( 1 ) ra104.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION NO. 104 OF 2011 IN CIVIL REVISION APPLICATION NO. 128 OF 2010 Vijay s/o. Bhoja Shetty .. Applicant Versus Maharashtra Board of Wakfs & Ors. .. Respondents WITH REVIEW APPLICATION NO. 105 OF 2011 IN CIVIL REVISION APPLICATION NO. 129 OF 2010 Vijay s/o. Bhoja Shetty .. Applicant Versus Maharashtra Board of Wakfs & Ors. .. Respondents WITH REVIEW APPLICATION NO. 106 OF 2011 IN CIVIL REVISION APPLICATION NO. 130 OF 2010 Ahmed Maklai & Ors. .. Applicants Versus Fareed Abdul Latif Noorani & Ors. .. Respondents WITH REVIEW APPLICATION NO. 107 OF 2011 IN CIVIL REVISION APPLICATION NO. 131 OF 2010 Ahmed Maklai & Ors. .. Applicants Versus Fareed Abdul Latif Noorani & Ors. .. Respondents ( 2 ) ra104.11 Mr. A.S. Bajaj, Advocate for the applicant in R.A. No. 104 & 105 of 2011 and respondent No. 5 in R.A. No. 106 & 107 of 2011. Mr.Y.H. Muchhala, Sr. Counsel with Mr. Sagheer A. Khan i/b. Mr. Subodh Shah, Advocate for respondent No. 2 in R.A. No. 104 & 105 of 2011 and the applicants in R.A. No. 106 & 107 of 2011. Mr. Iqbal M. Hawa assisted by Mr. Syed Kalimuddin, Advocate for respondent Nos. 3 to 6 in R.A. No. 104 & 105 of 2011 & respondent Nos. 1 to 4 in R.A. No. 106 & 107 of 2011. Mrs. Sana Yusuf Baugwala, Advocate - respondent No.7 in person. CORAM : A.V. NIRGUDE,J. DATED : 27.11.2012 P.C. :- 1. Leave to amend granted. The amendment be carried out forthwith. 2. The first question that is required to be decided is whether the review is permissible and maintainable in respect of common order, which I have passed in the Civil Revision Application Nos. 128, 129, 130 & 131 of 2010. In order to support the maintainability, learned Counsel for the applicant mainly placed reliance on the judgment of the Supreme Court in the case of Shivdeo Singh & Ors. Vs. State of Punjab & Ors., AIR 1963 S.C.1909, in which the Supreme Court was examining as to whether a High Court has power to review its order passed under Article 226 of the Constitution of India. The Supreme Court very clearly held that a High ( 3 ) ra104.11 Court has power to review its own order passed under Article 226 of the Constitution of India, because there is nothing in Article 226 of the Constitution, which precludes a High Court from exercising power of review. It is further held that a High Court has power of review being Court of plenary jurisdiction and for preventing miscarriage of justice, such power can be used by High Court also for correcting grave and palpable error committed by it. 3. Learned Counsel for the respondents, however, asserted that as regards order passed by a High Court under Article 226 of the Constitution of India, the Court would certainly have power to review its order but he said that the order under review is admittedly not passed by exercising powers under Article 226 of the Constitution of India. He pointed out that section 83 of the Wakf Act, 1995 is permitting the High Court a limited power to examine correctness of the judgment and order passed by the Wakf Tribunal, which otherwise is not made appealable. He said that in view of peculiar provision of Section 83 of the Wakf Act, even the revisional powers of High Court are quite limited and so after exercising such powers, the Court would be functus officio and would not be able to review its order. ( 4 ) ra104.11 4. However, in my view, the submission is rather myopic. Section 83 of the Wakf Act is a part of special enactment and one can say that the enactment is complete code in itself. It prohibits Civil Court from entertaining a dispute of a kind which can be decided only by the tribunal constituted under the provisions of the Act. As said above, Section 83 of the Wakf Act in turn gives finality to the findings recorded by the tribunal and as said above, it is only High Court, who can revise the same. In other words, the tribunal constituted under the Wakf Act is last fact finding Court. A High Court would only examine its correctness, legality or propriety as revisional court and not as appellate court. Nonetheless Section 83 of the Wakf Act, also gives the tribunal a status of Civil Court, saying that the tribunal would have same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908, while trying a suit etc. The paradox is thereafter, there is no provision in the Act providing an appeal for an aggrieved party. It is only a revision that is permissible. A High Court while exercising the revisional power under sub-section (9) of Section 83 of the Wakf Act would be, no doubt, a forum which would have all powers of a civil court albeit as revisional court. In view of this, if a High Court decides a revision, an aggrieved party would be able to challenge it as is ( 5 ) ra104.11 permissible under the law. One of the provisions for challenging correctness of such judgment could be a review if permissible. The C.P.C. which provides basic procedure for a civil court should be perused to locate a provision providing a review. Section 114 of the C.P.C. provides review of such decision to the High Court subject to limitation provided under section 114 as well as Order 47 of the C.P.C. Rule 1 of Order 47 reads as under :- “1. Application for review of judgment.