Bombay High Court
Suresh Govindrao Patil And ... vs Maharashtra State Board Of Wakf ... on 4 January, 2022
Bench: R. G. Avachat
CRA-180-2014.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 180 OF 2014
1. Suresh S/o Govindrao Patil
Age: 60 years, Occu. Agricutlture
2. Laxman S/o Govindrao Patil
Age: 49 years, Occu. Agriculture
Both R/o. Nitur, Tq. Nilanga,
Dist. Latur ... Applicants
VERSUS
1. Maharashtra State Board of Wakf,
Panchakki, Aurangabad
Through its Chief Executive Officer
2. Haider Chandsab Momin
Age: 50 years, Occu. Agriculture,
R/o. Nitur, Tq. Nilanga, Dist. Latur
3. Samad Bin Faraz Chaus
Age: 74 years, Occu. Agriculture,
R/o. Nitur, Tq. Nilanga, Dist. Latur ... Respondents
....
Mr. Sachin S. Deshmkh, Advocate for applicants
Mr. S. S. Kazi, Advocate for respondent Nos. 2 and 3
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 15th NOVEMBER, 2021
PRONOUNCED ON : 04th JANUARY, 2022
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J U D G M E N T :-
. This revision application is directed against the judgment
and decree dated 07.07.2014, passed by the Maharashtra Wakf
Tribunal, Aurangabad in Wakf Suit No.80 of 2010. By the impugned
judgment and decree, it has been declared that the land
admeasuring 51 Aar, forming part of Survey No.102 (Gut No.333) is
a wakf property belonging to a Dargah and graveyard, situated at
village Nitur, taluka Nilanga, district Latur. The applicants herein
have also been restrained from interfering in the peaceful use of the
graveyard (Kabrastan) in the land Gut No.333.
2. Heard.
Learned Advocate for the applicants would submit that
the Government Gazette dated 24.04.1980 does disclose that the
land in Survey No.101 is the only wakf property. The Government
Gazette came into being out of an inquiry held in view of Sections 4
and 5 of the Wakf Act, 1995. According to the learned Advocate, a
preliminary survey was undertaken by the State by appointing a
Survey Commission. Post such survey, the publication of wakf took
place. The Government Gazette dated 24.04.1980 has thus been
issued notifying the land Survey No.101 (Gut No.332) to be the wakf
property. The Government Gazette is conclusive proof of the contents
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therein. Respondent Nos. 2 and 3 did not challenge the Government
Gazette within a time frame. They had initially approached the Wakf
Board by presenting the proceeding under Section 54 of the Wakf
Act, 1995. They, however, chose to withdraw the said proceedings.
Wakf Suit No.80 of 2010 was thereafter preferred without disclosing
the fact of the proceedings initiated under Section 54 of the Wakf
Act. The objection as to maintainability of the suit was also raised by
the applicants herein. The respondent Nos. 2 and 3 want to take
advantage of the fact that both the lands in Survey Nos. 101 and 102
adjoined each other. The revenue record of the land in Survey
No.102 stands in the name of the applicants. The learned Advocate
referred to the relevant Government record to ultimately urged for
allowing the application.
3. Learned Advocate for respondent Nos. 2 and 3 would, on
the other hand, supports the impugned judgment and decree.
4. Considered the submissions made by the learned
Advocates. Perused the impugned judgment. Gone through the
evidence relied on. Before adverting to the controversy involved in
this application, it would be apposite to have a glance at the
provisions of Sections 4, 5 and 6 of the Wakf Act, 1995.
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"4. Preliminary survey of auqafs.-- (1) The State Government
may, by notification in the Official Gazette, appoint for the
State a Survey Commissioner of Auqaf and as many Additional
or Assistant Survey Commissioners of Auqaf as may be
necessary for the purpose of making a survey of auqaf in the
State].
[(1-A) Every State Government shall maintain a list of
auqaf referred to in sub-section (1) and the survey of auqaf
shall be completed within a period of one year from the date
of commencement of the Wakf (Amendment) Act, 2013 (27 of
2013), in case such survey was not done before the
commencement of the Wakf (Amendment) Act, 2013:
Provided that where no Survey Commissioner of Waqf
has been appointed, a Survey Commissioner for auqaf shall be
appointed within three months from the date of such
commencement.]
(2) All Additional and Assistant Survey Commissioner of
[Auqaf] shall perform their functions under this Act under the
general supervision and control of the Survey Commissioner of
[Auqaf].
(3) The Survey Commissioner shall, after making such inquiry
as he may consider necessary, submit his report, in respect of
[auqaf] existing at the date of the commencement of this Act
in the State or any part thereof, to the State Government
containing the following particulars, namely :--
(a) the number of auqaf in the State showing the Shia
auqaf and Sunni [auqaf] separately;
(b) the nature and objects of each waqf;
(c) the gross income of the property comprised in each
waqf;
(d) the amount of land revenue, cesses, rates and taxes
payable in respect of each waqf;
(e) the expenses incurred in the realisation of the
income and the pay or other remuneration of the mutawalli of
each waqf; and
(f) such other particulars relating to each [waqf] as may
be prescribed.
