Bombay High Court
Sohail Azam S/O Azimuddin vs Mohammed Atiq-Ur-Rehman S/O on 17 February, 2014
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
Civil Revision Application No.292/2013
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.292 OF 2013
Sohail Azam s/o Azimuddin,
Age 44 years, Occ. Business,
R/o Bhagan Takli, Degloor,
Tq. Degloor, District Nanded. ... APPLICANT
(Orig. Deft.No.1)
VERSUS
1. Mohammed Atiq-Ur-Rehman s/o
Abdul Rehman, Age 50 years,
Occ. Agri. & business,
R/o Degloor, Tq. Degloor,
District Nanded.
2. State of Maharashtra,
through Collector, Nanded.
3. T.I.L.R., Degloor,
District Nanded. ... RESPONDENTS
.....
Shri P.C. Mayure, Advocate for applicant
Shri P.V. Mandlik, Senior Counsel, instructed by
Shri Amol Gandhi, Advocate for respondent No.1
Shri S.R. Palnitkar, A.G.P. for respondent Nos.2 and 3
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 17th February, 2014.
Date of reserving judgment : 29/1/2014
Date of pronouncing judgment : 17/2/2014
JUDGMENT :
1. The civil revision application is admitted and heard finally with the consent of learned counsel for both sides.
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2. The Civil Revision Application has been filed by Sohail Azam, original defendant No.1 in Regular Civil Suit No.103/2013 (I will refer him as defendant). The Regular Civil Suit has been filed in the Court of Civil Judge, Senior Division, Biloli by respondent No.1 (hereinafter referred to as "plaintiff" ). It is a suit for declaration of subsistence of lease and perpetual injunction. Plaintiff sought temporary injunction vide application Exhibit 6 and defendant opposed the application vide reply Exhibit 29, and raised an objection to the jurisdiction of the Court on the ground that the dispute raised by the plaintiff is triable before the Waqf Tribunal in accordance with the provisions of The Waqf Act, 1995 and so the jurisdiction of the Civil Court was excluded. Other defendants earlier arrayed and in the suit as defendants- the Wakf Board and Wakf Officer, were deleted and now Collector, Nanded and Taluka Inspector of Land Records, Degloor remain as defendant Nos.2 and 3 respectively. The trial Court heard the rival submissions and came to the conclusion that the scheme of the Waqf Act does not oust the jurisdiction of the Civil Court to try and entertain the suit of present nature.
Being aggrieved by the order, defendant has filed this revision.
3. As question of jurisdiction of the Civil Court to entertain the suit has been raised, the contents of the plaint are material. Perusal of the plaint in brief shows that plaintiff ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 3 claimed that the defendant is Mutawalli Inamdar of Dargah Murtuza Shah Wali, situated at Degloor. Defendant entered into lease deed of Block No.17, admeasuring 2 Hectors 80 R, land situated at Bagan Takli, Taluka Degloor in favour of the plaintiff by lease deed dated 29.6.1998 for a period of 99 years against amount of Rs.70,000=00. There were some disputes in respect of the open site and defendant succeeded in taking possession of the suit area, but was in financial problems. Defendant constructed some R.C.C. rooms and executed lease deed styled as 'agreement' on 29.6.1998 about those rooms and suit land Gat No.17, admeasuring 2 Hectors 80 R. Defendant had agreed to bring the required permission from Waqf Board. Plaintiff received possession of the suit land Block No.17 of Bagan Takli and was in possession since execution of the agreement of lease. Plaint contends that, proceeding to regularize and grant of "Bhadepatta" was started by plaintiff before the Waqf Board.
Accordingly, the Board, on 31.12.2011 granted lease Bhadepatta to plaintiff vide No.Waqf/Atiyat/4906, dated 31.12.2011.
