Gujarat High Court
Heir Of Decd Mukundrai Muljibhai ... vs Waqf Hajimohmad And Hajihasam ... on 4 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 24 of 2025
With
R/CIVIL REVISION APPLICATION NO. 28 of 2025
With
R/CIVIL REVISION APPLICATION NO. 29 of 2025
With
R/CIVIL REVISION APPLICATION NO. 30 of 2025
With
R/CIVIL REVISION APPLICATION NO. 31 of 2025
With
R/CIVIL REVISION APPLICATION NO. 32 of 2025
With
R/CIVIL REVISION APPLICATION NO. 33 of 2025
With
R/CIVIL REVISION APPLICATION NO. 34 of 2025
With
R/CIVIL REVISION APPLICATION NO. 35 of 2025
With
R/CIVIL REVISION APPLICATION NO. 36 of 2025
With
R/CIVIL REVISION APPLICATION NO. 37 of 2025
With
R/CIVIL REVISION APPLICATION NO. 38 of 2025
With
R/CIVIL REVISION APPLICATION NO. 39 of 2025
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HEIR OF DECD MUKUNDRAI MULJIBHAI LAKHANI JYOTSNABEN
MUKUNDRAI LAKHANI
Versus
WAQF HAJIMOHMAD AND HAJIHASAM PIRAMAHAMAD
MUSAFARKHANA & ANR.
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Appearance:
MR RAJESH K SAVJANI(2225) for the Applicant(s) No. 1
FOUZAN N SONIWALA(8442) for the Opponent(s) No. 2
MR ARSHAD SHAIKH(11761) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
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1. The present revision application has been filed challenging the
order dated 21.11.2024 passed by the Waqf Tribunal, whereby the
application filed under Order VII Rule 11 of the Code of Civil Procedure,
1908 (for brevity, "the Code") below Exhibit 17 has been rejected. For
the sake of brevity, the parties are referred to in their original capacities.
BRIEF FACTS OF THE CASE:
2. The plaintiff instituted a suit under Section 83(1) of the Waqf Act,
1995 (for brevity, "the Act of 1995") read with the Waqf Properties
Lease Rules, 2014. The plaintiff, in his capacity as the Executive Officer
of the Waqf, has sought recovery of possession of the suit property,
which is a Waqf asset, from the defendant. Additionally, the plaintiff has
prayed for an injunction restraining defendant No. 1 from carrying out
any temporary or permanent construction on the suit property,
demolishing any structure thereon, or alienating, assigning, or subletting
the same. Furthermore, the plaintiff has claimed mesne profits in respect
of the unauthorized possession of the suit property.
2.1. Upon service of summons, defendant No. 1 filed an application
under Order VII Rule 11 of the Code, contending that the suit was not
maintainable. It was asserted that the rent agreement executed between
the plaintiff and defendant No. 1 contained no provision for renewal.
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Moreover, it was contended that the authorized signatory of the plaintiff,
who instituted the suit in the capacity of an Executive Officer, was
appointed for a fixed term from 08.03.2021 to 30.09.2021. Since the suit
was instituted on 27.10.2021, it was argued that, at the time of filing, the
said signatory lacked the requisite authority to initiate legal proceedings
on behalf of the Waqf.
2.3. After perusing the plaint and the documents annexed thereto, the
Tribunal dismissed the application under Order VII Rule 11 of the Code.
Aggrieved by the said order, the present revision application has been
preferred.
SUBMISSION OF DEFENDANT:-
3. The learned advocate for defendant No. 1 has primarily contended
that, in light of the provisions of the Act of 1995 and the rules framed
thereunder, the authorized signatory was not competent to institute the
present suit. It has been argued that only the Chief Executive Officer was
empowered to file such a suit. Furthermore, upon a plain reading of the
plaint filed before the Tribunal, it is evident that the plaintiff has alleged
that defendant No. 1 is an encroacher and has unlawfully encroached
upon Waqf property. Consequently, the reliefs sought--particularly those
enumerated in prayers 9 and 11(a)--pertain to the removal of the alleged
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encroachment. Therefore, in accordance with Section 3(d) read with
Section 23 of the Act of 1995, it is submitted that only the Chief
Executive Officer is vested with the authority to initiate such
proceedings.
3.1. The learned advocate for defendant No. 1 has further submitted
that the authorized signatory of the plaint is not the Chief Executive
Officer but merely an Executive Officer appointed under Section 38 of
the Act of 1995. As such, it is contended that an Executive Officer
appointed under Section 38 lacks the legal competence to institute the
suit. Additionally, it has been argued that the term "encroacher" is
defined under Section 3(ee) of the Act of 1995, whereas "encroachment"
is defined under Rule 2, Clause 11 of the Gujarat State Waqf Rules, 2023.
