Subhash Chand Gera vs Qazi Shamim Ahmed & Ors
2015 Latest Caselaw 3626 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                            Date of Decision: 06.05.2015

+               RC Rev. 494/2013 & CM No.20488/2013

RAJESH JAIN                                                     ..... Petitioner
                         Through:         Mr. S.K. Bhaduri, Adv. with
                                          Petitioner in person.

                                           versus

QAZI SHAMIM AHMED & ORS.                  ..... Respondents
              Through: Mr. Harpreet Singh & Mr. Rajesh Gupta,
                       Advs.

+       RC Rev. 13/2014 & CM Nos.378-379/2014 & 14129/2014

VINOD KUMAR PATHAK                                          ..... Petitioner
             Through:                     Mr. Yogesh Malhotra, Adv.

                                           versus

QAZI SHAMIM AHMED & ORS.                  ..... Respondents
              Through: Mr. Harpreet Singh & Mr. Rajesh Gupta,
                       Advs.

+                                RC.REV. 49/2014

SUBHASH CHAND GERA                                           ..... Petitioner
             Through:                     Mr. J K Bhola, Advocate

                                           versus

QAZI SHAMIM AHMED & ORS                     ..... Respondents
              Through: Mr. Harpreet Singh, Mr. Rajesh Gupta &
                       Mr. S P Gupta, Advocates


_______________________________________________________________________
RC Rev. Nos.494 of 2013; 13 of 2014 & 49 of 2014                        Page 1 of 28
 CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J.

1. These petitions under the proviso to Section 25-B(8) of the Delhi

Rent Control Act, 1958 (for short „Act‟), impugn three separate

orders dated 27.09.2013 (for short „impugned orders‟), whereby

the learned Additional Rent Controller (for short „ARC‟)

dismissed the petitioners' applications for leave to defend.

2. For brevity, RC. REVS. 13/2014, 49/2014 and 494/2013 shall

hereinafter be referred to as P1, P2 and P3 respectively. P1

concerns two shops bearing Nos. 260/A-5 and 260/A-6; P2

concerns two shops bearing Nos. 260/A-1 and 260/A-2; and P3

concerns three shops bearing Nos.260/1, 260/2 and 260/3. The

said shops form a part of properties bearing Nos. 260 & 260A,

Hauz Rani, Malviya Nagar, New Delhi (for short „property‟) and

shall collectively be referred to as tenanted premises. The

respondents (landlords) in all these petitions are the same; the

disputes pertain to the same property; and the issues for

consideration in these cases are also the same. Accordingly, these

petitions are disposed off by a common order.

_______________________________________________________________________

3. The facts in brief are that the respondents are the children of Qazi

Sajjad Hussain and Smt. Rabia Begum. Qazi Sajjad Hussain was

the erstwhile owner of the property. By a registered sale deed

dated 05.02.1971, Qazi Sajjad Hussain transferred 125 sq. yards,

i.e., property bearing No.260A in favour of his wife, Smt. Rabia

Begum. Both Smt. Rabia Begum and Qazi Sajjad Hussain passed

away in the years 1985 and 1990 respectively. They had also

executed Wills dated 10.02.1979 and 26.03.1979. As per the Will

dated 10.02.1979, the property was to constitute a Wakf-alal-

aulad after the death of Qazi Sajjad Hussain. Respondent No.1 is

the Mutawalli of the property. The respondents had sought

eviction of the petitioners from the tenanted premises for bona

fide need under Section 14(1)(e) of the Act.

