IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No. /2010 APPLICANT IPPELLANTv..-- ^s^ ^••:~^^^s"'" ^ 1 ^-'" .^••-- w '"^•o- ...\-^s' y SESPONDENTS ,»/ ^Non-Appellants . .y Himanshu Tripathi, aged about 48 years, S/o. Late Ambika Prasad Tripathi, R/o. Near House of Ashok R,ao, Gondpara, Bilaspur, Tahsil & District Bilaspur (C.G.) VERSUS Chhattisgarh State Wakf Board, through: Chief Executive Officer, Chhattisgarh State Wakf Board, Raipur (C.G.) Sub-Divisional Officer, Bilaspur, Tahsil & District Bilaspur (C.G.) CIVIL REVISION UNDER SECTION 83(9) WAKF ACT, 1995 HIGH COURT OF CHHATTlSGARH AT BILASPUR CIVIL REVISION No. 40/2010 APPLICANT RESPONDENTS Hinanshu Tripathi Versus Chhattisgarh State Board and another - APPLICANT CIVIL REVISION No. 41/2010 Risesh Tripathi Tripathi Versus RESPONDENTS APPLICANT CIVIL REVISION No. 42/2010 Sudhir Khandelwal Versus RESPONDENTS Wakf Ritesh Chhattisgarh State Wakf Board and another Chhattisgarh State Wakf Board and another SB:- HON'BLE SHRI N.K. AGARWAL, J PKESENT:- Shri Manoj Paranjpe, Advocate, for the appUcants Shri Prateek Sharma, Advocate for the respondent No. 1. Shri Vinod Tekam, Panel Lawyer, for the respondent No. 2. ORDER (.^'-4-2011) 1. This order shaU govem disposal of all the above three civfl revisions. 2. Civil Revision No. 40/2010, Civil Revision No. 41/2010 and Civil Revision No. 42/2010 have been preferred against the orders dated 19-2-2010 passed by the Chhattisgarh State Wakf Tribunal in Case No. 66/2010, 65/2010 and 67/2010 respectively whereby and whereunder, the applications preferred by the applicants against the order dated 11-12-2006 passed by the C.G. State Wakf Board has been dismissed. Bnef facts of the case are that the applicants are residing as tenant of Ra5q Ahmad for the last 40-50 years and for the first time they came to know about the property being wakf property when they received notice. The respondent No. 1 initiated proceedings under Section 54 of the Wakf Act, 1995 alleging the applicants have encroached upon Wakf Property and issued show cause notice (Annexure P- 2) to the applicants on 16-2-2006. On 11-12-2006, the Wakf Board passed final order and proceedings under Section 55 of the Wakf Act were directed to be initiated. In compliance of the order dated 11-12-2006, the Sub Divisional Officer registered criminal case, against which a petition was filed on 23-11-2007 which was withdrawn on 3-12-2008 reserving the right to file again. Thereafter applicants have again preferred application under Section 83(2) ofthe Act on 2-2-2010. Leamed Wakf Tribunal on appreciation of the material available on record, dismissed the applications on the ground of inaintainability and limitation. Hence this revision. Shri Manoj Paranjpe, leamed counsel for the applicants would submit, the applicants are not encroachers but tenants. As per section 54(4) of the Act, any person aggrieved by the order made by the Chief Executive Officer under Section 54(3) of the Act may institute a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property. As per Section 83(2) of the Act, any Mutawalli person interested in a wakf 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 tiine as may be prescribed, to the Tribunal for the determination of any 'T). . "'-T' 6. dispute, question or other matter relating to the wakf. According to him, limitation for fiUng such application would be same as prescribed for filing of suit under Section 7 of the Act i.e. within one year. Relying upon the decision of M.P. High Coiirt reported in the pase of Suresh Kumar and others -v- Kurban Hussain Taiyab Ali (Firm) and others reported in 1996 MPLJ 330, he would submit, if the court is of the opinion that in the absence of formal application, the . delay cannot be condoned then it is always the duty of the Coiirt to give an opportunity to the applicant before it to move an application explaining 'the cause for delay and seek condonation under Section 5 of the Limitation Act. The applicant must get proper opportunity to explain the circiunstances which prevented him from drawing proceedings well within limitation. According to him, at one hand, leamed Tribunal has held present application is not maintainable under Section 54(4) of the Act and on the other hand, the application has been dismissed as time barred. Bofh are contrary to each other. He would further submit, the order passed by fhe first respondent is in utter violation of principles of natural justice inasmuch as the •same has been passed without giving proper opportunity of hearing to the applicant. On fhe other hand, leamed counsel for the first respotident would submit, the order passed by leamed Tnbunal is weU reasoned and deserves to be upheld. He would further submit the Act of 1995 is a special provision