Bombay High Court
Farrukh Mehmood vs Maharashtra State Wakf Board on 14 December, 2010
Bench: K.U. Chandiwal
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.122 OF 2004.
1) Farrukh Mehmood s/o Late Haji
Mehmood Khan and Another. - PETITIONERS
VERSUS
1) Maharashtra State Wakf Board,
Through its Chief Executive
Officer, and Ors. - RESPONDENTS
ig *****
WITH
CIVIL REVISION APPLICATION NO.149 OF 2004.
1) Mujataba Mehmood s/o Late
Haji Mehmood Khan and Ors. - PETITIONERS
VERSUS
1) Maharashtra State Wakf Board,
Through its Chief Executive
Officer, and Ors. - RESPONDENTS
*****
Mr.AD Kasliwal,Advocate for Petitioner;
Mr.JH Deshmukh, Adv. h/for Mr. SM Godsay, Adv.
for Respondent No.1;
Mr.AS Bajaj, Adv. for Resp.Nos.2, 3 and 4.
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CORAM : K.U.CHANDIWAL,J.
DATE : 14th DECEMBER,2010.
PER COURT:
1) The Civil Revision Applications were
admitted by order dated 30.09.2004. A short
question crept in is, whether the learned
Presiding Officer of the Wakf Tribunal, could
dispose of the proceedings for want of a notice
under Section 89 of the Wakf Act, 1995, in a
challenge to action under Section 54 of the Wakf
Act..
2)
The revision applicant sought a
declaration that order dated 4.12.2003 recorded
of the learned Chief Executive Officer of the
Respondent No.1-Wakf Board in terms of Section 54
of the Wakf Act, was illegal, null and void.
Perpetual injunction was also sought, restraining
the CEO from taking possession of property
described in the plaint.
3) Section 89 of the Wakf Act concur as
under, -
"89. Notice of suits by parties
against Board, -No suit shall be
instituted against the Board in
respect of any act purporting to be
done by it in pursuance of this Act
or of any rules made thereunder,
until the expiration of two months
next after notice in writing has
been delivered to, or left at, the
office of the Board, stating the
cause of action, the name,
description and place of residence
of the plaintiff and the relief
which he claims; and the plaint
shall contain a statement that such
notice has been so delivered or
left."
4) The controversy needs to be seen in the
context of the nature and scope, envisaged under
Section 54 of the Wakf Act, which commensurate
with the title, removal of encroachment from wakf
property. The Section ordain and illustrate, if
the Chief Executive Officer considers that there
has been an encroachment on any land, which is a
wakf property and registered as such, he shall
cause a notice to be served upon such encroacher
calling upon him to show cause before a date to
be specified in such notice, and then after
hearing, requiring him to remove the
encroachment. It provides that there should be a
full-fledge inquiry and subjective satisfaction
of the Chief Executive officer that the property
in question is a wakf property and that there has
been encroachment on wakf property. Section
54(4) of the Act conceive,- " Nothing contained
in sub-section (3) shall prevent any person
aggrieved by the order made by the Chief
Executive officer under that sub-section from
instituting a suit in a Tribunal to establish
that he has right, title or interest in the land,
building, space or other property."
5) Reading Section 54 of the Wakf Act and
putting the prayers or the cause raised in the
petition in juxtaposition, it is evident, it was
challenged by declaration to the action of the
Chief Executive officer in terms of Section 54 of
the Act, branding it as illegal, null and void.
6) Insistence by the learned Presiding
Officer of the Wakf Tribunal for issuance of a
notice should not have been coined, as the rules
for preferring an appeal against the order in
terms of Rule 50(3) provide a time frame of sixty
days. If one has to adhere to the time schedule
of sixty days from the order, naturally, he would
not be in a position to serve a notice giving
sixty days time in terms of Section 89 of the
Wakf Act. It may be that Rule 50 (3) would not
be relevant in terms of section 89 of the Wakf
Act. However, at this stage of the matter, it
cannot be said that the overlapping effect of
Rules to Section 89 should be condoned. When the
statute provides a specific period to challenge
the CEO's order, insistence for issuance of
notice under Section 89 was uncalled for. CEO
did not call upon the applicant for removal of
encroachment of wakf property, but it was to the
challenge of the order recorded by the Chief
Executive Officer exercising powers in terms of
Section 54 of the Wakf Act, 1995. Common sense
should not be kept in cold storage as the
language of Section 54 and 89 depicts different
situation and the petition should not be
crucified for want of notice.
7) The survey illustrate that the learned
Presiding officer could not have rejected the
petition taking recourse to order VII Rule 11 of
CPC and should not have kept the issue of want of
notice alive.
8)
The insistence for notice against Chief
Executive officer's order would afflict the
justice system at initial stage. The order of
the learned Presiding Officer of the Maharashtra
Wakf Tribunal, Aurangabad dated 31.12.2003,
therefore, calls for interference. The order is
set aside. The wakf suit No. 42 and 43 of 2003
are restored to original position. Both the
parties shall appear before the Presiding
Officer, Wakf Tribunal on 13th January, 2011.
9) Civil Revision Applications are allowed
to the extent indicated above. No costs.
sd/-
(K.U.CHANDIWAL)
JUDGE
bdv/
