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Allahabad High Court · body

2020 DIGILAW 1008 (ALL)

Adul Haleem v. U. P. Wakf Tribunal, Lucknow

2020-07-08

RAJAN ROY

body2020
JUDGMENT : Rajan Roy, J. 1. Heard Shri Anurag Shukla, learned Counsel for the revisionist and Shri Syed Aftab Ahmad and Shri Qamar Hasan Rizvi, learned Counsel for the opposite parties. 2. This is a civil revision under section 83(9) of the Waqf Act, 1995 (hereinafter referred to as 'the Act, 1995'). The challenge is to the order of the Waqf Tribunal passed under section 54(3) of the said Act, 1995. 3. The facts of the case in brief are that the revisionist claims to be a tenant of the Waqf for the past 50 years. It is an admitted position that he was in. arrears' of rent for the period April, 2010 till in September, 2014. According to the revisionist the said arrears of rent was deposited by him under Rule 10 of the Waqf Property Lease Rules, 2014 before the Waqf Board and thereafter, the rent upto January, 2015 was deposited in December, 2015. 4. It is not out of place to mention that -Rule 10 is attracted only when the 'mutawalli' of the Waqf refuses to accept the rent offered by the tenant and not otherwise. 5. In this regard the contention of the learned Counsel for the opposite parties is that in none of the pleadings of the revisionist has it been mentioned by which the rent was offered and when it was refused nor any proof thereof was filed before the Waqf Tribunal. 6. Be that as it may, on 16.2.2015 a notice was given by the 'mutawalli' of the Waqf revisionist tenant, inter alia, stating that he was in arrears of rent and secondly that the Waqf did not want to continue his tenancy. Accordingly, the same was being terminated and on expiry of 30 days of such termination it would come to an end and the revisionist would be obliged to handover possession failing which the Waqf would be at liberty to take recourse to legal remedies. The revisionist herein submitted his reply on 9.3.2015, inter alia, mentioning therein that the rent had already been paid, as already mentioned hereinabove. Thereafter, it appears that a suit was filed by the Waqf before the Civil Court for eviction of the revisionist and for arrears of rent, as, according to the learned Counsel for the Waqf the Waqf Tribunal was not functional at that time. Thereafter, it appears that a suit was filed by the Waqf before the Civil Court for eviction of the revisionist and for arrears of rent, as, according to the learned Counsel for the Waqf the Waqf Tribunal was not functional at that time. It is the admitted position of the parties that subsequently the said suit was transferred to the Waqf Tribunal and the same has been withdrawn subsequently. 7. It is not out of place to mention that in the interregnum an application was filed by the 'mutawalli' of the Waqf before the Chief Executive Officer of the Central Sunni Waqf Board for removal of the 'encroacher' i.e., the revisionist tenant herein on account of the termination of tenancy in view of the definition of 'encroacher' contained in section 3(ee) of the amended Act, 1995. 8. On being asked as to two proceedings having been initiated, the learned Counsel for the Waqf submitted that the nature of the proceedings under section 83 for eviction and arrears of rent are different from the proceedings under section 54 which are for removal of the encroacher without any relief for arrears. of rent. 9. On the said application under section 54(3) of the Act, 1995 the Chief Executive Officer of the Central Sunni Waqf Board referred the matter to the Waqf Tribunal for. eviction of the revisionist-tenant. 10. The Waqf Tribunal by. means of the impugned judgment has found that the tenancy of the revisionist-tenant had been terminated vide notice dated 16.2.2015, therefore, consequent to it he became encroacher in terms of section 3(ee) of the Act, 1995, according to which, an "encroacher" means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has. been terminated by mutawalli or the Board. In view of the aforesaid the Waqf Tribunal vide its judgment dated 27.2.2020 has ordered for eviction/removal of the tenant- encroacher from the Waqf property. 11. The contention of the learned Counsel for the revisionist is that basis of the notice dated 16.2.2015 for termination of tenancy was the alleged default of the revisionist-tenant in payment of arrears of rent from April, 2010 to January,. 11. The contention of the learned Counsel for the revisionist is that basis of the notice dated 16.2.2015 for termination of tenancy was the alleged default of the revisionist-tenant in payment of arrears of rent from April, 2010 to January,. 2015, whereas, the said rent had already been paid by December, 2014, therefore, no application under section 54(3) of the Act, 1995 could have been entertained or allowed thereafter. In this regard he has invited the attention of the Court to the rent receipt arid the order of the Waqf Board under Rule 10 of the Waqf Property Lease Rules, 2014 under which the lease rent can be deposited before the Waqf Board if the 'mutawalli' refuses to accept the same, therefore, he says that the basis for the claim was non-existent but this aspect of the matter has been ignored by the Waqf Tribunal. 12. He has also submitted that though in the notice two factors one of arrears of rent and the other of termination of tenancy were mentioned but in the application for removal of encroachment under section 54 before the CEO as also in the order of the CO. referring the matter to the Waqf Tribunal, the ground mentioned is the default of the revisionist-tenant in payment of rent, therefore, as this ground was non-existent the reference could not have been allowed by the Waqf Tribunal. In this regard he relies upon a decision reported in Bhoodev Singh and others v. U.P. State Electricity Board and others, 2007 (25) LCD 112 to contend that the pleadings have a very important role to play and anything beyond the pleadings cannot be considered nor allowed. 