Defendant, on instigation by adversaries, became hostile to plaintiff and quoted false facts in application to Chief Executive Officer. Plaint gives particulars regarding how Chief Executive Officer cancelled the Bhadepatta on 28.12.2012. It is claimed that, against the cancellation of Bhadepatta by Chief Executive Officer, Writ Petition No.59/2013 was filed and as per directions ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 4 of the Court, plaintiff approached Waqf Tribunal, but Waqf Tribunal did not grant stay or injunction, due to which another Writ Petition (actually it is Civil Revision Application) was filed bearing No.182/2013. The High Court set aside order of Chief Executive Officer canceling the Bhadepatta and directed maintenance of status quo and also directed the Chief Executive Officer to make enquiry. The plaintiff brought the suit with following prayers :
(A) That, it may be declared that the lease deed of Block No. 17 measuring 2H-80 Ar village Bagan Takli Tq. Degloor executed on dt. 29.6.98 by defendant No.1 in favour of plaintiff is valid.
(B) That, declaration that the lease (lawni) of suit land block No.17 area 2H 80 Ars of Bagan Takli Tq. Degloor granted by defendant No.2 i.e. C.E.O., M.S. Wakf Board, Aurangabad on 31.12.2011 for the period of three years for Rs.7000/- each year and initially for a period of 11 months for Rs.7000/- and later on to continue by such order and confirming the possession already existing with the plaintiff is legally enforceable and given effect thereto in favour of plaintiff and the same may not be declared invalid.
(C) That, the defendant No.1 may be restrained perpetually in the peaceful possession of the plaintiff over the suit ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 5 land Block No.17 measuring 2H 80 Ar village Bagan Takli, by issue of injunction order or status quo about possession may be ordered.
(D) That, defendant No.3 may be restrained not to measure the land Block No.17 of Bagan Takli.
4. The plaint gives various details. Above is the substance of the plaint. The plaintiff had filed Writ Petition No. 59/2013 claiming that the order dated 28.12.2012 of the Chief Executive Officer regarding cancellation of Bhadepatta should be quashed and set aside. The Division Bench of this Court, vide order dated 17.4.2013, granted leave to withdraw the petition with liberty to avail appropriate remedy. The plaintiff then filed Application No.64/2013 before the Waqf Tribunal under Section 83(2) of the Waqf Act, claiming that defendant, who had entered into agreement of lease for 99 years, had failed to obtain necessary permission from Waqf Board and so, the plaintiff had moved the District Waqf Officer, and the Waqf Board, after following procedure, vide order dated 31.12.2011, granted suit land on the basis of lease to the plaintiff for a period of three years, and the plaintiff was directed to pay amount in three installments, and the District Waqf Officer was to execute document for every 11 months. The Application No.64/2013 before the Waqf Tribunal stated as to how the Bhadepatta came ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 6 to be cancelled by Chief Executive Officer vide order dated 28.12.2012 and that while canceling the Bhadepatta the plaintiff had not been heard. The plaintiff's application to the Waqf Tribunal for staying the order of Chief Executive Officer was rejected and plaintiff filed Civil Revision Application No. 182/2013. This Court, on 22.7.2013, quashed and set aside the order dated 28.12.2012 of the Chief Executive Officer. It was made clear that this Court had not entered into merits or correctness of the order and the same was set aside only on the ground that the plaintiff had not been heard. The Chief Executive Officer was directed to hear the parties and take fresh decision within six weeks. Parties were directed to maintain status quo till decision afresh by the Chief Executive Officer. The proceedings before the Waqf Tribunal i.e. Waqf Application No.64/2013 were directed to stand disposed of.
5. Although the matter had been relegated to Chief Executive Officer with regard to the orders passed by him with reference to Bhadepatta, dated 13.12.2011, prayer (B) as above was made in the suit. At the time of hearing of present revision, learned counsel for respondent-plaintiff submitted that plaintiff is giving up prayer (B) as made in the suit. Thus, what survives of the suit as brought before the trial Court is the prayer of plaintiff to declare that lease dated 29.6.1998 executed by defendant in ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 7 favour of plaintiff is valid and that defendant should not obstruct his possession got under the lease.
