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Madhya Pradesh High Court · body

2023 DIGILAW 556 (MP)

Akeela Bee v. Madhya Pradesh Wakf Board, Bhopal

2023-05-04

ANAND PATHAK

body2023
ORDER Regard being had to the similitude of the controversy, all cases were heard together and decided by a common order. For convenience sake, facts as narrated in CR.No.622/2022 are taken into consideration. 1. The present civil revision under section 83 of the Wakf Act, 1995 is being preferred against the order dated 18.8.2022 passed by the Madhya Pradesh Wakf Tribunal, Bhopal whereby application filed by the respondent/M.P.Wakf Board under Order 7 rule 11 of CPC read with section 32 of M.P. Wakf Rule, 2000 has been allowed and the suit filed by the petitioner has been dismissed. 2. Petitioner has filed a civil suit before the Wakf Tribunal pleading that a disputed property situate at Survey No.44, Village Gosh Nagar Tehsil Lateri District Vidisha was initially of the ownership of Dauli Bai from whom the plaintiff purchased the property by way of registered sale deed dated 28.4.1997 and since then she is in the possession of the suit property. On 22.2.2018, plaintiff came to know that Tehsildar issued a proclamation of auction of the property treating it to be the property of Wakf Board therefore, the suit has been filed for declaration and permanent injunction. According to the petitioner/revisionist, no revenue record refers that suit property was of Wakf property. Neither survey was carried out nor any opportunity of hearing was given to the plaintiff or her predecessor in title. 3. In response thereof, M.P.Wakf Board filed an application under Rule 32 of M.P. Wakf Rule, 2000 and on the ground of limitation as referred in sections 6 and 7 of the Wakf Act, 1995, prayed for dismissal of suit. On said application Wakf Tribunal dismissed the suit vide impugned order dated 18.8.2022. Therefore, this revision petition has been filed. 4. Learned counsel for the petitioner submits that as per section 6A of the Act, 1995, the expression “any person interested therein” as figured in explanation of section 6(1) of Act, 1995 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 of the Act, 1995. Therefore, by bare reading of provision, it is clear that in order to notify a property as a Wakf Property, the mandatory requirement of preliminary survey as contemplated under section 4 of the Act, 1995 is required to be done. Here no such survey has been conducted nor any opportunity of hearing was given. Therefore, Tribunal erred in passing the impugned order and cause illegality while dismissing the plaint on the basis of limitation. 5. Learned counsel for the petitioner relied upon the judgment of apex Court in the case of in Punjab Wakf Board v. Gram Panchayat Alias Gram Sabha [ (2000) 2 SCC 121 ] and also the judgment of this Court in the case of Ataurrehman v. M.P.Wakf Board, Bhopal and others [(2022) 2 MPLJ 699]. 6. Learned counsel for the respondents vehemently opposed the prayer and supported the impugned order. According to him, no illegality or arbitrariness has been caused by the Tribunal in passing the impugned order. Therefore, he prayed for dismissal of this petition. 7. Heard the counsel for the parties and perused the record appended thereto. 8. In the case in hand, petitioner as plaintiff has filed the suit before the Tribunal for declaration of title and permanent injunction. Plaintiff has made specific pleadings that the land in question has been purchased by the plaintiff from Dauli Bai D/o Sikka W/o Shera and she belongs to Scheduled Caste community and sale deed has been executed by way of registered sale deed dated 28.4.1997. Dauli Bai received the land ancestrally from her parents and her father was granted the land by the State Government and his name finds place in Adhikar Abhilekh Patra of 1972-1973. Prior to it, in the year 1995-99 in land record, it was referred as Khal Khaddar and was a government land. 9. Once a specific pleading has been made by the plaintiff in respect of line of succession and her derivation of title then invoking rule 32 of M.P. Wakf Rule, 2000 ignoring the mandate of the Hon'ble Supreme Court appears to be an arbitrary and illegal exercise. Tribunal has passed the order in a very slipshod manner without going into the contents of the allegations. 10. Tribunal has passed the order in a very slipshod manner without going into the contents of the allegations. 10. The Hon'ble apex Court in the case of Punjab Wakf Board (supra), dealt the matter in following manner :-- Learned counsel for the appellant also referred to the Explanation added below to sub-section (1) of section 6 of the Wakf Act; 1954, by the Central Act, 69 of 1984. The Explanation reads as follows :- "Explanation : For the purpose of this section and section 6-A, the expression "any person interested therein", occurring in sub-section (1) of this section and in sub-section (I) of section 6-A, shall, in relation to any property specified as Wakf property in a list of Wakfs published, under subsection (2) of section 5, after the commencement of the Wakf (Amendment) Act, 1984, 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". Obviously, the intention of Parliament was to say that if a suit was not filed within one year, the Notification would be binding not only on those interested in the trust but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under section 4 preceding the Notification under section 5(2). In this connection, we have to point out that the Government of India has not issued any date for commencement of the Explanation in section 6 of the Wakf Act quoted above. Even if it is assumed that the Explanation can be invoked, there is no material before us to show that any notice was issued to the Gram Panchayat before the issuance of the Notification, as required by the Explanation. If no notice was issued as required by the Notification, the Notification would not come in the way of a Civil Court to decide the question if raised between the Wakf and a third party, even if such a suit was filed beyond one year from the date of the Notification, Thus, once the Assistant Collector and the Collector had jurisdiction to decide, their decision became final and section 13 of the Punjab Act barred the Civil Suit filed by the Wakf Board. Therefore, petitioner / plaintiff never received any notice in specific terms so as to attract the limitation of one year. In such cases applying the principle of limitation of one year would not be appropriate and would amount to denial of justice to the litigant. 11. The approach of Tribunal in imposing the cost over the plaintiff while deciding the application under Order 7 rule 11 of C.P.C. was also surprising and cannot be countenanced because suit is based upon same cogent material which deserves to be considered in a just manner. Therefore, such tentative approach deserves correction. 12. In cumulative analysis, petitioner made out her/his case for interference. Therefore, impugned order dated 18.8.2022 is hereby set-aside and suit preferred by the petitioner/plaintiff stands revived to its original number and Tribunal is directed to proceed in accordance with law. Parties are directed to appear before the Tribunal on 20.6.2023. Thereafter, Tribunal shall issue notice to all other stake-holders if they do not represent on 20.6.2023, and thereafter, shall ensure the proceeding in accordance with law. 13. Impugned orders of all revision petitions stand set-aside and all revisions (CR. No. 659/2022), (CR. No. 658/2022), (CR. No. 657/2022), (CR. No. 656/2022), (CR. No. 655/2022), (CR. No. 654/2022), (CR. No. 653/2022), (CR. No. 622/2022), (CR. No. 623/2022), (CR. No. 624/2022), (CR. No. 625/2022) stand allowed as per discussion referred above. 14. No costs.