Impugned order

4. A few preliminary issues arose for consideration before the

learned ARC. The petitioners had contended that the eviction

petitions were not maintainable under Section 14(1)(e) of the Act

as the tenanted premises were let out for commercial purposes

and were in the nature of commercial tenancy. However, the said

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argument was rejected by the learned ARC since the said issue

had been crystallized by the Supreme Court in Satyawati Sharma

v. Union of India.1

5. Apart from the above, in P1, the petitioner had contended that he

along with his wife and son were doing a business by the name of

M/s. Pathak Electric Co. In P2, the petitioner had contended that

he was doing a business known as S. K. Properties in of the shops

and in the other shop, his brother Mr. Anil Gera was doing a

business known as M/s. Gera Glass Works. In P3, the petitioner

had contended that his was a partnership firm consisting of other

partners as well. In effect, the petitioners had argued that the

eviction petitions were bad for non-joinder of necessary parties as

others, as aforesaid had not been impleaded. However, in P1, the

ARC noticed that according to the license deed dated 01.10.1975,

the petitioner was the only the tenant. In P2 too, it was noticed

that according to the license deed dated 01.06.1979, the petitioner

was the only tenant. In P3, it was noticed that according to the

rent deed dated 15.10.1973, the petitioner was the only tenant and

the partnership firm, as contended was not. Therefore, it was held

(2008) 5 SCC 287 _______________________________________________________________________

that simply because the petitioners had claimed the

involvement/presence of other persons in the tenanted premises, it

would not necessitate their impleadment in the eviction petitions.

6. As mandated under Section 14(1)(e) of the Act, three issues arose

for consideration before the learned ARC, namely ownership,

bona fide need and availability of reasonably suitable

accommodation.

7. Apropos the issue of ownership and landlord-tenant relationship,

the petitioners had contended that respondent No.1 is merely a

Mutawalli who could administer the property and had to act as per

the terms of the will; as per paragraph 11 thereof, none of the

heirs of Qazi Sajjad Hussain would have any proprietary title or

interest in the Wakf property, therefore, the respondents were not

the owners of the tenanted premises. However, the petitioners had

not disputed the license deeds, rent deed and Wills as aforesaid.

On the other hand, the respondents had contended that the

petitioners had filed a Civil Suit bearing No. 207/2012 wherein

they had admitted themselves to be the tenants in the tenanted

premises and Qazi Shamim Ahmed, respondent No.1 to be the

owner thereof. They had also relied upon the Will dated _______________________________________________________________________

10.02.1979 and the proceedings of a meeting of the beneficiaries

of the Wakf-alal-aulad dated 01.01.1991 to contend that they

were the owners of the tenanted premises. The learned ARC noted

that admittedly, the respondents were the children of Qazi Sajjad

Hussain and Smt. Rabia Begum; the license deeds and rent deed

as aforesaid were admitted by the petitioners; according to

paragraph 1 of the plaint in the aforesaid suit, the petitioners had

admitted respondent No.1 to be the owner of the tenanted

premises. The learned ARC was of the view that the concept of

ownership under Section 14(1)(e) of the Act had to be seen from a

limited perspective; the landlord need not prove absolute

ownership as required under the Transfer of Property Act; the

landlord should only be more than a tenant; and landlord-tenant

relationship had been duly admitted in the present case.

Accordingly, the learned ARC held that the respondents were

indeed, the owners of the tenanted premises.

8. With regard to whether the respondents were successful in

establishing their bona fide need for the tenanted premises, the

learned ARC held in the affirmative. In P1, it was the

respondents' case that the tenanted premises were required for _______________________________________________________________________

respondent No.5, who along with his two sons namely Tazim

Ahmed and Mohd. Faris wanted to start a travel agency. The

respondents had also intended to settle respondent No.4 in a part

of the tenanted premises for selling religious and other books. The

fact that respondent No.5 had retired from Embassy of Saudi

Arabia and that he had two sons was not in dispute. However, the

petitioners sought to contend that Tazim Ahmed was earning

more than Rs.50,000/- a month and that respondent No.5 was

teaching Saudi language (sic) and was earning Rs.30-40,000/- a

month. The learned ARC noted that the petitioners had failed to

provide details regarding respondent No. 5 teaching Saudi

language (sic); the respondents' case was not that Tazim Ahmed

was not earning but that he was working in a Call Centre, earning

Rs.20-23,000 per month and was finding it difficult to travel to

Gurgaon for the same; the leave to defend application was silent

apropos the other son namely Mohd. Faris, aged 21 years, who

was stated to be pursuing a course in Tourism from IGNOU. In

the circumstances, the learned ARC held that the need of the

tenanted premises for respondent No. 4, respondent No. 5 and his

two sons cannot be stated to be whimsical. It was noted that the _______________________________________________________________________

respondents had averred that respondent No.5 intends to utilize

his experience and his son's Tourism education, which would be

an added advantage to the proposed business of a travel agency.

