Bombay High Court
Mr. Naushad Latif Shaikh And ... vs The Chief Executive Officer, ... on 29 March, 2017
Bench: S.P. Deshmukh
1 CRA-197.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 197 OF 2016
1. Mr. Naushand Latif Shaikh,
age Major, occup. Business,
R/o C.T.S. No. 174, Narayanpeth,
Pune - 411 004
2. Mr. Farooq Latif Shaikh,
Age : Major, occupation: Business,
R/o C.T.S. No. 174, Narayanpeth,
Pune - 411 004 .. Applicants
versus
1. The Chief Executive Officer,
Maharashtra State Board of Waqfs,
Panchakki, Aurangabad
2. Haji Makke Shah Masjid Trust,
Pune, Reg. No. 52/2007
R/o C.T.S. NO. 744,Deccan Gymkhana,
Shivaji Nagar, Pune -411 004
3. Mr. R. N. Khan,
Age: major, occup. Business,
R/o Shivaji Nagar Pune,
4. Mr. Waghchaore,
Age: Major, occupation : Business,
R/o C.T.S. No. 744, Shivajinagar,
Pune - 411 004
5. Mr. Sameer Mahboob Shaikh,
Age : Major, Occupation : Business,
R/o C.T.S. NO.744, Shivajinagar,
Pune- 411 004
6. Smt. Indubai Rakshe,
Age : Major, occupation : Business,
R/o C. T. S. No. 744, Shivajinagar,
Pune - 411 004
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6.A] Kamlakar Maroti Rakshe,
Age : major, occupation : Business,
R/o Mumbai, Ladu Samrat,
Dukan No. 1, Habib Teres,
Dr. B. A. Road, Lalbaugh,
Mumbai - 400 012
7.A] Mr. Asif Tajpeer Shaikh,
Age : Major, occupation : Business,
R/o C.T.S. No. 744, Shivajinagar,
Pune - 411 004
7.B] Shakeel Tajpeer Shaikh,
Age : Major, occupation : Business,
R/o C.T.S. No. 744, Shivajinagar,
Pune - 411 004 .. Respondents
---
Mr. Gaurav L. Deshpande, Advocate for applicants
Mr. R. R. Mantri, Advocate i/b Mr. Z. M. Pathan, Advocate for
respondent no. 2
Mr. Mohammad Wasemullah, Advocate for respondents no.3 & 5
Smt. Sanjivani Ghate-Deshmukh, Advocate for respondent no. 4
CORAM : SUNIL P. DESHMUKH, J.
DATE : 29th March, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard learned
counsel for appearing parties.
2. This civil revision application takes exception to order
dated 25-10-2016 passed by the Presiding Officer,
Maharashtra Wakf Tribunal, Aurangabad in proceedings
bearing Wakf application no. 29 of 2014, directing eviction of
present applicants from C.T.S No. 174 situated at Narayan
Peth, Pune.
3 CRA-197.16.doc
3. It is being informed that a few of the occupants of
property at C.T.S. No. 774 against whom proceedings were
initiated before the Chief Executive Officer and orders of their
eviction have been passed, have approached the principal
seat of this court at Bombay challenging their eviction. Thus,
the matter is being considered only in respect of present
applicants. As such, scope of present revision would be
confined to the claim of the applicants, in respect of C.T.S.
No.174.
4. Mr. Gaurav Deshpande states that some proceedings
were initiated by Wakf Institution Haji Makke Shah Masjid
Trust [HMSMT] for eviction of some persons from C.T.S. No.
744 situated at Shivaji Nagar, Deccan Gymkhana, Pune before
the Chief Executive Officer, Maharashtra State Board of
Wakfs, Aurangabad. Said proceedings culminated into an
order/communication dated 29-4-2014/03-05-2014 by the
Chief Executive Officer, Wakf Board whereunder eviction of
the persons occupying C.T.Ss. No. 744 and 174 had been
contemplated and the matter in pursuance of the provisions
of section 54 (3) of the Wakf Act, 1995 had been referred to
the Wakf Tribunal.
4 CRA-197.16.doc
5. Learned counsel Mr. Deshpande vehemently contends
that no notice had been received by applicants pursuant to
section 54 (2) of the Wakf Act at their end although the
tribunal has purportedly observed that notice appears to have
been issued by the chief executive officer to the applicants.
