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Madhya Pradesh High Court · body

2019 DIGILAW 774 (MP)

Kuldeep Sahny v. M. P. Waqf Board, Bhopal

2019-11-07

ROHIT ARYA

body2019
ORDER 1. This order shall govern disposal of C.R. No. 380/2019, C.R. No. 386/2019, C.R. No. 387/2019, C.R. No. 388/2019 and C.R. No. 391/2019, as all the civil revisions arise out of common dated 16.05.2019 passed by the M.P. State Wakf Tribunal, Bhopal upholding the order dated 23.6.2018 passed by the CEO, Wakf Board. 2. Facts of the C.R. No. 380/2019 are taken for disposal of all the civil revisions. 3. Legality, validity and propriety of the order dated 16.5.2019 passed by the respondent No. 1./M.P. Wakf Tribunal in purported exercise of power under section 54(3) of the Wakf Act 1995(for short the Act of 1995 hereinafter) is under challenge on following grounds: (i) The Tribunal has failed to exercise jurisdiction vested upon it under section 54 of the Act of 1995 in the matter of an inquiry to adjudge encroachment and thereafter passed consequential order to remove the encroachment. (ii) The Tribunal itself has not held inquiry to ascertain the aforesaid fact. (iii) The Tribunal has concluded that petitioner is an encroacher in a shop of the building allegedly belonging to respondent No. 2 on the basis of the order dated 23.6.2018 Annexure P-9 passed by the Chief Executive Officer, Wakf Board. Such recourse is patently without jurisdiction and bad in law for the following reasons: (a) After amendment in section 54 of the Act of 1995 in the year 2013, the Chief Executive Officer has no jurisdiction either to address or decide the question of encroachment instead, he is required to make an application before the Tribunal for adjudication thereupon and seek direction for removal of encroachment, if any as contemplated under the amended sub-section 3 of 54 of the Wakf Act, 1995. The said alleged order dated 23.6.2018 was without authority of law, therefore cannot sustain in the eyes of law and, as such could not have been acted upon by the Tribunal. (b) But for the order of Chief Executive, there was no material on record to conclude that petitioner is an encroacher. 4. Even otherwise, petitioner has denied allegation of encroach-ment, instead asserted that he is a tenant of respondent No. 2 and also called upon the respondents before the Tribunal to furnish details/documents in the context of allegations made, by filing an application under Order 11 rule 12 CPC. 4. Even otherwise, petitioner has denied allegation of encroach-ment, instead asserted that he is a tenant of respondent No. 2 and also called upon the respondents before the Tribunal to furnish details/documents in the context of allegations made, by filing an application under Order 11 rule 12 CPC. The Tribunal though on 21.1.2019 had taken the application on record, but chose not to decide till passing of the impugned order. The petitioner in fact and in effect is a tenant for last 25 years, paying rent regularly to the respondent No. 2. 5. In view of the fact that petitioner is a tenant, the Tribunal has no jurisdiction to exercise power under section 54 of the Act of 1995 in the light of judgments of Hon'ble Supreme Court rendered in the case of Ramesh Gobindram(dead) through LRS v. Sugra Humayun Mirza Wakf [ (2010) 8 SCC 726 ] and in the case of Faseela A.M. v. Munnerul Islam Madrasa Committee and another [ (2014)16 SCC 38 ]. 6. Learned counsel for the petitioner refers to sub-section (9) and proviso thereto section 83 of the Act of 1995 to contend that no appeal is provided against the order of Tribunal passed under section 54(3) of the Act of 1995. Instead,revisional jurisdiction is conferred upon this Court against the said order to adjudge correctness, legality and propriety for finding on encroachment and consequential order for removal of encroachment, if any. As such, the scope and nature of jurisdiction, though is less than an appeal, but more than as provided for under section 115 C.P.C. 7. On the other hand, Shri Bohra, learned counsel for the respondent has supported the impugned order with the following submissions: (i) in absence of reply to the application and participation of petitioner before the Tribunal, the allegations made in the application are deemed to have been accepted in view of Order 8 rule 3 CPC. Therefore, the Tribunal did not commit any illegality while accepting the plea of encroachment made in the application. (ii) Even if, the Chief Executive Officer, Wakf Board had no jurisdiction to pass the order dated 23.6.2018, still the fact of encroachment placed on record through an inquiry conducted by the CEO could not have been blinked away in the absence of material contrary thereto. (ii) Even if, the Chief Executive Officer, Wakf Board had no jurisdiction to pass the order dated 23.6.2018, still the fact of encroachment placed on record through an inquiry conducted by the CEO could not have been blinked away in the absence of material contrary thereto. Hence, no illegality is committed, if such material was used by the Tribunal for arriving at a conclusion of encroachment and order removal of encroachment. 8. With the aforesaid submission, learned counsel for the respondent prays for dismissal of the civil revision. 9. Heard. 10. Upon hearing counsel for parties and perusal of the impugned order, regard being had to the amendment incorporated in section 54(3) of the Act of 1995, this Court is of the view that the Tribunal has committed grave illegality and jurisdictional error for following reasons: (i) Ascertainment of encroachment and declaration of a delinquent as an encroacher is in fact and effect jurisdictional facts and required to be addressed by way of an independent inquiry by the Tribunal. That has not been done. (ii) Reliance upon the alleged self-styled inquiry report prepared by the CEO, Wakf Board behind the back of the petitioner in his order referred to dated 23.6.2018 which otherwise suffers from the vice of coram non judice, could not have been acted upon by the Tribunal while declaring petitioner as an encroacher. (iii) The Tribunal appears to have also committed procedural irregularity while it chose not to pass any order on an application under Order 11 rule 12 CPC admittedly placed on record on 21.1.2019 in the files of Tribunal. (iv) The Tribunal has also not afforded opportunity to the petitioner participate, file reply and lead evidence in the absence of any order proceeding against the petitioner ex-parte. 11. As a result, the impugned order dated 23.6.2018 is found to be patently illegal and cannot be sustained in the eyes of law. As a consequence, the impugned order dated 16.5.2019 passed by the M.P. State Wakf Tribunal, Bhopal in case No. B-50/2018 upholding the order dated 23.6.2018 passed by the CEO, Wakf Board is hereby set aside. The case is remanded back to the Tribunal for affording opportunity to the petitioner to file reply and also seek liberty to lead evidence; oral and documentary. Thereafter, the Tribunal shall proceed to decide the application in accordance with law. 12. The case is remanded back to the Tribunal for affording opportunity to the petitioner to file reply and also seek liberty to lead evidence; oral and documentary. Thereafter, the Tribunal shall proceed to decide the application in accordance with law. 12. It needs no mention that Tribunal shall frame issues on the pleadings of parties placed on record, be it jurisdictional or otherwise. 13. Both the parties shall appear before the Tribunal on 2.12.2019. 14. With the aforesaid observation, civil revision stands allowed and disposed of. Let copy of this order be placed in the connected civil revisions. ................