03 Aug 2121

In circumstances where it is to determine whether a particular land is a part of notified Wakf Graveyard, the Wakf Tribunal had the jurisdiction - Supreme Court of India

Case : Telangana State Wakf Board & Anr. v. Mohamed Muzafar Civil Apeeal No. 4522 of 2021 (Arising out of SLP (CIVIL) No. 28786 of 2015)

Court : Supreme Court of India

Bench : Justice Hemant Gupta and Justice A. S. Bopanna

Decided on : 03 Aug 2121

The Relevant Statutes

Article 227 of the Constitution of India

Section 6, 7, 83, 83(9), 85 of the Wakf Act, 1955

Section 116 of the Indian Evidence Act, 1872

Section 9 of Civil Procedure Act, 1908

Brief Facts & Procedural History

1. The Andhra Pradesh State Wakf Board is the first appellant, while the Mutawalli of the registered Wakf institution known as Graveyard Mir Rahmat Ali Shah is the second. The aforementioned Wakf institution is claimed to have been registered under Muntakhab No. 998 and afterwards enrolled in the book of endowment with a 666 sq. yard area. The Wakf Board revised the Muntakhab in a decision to adjust the Wakf institution's land to 998.66 square yards, which was published in a gazette notification dated December 29, 1988. Near Tek Masjid in Nampally, Hyderabad is a wakf institution/graveyard.

2. The Mutawalli designated by the Wakf Board, whose name is stated in the above-mentioned gazette, was the father of appellant No.2, Late Mir Dawood Ali. During the lifetime of appellant No.2, the respondent's father, Late M.A Qayyum, received on rent the properties bearing Municipal No. 5­7­420/2 measuring 90.16 sq. yards belonging to the Wakf institution, according to the appellant. The respondent's father had a firewood stand, which he eventually turned into a hotel, which he has been operating under the name and style "Hotel Najran."

3. The appellant's position was that the respondent's father was paying rent on the property and that the rent was being increased from time to time. The respondent continued his father's tenancy in the aforementioned premises when he became a major, and the monthly rent at the time of filing the action was Rs.1,500/­ excluding electricity and water expenses. The respondent is said to have obtained the lease in 1995, and the rent was paid to the Wakf Board since the institution was under the direct control of the Board at the time due to the death of the original Mutawalli, i.e., appellant No.2's father. Following that, the appellant No.2, as the successor, was appointed Mutawalli in place of his father by procedures dated 04.07.2005, which were published in the gazette on 04.08.2005.

4. Through a letter, appellant No.2 informed all of the tenants of the Wakf institution's property of this fact, and the rent was then paid straight to him. The rent on the premises occupied by the respondent was not being paid regularly, amounting to Rs.24,500/­. Despite numerous demands, the respondent did not pay the arrears, which totalled Rs.10,500/­, for seven months beginning in November 2005. As a result, the responder was obligated to pay the whole sum that was due and unpaid.

5. The appellant further claimed that, while the Wakf institution was under the direct supervision of the Wakf Board, the respondent encroached on a 40-square-yard graveyard site on the western side of the tenanted premises, built a road there, and began operating a firewood stand. When appellant No. 2 gained command, he noticed the same thing.

6. The respondent did not evacuate both the tenanted and encroached portions of the property, notwithstanding appellant No.2's request that the respondent pay damages for the use and unlawful occupancy and pay damages for the use and illegal occupation. In this context, appellant No.2 was served with a legal notice terminating the tenancy of the tenanted section with effect from July 1, 2006, and demanding that the encroachment be removed. On receipt of the notice, the respondent paid Rs.4,500/­ as part of the arrears of rent through money order, as well as a sum of Rs.4,500/­ to the appellant No.2 for rent for August, September, and October 2005. The respondent, on the other hand, was served with a reply notice in which he disputed that the tenanted piece and the allegedly encroached section in question were Wakf land and that his father had rented it. Furthermore, the appellants' allegations were all dismissed.

7. In light of the above, the appellants were forced to file an O.S. No.126/2006 action with the Andhra Pradesh State Wakf Tribunal in Hyderabad, demanding eviction of the respondent from the Wakf institution's land. The above-mentioned tenanted section was labelled Schedule ‘A' in the plaint, whereas the encroached portion was labelled Schedule ‘B.' The respondent, who was named as a defendant in the complaint, attended and filed his written statement, in which he claimed, among other things, that the suit property is not a Wakf property and that the graveyard exhibit filed by the appellants is 667.8 square yards in size.

8. It was also argued that the gazette announcement explicitly stated that this graveyard lacked non-agricultural areas such as mulgies and homes, among other things. He also stated that the property with the number 5­7­420/2 belonged to his father. The area of 998.66 square yards mentioned in the gazette announcement was contested, and it was claimed that the same did not exist. Furthermore, the case presented by the appellants as plaintiffs in the complaint was contested in its entirety.

