CRA 16/2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 16/2011 Tukaram s/o Dashrath Evare, Age : 70 years, Occu. Agriculture, R/o Wadi Godri, Tq. Ambad, Dist. Jalna. ...Applicant Versus 1 Sayed Zahurul-Haqu s/o Sayyed Asadullah Biyabani, Age : 76 years, Occu. Agriculture, R/o Opposite Tahsil Office, Ambad, Tq. Ambad Dist. Jalna. 2 Maharashtra State Wakf Board, through its Chief Executive Officer, Panchakki, Aurangabad. ...Respondents. Shri B.R. Kedar, Advocate for applicant. Shri P.V. Mandlik, Senior Counsel, instructed by Mr. J.H. Dehmukh, Advocate for the respondent no.1. CORAM : A.V. NIRGUDE, J Date : 3rd February, 2011. ORAL JUDGMENT: 1 This revision application is filed against the order passed by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad, dated 3rd January, 2011, rejecting the applicant’s application, under Order VII Rule 11 of the Code of Civil Procedure. 2 The respondent No.1 filed a suit bearing No. 104 of 2009 before the Tribunal, claiming that he was Mutawali of certain Wakf and that the Wakf owned the suit land. He alleged that the applicant / defendant was an encroacher of the land and was in illegal CRA 16/2011 2 possession of the same. He prayed for recovery of possession of the land. 3 The applicant appeared before the Tribunal and inter-alia objected the maintainability of the suit itself. He made the present application seeking rejection of the plaint on the ground that the suit could not have been filed without giving statutory notice under Section 89 of the Wakf Act, 1995 (Henceforth, be referred to as “the Act”). The learned Judge rejected the application. 4 The question that arose for decision is, whether the suit was maintainable. Admittedly, the Notice under Section 89 of the Act was not given to the Chief Executive Officer of the Maharashtra State Board of Wakf, Aurangabad before filing of the suit, though the Chief Executive Officer is made party as defendant No.2. On the other hand, the respondent No.1 / plaintiff asserted that Notice under Section 89 was not necessary, because no relief is claimed against the Chief Executive Officer. 5 The learned Advocate appearing for the applicant contended that the Notice under Section 89 is necessary in all the suits, that are filed before the Tribunal. No matter, whether relief is claimed against the Board. He pointed out that in the facts and circumstances of the case, the respondent No. 1 was essentially making a complaint not only against the alleged encroachment of the applicant on his / Wakf property. He also impliedly suggested that the Board or the Chief Executive Officer of the Board had failed in their duty to remove encroachment, thereby taking suo-moto action contemplated under Section 54 of the Act. In order to appreciate, one must read Section 54 of the Act, which reads as under :- CRA 16/2011 3 “54. Removal of encroachment from Wakf 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 Wakf property and, which 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 Wakf property and that there has been an encroachment on any such Wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the Wakf. (4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building space or other property: Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the Wakf or by any other person authorised by him in this behalf. 6 Indeed, the complaint of the respondent No. 1 could have been filed even under Section 54 of the Act. The Chief Executive Officer of the Board was not only empowered, but was in duty bound to take cognizance of such complaint and hold the enquiry as contemplated under Section 54 of the Act. Not only this, but the provision even provided that the Chief Executive Officer of the Board is not required to wait for a complaint of this nature in initiating the action against the encroacher on a Wakf property. If it is brought to his notice, he is CRA 16/2011 4 empowered and duty bound to start an enquiry as contemplated under Section 54 of the Act, in the light of the duty cast on the Chief Executive Officer. Shri Kedar learned Counsel for the applicant suggested that in the complaint the averments are made to that effect. It is impliedly suggested by the respondent No. 1 that the Chief Executive Officer had negligent to perform his statutory duty. In that sense, he suggested that this suit is also a complaint about the omission on the part of the Chief Executive Officer for not taking action about the encroachment against the encroacher. 7 I think, the submission though is attractive, but is not acceptable. Section 54 of the Act, no doubt contemplates that the Chief Executive Officer can suo-moto take an action against the encroacher of Wakf property. In order to do so, he must first learn about the encroachment. If he did not know about it, then he cannot be accused of having committed an omission and having failed in his duty to initiate the enquiry under Section 54 of the Act. If go by the pleadings of the applicant No. 1, he did not say that he had occasion to make a complaint in respect of the encroachment to the Board or to the Chief Executive Officer. In view of this, the suggestion of Shri Kedar that Chief Executive Officer ought to have noticed the encroachment and ought to have initiated the action under Section 54 of the Act is rather far fetched. So, his argument is rejected. It is thus clear that if this argument is rejected, then the provisions of Section 89 are inapplicable to the present case. Section 89 of the Act contemplates that the suit proposed to be filed against the board in respect of any act or omission done by the Board in pursuance of the provisions of the Act or Rules made thereunder, two months are required to be given. The conclusion of learned Judge of the lower CRA 16/2011 5 Court may be for different reasons cannot be said to be incorrect. 