Nisar Ahmed vs Agyapal Singh
2015 Latest Caselaw 1237 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Reserved on: 21.05.2014
                                                 Decided on: 11.02.2015

                        +      RC.REV. 377/2011
      NISAR AHMED
                                                         ..... Petitioner
                          Through      Mr. S.H. Nizami, and Mr. S.S.
                                       Nizami, Advs.

                          Versus

      AGYAPAL SINGH
                                                         ..... Respondent
                          Through      Mr. S.K. Duggal, Adv.

      CORAM:
      HON'BLE MR. JUSTICE NAJMI WAZIRI

%     MR. JUSTICE NAJMI WAZIRI

1.    This petition under Section 25-B(8) of the Delhi Rent Control Act
(for short „the Act‟) challenges the order dated 26th May, 2011 of the
Additional Rent Controller (ARC), whereby the petitioner‟s eviction
petition under Section 14(1)(e) read with Section 25-B of the Act was
dismissed on the ground that (i) the petitioner had failed to show that he
was the owner of the tenanted premises; and (ii) at best he was the
collector of rent being the Mutawalli of the Wakf property, therefore, he
could not maintain the eviction petition.
2.    The respondent had filed an application for leave to defend and
pending its consideration, he moved an application under Order VII, Rule
11 of the CPC for dismissal of the petition on the ground that the


R.C. Rev. 377/2011                                          1|Page
 petitioner, being a Mutawalli and not the owner of the tenanted premises,
since the tenanted premises vested in the Almighty.
Background

facts

3. The tenanted premises, i.e., shop No. 1344, Ground Floor, Star Building, Qutab Road, Sadar Bazar, Delhi-6, is a shop with wooden roof which was later converted into a „pucca‟ roof. The tenancy was in favour of Shri Rajinder Singh, the present tenant‟s father, who has since demised and the respondent has become a tenant by the operation of law.

4. The petitioner‟s case was that the tenanted premises formed part of Wakf-alal-Aulad comprising property Nos. 908 to 923 and 1337 to 1345, Star Building, Qutab Road, Sadar Bazar, Delhi-110 006; that he is one of the Mutawallies as well as a beneficiary of the Wakf; that the tenanted premises were required for himself as well as for his family members dependent on him for accommodation to carry out their own businesses; that they had no other reasonably suitable commercial accommodation in Delhi. It was stated that the petitioner‟s first daughter had graduated from Lady Shri Ram College, University of Delhi while the second daughter possesses an MBA and a Ph.D; that both the daughters desired to set up their own commercial establishments. It was further stated that the petitioner himself being a senior citizen was suffering from various ailments and had already suffered brain haemorrhage and faced difficulty in climbing stairs. Therefore, he wanted his business to be carried out on the ground floor. It was submitted that being the Mutawalli and a beneficiary of the Wakf, he had the right to institute the eviction petition in terms of the Wakf Deed.

5. In his leave to defend application, the tenant had sought to implead

R.C. Rev. 377/2011 2|Page the Delhi Wakf Board on the ground that Section 85 of the Wakf Act, 1995 required the Board to be a party to the proceedings before the Wakf Tribunal. It was stated that the Wakf Deed creating Wakf-alal-Aulad was no Wakf in the eyes of law; that the wakf property could be used only for charitable purposes; that the executant of the wakf deed intended the wakf property to be used for the benefit of his sons and other male successors of the Wakf. It was further stated that the petitioner was already running a flourishing hotel business in the name and style of New Star Hotel from the second floor of the same building and additionally, he was getting rent from more than 70 shops; that in the recent past, the petitioner had re-let the premises on the ground floor after charging huge sums of money which were vacated by the tenants and this would establish that there was no need of any commercial space. The tenant had further alleged that despite receiving rents which were supposed to be spent on keeping the building in good condition, no money was spent by the Mutawalli who received the money as a trustee; that 29 shops on the ground floor (out of 70 shops), 16 shops on the first floor (out of 31 shops) and 8 shops on the second floor (out of 11 shops) were being occupied by tenants but the eviction petition was silent on this issue. He further submitted that about 3-4 years ago, the shop vacated by one Mr. H.S. Talwar which comprised an area of 1,000 square feet was leased out to M/s. Dhingra Bag House; that another shop, which was vacated was let out in July, 2009 to M/s. Amit Electricals at a higher rent; that both the daughters of the petitioner, being married and well settled in their respective matrimonial homes did not require the tenanted premises, since their respective husbands were well off and were able to maintain their wives and families; that the Wakf

