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Madhya Pradesh High Court · body

2009 DIGILAW 110 (MP)

ASIF ANSARI v. WAKF MAHAL UMRAO JEHAN

2009-01-22

K.K.LAHOTI, SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) ALL the aforesaid petitions are filed, challenging the order of Chief executive Officer, M. P. Wakf Board, Bhopal dated 26-4-2008 by which an application filed by petitioner (non-applicant before the Chief Executive officer) under Order 14 Rule 1 read with Section 151 of the Code of Civil procedure, 1908, dated 9-1-2008 was rejected. ( 2. ) THE authority found that under Section 54 of the Wakf Act, 1995 (hereinafter referred to as act for short) it was not necessary for him to frame the issues to decide the disputes between the parties. Section 54 does not make applicable the procedure envisaged in the Code of Civil Procedure, 1908 (hereinafter referred to as cpc for short ). The Chief Executive Officer is also not a Civil Court and the proceedings under Section 54 of the Act are not under the CPC. Section 54 (3) provides a limited enquiry in respect of encroachment on Wakf property and after issuing a notice to the encroaches, the Chief executive Officer is empowered to remove the encroachment, recording aforesaid findings the application filed by the petitioner was rejected. As in all the aforesaid cases, same applications with similar allegations were decided, so all these petitions are being decided by this common order and for the convenience facts are taken from W. P. No. 5939/2008 (Asif Ansari Vs. Wakf Mahal Umrao Jehan and others ). ( 3. ) LEARNED Counsel for petitioner challenged the aforesaid order on following grounds:- (1) That to decide the dispute between the parties it was necessary for the Chief Executive Officer to frame the issues in the case. On framing issues, parties would know the real controversy and substantial points of dispute and would be able to produce evidence in this regard. So it was necessary for respondent No. 2 to frame the issues in the case. (2) Reliance was placed to the Apex Court judgment in J. K Iron and steel Co. Ltd. Vs. The Iron and Steel Mazdoor Union, Kanpur, AIR 1956 SC 231 and Banke Ram Vs. Smt. Sarasti Devi, AIR 1977 punjab and Haryana 158, and submitted that this petition be allowed and the impugned order be quashed. ( 4. (2) Reliance was placed to the Apex Court judgment in J. K Iron and steel Co. Ltd. Vs. The Iron and Steel Mazdoor Union, Kanpur, AIR 1956 SC 231 and Banke Ram Vs. Smt. Sarasti Devi, AIR 1977 punjab and Haryana 158, and submitted that this petition be allowed and the impugned order be quashed. ( 4. ) LEARNED Counsel for respondents opposed the aforesaid contention and submitted that the proceedings were of administrative nature and not judicial proceedings and it was not at all required by the Chief Executive officer to frame issues, to decide the factum of encroachment. The Chief executive Officer has rightly rejected the application in which no interference is needed. ( 5. ) TO appreciate the rival contention of the parties factual position may be stated. The Chief Executive Officer, M. P. Wakf Board, Bhopal issued a show-cause notice to the petitioner under Section 54 of the Act in respect of an encroachment of petitioner on Wakf property of which details were given in notice (Annexure P-l) and petitioner was asked to appear in the office of Chief executive Officer. The petitioner filed reply of show-cause notice in which the petitioner denied that he was an encroaches. Thereafter the Chief Executive officer respondent No. 2 proceeded to enquire into the matter. In the said enquiry petitioner moved an application under Order 14 Rule 1, CPC, for framing of issues which has been decided by the impugned order. The Act provides removal of encroachment from Wakf property. For ready reference Section 54 reads thus:- "54, Removal of encroachment from Wakf 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 Wakf 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. (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 Wakf property and that there has been an encroachment on any such Wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the Wakf. (4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property: provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf. " The aforesaid provision specifically provides that the Chief Executive officer on receiving a complaint or on his own motion in respect of encroachment of any property of Wakf registered under the Act, shall initiate the proceedings after serving notice on the encroacher as mentioned in Section 54 and after extending an opportunity of hearing to the encroacher, require him to remove the encroachment before the specified date. The aforesaid procedure is purely executive in nature because sub-section (4) provides a remedy to the aggrieved party for filing a suit before the M. P. Wakf Tribunal to establish his right title or interest in the properly. Section 55 of the Act makes a provision for enforcement of order under Section 54. The legislation has also framed M. P. Wakf Rules, 2000 (hereinafter referred as rules of 2000 for short) providing procedure for the proceedings under Section 54 of the Act. Rule 15 of the Rules of 2000 provides procedure for initiating proceedings under Section 54 of the act, which reads as under:- "15. The legislation has also framed M. P. Wakf Rules, 2000 (hereinafter referred as rules of 2000 for short) providing procedure for the proceedings under Section 54 of the Act. Rule 15 of the Rules of 2000 provides procedure for initiating proceedings under Section 54 of the act, which reads as under:- "15. Manner of Inquiry to be held by Chief Executive Officer.