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2011 DIGILAW 1351 (PAT)

Gopal Sah v. Bihar Wakf Tribunal

2011-07-07

AKHILESH CHANDRA, T.MEENA KUMARI

body2011
ORDER : Both the counsels have agreed that the matter can be heard and disposed of at the stage of admission. 2. The matter has been listed before us on reference made by learned Single Judge on 16.05.2011 on the ground that the ORDER :passed in C.W.J.C. No.3329 of 2005 by a co-ordinate Bench is stated to have attained finality and has not been questioned by the petitioners. 3. Learned counsel appearing on behalf of the petitioners has contended that it is an admitted fact that on earlier occasion the petitioners have approached this Court by filing C.W.J.C. No. 3329 of 2005 which has been dismissed by the learned Single judge of this Court on 28.02.2006 holding that this court cannot protect the interest of the petitioners as alleged tenant of the property. Subsequently when notice has been issued to remove the encroachments on 12.07.2006 purported to be issued under section 54 of the Act, the same has been questioned before this Court by filing a writ petition being C.W.J.C. No. 4258 of 2006 which was disposed of on 20.02.2007, wherein a reference has been made with regard to the ORDER :passed by this Court in C.W.J.C. No. 3329 of 2005 dated 28.02.2006. It has also been contended that the learned Single Judge has held in C.W.J.C. No.4258 of 2006 that dismissal of C.W.J.C. No. 3329 of 2005 does not mean that the proceedings got concluded by the ORDER :of this court. Accordingly, the learned Single Judge was pleased to remand the matter to the Waqf Board with a direction to pass a final ORDER :as enjoined upon it to do under section 54 of the Act and then proceed in accordance with law. It has also been contended that the matter has been taken up by the Chief Executive Officer of the Waqf Board and passed ORDER :on 23.08.2007 (Annexure 18 to the writ petition) to the effect that the petitioners are encroachers of the Wakf Board property and directed the petitioners to remove the illegal possession of the encroached property and deliver the possession to the Secretary of Managing Committee of Anjuman Islamia Wakf Estate No.-344, Katihar within ten days of the notice of the Board. Accordingly, the matter was carried to the Bihar Wakf Tribunal, Patna in T.S. No. 36 of 2009 which was disposed of on 20.12.2010 upholding the ORDER :of the Chief Executive Officer while disposing of the suit. The same has been questioned in the present writ petition. 4. Learned counsel for the appellant has contended that in view of the observation made by learned Single Judge disposing of C.W.J.C. No.4258 of 2006 (Annexure-13 to the present writ petition) holding that as the earlier ORDER :of this Court did not conclude the proceedings it would entitle the petitioner to come to this Court agitating the ORDER :s passed by Chief Executive Officer and the Bihar Wakf Tribunal, Patna in accordance with law as the same are not in consonance with the provisions of sections 53 and 54 of the Waqf Act, 1995. But the learned counsel for the appellant has submitted that in view of reference made by the learned Single Judge the matter has to be decided by the Division Bench of this Court. Accordingly, this matter is being heard by this Court. 5. The learned counsel appearing on behalf the respondent has contended that as the shops which are under the possession of both the petitioners are causing hindrance in the pathways of the Waqf, they were asked to vacate the premises and as a matter of fact they have no right whatsoever to continue in the premises of Wakf as the Board disbelieved their cases that they are tenant of the Wakf Board. 6. We had the occasion to go through the earlier ORDER :passed by this Court in C.W.J.C. No. 3329 of 2005 dated 28.02.2006 following the ORDER :of this Court passed in C.W.J.C. No.4285 of 2006 dated 20.02.2007 and the ORDER :passed by the Chief Executive Officer (Annexure-18 to the writ petition) followed by ORDER :dated 20.12.2010 passed in Suit No.36 of 2009 (Annexure-21) from which it appears that it is an admitted fact that on earlier occasion the learned Single Judge dismissing the writ petition filed by the petitioner held that interest of the petitioners cannot be protected. However, at the time when the ORDER :was passed by Chief Executive Officer on 12.07.2006 the ORDER :itself per-se reveals that there was no enquiry conducted by any of the authorities to come to the conclusion whether they are encroachers or the tenants and the same was followed by a notice dated 12.04.2007 which has become the subject matter of C.W.J.C. No.4258 of 2006. In the aforesaid writ petition, the observation made by learned single Judge is abstracted herein below:-“This does not, however, in the opinion of this Court, mean that the proceedings got concluded by this ORDER :of the court. With the above observation the learned Single Judge further directed that the matter be adjudicated upon under section 54 of the Act by the Wakf Board. Section 55 is nothing but an execution of the ORDER :passed in terms of section 54 of the Act”. From a perusal of section 54 of the Wakf Board Act, which deals with the removal of encroachment of Wakf property makes it very clear that Sub-section (3) of section 54 makes it obligatory on the part of the Chief Executive Officer to conduct an enquiry in such manner as has been prescribed under the statues. 7. A perusal of Annexure-18 would indicate that the Chief Executive Officer has observed as follows:- “considered the show-cause filed by the parties as well as the decisions in the aforesaid two writ petitions and hold that the petitioner, namely, Gopal Sah and Md. Shamsuddin are not the tenant under Anjuman Islamia Wakf estate No. 344, Katihar and they are encroachers of the Wakf property so they are directed to remove the encroachment and deliver possession of the land, building, space as encroached upon to the Mutawalli/Secretary of Managing Committee of Anjuman Islamia Wakf estate NO.344, Katihar”. 8. The above observation of the Chief Executive Officer would indicate that the concerned officer has not conducted an enquiry purported to be done under Section 54 of the Wakf Board Act, and has simply took a decision that the petitioners are not tenant and they are encroachers of the Wakf and directed to issue notice to the petitioners under Section 54 (3) of the Wakf Act, 1995 read with rule 46 of Wakf Rules 2002 to deliver the possession within ten days. Following the same the notices have been issued on 24.08.2007 (Annexure-18, 18/1 and 18/2 which was subject matter of C.W.J.C. No.11220 of 2007. But however, as the Tribunal has been constituted the matter was referred to Tribunal which decided the matter in T.S. No.36 of 2009 dated 20.12.2010 affirming the ORDER :passed by the Chief Executive Officer. 9. We are of the opinion that the Chief Executive Officer who is the primary authority to consider the matter initially has not considered the matter in a way it has to be decided in accordance with Section 54 of the Act. 10. Under the above circumstances, we are of the opinion that the ORDER :s passed by both the authorities have to be set aside. Accordingly, they are set aside and the matter is remanded back to the Chief Executive Officer i.e. respondent no.4 to reconsider the matter afresh in accordance with law by conducting appropriate enquiry as purported under Sub- Section (3) of Section 54 of the Wakf Board Act as early as possible preferably within a period of six months.