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Madhya Pradesh High Court · body

2018 DIGILAW 99 (MP)

Hamid Khan (Gauri) v. M. P. State Waqf Tribunal

2018-01-23

RAJEEV KUMAR DUBEY

body2018
ORDER 1. This civil revision has been filed under section 115 of CPC against the order dated 14.12.2017 passed by the State Waqf Tribunal, Bhopal in the case No. B-2/17 whereby the learned Tribunal rejected the applicant’s application filed under Order 7 rule 11 of CPC that the application filed by the Chief Executive Officer, MP Waqf Board, Bhopal/respondent No. 2 under section 54 of the Waqf Act 1995 (hereinafter referred to as "the Act") is barred by law. 2. Brief facts of the case, which are relevant for the disposal of this revision, are that on 26.7.2016 Secretory, Intezamia Committee Auqaf Amma Bhopal filed an application before Chief Executive Officer, MP Waqf Board, Bhopal/respondent No. 2 under section 54 of the Act averring that applicant had encroached on Waqf land measuring 120 sq.ft. for many years and has not removed the encroachment even after saying, so encroachment should be removed. On that a show cause notice was issued by the Chief Executive Officer, MP Waqf Board, Bhopal /respondent No. 2 under section 54 of the Act and the applicant was directed to show the cause as to why he should not be evicted from the aforesaid property. In reply to the show cause notice, the applicant pleaded that he is the tenant of the Waqf in suit property and proceeding under section 54 of the Act is not maintainable against the applicant. The Chief Executive Officer, M.P. Waqf Board, Bhopal/respondent No. 2 after giving the opportunity of producing the evidence to both the parties passed the order on 26.4.2017 holding that the applicant has made encroachment over the land of the Waqf Board on an area of 120 sq.ft. after constructing a house/shop, and sent the case to Waqf Tribunal, Bhopal for removal of that encroachment. 3. On that, the Waqf Tribunal registered the Case No. B-2/17 and issued notices to the applicant. The applicant after appearing before the Tribunal filed an application under Order 7 rule 11 of CPC averring that cause of action and boundary of suit property was not mentioned in the application. Even the date of alleged encroachment by the applicant is not mentioned therein. The application was not verified according to the provisions of Order 6 rule 15 of CPC. The application was even not filed by Additional Secretary of Mutawalli Committee Auqaf Amma because he had not signed that application. Even the date of alleged encroachment by the applicant is not mentioned therein. The application was not verified according to the provisions of Order 6 rule 15 of CPC. The application was even not filed by Additional Secretary of Mutawalli Committee Auqaf Amma because he had not signed that application. So that application is not maintainable. 4. The respondent No. 2 opposed the prayer. Learned Tribunal rejected applicant’s application observing that the respondent No. 2 filed application according to Section 15 of M.P. Waqf Rules, 2000 and there is no need of verification of that application. The provisions of Order 7 rule 11 of CPC are not attracted in the proceedings. The respondent No. 2 filed the application according to Rules. Being aggrieved from that order, applicant filed this civil revision. 5. Learned counsel for the applicant submitted that the applicant is a tenant of Intejamiya Committee Auqaf Amma, Bhopal since more than 40 years. The respondent No. 2 started the proceedings of removal of encroachment of Waqf property under section 54 of the Act with a mala fide intention. In the proceedings initiated by the respondent No. 2, it neither gave any opportunity of hearing nor recorded the evidence of the applicant. Even the applicant has filed the documents showing that he is not encroacher but tenant while respondent No. 2 did not consider those documents and initiated the proceedings against the applicant before M.P. State Waqf Tribunal without application of mind. On that applicant raised objection on maintainability of the application under section 54 of the Act by filing an application under Order 7 rule 11 of CPC as the instant applicant is not encroacher and is a legal tenant of respondent No. 2, therefore, the entire proceeding is without jurisdiction. Learned trial Court without appreciating these facts and without recording the evidence of the applicant rejected the application filed under Order 7 rule 11 of CPC in mechanical manner and wrongly posted the matter for final arguments without giving applicant any opportunity of defending the case before Tribunal which is complete violation of section 54 of the Act so the order be quashed. 6. Learned counsel for the respondents No. 1 and 2 opposed the prayer and submitted that there is no evidence on record to show that the applicant is a tenant of the respondent No. 2. 6. Learned counsel for the respondents No. 1 and 2 opposed the prayer and submitted that there is no evidence on record to show that the applicant is a tenant of the respondent No. 2. It is clear from the record that applicant is an encroacher so the respondent No. 2 has rightly proceeded against the applicant under section 54 of the Act. He further submitted that there is no provision in the Act which imposes duty on Tribunal to record the evidence of both the parties before passing any order under section 54 of the Act, so learned Tribunal did not commit any mistake in not fixing the case for evidence and directly fixing the case for arguments. The application filed by the Chief Executive Officer before the Tribunal is not a suit so the provisions of Order 7 rule 11 of CPC is not applicable. Hence, learned Tribunal did not commit any mistake in rejecting the applicant’s application and prayed for rejection of revision. 7. This Court has gone through the record and the arguments put forth by both the counsel for the parties. The amended provision of section 54 of the Act reads as under : “54. Removal of encroachment from Waqf 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 Waqf 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 Waqf property and that there has been an encroachment on any such Waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the Waqf. (4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the Waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the Waqf property : Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer. (5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the Waqf property.” 8. From the aforesaid provision, it is clear that on receiving a complaint, the Chief Executive Officer conducts an inquiry, thereafter, if he finds that there has been an encroachment on any such Waqf property, he may file an application before the Tribunal for grant of order of eviction for removing such encroachment. So when the Chief Executive Officer files an application before Tribunal after conducting inquiry, there is no need for the Tribunal to again inquire into the matter. Even the sub-section (4) of section 54 of the Act only mentions that Tribunal before making an order of eviction should give an opportunity of being heard to the person against whom such application for eviction has been made by the Chief Executive Officer. Even the sub-section (4) of section 54 of the Act only mentions that Tribunal before making an order of eviction should give an opportunity of being heard to the person against whom such application for eviction has been made by the Chief Executive Officer. It is not mentioned therein that Tribunal shall conduct an inquiry before making an order of eviction. From the perusal of the above provisions of section 54 of the Act, it is clear that the intention of the Legislature is only that the Tribunal after giving an opportunity of being heard to such person against whom the application for eviction has been made by the Chief Executive Officer, may pass an appropriate order. So learned trial Court did not commit any mistake in not fixing the case for evidence and directly fixing the case for arguments. 9. The application filed by the Chief Executive Officer under section 54 (3) of the Act before Tribunal is not a suit so the provisions of Order 7 rule 11 of CPC is not applicable in that proceedings. The boundaries of encroached area is clearly mentioned in the order. 10. Whether applicant is a tenant of the respondent No. 2 or is an encroacher, in the suit property, whether or not respondent No. 2 gave any opportunity of hearing to the applicant before passing order has to be decided by the Tribunal after hearing both the parties. 11. In view of the aforesaid discussion, in the considered opinion of this Court, the learned Tribunal did not commit any mistake in rejecting the applicant’s application. Hence, this revision has no force and is hereby rejected.