1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL REVISION APPLICATION NO. 116/2010 (Masjid Peer Bawanpura Achalpur vrs. Mah. State Board of Wakf thr. CEO and another) ................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................... Shri A.I.Sheikh, counsel for the applicant Shri H,R.Gadiya, counsel h/f Shri A.M.Ghare, counsel for R-2 Shri S.I.Jagirdar, counsel h/f Shri F.T.Mirza, counsel for R-1 ... CORAM : R. K.DESHPANDE, J. DATED : 13th APRIL, 2011. This Civil Revision Application challenges the order dated 20.08.2010 passed by the learned Presiding Officer, Mah. Wakf Tribunal, Aurangabad, setting aside the order dated 18.03.2008 passed by the Chief Executive Officer, Mah. State Board of Wakf, Aurangabad (herein after referred to as Wakf Board). The Wakf Board has held the respondent no.2 herein to be an encroacher over the property of Wakf and hence, an order of removal of encroachment under Section 54 of the Wakf Act has been passed. This was the subject matter of challenge by the respondent no. 2 2 before the Wakf Tribunal by Application No. 18/2008. The Wakf Tribunal has allowed the said application and set aside the order dated 18.3.2008 passed by the Wakf Board under Section 54 of the Wakf Act. Hence, the applicants are before this Court challenging the same. 2] The learned counsel for the applicant has urged that the tribunal has committed an error in holding that the respondent no. 2 cannot be called as an encroacher, but he was successor of the original tenant i.e. his father. The dispute relates to non-payment of rent and eviction of respondent no. 2 from the property in question. The applicants have disputed the status of respondent no. 2 as a tenant. The learned counsel has relied upon the decision of this Court rendered in C.R.A. No. 116/2008 on 3rd July, 2009, wherein it has been held that, “the tenancy is not inheritable and hence the son would not get right to continue as a tenant in possession of the property after the death of his father. The learned counsel has also relied upon the decision of the Apex Court reported in 1999 (1) 3 Mh.L.J. 321; S.M.Sansthan vs. Vatsalabai. He has further urged that in terms of Section 56 of the Wakf Act, no lease for a period exceeding three years can be granted without previous sanction of the Board. According to him, the respondent no.2 was not the lessee and even if he is to be treated as lessee, the tenancy shall void in terms of Section 56 of the said Act. 3] Undisputed position is that, the father of the respondent no. 2 was the tenant in respect of the suit property. The suit property is a shop which was a medical shop run by the father of the respondent no.2. The father of the respondent no. 2 died in the year 2002 and thereafter the respondent no. 2 has started the business of stationery shop in the suit premises. In view of this, the entry of respondent no. 2 in the suit premises cannot be termed as an entry of an encroacher. Hence, no fault can be found with the view taken by the tribunal that the respondent no. 2 is not an encroacher. 4 4] The suit property was governed by the provisions of the Rent Control Order and hence, without taking recourse to the provisions of law, the eviction of the respondent no. 2 was not permissible. Hence, no fault can be found with the view taken by the tribunal that the relation of the parties were governed by the Rent Control Legislation applicable. 5] So far as judgment delivered by this Court in C.R.A. No. 116/2008, on 3rd July, 2009, it pertains to the tenancy created under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. It has been held that the tenancy under the said Act would not be inherited and the applicant would not get right to continue in possession as a tenant. This decision follows the decision of the Supreme Court reported in 1991 (1) Mh.L.J. 321, which is also rendered on the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Both these judgments are, therefore, not applicable to the facts of this case. 5 6] So far as the contention based upon the provisions of Section 56 of the Wakf Act is concerned, it applies to the leases or sub-leases created on and from the date of coming into force of the Wakf Act and thus, the view taken by the Wakf Tribunal is proper. Hence, no fault can be found with the said finding recorded by the tribunal. 7] For the reasons stated above, there is no substance in this revision. The same is, therefore, dismissed. JUDGE Rvjalit