Liyakat Kasam Mulla And Other vs Maharashtra State Board Of Waqf, ...
2021 Latest Caselaw 7645 Bom

                                                         C.R.A. No.113/2018
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


            CIVIL REVISION APPLICATION NO.113 OF 2018



 1.       Liyakat s/o Kasam Mulla
          Age 56 years, Occu. Business

 2.       Mohammad Ali Hussain Mulla
          Deceased through L.Rs.

 2A)      Sugrabi w/o Mohammad Ali Mulla
          Age 75 years, Occu. Agri.,
          R/o Rahamatpur, Tq. Koregaon,
          District Satara

 2B)      Zahida Rafiq Patel,
          Age 45 years, occu. Household,
          R/o Bapuji Salunke Nagar,
          Karve Naka, Karad,
          Tq. Karad, District Satara

 2C)      Shakil s/o Mohammad Ali Mulla,
          Age 49 years, Occu. Agri.,
          R/o Rahamatpur, Tq. Koregaon,
          District Satara
          G.P.A. Holder of 2A and 2B

 3.       Rahimatullah s/o Rashid Mulla,
          Age 67 years, Occu. Pensioner

 4.       Inayatullah s/o Rashid Mulla
          Age 70 years, Occu. Business,

          Nos.3 and 4 R/o Rahimatpur,
          Tq. Koregaon, District Satara.         ... PETITIONERS
                                                 (Original Applicants)

          VERSUS

 1.       Maharashtra State Board of Waqf,
          through its Chief Executive Officer,
          at Panchakki, Aurangabad




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                                                                C.R.A. No.113/2018
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 2.       Chaitanshah Peer Mira Shaha
          Sayyed Hussaini Waqf,
          Through - Turab Shah @ Dadasaheb
          Lalshah Fakir, Age 52 years,
          Occu. Agri., R/o Rahimatpur,
          Tq. Koregaon, District Satara

 3.       Aziz s/o Hadi Inamdar,
          Age major, Occu. Business,
          R/o Rahimatpur, Tq. Koregaon,
          District Satara

 4.       Ayyaz s/o Yakub Mulla,
          Age 72 years, Occu. Pensioner,
          R/o Rahimatpur, Tq. Koregaon,
          District Satara                              ... RESPONDENTS
                                                       (Nos.3 & 4 Orig.
                                                       Applicant No.3 & 4)
                                 .......
 Shri   Y.B. Pathan, Advocate for applicants
 Shri   N.E. Deshmukh, Advocate for respondent No.1.
 Shri   Pravin Mandlik, Senior Counsel, instructed by
 Shri   P.P. Mandlik, Advocate for respondent No.2.
                                 .......

                                   CORAM :        R. G. AVACHAT, J.

                  Date of reserving judgment: 24th February, 2021.
                  Date of pronouncing judgment : 10th June, 2021.


 JUDGMENT:

Rule. Rule made returnable forthwith and taken

up for final hearing with the consent of learned counsel for the

parties.

2. The challenge in this revision application is to the

order passed by the Chief Executive Officer (C.E.O.),

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Maharashtra State Waqf Board, Aurangabad on 21/10/2009

and affirmed by the Waqf Tribunal vide its judgment and order

dated 10/5/2018, passed in Waqf Application No.78/2009.

The C.E.O., Waqf Board granted the application filed by the

respondent No.2 for removal of encroachment made by the

applicants herein on the land Survey No.306, situated at

village Rahamatpur, Taluka Koregaon, District Satara since the

said land has been held to be the property of the Waqf -

Chaitanshah Peer Mira Shaha Sayyed Hussaini. The said

order has been affirmed by the Waqf Tribunal. The applicants

are, therefore, before this Court.

3. Heard Mr. Yunus Basheer Pathan, learned counsel

for the applicants, Mr. N.E. Deshmukh, learned counsel for

respondent No.1 and Mr. P.V. Mandlik, learned Senior Counsel

for respondent No.2.

The learned counsel for the applicants would

submit that, the father of the respondent No.2 had filed an

application to the Assistant Charity Commissioner (A.C.C.) for

registration of the entire land in Survey No.306 as a Waqf

property. The learned A.C.C. conducted the enquiry and held

that only the land admeasuring 20 gunthas under Kabrastan

C.R.A. No.113/2018 :: 4 ::

in the said Survey Number and other piece of land

admeasuring 8 x 7 ft. under mound is Waqf property.

Remaining land in Survey No.306 was a private property in

possession of the persons including the applicants herein.