9. In P2, it was the respondents' case that the tenanted premises

were required for respondent No.2 for starting a business of Air

Conditioning and Refrigeration. It was not in dispute that he had

retired from AIIMS as Foreman (Air Conditioning Plant). There

was nothing in the leave to defend application which would

suggest that he was in occupation of any other commercial

premises or in pursuit of any other business activity. It was the

respondents' case that since he had retired from service and had to

proceed to Dubai for employment, the tenanted premises were

required as aforesaid. The learned ARC rejected the petitioner's

argument that respondent No.2's son was settled in Dubai and

was earning more than Rs. 1 lac a month. It was held that the need

of a person to settle himself post retirement cannot be stated to be

a mere desire.

10.In P3, it was the respondents' case that the tenanted premises

were required for respondent No.1, who along with his son

Kaleem Ahmed intended to open a shop of readymade garments. _______________________________________________________________________

It was not disputed that respondent No.1 was a retired person. It

was the further the respondents' case that Kaleem Ahmed was

employed in an export house, earning a meager sum of Rs.

10,000. Since May, 2012, he was stated to be unemployed. In

support of this contention, the respondents had placed on record, a

letter issued by Novel Export which stated that Kaleem Ahmed

was employed in that organization from February, 2005 to April,

2012. Accordingly, the petitioner's contention that Kaleem

Ahmed was still working there was rejected. In view of the

aforesaid, the learned ARC held that the respondents were

successful in establishing bona fide need for the tenanted

premises.

11.Apropos the issue of availability of reasonably suitable

accommodation, it was argued by the petitioners that the

respondents were in possession of Shop No.260/A3; the

respondents had vacant space available in the rear portion of the

property, where shops could be constructed; the first floor of the

property could be used for satisfying their need. However, the

respondents, inter alia, had argued that Shop No. 260/A3 was

being used for storage purposes and that they intended to merge it _______________________________________________________________________

with the adjacent shop bearing No. 260/A4 to satisfy their need

after getting other tenants evicted by due process of law. The

learned ARC found merit in the said submission. It was held that

the petitioners could not force the respondents to construct shops

in the rear portion so as to not get them evicted. The photographs

placed on record by the respondents were relied upon to hold that

the first floor of the property was in a dilapidated condition, under

repair and was residential in nature. The respondents had claimed

to be residents thereof. Since the respondents had sought eviction

for commercial purposes, it was contended by them and so held

by the learned ARC that the ground floor would be more

appropriate than the first floor. Accordingly, it was held that the

respondents were successful in establishing that they had no other

reasonably suitable accommodation.

Contentions

12.The learned counsel for the petitioners, inter alia, submit that the

respondents are not the owners of the tenanted premises, which is

a sine qua non under Section 14(1)(e) of the Act, therefore, the

eviction petitions were not maintainable; that the respondents

_______________________________________________________________________

have misled the ARC by relying upon Mohammad Qamar Shah

Khan v. Mohammad Salamat Ali Khan2 since it has been

overruled by a Full Bench in Moattar Raza. v. Joint Director of

Consolidation3. It is also submitted that respondent No.1's son is

earning a sum of Rs. 50,000 a month and frequently visits foreign

countries which could be proved by leading evidence; the

respondents had not stated that they had demolished several parts

of the property; the respondents have entered into some

arrangement to sell the property; the respondents are well settled;

