Bombay High Court
Deelip S/O. Ramgopal Chitlange vs Maharashtra State Board Of Wakfs on 5 May, 2014
Author: T.V. Nalawade
Bench: T.V. Nalawade
CRA No. 196/13
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 196 OF 2013
1. Deelip s/o. Ramgopal Chitlange,
Age 46 years, Occu. Business,
R/o. Behind Nirala Bazar,
Samarth Nagar, Aurangabad.
2. Kulbhushan s/o. Ramchandra Agrawal,
Age 59 years, Occu. Business,
R/o. Ramtara Housing Society,
Shanoorwadi, Aurangabad. ....Petitioners.
Versus
1. Maharashtra State Board of Wakfs,
Aurangabad through its
Chief Executive Officer,
Panchakki, Aurangabad.
2. Sayyad Shah Amminuddin s/o.
Sayyad Shah Kutubiddin Inamdar,
Age 54 years, Occu. business,
Mutawalli of the 'Dargah Hazrat
Sayyad Shaha Dawood Gung Lashkar
Magrabi Aulia, Baijipura,
Aurangabad.
3. Sayyad Shah Azizuddin s/o.
Sayyad Shah Kutubuddin Inamdar,
Age 47 years, Occu. business,
Mutawalli of the 'Dargah Hazrat
Sayyad Shaha Dawood Gung Lashkar
Magrabi Aulia, Baijipura,
Aurangabad.
4. Khurramali s/o. Rustan Ali Hashmi,
Age 64 years, Occu. Business,
R/o. Plot No. 7, Shaneen Baugh,
Dilras Colony, Near Aamkhas Maidan,
Aurangabad.
::: Downloaded on - 08/05/2014 23:52:33 :::
CRA No. 196/13
2
5. Shaikh Mohammad Khurram s/o.
Abdul Rashid, Age 48 years,
Occu. Business, R/o. Near Lal
Masjid, Town Hall, Aurangabad. ....Respondents.
Mr. A.S. Bajaj, Advocate for applicants.
Mr. Y.B. Pathan, Advocate for respondent No. 1.
Mr. M.G. Mustafa, Advocate for respondent Nos. 4 and 5.
CORAM : T.V. NALAWADE, J.
DATED : 5th May, 2014.
ORDER :
1. This proceeding is filed under section 83 (9) of Waqf Act, 1995 to challenge the judgment and order of Waqf Tribunal Aurangabad delivered in Waqf Application No. 66/2012. The application filed by present respondent Nos. 4 and 5 under section 83 (2) of Waqf Act, 1995 is allowed by the Tribunal and the transaction of lease made in favour of present revision applicants by the Chief Officer of Waqf Board is declared as being null and void, nonest and it is cancelled. Both the sides are heard.
2. Present respondent Nos. 4 and 5 are the persons interested in waqf, Dargah Hazrat Sayyad Shah Dawood Gung Lashkar Magrabi Aulia, Baijipura, Aurangabad. Property bearing C.T.S. No. 12504 (out of survey No. 33) admeasuring 4593 Sq.
Mtrs. belongs to this institution, a religious institution. The respondent Nos. 4 and 5 perform religious rites and worship at the ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 3 said Dargah and so, they say that they are the persons interested in the waqf.
3. In the proceeding filed before the Waqf Tribunal, they challenged the transaction of lease made by the Chief Officer on 7.12.2011 in favour of present revision applicants. The lease document of the aforesaid property was made for the period of three years. It is the contention of the original applicants that in view of the provisions of section 56 of Waqf Act, the transaction is void. It is contended that the transaction was not made by Board and so, the transaction cannot be recognized in the eyes of law. It is also contended that the transaction is void as it provides for renewal of the lease and the renewal power is given to the lessee and nothing is left in the hands of Board. It is contended that the power is given to lessee to give sub-lease and that is also against the provisions of Waqf Act. It is also contended that the transaction is against the interest of waqf and the transaction has caused heavy loss to waqf. It is contended that the property is situated in the heart of the city and if the opportunity was given to others, the annual income from the property would have been more than Rs. one Crore. It is contended that no prior procedure was followed before giving property to the present lessee.
