Madras High Court
H.Nayeemullah vs Madras-E-Nusrathul Islam And on 22 November, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2010
CORAM :
THE HONOURABLE Mr.JUSTICE R.S.RAMANATHAN
CRP.PD.No.3532 of 2010
and
M.P.No.1 of 2010
H.Nayeemullah ... Petitioner
Vs.
Madras-E-Nusrathul Islam and
New Mosque,
rep.by its Muthavalli M.Nisar Ahmed,
Periamet, Chennai-600 003 ... Respondent
This Civil Revision Petition filed under Article 227 of Constitution of India to set aside the Fair Order and Decreetal Order dated 16.08.2010, passed in M.P.No.114 of 2010 in R.C.O.P.No.1786 of 2009, on the file of the Xth Small Causes Court, Chennai.
For Petitioner : Mr.A.MD.Asghar Ali
For Respondent : Mr.V.Subramanian for
M/s.Mc Gan Law Firm
O R D E R
The petitioner/tenant in R.C.O.P.No.1786 of 2009, on the file of the Xth Small Causes Court, Chennai is the revision petitioner. The respondent/landlord filed the Rent Control original petition for fixation of fair rent and in that petition the revision petitioner filed M.P.No.114 of 2010 for rejecting the R.C.O.P.No.1786 of 2009 and the application was dismissed and as against the same this revision is filed.
2.It is contended by the learned counsel for the revision petitioner that the property is admittedly a wakf property and therefore as per the Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and G.O.Ms.No.2000, Home Department, dated 16.08.2006 all wakf properties are exempted and hence the Rent Controller has no jurisdiction to decide the issue and therefore the petition filed by the respondent ought not to have been rejected by the Court below.
3.On the otherhand, the learned counsel for the respondent submitted that though it has been admitted in the petition that the property is notified by the wakf board, it is also admitted that it is a private wakf property and under section 29 of the Act and as per the G.O.Ms.2000, Home Department, dated 16.08.2006 only the public trusts and public charities are exempted and according to the petitioner, it is a private wakf and therefore the application filed by the petitioner cannot be entertained and the Court has to give a finding on the basis of evidence and once the Court comes to a conclusion that it is the public wakf then the Court can pass the order dismissing the application, otherwise the Court has to decree the petition. Further, he submitted that as per the Judgment reported in 2005-3-L.W.361, V.Natarajan v. Saliyur Mahajana Sangam, the exemption is granted in favour of the landlord and he is entitled to waive the exemption and therefore it cannot be stated that as per the provisions of Section 29 of the Act, as well as G.O.Ms.No.2000, Home Department, dated 16.08.2006, the wakf is exempted and therefore, the petition is not maintainable. Further, he submitted that against the order passed by the Rent Controller only appeal lies under Section 23 of the Act and the revision is not maintainable.
4.In this case, the contention of the revision petitioner is that it is a wakf coming under the purview of the Wakf act and therefore the Rent Control act will not be applied to the wakf.
5.It is the contention of the respondent that it is only private wakf and not a public wakf and if it is proved to be a public wakf, then the Rent Control act will apply. It is seen from the Judgment relied upon by the learned counsel for the respondent that when an exemption under Section 29 of the Act was given in favour of the landlord it is open to the landlord to waive the benefit and file petition under the provision of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But it is also stated that if a particular owner is not willing to avail benefit of exemption, necessary averments must be made in the petition. Admittedly, in this case, no such waiver is pleaded. Therefore, the Judgment relied upon by the respondent is not applicable to this case.
6.Nevertheless, it is the contention of the respondent that it is a private wakf, which is disputed by the revision petitioner. According to me, this fact has to be gone into only in the trial, and cannot be done in the interlocutory application. Further, as rightly contended by the learned counsel for the respondent that against any order passed by the Rent Controller, only appeal lies under Section 23 of the Act and therefore, this Civil Revision petition is dismissed and it is open to the petitioner to raise the issue about the maintainability before the Court below and the Court below is also directed to frame such issue and pass orders in accordance with law while deciding the Rent Control application finally. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
krk To
1.The learned Xth Judge, The Small Causes Court, Chennai