R.C. Rev. 377/2011 3|Page Deed intended the wakf property only for the benefit of the male children of the executants, therefore, the married daughters could not receive any benefit therefrom and their requirement, if any, could not be deemed to be the requirement of the Wakf. Finally, the tenant argued that the nature of commercial activity which was likely to be started by the landlord or his daughters was not disclosed; that in the absence thereof, it would be a triable issue as to how the petitioner was intending to use the tenanted premises assuming that it was to be vacated.

6. The petitioner/landlord had sought to refute the contentions of the tenant and argued that the tenanted premises was a private Wakf, therefore, it was to be used for the benefit and welfare of the Wakif till the survival of the Wakif and thereafter, for the Mutawalli and as per the Wakf Deed, the beneficiary/Mutawalli had a right to file a suit in respect of the Wakf properties. It was further argued that M/s. New Star Hotels was a partnership firm which was being run by various partners of which the petitioner was neither a partner nor had he any concern with the business; that the said firm was a tenant since a very long time and it comprised of small rooms on the first and second floor which are occupied by old tenants and most of them were paying a meagre sum of Rs.100/-; that the hotel paid a rent of Rs.1,500/- per month from which the petitioner got only 1/10th share; that no premises on the ground floor was vacated or re-let to any new tenant and there were only 28 shops on the ground floor and 40 commercial rooms on the first and second floor and there was no shop lying vacant on the first or second floor; that there was no space available which could be utilized for the bona fide need of the petitioner. The petitioner further contended that the shop was let out to

R.C. Rev. 377/2011 4|Page M/s. Dhingra Bag House way back in the year 2002 when his daughters were still studying and as a matter of fact, sub tenancy was created by Mr. H.L.Talwar in favour of M/s. Dhingra Bag House. It was explained that rent receipts were issued in favour of Mr. Amit, s/o Shri Deewan Chand Chirag, a sub-tenant of M/s. Reliable Electricals, a partnership firm; that the rent receipts were issued in the name of Mr. Amit with the consent of M/s. Reliable Electricals in the year 2002 and in comparison to the tenanted shop, the said shop was too small and there was no necessity at that time; that the rent receipts were issued in the year 2002 when the daughters of the petitioner were still studying, whereas the eviction petition was filed in the year 2009 when the actual need arose; that although the daughters were married, the need could not be diluted and they would still be dependent upon their father since they would always be members of their maternal/paternal family; that the law did not require the disclosure of nature of business to be carried out. It was denied that fresh tenants were inducted in the vacated shops at higher rentals. It was submitted that the tenanted premises was the most suitable for satisfying the bona fide need of the petitioner because it was the largest shop on the main road.

7. While in the leave to defend the tenant had contended that the Wakf Deed created was no Wakf in the eyes of law but later, he filed an application under Order VII, Rule 11 of the CPC, changing his stand and alleged that since the Wakf has been created, the ownership in the property vested in God Almighty, therefore, (i) a Mutawalli could not file a petition as its owner and (ii) the eviction petition would not be maintainable. Another application was filed under Section 151 CPC

R.C. Rev. 377/2011 5|Page seeking to add/take additional grounds, alleging that the Wakf-alal-Aulad was meant for the benefit of the family members of the Wakif and not for a particular person and upon creation of a Wakf, it becomes a „divine property‟ in the eyes of law, as it is created in perpetuity and becomes inalienable and when the line of descendants becomes extinct, the entire corpus of the Wakf property would go in charity to the public and the Wakif would have no ownership right on it. It was also contended that Mutawallis have no right to occupy any particular portion of the property and surely, not on the ground that there is a personal requirement.

8. The aforesaid contentions were refuted by the landlord/petitioner and he relied upon the following judgments:

      (i)     1999(2) RCR 607;

      (ii)    VI (2010) DLT 353;

      (iii)   155 (2008) DLT 383;

      (iv)    2008 RLR 310 SC;

      (v)     2009 (1) RCR 142/2005 677;

      (vi)    2008 (2) RCR 567;

      (vii) 174 (2010) DLT 65;

      (viii) 2010 (2) RCR 593; and

      (ix)    2010 (2) RCR 604.