He further contends that as a matter of fact, originally while
the proceedings were initiated, those appear to be only
against occupants of C.T.S. No. 774 and not the occupants of
C.T.S. No.174. However, intriguingly, the matter has also
been proceeded with before the chief executive officer, wakf
board, against the present applicants who are occupants of
C.T.S. No. 174.
6. Learned counsel Mr. Deshpande further submits that
notice before making application to the tribunal is mandatory
and non issuance of the same has caused serious prejudice to
the applicants. He further submits that mother of the
applicants had been occupant of C.T.S. No. 174 and some
legal proceedings had been initiated against her. Material
aspects could not be brought before the chief executive officer
for want of notice and in such a case, an application to the
tribunal for applicants' eviction could have been prevented
had opportunity come their way.
5 CRA-197.16.doc
7. He submits that while originally order had been passed
by the chief executive officer, it was limited only to occupants
of C.T.S. No. 744 and had not at all covered occupants of
C.T.S. No. 174. He further submits that while certified copy of
the order had been obtained by the applicants, after they had
received notice from the tribunal about the application for
their eviction, they could notice that it did not bear reference
to C.T.S. No. 174 in the same, yet while passing impugned
order, the tribunal has ignored said vital aspect and has
passed eviction order against them. He further submits that
tenor of order by Chief Executive Officer shows while order
was being passed, chief executive officer had considered only
C.T.S. no. 744 and not at all C.T.S. no. 174. It is submitted
by him that it is being claimed that sometime after application
for C.T.S. No. 744 had been made, under another application,
action against persons in occupation of C.T.S. No. 174 had
also been mooted.
8. He further purports to submit that there is no
application which can be said to have been made by the chief
executive officer against alleged encroachers present
applicants insofar as C.T.S. No. 174 is concerned. The
tribunal purportedly acted upon a communication from the
6 CRA-197.16.doc
chief executive officer in respect of C.T.S. No. 174 made soon
after the order has been passed in respect of C.T.S. No. 744.
In the circumstances, the order passed by the tribunal is a
defective order and legally unsustainable. Mr. Deshpande,
therefore, submits that the two orders do not adhere to the
noble principles of natural justice and deserve to be set aside.
9. Learned counsel Mr. Deshpande, appearing on behalf of
applicants submits that the whole procedure as referred to
under the relevant provisions of the Wakf Act has been
followed only in breach and the same has caused grave
prejudice to the applicants and their longstanding possession
over property bearing C.T.S. No. 174 situated at Narayanpeth,
Pune, has been put under peril.
10. Countering aforesaid submissions, Mr. Mantri, learned
counsel appearing on behalf of respondent no. 2 contends
that the objection being taken about no order in respect of
C.T.S. 174 was passed is a run away submission being made
at the behest of the applicants. He purports to point out
order passed by the chief executive officer indicates that the
order had, in fact, been passed also in respect of C.T.S.
No.174. He submits that omission occurring in the certified
7 CRA-197.16.doc
copies is an omission which was by mechanical work of the
machine. He submits that the chief executive officer had, in
fact, corrected the order by incorporating C.T.S. No. 174 by
hand in the original order passed. He purports to submit that
the notices as required under the provisions of section 54 of
the Wakf Act, 1995 were issued to the applicants and
accordingly the order came to be passed by the chief
executive officer making reference to the tribunal. He submits
that on merits, the applicants have very weak legs to stand
on, for, the tribunal has considered relevant provisions,
particularly sections 51 and 56 of the Wakf Act which show
that any period of lease beyond three years without
permission of the wakf board is not possible under the Wakf
Act, 1995. In the circumstances, occupation of C.T.S. No. 174
by the applicants is not legally sustainable and the impugned
order on that ground can seldom be said to be defective. He
submits that no prejudice can be said to have been caused to
the applicants, for, they did have another opportunity
before the tribunal which they could have availed of, and to a
large extent, they appear to have availed of the same. In
the circumstances, the allegations being made
about the orders having been passed without following the
8 CRA-197.16.doc
principles of natural justice do not appear to bear substance.
11. It appears, property bearing C.T.S. No. 744 situated at
Shivaji Nagar, Pune and C.T.S. No. 174 situated at Narayan
Peth, Pune, are claimed to be properties of said Wakf.
12. It appears, the Wakf Tribunal, Aurangabad had
proceeded with wakf application no. 29 of 2014 pursuant to
section 54(4) of the Act and passed an order on 25-10-2016
allowing said application with directions for eviction and
removal of encroachments over properties of HMSMT,
including property occupied by applicants bearing C.T.S. No.
