for the operation and maintenance of the leased premises and for the repair or replacement of all fixtures located therein or thereon and to pay all expenses incurred in connection with such maintenance and operation of the leased premises:
Provided that the lessor may, upon failure to discharge such responsibility by the lessee under this clause, at its sole option and upon fourteen days prior written notice and without any obligation to the lessee, elect to perform such maintenance, repairs or replacement as the lessor may reasonably deem necessary or desirable.
(ii) Access by lessor. - The lessee shall permit the lessor to enter the leased premises at any time outside normal hours in case of an emergency and otherwise, where such entry will not unreasonably disturb or interfere with the lessee's use of the leased premises.
(iii) Lessee to carry out certain obligations. - The lessee shall,-
(i) promptly pay electricity charges, water charges or any cess, levies, duties, assessments, and license fees whatsoever whether municipal, school, provincial, parliamentary or otherwise;
(ii) upon the request of the lessor, promptly deliver to the lessor for examination all receipts for payment of such levies, duties, assessments and license fees;
(2)Installation of fixtures or improvements. - If any installation or repair work carried out by the lessee Page 15 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined interferes with or damages the mechanical or electrical systems or the structure of the leased premises, the lessee shall promptly repair or remove such installations or fixtures on the leased property at its own expense:
Provided that the lessee shall, if required by the lessor, remove any leasehold improvements or fixtures from the leased premises upon the termination of the lease.
(3)Alterations by lessee. - The lessee shall bear the cost for making any modification, additions or improvements including alterations to the exterior walls, roof, or other structural components of the leased premises made by the lessee:
Provided that the lessor shall perform any such work at the expense of the lessee as may be mutually agreed between the parties.
(4)Liens. - The lessee shall not create any lien or encumbrance on the leased premises under any circumstances including on the leasehold rights.
(5)Permission from local authorities. - The lessee shall, for the purpose of construction of any structure on the leased premises, take all necessary permission from the local authorities, after prior approval of the Board."
Rule 12:-Payment and recovery of lease rent.
(1)All amounts payable by the lessee to the lessor pursuant to the lease of waqf property shall be deemed to be lease rent and be recoverable as lease rent by the lessor who shall have all rights against the lessee for default in any payment thereof.
(2)Lease rent shall be paid to the lessor without deduction or set-off, at the address of the lessor or to such other person or at such other address, as the lessor may from time to time, designate in writing.
(3)If the lessee continues to occupy the premises after the expiration or earlier termination of the lease, the lessee shall, subject to final orders passed in any proceedings, continue to pay lease rent for the period of such Page 16 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined unauthorised occupation.
Rule 16:- Prohibition to assign, sub-lease or transfer waqf property.
"The lessee shall not assign, sub-lease, pledge or transfer the lease or any interest therein or in any way part with possession of all or any part of the leased premises, or permit all or any part of the leased premises to be used or occupied by any other person:
Provided that the lease agreement entered into by any corporation or an agency of the Government in respect of waqf property shall be governed by the terms and conditions mutually agreed between the parties."
Rule 24:- Surrender of leased property on expiration or termination of lease.
"(1) Upon expiration or termination of the lease, the lessee shall immediately surrender possession of the leased premises and all leasehold improvements in substantially the condition in which the lessee is required to maintain the leased premises excepting only reasonable wear and tear, and upon surrender, all right, title, and interest of the lessee in the leased premises shall cease.
(2)If after the expiration or termination of the lease, the lessee continues to occupy the leased premises, it shall be treated as an encroachment and such encroachment shall be removed in accordance with the procedure specified in Section 54 of the Act.
(3)The lessor may remove and sell or otherwise dispose of any leasehold improvements, equipment or any other property of the lessee left on the leased premises by the lessee after the termination of the lease, in accordance with the procedure specified in Section 55-A of the Act."
Rule 2H:- Defintion.
"lease", "lessor" and "lessee" shall have the same meaning as assigned to them under the Transfer of Page 17 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined Property Act, 1882."
