Bombay High Court
Rahul S/O. Ramchandra Moon vs Masjid-Ul-Karbala Thr. ... on 18 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO.62 OF 2016
APPLICANT: Rahul S/o Ramchandra Moon, Aged 45
(Ori. Non- years, Occupation-Business, R/o
applicant on
Imambada, Near Pach Nal Square,
R.A.)
Tahsil and District Nagpur.
-VERSUS-
RESPONDENTS: 1. Masjid-ul-Hussain Karbala, Great Nag
NON- Road, Nagpur through its Treasurer
APPLICANTS
Mohammed Shahabuddin Farulchi,
(Original
Applicant on RA) Aged about 56 years, Occupation-
Business, R/o Great Nag Road, Nagpur.
2. Imambada Karbala, Nagpur, through its
Trustee Hussain Ali, Great Nag Road,
Nagpur.
3. Mr. Taj Ali S/o Akbar Ali, Aged about 49
years, Occupation-Business, R/o Great
Nag Road, Imambada, Nagpur.
4. Maharashtra State Wakf Board,
Aurangabad, through its Chief Secretary,
Aurangabad.
Shri S. B. Tiwari, Advocate for the applicant.
Shri Mohd. Ateeque, Advocate for the non-applicant No.1.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 18, 2018.
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ORAL JUDGMENT :
1. This Civil Revision Application filed under Section
83 of the Wakf Act, 1995 (for short, the said Act) takes
exception to the order dated 29-7-2016 passed by the learned
Principal District Judge, Nagpur thereby partly allowing Wakf
Petition No.3/2013 and by maintaining the order directing
delivery of possession but setting aside the order directing the
applicant to pay a sum of Rs.83,000/- to the non-applicant
No.1.
2. It is the case of the applicant that he is in
occupation of shop block No.B admeasuring 10 ft x 12 ft.
which shop block was under the administration of
"Imambada Karbala" which was a registered public trust. On
5-10-2001, the applicant was inducted as a lessee of the shop
by the non-applicant no.3 who was a trustee of the trust.
This lease was for a period of eleven months. Despite expiry
of that period, the applicant continued in possession. There
was some litigation amongst the trustees with regard to the
properties of the trust. Writ Petition No.5403/2005 (Taj Ali
Akbar Ali and another vs. Additional Collector and Chief
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Executive Officer, Mah. State Board of Wakfs, Aurangabad
(M.S.) was compromised between trustees and the shop block
in question was treated to be a part of Masjid property. In the
meanwhile, on 3-11-2007 the trustees filed an application
under Section 54 of the said Act before the Wakf Board
seeking eviction of the applicant on the count that the shop
block was Wakf property and the applicant had no legal right
to continue in further possession of the shop block. By order
dated 1-11-2012 the eviction of the applicant was directed.
This order was challenged by the applicant by filing
proceedings under Section 83(2) of the said Act before the
District Court. By the impugned order, the direction as
regards eviction was maintained.
3. Shri S. B. Tiwari, learned Counsel for the applicant
submitted that the applicant was not an encroacher as
contemplated by Section 3(ee) of the said Act as amended.
The applicant was in possession prior to the amendment of
said provision by virtue of Act No.27/2013 coming into force
and, therefore, his possession was protected. It was
submitted that the shop block occupied by the applicant was
not wakf property and the procedure prescribed for including
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that property as wakf property was not followed. He referred
to the order passed in Writ Petition No.5403/2005 and
submitted that the same has not been complied with by
petitioner No.2 therein. The applicant being in occupation on
the strength of lease deed dated 20-8-2009 which was for a
period of thirty years, he could not have been evicted by
treating him as a trespasser. It was then submitted that the
Chief Executive Officer without verifying as to whether the
shop block was wakf property proceeded to direct his
eviction. The remedy under Section 54 of the said Act was
not available to the non-applicant no.1 as it did not have any
legal right to seek eviction of the applicant. In support of his
submissions, the learned Counsel relied upon the decision in
Pushpa Devi Bhagat vs. Rajinder Singh and others (2006) 5
SCC 566 and Maharashtra State Board of Wakfs vs. Yusufbhai
Chawala and others (2012) 6 SCC 328.