-The inquiry under sub-section (3) of Section 54 shall held by the chief Executive Officer in the following manner:- (a) The Chief Executive Officer after serving the show-cause notice to the person concerned shall call for written statement duly supported by any documentary proof. If necessary the Chief Executive Officer shall record the oral evidence tendered by the contending parties. The Chief executive Officer shall also receive such documentary evidence as may be produced in the course of Inquiry; (b) The Chief Executive Officer shall prepare a case file containing following particulars :- (i) minute of proceedings; (ii) report or information on which the proceeding has been started; (iii) show-cause notice and its reply; (iv) evidence (oral and documentary) received at the enquiry; (v) order. " The aforesaid provision provides a complete procedure for enquiry to be held by the Chief Executive Officer under sub-section (3) of Section 54 of the act. The aforesaid rule does not provide for framing of any issue or for conducting any full-fledged enquiry, though he is under an obligation to receive documentary and oral evidence in the enquiry. ( 6. ) THE order passed by the Chief Executive Officer under Section 54 can be challenged by an aggrieved party by filing a suit in a Tribunal to establish about his right title or interest in the property. Section 6-A as amended by the Wakf (Madhya Pradesh amendment) Act, 1994 empowers Tribunal to determine dispute regarding wakfs. ( 6. ) THE order passed by the Chief Executive Officer under Section 54 can be challenged by an aggrieved party by filing a suit in a Tribunal to establish about his right title or interest in the property. Section 6-A as amended by the Wakf (Madhya Pradesh amendment) Act, 1994 empowers Tribunal to determine dispute regarding wakfs. For ready reference Section 6-A may be quoted which reads as under :- "6-A. Power of Tribunal to determine dispute regarding Wakfs.- (1) If after the commencement of the Wakf (Madhya Pradesh amendment) Act, 1994 any question arises whether a particular property specified as Wakf property in a list of Wakfs published under sub-section (2) of Section 5 is Wakf property or not, or whether a Wakf specified in such list is a Shia Wakf or a Sunni Wakf, the Board or the mutawalli of the Wakf, or any person interested therein may apply to the Tribunal having jurisdiction in relation to such property for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: provided that- (a) In the case of the lis of Wakfs relating to any area of the state and published or purporting to have been published after the commencement of the Wakf (Madhya Pradesh amendment) Act, 1994, no such application shall be entertained after the expiry of one year from the date of publication of the list of Wakfs under sub-section (2) of section 5; and (b) In the case of the list of Wakfs relating to any part of the state and published or purporting to have been published at any time within a period of one year immediately preceding the commencement of Wakf (Madhya Pradesh amendment) Act, 1994 such an application may be entertained by the Tribunal within the period of one year from such commencement: provided further that where any such question has been heard and finally decided by a Civil Court in a suit instituted before such commencement, the Tribunal shall not reopen such question. (2) The Wakf Commissioner shall not be made a party to any application under sub-section (1 ). (3) The list of Wakfs published under sub-section (2) of Section 5 and where any such list is modified in pursuance of a decision of the tribunal under sub-section (1) the list as so modified, shall be final. (2) The Wakf Commissioner shall not be made a party to any application under sub-section (1 ). (3) The list of Wakfs published under sub-section (2) of Section 5 and where any such list is modified in pursuance of a decision of the tribunal under sub-section (1) the list as so modified, shall be final. " Rule 35 of the Rules of 2000 provides procedure and power of the tribunal and Rule 36 provides framing and determination of issues. For ready reference Rules 35 and 36 may be referred, which reads thus :- "35. Procedure and power of the Tribunal.