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2022 Supreme(Pat) 59
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, MADHURESH PRASAD, JJ.
Md. Ali Son of Late Resident of Mohalla-Rambagh Kanhauli Bishnudutt, P.S.- Mithanpura, P.O.- Ramna, District- Muzaffarpur - Petitioners
Versus
The State of Bihar through Principal Secretary, Department of Minority Welfare, Govt. of Bihar - Respondents
Civil Writ Jurisdiction Case No.8952 of 2021
Decided On : 15-02-2022
Advocate Appeared:
For the Petitioners:Mr. Asif Ali, Advocate Mr. Majid Mahboob Khan, Advocate
For the Respondents:Mr. Md. Helal Ahmad, Advocate (Waqf Board) Mr. Rajkishore Rai
Section 55 of the Waqf Act provides the procedure for enforcement of orders for removal of encroachment from Waqf property by the Tribunal.
Headnote:
Waqf Property - Enforcement of Orders - Waqf Act, 1995, Section 54, Section 55
Fact of the Case:
The petitioners sought quashing of an order to remove encroachment on a Waqf property. The Chief Executive Officer and the Tribunal had issued orders for eviction, which the petitioners failed to comply with. The petitioners filed a writ application seeking to quash the orders.
Finding of the Court:
The court found that the petitioners' argument that the order of the Tribunal should be executed by a Civil Court was misconceived. It held that Section 55 of the Waqf Act deals directly with the enforcement of orders for removal of encroachment from Waqf property.
Issues: The main issue was whether the orders for eviction issued by the Chief Executive Officer and the Tribunal were enforceable and whether the petitioners' resort to writ jurisdiction was appropriate.
Ratio Decidendi: The court held that Section 55 of the Act provides the procedure for removal of encroachments from Waqf property and enforcement of orders for removal by the Tribunal. It also found that the petitioners misused the process of the Court by filing the writ application instead of availing the alternative remedy of filing a Civil Revision.
Final Decision: The court dismissed the writ application and imposed a cost of Rs. 2000 to be deposited in the account of the Bihar State Sunni Waqf Board within two months.
JUDGMENT :
CHAKRADHARI SHARAN SINGH, J.
This writ application has been filed seeking quashing of an order issued by memo No. 147 dated 14.01.2021 passed by the Chief Executive Officer, Bihar State Sunni Waqf Board 'the Board' in short), Patna in compliance of an order dated 05.04.2019 passed by the Bihar State Waqf Tribunal ('the Tribunal' in short). Against the said order dated 05.04.2019, the petitioners have filed Civil Revision applications before this Court registered as C.R. No. 99 of 2019 and C.R. No. 94 of 2019 under the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995 (hereinafter referred to as ‘the Act’), which are pending. No interim order has been passed in the said Civil Revision Applications by this Court in relation to operation of the aforesaid order passed by the Tribunal.
2. There is a finding recorded by the Chief Executive Officer of the Board in an order dated 06.02.2017 (Annexure-2), whereby the petitioners have been declared to be in unauthorized occupation of the Kanhauli Mosque, which has been held to be a Waqf property dedicated by Haji Khuda Bux. It is worthwhile mentioning that Section 54 of the Act casts a duty upon the Chief Executive Officer of the Board, on receiving any complaint or on his own motion that there has been an encroachment of any land, building, space or other property which is a Waqf property and which has been registered as such under the Act, to put such enchroachers on show cause notice, for removing the encroachment. Sub-section (3) of Section 54 reads thus, :-
“54(3). If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is waqf property and that there has been an encroachment on any such waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the waqf.”
3. The Chief Executive Officer passed the aforesaid order dated 06.02.2017 under Section 54(3) of the Act and sent all relevant documents to the Tribunal for grant of eviction order against the encroachers, including these petitioners. Sub-section (4) of Section 54 confers upon the Tribunal jurisdiction to make an order of eviction directing that the waqf property shall be evicted by all persons who may be in occupation thereof or any part thereof. The proviso to sub-section (4) of Section 54 allows the Tribunal to give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer.
4. On the application made by the Chief Executive Officer, under Section 54(3) of the Act, as noted above, the Tribunal has passed the aforesaid order dated 05.04.2019 under Section 54(4) of the Act in Eviction Application No. 5 of 2017. It is evident from the order of the Tribunal that the petitioner had participated in the proceeding before the Tribunal. Following is the operative portion of the order passed by the Tribunal:-
“Accordingly it is hereby ordered that the opposite parties being held as encroachers are directed to vacate the land in their illegal possession of waqf estate No. 1190 the detail of which given at the foot of the eviction application within 45 days from the day of affixture of the order and hand over the possession to managing committee or waqf Board failing which they shall be held liable to pay damages @ Rs. 2000/-per day till vacation. The C.E.O. is direction to affix the copy of this order at some conspicuous place of the waqf estate No. 1190 and after lapse of statutory period of 45 days evict the opposite parties from illegal possession of the properties of the waqf estate no. 1190 or authorised any persons/authority to evict the opposite parties and take possession and if the encroachers do not va