174 situated at Narayan Peth, Pune. It is against this order
of the tribunal, present civil revision application has been
moved by the applicants who are occupants of C.T.S. No. 174
at Narayan Peth, Pune.
13. It would be worthwhile to consider section 54 of Wakf
Act, 1995, reading thus;
'' 54. Removal of encroachment from wakf property. (1)
Whenever the Chief Executive Officer consider 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 wakf property, and, which has been registered as such
under this Act, he shall cause to be served upon the encroacher a
9 CRA-197.16.doc
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 enquiry in
such manner as may be prescribed, the Chief Executive Officer is
satisfied that the property in question is wakf property, and there
has been an encroachment on any such wakf 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 wakf.
(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 the wakf 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 wakf 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
10 CRA-197.16.doc
under sub-section (2), the Chief Executive Officer or any other
person duly authorized by him in this behalf may evict that person
from, and take possession of, the wakf property. ''
14. During the course of submissions, learned counsel Mr.
Deshpande had pointed out that the record is deficient about
issuance of notice pursuant to section 54 from the office of
the chief executive officer to the applicants. In the
circumstances, while the applicants, it appears, could not
make it before the chief executive officer before he had
arrived at a conclusion to apply for their eviction which
appears to be the object and intention underlying section
54(1) and 54 (2) of the Wakf Act, 1995. The order does
appear to be deficient in respect of consideration of the
imperative aspects and is thus rendered unsustainable.
15. Though the tribunal has purportedly observed that
notice appears to have been issued to the applicants by the
chief executive officer yet the record would show that there
does not appear to be corresponding material of postal
department indicating that notice had, in fact, been issued.
The consideration by the tribunal on that count, inter alia, is
not appropriate. Observations of the Tribunal in respect of
notice to applicants appear to be rather infirm.
11 CRA-197.16.doc
16. It has been further adverted to that while applicants
could not make their stand clear about their status and rights
over C.T.S. No. 174, as what they could find that summons is
in respect of C.T.S. no. 174 only. The tribunal appears to have
acted upon intimation under covering letter from the chief
executive officer after he had passed order. Opportunity to
bring forth relevant material, inter alia, important aspects
appear to have dodged the applicants in the process. Learned
Advocates during the course of hearing purport to point out
relevant material from the record and proceedings from the
office of chief executive officer, wakf board. Perusal of the
order of the chief executive officer may as well, appear to be
suggestive of infusing streak of some relevance to the
submissions on behalf of the applicants about non application
of mind to the case of C.T.S. no. 174.
17. In the circumstances, it appears, the applicants deserve
an opportunity under the provisions of section 54 of the Wakf
Act, 1995 before the chief executive officer of wakf board as
the same would be expedient. Such an opportunity, in the
circumstances would, to a large extent, meet with applicants'
grievance about loss of opportunity.
12 CRA-197.16.doc
18. In the circumstances, opportunity pursuant to section
54 (1) and 54 (2) of the Wakf Act would have to be made
available to the applicants looking at the language employed
by legislature in the enactment.
19. Learned counsel for respondents, on instructions,
submit that it would be expedient in such a case if the matter
is to be remanded to the authority with directions to deal with
it in accordance with applicable provisions, it may be confined
to C.T.S. No 174 only concerning applicants with further
directions to dispose of the same as expeditiously as possible.
20. As such, the order passed by the chief executive officer
dated 29-04-2014/03-05-2014 and the one passed by the
Tribunal dated 25-10-2016 in Wakf application no. 29 of 2014
relating to the applicants' occupation over C.T.S. No. 174 at
Narayan Peth, Pune, to that extent, stand set aside. The
matter is remitted to the chief executive officer in respect of
the proceedings which are purportedly initiated upon an
application dated 14-09-2013 by Haji Makke Shah Masjid
Trust - a wakf institution. The parties accordingly to appear
before the chief executive officer on 12-06-2017. The
proceedings be further prosecuted by following the procedure
13 CRA-197.16.doc
under the applicable provisions. As the parties are to appear
before the chief executive officer on 12-06-2017, formal
notice by the chief executive officer to the parties, including
the applicants herein, would be redundant. Further
proceedings be taken up as expeditiously as possible and may
be disposed of preferably within a period of six months from
date of appearance i.e. 12-06-2017 after giving opportunity
to the parties.
21. Civil revision application to aforesaid extent stands
allowed. Rule made absolute accordingly.
SUNIL P. DESHMUKH,
JUDGE
pnd