- (1) Any person considering himself aggrieved,— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (C) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or ( 6 ) ra104.11 when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation : The fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.” 5. Against the order under review, there is no appeal provided under the Wakf Act as well as C.P.C. Probably the only recourse available to a person aggrieved by an order passed by the High Court exercising revisional jurisdiction of sub-section (9) of section 83 of the Wakf Act is moving an application under Article 136 of the Constitution, seeking special leave for filing an appeal. In view of this remoteness of the remedy and since the judgment and order of this Court being the most last order for the parties, the review should be allowed, so as to remove grave or palpable error committed by the Court while passing the judgment and order. 6. Next question is - whether any grave and palpable error is committed by this Court while passing the judgment and order under review or whether there is any other reason why I should review my order. The applicant in Civil Revision Application No. 128 and 129 of 2010 seriously asserted that I did not refer to the ( 7 ) ra104.11 submissions made by his Counsel at the time of arguments on the revision applications. On perusal of my order, I find that this assertion is factually correct. According to learned Counsel for the applicant, this lapse on my part was a grave and palpable error. This would amount to grave and palpable error, in my view, if an important point argued by learned Counsel was ignored and was not considered and decided. Indeed, some of the points which Mr. Bajaj, learned Counsel appearing for the applicant had argued at the time of arguments were not considered in the judgment and to that extent. So I think I should refer to those points and try to give findings on them. 7. Learned Counsel for the applicant contended that all along it was his client’s case that his client was not encroacher on the Wakf property and he was interested in getting finding from this Court that he was a lawful tenant in respect of the area which is in his control. He pointed out that the learned Presiding Officer of the tribunal specifically held that his client is an encroacher. I have not gone into this factual aspect mainly because these are findings of fact and all that I was allowed to do was to examine the legality of such finding. The factual controversy in this matter between the parties was as under :- ( 8 ) ra104.11 8. On one hand the applicant is monthly tenant in respect of ground floor area (two shops) of a building belonging to the Wakf where he is running a restaurant. The applicant has been using the roof/terrace over these shops for number of years and it is his case that the Wakf permitted such user and gave him status of a tenant even in respect of the terrace of the shop. The learned Counsel appearing for the applicant admitted that there is no document between his client and the Wakf creating tenancy in respect of roof/terrace. In view of lack of documentation, learned Presiding Officer held that there is no tenancy in favour of the applicant in respect of roof/terrace portion and if he still uses it, he has been using it as an encroacher. On facts, thus, the Presiding Officer recorded this finding. 9. Learned Counsel for the applicant asserted that this finding is erroneous because the law contained in section 108 of the Transfer of the Property Act would give his client the status of a tenant in respect of the roof/terrace also. He places reliance on Section 108 clause (d) of the Transfer of Property Act, which reads as under :- “108. Rights and liabilities of lessor and lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable ( 9 ) ra104.11 property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-- x x x x x x x x x (d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease; x x x x x x x x x “ 10. I am, however, not inclined to record any finding on this issue because in my view it is not pertaining to the question involved in the case. Even if the learned Presiding Officer labelled the applicant as encroacher, it would really not change the nature of the relationship between the parties and the nature of the agreement that was challenged by the respondent/ complainant. As said above, the applicant is a tenant in respect of shops in which he runs a restaurant for last many years. In view of easy access to the horizontally plane roof of these shops, the applicant could use it for accommodating his workers etc. But the question as to whether he has right to this property as tenant would arise if an action for eviction is initiated. Here no action for eviction was initiated at any time. The agreement inter alia contemplated that since the applicant is using the roof of the shop, the Mutawalli of ( 10 ) ra104.11 the Wakf assumed that the applicant is a tenant in respect of this area and therefore he is a suitable party, who should be allowed to develop the building over the roof horizontally and construct several rooms suitable for his restaurant business. The question between the parties was whether the trustees were right in assuming that the applicant has right to this area as tenant etc. In such context the learned Presiding Officer held that the encroacher cannot be given status of tenant etc. If ultimately the agreement is held to be lawful then the permission on the part of the Mutawalli can be said to be acceptable. 