The crux of the defendant's argument is that the authorized signatory of
the plaintiff lacks locus standi to file the suit, and, therefore, the plaint is
liable to be rejected as it is barred by law, as evident from a plain reading
of the plaint and the documents annexed thereto.
3.2. Moreover, the learned advocate for defendant No. 1 has contended
that, in the absence of an inquiry as contemplated under Section 54 of the
Act of 1995, the suit could not have been validly instituted. It has also
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been argued that the reliefs pertaining to mesne profits, as well as the
injunctions restraining the defendant from carrying out construction or
alienating the suit property, are merely ancillary to the principal relief
sought--namely, possession of the suit property on the ground that
defendant No. 1 is an encroacher. As the principal relief sought is the
removal of alleged encroachment, it is contended that the suit falls within
the ambit of Section 54 of the Act of 1995, under which only the Chief
Executive Officer is competent to institute proceedings. Accordingly, it is
urged that the suit is liable to be dismissed for want of jurisdiction.
3.3. The learned advocate for defendant No. 1 has further contended
that where a statute prescribes a specific procedure for initiating an
action, the same must be strictly adhered to. In the present case, Section
54 of the Waqf Act, 1995 mandates the conduct of an inquiry before any
action can be initiated by the Chief Executive Officer. It is argued that,
since no such inquiry has been conducted, the present suit is legally
untenable and liable to be rejected as being barred by law.
3.4. In support of his submissions, the learned advocate for defendant
No. 1 has placed reliance on the following judicial precedents: Rashid
Wali Beg v. Farid Pindari & Ors., (2022) 4 SCC 414, (2008) 1 SCC
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618, (2006) 6 SCC 207, (1970) 2 SCC 355, 2020 (2) KLT 619, (2019 (2)
KHC 527).
SUBMISSION OF THE PLAINTIFF:-
4. Per Contra, the learned advocate for the original plaintiff has relied
on Section 83(2) of the Waqf Act, 1995, contending that the statute
recognizes three categories of persons who may approach the Tribunal: A
Mutawalli (Waqf Manager); A person interested in a Waqf; and any other
person aggrieved by an order passed under the Act or the Rules framed
thereunder.
4.1. Accordingly, the learned advocate for the plaintiff has argued that
the authorized signatory who has instituted the suit on behalf of the
plaintiff qualifies as a Mutawalli and also as a "person interested in a
Waqf." Furthermore, it is contended that, as an Executive Officer
appointed under Section 38(2) of the Act of 1995, the authorized
signatory is responsible for administering Waqf property, thereby
bringing him within the purview of the definition of Mutawalli under
Section 3(i) of the Act of 1995.
4.2. The learned advocate for the plaintiff has further contended that the
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suit has been instituted for possession of the suit property, an injunction
concerning the said property, and a claim for mesne profits. It is argued
that there is a clear disclosure of the cause of action, thereby entitling the
plaintiff to maintain the suit.
4.3. It has also been submitted that Section 83(1) of the Waqf Act, 1995
explicitly provides that the Tribunal is empowered to adjudicate upon any
dispute, question, or matter relating to Waqf or Waqf property, including
the eviction of a tenant and the determination of the rights and obligations
of a lessor and lessee of such property. It is the plaintiff's contention that
Sections 54 and 83 of the Act of 1995 provide alternative legal remedies,
and therefore, there is no statutory bar preventing a Mutawalli or a person
interested in the Waqf from instituting a suit for eviction or for recovery
of arrears of rent before the Tribunal.
4.4. Further, it is argued that, while the Chief Executive Officer (as
defined under Section 3(d) read with Section 23 of the Act of 1995) is
authorized to initiate proceedings for the removal of encroachments under
Section 54, there is no restriction under Section 83 prohibiting a
Mutawalli or an interested person from initiating legal action concerning
Waqf property. Moreover, the learned advocate for the plaintiff has
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contended that the reliefs sought in respect of injunction and mesne
profits do not fall within the ambit of Section 54 of the Act of 1995 and
can only be granted under the provisions of Section 83 of the Act.
4.5. Therefore, even assuming for the sake of argument that the relief of
possession of the suit property is barred by law and that only the Chief
Executive Officer is competent to initiate action for the removal of an
encroacher, the other reliefs such as the prayer for a temporary injunction
and a claim for mesne profits are undoubtedly maintainable under Section
83 of the Act of 1995. Since these reliefs are not barred by law, the Court
cannot reject the plaint in its entirety.
4.6. In support of this contention, the learned advocate for the plaintiff
has relied upon the following judgments: Central Bank of India and
Another v. Smt. Prabha Jain and Others, 2025 SCC Online 121,
(2018) 11 SCC 780, Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd.,
Shantibhai Somabhai Patel v. Ranchodbhai Pujabhai Padhiyar,
AIGEL SC 240338, 2020 SCC Online 593, Gurdev Singh v.