- The Tribunal shall have the same power for the purpose of discharging its functions, under the Act as are vested to Civil Court under the Code of Civil procedure, 1908 while trying a suit, in respect of the following matters, namely:- (a) Summoning and enforcing the attendance of any person and examining him on oath; (b) Requiring the discovery and production of documents; (c) Taking evidence; (d) Subject to the provisions of Sections 123 and 124 of the indian Evidence Act, 1872, requisitioning of public record or documents or copy of such record or document from any office; (e) Issuing Commission for the examination of witnesses or documents; (f) Dismissing an application for default or ex parte; (g) Setting aside any order of dismissal of any application for default or any ex parte order; (h) Disposing of application for restraining any party for breach of contract or doing any alleged or unauthorised act; (i) Exercising inherent power in order to prevent the abuse of process of Court. 36. Framing and determination of issues.- (1) After considering the reply, the Tribunal shall ascertain upon what material proposition of fact or of law the parties are at variance and shall thereupon proceed to form and record the issue on which the decision of the case depends. (2) In recording the issue, the Tribunal shall distinguish between the issue of facts and law.-- (3) After framing the issues, the Tribunal shall proceed to record oral evidence of the parties. " Rule 36 specifically provides that after considering the reply the Tribunal shall ascertain all the material proposition of fact or of law, the parties are at variance and shall thereupon proceed to form and record the issue on which the decision of the case depends. " Rule 36 specifically provides that after considering the reply the Tribunal shall ascertain all the material proposition of fact or of law, the parties are at variance and shall thereupon proceed to form and record the issue on which the decision of the case depends. Rule 36 (2) and (3) further provides that in recording issue the Tribunal shall distinguish between the issues of facts and law and after framing the issues the Tribunal shall proceed to record oral evidence of the parties. ( 7. ) THE legislation in its wisdom has provided a summary procedure before the Chief Executive Officer under Rule 15 of the Rules of 2000, while a full-Hedged enquiry has been provided before the Tribunal to decide the dispute between the parties. The proceedings before the Tribunal are akin to civil suit and while considering the controversy in the suit, the Tribunal is under an obligation, under Rule 36, to frame and determine all the issues. Section 83 of the Act provides constitution of Tribunals for determination of any disputed question or other matter relating to a Wakf or Wakf property under the Wakf act, so for all the purposes Wakf Tribunal is Civil Court and has been vested with the power of Civil Court under sub-section (5) of Section 83 of the Act. In view of specific procedure provided under the Rules, the Chief Executive officer while holding an enquiry under Section 54 of the Act was not under an obligation to frame the issue. Apart from this the scope of enquiry under Section 54 of the Act is limited one and Chief Executive Officer was to determine only encroachment on Wakf property. He was not required to decide the right, title and interest in the property, but the scope of enquiry was limited as envisaged under Section 54 of the Act to remove the encroachment on the Wakf property. In view of specific provision under the Act and Rules, if the Chief Executive officer had not framed the issues to decide the dispute before him, no fault is found. ( 8. ) IN J. K. Iron and Steel Co. (supra), the Apex Court was considering an adjudication by the Tribunal constituted under the Industrial Disputes Act, while in this case the matter was before the Chief Executive Officer and not before the Tribunal, so the judgment in J. K. Iron and Steel Co. ( 8. ) IN J. K. Iron and Steel Co. (supra), the Apex Court was considering an adjudication by the Tribunal constituted under the Industrial Disputes Act, while in this case the matter was before the Chief Executive Officer and not before the Tribunal, so the judgment in J. K. Iron and Steel Co. (supra), is not applicable in the present case. In Banke Ram (supra), the Full Bench of Punjab and Haryana High court was considering the procedure applicable for eviction before the Tribunal constituted under the East Punjab Urban Rent Restriction Act, 1949, while the factual position in the present case is entirely different. The matter was not before the Tribunal, but before the Chief Executive Officer under Section 54 of the Act. ( 9. ) IN view of the aforesaid legal position, if the Chief Executive officer had not framed the issues at the request of petitioner, no fault is found. All the petitions are found without merit and accordingly dismissed with no order as to costs.