Rajasthan High Court - Jaipur
Ashok Matai &Anr vs Estate Officer (Waqf )&Ors on 3 December, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.6836/2009 Ashok Matai & Anr.-Petitioners Versus Estate Officer (Waqf) Jaipur & Ors.-Respondents Date of Order::03.12.2013 Hon'ble Ms. Justice Bela M. Trivedi Mr. S.K. Saxena, for petitioners. Mr. Zakir Hussain, for respondent No.1. Mr. M.C. Jain, for respondent No.2. Mr. S.R. Choudhary, for respondent Nos.5 & 6. By the Court:-
1. The present writ petition filed under Articles 226 & 227 of the Constitution of India is directed against the orders dated 11.05.2009 and 15.05.2009 passed by the Estate Officer, Rajasthan Wakf Board, Jaipur (hereinafter referred to as the Estate Officer) in case No.60/2006, whereby the Estate Officer has dismissed the application of the petitioners filed under Order VII Rule 11 of CPC, and also dismissed the application for setting aside the ex-parte proceedings on 11.05.2009.
2. At the outset, it is required to be stated that the petition was placed before this Court in view of the order dated 16.05.2013 passed by the Coordinate Bench, which reads as under:-
Mr. Ashok Matai, who is present in person, noting the queries of the court in course of hearing has stated that he has no faith in this court.
This court ought to have taken notice of the careless and irresponsible statement made by the petitioner without just cause and issued notice for contempt of court. However in view of the fact that this court is already pre-occupied with a huge number of pending cases, to avoid any prolonged digression from the merits of the case in which the petitioner is enjoying an interim order, I deem it fit and proper to mark this case as an Exception.
3. It also appears from the impugned order dated 11.05.2009, that similar allegations were made against the Estate Officer by the petitioners by submitting an application alongwith the application under Order VII Rule 11 of CPC, as the Estate Officer had refused to grant adjournments. The relevant part of the impugned order is reproduced as under:-
....????????? ?? ?????? 9.3.09 ?? ?? ????.???? ???? 7 ???? 11 ?? ????.???? ??? ?? ???????? ?? ????? ?? ?????? ???? ???? ?????? ????? ????.???? ??? ????? ???? 7 ???? 11 ?? ????????? ???? ????????? ?? ?? ?? ????? ??? ?? ??? ???? ?? ? ????? ?????????? ?????? ?????? ????????? ?? ?????? ??? ?????? ???? ?? ??? ??? ??? ???? ????? ?? ?? ?? ???????? ??? ???? ???? ?? ???? ???????? ????? ???? ?????? ???? ??? ????? ?? ???????? ?? ??????? ??????? ?? ????? ?? ??? ???????? ??? ??? ??? ?? ??????? ????????? ???? ???? ???? ?? ?? ??????? ?????? ????????? ?? ?? ????????? ??? ???? ??? ??? ?????? ?? ?? ????????? ???? ???? ???? ?????? ???? ?? ?????? ???????? ??? ?? ?????? ?? ????????? ?????? ???????? ???? ??? ???? ???? ??? ???? ???????? ?????? ??? 26 ?? ??????? ?? ???????? ????? ??? ?? ??|
4. From the observations made by the Estate Officer in the impugned order as well as the observations made by this Court in the order dated 16.05.2013, this Court is of the opinion that the present petition of the petitioner who himself is an Advocate deserves to be dismissed on that ground alone. However, without stretching the issue any further, the writ petition is also decided on merits.
5. It appears that the respondent No.2, the original-applicant has filed the application under the provisions contained in the Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964 (hereinafter referred to as the said Act) seeking possession of the disputed premises from the petitioners as well as the respondent Nos.3 to 6. It has been alleged interalia that the disputed premises was Wakf-alal-aulad registered under the Wakfs Act, and the respondent No.2-applicant was the Muttaawlli (Manager) of the said disputed premises. In the said proceedings, the present petitioners had filed the application under Order VII Rule 11 of CPC stating interalia that the said application filed by the respondent was barred under the provisions contained in the Wakf Act, 1995. The said application filed by the petitioners has been dismissed by the Estate Officer vide the impugned order dated 11.05.2009. The Estate Officer had also recorded that the petitioners being not ready for the arguments, the proceedings would be heard ex-parte. It appears that the petitioners had again filed an application for setting aside the said ex-parte proceedings, however the said application has also been dismissed by the Estate Officer vide the impugned order dated 15.05.2009.