Harvinder Singh, 2022 SCC Online SC 2193, Sajjan Singh v. Jasvir
Kaur and Others, 2023 SCC Online SC 1282, Rashid Wali Beg
(supra).
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FINDINGS OF THE COURT:-
5. Having heard the learned advocates for both parties and upon a
careful analysis of the plaint and the documents annexed thereto, it is
evident that some of the provisions of the Waqf Act, 1995 are pivotal to
the adjudication of the present application. The definition of the Chief
Executive Officer is provided under Section 3(d) of the Act, which reads
as follows:-
"Chief Executive Officer" means the Chief Executive Officer appointed
under sub-section (1) of section 23;
Section 23 of the Act of 1995 is as under:-
23. Appointment of Chief Executive Officer and his term of
office and other conditions of service:-
"(1) There shall be a full-time Chief Executive
Officer of the Board who shall be a Muslim and shall be
appointed by the State Government, by notification in
the Official Gazette, from a panel of two names
suggested by the Board and who shall not be below the
rank of Deputy Secretary to the State Government, and
in case of non-availability of a Muslim officer of that
rank, a Muslim officer of equivalent rank may be
appointed on deputation.
(2) The term of office and other conditions of service of
the Chief Executive Officer shall be such as may be
prescribed.
(3) The Chief Executive Officer shall be ex officio
Secretary of the Board and shall be under the
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administrative control of the Board."
Section 3(ee):- "encroacher" means any person or institution,
public or private, occupying waqf property, in whole or part, without the
authority of law and includes a person whose tenancy, lease or licence
has expired or has been terminated by mutawalli or the Board;"
Rule 2 Clause 11 of Gujarat State Waqf Rules, 2023:-
11. "encroachment" in relation to any waqf premises
means occupation by any person or institution of the
waqf premises without authority for such occupation,
and includes the continuation in occupation by any
person or Institution of the waqf premises after the
authority (whether by way of grant, tenancy or any other
mode) under which he was allowed to ocupy the
premises, has expired or has been determined for any
reason whatsoever, and includes any construction,
alteration, addition carried out to the building without
authority of the Board;
Mutawalli is defined under section 3 Clause (i), which is as under:-
"a "mutawalli" is defined as any person appointed,
either verbally or under a deed, or by a competent
authority, to manage a waqf, including those
appointed by custom or those who are naib-
mutawalli, khandim, or mujawar."
Section 54:- Removal of encroachment from waqf property:-
"(1) Whenever the Chief Executive Officer considers
whether on receiving any complaint or on his own motion
that there has been an encroachment on any land, building,
space or other property which is waqf property and, which
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has been registered as such under this Act, he shall cause
to be served upon the encroacher a notice specifying the
particulars of the encroachment and calling upon him to
show cause before a date to be specified in such notice, as
to why an order requiring him to remove the encroachment
before the date so specified should not be made and shall
also send a copy of such notice to the concerned
mutawalli.
(2) The notice referred to in sub-section (1) shall be served
in such manner as may be prescribed.
(3) If, after considering the objections, received during the
period specified in the notice, and after conducting an
inquiry in such manner as may be prescribed, the Chief
Executive Officer is satisfied that the property in question
is waqf property and that there has been an encroachment
on any such waqf property, he may, make an application to
the Tribunal for grant of order of eviction for removing
such encroachment and deliver possession of the land,
building, space or other property encroached upon to the
mutawalli of the waqf.
(4) The Tribunal, upon receipt of such application from the
Chief Executive Officer, for reasons to be recorded
therein, make an order of eviction directing that the waqf
property shall be vacated by all persons who may be in
occupation thereof or any part thereof, and cause a copy of
the order to be affixed on the outer door or some other
conspicuous part of the waqf property:Provided that the
Tribunal may before making an order of eviction, give an
opportunity of being heard to the person against whom the
application for eviction has been made by the Chief
Executive Officer.
(5) If any person refuses or fails to comply with the order
of eviction within forty-five days from the date of affixture
of the order under sub-section (2), the Chief Executive
Officer or any other person duly authorised by him in this
behalf may evict that person from, and take possession of,
the waqf property."
Section 83:- Constitution of Tribunals, etc. :-
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(1)The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may
think fit, for the determination of any dispute, question or
other matter relating to a waqf or waqf property, eviction of
a tenant or determination of rights and obligations of the
lessor and the lessee of such property, under this Act and
define the local limits and jurisdiction of such Tribunals.
(2)Any mutawalli person interested in a waqf or any other
person aggrieved by an order made under this Act, or rules
made thereunder, may make an application within the time
specified in this Act or where no such time has been
specified, within such time as may be prescribed, to the
Tribunal for the determination of any dispute, question or
other matter relating to the waqf.
