Bhagat Ram Vs. Muthawalli, Dargah Hazrat Shaik-ji-hali - Court Judgment

Excerpt:
property - permission of board - section 90 of wakf act, 1955 - petition filed against decision of suit filed by respondent (wakf) for eviction of petitioner (tenant) - suit decided in respondent's favour - maintainability of suit challenged by petitioner - contended that no permission regarding filing of suit taken by respondent's 'mutawalli' from board - 'mutawalli' not require to issue any notice or take any permission from board for filing such suit. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) .....orderg. yethirajulu, j.1. this civil revision petition is filed by the tenant against the order of the andhra pradesh wakf tribunal, hyderabad in o.s. no. 136 of 1999 dated 29th november 2002.2. the respondent is a wakf registered under the a.p. wakf act, 1995 and it is represented by its mutawalli. the respondent filed the above suit for eviction of the revision petitioner and for recovery of arrears of rent and mesne profits with interest and costs. the wakf tribunal, after conducting a full-fledged trial, decreed the suit with costs directing the revision petitioner to deliver the vacant possession of the suit property within one month from the date of judgment. the revision petitioner was also directed to pay rs. 3,000/-towards the mesne profits from the date of termination of tenancy.....

Judgment:
ORDER

G. Yethirajulu, J.

1. This civil revision petition is filed by the tenant against the order of the Andhra Pradesh Wakf Tribunal, Hyderabad in O.S. No. 136 of 1999 dated 29th November 2002.

2. The respondent is a Wakf registered under the A.P. Wakf Act, 1995 and it is represented by its Mutawalli. The respondent filed the above suit for eviction of the revision petitioner and for recovery of arrears of rent and mesne profits with interest and costs. The Wakf Tribunal, after conducting a full-fledged trial, decreed the suit with costs directing the revision petitioner to deliver the vacant possession of the suit property within one month from the date of judgment. The revision petitioner was also directed to pay Rs. 3,000/-towards the mesne profits from the date of termination of tenancy till the date of delivery of possession. The revision petitioner being aggrieved by the judgment of the Wakf Tribunal dated 29.10.2002 preferred this revision challenging its validity and legality.

3. The learned Counsel for the revision petitioner submitted that since the Mutawalli filed the suit without obtaining permission from the Wakf Board, the suit cannot be maintained. The learned Counsel for the respondent submitted that the respondent is recognized by the A.P. Wakf Board and it is in the list of Wakfs situated in the State of Andhra Pradesh. The Mutawalli who is looking after the affairs of the Wakf filed the suit for eviction and recovery of the rent and mesne profits and as there is no dispute regarding the title of the property between the respondent and the petitioner, the question of Mutawalli obtaining sanction from the A.P. Wakf Board does not arise. He further submitted that though the revision petitioner is contending that the respondent failed to implead the A.P. Wakf Board as one of the defendants in the suit, there is no statutory requirement to implead the A.P. Wakf Board as one of the defendants in the suit. Therefore, the objections raised by the revision petitioner cannot be sustained and it has to be held that the suit is maintainable against the revision petitioner.

4. In the light of the contentions raised by the parties, the following are the points for consideration:

1. Whether the suit filed by the Mutawalli representing the Wakf cannot be maintained without sanction from the Wakf Board ?

2. Whether the suit is bad for non-joinder of A-P.Wakf Board as second defendant ?

5. Point No. 1 : It is an admitted fact that the respondent is the owner of the suit schedule property. The revision petitioner is the tenant of the property. The revision petitioner is not questioning the title of the respondent over the suit property. The learned Counsel for the revision petitioner is relying on Section 90 in support of his contention that the suit cannot be maintained without obtaining sanction from the Wakf Board. Section 90 of the Wakf Act, 1995 (for short 'the Act') reads as follows:

Notice of suits, etc., by Courts :--(1) In every suit or proceeding relating to title to or possession of a Wakf property or the right of a Mutawalli or beneficiary, the Court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any Wakf property is notified for sale in execution of a decree of a Civil Court or for the recovery of any revenue, cess, rates of taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.