vide order dated 10.10.2012, respondent No.1 was directed not to

dispossess the petitioners of the property without following due

process of law. It is also submitted that shop No. 260/A-3 was

vacated sometime ago, however, no activity was being carried on

therein; MCD has declared the street to be a commercial one,

hence, the proposed businesses could be carried out on the first

and second floors too; the respondents have admitted that the rear

portion is available with them; the need of the respondents got

satisfied when shop nos. 3 and 4 in the property got vacated; the

AIR 1933 All 407

AIR 1970 All 509 _______________________________________________________________________

respondents have not been using the same; after the eviction

orders was passed on 27/9/2013, the respondents got another shop

vacated which has been lying vacant; the respondents have a

property in Dwarka, Delhi which has been let out. It is also

submitted that Qazi Irshad Hussain, the other Mutawalli was not

impleaded in the eviction petitions.

13.Mr. Malhotra, the learned counsel for one of the petitioners

argued that any action seeking eviction of a tenant from the Wakf

property required the sanction of the Wakf Board concerned since

the Mutawalli works under the supervision of the Wakf Board and

does not have an independent right apropos the Wakf property.

He relies upon Section 32 of the Wakf Act and also traverses the

duties of Mutawalli as stipulated in Sections 50 & 51 of the Wakf

Act, 1995. He further submits that institution of the eviction

petitions were not sanctioned by the Wakf Board, therefore, they

were not maintainable. He relies upon the judgment in Thakur

Mohd. Ismail vs. Thakur Sabir Ali & Ors., AIR 1962 SC 1722,

in particular paragraph 10 thereof which reads as under:-

"10. But we are of opinion that the contention that a wakf-

alal- aulad is some thing which is entirely outside the purview of the Act, even though it may deal with property _______________________________________________________________________

governed by the Act cannot be accepted. A wakf-alal-aulad must by its very nature be some kind of transfer of property by the person making the wakf. Previous to Act VI of 1913, the Privy Council had held in Abul Fata Mahomed lshak v. Russomoy Dhur Chowdry (1) that "under Mahomedan law a perpetual fam ily settlement expressly made as wakf is- not legal merely because there is an ultimate but illusory gift to the poor' It wail because of this judgment by which wakf- alal-aulad as known to Mahomedan law were declared illegal that Act VI of 1913 was passed by which such wkfs became legal. Obviously, therefore, when such wakfs become legal there was a transfer of the property covered by the wakf and the transfer was in favour in of God Almighty in whom thereafter the property subject to wakf become vested. This following from the theory of Mahomedan law under which wakfs created for purposes which are considered by that law to be religious and charitable result in the transfer of ownership of wakf property in perpetuity to God Almighty. Further the transfer being without consideration can only amount to a gift. Therefore, wakfs-alal-aulad which have become valid after Act VI of 1913 must be held to be gifts of property to God Almighty for certain purposes and are clearly transfers within the meaning of that term in s. 2 of the Act. Incidentally we may, add that the use of the words "inter vivos" in the definition of the word "transfer" merely emphasises that the transfer must be one effective during the lifetime of the transferor as contrasted with a transfer by will which takes effect on the death of the transferor. Whenever therefore a transfer takes place by a wakf-alal- aulad and the property included in the deed is governed by the provisions of the Act we have to go to the provisions contained in the Act with respect to the power of the talukdar to make such transfer. The transfer would only be valid if it is within the powers conferred on the talukdar."

_______________________________________________________________________

14.In support of their contentions, the learned counsel for the

petitioners, inter alia, rely upon a number of judgments.4 They

place strong reliance upon the following paragraphs in Moattar

Raza (supra):

18. Wakf, under the Act, means the permanent dedication by a person professing Muslim faith of any property for any purpose recognised by the Mohammedan Law as religious, pious or charitable.

