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2013 DIGILAW 665 (HP)

Himachal Pradesh Wakf Board v. Brij Bala

2013-07-16

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, Judge (Oral). This petition under Article 227 of the Constitution of India is directed against the order dated 25.10.2007 passed by learned Wakf Tribunal, Kangra at Dharamshala (for short ‘Tribunal’) in Civil Suit No.2-D of 2003. 2. The facts, in brief, are that petitioner has filed a petition under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 (for short ‘1987 Act’) for eviction of respondents from Shop No.173/6, more specifically described in the petition. The petition was filed before Tribunal. The pleaded case of the petitioner is that petitioner is a landlord of the disputed shop which was rented out to respondent No.1 on 01 .03.1991 at `80/- per month. The respondent No.1 was in arrears of rent with effect from 01 .03.1999 to 28.02.2001. The respondent No.1 is liable to pay enhanced rent at the rate of 10% after every five years in accordance with 1987 Act. The total arrears of rent comes to ‘4,246/-. On the arrears of rent, the respondent No.1 is liable to pay interest at the rate of 9% per annum. The respondent No.1 has changed the user of the shop. The disputed shop was in dilapidated condition and was unfit and unsafe for human habitation. The shop requires reconstruction which cannot be carried out unless it is vacated. The respondent No.1 has sub­let the shop in favour of respondents 2 and 3 without the written consent of petitioner. The respondents 2 and 3 are committing nuisance to the occupiers of the adjoining buildings/shops and ‘Masjid’ in the neighbourhood. The respondent No.1 has materially impaired the value and utility of the shop. The petitioner has terminated the tenancy of respondent No.1 by issuing 15 days notice, but despite that respondent No.1 has refused to vacate the disputed shop. The petitioner has prayed eviction of the respondents from the disputed shop. 3. The respondent No.1 has contested the petition by filing reply. The preliminary objections of estoppel, jurisdiction were taken. On merits, the relationship of landlord and tenant was not disputed, but respondent No.1 contested the claim of petitioner for her eviction from the shop. It has been pleaded that respondent No.1 had taken on lease vacant land in the form of ‘Khola’. The shop was constructed by respondent No.1 and thereafter she rented out the shop in favour of respondents 2 and 3. It has been pleaded that respondent No.1 had taken on lease vacant land in the form of ‘Khola’. The shop was constructed by respondent No.1 and thereafter she rented out the shop in favour of respondents 2 and 3. The respondent No.1 denied default in payment of rent. It has been pleaded that fault lies with the petitioner, who returned the cheque, but respondent No.1 is still ready and willing to pay the rent. The remaining grounds of eviction were denied by respondent No.1. 4.The respondents 2 and 3 filed joint reply. They took preliminary objections of jurisdiction and cause of action. On merits, they took more or less the same grounds as taken by respondent No.1 in her reply. The petitioner filed rejoinder and re-asserted the averments taken by it in the petition. 5.On the pleadings of the parties, the Tribunal framed following issues:- 1. Whether respondent No.1 is in arrears of rent from 01 .03.1999 to 31.12.1999 of the demised premises, as alleged? OPP. 2. Whether respondent No.1 has changed user of the rented premises, without written consent of the petitioner, as alleged? OPP. 3. Whether the premises in question are old and in dilapidated condition, unsafe and unfit for human habitation, as alleged? OPP. 4. Whether the demises premises require reconstruction which is not possible without the premises being vacated? OPP. 5. Whether respondent No.1 has sub-let the premises to respondents 2 & 3 without consent of the petitioner? OPR. 6.Whether respondent Nos 2 and 3 are causing nuisance to the neighbours by use of building, as alleged? OPP. 7. Whether respondent No.1 has impaired the value and utility of the premises? OPP. 8. Whether the petitioner has no locus standi to sue? OPR 2 and 3. 9. Whether the petitioner is estopped by act and conduct to sue? OPP. 10. Whether this Tribunal has no jurisdiction to try the petition? OPR. 11 Relief.Issue No.1 was partly answered in affirmative, whereas, issues No.2 to 9 were answered in negative. In answer to issue No.10, the Tribunal has held that Tribunal has no jurisdiction to try the petition and dismissed the petition on 25.10.2007, hence present petition. 6. I have heard the learned counsel for the parties. The learned counsel for the parties have argued on the question of jurisdiction of the Tribunal in deciding the petition. In answer to issue No.10, the Tribunal has held that Tribunal has no jurisdiction to try the petition and dismissed the petition on 25.10.2007, hence present petition. 6. I have heard the learned counsel for the parties. The learned counsel for the parties have argued on the question of jurisdiction of the Tribunal in deciding the petition. The learned counsel for the parties have submitted that it is a pure question of law and for adjudicating this question record of the Tribunal is not required. The learned counsel for the parties for purposes of pleadings have relied upon the impugned order. 7.The learned counsel for the petitioner has submitted that Tribunal has erred in returning finding on issue No.10 and holding that Tribunal has no jurisdiction to decide the petition under Section 14 of 1987 Act. He has submitted that Tribunal has been constituted vide notification dated 01.12.2001 of the Himachal Pradesh Government under the Wakf Act, 1995 ( for short ‘1995 Act’) which has come into force on 01 .01.1996. It has been submitted that Tribunal constituted under 1995 Act by the Himachal Pradesh Government on 01.12.2001 is a special Tribunal and, therefore, in view of Section 6 read with Section 85 of the 1995 Act, the Tribunal has jurisdiction to decide petition under Section 14 of the Act. 8.The learned counsel for the petitioner has relied Ramesh Gobindram ( deceased by LRs.) Versus Sugra Humayun Mirza Wakf AIR 2010 SC 2897 and Board of Wakf, West Bengal and another Versus Anis Fatma Begum and another (2010) 14 SCC 588 . It has also been submitted by learned counsel for the petitioner that in case this Court is not inclined to accept the submissions made on behalf of the petitioner, then the matter may be sent back to the Tribunal with a direction to return the petition to the petitioner for presenting the petition before appropriate forum. 