C.R. No.162 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.162 of 2008 (O&M) Date of Decision:- 11.1.2008 Abdul Shakur ....Petitioner(s) through Mr.Gorakh Nath, Advocate vs. Haryana Wakf Board ....Respondent(s) *** CORAM:-HON'BLE MR.JUSTICE SURYA KANT. *** 1) Whether Reporters of the local papers may be allowed to see the judgment? 2) To be referred to the Reporters or not? 3) Whether the judgment should be reported in the Digest? *** SURYA KANT, J. (ORAL) In this petition under Article 227 of the Constitution of India, the petitioner impugns an order dated 28.11.2007 passed by the learned Additional District Judge, Jagadhari whereby the petitioner's prayer for staying operation of the judgment and decree dated 12.11.2007 passed by the learned Civil Court, has been declined. In other words, the petitioner seeks stay of operation of the judgment and decree dated 12.11.2007 of the learned Civil Court till the appeal preferred by him is decided by the First Appellate Court. The undisputed facts may be noticed briefly. The petitioner took on lease a piece of land measuring 22 kanals 6 marlas situated in the revenue estate of village Karera Khurd C.R. No.162 of 2008 (O&M) -2- Tehsil Jagadhri District Yamuna Nagar from the Punjab Wakf Board for a period of one year (2001-2002) on payment of annual lease money of Rs.8500/-. No order thereafter has ever been passed by the Wakf Board to renew the said lease. The petitioner, however, continued to retain possession of the lease property forcibly and refused to vacate the same. The aforesaid action of the petitioner led the Wakf Board to file a petition under Section 83 of the Wakf Act before the Tribunal notified by the State Government and presided over by a learned Additional District Judge. As is revealed from the order dated 20.9.2005 passed by the Tribunal under the Wakf Act, the petitioner and some other unauthorized occupants like him, took the plea that the Tribunal had no jurisdiction to entertain the petitions against them as the dispute was not regarding “determination of any question or other material relating to a Wakf or Wakf property.” Agreeing with the petitioner's preliminary objection that suit for possession against a lessee could be maintainable before the Civil Court only as the question raised in such a suit did not pertain to the determination of nature of the Wakf property, the Tribunal returned the petition filed by the Wakf Board against the petitioner. Thereafter, the Wakf Board filed a civil suit for possession before the learned Civil Court which has been decreed against the petitioner vide judgment and decree dated 12.11.2007. The learned Civil Court has held that the lease period of the petitioner was never renewed or extended, therefore, he has no right to retain possession of the Wakf Property. Aggrieved at the judgment and decree of the learned Civil Court, the petitioner has preferred an appeal before the First Appellate C.R. No.162 of 2008 (O&M) -3- Court. In the said appeal, the petitioner moved an application for staying operation of the judgment and decree passed by the learned Civil Court. Interestingly, before the learned Civil Court as well as before the First Appellate Court the petitioner has now turned around and taken a plea that the Civil Court has no jurisdiction in the matter which exclusively falls within the domain of the Tribunal constituted under Section 83 of the Wakf Act. The learned Additional District Judge, Jagadhari vide his impugned order dated 28.11.2007, however, has declined ad interim stay to the petitioner after observing that he is taking divergent stands as per his convenience. Relying upon a judgment of this Court in the case of Gurdial Singh and others vs. Punjab Wakf Board, 2006(2)PLR 794, learned counsel for the petitioner contends that the matter squarely falls within the jurisdiction of the Tribunal only, therefore, the impugned judgment and order passed by the Civil Court is a nullity. He further relies upon the Apex Court judgment in the case of A.C.Jose vs. Sivan Pillai and othersAIR 1984 (SC) 921 to contend that there can be no estoppel against the Statute. On this premise, it is further contended that since the impugned judgment and decree passed by the Civil Court is prima facie without jurisdiction, operation thereof ought to have been stayed by the First Appellate Court, more so when in the absence of ad interim protection the appeal preferred by the petitioner is likely to be rendered infructuous. I have heard learned counsel for the petitioner at length and perused the impugned orders. There can be no exception to the view taken by the learned First Appellate Court that the petitioner has been blowing hot C.R. No.162 of 2008 (O&M) -4- and cold in the same breath inasmuch as before the Tribunal, he took the plea that the Civil Court alone was competent to decide the controversy whereas before the Civil Court he has taken the plea that only the Tribunal can entertain a suit pertaining to the Wakf Property. However, the aforesaid question being a mixed question of law and fact, would be gone into by the first Appellate Court before whom the appeal preferred by the petitioner is still pending adjudication. It is not desirable for this Court to express any final view in relation thereto, at this stage. The question arises as to whether or not the petitioner is entitled for ad interim stay during the pendency of his appeal. Admittedly, the petitioner entered into permissible possession of a public property by taking it on lease for a period of one year. There is no order passed by any Authority in the Wakf Board on the basis of which it can be held or inferred that his lease period was ever renewed or extended. Prima-facie, the petitioner is, forcibly retaining possession of the public property. Neither in law nor in equity, his possession, therefore, deserves to be protected. The plea that the petitioner is a tenant holding over, is neither here nor there. Further, if the petitioner is dispossessed during the pendency of his appeal and his claim is finally accepted by the First Appellate Court, suitable directions for restoration of his possession and/or to compensate him for the period he is deprived of the rightful possession over the subject land can be passed by the First Appellate Court. With the afore-stated observations, the civil revision petition is dismissed. January 11, 2008 ( SURYA KANT ) poonam JUDGE