13. Learned Counsel for the opposite parties Shri Syed Aftab Ahmad and Shri Qamar Hasan Rizvi have contended, firstly,- that Rule 10 applies only 'when rent is first offered by the tenant to the mutawalli of the Waqf Board and he refuses to accept the same but in this case only vague assertion was made in "the reply to the notice about non acceptance of the rent by mutawalli without mentioning any date or details in this regard. Even before the Waqf Tribunal the revisionist-tenant did not mention any date offering the rent to the mutawalli or of his refusal to accept the same nor was any proof filed in this regard, therefore, the action of the revisionist-tenant in depositing the rent straightway before the Waqf Board under an order of the Waqf Board under Rule 10 without first offering it to the Waqf, does not help the cause of the revisionist- tenant, as, the said Rule was not attracted. All this was done behind the back of the Waqf Board, who were not heard in the said proceedings. 14. Moreover, the learned Counsel for the opposite parties have contended that on a bare perusal of the notice dated 16.2.2015 it reveals that two separate grounds were mentioned therein, firstly about the default of the revisionist-tenant in payment of arrears of rent, which was demanded, secondly, it was mentioned that the Waqf Board did not want to continue with the tenancy of the revisionist- tenant and accordingly the same was being terminated. 15. Learned Counsel submitted that section 3(ee) very categorically mentions that a tenant whose tenancy has been terminated would fall within the definition of encroacher, therefore, an application under 54-and the proceedings before the Waqf Tribunal based on the order of the Chief Executive Officer was clearly maintainable and has rightly been allowed in the facts and circumstances of the case after recording a finding that the revisionist-tenant has become an encroacher after the termination of tenancy vide notice dated. 16.2.2015. For all these reasons the learned Counsel for the opposite parties stated that the revision is liable to be dismissed without being admitted. 16. Shri Anurag Shukla, learned Counsel for the revisionist was also confronted and asked to show any pleading as to when exactly did he offer the rent to the mutawalli and the date on which he refused to accept the same as also whether any proof was led before the Waqf Tribunal in this regard but Shri Shukla could not point out any such detail except for referring to Para 3 of his reply to the notice which the Court finds to be absolutely vague and untenable in this regard. He also referred to section 116 of the Transfer of Property Act in support of his contention that once the rent was paid then the notice became infructuous. 17. He also referred to section 116 of the Transfer of Property Act in support of his contention that once the rent was paid then the notice became infructuous. 17. On a perusal of the notice dated 16.2:2015 the Court finds that there were two aspects mentioned therein, one was regarding the default in payment of rent which according to Shri Shukla had been paid by December, 2015, Now, in this regard Shri Shukla has not been able to show as to when the said rent was offered to the mutawalli and when he refused to accept it so as to attract the Rule 10 of the Rules, 2014 referred hereinabove, as, only after the refusal by the mutawalli could he have gone to deposit the rent before the Waqf Board. Nevertheless, even if the contention of Shri Shukla is accepted for a moment the fact of the matter is that notice dated 16.2.2015 apart from raising a claim for arrears of rent also stated that the Waqf Board did not want to continue the tenancy of the tenant and accordingly it terminated the said tenancy. 18. Moreover, in the order of the Waqf Tribunal it has come that tire revisionist-tenant owns two other houses which he can use and that the Waqf had filed House Tax bills in respect of the said houses. The Waqf intended to demolish the house and make new constructions for the use of needy, poor and shelter-less in furtherance of the object of the waqf. This fact could not be rebutted by the revisionist- tenant before the Waqf Tribunal nor before this Court. 19. In view of the above, the admitted factual position is that on termination of tenancy of the revisionist by the notice dated 16.2.2015 the revisionist-tenant indisputably became an encroacher in terms of section 3(ee) of the Act, 1995 and the fact that he had paid the arrears of rent is a separate issue which does not have any bearing as far as he being an encroacher in terms of the aforesaid provision of the Act, 1995 is concerned. It is the admitted position that the U.P. Rent Control Act, 1972 is not applicable in the case, therefore, no protection of the provision contained therein is available to the revisionist- tenant. 20. It is the admitted position that the U.P. Rent Control Act, 1972 is not applicable in the case, therefore, no protection of the provision contained therein is available to the revisionist- tenant. 20. Shri Anurag Shukla, learned Counsel for the revisionist was confronted' as to whether Waqf Act, 1995 which has overriding effect over other Acts in view of section 108-A, or any other law, gives any protection to the revisionist-tenant merely because he has been a tenant for the past 50 years once the tenancy has been validly terminated and the revisionist had become an encroacher under section 3(ee) of the Act, 1995 he could not give any satisfactorily reply in this regard. No illegality could be pointed out in the notice dated 16.2.2015 nor in the termination of tenancy by the Counsel for the tenant- revisionist. 21. The Court has perused the application filed by the Waqf before CEO as also the order of the CO. it clearly evinces the intention of the Waqf to terminate the tenancy of the revisionist- tenant which, as stated, was done vide notice dated 16.2.2015, therefore, the Waqf Tribunal cannot be faulted for having passed the judgment dated 20.7.2020 under section 4(3) of the Act, 1995. In these circumstances the decision relied upon by Shri Shukla does not help his cause. 22. In view of the above, the revision is not liable to be entertained and it lacks merits. Accordingly, the revision is dismissed.