enacted • with the object of better administration of the wakf properties in the State, therefore, made the provision of constitution of the Wakf Tribunals, and categorically barred fhe jurisdiction of the civil courts under Section 85 of the Wakf Act 1995 in respect of any dispute, question or legal proceeding relating to any wakf property in any suit or other legal proceeding. Relying upon the notification dated 7& September, 1989 passed imder Section 3(2) of the M.P. Accommodation Control Act, he would further -i^^=4£-s ./" submit, provisions of C.G. Accommodation Control Act, 1961 will not be applicable in case ofwakf properties. The applicants are not tenant of wakf but are tenant of Rafiq Ahinad and therefore, they are encroachers. The first respondent has rightly passed the order. According to him, under Section 51(5) of fhe Act, maximum Umitation prescribed for filing an appeal is 90 days. Instant case has been filed after expiry of more than 3 years, that too without filing an application for condonation of delay aad therefore, leamed Tribunal has rightly dismissed the ^ application as time barred. * 7. I have heard learned counsel for the parties and perused the order impugned. 8. Core questions involved in this case are : (i) Whether the proceeding filed by the applicants is not maintainable as held by leamed Tribunal ? (ii) \Vhether the application filed by the applicants under Section 83(2) of the Act is barred by lunitation? 9. So far as the question of maintainability is concemed, all suits are necessarily to be filed under Section 83(2) ofthe Act only, before the Tribiinal for determination of any dispute, question or ofher matters relating to wakf. The suit instituted by the aggrieved person against orders ' made under Section 54(3) of the Act are also to be filed under Section 83(2) of the Act. In the instant case, though the petition filed before leamed Tribunal is named as ' appeal but in fact, is a suit filed against the order passed by the first respondent under Section 54(3). Section 54(4) pf the Act provides remedy whereas Section 83(2) provides forum. In view of above, the above finding recorded by leamed Tribunal is without jurisdiction and the application was maintainable. ®» : /-"rs ,:^i:. 3{ass pue Aeisp j:oj ssn^o gq^ Suiure^dxa uop'eoiiddB UB SAom o^ }i sjojaq siLreoiidds sip o; A^iun^joddo IIB aAiS o^ punquj, aq^ jo &^np sq; sv/& fi usqi 'pauopuoo aq ^OULTBO &epp uoTye3r[ddv {BUUOJ jo aoussqB aqi ui 'SJBS^ SSJI.P jo Aiidxa jsye p3(g Suraq uopBoi(ddB aip '(Bunquj, jo uoraido sqi m PUB }oy sip jo /, uopoag japun psquosajd SB sasii suo si uopEiiuiii aqi guiiunssv 'W uopB^iiaiq ueipui stp jo 9^1 sppjy -ispun pajjeq 3mp S^A Suipssoojd 8I.P Ses o^ ^osjjoo ^ou SBA ^sunquj, paiuesi 'iesddB jo iou pire ^ms jo sjn^u aq^ ui SJB sSuipssoo-id aouig •UORBlimi[ Uiq^TM IpA S§UIp3330jd Su.w.'eip mojj imq pa^uaASjd qoiqM sgoi.re-^samojp aq^ ureidxs o^ A^iun^ioddo jsdo.td }3§ isnui }LreoiiddB sqj, •loy uopBiimrq SIR jo 3 uoipag japun uopeuopuoo sisas pire Atepp JQJ ssneo sip Suiureidxs uopBonddB ire aAoai 05 }i sjojaq yiBStylde arp 05 ^'•}iuniJoddo ve SAIS o^ iJnoQ aip JO A(np 3VQ. S/'BM[B ST i; usq^ psuopuoo aq IOUITGO SB]3p sq^ 'uopeoiiddB ^Bmjoj jo soussq^ aq^ UT ^Bq} uoiuido sq^ jo st ^inoo aq^ jl 'pTsq ssq (Bjdns) sjaq^o pire jeain^ qsajng JO 3STB3 3Vff. UI •J-]^[ jo iJnoo qSiH jo qousg 3l§mg paujeyj •13V aiRJo (g)is uopoag jspun paquossjd SB sAep Q6 9q II uopBiiuiT( 'iuapuodsgj isjy sq^ JOj SuiJBaddB ^asunoo psujBa^ 'BUijeqs uqg 0} Suipjoooe pire w sqi jo ^, uoposg jspun paquossjd sv JCB3& auo aq yy& UOTIB}IUII{ 'sdftrejBci uqg jsd sy •-(0V sqi^ J° (s)£8 uoposg jspun uoRBOi(ddB jo Sung joj uopB}iaii( Surquosajd sspzi A-re psurejj }ou SBI{ qjegspjBqq^ jo fuavauiaAOQ afB^s SIR 'sjeaddB }i -lusuiiuaAOo afe-^Q SI.P ^Cq spBui ssiru A^q paquosajd sueam .psquosajd, 'iov 3V J° (l)£ uoposg jad sy -paquossjd aq A'^m SB ami} qons uiq^ua. psTjpsds ussq s^q Stap qons ou ajaqM jo loy aiT) ui psgpads SB smp qsns uiqiiA pajy aq ireo uoppoi[ddB 'PV svft jo (g;)gg uoposg japun •uoi^iiuiTi Aire apiAojd ^ou saop ^oy 3^n J° (t')t'S uopoas 'uoi^ssnb fxau aq^ 01 SuiUtO^ •£T •ZI •II condonation, in the Ught ofjudginent of M.P. High Court in Suresh Kumar's case (supra) in the facts and circumstances of the case. Having not done so, fhe order iinpugned suffers from jurisdictional illegality which deserves to be and is hereby set aside. 14. Therefore, the revisions are allowed. Matters are remitted back to leamed Tribunal for deciding the question of limitation after affording an opporta-inity of hearing to the applicants for explaining the delay caused in filing above applications in accordance with law on its own merit without being influenced by any of the observations made by this Court. Sd/- '.K.Agarwal Judge