4. It appears that before Waqf Tribunal, the learned ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 4 counsel for Board did not make submissions either in favour of the lessee or in favour of the original applicants. When this Court asked, the learned counsel made a statement that immediately after the aforesaid decision, notices were issued under section 54 by the Board and Board had started proceeding for taking possession. He submitted that only due to the order of interim relief made by this Court, the matter was not taken further.
5. The Tribunal has held against the present applicants on two counts. First, it is held that the Chief Officer had no power to sanction the lease of such period. Secondly, it is held that the transaction is unconscionable and it is against the interest of the waqf.
6. This Court has carefully gone through the first document of lease created on 15.4.1999. It was signed by the so called Mutawalli, the present applicants and the Secretary of Marathwada Waqf Board. The Secretary signed as consenting party. The subsequent lease, which was challenged before the Tribunal shows that the terms and conditions mentioned in agreement dated 15.4.1999 will remain as they are and there was only change of rent. They are as under :-
"07. THAT lessee can use and enjoy the demised premises for any purpose and use as ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 5 per their wish and desire and lessor and consenting party will not raise any objection for the same on any count.
08. THAT the lessee can make any construction on the demised premises at their own cost, by obtaining necessary permission from Municipal Corporation Aurangabad.
However, if lessees carry out any construction on the demised premises without permission from Municipal Corporation or in contravention of the construction permission, the lessee will be responsible for all the action that may be taken by the Municipal Corporation for unauthorised construction. But lessor and consenting party will co-operate the lessee by all means to obtain the construction permission from Municipal Corporation.
09. THAT lessee can obtain the electric connection, water connection, drainage connection to the demised premises at their own cost in their own name, but the charges of the same will also be paid by the lessee.
10. THAT the lessee also can sub-lease the demised premises or any portion of the same to any third party and lessor will not have any objection for the same, but such sub-lease will be subject to this lease.
::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 611. THAT the lessee or their sub-lessee shall be at liberty to obtain any loan as against the lease hold rights granted in their favour and/or against the buildings constructed thereon and mortgage the same for this purpose and lessor and consenting party have no objection for the same. In spite of this clause, if required by any financial institution, lessor and consenting party will also give further no objection.
12. The lessee shall be responsible to pay all or any Municipal or Government taxes, cess or charges of any other kind imposed on this land and the lessor shall not be liable to pay the same.
13. THAT the lessor have paid all the taxes and charges of the State Government and that of local authority, of the demised premises upto the date of this lease deed and further charges will be paid from the date of this lease deed by the lessee.
14. THAT the lessee will use and occupy the demised premises in such a manner that it will not cause any nuisance or damage to the property under lease.
15. THAT as stated above the period of lease is 3 years, but however, after the expiry of 3 years period, the lessee will have option to ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 7 extend the period of lease after every 3 years on the same terms and conditions and the said option of lessee will be binding upon lessor and consent party.
16. THAT after expiration of the period of lease, lessee will deliver the possession of demised premises to the lessor but the lessor will have to pay the total cost of development of the demised premises and construction standing on the demised premises as per the market value prevailing at that time to the lessee and after such payment only the lessee will vacate the demised premises."
7. The agreement under challenge shows that aforesaid terms and conditions were continued. It appears that present applicants are developers and they have made some construction on the property of waqf. It is contended by the original applicants that the property will fetch income of atleast Rs. one Crore per year. There is no exaggeration at all in this contention. The property is situated on the maid road of the city and even if, it is presumed the value of property around Rs. 1500/- per sq. ft., value will be more than Rs. 6.75 Crores. It can be said that the real value must be much more than that. This property given is in possession of the present applicants with aforesaid terms and conditions and they are expected to pay the annual rent of Rs.
::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 82,14,000/- under the lease. The rent was fixed as Rs. 6000/- per annum in the year 1999. On the date of agreement the amount of Rs. 6000/- was paid only towards rent and some amount was given to consenting party by way of donation by way of cheque as the premium amount. The amount of Rs. 95,000/- out of the amount was given to lessor, Mutawalli. It appears that Mutawalli did not give account of the aforesaid amount to Waqf Board.
There is clear probability that everybody pocketed money under the aforesaid transaction.