      Whereas        the   tenant/respondent   relied   upon   the   following

      judgments:



R.C. Rev. 377/2011                                             6|Page
       (i)     2007(4) SCC 632;

      (ii)    2008 (6) JT 250,

      (iii)   2006 (13) SCC 497;

      (iv)    2009 (3) SCC 287;

      (v)     1982 (3) DRJ 142 (SN)

      (vi)    1991 (45) DLT 3,

      (vii) 2008 (6) JT 250,

      (viii) AIR 2001 RAJ 19,

      (ix)    (1983) 1 SCC 301,

      (x)     (2001) SCC pg. 706, and

      (xi)    AIR 1988 SC 2986

Impugned order

8. The learned ARC recorded that there was no dispute regarding the tenancy insofar as the tenant had admitted the respondent as his landlord. On the issue of ownership of the Wakf property and the locus standi of the Muawalli to file an eviction petition, the Trial Court examined the relevant extracts of a translated copy of the Wakf Deed and concluded that the Mutawalli could collect the rent in terms of the Wakf Deed but not as an owners since the ownership had already been relinquished by his father, the creator of the Wakf. Therefore, it was held that in the absence of ownership rights in the Mutawalli, he would not be competent to file a petition under Section 14(1)(e) of the Act which was a sine qua non for

R.C. Rev. 377/2011 7|Page filing the petition.

9. The petitioner had contended that for the purpose of the Act, all that was required to be shown was that the landlord was more than the tenant and had relied upon a few judgments in support thereof. However, the learned ARC distinguished the said precedents on the ground that in all those cases, the tenants had failed to disclose the name of the other owner and had admitted their tenancy in respect of the properties in their occupation and hence, in view of Section 116 of the Evidence Act, they were estopped from challenging the title of the landlord. It was noted that although the tenant had not denied the relationship of landlord and tenant, yet, the tenant raised the legal issue of ownership and there can be no bar to such challenge, although the ownership of the Almighty in whom the property vested upon creation of the Wakf, was not disputed. The learned ARC concluded that insofar as the landlord could collect the rent, he was authorized to do so only in terms of Wakf Deed as its Mutawalli and could file an eviction petition only for the purposes of use by the Wakf but the same could not be extended for his personal benefit. The learned ARC further held that the eviction petition was filed by the petitioner for his personal bona fide need which was against the terms of the Wakf Deed; that it was clearly stipulated in the Wakf Deed that income from the Wakf property would be first used for maintaining the Wakf property and thereafter, the share of income would be divided amongst all the beneficiaries; that the petitioner himself had admitted that he was entitled to only 1/10th share from the total income and hence, he could not claim the exclusive user of the tenanted premises for his own benefit or for the benefit of his family members. On the issue of Wakf-ul-Aulad, the learned

R.C. Rev. 377/2011 8|Page ARC held that there was no distinction under the Wakf Act and initially, the object of the Wakf may be for the benefit of the family members in case of Wakf-ul-Aulad but ultimately, the property should have been utilized for pious purposes and in the present case, for the benefit of the male lineal descendants, upon whose succession, the property would be utilized for charitable purposes for running „Madarsa Islamia‟. Reliance in this regard was placed upon the judgment reported in (2006) 13 SCC

497.

10. In view of all these findings, the learned ARC held that the petitioner had failed to show that he was the owner of the tenanted premises and he was merely a collector of rent as its Mutawalli and although he can be termed as a landlord, he would not be the owner as contemplated under Section 14(1)(e) of the Act. The application under Order VII, Rule 11 of the CPC was allowed and the eviction petition was rejected.

Contentions

11. The learned counsel for the petitioner argued that the learned ARC was misdirected in hearing the application under Order VII, Rule 11 of the CPC and should have decided the application for leave to defend alone, particularly, since the ownership had not been disputed in the leave to defend application. He further submits that the tenant/respondent had taken a completely contradictory stand in the Order VII, Rule 11 application vis-a-vis the leave to defend application. He also submits that Section 25-B of the DRC Act is a complete code in itself and insofar as the tenant has admitted to the tenancy created, he cannot resile from it and set up a new case. He relies upon Rajender Kumar Sharma & Ors. v.

