Telangana State Wakf Board & Anr. vs Mohamed Muzafar

1.2 The appellants at the first instance had issued a notice to the respondent terminating the tenancy relating to the suit ‘A’ schedule property. A further notice was issued in respect of the suit ‘B’ schedule property requiring the respondent to vacate the encroached portion. The respondent, by his reply notice denied that the property in question was a Wakf property. In the said circumstance, the instant case cannot be deemed as an admitted case of the property being Wakf property as in the reply notice itself the respondent had disputed the same. It is in that circumstance the appellants being of the impression that the first issue to be established is that the property in question is the Wakf property, which could be considered by the tribunal, had filed the suit before the Wakf tribunal. [Para 20][75-C-E]

1.3 The inclusion of the property in the gazette dated 29.12.1988 which was disputed by the respondent was taken into consideration. In that light, through the discussion and conclusion reached by the High Court while adverting to the submission of encroachment of 40 sq. yards which was described in Schedule ‘B’ to the suit it has indicated that there is no evidence of required standard as to how the extent of Wakf property had increased from 667.8 sq. yards to 998.66 sq. yards and by mere recital in the gazette notification and the resurvey report, the Muntakhab and the amended Muntakhab would not be sufficient to decide the suit since the tenant had denied the case of the plaintiffs that the ‘B’ schedule property is a Wakf property. The High Court further held that the aspect as to whether the ‘B’ schedule property is a Wakf property or not cannot be decided without affording an opportunity to the tenant to question the correctness of the contents of the gazette notification by following the procedure established by law. [Para 21][76-C-F]

1.4 The very observations made by the High Court, would indicate that the suit was maintainable before the Wakf tribunal in the facts and circumstances of the instant case. This is so for the reason that the High Court noticed that the grievance put forth by the respondent to contend that the property is not Wakf property is by disputing the extent as shown in the gazette notification as 998.66 sq. yards since according to the respondent the actual extent is 667.8 sq. yards and therefore the land in occupation by the respondent is beyond that extent. Therefore, in fact the submission put forth by the tenant is with reference to the gazette notification and to submit that the extent of property in occupation is not within the extent as shown in the gazette notification or otherwise. The dispute in effect is to question the extent of land beyond 667.8 sq. yards being included to be the property of the Wakf Institution which is included in the list and as such whether that extent in the list is Wakf property. That will be a question which falls under Section 7 of the Waqf Act. The very observation of the High Court indicating that an opportunity is to be afforded to the respondent to question the correctness of the contents of the gazette notification by following the procedure established by law is to allow the respondent to invoke the provisions of Section 6 and 7 of the Wakf Act and seek appropriate orders. [Para 22][76-F-H; 77-A-C]

1.5 Though the legal remedy had not been availed by the respondent within the time frame as provided under Section 6 of the Act, the issue had fallen for consideration before the Wakf tribunal in view of the defence put forth by the respondent and the Wakf tribunal had rendered its finding on that aspect based on the evidence placed before it. Since the gazette notification had been questioned to indicate that the property which is in the occupation of the respondent was not a part of the notified Wakf property, the same applied both to the suit Schedule ‘A’ as well as Schedule ‘B’ properties. In such circumstance, the Wakf tribunal had the jurisdiction to determine that question which had been framed as an issue in this suit. Further , on the facts evolving in the instant case, the tribunal had relied upon the evidence available and had arrived at the conclusion that the property in question is Wakf property and had accordingly decreed the suit. [Para 23][77-C-E]

1.6 The judgment passed by the Wakf tribunal was rendered in a suit which was maintainable before the Wakf tribunal and it had the jurisdiction to do so. Insofar as the nature of the consideration made, it is noticed that the evidence available on record has been analysed in its correct perspective and an appropriate conclusion has been reached by the Wakf tribunal. On the other hand, the High Court did not adhere to the well-established norm of limited scope available in a Revision Petition. Further the conclusion reached by the High Court to hold that the suit was not maintainable before the tribunal is also not justified. The order passed by the High Court, therefore, cannot be sustained, and is set aside. The judgment passed by the State Wakf Tribunal is restored. The respondent is granted three months’ time to vacate and handover vacant possession of the suit schedule ‘A’ and ‘B’ properties subject to payment of rent, including arrears. [Para 24, 25][77-F-H; 78-A-C] Ramesh Gobindram v. Sugra Humayun Mirza Wakf

(2010) 8 SCC 726 : [2010] 10 SCR 945; Kiran Devi v. Bihar State Sunni Wakf Board and Others (2021) SCC Online SC 280; Faseela M. v. Munnerul Islam Madrasa Committee and Another (2014) 16 SCC 38 : [2014] 4 SCR 613; Board of Wakf, West Bengal and Another v. Anis Fatma Begum and Another (2010) 14 SCC 588 : [2010] 13 SCR 1063; Haryana Wakf Board versus Mahesh Kumar (2014) 16 SCC 45 : [2013] 12 SCR 596; Punjab Wakf Board v. Sham Singh Harike (2019)

4 SCC 698 : [2019] 2 SCR 61 – referred to.