(3)Where any application made under sub-section (1)
relates to any waqf property which falls within the
territorial limits of the jurisdiction of two or more
Tribunals, such application may be made to the Tribunal
within the local limits of whose jurisdiction the mutawalli
or any one of the mutawallis of the waqf actually and
voluntarily resides, carries on business or personally works
for gain, and, where any such application is made to the
Tribunal aforesaid, the other Tribunal or Tribunals having
jurisdiction shall not entertain any application for the
determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion
that it is expedient in the interest of the waqf or any other
person interested in the waqf or the waqf property to
transfer such application to any other Tribunal having
jurisdiction for the determination of the dispute, question or
other matter relating to such waqf or waqf property, transfer
such application to any other Tribunal having jurisdiction,
and, on such transfer, the Tribunal to which the application
is so transferred shall deal with the application from the
stage which was reached before the Tribunal from which
the application has been so transferred, except where the
Tribunal is of opinion that it is necessary in the interest of
justice to deal with the application afresh.
(4)Every Tribunal shall consist of--
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(a)one person, who shall be a member of the State Judicial
Service holding a rank, not below that of a District,
Sessions or Civil Judge, Class I, who shall be the
Chairman;
(b)one person, who shall be an officer from the State Civil
Services equivalent in rank to that of the Additional District
Magistrate, Member;
(c)one person having knowledge of Muslim law and
jurisprudence, Member; and the appointment of every such
person shall be made either by name or by designation.
(4A) The terms and conditions of appointment
including the salaries and allowances payable to the
Chairman and other members other than persons appointed
as ex officio members shall be such as may be prescribed.
(5)The Tribunal shall be deemed to be a civil court and
shall have the same powers as may be exercised by a civil
court under the Code of Civil Procedure, 1908 (5 of 1908),
while trying a suit, or executing a decree or order.
(6)Notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), the Tribunal shall follow such
procedure as may be prescribed.
(7)The decision of the Tribunal shall be final and binding
upon the parties to the application and it shall have the
force of a decree made by a civil court.
(8)The execution of any decision of the Tribunal shall be
made by the civil court to which such decision is sent for
execution in accordance with the provisions of the Code of
Civil Procedure, 1908 (5 of 1908).
(9)No appeal shall lie against any decision or order whether
interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on
the application of the Board or any person aggrieved, call
for and examine the records relating to any dispute,
question or other matter which has been determined by the
Tribunal for the purpose of satisfying itself as to the
correctness, legality or propriety of such determination and
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may confirm, reverse or modify such determination or pass
such other order as it may think fit."
Some of the provisions of Waqf Property Lease Rule, 2014 are also
required to be gone through:-
Rule 23:- Default.
"(1) Each of the following events shall constitute an
event of default, namely :-
(i) all or any part of the lease rent is not paid by the lessee
after it become due for such payment;
(ii) the lessee fails to observe, perform or keep each and
every of the covenants, agreements and conditions and
fails to rectify or remedy the failure even after one
month's notice by the lessor requiring the lessee to so
remedy, correct, desist or comply;
(iii) the lessee builds any structure on the land or
building without prior sanction or approval of the Board;
or
(iv) non-payment by the lessee of lease rentals or
lease considerations for three consecutive months.
(2) Upon the occurrence of one or more of the events
referred to in sub-rule (1), the lessor may, at its option,-
(i) be entitled to the full amount of the lease rent due and
payable;
(ii) have no obligation to refund the security deposit which
shall be deemed to be forfeited in favour of the Waqf.
(iii) seize and sell such goods and equipment of the
lessee after obtaining an order from the Tribunal and may
apply the proceeds thereof to all lease rent to which the
lessor is then entitled under the lease:
Provided that any such sale may be effected by public
auction or otherwise, and either in bulk or by individual
item, as the lessor in its sole discretion may decide;
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(iv) terminate the lease by giving one months notice
and the lessee shall pay to the lessor lease rent for the
unexpired portion of the term had it not been terminated."
Rule 21 :-Rights and Obligations of the lessor and lessee.
"(1) The rights and liabilities of the lessee shall
include the following, namely:-
(i) Operation of leased premises. - The lessee shall assume
full responsibility for the operation and maintenance of the
leased premises and for the repair or replacement of all
fixtures located therein or thereon and to pay all expenses
incurred in connection with such maintenance and
operation of the leased premises:
Provided that the lessor may, upon failure to discharge
such responsibility by the lessee under this clause, at its
sole option and upon fourteen days prior written notice
and without any obligation to the lessee, elect to perform
such maintenance, repairs or replacement as the lessor
may reasonably deem necessary or desirable.
(ii) Access by lessor. - The lessee shall permit the
lessor to enter the leased premises at any time outside
normal hours in case of an emergency and otherwise,
where such entry will not unreasonably disturb or interfere
with the lessee's use of the leased premises.