Having defined wakf, the Act further provides that it shall be lawful for any person professing Muslim faith to create a wakf, which in all other respects is in accordance with the provisions of Muslim law, for purposes, including the maintenance and support wholly or partially of his family, children or descendants; provided always, however, that the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by the Muslim Law as religious, pious or charitable purpose of a permanent character. The Act further lays down that no such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf. There is nothing In this Act from which it can be spelled out that in the case of a wakf-alal-aulad the wakf property does not vest in the God Almighty or the wakf itself, but vests In the mutwalli or mutwallis. It may here be again mentioned that the consensus of judicial opinion is that the legal status and position

Syed Thajuddin v. Syed Mohideen, CRP (NPD) No. 569/2008 (Madras); Mohd. Illyas v. Nooruddin, (2011) 184 DLT 590; Harcharan Singh v. Neeraj Sahu, (2012) 190 DLT 625; Inderjeet Kaur v. Nirpal Singh, (2001) 1 SCC 706; Charan Dass Duggal v. Brahma Nand, (1983) 1 SCC 301; M.P. Wakf Board v. Subhan Shah (Dead) By LRs & Ors., (2006) 10 SCC 696 _______________________________________________________________________

of a mutwalli under a wakf under the Musalman Law is that of a Manager or Superintendent. Unless so provided in the deed of wakf, a mutwalli, although charged with the duty and obligation of managing the wakf property, can have no beneficial interest even in the income of the wakf. , Under the Mohammedan Law, a wakif can even appoint a non-

Mohammedan to be the mutwalli of the wakf property, who can possibly have no beneficial interest in the income thereof except by way of remuneration, if so provided in the wakf deed. It is, therefore, not possible to accept the argument that merely because. In a wakf-alal-aulad, beneficial interest has been made solely enjoyable by the family members and descendants of the wakif, they have any inherent right or can as of right claim to be entitled to manage the wakf property. The right of management is derived under the deed of wakf itself or under the relevant law or usage, as the case may be, but this right of management or mutwalliship is not necessarily dependent on or co-existent with any benefit conferred on the mutwalli. A mutwalli may have the exclusive right or management of the wakf property; without having any beneficial interest therein. Conversely, a beneficiary having an exclusive beneficial interest, for the time being, may have no right of management at all Therefore, there does not appear to exist any legal basis for holding that in the case of a wakf-alal-aulad the wakf property vests in the mutwalli and not in God Almighty.

21. From what has been stated above, It necessarily follows that in every case of a wakf, whether public, or private, the wakf property vests in God Almighty or in the wakf itself as an institution or a foundation eo nomine and not in the Mutwalli or the beneficiary. Here, a sentence from the judgment of Mr. Ammer

_______________________________________________________________________

Ali, J. In Vidya Varuti's case (supra) may be aptly quoted:--

"Religious institutions, known under different names, are regarded as possessing the same 'juristic' capacity and gifts are made to them eo nomine."

Such being the legal position no amount of cultivation by the Mutwalli or even the beneficiary could make the wakf land so cultivated the personal Khudkasht of the Mutwalli or the beneficiary under the tenancy laws obtaining prior to the coming into force of the U.P. Zamindari Abolition and Land Reforms Act (U.P. Act 1 of 1951). Therefore, by virtue of personal cultivation of wakf land no Mutwalli, even if he was also a beneficiary, could have personally acquired Bhumidari rights under Section 18(1)(a) of the aforesaid Act, the material part of which runs thus:--

Section 18(1)--Subject to the provisions of Sections 10, 15, 16 and 17 all lands-

(a) in possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary's grove; on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such Intermediary ............... who shall subject to the provisions of this Act be entitled to take or retain possession as it bhumidhar thereof."

As such, It follows that as a result of cultivating waqf land personally, the co-mutwalli concerned, who was also a beneficiary, did neither become the sole bhumidhar of the land nor co-bhumidhar with the other comutwalli. Bhumidhari rights, if at all, could have only accrued in favour of God or the waqf as a result of actual cultivation of waqf land by a Mutwalli."

