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Madhya Pradesh High Court · body

2016 DIGILAW 760 (MP)

Vaheed Khan v. Prabandh Samiti Waqf Masjid Murwas

2016-08-31

ROHIT ARYA

body2016
ORDER 1. Petitioners have approached this Court challenging the order of eviction passed by the CEO of Waqf Board dated 18.7.2013 on grounds of violation of principles of natural justice as well as on merits. 2. It is contended that without service of notice on petitioners and affording opportunity of hearing, eviction order has been passed behind the back of the petitioners. It was only at the time of execution of the order petitioners came to know about the aforesaid impugned order. Thereafter petitioners obtained certified copy of the record of the case and upon examination it has been found that no service in fact was ever sought to be effected through notices, instead all notices are shown to have been sought to be served on the same date with identical matters and thereafter endorsement of the process server. It is alleged that the notices were not received. It is also submitted that perusal of the order sheets before the CEO reflects that proceedings have been conducted in a hot haste. Consequently, it is submitted that impugned order for the aforesaid reasons cannot be sustained in the eyes of law and deserves to be quashed. 3. On notices, respondents have entered appearance. They denied the allegations of non-service of notices and justified the impugned order. 4. During the course of the hearing, it has transpired that the sub section (4) of section 54 of the Waqf Act, 1995 (herein after referred to as “the Act of 1995”) was substituted w.e.f. 1.11.2013. Earlier to the amendment under sub section (4) of section 54 of the Act of 1995 a person aggrieved by the order impugned passed by the CEO under sub section (3) could file the suit in the Tribunal to establish his right, title or interest in the land, building, space or other properties.... After amendment the authority and jurisdiction of the CEO is done away with and the Tribunal is entrusted with the jurisdiction to entertain the application from the CEO for eviction of Waqf property by persons who may be in occupation thereof after due notice. In this case, the impugned order was passed on 18.7.2013. Petitioners had alternative, expeditious, efficacious remedy to challenge the order passed by the CEO before the Tribunal under the old sub-section (4) of section 54 of the Act of 1995. In this case, the impugned order was passed on 18.7.2013. Petitioners had alternative, expeditious, efficacious remedy to challenge the order passed by the CEO before the Tribunal under the old sub-section (4) of section 54 of the Act of 1995. That was not done, instead the writ petition was filed and the writ petition is pending since 11.9.2013. 5. Shri N.K. Gupta, learned senior counsel for the petitioners contends that as the order passed by the CEO was in flagrant violation of principles of natural justice, therefore, the jurisdiction of this Court under Article 226 of the Constitution of India was invoked as the availability of alternative remedy in such cases is not necessarily an expeditious efficacious remedy. Learned counsel refers to the judgment of Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others [ (1998)8 SCC 1 ]. Hence, it is contended that writ petition is maintainable challenging the impugned order of eviction. 6. Per contra, Shri Anand Bhardwaj and Shri Ashish Shrivastava, learned counsel for respondents No.1 and 2 contend that in fact and in effect remedy of filing of suit under erstwhile sub section (4) of section 54 of the Act of 1995 was the only remedy to institute the proceedings before the Tribunal for establishment of right, title or interest in the suit property. Petitioners were essentially required to establish their right as the proceedings were initiated against them for encroachment of land. The CEO in the impugned order has held petitioners as encroachers. No document is placed on record before this Court to displace the findings recorded by the CEO that petitioners are not encroachers. It is submitted that jurisdiction of this Court cannot be invoked under Article 226 of the Constitution of India for roving enquiry and adjudicate upon the factum of encroachment as found by the CEO. Petitioners ought to have approached the Tribunal by filing a suit where the scope of enquiry was much wider in the matter of adjudication of dispute as above. 7. Heard counsel for parties. 8. True it is that at the relevant point of time, petitioners had the remedy of filing the suit before the Tribunal, however by efflux of time the aforesaid remedy stands extinguished due to substitution of new provision under sub-section (4) of section 54 of the Act of 1995. 7. Heard counsel for parties. 8. True it is that at the relevant point of time, petitioners had the remedy of filing the suit before the Tribunal, however by efflux of time the aforesaid remedy stands extinguished due to substitution of new provision under sub-section (4) of section 54 of the Act of 1995. Therefore, no suit as such can be filed before the Tribunal. However, as the Tribunal by virtue of new sub-section (4) of section 54 is empowered to adjudicate upon the disputes related to eviction of occupants from the Waqf Property and, therefore, the issue related to alleged encroachment, in the opinion of this Court, can also be addressed by the Tribunal. Hence, in exercise of the jurisdiction under Article 226 of the Constitution of India this Court relegates both parties before the Tribunal for adjudication of the claim of encroachment as found proved by the CEO in impugned order dated 18.7.2013. The Tribunal shall afford full opportunity to both the parties on the findings recorded by the CEO and thereafter passed an order afresh after completion of the process of the adjudication. Consequently, the writ petition is disposed of with following directions :- Petitioners shall approach the Tribunal with complete pleadings and documents questioning the order passed by the CEO and respondents are also at liberty to file pleadings and documents in support of the order passed by the CEO. If demanded, parties shall be permitted to lead evidence and thereafter the Tribunal shall address upon the findings of the CEO in the impugned order and pass a self contained speaking order. Let the exercise be completed within two months. For the period of two months status quo shall be maintained. In case proceedings are not concluded, order of status quo shall be further extended by the Tribunal till final decision. 9. With aforesaid directions, writ petition stands disposed of. N. K. Gupta with S. D. Singh Bhadoriya for petitioners; Anand Bhardwaj for respondent No.1; Ashish Shrivastava for respondent No.2.