(iii) Lessee to carry out certain obligations. - The
lessee shall,-
(i) promptly pay electricity charges, water charges or any
cess, levies, duties, assessments, and license fees
whatsoever whether municipal, school, provincial,
parliamentary or otherwise;
(ii) upon the request of the lessor, promptly deliver
to the lessor for examination all receipts for payment of
such levies, duties, assessments and license fees;
(2)Installation of fixtures or improvements. - If any
installation or repair work carried out by the lessee
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interferes with or damages the mechanical or electrical
systems or the structure of the leased premises, the lessee
shall promptly repair or remove such installations or
fixtures on the leased property at its own expense:
Provided that the lessee shall, if required by the lessor,
remove any leasehold improvements or fixtures from the
leased premises upon the termination of the lease.
(3)Alterations by lessee. - The lessee shall bear the cost for
making any modification, additions or improvements
including alterations to the exterior walls, roof, or other
structural components of the leased premises made by the
lessee:
Provided that the lessor shall perform any such work at the
expense of the lessee as may be mutually agreed between
the parties.
(4)Liens. - The lessee shall not create any lien or
encumbrance on the leased premises under any
circumstances including on the leasehold rights.
(5)Permission from local authorities. - The lessee shall, for
the purpose of construction of any structure on the leased
premises, take all necessary permission from the local
authorities, after prior approval of the Board."
Rule 12:-Payment and recovery of lease rent.
(1)All amounts payable by the lessee to the lessor pursuant
to the lease of waqf property shall be deemed to be lease
rent and be recoverable as lease rent by the lessor who
shall have all rights against the lessee for default in any
payment thereof.
(2)Lease rent shall be paid to the lessor without deduction
or set-off, at the address of the lessor or to such other
person or at such other address, as the lessor may from
time to time, designate in writing.
(3)If the lessee continues to occupy the premises after the
expiration or earlier termination of the lease, the lessee
shall, subject to final orders passed in any proceedings,
continue to pay lease rent for the period of such
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unauthorised occupation.
Rule 16:- Prohibition to assign, sub-lease or transfer waqf property.
"The lessee shall not assign, sub-lease, pledge or transfer
the lease or any interest therein or in any way part with
possession of all or any part of the leased premises, or
permit all or any part of the leased premises to be used or
occupied by any other person:
Provided that the lease agreement entered into by any
corporation or an agency of the Government in respect of
waqf property shall be governed by the terms and
conditions mutually agreed between the parties."
Rule 24:- Surrender of leased property on expiration or termination
of lease.
"(1) Upon expiration or termination of the lease, the
lessee shall immediately surrender possession of the leased
premises and all leasehold improvements in substantially
the condition in which the lessee is required to maintain
the leased premises excepting only reasonable wear and
tear, and upon surrender, all right, title, and interest of the
lessee in the leased premises shall cease.
(2)If after the expiration or termination of the lease, the
lessee continues to occupy the leased premises, it shall be
treated as an encroachment and such encroachment shall
be removed in accordance with the procedure specified in
Section 54 of the Act.
(3)The lessor may remove and sell or otherwise dispose of
any leasehold improvements, equipment or any other
property of the lessee left on the leased premises by the
lessee after the termination of the lease, in accordance with
the procedure specified in Section 55-A of the Act."
Rule 2H:- Defintion.
"lease", "lessor" and "lessee" shall have the same
meaning as assigned to them under the Transfer of
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Property Act, 1882."
5.1. Upon hearing the learned advocates for both parties and
conducting a meticulous analysis of the plaint and the documents
annexed thereto, the key legal issue that arises in the present proceedings
pertains to the interpretation of Section 54 of the Waqf Act, 1995.
5.2. Section 54 of the Act stipulates that, upon receiving a complaint or
on his own motion, if the Chief Executive Officer determines that an
encroachment has occurred on Waqf property, he is required to issue a
notice to the encroacher. This notice must specify the particulars of the
encroachment and call upon the encroacher to show cause, by a
specified date, as to why an order directing the removal of the
encroachment should not be issued. The provision further mandates that
such notice be served in the prescribed manner, which is detailed under
Rule 23 of the Waqf Properties Lease Rules, 2014.
5.3. According to Rule 23, where a lessee, as defined under Section
2(h) of the Waqf Properties Lease Rules, 2014, fails to observe, perform,
or adhere to the terms and conditions of the lease agreement, and does
not rectify the default despite receiving a one-month notice from the
lessor, the lessor is entitled to terminate the lease. The lessor must issue
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three consecutive notices at intervals of one month each. Upon
expiration or termination of the lease, the lessee is obligated to
immediately surrender possession of the leased premises. Such notices
must be issued in writing and served through registered mail, speed post,
or email, delivered to the lessee at the designated address.
5.5. The Waqf Properties Lease Rules, 2014, further provide explicit
provisions regarding the mode of payment and recovery of lease rent, as
well as restrictions on subleasing, assigning, or transferring the leased
property, as stipulated under Rule 16. Rule 24 specifically mandates
that, upon expiration or termination of the lease, the lessee must
surrender possession of the property. These provisions are directly
relevant to the substantive merits of the suit concerning possession,
injunction, and mesne profits.