R.C. Rev. 377/2011 9|Page Leelawati & Ors., (2008) 155 DLT 383 to contend that for the purpose of Section 14(1)(e) of the Act, a landlord is not required to prove absolute ownership as required under the Transfer of Property Act; that he is only required to show that he is more than a tenant. He further relies upon Ramesh Chand v. Uganti Devi, (2009) 157 DLT 450, wherein it was held as under:

"It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly."

12. In reply, the learned counsel for the respondent supports the

R.C. Rev. 377/2011 10 | P a g e impugned order and has sought dismissal of the present petition. Conclusion

13. The limited issue before this Court is whether the petitioner/landlord as the Mutawalli could sue for eviction of the tenant/respondent from the tenanted premises.

14. At this juncture, reference to a few judicial precedents is necessary. In Shujauddin Mohammed Kaiser v. Kolkata Municipal Corporation, (2012) 1 Cal LT 331, on the issue of the power of Mutawallies under the Wakf Act, it was held by the Calcutta High Court that "though even though the Mutawalli may not be the owner of the Wakf properties, the obligation and right to administer and maintain the trust properties vests with him. All property rights are to be exercised by the Mutawalli". In Badagara Jumayath Palli Dharas Committee v. P. Ummesrkutty Haji, AIR 2002 Ker 56, a Division Bench of the Kerala High Court held that a person acting as a Mutawalli is entitled to sue for recovery of possession of the Wakf property as he is entitled to the rights and duties of a Mutawalli. In A.S. Abdul Khader Waft for Deeni Talim v. Saber Miah, AIR 2003 AP 528, a Division Bench of the High Court of Andhra Pradesh held as under:

"25. In the present case, the managing Mutawalli who is interested in safeguarding the interests of the Wakf and its properties had instituted the suits praying for appropriate reliefs. It is also pertinent to note that the managing Mutawalli is permitted to institute these suits by the Wakf Board as evidenced by Ex. A-4. A Mutawalli is a person who will manage and supervise, the Wakf properties. In view of the

R.C. Rev. 377/2011 11 | P a g e same, it cannot be said that a Mutawalli cannot maintain a suit in relation to Wakf property at all and the Wakf Board alone should institute the suit. Hence, we are of the considered opinion that a Mutawalli can definitely institute a suit for recovery of possession of the Wakf property from tenants and also for appropriate reliefs.

26. ..........

27. The position of a Mutawalli is just akin to a Trustee. It is no doubt true that a Mutawalli cannot act adverse to the interests of the Wakf. A Mutawalli is expected to administer and manage the properties of the Wakf keeping in view the wishes of the founder and a Mutawalli is expected to protect the interest of the beneficiaries as well. When there are more than one Mutawallis, we are also of the opinion that one of the Mutawallis can definitely maintain a suit representing the other Mutawallis as well unless there is conflict of interest otherwise. A co-owner can definitely maintain, a suit for the relief of eviction and even in the case of Mutawallis, when there are more than one Mutawalli, one such joint Mutawalli can definitely maintain a suit. The principle applicable in the case of a co-owner in this regard can be extended even in the case of Mutawallis."

15. Further, in Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan, (1978) 3 SCC 299 it has been held that "A Mutawalli is more like a manager than a trustee and so far as the Wakf property is concerned, has to see that the beneficiaries get the advantage of the usufruct. All the

R.C. Rev. 377/2011 12 | P a g e beneficiaries are entitled to benefit equally subject to any special power conferred on the Mutawalli.