9. As PW.1, appellant No. 2 questioned himself. However, have a look at Mr Mohd. Yousuf Qureshi was examined as PW.2, however, he was not called for cross-examination, therefore his chief examination was skipped. The documents labelled Exhibits A1 through A24 were also relied on by the appellants. The respondent, as DW.1, took the stand and was cross-examined by a witness, Mr Mohd. Abdul Aziz served as DW2 and relied on papers from Exhibits B1 to B40. After considering the opposing arguments and the evidence presented, the Wakf tribunal ruled in favour of the appellants and decided the suit, declaring the suit schedule properties to be Wakf institution property and ordering the respondent to evacuate the suit schedule properties. The Wakf tribunal issued a ruling to that effect on October 12, 2012.

10. The respondent, claiming to be aggrieved by the verdict, filed a Revision Petition in Civil Revision Petition No.1331/2013 before the High Court of Judicature in Hyderabad under Section 83 of the Wakf Act, 1955. While considering the opposing arguments, the High Court granted the Revision Petition and reversed the Wakf tribunal's decision. On June 2, 2014, the High Court issued the aforementioned order. It has cited the Honourable Supreme Court of India ruling in Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCC 726 and found that the matter was not maintainable before the Wakf tribunal and that the parties were free to pursue their legal remedies. As a result, the appellants, who claim to be aggrieved by the aforementioned judgement, have filed their appeal with the Honourable Supreme Court of India.

The Issue(s) of the Case

Whether the impugned order dated 2 June 2014 passed by the Honourable High Court of Judicature at Hyderabad valid?

The Observations of the Court

1. Honourable Supreme Court if India observed that the appellants had sent a notice to the respondent in the first instance, terminating the lease about the suit ‘A' schedule property. In the case of the suit ‘B' schedule property, a new notice was issued, requiring the defendant to evacuate the encroached area. The respondent denied that the property in question was a Wakf property in his reply notice. In the circumstances, the current case cannot be regarded as an acknowledged case of the property being Wakf property because the respondent had challenged the same in the reply notice. In that case, the appellants brought the complaint before the Wakf Tribunal, believing that the first issue to be proven is that the land in question is Wakf property, which the tribunal may evaluate.

2. Honourable Supreme Court of India also observes that Apart from the respondent's contention, the High Court has made detailed reference to the respondent's contention regarding the gazette notification relating to the property as claimed by the appellants and the discrepancy as pointed out by the respondent by claiming that the extent mentioned is not the same as the extent claimed by the appellants. 998.66 sq. yards, not 998.66 sq. yards, as the appellants contend. The inclusion of the property in the gazette, which the respondent contested, was also taken into account. The inclusion of the property in the gazette, which the respondent contested, was also taken into account. In light of this, the High Court's discussion and conclusion in paragraphs 12 and 13 (b) of the order, while referring to the contention of encroachment of 40 square yards described in Schedule "B" to the suit, has indicated that there is no evidence of the required standard as to how the Wakf property's extent increased from 667.8 square yards to 998.66 square yards. The High Court further stated that the question of whether the ‘B' schedule property is a Wakf property or not can be determined without allowing the tenant to challenge the accuracy of the substance of the gazette notification by following the legal procedure.

3. Honourable Supreme Court of India also observes that in the facts and circumstances of this case, the suit might be brought before the Wakf Tribunal. This is because the High Court notes that the respondent's grievance in claiming that the land is not Wakf property is based on contesting the extent as indicated in the gazette notification of 998.66 sq. ft. Since the respondent claims that the real area is 667.8 sq. yards, as a result, the respondent's land under-occupancy is beyond that limit. As a result, the tenant's argument is based on the gazette notice, and the tenant claims that the extent of the property in occupation is not within the scope of the gazette notification or otherwise. The disagreement in effect is about the extent of land beyond 667.8 square yards that is listed in the list as Wakf property, and whether that extension is Wakf property. That is a question covered under Section 7 of the Waqf Act of 1955. The High Court's observation that the respondent should be allowed to challenge the correctness of the contents of the gazette notification by following the legal procedure allows the respondent to invoke the provisions of Sections 6 and 7 of the Wakf Act, 1955 and seek appropriate orders.

The Decision Held by the Court

Honourable Supreme Court of India held 

1. The judgement of the High Court of Judicature in Hyderabad, dated 02.06.2014, in Civil Revision Petition No.1331/2013, is overturned.

2. The ruling of the Andhra Pradesh State Wakf Tribunal Hyderabad in O.S. No. 126/2006, which was issued on October 12, 2012, has been reinstated.

3. The respondent is given three months to leave and deliver over vacant possession of the suit schedule ‘A' and ‘B' properties in exchange for rent, including arrears, being paid.

4. As a result, the appeal is granted with no order as to expenses.

5. If there is a pending application, it will be dismissed.

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