5.6. At this juncture, the primary issue before this Court pertains to the
authority of an Executive Officer appointed under Section 38 of the Act
of 1995 to institute the present suit. While Section 54 of the Act
empowers only the Chief Executive Officer to initiate proceedings for
the removal of encroachments, Section 83 of the Act--more specifically,
Section 83(2)--enumerates three distinct categories of persons who may
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institute proceedings regarding disputes related to Waqf property. These
categories include:
1. A Mutawalli (Waqf Manager);
2. A person interested in a Waqf; and
3. Any other person aggrieved by an order made under the Act or the
Rules framed thereunder.
5.7. Significantly, Section 83 does not restrict that the initiation of such
proceedings have to be exclusively by the Chief Executive Officer. The
fact that the present dispute pertains to Waqf property and involves the
determination of the rights and obligations of the lessor and lessee, it
falls squarely within the ambit of Section 83. The issue before the
Tribunal concerns a lessee who has defaulted on the agreed rent payable
in respect of Waqf property, thereby raising questions regarding the
lessor-lessee relationship and their respective rights and obligations.
Consequently, in light of Section 83 of the Act, the authorized signatory
appointed under Section 38 of the Act of 1995 is competent to institute
the present suit.
5.8. In the case of Rashid Wali Beg (supra), the Hon'ble Apex Court,
in paragraph 45 of its judgment, has categorically held that under the
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provisions of Section 83(1) of the Waqf Act, 1995, any dispute,
question, or other matter relating to Waqf property, including the
eviction of a tenant or the determination of the rights and obligations of
a lessor and lessee of Waqf property, falls within the jurisdiction of the
Waqf Tribunal under Section 83(1). Consequently, it cannot be
contended that an application for removal and delivery of possession of
Waqf property must necessarily be filed exclusively under Section 54 of
the Act.
5.9. Section 83 of the Act of 1995 expressly provides that any dispute
or question relating to Waqf property can be adjudicated under its
provisions. Therefore, while an application for removal of encroachment
may be filed by the Chief Executive Officer under Section 54, the relief
available under that provision is confined solely to the removal of
encroachment. However, Section 83 does not preclude a Mutawalli, an
interested person, or any person aggrieved by an order made under the
Act from instituting proceedings before the Waqf Tribunal concerning
disputes related to Waqf property, including matters pertaining to the
rights and obligations of the lessor and lessee.
5.10. Neither the Waqf Act, 1995, nor the Waqf Properties Lease Rules,
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2014, prohibit a Mutawalli or an interested person from initiating
proceedings before the Tribunal. Moreover, neither Section 54 nor
Section 83, nor any other provision of the Act, expressly or impliedly
debars a Mutawalli, an interested person, or any other aggrieved party
from approaching the Waqf Tribunal by way of a civil suit seeking the
reliefs prayed for in the present proceedings.
5.11. Section 54, when read in conjunction with Section 83, merely
prescribes one of the legal mechanisms for evicting a tenant and
recovering arrears of rent. The existence of such an alternative statutory
remedy does not preclude an authorized Executive Officer or a
Mutawalli from instituting a suit for eviction and recovery of arrears
before the Tribunal. Furthermore, Section 83 of the Act does not
stipulate that such proceedings can only be initiated by the Chief
Executive Officer.
5.12. Therefore, the reliance placed by the learned advocate for
Defendant No. 1 on the judgment in Rashid Wali Beg (supra) is
misplaced, as the said decision, particularly paragraph 45, supports the
proposition that disputes concerning Waqf property--including eviction,
possession, and determination of rights and obligations fall within the
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purview of the Waqf Tribunal under Section 83 of the Act, and are not
exclusively governed by Section 54. Relevant para of Rashid Wali Beg
(supra) is as under:-
"45. A combined reading of Sections 68(6), 86, 90 and 93
goes to show that the bar of jurisdiction under Section 85
does not apply at least to the following matters, covered by
Sections 68(6), 86 and 90 :
(i) Whenever a District Magistrate passes an order
directing the removed mutawalli or removed members of a
Committee of Management to deliver possession of the
records, accounts and properties of the waqf, to the
successor or successor Committee of Management, any
person claiming that he has right, title and interest in the
properties specified in the order so passed by the
Magistrate can approach a civil court;
(ii) The Board itself may approach a civil court either to
set aside the sale in execution of a decree of civil court, of
an immovable property which is a waqf property, or to set
aside the transfer of any immovable property made by the
mutawalli without the sanction of the Board or to recover
possession of the property so sold or transferred, as the
case may be;
(iii) The mutawalli is also empowered to approach the
civil court to recover possession of any immovable
property which is a waqf property, but which had been
transferred by the previous mutawalli without the sanction
of the Board (this is implicit in Section 86);
(iv) A waqf property can be brought to sale in execution of
a decree of a civil court or for the recovery of any revenue,
cess, rates or taxes due to the Government or any local
authority, but such a proceeding will be void if no notice
thereof is given to the Board [this is implicit in Sections
90(2) & (3)].