_______________________________________________________________________

15.In response, the learned counsel for the respondents has sought to

sustain the impugned orders. It is contended that no triable issues

were raised by the petitioners which would have warranted the

grant of leave to defend the eviction petitions. It is submitted that

there is a clear admission that the tenanted premises were let out

by the respondents; the petitioners have accepted the Wakf

through the Mutawalli as the landlord, therefore, the eviction

petitions were maintainable; the details of the family members of

the eviction petitioners and their bona fide requirement in the

absence of an alternate suitable accommodation has also been

duly spelt out in the eviction petition. It is submitted that there is

no error in the findings of the learned ARC which would warrant

any reversal of the same in this petition. It is also submitted that

respondent No.4 is aged 63 years and is engaged in a small time

business of selling Arabic and religious books at a small stall

outside his rented property at Lal Kuan, Delhi; he is a widower

earning Rs.5,000 to Rs.7,000/- per month; similarly, respondent

No.5 is aged about 59 years and retired as a Translator from

Royal Embassy of Saudi Arabia; his family comprises wife, two

sons and a married daughter; the elder son was working in a Call _______________________________________________________________________

Centre, earning about Rs.20,000/- per month and the younger one

is studying and they propose to start a Travel Agency from the

tenanted premises.

Analysis

16.At the outset, this Court is conscious of the limited jurisdiction

conferred upon by the proviso to Section 25B(8) of the Act. In

exercise thereof, this Court would not act as an Appellate Court

but would only see if the Rent Controller has committed any

jurisdictional error and whether the impugned order has been

passed on the basis of the material on record.5 In view of the

aforesaid jurisdictional parameters, this Court would now proceed

to examine if the petitioners disclosed such facts in the leave to

defend applications which would have disentitled the respondents

from obtaining an eviction order.

17.Ownership: It is well settled that for the purpose of Section

14(1)(e) of the Act, the landlord is not required to prove absolute

ownership as required under the Transfer of Property Act. He is

Ramesh Chand v. Uganti Devi, (2009) 157 DLT 450; See also Mohan Lal v. Ram Chopra, AIR 1982 Del 405 and Chaman Prakash Puri v. Ishwar Dass Rajput, (1995) Supp (4) SCC 445 _______________________________________________________________________

only required to show that he is more than a tenant.6 Admittedly,

the petitioners had not disputed landlord-tenant relationship; they

had also not disputed the license deeds and rent deed as aforesaid;

furthermore, in a suit instituted by the petitioners, they had

acknowledged respondent No.1 to be the owner of the tenanted

premises. It is also not in dispute that the respondents are the

children of Qazi Sajjad Hussain and Smt. Rabia Begum.

18.This Court is not called upon to comment upon the powers of the

Wakf Board and how Wakfs are to be administered under the

Wakf Act or how a Mutawalli is to manage the affairs of the

Wakf and how he is removed in default of his duties. What is to

be seen in an eviction petition is whether the relationship of

landlord-tenant is established between the parties and whether the

landlord is the owner of the tenanted premises. Insofar as it has

been so admitted by the petitioners themselves in a suit filed by

them, this issue stands settled and the eviction petitions were

indeed maintainable. Reference to Sections 32, 50, 54, 64, 47, 69

& 83 of the Wakf Act dealing with the eviction of a tenant would

not be applicable to the present case. Furthermore, amendments to

Rajender Kumar Sharma & Ors. v. Leela Wati & Ors., 155 (2008) DLT 383 _______________________________________________________________________

the Wakf Act came into effect in the year 2013 whereas the

eviction petitions were filed in December, 2012. In any case,

neither the Wakf Act nor the administrative control of the

authorities appointed/constituted under said Act would be

applicable in the present case, i.e., in case of private wakfs (wakf-

alal-aulad). Reliance in this regard can be placed upon a Division

Bench judgment of the Calcutta High Court in Anis Fatma

Begum v. Board of Wakf7, wherein Justice Altamas Kabir, as he

then was, held as under:

"But as indicated hereinbefore, it appears to have been the intention of the legislature to exclude private wakfs from the ambit of the 1995 Act and the administrative control of the authorities appointed by statute under the Act except to the extent indicated hereinabove."

