1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL REVISION APPLICATION NO.116 OF 2008. (ABDUL HAMID SHAIKH SAFDAR...Vs..DARUSHIFA MASJID FARMANPURA & ANR.) _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri Mohd. Ateeque, Advocate for Applicant. Shri M.A.Hussain, Advocate for Respondent No.1. Shri F.T.Mirza, Advocate for Respondent No.2. CORAM : R.C.CHAVAN, J. DATED : JULY 03, 2009. 1. This revision is directed against judgment of the learned Presiding Officer of Wakf Tribunal upholding the order of the Chief Executive Officer, whereby the Chief Executive Officer held the applicant to be an encroacher on wakf property bearing Gut No.121 of village Mukindapur and Gut No.133 of village Isegaon and directed that the said encroachment should be removed. 2. The applicant claims that his father was tenant in respect of the property and his name has been so recorded in 7/12 extracts of the property. He claims that, after his father he has become tenant of the property and therefore, he is not an encroacher and therefore, he could not have been ordered to be thrown out of the property under Section 54 of the Wakf Act, 1995. 2 3. On behalf of respondent-wakf it has been pointed out that even if it is presumed for a while that the applicant’s father was a tenant in respect of the property, in view of the judgment of the Supreme Court in S.M. Sansthan Vs. Vatslabai, reported at 1999(1) Mh.L.J 321, such tenancy would not be heritable and therefore, the applicant would not get a right to continue to be in possession of the property as a tenant. Apart from this, it is submitted that in respect of the properties belonging to wakf there can be no question of creating a tenancy in perpetuity. Section 56 of the Wakf Act provides that a lease or sub-lease of a period exceeding three years shall be void and shall be of no effect, and for creation of lease for the period exceeding one year sanction of the Board is required. In view of this, even if it is presumed, for a while, that the applicant was a tenant in respect of the property and was entitled to continue as such, without any limit on the period of tenancy, such tenancy would become void on the coming into force of Section 56 of the Wakf Act, since the section provides that it has effect notwithstanding anything contained in the deed or instrument of wakf or in any other law for the time being in force. 4. The learned counsel for the applicant submitted that for applying provisions of Section 129 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (“BTAL Act” for short) to the property of Wakf there would have to be a certificate from the Collector after holding an 3 inquiry that the entire income of such property is appropriated for the purpose of the trust as required under the explanation to the said section. He submitted that since there is no such certificate, Clause (b) of Section 129 is not attracted and therefore, provisions relating to tenancy, protecting the applicant’s possession, as a tenant, would apply. Explanation to Section 129 of the BTAL Act reads as under : “Explanation : For the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfied by the trust shall be the conclusive evidence in that behalf.” 5. It may be seen that once the Collector gives certificate it is conclusive evidence in that behalf. It does not mean that absence of certificate would lead to a conclusion that the income of the land is not appropriated for the purpose of the trust. In view of this, since the applicant does not dispute that the property belongs to wakf and on coming into force of Wakf Act, lease for the period exceeding three years cannot at all be created and cannot exist, his continuation in possession of the property without any lease even for a period of less than one year by the trust would be as an encroacher. Therefore, it cannot be said that the Chief Executive Officer or the Tribunal erred in holding that he was an encroacher, liable to be removed. 4 6. In view of this, there is no merit in the revision, it is dismissed. Interim order stands vacated. JUDGE RR.