46. Thus the Act itself has created some confusion, leaving
the rest to the courts to compound the conundrum. Sadly,
the Amendment Act 27 of 2013 also did not address the
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problem fully."
Therefore, even as per the said judgment, Section 83 of the Waqf
Act, 1995, does not stipulate that a suit for delivery of possession of
Waqf property can only be instituted under Section 54 of the Act.
6. The judgments reported in 2008 (1) SCC 618 and (2006) 6 SCC
207 primarily address the issue of cause of action and the applicability
of legal provisions. In the present case, the plaintiff has explicitly stated
the cause of action while filing the suit, particularly on the grounds that
Defendant No. 1 has defaulted in the payment of rent, remains liable to
pay the outstanding rent, and is not entitled to undertake any
construction on the subject property. Furthermore, the defendant is
legally precluded from transferring, assigning, or selling the Waqf
property to any third party, as the property belongs exclusively to the
Waqf. Given these circumstances, the plaintiff has a legitimate claim for
possession of the suit premises, and the cause of action for initiating the
present proceedings has been duly established.
6.1. In the present case, the suit has been instituted by a Mutawalli and
an Executive Officer appointed under Section 38 of the Waqf Act, 1995.
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Therefore, the suit is maintainable as it has been filed by an authorized
person, as contemplated under Section 83 of the Act.
6.2. Furthermore, learned counsel for Defendant No. 1 has placed
reliance on the judgments reported in 2019 (2) KHC 527 and 2020 (2)
KLT 619, particularly paragraphs 4 and 5, which read as follows:
"4. We need not consider the contentions raised against the
proceedings initiated under Section 54 of the Act, because,
the impugned proceedings are only at the stage of issuing
show-cause notices as contemplated under Section 54(1),
wherein the petitioners are provided with an opportunity to
object the proposed action and are also provided with
opportunity to participate in the enquiry contemplated.
Under normal circumstances, the petitioners have to raise
all the contentions before the 4th respondent itself, who is
at an obligation to conduct the enquiry based on such
objections. Further, we notice that, even if the 4 th
respondent is satisfied, after the enquiry, that the building
is a waqf property and that there are encroachments, he
can only make an application to the Tribunal for grant of
orders of eviction for removing such encroachment and to
deliver possession of the building to the 'Mutawalli' of the
waqf, as contemplated under sub-section (3) of Section 54.
Before the Tribunal also, it is obligatory that the parties in
occupation (the alleged encroachers) shall be provided
with an opportunity of hearing, as indicated in the proviso
to sub-section(4) of Section 54. Therefore, all the
contentions against Exts. P4 to P18 notices can be agitated
before the appropriate fora as mentioned hereinabove.
Therefore, under normal circumstances, exercise of the
discretionary jurisdiction vested on this court under Article
226 of the Constitution of India is not warranted.
5. But in the case at hand, we take note of the fact that,
Exts.P4 to P18 notices are issued only by the Junior
Superintendent in the 3rd respondent Board. A legal
question arises as to whether the Junior Superintendent in
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the 3 rd respondent is vested with powers to issue any
notice under Section 54(1) of the Act. In a Division Bench
Ruling of this Court in Hamza Hajee P.K. v. Kerala State
Wakf Board and Others [2019(2) KHC 527], to which one
among us was a party [C.K. Abdul Rehim (J)], it was held
that, power for removal of encroachment is vested only
with the Chief Executive Officer and on the Waqf
Tribunal, and that the Chief Executive Officer cannot
delegate such power to any other officer of the Waqf
Board. While considering the scope of the statutory
provisions contained in Section 54 of the Act, it was found
that, the Chief Executive Officer himself has to initiate
proceedings under Section 54 and he is bound to conduct
an enquiry based on the objection, if any, received from
the alleged encroacher. On satisfaction about the
encroachment, the Chief Executive Officer is bound to
approach the Waqf Tribunal for getting an order of
removal of the encroachment. Since there exists no
provision empowering the Chief Executive Officer to
delegate such power to any other Officer, the proceedings
initiated by the Divisional Officer of the Board in that case
for removal of the petitioner therein on the basis that they
are encroachers, was found to be without jurisdiction or
competence."
6.3. However, the fact remains that the aforesaid judgment is not
applicable to the present case, as the reliefs sought in the plaint fall
within the ambit of Section 83 of the Waqf Act, 1995. Since the present
application has been filed under Section 83, and as this provision does
not preclude a suit for recovery of possession of Waqf property, the cited
judgment does not support the case of Defendant No. 1.