Reliance by the learned counsel for the petitioners on the dicta of

the Supreme Court in M.P. Wakf Board v. Subhan Shah (Dead)

By LRs & Ors., (2006) 10 SCC 696 is misplaced since the case

did not deal with the Delhi Rent Control Act.

19.In Nisar Ahmed v. Agyapal Singh,8 relying upon other judgments

of various High Courts,9 this Court held that a Mutawalli could

AIR 2004 Cal 91

RC. REV. 377/2011, decided on 11th February, 2015 _______________________________________________________________________

sue for eviction of the tenant under Section 14(1)(e) of the Act.

Relevant portions of the said judgment are reproduced as under:

"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.........

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 the Evidence Act would come into operation and the tenant/respondent would be estopped from challenging the title of the landlord/petitioner. 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

Shujauddin Mohammed Kaiser v. Kolkata Municipal Corporation, (2012) 1 Cal LT 331; Badagara Jumayath Palli Dharas Committee v. P. Ummesrkutty Haji, AIR 2002 Ker 56; A.S. Abdul Khader Waft for Deeni Talim v. Saber Miah, AIR 2003 AP 528 _______________________________________________________________________

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 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."

20.In the circumstances, this Court is of the view that the

respondents are indeed, the owners of the tenanted premises. On a

perusal of the Will dated 10.2.1979, this Court finds that

respondent No.1 who is the Mutawalli, has been specifically

empowered to sue and participate in legal proceedings for the _______________________________________________________________________

benefit of the Wakf. For the tenant to contend that since the Wakf

property vests in God Almighty, a Mutawalli cannot sue for eviction

of a tenant from the Wakf property is both preposterous and

untenable. Although it is true that the beneficiaries of the Wakf

cannot claim any title in the Wakf property and cannot alienate the

same except by due procedure, but the Wakf property is necessarily

to be used for the benefit of the beneficiaries. For achieving this

objective, the settlor of the Wakf-alal-aulad was conscious enough

to appoint a Mutawalli to administer the Wakf property. It was

contended on behalf of the petitioners that Mohammad Qamar

(supra) could not have been relied upon by the learned ARC since it

has been overruled in Moattar Raza (supra). However, it is evident

from the impugned orders that the learned ARC's conclusion was

not wholly based upon Mohammad Qamar (supra). The ARC had

merely perused the same which was sought to be relied upon by the

respondents. The reliance on Moattar Raza (supra) would also not

help the case of the petitioners since it is distinguishable on facts.

Although Moattar Raza (supra) did hold that a Wakf property

vests in God Almighty but as discussed hereinabove, the concept

of ownership under Section 14(1)(e) of the Act has to be seen

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from a limited perspective. Accordingly, this Court finds no

infirmity with the conclusion arrived at by the learned ARC

apropos the issue of ownership.

21.Bona fide need: In P1, the case set up in the leave to defend was

that respondent No.5 was teaching Arabic and earning Rs. 30-

40,000 a month; his son was earning Rs.50,000 a month. In P2,

the only case set up by the petitioners was that respondent No.2's

son was working in Dubai and earning more than Rs. 1 lac a

month. In P3, the only case set up was that respondent No.1's son

Kaleem Ahmed was working, hence, the tenanted premises were

not required by the respondents. However, these remained merely

bald averments unsupported by any other material. The case set

up by the respondents has been set out in paragraphs 8, 9 and 10

of this order. The petitioners had not adduced any material on

record to substantiate their case made in the leave to defend

application. In the circumstances, there was no need for the

learned ARC to not believe the case of the respondents. This

Court is of the view that the case of the petitioners that respondent

No.2's son is working in Dubai and earning Rs. 1 lac/per month

would not stand as an impediment for the respondents to seek the _______________________________________________________________________

tenanted premises for bona fide need. The petitioners' contention

that respondent No.1's son is earning Rs.50,000/- a month and

visits foreign countries frequently is also a bald assertion which

would not entitle them leave to defend the eviction petitions.