11. Learned Counsel for the applicant also asserted that while making his submission he had also argued that the learned Presiding Officer, wrongly held that the agreement in question was a lease agreement and not a development agreement. The question as to whether the agreement in question is lease agreement or development agreement is not elaborately discussed in my order and at the instance of learned Counsel for the applicant I would do so. 12. On the face of it, the agreement is development and lease agreement. Both the aspects are apparent in the agreement. The agreement in short can be summarized ( 11 ) ra104.11 as under :- 13. The Wakf has F.S.I. available over its property. They intend to utilize the area of F.S.I. of 4100 sq. ft. for development of shops of the applicant. This F.S.I. would be used for vertical development of the shops. There is proposal of construction of first floor and second floor over existing shops. The cost of construction would be borne by the applicant and the Wakf would accept him as a tenant in respect of additional area so constructed. The construction so made would still be the property of Wakf. There are several other clauses in the agreement which would give lot of concession and rights to the applicant as developer and tenant. In view of this by no stretch of imagination it can be said that this is only development agreement. Assuming that the terrace in question is a tenanted premises as provided under clause (d) of section 108 of the T.P. Act, yet this area is proposed to extensive development including second floor which is not in existence now. The erection of first floor and second floor, in my view, is creation of habitable area. They are not comparable to a roof which is not a habitable area. (I am told across the bar that the roof does not even have a parapet/protective wall on sides). The submission, therefore, is quite wishful and that probably led me not to discuss it ( 12 ) ra104.11 earlier. 14. In the order under review, I discussed the point of severability while considering the submissions made by the learned Sr. Counsel engaged by other applicant. But, since it was not discussed extensively, I would try to do so with the help of learned Counsel. It so happened that after entering into first agreement, the Mutawallis allowed the applicant to start development of the property. After one year one more agreement was entered into which allowed further development in the form of second floor, installation of lift etc. The applicant even agreed to pay more amount towards lease premium and additional consideration also. After this development, the complainants went before the Board as well as this Court and this Court directed the parties to approach the Board for deciding as to whether the agreements in question were lawful etc. As said earlier, the Board held meeting and during the meeting the applicant filed two affidavits in which he categorically stated that he would give up some of the rights given to him by the agreement. Accordingly in view of this conciliatory development, the Board held that the agreements were not against the interest of Wakf etc. This decision was challenged before the tribunal and as stated in earlier order, the tribunal held other clauses of the agreement ( 13 ) ra104.11 contrary to law. Learned Counsel for the applicant asserted that the learned Presiding Officer of the tribunal ought to have ignored the clauses which were given up by the applicant vide his affidavits. He said that these affidavits were also binding on his client and what was given up by the applicant ought to have been separated from the agreement. He said that after separating the given up part of the agreement, the remaining agreement is acceptable in law and that part of the agreement be held as valid. He said that the separation suggested by him is permissible. The law on separability of unlawful part of the agreement is quite settled and it is elaborately discussed in various judgments, which are referred to by the learned Counsel for the applicant. I would refer to para Nos. 18 & 19 of the judgment of Full Bench of this Court in the case of M/s. R.S. Jiwani Vs. Ircon International Ltd., 2010 (1) ALL MR 605. In this judgment, several judgments of the Supreme Court and certain part of Halsbury Law of England was taken into account. The relevant portion of the judgment reads as under :- “18. In the event the arbitration agreement between the parties is not valid means where it is unlawful or void, the whole award will have to be set aside as the very root of the matter suffers from a defect of law and is not valid under the law for the time being in force. Severability is an ( 14 ) ra104.11 established concept. It is largely applicable to various branches of civil jurisprudence. Where it is possible to sever the bad