8. There is no dispute that the aforesaid property is waqf property. Alienation of waqf property is declared as illegal and that can be seen in the provision of section 51 of Waqf Act, 1995. Even prior to coming into force of this provision, alienation of waqf property was not permissible in view of the nature of the property.
It is permanent dedication to almighty God for religious purpose and Mutawalli or Board cannot alienate the property. There are restrictions imposed even on lease and the period of three years is fixed, beyond which the property cannot be given on lease. The provisions of Waqf Act (pre-2013) show that the renewal of the lease is possible, but it needs to be kept in mind that the transaction should not be of the nature of sale. If there is actually giving of rights as owner and to conceal the real transaction, lease is made, such transaction needs to be treated as void. The ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 9 aforesaid terms and conditions of the lease document show that every right is given to the present applicants to develop the property, to take loan on the property, to mortgage the property and to lease the property. The Tribunal has held that the transaction is in breach of the provisions of Waqf Act and also the Rules. This Court has no hesitation to observe that the transaction is not only in breach of Rules or procedure, but it is void as it amounts to sale. This is because in future, the waqf institution will be required to pay to the lessee the market price of the construction and development for taking back the property which would be virtually impossible for the waqf.
9. The provisions of Waqf Act show that there is the power to the Managing Body and the Board to develop the property. These provisions (section 34 (4) and (5)) show that if the Board wants to develop the property or Mutawalli wants to develop the property, they can develop it, but such development is possible with the prior approval of the Government. The provisions show that in the guise of lease, the property cannot be given to outsider for development. In any case, the aforesaid agreement does not show that the Board or waqf will be benefited due to the development of the property which is being made by the present applicants. Only the lessee and Mutawalli will benefited. The Mutawalli will never show the real amount in the ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 10 transaction and in the account. The Tribunal has also made observations in this regard. The Tribunal has observed that the procedure which needs to be adopted for giving property on lease needs to be followed at every time when there is renewal of lease.
This Court findd force in that observation also as it is the duty of the Board to see that no loss is caused to waqf.
10. The Tribunal has observed that though there was the resolution of Board delegating power to the Chief Officer for making such transactions, such case of delegation cannot be accepted in the present case. The Tribunal has referred the case reported as AIR 1998 AP 61 [M.A. Aziz VS. State Wakf Board]. The Andhra Pradesh High Court has observed that in view of the object behind the creation of Board under the Waqf Act, the Board needs to exercise its powers and it cannot delegate over it's powers forever to the Chief Officer or other officer and sit by itself quite. There is force in this observation and it can be said that the Chief Officer ought to have placed the matter before Board. The Tribunal has made some observations with regard to the manner of making the transactions in favour of the present applicants. There is discussion about the circumstance like the cancellation of initial lease by the State Government, supervisory authority and giving direction to take action even like filing of F.I.R. The learned counsel for the board submitted that no such ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 11 action was taken. Only the resolution of the Board with regard to the delegation of general powers is produced on record and admittedly, with regard to the present property, there was no specific resolution of the Board. In view of discussion already made, such resolution also would not have made difference in the decision.
11. The learned counsel for the original applicant placed reliance on the case reported as (2008) 7 Supreme Court Cases 310 [Mohammadia Cooperative Building Society Limited Vs. Lakshmi Srinivasa Cooperative Building Society Limited and Ors.]. At paragraph No. 75, following observations are made by the Apex Court.
"75. More reprehensive is the conduct of the State as, despite issuance of GOMs No.343 and memo dated 25.10.1986, no action has yet been taken. The State's jurisdiction in the matter is supervisory in nature. The A.P. Wakf Board is a statutory body. It is the duty of the State to oversee its functions. The property belonging to a wakf cannot be permitted to be withered away at the instance of the office- bearers of the Board or those in charge of the wakf. They being the trustees should act like trustees. Why for 22 years, no enquiry was conducted and why no action had been taken pursuant to the said GOMs dated 25.10.1986 is ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 12 a matter of serious concern to all concerned including the general public. Arguments had been advanced before us that the said notification was illegal. We do not and cannot go into the said question. Our jurisdiction in this behalf is limited but the very fact that not only the trial Court but also the Division Bench of the High Court had adverse comments to offer as regards the Government of Andhra Pradesh, A.P. Wakf Board as also the dargah are not matters which should be allowed to be given a decent burial. The Government should have taken the purport of its orders and memos issued by it to their logical conclusion. They failed to do so. We, therefore, are of the opinion that the Government of Andhra Pradesh would be well advised to cause an enquiry to be made into the entire affairs of the Andhra Pradesh Wakf Board and others concerned vis-a-vis the transactions carried out in the matter, albeit after giving an opportunity of hearing to the parties. We expect that the Government of Andhra Pradesh would initiate appropriate proceedings and take such action or actions against all concerned including its own officers as also those of the Board and Dargah as also the allottees in the event they are found guilty."