9. The learned counsel for the respondents has supported the impugned order. He has submitted that the Tribunal has no jurisdiction to decide the petition under Section 14 of 1987 Act. There is no dispute of any ‘Wakf’ or Wakf property. The relationship of landlord and tenant has not been denied. He has submitted that no fault can be found with the impugned order. 10. He has submitted that the Tribunal has no jurisdiction to decide the petition under Section 14 of 1987 Act. There is no dispute of any ‘Wakf’ or Wakf property. The relationship of landlord and tenant has not been denied. He has submitted that no fault can be found with the impugned order. 10. The undisputed facts are that petitioner has filed petition under Section 14 of 1987 Act against the respondents on various grounds mentioned in the petition. The petitioner has not raised dispute of ‘Wakf’ or Wakf property in the context it has been dealt with in the 1995 Act. The petitioner has filed simple petition under Section 14 of 1987 Act for eviction of respondents. The Sections 6 and 85 of 1995 Act are reproduced hereinbelow:- “6.Disputes regarding wakfs.- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. Explanation.- For the purposes of this section and section 7 the expression “any person interested therein,” shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4. (2) Notwithstanding anything contained in sub-section(1) no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (2) Notwithstanding anything contained in sub-section(1) no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section(1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section(1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).” “85. Bar of jurisdiction of Civil Courts.- No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.” Wakf’ in Section 3(r) has been defined as follows: “wakf” means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) “grants,” including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable. and “wakf” means any person making such dedication.” The Section 2 (c) of 1987 Act is as follows:- “2(c) “Controller” means any person who is appointed by the State Government to perform the functions of a Controller under this Act;” 11. The perusal of Section 6 read with Section 85 of the 1995 Act would show that these provisions will apply where there is a dispute of Wakf or Wakf property in the context mentioned in 1995 Act. The perusal of Section 6 read with Section 85 of the 1995 Act would show that these provisions will apply where there is a dispute of Wakf or Wakf property in the context mentioned in 1995 Act. In the case in hand, no such dispute has been raised on either side. On the contrary, petitioner has claimed itself landlord of the shop. It has been pleaded that respondent No.1 is a tenant and respondents 2 and 3 are sub-tenants. The respondent No.1 and respondents No.2 and 3 admitted that petitioner is landlord, they have, however, denied sub-letting of the disputed shop as claimed by the petitioner. In Ramesh Gobindram (supra) on the question of jurisdiction of the Tribunal under 1995 Act, it has been held as follows:- “22. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal “ 12. The Supreme Court in Board of Wakf, West Bengal (supra) on the facts of that case has held that dispute is not an eviction dispute. Wakf Tribunal has jurisdiction in the matter, the parties can approach the Wakf Tribunal, if so advised. The petitioner in the present case cannot take any help from the decision in Board of Wakf, West Bengal and another for the reasons that in that case the dispute was not an eviction dispute. On the contrary, dispute was with respect to wakf estate of Shahzadi Begum which was created by a registered deed of wakf dated 22.09.1936. In the present case, no dispute of wakf has been raised by any of the party. 13.The learned counsel for the petitioner has fairly submitted that learned District Judge, Kangra at Dharamshala, who is exercising powers of Wakf Tribunal, Kangra at Dharamshala, has not been appointed as Controller under 1987 Act. The Section 2 (c) of 1987 Act provides that Controller means any person who is appointed by the State Government to perform the functions of a Controller. The Section 2 (c) of 1987 Act provides that Controller means any person who is appointed by the State Government to perform the functions of a Controller. The Section 14 of 1987 Act further provides that a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf and thereafter the Controller shall proceed with the case. The petition under Section 14 of 1987 Act can be filed only before the Controller appointed under the Act by the State Government. The Wakf Tribunal, Kangra at Dharamshala, even as per the case of the petitioner has not been appointed as Controller by the State Government. Therefore, Wakf Tribunal (District Judge), Kangra at Dharamshala, has no jurisdiction to entertain a petition under Section 14 of 1987 Act for eviction of the tenant. The 1987 Act is a special Act. The 1995 Act is also a special Act. The 1987 Act has overriding effect for the eviction of a tenant in an area where 1987 Act is applicable and where there is no dispute of ‘Wakf’ or Wakf property within the meaning of 1995 Act. 14.The petitioner has filed petition under Section 14 of 1987 Act not before the forum where it should have been filed. The petitioner has filed the petition before Tribunal, who is not an appointed Controller under 1987 Act and, therefore, has no jurisdiction to entertain and decide the petition under Section 14 of 1987 Act. The Tribunal has rightly decided issue No.10 of jurisdiction. It is open to the petitioner to approach appropriate forum, if so advised, by filing appropriate petition against the respondents for eviction. 15. No other point was urged. 16. In view of above, petition fails and is accordingly dismissed with no order as to costs.