part from the good part, the good part of the contract can always be enforced and partial relief can be granted. Doctrine of severability has been applied to law of Contract since time immemorial. Of course, it could be said that substantial severability and not textual divisibility is the principle controlling this concept. In the case of Shin Satellite Public Co. Ltd. V. Jain Studios Ltd., 2006(2) SCC 628 where the Supreme Court was dealing with an agreement between the parties for availing broadcasting services in favour of the petitioner therein by the respondent. Because of the dispute between the parties, arbitration 45 clause was invoked to which defence was taken by the respondent that the claim of the petitioner was not maintainable in as much as clause 20 of the agreement was against the public policy and was not enforceable. The Supreme Court in the light of para 430 of Halsbury Law of England, 4th Edition, Volume 9, page 297 finally held as under: "430. Severance of illegal and void provisions - A contract will rarely be totally illegal or void and certain parts of it may be entirely lawful in themselves. The question therefore arises whether the illegal or void parts may be separated or `severed' from the contract and the rest of the contract enforced without them. Nearly all the cases arise in the context of restrain of trade, but the following principles are applicable to contracts in general. First, as a general rule, severance is probably not possible where the objectionable parts of the contract involve illegality and not mere void promises. In one type of case, however, the courts have adopted what amounts almost to a principle of severance by holding ( 15 ) ra104.11 that if a statute allows works to be done up to a financial limit without a licence but requires a licence above that limit, then, where works are done under a contract which does not specify an amount but which in the event exceeds the financial limit permitted without licence, the cost of the works up to that limit is recoverable. Secondly, where severance is allowed, it must be possible simply to strike out the offending parts but the court will not rewrite or rearrange the contract. Thirdly, even if the promises can be struck out as aforementioned, the court will not do this if to do 46so would alter entirely the scope and intention of the agreement. Fourthly, the contract, shorn of the offending parts, must retain the characteristics of a valid contract, so that if severance will remove the whole or main consideration given by one party the contract becomes unenforceable. Otherwise, the offending promise simply drops out and the other parts of the contract are enforceable. Reference may be made to Chitty on Contracts (29th Edn. Vol. 1) pp. 1048-49: "16-188. Introductory.- Where all the terms of a contract are illegal or against public policy or where the whole contract is prohibited by statute, clearly no action can be brought by the guilty party on the contract; but sometimes, although parts of a contract are unenforceable for such reasons, other parts, were they to stand alone, would be unobjectionable. The question then arises whether the unobjectionable may be enforced and the objectionable disregarded or 'severed'. The same question arises in relation to bonds where the condition is ( 16 ) ra104.11 partly against the law. 16-189. Partial statutory invalidity. - It was laid down in some of the older cases that there is a distinction between a deed or condition which is void in part at common law. This distinction must now be understood to apply only to cases where the provisions shall be wholly void. Unless that is so, then provided the good part is separable from and not dependent on the bad, that part only will be void which contravenes the provisions of the statute. The general rule is that 'where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but, where you can sever them, whether the illegality by created by statute or by the common law, you may reject the bad part and retain the good'. Thus, a covenant in a lease that the tenant should pay 'all parliamentary taxes', only included such as he might lawfully pay, and a separate covenant to pay the landlord's property tax, which it was illegal for a tenant to contract to pay, although void, did not affect the validity of the instrument. In some situations where there is a statutory requirement to obtain a licence for work above a stipulated financial limit but up to that limit no licence is required, the courts will enforce a contract up to that limit. There is some doubt whether this applies to a lump sum contract 'for a single and indivisible work'. Even in this situation if the cost element can be divided into its legal and illegal components, the courts will enforce the former but not the latter." (emphasis supplied) 15. It is no doubt true that a court of law will read the agreement as it is and cannot rewrite nor create a new one. It is also true that the contract must be read as a whole and it is not open to dissect it by taking out a ( 17 ) ra104.11 part treating it to be contrary to law and by ordering enforcement of the rest if otherwise it is not permissible. But it is well