Madras High Court
Meer Hasanullah Shah Ki Durga vs Principal Executive Officer on 19 November, 2021
Author: M.Sundar
Bench: M.Sundar
W.P(MD).No.22172 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.11.2021
CORAM
THE HON'BLE Mr.JUSTICE M.SUNDAR
W.P(MD).No.22172 of 2018
Meer Hasanullah Shah Ki Durga,
Rep. by its Mutawalli,
S.Nazir Basha ... Petitioner
-Vs.-
1. Principal Executive Officer,
Tamil Nadu Wakf Board,
Chennai – 1.
2. Tiruchirappalli Cooperative House
Construction Society,
Makkal Mandram,
Thillai Nagar, Trichy. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus to direct the first respondent to
enquire into the petition dated 19.07.2018 preferred by the petitioner and
retrieve the properties of the petitioner Wakf from the encroachers.
1/13
https://www.mhc.tn.gov.in/judis
W.P(MD).No.22172 of 2018
For Petitioner : Ms.J.Maria Roseline
For Respondents : Mr.D.S.Haroon Rasheed,
Standing Counsel for R1
******
ORDER
Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 17.11.2021 which read as follows:
'Ms.J.Maria Roseline, learned counsel for writ petitioner is before this virtual Court but there is no representation for the first respondent Tamil Nadu Wakf Board.
2. The second respondent remains unserved, but learned counsel for writ petitioner submits that captioned writ petition can be disposed of by giving opportunity to the second respondent as the prayer is only for disposal of representation dated 19.07.2018 regarding certain alleged encroachments in Wakf properties. With the intention of giving opportunity to the first respondent, list this matter on 19.11.2021.
3. This Court is informed that Mr.D.S.Haroon Rasheed, learned Standing Counsel for Tamil Nadu Wakf Board would be representing the first respondent, as the Wakf concerned is 2/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 in Trichy.
4. Registry to show the name of Mr.D.S.Haroon Rasheed in the next listing.
5. List on 19.11.2021.'
2. Today Ms.J.Maria Roseline, learned counsel for writ petitioner, Mr.D.S.Haroon Rasheed, learned Standing Counsel for Tamil Nadu Waqf Board on behalf of first respondent are before me.
3. To be noted, the second respondent will be comprehensively protected in the order I propose to make and therefore, captioned main writ petition is being taken up (with the consent of aforementioned two counsel) and being disposed of.
4. Though in the earlier proceedings, 19.07.2018 writing has been referred to as a representation, a careful perusal of the same as placed before me in the typed set of papers makes it clear that it is effectively a complaint/petition inter alia under Section 54 of 'the Waqf Act, 1995 (43 of 1995)' [hereafter 'said Act' for the sake of convenience and clarity]. A scanned reproduction of the same is as follows: 3/13
https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 4/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 5/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 6/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 7/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 8/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018
5. This takes us to Section 54 of said Act which reads as follows:
'54. Removal of encroachment from [waqf] property.-
(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is [waqf] property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli.
(2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed.
(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is [waqf] property and that there has been an encroachment on any such [waqf] property, [he may, make an application to the Tribunal for grant of order of eviction for removing] such encroachment and deliver possession of the land, building, 9/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 space or other property encroached upon to the mutawalli of the [waqf].
[(4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property:
Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer.
(5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property.]'
6. Learned Standing Counsel for Tamil Nadu Waqf Board, submits that aforementioned Section 54 of said Act is a self contained mechanism for removal of encroachment/s from Waqf property/properties. A perusal 10/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 of Section 54 brings to light that a procedure has been adumbrated therein and the same has to be followed by the Chief Executive Officer of the Tamil Nadu Waqf Board if Section 54 is invoked. To be noted, 'Chief Executive Officer' is defined vide Section 3(d) read with Section 23(1) of said Act.
7. A further perusal of the procedure adumbrated in Section 54 of said Act, more particularly Sub-sections (1) and (2) make it clear that the alleged encroacher has to be put on notice and has to be given opportunity of being heard. Therefore, this is the comprehensive protection to the second respondent as far as disposal of captioned writ petition is concerned which has already been alluded to supra.
8. Ergo, the captioned writ petition is disposed of with a simple directive to the first respondent i.e., The Chief Executive Officer (erroneously described as Principal Executive Officer in the cause title by writ petitioner) to take up writ petitioner's aforementioned 19.07.2018 complaint/petition inter alia under Section 54 of said Act proceed in accordance with Section 54 of said Act, more particularly by putting the 11/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 second respondent on notice and giving opportunity to the second respondent to raise objections and consider the same before making any orders.
9. Above legal drill by the Chief Executive Officer of the Tamil Nadu Waqf Board shall be completed as expeditiously as business of his/her office would permit and in any event within three months from today i.e., by 19.02.2022.
10. Captioned writ petition is disposed of with the above mentioned simple directive. There shall be no order as to costs.
19.11.2021 Speaking order Index: Yes Internet : Yes pkn 12/13 https://www.mhc.tn.gov.in/judis W.P(MD).No.22172 of 2018 M.SUNDAR.J., pkn To The Chief Executive Officer, Tamil Nadu Wakf Board, Chennai – 1.
W.P(MD).No.22172 of 2018
19.11.2021 13/13 https://www.mhc.tn.gov.in/judis