1 CRA NO.211/2007. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.211 OF 2007. 1) The Executive Engineer, Maharashtra State Electricity (Civil & Maintenance Divn.), Aurangabad. 2) The Assistant Engineer, Maharashtra State Electricity Board, City Chowk, Aurangabad. - PETITIONERS (orig.Plaintiffs) VERSUS 1) The Managing Committee, Masjid Chowk, Aurangabad, Through the President. 2) The Marathwada Wakf Board, Through its Chief Executive Officer, Panchakki, Aurangabad. - RESPONDENTS (orig.Defendants) ***** Mr.SM Godsay,Advocate for Petitioners; Mr. Md.Waseem, Adv.h/for Mr. SS Kazi, Advocate for Respondent No.1; Mr.MBW Khan, Adv. for Respondent No.2. 2 CRA NO.211/2007. ----- CORAM : K.U.CHANDIWAL,J. DATE : 22nd DECEMBER,2010. JUDGMENT : 1) Heard finally. 2) The petitioner/MSEB impugn the order passed by the Executive Officer, Wakf Board dated 18.9.2003, confirmed by the learned Presiding Officer, Wakf Tribunal, Aurangabad in Suit No. 8/2004 dated 7.11.2007. 3) The suit property is in occupation of the petitioner/MSEB for more than 75 years; and according to the respondent/Wakf Board, it is in possession of the MSEB since 40-50 years prior to 1996. Certainty illustrate, installation of KV power station controlled by MSEB at the site is in existence during the regime of Nizam way back prior to 1945. 4) Both the sides could not trace antiquated documents to show there was a rental between Wakf authority and MSEB prior to 1960 or after 1960. Insistence of settling terms or pressure from the authorities of Wakf Board led to an agreement on 20th August, 1996 on a stamp of Rs.20/-, branding it as Rent-deed, purportedly executed between the petitioner and the 3 CRA NO.211/2007. respondent in relation to the suit property. The said Rent-deed stipulate “a long term lease-deed is in process with higher authorities. Till finalization of this long-term lease-deed, it has been mutually agreed between petitioner/MSEB and Respondent No.2-Wakf Board to execute a Rent-deed for eleven (11) months period on the terms and conditions”. Agreement was initially for eleven months with annual stipulation of remittance rent/charges. The Government valuation reached at Rs.45,347.50 ps. There was long drawn correspondence between MSEB and the respondent/Wakf Board about the rentals. However, a payment of one-year for 1997 from the petitioner to the Wakf Board is on record. There is no reference, anywhere, to earlier or subsequent rentals. 5) The respondent/Wakf Board banks on Government Gazette notification at Exhibit-C dated 17.5.1973, wherein at Serial No.48, reference to Masjid Chowk along with four rooms is published. However, the description, prima facie, excludes, the Power Station of MSEB from property of the Masjid. In City survey record, name of the Masjid for entire property is incorporated. There does not seem to be any inquiry in respect of recording the property to be of the Wakf Board, as is legally required. 4 CRA NO.211/2007. Without any hearing to the interested party, entries are taken, affecting the rights of MSEB 6) If there was rent agreement with annual lease, law contemplates its registration. There is neither such deed, nor efforts are made by the parties. Bare entry of one year of lease by itself whether could amount to a benefit in favour of the respondent Wakf Board in terms of Section 116 of the Evidence Act ?. This aspect has not at all been considered by the Chief Executive Officer or by the learned Presiding Officer of the Wakf Board. 7) The learned Chief Executive officer of the Wakf Board in the impugned order dated 18.9.2003 (Exhibit-B page 39), was apparently swayed away with the Government Gazette, referred above and the entry in City survey record No. 6493 in the name of the Masjid as Wakf. The learned Chief Executive officer felt that such possession of petitioner/MSEB is amounting to encroachment and taking recourse to the powers vested in him in terms of Section 54 of the Wakf Act, 1995, directed removal of such encroachment and deliver the possession to the respondent/Wakf Board. 5 CRA NO.211/2007. 8) No opportunity was given by the learned Chief Executive Officer (Respondent No.2) to the petitioner at any time, nor the learned Chief Executive Officer ventured to browse the old record or call for the same. Mere entry in 1973 or the defective lease-deed, by itself would not be sufficient to brand the petitioner as an encroacher. These observations are rebelling the legal position and also the factual details. When the lease agreement itself stipulate possession of MSEB for 40-50 years prior to 1996, reasonably it was expected of the learned Chief Executive officer to have called upon the Wakf Board to produce the documents to know what was the record. The order smell of egotistical immodest approach. The learned Chief Executive officer should not have swayed away with presumptions of the Wakf Board concerning its ownership over the property without affording any occasion of hearing to the aggrieved party. 9) The learned Presiding Officer of the Wakf Tribunal, as could be seen, was also influenced by the above referred rent agreement and stray receipt of Rs.45,347.50 ps. issued by the Wakf board. It was expected from the learned Presiding Officer to have gone through the old record or should have called the same. The deletion of issue whether the property is wakf 6 CRA NO.211/2007. was also improper. 10) The learned Chief Executive Officer and that of the learned Presiding Officer of the Wakf Tribunal erred in exercising powers vested in them and committed a jurisdictional error which calls for interference under Section 115 of Code of Civil Procedure. 11) The orders of the authorities below are set aside. The matter is remanded to learned Chief Executive officer to hear afresh, by allowing the petitioner-MSEB to put up its case, coupled with the documents and on independent assessment of documentary evidence from the petitioner/MSEB and respondent/Wakf Board, to decide the case as to whether it is a wakf property or whether non-payment of rentals by petitioner/MSEB would amount to encroachment or whether non-execution of long-term lease would mitigate rights of the petitioner/MSEB to such extremity, to be thrown away from the property. 12) Both the parties to appear before the Chief Executive officer, Maharashtra State Board of Wakf, Aurangabad on 27th January, 2011. 13) The amount of Rs.5,00,000/- (Rupees five lakhs) deposited in this Court; and invested in a 7 CRA NO.211/2007. nationalized bank, pursuant to orders in CA No. 10070/2007 and CA No.2294/2008 (deposited vide C.No.1341/2007-08 dt.29.1.2008), to remain deposited in the nationalized bank till decision of the controversy by the Respondent No.2 - Chief Executive Officer of the Wakf Board. Both the parties are at liberty to move the Court, based on their entitlement for release of the amount under notice to other side. 14) Civil Revision Application disposed of in the aforesaid terms. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/fldr.16.12.2010 Authenticated copy (BD VADNERE,PS)