4. Shri Mohd. Ateeque, learned Counsel for the non-
applicant no.1 supported the impugned order. According to
him, the proceedings under Section 54 of the said Act were
initiated by the Secretary of the Wakf Board who was
empowered to do so. The applicant did not raise any plea
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that the shop block in his possession was not wakf property
and said point was being raised for the first time in these
proceedings. According to him, by virtue of provisions of
Section 56 of the said Act, there was a restriction on the
power to grant lease. This period was three years while the
applicant was relying upon the lease deed dated 20-8-2009
which was for a period of thirty years. No permission of the
Board had been taken before having the lease executed. After
giving due notice to the applicant to which a reply was given,
the proceedings for his eviction were filed. It was submitted
that as per the proceedings in Writ Petition No.5403/2005
the non-applicant no.1 was entitled to seek eviction of the
applicant. He placed reliance on the judgment in Civil
Revision Application No.252/2012 (Laxman S/o Haribhau
Koradkar and others Vs. Saminuissa Fazaluddin Inamdar and
others) dated 29-11-2013 as well as Civil Revision Application
No.116/2008 decided on 3-7-2009.
5. I have heard the learned Counsel for the parties at
length and I have perused the material placed on record. In
Writ Petition No.5403/2005 a compromise was entered into
between the non-applicant No.3 who had granted lease to the
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applicant, the brother of non-applicant No.3 and other
trustees. As per this compromise, six shop blocks including
the shop block in occupation of the applicant was to be
treated as Masjid property and the Managing Committee of
the Masjid was entitled to receive rent from the tenants. After
this compromise was entered into on 20-2-2007, a notice
came to be issued by the Secretary on 5-7-2007 to the
applicant. It was brought to the notice of the applicant that
the shop block in his possession was Masjid property and he
was called upon to enter into a lease agreement as per
provisions of the said Act. On 7-8-2007, a reply was issued
by the applicant denying the claim of the Secretary. He
justified his occupation on the strength of an earlier
agreement with non-applicant no.3. It is thereafter that on
3-11-2007 proceedings under Section 54 of the said Act were
filed for removing the applicant from the shop block. In reply
to this application, the applicant stated that the lease amount
was being paid to non-applicant no.3 and therefore, he was
not liable to be evicted. The Wakf Board on 1-11-2012 after
hearing both sides allowed the application filed by the non-
applicant no.1. It also directed the applicant to pay arrears of
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rent for a sum of Rs.83,000/-. It can be seen that in none of
these proceedings did the applicant take stand that the shop
block occupied by him was not property of the wakf. Instead
he relied upon earlier lease deed executed by the non-
applicant no.3. By virtue of the compromise in Writ Petition
No.5403/2005, the shop block became property of the Masjid
and therefore, the Secretary was justified in calling upon the
applicant to execute a fresh lease agreement. This not having
been done the non-applicant no.1 was justified in seeking
eviction of the applicant.
6. Under provisions of Section 56 of the said Act as it
stood prior to its amendment by Act No.27/2013, a lease
exceeding period of three years with regard to wakf property
was treated to be void. This period of three years has been
amended and the period has now been increased to thirty
years. The agreement between the applicant and non-
applicant no.3 dated 20-8-2009 for a period of thirty years,
therefore, did not give any right to the applicant to continue
in possession. The lease deed exceeding the period of three
years was void and on this count also the eviction of the
applicant cannot be faulted.
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7. The submission raised that the compromise
entered into in Writ Petition No.5403/2005 was illegal and
was not executable cannot be gone into at this stage
especially when this ground was never raised by the applicant
earlier. Similarly, the applicant cannot be permitted at this
stage to raise a plea that the shop block was not wakf
property. This stand was not taken in the reply to the legal
notice, in the proceedings under Section 54 of the said Act
before the Wakf Board as well as in proceedings under
Section 83(2) of the said Act. The same is a question of fact
which was required to be raised before the first authority.
Hence, the decisions relied upon in that regard do not
support the case of the applicant.
8. In view of aforesaid, I do not find that the District
Court committed any jurisdictional error while confirming the
order of eviction passed against the applicant. The order
passed in Wakf Petition No.3/2013 is confirmed. The
applicant is granted time of two months from today to hand
over possession of the shop block to the non-applicant no.1.
It is clarified that it would be open for the applicant to
recover the amount of security deposit of Rs.60,000/- from
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non-applicant No.3 in accordance with law.
The Civil Revision Application stands dismissed
with no order as to costs.
JUDGE
/MULEY/