5.1. Upon hearing the learned advocates for both parties and conducting a meticulous analysis of the plaint and the documents annexed thereto, the key legal issue that arises in the present proceedings pertains to the interpretation of Section 54 of the Waqf Act, 1995. 5.2. Section 54 of the Act stipulates that, upon receiving a complaint or on his own motion, if the Chief Executive Officer determines that an encroachment has occurred on Waqf property, he is required to issue a notice to the encroacher. This notice must specify the particulars of the encroachment and call upon the encroacher to show cause, by a specified date, as to why an order directing the removal of the encroachment should not be issued. The provision further mandates that such notice be served in the prescribed manner, which is detailed under Rule 23 of the Waqf Properties Lease Rules, 2014. 5.3. According to Rule 23, where a lessee, as defined under Section 2(h) of the Waqf Properties Lease Rules, 2014, fails to observe, perform, or adhere to the terms and conditions of the lease agreement, and does not rectify the default despite receiving a one-month notice from the lessor, the lessor is entitled to terminate the lease. The lessor must issue Page 18 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined three consecutive notices at intervals of one month each. Upon expiration or termination of the lease, the lessee is obligated to immediately surrender possession of the leased premises. Such notices must be issued in writing and served through registered mail, speed post, or email, delivered to the lessee at the designated address. 5.5. The Waqf Properties Lease Rules, 2014, further provide explicit provisions regarding the mode of payment and recovery of lease rent, as well as restrictions on subleasing, assigning, or transferring the leased property, as stipulated under Rule 16. Rule 24 specifically mandates that, upon expiration or termination of the lease, the lessee must surrender possession of the property. These provisions are directly relevant to the substantive merits of the suit concerning possession, injunction, and mesne profits.
5.6. At this juncture, the primary issue before this Court pertains to the authority of an Executive Officer appointed under Section 38 of the Act of 1995 to institute the present suit. While Section 54 of the Act empowers only the Chief Executive Officer to initiate proceedings for the removal of encroachments, Section 83 of the Act--more specifically, Section 83(2)--enumerates three distinct categories of persons who may Page 19 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined institute proceedings regarding disputes related to Waqf property. These categories include:
1. A Mutawalli (Waqf Manager);
2. A person interested in a Waqf; and
3. Any other person aggrieved by an order made under the Act or the Rules framed thereunder.
5.7. Significantly, Section 83 does not restrict that the initiation of such proceedings have to be exclusively by the Chief Executive Officer. The fact that the present dispute pertains to Waqf property and involves the determination of the rights and obligations of the lessor and lessee, it falls squarely within the ambit of Section 83. The issue before the Tribunal concerns a lessee who has defaulted on the agreed rent payable in respect of Waqf property, thereby raising questions regarding the lessor-lessee relationship and their respective rights and obligations.
Consequently, in light of Section 83 of the Act, the authorized signatory appointed under Section 38 of the Act of 1995 is competent to institute the present suit.
5.8. In the case of Rashid Wali Beg (supra), the Hon'ble Apex Court, in paragraph 45 of its judgment, has categorically held that under the Page 20 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined provisions of Section 83(1) of the Waqf Act, 1995, any dispute, question, or other matter relating to Waqf property, including the eviction of a tenant or the determination of the rights and obligations of a lessor and lessee of Waqf property, falls within the jurisdiction of the Waqf Tribunal under Section 83(1). Consequently, it cannot be contended that an application for removal and delivery of possession of Waqf property must necessarily be filed exclusively under Section 54 of the Act.
5.9. Section 83 of the Act of 1995 expressly provides that any dispute or question relating to Waqf property can be adjudicated under its provisions. Therefore, while an application for removal of encroachment may be filed by the Chief Executive Officer under Section 54, the relief available under that provision is confined solely to the removal of encroachment. However, Section 83 does not preclude a Mutawalli, an interested person, or any person aggrieved by an order made under the Act from instituting proceedings before the Waqf Tribunal concerning disputes related to Waqf property, including matters pertaining to the rights and obligations of the lessor and lessee. 5.10. Neither the Waqf Act, 1995, nor the Waqf Properties Lease Rules, Page 21 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined 2014, prohibit a Mutawalli or an interested person from initiating proceedings before the Tribunal. Moreover, neither Section 54 nor Section 83, nor any other provision of the Act, expressly or impliedly debars a Mutawalli, an interested person, or any other aggrieved party from approaching the Waqf Tribunal by way of a civil suit seeking the reliefs prayed for in the present proceedings. 5.11. Section 54, when read in conjunction with Section 83, merely prescribes one of the legal mechanisms for evicting a tenant and recovering arrears of rent. The existence of such an alternative statutory remedy does not preclude an authorized Executive Officer or a Mutawalli from instituting a suit for eviction and recovery of arrears before the Tribunal. Furthermore, Section 83 of the Act does not stipulate that such proceedings can only be initiated by the Chief Executive Officer.