6.4. In the present factual matrix, reliance placed by the plaintiff on the
judgment in Shantibhai Somabhai Patel (supra), particularly paragraph
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25, is relevant, which reads as under:
"25. In the case of State of Orissa vs. Klockner and
Company, AIR 1996 SC 2140, the Supreme Court while
approving the following view taken by the learned single
Judge of the High Court dismissed the Special Leave
Petition.
"From the discussions in the order it appears that the
learned trial Judge has not maintained the distinction
between the plea that there was no cause of action for the
suit and the plea that the plaint does not disclose a cause of
action. No specific reason or ground is stated in the order
in support of the finding that the plaint is to be rejected
under Order 7, Rule 11(a). From the averments in the
plaint, it is clear that the plaintiff has pleaded a cause of
action for filing the suit seeking the reliefs stated in it.
That is not to say that the plaintiff has cause of action to
file the suit for the reliefs sought that question is to be
determined on the basis of materials (other than the plaint)
which may be produced by the parties at appropriate stage
in the suit. For the limited purpose of determining the
question whether the suit is to be wiped out under Order 7,
Rule 11(1) or not the averments in the plaint are only to be
looked into. The position noted above is also clear from
the petition filed by defendant No. 1 under Order 7, Rule
11 in which the thrust of the case pleaded is that on the
stipulations in the agreement of 2041982 the plaintiff is
not entitled to file a suit seeking any of the reliefs stated in
the plaint."
6.5. In the case of Central Bank of India and Another (supra)
paragraph 24 and 25 are as under:-
"24. Even if we would have been persuaded to take the
view that the third relief is barred by Section 17(3) of the
SARFAESI Act, still the plaint must survive because
there cannot be a partial rejection of the plaint under
Order VII, Rule 11 of the CPC. Hence, even if one relief
survives, the plaint cannot be rejected under Order VII,
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Rule 11 of the CPC. In the case on hand, the first and
second reliefs as prayed for are clearly not barred by
Section 34 of the SARFAESI ACT and are within the
civil court's jurisdiction. Hence, the plaint cannot be
rejected under Order VII Rule 11 of the CPC.
25. If the civil court is of the view that one relief (say
relief A) is not barred by law but is of the view that Relief
B is barred by law, the civil court must not make any
observations to the effect that relief B is barred by law
and must leave that issue undecided in an Order VII, Rule
11 application. This is because if the civil court cannot
reject a plaint partially, then by the same logic, it ought
not to make any adverse observations against relief B."
6.6. In the case of Sejal Gloass Ltd. (supra) paragraphs 3, 4 and 8 are
as under:-
"3. In our view, the impugned judgment is wrong on
principle. Order VII Rule 11 of the Code of Civil
Procedure, 1908 which reads as follows:
"11. Rejection of plaint.- The plaint shall be rejected
in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do
so;
(c) where the relief claimed is properly valued but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9:
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by
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any cause of an exceptional nature for correcting the
valuation or supplying the requisite stamp-paper, as the
case may be, within the time fixed by the Court and that
refusal to extend such time would cause grave injustice to
the plaintiff."
6.8. In the case of Gurdev Singh (supra), paragraph 1 is as under:-
"1. The application preferred by the petitioner to reject the
plaint under Order 7 Rule 11 of the Code of Civil
Procedure, 1908 (CPC) has been dismissed by the Trial
Court which has been confirmed by the High Court. It is
the case on behalf of the petitioner that the plaintiff is not
entitled to any relief in the suit. The aforesaid cannot be a
ground to reject the plaint at the threshold in exercise of
powers under Order 7, Rule 11 of the CPC. The learned
Trial court has rightly rejected the application under Order
7, Rule 11 of the CPC, which is rightly not interfered with
by the High Court. We are in complete agreement with the
view taken by the High Court. The Special Leave Petition
stands dismissed."
CONCLUSION:-
7. In light of the fact that the suit has been instituted for the recovery
of possession and for an injunction concerning property belonging to the
Waqf, the present dispute squarely falls within the ambit of Section 83
of the Waqf Act, 1995. This is because the dispute pertains to Waqf
property, eviction, and the determination of the rights and obligations of
the lessor and lessee. Therefore, upon a plain reading of the plaint and
the documents annexed thereto, it is evident that the suit has been rightly
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entertained by the Tribunal and was not liable for rejection.
Consequently, there is no infirmity in the order passed by the Tribunal
dated 21.11.2024.
ORDER:-
8. In view of the aforesaid, the present Civil Revision Application
stands dismissed.
FURTHER ORDER:-
Upon pronouncement of the order, learned counsel for the
petitioner made a request to this Court for a stay of the order passed
today.
In view of the reasons recorded in the present order, the said
request stands rejected.
(SANJEEV J.THAKER,J)
MANISH MISHRA