The A.C.C. personally paid visit to the land before the said

order was passed. Although the order of the A.C.C. has been

set aside by the Joint Charity Commissioner in Appeal

Nos.34/1984 and 37/1984 and Revision Application

No.1/1992, the said order of Joint Charity Commissioner has

been subject of challenge in Trust Application Nos.291/1996,

292/1996 and 293/1996 before the District Court, Satara.

The learned counsel would further submit that, the father of

the respondent No.2 had on one hand claimed the entire land

in Survey No.306 to be the Waqf property, and on the other

sold major portion of the said land claiming it to be his private

property. According to the learned counsel, since the dispute

dates back to the coming into force of the Waqf Act, 1995,

(for short, Waqf Act) by virtue of Section 7(5) of the Waqf Act,

the Waqf Tribunal has no jurisdiction to determine the present

matter holding it to be Waqf property since the very matter

was the subject matter of the proceedings in Trust Application

Nos.291/1996, 292/1996 and 293/1996 before the District

Court, Satara. In support of his contentions, the learned

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counsel has placed reliance on the judgment of the Apex

Court in case of Sardar Khan & ors. Vs. Syed Najmul Hasan

(Seth) & ors. [ 2007 ALL SCR 1759 ] and Md. Moinuddin Vs.

Md. Mustafa & ors. [ AIR 2010 PATNA 24 ]. According to

learned counsel, there was no shred of evidence to indicate

the property in possession of the applicants to be the Waqf

property. He took me through the relevant evidence referred

to and observations made by the learned A.C.C. in his

judgment dated 6/8/1984. The learned counsel would further

submit that, the respondent No.2 has challenged the order

passed by the High Court, rejecting the Application

No.2127/1990 in Second Appeal No.268/1990 on 12/6/1990.

The learned counsel would ultimately urge for setting aside

the impugned orders.

4. Mr. Deshmukh, learned counsel representing

respondent No.1 and Mr. Mandlik, learned Senior Counsel

representing respondent No.2 would, on the other hand,

submit that, it is a Waqf Tribunal which has jurisdiction under

Section 83 of the Waqf Act to decide whether it was a Waqf

property. The learned counsel took me through the relevant

documentary evidence on record namely very old 7/12

extracts of the land Survey No.306 to ultimately submit that

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the said land is Waqf property. They would further submit

that, the applicants did not produce evidence to prove their

title to the land in their possession. The learned counsel

ultimately urged for rejection of the Civil Revision Application.

5. I have considered the submissions made by the

learned counsel. Perused the impugned orders. Gone

through the evidence in the matter. The land Survey No.306

totally admeasures 2 acres and 19 gunthas (1 Hector). The

7/12 extract of the said land for the years 1925 to 1931 is on

record. The entire land is shown to be a burial ground

(मसनवटा). The same status of the land Survey no.306

continued in the revenue record for years together. The

Superintendent of Land Record had informed that the land

Survey no.306 has not been subdivided. [पोट हहससे पडलेले

नसलयामुळे व फाळणी झालेली नसलयामुळे फाळणी उतारे देता येत नाहीत.]

6. It appears that, it is only in 1977 onwards some

plots in the land Survey No.306 have been sold to various

persons. Names of purchasers have been entered in the city

survey record. The applicants, however, did not have any

document of title to substantiate their claim of ownership over

the respective portion in their possession, forming part of the

C.R.A. No.113/2018 :: 7 ::

land in Survey No.306. It is true that the A.C.C., after having

paid visit to the land and on hearing the parties, held that

only 20 gunthas of land and another piece of land

admeasuring 8 x 7 ft. under mound in Survey No.306 is the

Waqf property. The applicants would not be benefited by

relying on the judgment of the learned A.C.C. since the same

has been set aside by the Joint Charity Commissioner.

Although the applicants and others challenged the order of

the Joint Charity Commissioner in Trust Application

Nos.291/1996, 292/1996 and 293/1996 before the District

Court, Satara, they have been unsuccessful therein. Certified

copies of the judgments and orders passed in those Trust Civil

Applications have been placed on record of this Court. There

is nothing to indicate the applicants to have challenged the

said judgments and obtained stay to the findings recorded

therein. As such, as of today, the entire land in Survey

No.306 is a Waqf property. Whatever dispositions/ sale of

land in Survey No.306 have been effected by the father of the

respondent No.2 would be illegal and liable to be set aside in

appropriate proceedings.

7. After having considered the evidence on record,

both the authorities below have held the applicants to be the

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encroachers on the Waqf land. They have, therefore, been

directed to remove the encroachments. I do not find the

authorities below to have acted in exercise of their jurisdiction

illegally or with material irregularity. There is, therefore, no

reason to interfere with the impugned orders. The Civil

Revision Application fails and is thus dismissed. Rule

discharged.

( R. G. AVACHAT ) JUDGE

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