16. From the aforesaid legal position, what emerges is that a Mutawalli can sue for eviction of a tenant in discharge of his obligations and right to administer and maintain a Wakf property under his/her charge. The Mutawalli can seek eviction of a tenant for himself as well as for other beneficiaries of the Wakf. All the more so, when the Mutawalli is a defined beneficiary under the terms of the Wakf. The Delhi Rent Control Act makes no difference between tenants of Wakf and non-Wakf properties. Under Section 14 (1) (e) of the DRC Act, for the purposes of ownership, all that has to be seen is that the landlord is more than the tenant. It is settled law that the landlord is not required to prove absolute title as required under the Transfer of Property Act. The tenant‟s contention that the eviction petition is in contravention of the terms of the Wakf deed because it is purportedly for the use of the Mutawalli and not of the Wakf itself is an untenable argument because it is settled law that a tenant cannot dictate terms to the landlord as to how the property should be put to use or managed so as not to disturb the possession of the tenant [Prativa Devi v. T.V. Krishnan (1996) 5 SCC 353]. The manner in which the Wakf property is to be put to use could at best be the subject matter of separate proceedings but it is not to be examined by the Rent Controller in an eviction proceeding. As aforesaid, the tenant has no right to question the use of the tenanted premises by the Mutawalli. A tenant would have no right to scrutinise or inquire into or suggest or direct as to how the Mutawalli should run the Wakf. Admittedly, the tenant has been paying rent to the landlord/petitioner. Once it is so admitted, then Section 116 of

R.C. Rev. 377/2011 13 | P a g e the Evidence Act would come into operation and the tenant/respondent would be estopped from challenging the title of the landlord/petitioner.

17. By the creation of a Wakf, the property vests in the Almighty. The dedication is for any purpose recognised by Muslim Law as pious, religious or charitable and as per the Wakf Amendment Act, 2013. A wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided "when the line of succession fails, the income of the wakf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law." The latter situation is yet to arrive in the present case. It is for the Mutawalli to determine the best user and optimum utilisation of the Wakf properties. The Wakf was created for the aulad (children/successors) of the Wakif/Settler. It was surely not created for the perpetual benefit of a tenant, who may be or had been inducted in the Wakf property. The Mutawalli is also a beneficiary under the Wakf and he surely can move an eviction petition. Although the property vests in the Almighty, it has to be managed so as to optimise the use and usufruct from the Wakf property for the benefit of the beneficiaries contemplated in the Wakf Deed. If the Mutawalli cannot sue for eviction of a tenant for the benefit of the Wakf or the beneficiaries of the Wakf, it would tantamount to a permanent tenancy being created in favour of the tenant by a deeming fiction that the property vests in the Almighty and nobody can seek eviction of the said tenant. Surely, this could not have been nor was it so contemplated by the Wakif who inducted the tenant in the tenanted premises. For temporal purposes, the Mutawalli has to exercise managerial and administrative rights in the Wakf property as has

R.C. Rev. 377/2011 14 | P a g e been held in Shuja Mohammed Kaiser (supra). Furthermore, the Wakf Deed in the present case stipulates that the Mutawalli can seek eviction of the tenant.

18. The tenant admits to his tenancy of the Wakf and has been paying rent to the Mutawalli. In the circumstances, there was no occasion for the learned ARC to entertain the application under Order VII, Rule 11 of the CPC. The matter ought to have been proceeded under Section 25-B of the Act which is a complete Code in itself. Furthermore, it appears that the learned ARC has allowed the application of the tenant/respondent under Order VII, Rule 11 of the CPC due to lack of cause of action, i.e., the landlord‟s lack of ownership apropos the tenanted premises. The occasion to adjudicate on an application under Order VII, Rule 11 of the CPC would arise only when the Court finds no cause of action in the plaint. In the present case, that occasion would not arise because all that is sought is the eviction of the tenant who has admitted his tenancy to the Wakf. Since the tenancy has been admitted by the tenant, and the rent is less than Rs.3,500/- per month, the case would surely be covered under the Delhi Rent Control Act. Therefore, all that Court would have to see whether the petitioner was the landlord under the Act. This Court holds that a Mutawalli is a landlord under the DRC Act, in the facts of this case.

19. In view of the preceding discussion, this Court is of the view that the impugned order is afflicted by error in law. The landlord/petitioner has a right to seek eviction of the tenant provided he can prove bona fide need. Accordingly, the impugned order is set aside and the case is remanded back to the learned ARC for determination on the aspect of bona fide requirement for which the leave to defend application has

R.C. Rev. 377/2011 15 | P a g e already been filed.

20. The parties are directed to appear before the ARC on 26.02.2015 who shall endeavour to dispose off the leave to defend application within a period of two months thereafter.

                                                      NAJMI WAZIRI
                                                       (JUDGE)

FEBRUARY 11, 2015/acm




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