(3) In the absence of a notice under Sub-section (1) any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf.

(4) In the absence of a notice under Sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the Court or other authority under whose order the sale was held.

6. The reading of the Section clearly indicates that in a suit or proceeding relating to the dispute of title or for recovery of possession of a Wakf property or right of Mutawalli or beneficiary, the notice is contemplated. Sub-section (3) of Section 90 of the Act made the position clear that the decree obtained by the Mutawalli in such proceedings shall become void in the event of the Wakf Board, making an application within one month from the date of decree raising any objection regarding the action taken by the Mutawalli on behalf of the Wakf before the Tribunal regarding the title or possession etc.

7. The object of the 1995 Act is to protect the properties of the Wakfs and to improve the resources to make them self-sufficient. Therefore, the initiation of the proceedings, before the Tribunal by the Mutawalli on behalf of the Wakf for the eviction of the tenant for committing default in payment of arrears of rent is in no way detrimental to the interest of the institution and as it is for the benefit of the institution, the Mutawalli of the Wakf need not issue the notice contemplated under Section 90 of the Act to the Wakf Board or to any other party. If there are claims of title adverse to the interest of the Wakf, they have to bring the claim of such persons to the notice of the Wakf Board particularly to enable it to place such material which may be helpful to support the case of the Wakf.

8. The learned Counsel for the revision petitioner relied on by the judgment of the Patna High Court in Maulvi Reza Ansari and Ors. v. Shyamlal Sah and Ors., : AIR1983Pat299 , wherein the Patna High Court held that the Wakf Act, 1954 came into force in the State of Bihar with effect from 12.4.1973. Prior to it Bihar Wakf Act, 1947, which stood repealed when the Central Act came into force. The Mutawalli is merely a manager of the Wakf and is directly under the control and superintendence of the Board and may even be removed from his office in accordance with Section 43. He has to carryout the directions of the Board and to perform other duties as specified in Section 36. There is nothing in the Act which empowers a Mutawalli to institute and defend suit and proceedings in a Court of law relating to Wakfs on his own.

9. The above decision was given by the Patna High Court, after going through the provisions of Wakf Act, 1954. Therefore, it has no direct application to the facts of the case which was initiated under the Wakf Act, 1995.

10. There is no specific provision under the Wakf Act that the Wakf shall be sued or sued by the Board or for prior sanction for the Mutawalli who filed a suit on behalf of the Wakf. In the light of the above observations, I do not find any force in the contention of the revision petitioner regarding the maintainability of the suit filed by Mutawalli representing the Wakf. This point is accordingly held against the revision petitioner and in favour of the respondent.

11. Point No. 2: It is the contention of the revision petitioner that the suit is not maintainable without making the Wakf Board as one of the parties to the suit. In this regard, Section 92 of the Act is relevant which reads as follows:

'Section 92: Board to be party to suit or proceeding: In any suit or proceeding in respect of a Wakf or any Wakf property the Board may appear and plead as a party to the suit or proceedings.'

12. As per this provision, it is not mandatory that the Board should be made a party to the proceedings, but the Board may appear and plead as a party to the proceedings, since the suit is instituted on behalf of the Wakf and as it is in no way affecting the interest of the Wakf, the Board is not a necessary party to the suit. Therefore, I do not find any force in the contention of the learned Counsel for the revision petitioner. This point is accordingly held against the revision petitioner.

13. In the result, the civil revision petition is dismissed, but under the circumstances without costs. The learned Counsel for the revision petitioner at the end of the arguments submitted that in view of the Court coming to a conclusion that the order of the Tribunal is liable to be confirmed, three months time may be granted for eviction. Keeping in view the totality of the circumstances, I am inclined to grant him the time till 28.2.2004. If the petitioner fails to vacate the premises by 28.2.2004, the respondent is at liberty to take necessary steps to evict him according to law.