12. It can be said that in spite of the order made by the State Government in respect of the present matter, no action was ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 13 taken by the Board and on the contrary, the Chief Officer made agreement in favour of the present applicants. Chief Officer signed only on the basis of general resolution made by the Board of delegating power. These things speak volume about influence the present applicants can yield. The learned counsel for the applicants submitted that when the order was made by the Government in the year 2007, the said order was challenged in this Court and by order dated 25.6.2008 interim relief was granted by this Court. The order dated 25.6.2008 shows that the order of interim nature was not to preclude the respondents, Waqf Board from initiating any proceeding in case lease of the term had expired and in that case, there will be different cause of action.
The previous order was made in respect of the action of the Government taken in the year 2007 and before the Tribunal, there was the order of Chief Officer and the agreement of 2011. This Court has no hesitation to observe that if at all the present applicants will suffer due to decision given by the Tribunal, the applicants should blame to themselves as there are the aforesaid provisions of Muslim Law. They can proceed against Mutwalli, but such transaction cannot be recognized in view of the provisions of law and the Tribunal has not committed any error in holding that the transaction is null and void. The instances of grabbing the property of waqf are increasing day by day. The developers are trying to grab the properties by using money and other influences.
::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 14In such cases not only the transaction needs to be set aside, but action also needs to be taken against the concerned as it is playing fraud on the waqf.
13. The submissions made by the learned counsel by which he referred to the order made by the Division Bench of this Court in Writ Petition is misleading. The order made by concerned Government Department is under challenge in the said proceeding. Such orders are made by the Government as supervisory authority under provisions of Waqf Act. The present proceeding involves challenge to judicial decision given by Waqf Tribunal on the dispute. Under the provisions of Waqf Act, the Tribunal can consider not only the challenge made against the order of Waqf Board or the Chief Offier, but it can consider the real grievance contained in the application of the present nature.
The initial order of interim nature made by the Division Bench was not produced. Copy of the order made while continuing the interim relief is produced, which runs as under :-
"Heard.
Rule.
Interim order to continue.
This does not preclude the respondent Wakf Board from initiating any proceeding in case lease of the petitioner has been expired as that would be different cause of action and is ::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 15 not subject matter of this petition.
Civil Application No. 8062/2007 to be heard at the time of final hearing of the petition."
14. The present proceeding contains an incident which throws light on modus operandi of few rich and influential persons who want to grab public property. It also shows as to how these persons are sure about the success of their plans. They use the procedure laid down by law in such a way that they continue the illegal possession for indefinite period. By using the procedure they virtually grab the public property. These properties need to be used for upliftment of poor persons of the community, but the persons like applicants are grabbing the property by joining hands with the persons who can give them possession under false transaction. The illegal possession continues due to interim orders which the court makes. It is high time for Courts to introspect. The Courts need to give serious thought before granting relief of interim nature whenever public property is involved as there is virtually nobody in such cases to protect public interest. When such interim orders are made, few times they mislead the authorities and on many occasions, such orders are used by the concerned for obtaining further orders from authorities and for making more transactions due to which more complications are created in the matter.
::: Downloaded on - 08/05/2014 23:52:33 ::: CRA No. 196/13 1615. No case is made out to interfere in the judgment and order of Tribunal. In the result, Civil Revision Application stands dismissed.
16. The learned counsel for the applicants submitted that he wants to challenge the order of this Court and so he wants stay. The matter of grant of lease is under challenge and it is held that it is void and illegal. In view of circumstances discussed already, there is no question of stay. The said request is rejected.
[ T.V. NALAWADE, J.] ssc/ ::: Downloaded on - 08/05/2014 23:52:33 :::