5.12. Therefore, the reliance placed by the learned advocate for Defendant No. 1 on the judgment in Rashid Wali Beg (supra) is misplaced, as the said decision, particularly paragraph 45, supports the proposition that disputes concerning Waqf property--including eviction, possession, and determination of rights and obligations fall within the Page 22 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined purview of the Waqf Tribunal under Section 83 of the Act, and are not exclusively governed by Section 54. Relevant para of Rashid Wali Beg (supra) is as under:-
"45. A combined reading of Sections 68(6), 86, 90 and 93 goes to show that the bar of jurisdiction under Section 85 does not apply at least to the following matters, covered by Sections 68(6), 86 and 90 :
(i) Whenever a District Magistrate passes an order directing the removed mutawalli or removed members of a Committee of Management to deliver possession of the records, accounts and properties of the waqf, to the successor or successor Committee of Management, any person claiming that he has right, title and interest in the properties specified in the order so passed by the Magistrate can approach a civil court;
(ii) The Board itself may approach a civil court either to set aside the sale in execution of a decree of civil court, of an immovable property which is a waqf property, or to set aside the transfer of any immovable property made by the mutawalli without the sanction of the Board or to recover possession of the property so sold or transferred, as the case may be;
(iii) The mutawalli is also empowered to approach the civil court to recover possession of any immovable property which is a waqf property, but which had been transferred by the previous mutawalli without the sanction of the Board (this is implicit in Section 86);
(iv) A waqf property can be brought to 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, but such a proceeding will be void if no notice thereof is given to the Board [this is implicit in Sections 90(2) & (3)].
46. Thus the Act itself has created some confusion, leaving the rest to the courts to compound the conundrum. Sadly, the Amendment Act 27 of 2013 also did not address the Page 23 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined problem fully."
Therefore, even as per the said judgment, Section 83 of the Waqf Act, 1995, does not stipulate that a suit for delivery of possession of Waqf property can only be instituted under Section 54 of the Act.
6. The judgments reported in 2008 (1) SCC 618 and (2006) 6 SCC 207 primarily address the issue of cause of action and the applicability of legal provisions. In the present case, the plaintiff has explicitly stated the cause of action while filing the suit, particularly on the grounds that Defendant No. 1 has defaulted in the payment of rent, remains liable to pay the outstanding rent, and is not entitled to undertake any construction on the subject property. Furthermore, the defendant is legally precluded from transferring, assigning, or selling the Waqf property to any third party, as the property belongs exclusively to the Waqf. Given these circumstances, the plaintiff has a legitimate claim for possession of the suit premises, and the cause of action for initiating the present proceedings has been duly established. 6.1. In the present case, the suit has been instituted by a Mutawalli and an Executive Officer appointed under Section 38 of the Waqf Act, 1995.
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Therefore, the suit is maintainable as it has been filed by an authorized person, as contemplated under Section 83 of the Act. 6.2. Furthermore, learned counsel for Defendant No. 1 has placed reliance on the judgments reported in 2019 (2) KHC 527 and 2020 (2) KLT 619, particularly paragraphs 4 and 5, which read as follows:
"4. We need not consider the contentions raised against the proceedings initiated under Section 54 of the Act, because, the impugned proceedings are only at the stage of issuing show-cause notices as contemplated under Section 54(1), wherein the petitioners are provided with an opportunity to object the proposed action and are also provided with opportunity to participate in the enquiry contemplated. Under normal circumstances, the petitioners have to raise all the contentions before the 4th respondent itself, who is at an obligation to conduct the enquiry based on such objections. Further, we notice that, even if the 4 th respondent is satisfied, after the enquiry, that the building is a waqf property and that there are encroachments, he can only make an application to the Tribunal for grant of orders of eviction for removing such encroachment and to deliver possession of the building to the 'Mutawalli' of the waqf, as contemplated under sub-section (3) of Section 54. Before the Tribunal also, it is obligatory that the parties in occupation (the alleged encroachers) shall be provided with an opportunity of hearing, as indicated in the proviso to sub-section(4) of Section 54. Therefore, all the contentions against Exts. P4 to P18 notices can be agitated before the appropriate fora as mentioned hereinabove. Therefore, under normal circumstances, exercise of the discretionary jurisdiction vested on this court under Article 226 of the Constitution of India is not warranted.
5. But in the case at hand, we take note of the fact that, Exts.P4 to P18 notices are issued only by the Junior Superintendent in the 3rd respondent Board. A legal question arises as to whether the Junior Superintendent in Page 25 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined the 3 rd respondent is vested with powers to issue any notice under Section 54(1) of the Act. In a Division Bench Ruling of this Court in Hamza Hajee P.K. v. Kerala State Wakf Board and Others [2019(2) KHC 527], to which one among us was a party [C.K. Abdul Rehim (J)], it was held that, power for removal of encroachment is vested only with the Chief Executive Officer and on the Waqf Tribunal, and that the Chief Executive Officer cannot delegate such power to any other officer of the Waqf Board. While considering the scope of the statutory provisions contained in Section 54 of the Act, it was found that, the Chief Executive Officer himself has to initiate proceedings under Section 54 and he is bound to conduct an enquiry based on the objection, if any, received from the alleged encroacher. On satisfaction about the encroachment, the Chief Executive Officer is bound to approach the Waqf Tribunal for getting an order of removal of the encroachment. Since there exists no provision empowering the Chief Executive Officer to delegate such power to any other Officer, the proceedings initiated by the Divisional Officer of the Board in that case for removal of the petitioner therein on the basis that they are encroachers, was found to be without jurisdiction or competence."