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(4) The Survey Commissioner shall, while making any inquiry,
have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908) in respect of the
following matters, namely:--
(a) summoning and examining any witness;
(b) requiring the discovery and production of any
document;
(c) requisitioning any public record from any court or
office;
(d) issuing commissions for the examination of any
witness or accounts;
(e) making any local inspection or local investigation;
(f) such other matters as may be prescribed.
(5) If, during any such inquiry, any dispute arises as to
whether a particular waqf is a Shia waqf or Sunni waqf and
there are clear indications in the deed of waqf as to its nature,
the dispute shall be decided on the basis of such deed.
(6) The State Government may, by notification in the Official
Gazette, direct the Survey Commissioner to make a second or
subsequent survey of waqf properties in the State and the
provisions of sub-sections (2), (3), (4) and (5) shall apply to
such survey as they apply to a survey directed under sub-
section (1):
Provided that no such second or subsequent survey shall
be made until the expiry of a period of [ten years] from the
date on which the report in relation to the immediately
previous survey was submitted under sub-section (3):
[Provided further that the waqf properties already
notified shall not be reviewed again in subsequent survey
except where the status of such property has been changed in
accordance with the provisions of any law.]
5. Publication of list of auqafs.--(1) On receipt of a report
under sub-section (3) of section 4, the State Government shall
forward a copy of the same to the Board.
(2) The Board shall examine the report forwarded to it under
sub-section (1) and forward it back to the Government within
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a period of six months for publication in the Official Gazette a
list of Sunni auqafs or Shia auqafs in the State, whether in
existence at the commencement of this Act or coming into
existence thereafter, to which the report relates, and
containing such other particulars as may be prescribed.
(3) The revenue authorities shall--
(i) include the list of auqaf referred to in sub-section
(2), while updating the land records; and (ii) take into
consideration the list of auqaf referred to in sub-section (2),
while deciding mutation in the land records.
(4) The State Government shall maintain a record of the lists
published under sub-section (2) from time to time.]
6. Disputes regarding auqaf. -- (1) If any question arises
whether a particular property specified as waqf property in the
list of auqaf is waqf property or not or whether a waqf
specified in such list is a Shia waqf or Sunni waqf, the Board
or the mutawalli of the waqf or [any person aggrieved] may
institute a suit in a Tribunal for the decision of the question
and the decision of the Tribunal in respect of such matter shall
be final:
Provided that no such suit shall be entertained by the
Tribunal after the expiry of one year from the date of the
publication of the list of auqaf:
[Provided further that no suit shall be instituted before
the Tribunal in respect of such properties notified in a second
or subsequent survey pursuant to the provisions contained in
sub-section (6) of section 4.]
(2) Notwithstanding anything contained in sub-section (1), no
proceeding under this Act in respect of any [waqf] shall be
stayed by reason only of the pendency of any such suit or of
any appeal or other proceeding arising out of such suit. "
5. Admittedly, the survey as has been contemplated under
Section 4, mentioned above, did take place. The Government
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Gazette dated 24.04.1980 came to be published mentioning therein
the land in Survey No.101 (Gut No.332) (Exh.39) to be the wakf
property. It has also been mentioned in the remarks column of the
very gazette that Dargah and graveyard are located in the survey
number of Govindrao Patil, the father of the applicants herein. This
entry in the Government Gazette stands since the gazette came to be
published on 24.04.1980. The applicants herein did not take
exception to the Government Gazette.
6. This being a revision application, this Court is not
expected to re-appreciate the factual matrix. After having gone
through the impugned judgment and evidence relied on, it does
appear that the Wakf Tribunal has passed the impugned judgment
consistent with the evidence in the suit. The impugned judgment can
neither be called to be perverse or illegal one. The relevant findings
recorded by the Tribunal are reproduced herein below.
"15. I do admit with the proposition that documentary
evidence will always prevail upon the oral evidence. The
plaintiffs have filed the certified copy of kadpatrak of land
survey No.102 Gut No.333 below Exh.44, this document is
old one and prepared in the year 1354 fasli (1945 A.D.). I
have gone through this document. The document bears
the entry of Kabrastan, Dargah and Chilla in pot kharab
land. The entry of kad patrak runs as " ;k ukokps [kjkc tfeuhr
l;n vCnwykpk nxkZ o fpYyk vkgs o eqlyeku yksdkaps vusd dczLFkku
vkgsr". Further the plaintiffs have filed certified copy of
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Field Book below Exh.44 of the land survey No.102(Gut
No.333) in which it is mentioned that Dargah Chilla and
the Kabrastan is situated in pot kharab land of survey
No.102. It is pertinent that 1 acre 10 guntha land in
survey No.102 is shown as pot kharab. Thus the oral
evidence of PW-1 and his witness read together with the
kadpatrak Exh.44 and Field Book 67 then it can be said
that the oral evidence of plaintiff is fully supported by the
above named documents.