8 Shri Kedar, learned Counsel for the applicant No. 1 then contended that the suit was not maintainable before the Tribunal because it is not filed by a person aggrieved by order made by this Act or Rules made thereunder. Shri Kedar obviously is referring to the provisions of Section 83 of the Act. Section 83 of the Act reads as under :- “83. Constitution of Tribunals, etc.: (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 Wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. (2) 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 time as may be prescribed, to the Tribunal for the determination of any dispute, question or other mater relating to the wakf. (3) Where any application made under sub-section (1) relates to any wakf property which fails 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 wakf 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 wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf 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 CRA 16/2011 6 interests of justice to deal with the application afresh. (4) Every Tribunal shall consist of 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, and the appointment of every such person may be made either by name or by designation. (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 may confirm, reverse or modify such determination or pass such other order as it may think fit.” 9 Shri Kedar, learned Counsel for the applicant invited my attention to the provisions of Section 54 of the Act, and asserted that in case of this nature, the respondent No. 1 ought to have approached the Chief Executive Officer of the Board on complaint of encroachment etc. It is only after the passing of the order of the Chief Executive Officer. Aggrieved party would be able to file a suit in the Tribunal for establishing the right, title etc. to the suit land. In other words, Shri Kedar, learned Counsel for the applicant, suggested that in this case, respondent No. 1 could not have been invoked the original jurisdiction of the Tribunal. In order to support this argument, CRA 16/2011 7 Shri Kedar, learned Counsel for the applicant, placed reliance on two Judgments:- 1] “Ramesh Gobindram (dead) through Lrs. V. Sugra Humayun Mirza Wakf, reported in 2010 AIR (SC) 2897. 2] M.P. Wakf Board V. Subhan Shah (dead) by Lrs. & others, reported in (2006) 10 SCC.” 10 The Supreme Court in the first mentioned case was examining, as to whether the provisions of the Wakf Act ousted the jurisdiction of Civil Court totally? The Supreme Court held that Section 85 of the Act excludes the jurisdiction of Civil Court, only in case where the matter in dispute is required under the Act is determined by the Tribunal., which means that the matters which are not required to be determined by the Tribunal under the Wakf Act, can still be decided by the Civil Court. The ratio of this Judgment is of little assistance to the submission of Shri Kedar learned Counsel for the applicant, because his argument is essentially based on Section 54 read with Section 83 of the Act. Even the Supreme Court in the Second mentioned case is providing little assistance to the submission that of Shri Kedar. He suggested that a complaint of this nature ought to have come before the Chief Executive Officer in an enquiry under Section 54 of the Act. Shri Kedar learned Counsel for the applicant, thereby suggested that the Tribunal could not have usurped the power and authority of the Chief Executive Officer under Section 54 of the Act. However, the Supreme Court in recent Judgment in case of “Board of Wakf, West Bangal V. Anis Fatma Begum & anr,” held otherwise and Supreme Court rejected the similar argument and held as under :- “ We may further clarify that the party can CRA 16/2011 8 approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Section 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83(2) refers to the orders passed under the Act, but, in our opinion, Section 83(1) and 84 of the Act are independent provisions, and they not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Section 83(1) and 84 indicates.” 11 It is thus clear that the Supreme Court has indicated through this Judgment that complaint of the respondent No. 1 could have gone to either of the Forums available to the respondent No. 1 under the provisions of the Act. He could have either gone before the Chief Executive Officer of the Board or could have directly come before the Tribunal, invoking its original jurisdiction. In view of this Revision stands dismissed. 12 At the request of Shri Kedar, the learned Counsel for the applicant, the proceeding of this case before the Tribunal shall remain stayed till 31st March, 2011. [ A.V. NIRGUDE, J.] SDM*/CRA 16.11/030211/ok