Earnings and foreign visits cannot be any impediment in seeking

eviction of a tenant in case of a bona fide need of the tenanted

premises by the landlord. Life does not come to a standstill and

its enjoyment cannot be mortgaged to the prosecution of an

eviction petition. Bona fide need for tenanted premises can arise

with due passage of time or even overnight due to sudden change

in circumstances. All that the landlord would then need to show

is that he has no other reasonably suitable accommodation to

satisfy his need.

22.Accordingly, this Court finds that the respondents were successful

in establishing bona fide need for the tenanted premises.

23.Availability of reasonably suitable accommodation: The case set

up by the petitioners was that the respondents are in possession of

Shop No. 260/A3. However, the respondents contended that the

same was being used for storage purposes and that they intended

to merge it with the adjacent shop bearing No. 260/A4. The _______________________________________________________________________

petitioners also sought to contend that the respondents had space

available in the rear portion of the property where shops could be

constructed and that there was space available on the first floor.

However, the respondents contended that the first floor was in a

dilapidated condition and that it was residential in nature. They

had also annexed photographs to support their contention. In the

circumstances, this Court is of the view that the learned ARC has

correctly held that the petitioners cannot force the respondents to

construct shops so as to not evict the petitioners. Since eviction

was sought for commercial purposes, it was rightly held that

ground floor of the property would be more suitable. It was

contended before this Court that MCD has declared the street to

be a commercial one, hence, business could be carried out on the

first and second floors too. However, this Court is of the view that

there is no material on record substantiating the said submission.

In the absence thereof, the said submission needs to be rejected.

The submission that the respondents are in possession of a

property in Dwarka, Delhi is also unsupported by any material.

The further contention that the respondents have admitted that the

rear portion in the property is available with them is also _______________________________________________________________________

inconsequential since it is not in dispute that the said portion is

empty and bereft of any building or structure. Accordingly, this

Court finds no infirmity apropos this issue too.

24.The other contention that Qazi Irshad Hussain was not impleaded

in the eviction petitions is also inconsequential since it is settled

law that one of the co-owners (co-Mutawallis) can sue for

eviction.

25.From the pleadings and conclusion arrived at by the learned ARC,

it is evident that the eviction petitions were maintainable because

of the existence of landlord-tenant relationship and ownership

apropos the tenanted premises vesting with the respondents. The

bona fide requirement also was established. Besides the tenanted

premises, the respondents did not have any other commercial

property to satisfy their need. The tenants' contention that the

Wakf could construct new shops to meet the requirements of the

eviction petitioners/beneficiaries of the Wakf is untenable, since a

tenant cannot dictate to the landlord as to how he should manage

his affairs so as not to result in the eviction of the tenant10. For

the purposes of eviction under Section 14(1)(e) of the Act, all that

Anil Jain v. Bhagwan Shankar Khanna, RCR 133/2014 decided on 30.7.2014. _______________________________________________________________________

is to be seen is that the eviction petitioner/landlord is the owner;

he needs the tenanted premises for himself or anyone dependent

on him; and he or such person has no other reasonably suitable

accommodation.

26.In view of the aforesaid discussion, this Court is of the view that

the petitioners had failed to raise any triable issues warranting the

grant of leave to defend the eviction petitions. In the

circumstances, eviction orders necessarily had to follow.

Accordingly, these petitions, devoid of any merit, are dismissed.

Costs of Rs.50,000/- are imposed on each of the three petitioners

to be paid to the respondents in four (4) weeks from this order.

All pending applications also stand disposed off.

MAY 06, 2015                                          NAJMI WAZIRI, J.
vmk

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