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Punjab-Haryana High Court

Punjab Wakf Board vs Sneh Lata And Anr on 27 February, 2023

Author: Alka Sarin

Bench: Alka Sarin

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                            256-9                                       CR No.2395 of 2018
                                                                        Date of Decision: 27.02.2023

                            Punjab Wakf Board                                               ....Petitioner

                                                             VERSUS

                            Sneh Lata and Another                                        ....Respondents

                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                            Present :   Mr. G.S. Bhatia, Advocate for the petitioner.

                                        Mr. Satinder Khanna, Advocate for the respondents.

                            ALKA SARIN, J. (Oral)

The present revision petition has been filed challenging the order dated 01.09.2017 passed by the Tribunal (constituted under Section 83 of the Wakf Act, 1995), Kapurthala.

The plaintiff-respondents filed a suit for permanent injunction and mandatory injunction for restraining the defendant-petitioner from interfering in the peaceful possession of the plaintiff-respondent over two premises measuring 44.4 sq. yards each as fully described in the plaint. It was averred in the plaint that the plaintiff-respondents were inducted as lessee in the suit property by executing a lease deeds/lease orders dated 24.05.2007 and 21.04.2007. It was further averred that the plaintiff- respondents were inducted @ Rs.600/- and @ Rs.600/- per month and since 01.03.2007 they are in continuous possession of the suit property. It was the stand taken that the plaintiff-respondents have been regularly paying the lease money to the defendant-petitioner but the defendant-petitioner has not accepted the lease money after the end of last year. It was averred that though there is a specific bar created vide the Wakf (Amendment) Act, 2013 for leasing out the property without the permission of the Board, however, JITENDER KUMAR 2023.03.02 17:04 I attest to the accuracy and integrity of this order/judgment.

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proviso to Section 51 of the Wakf Act carves out an exception, which reads as under :

"Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013."

The suit was contested by the defendant-petitioner on the ground that after the amendment of the Wakf Act, 1995 vide the Wakf (Amendment) Act, 2013, the lease deeds have to be executed strictly as per the provisions of the amended Act and the Rules thereunder and as per Rule 18(1), no lease agreement shall contain a clause providing for automatic renewal. The relationship of landlord and tenant was admitted. It was further pleaded that after the expiry of the lease the status of the plaintiff- respondents is that of encroacher. Replication was filed reiterating the averments made in the plaint and controverting those made in the written statement.

On the basis of pleadings, the following issues were framed:

1. Whether plaintiff is in possession of suit property as alleged ?

2. If issue no.1 is proved, whether the nature of the said possession of the plaintiff becomes as an encroacher as stated by the defendant in their JITENDER KUMAR 2023.03.02 17:04 written statement ? OPD I attest to the accuracy and integrity of this order/judgment. Chandigarh CR No.2395 of 2018 -3-

3. Whether plaintiff is entitled to relief of permanent injunction as prayed for ? OPP

4. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP

5. Whether suit is not maintainable in the present form ? OPD

6. Whether suit is bad for non-service of notice under section 89 of Wakf Act, 1995 ? OPD

7. Whether plaintiff has not come to the court with clean hands and suppressed true and material facts from the Court, if so, its affect ? OPD

8. Relief.

Vide judgment dated 01.09.2017 the suit was decreed. Aggrieved by the same, the present revision petition has been filed by the defendant-petitioner.

Learned counsel for the defendant-petitioner would contend that the lease deed had no automatic renewal clause as is apparent from a perusal of the lease order. It is further the contention that after the coming into force of the Wakf (Amendment) Act, 2013 there could be no leasing out of the property without the prior permission of the Board and that the status of the plaintiff-respondents was that of an encroacher. Learned counsel for the defendant-petitioner would further contend that the only ground on which the suit has been decreed is that it was not shown to the Court as to whether the Wakf (Amendment) Act, 2013 was retrospective or prospective JITENDER KUMAR 2023.03.02 17:04 I attest to the accuracy and integrity of this order/judgment.

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in nature. It is submitted that no finding qua the applicability of the Wakf (Amendment) Act, 2013 was warranted in a simpliciter suit for injunction.

Per contra learned counsel for the plaintiff-respondents has contended that the Wakf (Amendment) Act, 2013 is not retrospective in nature and hence would not apply to the lease deed in favour of the plaintiff- respondents. It is submitted that since the plaintiff-respondents are a lessee the defendant-petitioner cannot forcibly evict them from the suit property.

Heard.

In the present case admittedly the plaintiff-respondents were inducted as a lessee in the suit property and are in possession thereof. The Wakf Board would always have the right to eject the plaintiff-respondents in accordance with law. Even though the plaintiff-respondents may be a tenant holding over but they cannot be ejected by force and due procedure would have to be followed. It is trite that no injunction can be granted in favour of a tenant for restraining the landlord from evicting the tenant. However, at the same time, a tenant cannot be dispossessed except in due course of law as applicable.

In the present case, the plaintiff-respondents having been found to being in possession of the suit property, the core issue of granting protection to the plaintiff-respondents can be decided without going into the question as to whether the provisions of the Wakf (Amendment) Act, 2013 would be applicable or not. The Tribunal has on an appreciation of the evidence on the record passed the impugned order in favour of the plaintiff- respondents. No illegality or irregularity in the final relief granted is made JITENDER KUMAR 2023.03.02 17:04 out.

integrity of this order/judgment.

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However, keeping in view the discussion by the Tribunal on the applicability or inapplicability of the Wakf (Amendment) Act, 2013, the instant revision petition is disposed off with a direction that the plaintiff- respondents, who are in possession of the suit property under the Wakf Board, would not be evicted therefrom except in due course of law. The discussion in the impugned order regarding the applicability or inapplicability of the provisions of the Wakf (Amendment) Act, 2013 is held to be obiter dicta and the question is left open to be determined in appropriate proceedings.

Disposed off. Pending applications, if any, also stand disposed off.

( ALKA SARIN ) 27.02.2023 JUDGE jk NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO JITENDER KUMAR 2023.03.02 17:04 I attest to the accuracy and integrity of this order/judgment.