16. Plaintiffs have filed the copy of government gazette
dated 24/08/1980 issued under Section 5 of Waqf Act
1954. Government Gazette is below Exh.64. The entry
No.29 pertains to Nitur village. It declares the Dargah Peer
Abdulla Shah and Graveyard consisting of 2 acre. The
Kabrastan and Dargah is shown in remarks column that it
is situated in field belonging to Govindrao Patil i.e. father
of defendant No.1. The learned Advocate of defendant Mr.
Nimbalkar vehemently submitted that the entries of
government Gazette are not binding on the right, title of
the plaintiff. He relied on AIR 1979 Supreme Court 289
the Board of Muslim Waqfs Rajastan, Appellant V/s.
Radhakishan and others. I have gone through the
authority and I am of the view that it has been observed
that the Waqf Act 1954 is complete code and Waqf
Commissioner appointed for survey of Waqf was
competent to decide the nature of the property as to
whether it is the Waqf or not. Further it has been observed
that a stranger who has not Muslim and is in possession of
certain property his right, title and interest there in can
not be put in jeopardy merely against the property is
included in the list published under Sub-Section (2) of
Section 5 of the Act, the failure of such a person to
institute a suit in a Civil Court of competent jurisdiction
for decision of such question within a period of one year,
as provided under Sub-section (1) of Section 6 does not
make the inclusion of such property in the list of Waqfs
published by the Board under Sub-Section (2) of Section 5
of the Act final and conclusive under Sub-Section (4) of
Section 6. Here the plaintiff has not challenged the list
since last so many years and therefore I am of the view
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that the entries in the Government Gazette are binding
against him. This apart it has been observed by our High
Court in Rahat Begum V/s. Ashraf Khan that once the
property is enlisted as Waqf property, ownership vest with
Waqf Board and publication of Gazette itself is notice to all
who are interested in the property.
17. It has been argued on behalf of defendants that
neither plaintiff nor Muslim persons used the suit property
as Waqf property. He argued that the suit property is under
the cultivation of defendant. It is pertinent that the
defendants have filed copy of compromise dated
16/07/2008 below 21/47. Village Muslim persons and the
Hindu persons executed said compromise. It appears from
the compromise that the villagers decided that an area
admeasuring 27 gunthas out of Gairan land will be given
to Muslim community for use as Kabrastan. It is further
mentioned in the said compromise that Muslim will use
portion of Gairan land as Kabrastan and the Hindu will
preserve an existing old graves and will see that no insult
is caused to those graves. If there was no Kabrastan in the
suit land survey No.102 (Gut No.333) then the above
version would not have come in the said compromise deed
dated 16/07/2008. Thus the oral evidence of plaintiffs,
government gazette and the entry of Kabrastan in the field
book and kadpatrak are sufficient to hold that the land
survey No.102 (Gut No.333) admeasuring 2 Hector 91 R
to the extent of potkharab 51 R land is Waqf property of
Dargah and the Kabrastan.
18. Defendants have come with a specific case that
Dargah is spread in 1 guntha land. Defendants have not
filed old revenue record like khasra patrak, pahani patrak
etc to prove that the Dargah is spread in only 1 guntha
and situated in survey No.102 (Gut No.333) however the
plaintiffs have filed the copy of 7/12 extract of suit land
survey No.102 for the year 1960-61 to 72-73. The 7/12
extract Exh.48 discloses that land Survey No.102 is known
as Dargah Patti. Dargah is shown as Pattedar and Gangaji
Isaji, father of defendant No.1 is shown as occupant and
the existence of Dargah is also shown in the other rights
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column of 7/12 extract. However area of Dargah is not
mentioned. The defendants have not filed any document
on record to show the Dargah is spread in only one
gunthas. Further he has not file any documentary evidence
to show that there is no Kabrastan situated in Suit Survey
No.102, Gut No.333."
7. It is reiterated that the aforesaid findings are based on
the evidence on record. This Court has therefore no reason to
interfere with the impugned judgment and decree. The Civil Revision
Application, thus, fails. The same is therefore dismissed.
8. All pending civil applications are disposed of.
9. Learned Advocate for the applicants urged for
continuation of interim order of stay. Learned Advocate for the
respondents objects.
10. Since the interim order has all along been continued
pending the revision, the same to continue for a period of four weeks
from today.
[ R. G. AVACHAT, J. ]
SMS
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