6.3. However, the fact remains that the aforesaid judgment is not applicable to the present case, as the reliefs sought in the plaint fall within the ambit of Section 83 of the Waqf Act, 1995. Since the present application has been filed under Section 83, and as this provision does not preclude a suit for recovery of possession of Waqf property, the cited judgment does not support the case of Defendant No. 1. 6.4. In the present factual matrix, reliance placed by the plaintiff on the judgment in Shantibhai Somabhai Patel (supra), particularly paragraph Page 26 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined 25, is relevant, which reads as under:
"25. In the case of State of Orissa vs. Klockner and Company, AIR 1996 SC 2140, the Supreme Court while approving the following view taken by the learned single Judge of the High Court dismissed the Special Leave Petition.
"From the discussions in the order it appears that the learned trial Judge has not maintained the distinction between the plea that there was no cause of action for the suit and the plea that the plaint does not disclose a cause of action. No specific reason or ground is stated in the order in support of the finding that the plaint is to be rejected under Order 7, Rule 11(a). From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has cause of action to file the suit for the reliefs sought that question is to be determined on the basis of materials (other than the plaint) which may be produced by the parties at appropriate stage in the suit. For the limited purpose of determining the question whether the suit is to be wiped out under Order 7, Rule 11(1) or not the averments in the plaint are only to be looked into. The position noted above is also clear from the petition filed by defendant No. 1 under Order 7, Rule 11 in which the thrust of the case pleaded is that on the stipulations in the agreement of 2041982 the plaintiff is not entitled to file a suit seeking any of the reliefs stated in the plaint."
6.5. In the case of Central Bank of India and Another (supra) paragraph 24 and 25 are as under:-
"24. Even if we would have been persuaded to take the view that the third relief is barred by Section 17(3) of the SARFAESI Act, still the plaint must survive because there cannot be a partial rejection of the plaint under Order VII, Rule 11 of the CPC. Hence, even if one relief survives, the plaint cannot be rejected under Order VII, Page 27 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined Rule 11 of the CPC. In the case on hand, the first and second reliefs as prayed for are clearly not barred by Section 34 of the SARFAESI ACT and are within the civil court's jurisdiction. Hence, the plaint cannot be rejected under Order VII Rule 11 of the CPC.
25. If the civil court is of the view that one relief (say relief A) is not barred by law but is of the view that Relief B is barred by law, the civil court must not make any observations to the effect that relief B is barred by law and must leave that issue undecided in an Order VII, Rule 11 application. This is because if the civil court cannot reject a plaint partially, then by the same logic, it ought not to make any adverse observations against relief B."
6.6. In the case of Sejal Gloass Ltd. (supra) paragraphs 3, 4 and 8 are as under:-
"3. In our view, the impugned judgment is wrong on principle. Order VII Rule 11 of the Code of Civil Procedure, 1908 which reads as follows:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by Page 28 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
6.8. In the case of Gurdev Singh (supra), paragraph 1 is as under:-
"1. The application preferred by the petitioner to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) has been dismissed by the Trial Court which has been confirmed by the High Court. It is the case on behalf of the petitioner that the plaintiff is not entitled to any relief in the suit. The aforesaid cannot be a ground to reject the plaint at the threshold in exercise of powers under Order 7, Rule 11 of the CPC. The learned Trial court has rightly rejected the application under Order 7, Rule 11 of the CPC, which is rightly not interfered with by the High Court. We are in complete agreement with the view taken by the High Court. The Special Leave Petition stands dismissed."
CONCLUSION:-
7. In light of the fact that the suit has been instituted for the recovery of possession and for an injunction concerning property belonging to the Waqf, the present dispute squarely falls within the ambit of Section 83 of the Waqf Act, 1995. This is because the dispute pertains to Waqf property, eviction, and the determination of the rights and obligations of the lessor and lessee. Therefore, upon a plain reading of the plaint and the documents annexed thereto, it is evident that the suit has been rightly Page 29 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025 NEUTRAL CITATION C/CRA/24/2025 ORDER DATED: 04/04/2025 undefined entertained by the Tribunal and was not liable for rejection. Consequently, there is no infirmity in the order passed by the Tribunal dated 21.11.2024.
ORDER:-
8. In view of the aforesaid, the present Civil Revision Application stands dismissed.
FURTHER ORDER:-
Upon pronouncement of the order, learned counsel for the petitioner made a request to this Court for a stay of the order passed today.
In view of the reasons recorded in the present order, the said request stands rejected.
(SANJEEV J.THAKER,J) MANISH MISHRA Page 30 of 30 Uploaded by MANISH MISHRA(HC01776) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:00 IST 2025