6. It has been sought to be submitted by the learned counsel Mr. S.K. Saxena, for the petitioners that the application filed by the respondent No.2-applicant under the said Act was not maintainable, as he was not the Muttawalli and the property in question was not the Wakf-alal-aulad as contemplated under Section 3 (r) (iii). Even otherwise, according to him, the Wakf was not registered in consonance of the provisions of the Wakfs Act, and therefore, the legal proceedings in respect of such Wakf could not be continued in view of Section 87 of the said Wakf Act. He also submitted that earlier the proceedings were filed by the Wakif under the provisions contained in the Rent Act and hence also the present proceedings under the said Act were not tenable. He has relied upon the decision of Supreme Court in case of Cantonment board and Anr. v. Church of North India, AIR 2011 Supreme Court 2339, and other decisions of the Apex Court. He also submitted that no cause of action had arisen to file the proceedings, and therefore, also the application of the respondent No.2 under the said Act was liable to be dismissed as per Order VII Rule 11 of CPC.
7. However, the learned counsel Mr. M.C. Jain, for the respondent No.2 has submitted that the application of the petitioners under Order VII Rule 11 itself was not maintainable, inasmuch as the property being Wakf property, registered under the Wakf Act, it was a public premises as defined under Section 2 (b) (viii) of the said Act, and the proceedings under the said Act being of summary nature, the provisions of CPC, except specified under the Act, are not applicable.
8. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the Estate Officer as well as the averments made in the plaint, it appears that the respondent No.2 has filed the application seeking eviction against the present petitioners and the respondent Nos.3 to 6 on the ground that they were unauthorized occupants of the disputed property which was Wakf-alal-aulad, duly registered under the Wakf Act, 1995 and that the respondent No.2 was the Muttawalli appointed under the said Act. At this juncture, it is required to be noted that as per the definition of public premises contained in Section 2 (b) (viii), public premises means, any premise belonging to, or taken on lease or requisitioned by or on behalf of the State Government and includes a Wakf defined in the Wakf Act 1954, and entered in the registration of Wakfs maintained under Section 26 of the said Act. Now as per the definition of Wakf contained in Section 3 (r) (iii) of the Wakf Act 1954 ( now Wakf Act 1995), the Wakf means,...........and includes Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious and charitable. Hence from the said definition contained in the said Act, as well as in the Wakf Act, and from the averments made in the plaint, it clearly transpires that the disputed property is Wakf as defined under the Wakf Act, and therefore a public premises as defined under the said Act.
9. So far as Section 87 of the Wakf Act, which has been sought to be pressed into service by the learned counsel for the petitioners is concerned, it may be noted that the said provision would apply to the enforcement of rights on behalf of the Wakf which has not been registered in consonance with the provisions of the Wakf Act. In the instant case, the respondent No.2 in the very first paragraph of the application filed by him i.e. the plaint stated that the disputed property is Wakf, registered under the Wakf Act. The learned counsel for the petitioners has failed to point out as to how the provisions contained in Section 87 would be attracted to the duly registered Wakf under the Wakf Act. As such, there is nothing on record to suggest that the disputed premises is not the Wakf or it has not been registered in consonance of the Wakf Act.
10. There cannot be any disagreement with the decision of the Apex Court relied upon by the learned counsel for the petitioners, in which it has been observed that the objection to the jurisdiction goes to the root of the matter and should be raised at the earliest point of time. However, in the instant case, the petitioners had invoked the provisions of Order VII Rule 11 (d) contending interalia that the suit i.e. the application filed by the respondent No.2 under the provision contained in the said Act was barred under the provisions contained in the Wakf Act. As stated hereinabove, the learned counsel for the petitioners has failed to point out from the statements of the said application/plaint that it was barred under the Wakf Act or under any other law. As such in the opinion of the Court even the provisions of Order VII Rule 11 would not be applicable to the proceedings under the said Act, which are of summary nature, however without going into the said issue, suffices it to say that the Estate Officer has rightly dismissed the application of the petitioners filed under Order VII Rule 11 of CPC. It is not disputed that now the matter is kept for the evidence of the petitioners in the proceedings before the Estate Officer, and therefore, the order dated 15.05.2009 has no effect.
11. In that view of the matter, the present petition being devoid of merits is dismissed.
(Bela M. Trivedi) J.
R.Vaishnav
29. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Ramesh Vaishnav Jr.P.A