6. Regarding jurisdiction, the trial Court discussed the pleadings in para 9 of the order. It recorded that the dispute raised in the plaint appears to be a dispute between the tenant and the lessor, and the dispute is regarding protection of possession allegedly handed over to the plaintiff in the capacity of lessee.
The trial Court then relied on the case of Ramesh Govindram (deceased, by L.Rs.) Vs. Sugra Humayun Mirza Wakf, reported in AIR 2010 (SC) 2897. Portion was extracted from the judgment of the Hon'ble Supreme Court relating to various provisions of the Waqf Act and where Hon'ble Supreme Court held that :
"The Act does not provide for any proceeding before the Tribunal for determination of dispute concerning the eviction of a tenant in occupation of a Wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenant from what is admittedly Wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal."
In view of this judgment of the Hon'ble Supreme Court, the trial Court found that it has jurisdiction and decided the preliminary issue accordingly.
7. At the time of arguments, the learned counsel for ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 8 applicant-defendant submitted that the judgment in the matter of "Ramesh Govindram" (supra) would now no more be applicable. He submitted that, Section 83 of the Waqf Act has now been amended so as to include dispute relating to eviction of tenant or determination of rights and obligations of the lessor and lessee within jurisdiction of the Tribunal.
8. The learned counsel for applicant submitted that, the Waqf (Amendment) Act of 2013 has been enforced on 23rd September 2013 and the suit was filed on 24th September 2013 and thus, if amended Section 83(1) is read with Section 85 of the Waqf Act, the Civil Court can no more deal with matters relating to eviction of tenant or determination of rights and obligations of the lessor and the lessee of Waqf property.
Learned counsel for respondents claimed that, the suit was filed on 21.9.2013. The learned counsel thus tried to show that, the suit was filed before the amendment came into force and thus, according to him, the orders passed by the trial Court were correct as they were based on the Supreme Court judgment. According to learned counsel for respondents, as the suit was filed before the amendment came into force, it was maintainable before the Civil Judge.
9. The trial Court record was called and from the ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 9 record, what can be ascertained is that the presentation of the suit was accepted on 24.9.2013, after the plaintiff could tide over obstructions to the institution of suit in view of Section 80 of CPC and Section 89 of the Waqf Act. I need not, however, enter into the details of the suit whether the same was presented on 21.9.2013 or 24.9.2013. The learned counsel for the applicant argued on the basis that the Waqf (Amendment) Act, 2013 has been enforced on the day it was gazetted i.e. 23.9.2013 to claim that now such suit after amendment can be filed only in Waqf Tribunal. But, the fact remains that the amendment was not enforced on 23.9.2013. Gazette of India (Extraordinary), Part II S/3, dated 29.10.2013, S.O.3292(E), issued by Ministry of Minority Affairs, shows that, in exercise of powers conferred by Sub-section (2) of Section 1 of the Waqf (Amendment) Act, 2013, the Central Government appointed the first day of November 2013 as the date on which the provisions of the said Amendment Act shall come into force. Thus, the amendment to Section 83(1) of the Waqf Act relied on by the learned counsel for applicant came into force subsequently and the suit was filed earlier. Even the impugned order was passed on 28.10.2013 before the amendment came into force. The impugned order is based on the judgment of the Hon'ble Supreme Court in the matter of Ramesh Govindram (supra).
Nothing is shown that the Amendment Act requires transfer of ::: Downloaded on - 01/03/2014 00:11:34 ::: Civil Revision Application No.292/2013 10 pending proceedings relating to eviction of tenant or determination of rights and obligations of the lessor and lessee to Waqf Tribunal.
Looking to the observations of the Hon'ble Supreme Court referred above (in para 6 of this judgment), no fault can be found with the impugned order. Consequently, there is no substance in this Civil Revision Application.
ig The
Civil Revision Application stands rejected. No order as to
costs.
(A.I.S. CHEEMA, J.)
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