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IN THE HIGH COURT OF JUDICATURE AT PATNA
KHATIM REZA, J.
Civil Revision No.152 of 2023
(30.1.2025)
Mirza Akhtar Hussain & Ors. … Petitioners
vs.
Bihar State Shia Waqf Board, Patna & Ors. ... Opp. Parties
Code of Civil Procedure, 1908 – Section 115 – read with the Waqf Act, 1995 – Ss. 3(i), 32(2)(g), 37(i)(c) and 63 – Revision against the judgment declaring the petitioners as encroachers over the Waqf property in an Eviction Application filed by the Chief Executive Officer, Bihar State Shia Waqf Board – Petitioner no. 1 claims to be the Mutawalli – A conjoint reading of Sections 3(1), 32(2)(g), 37(1(c) and 63 of the Waqf Act, 1995 makes it explicitly clear that, if the Waqf is created by a deed or instrument, the rule of succession to the office of Mutawalli provided in such deed or instrument should be followed while making appointment to that office – Clause (e) to sub-section (1) of Section 37, indicates that, the rule of succession to the office of Mutawalli shall be governed by the provisions under the Waqf deed and, in absence of any provisions under such deed or instrument, the office of Mutawalli may become hereditary by custom or usage – Further, It is evident from a plain reading of Section 63 that, the power of the Board to appoint Mutawalli of a Waqf, can be exercised only when there is no one to be appointed to that officer under the terms of the deed of the Waqf or where the right of any person to act as Mutawalli is disputed – In the instant case as per the recital of Wasiyatnama executed by Waqif/1st Mutawalli dated 04.01.1944 the rule of succession to the office of Mutawalli is enumerated – The founder (Waqif) has laid down the rule of succession to the office in which case the rule has to be adhered to and where the office of Mutawalli be hereditary by custom in which case the custom should be followed – It is admitted fact that petitioner no. 1 has not been removed by the Waqf Board from the Mutawalliship as claimed by the petitioner no. 1 and since the documents were considered in its spirit by the Tribunal whether petitioner no. 1 and his family members has right to reside on the basis of Wasiyatnama executed by Mirza Wazir Hussain (Waqif/Mutawalli of the Waqf Estate), it amount to perversity of the impugned order passed by the learned Tribunal – The learned Waqf Tribunal has not exercised its jurisdiction therefore, the impugned order is set aside – the Eviction Application No 24/2020 remanded for a fresh consideration – State quo as existing on 4.9.2024 to be maintained till the disposal. (Paras 21, 23, 26 to 30)
ORDER
Heard Mr. Syed Qaiser Hassan, learned counsel for the petitioners, Mr. Md Anjum Akhter, learned counsel for the opposite party no. 1 & 2 and Mr. Shamimul Hooda, learned counsel for the opposite party no. 3.
2. This Civil Revision Application has been filed to question the judgment and order dated 10.11.2023 passed by Bihar State Waqf Tribunal (hereinafter referred to as ‘Tribunal’) in Eviction Application No. 24 of 2020 whereby, eviction application filed by Chief Executive Officer, Bihar State Shia Waqf Board for declaring opposite parties (petitioners) as encroacher over the Waqf property, in question, has been allowed by learned Tribunal.
3. The aforesaid eviction application was filed in pursuance of order dated 29.08.2019 passed by the Chief Executive Officer, Bihar State Shia Waqf Board, Patna under Section 54 of the Waqf Act, 1995 (Amendment Act, 2013) for removal/eviction of opposite parties from Waqf property and they have been declared encroacher by the Waqf Board of the premises of Mirza Wazir Hussain Waqf Estate, Waqf No. 230/Patna.
4. The case of the Waqf Board is that, opposite party no. 3 informed the Chief Executive Officer that opposite parties (petitioners) have illegally encroached the Waqf property of the aforesaid Waqf Estate. Upon this information, the applicant sent notice in form 52 to the opposite parties (petitioners) asking them to furnish their explanation as to why an order for removal of encroachment should not be passed against them. After receiving of the said notice, petitioner no. 1 namely, Mirza Akhtar Hussain has filed reply to show cause wherein, he himself claimed to be Mutawalli of the said Waqf Estate. It is further contended that the said Waqf Estate was created by his maternal great grandfather namely, Mirza Wazir Hussain and after its creation, he himself was appointed as Mutawalli of the said Waqf Estate. During his lifetime, Mirza Wazir Hussain had nominated/appointed his son, Mirza Sattar Hussain as Mutawalli on 04.01.1944 thereafter, Mirza Sattar Hussain had nominated/appointed his son inlaw, Quaiser Hussain as Mutawalli on 08.12.1962 and Quaiser Hussain nominated/appointed Mirza Akhtar Hussain (petitioner no. 1) as Mutawalli on 12.10.1982 and since then he is discharging his duty and he has also questioned the appointment of Mirza Haider Ali as Mutawalli of Mirza Wazir Hussain Waqf Estate. Petitioner no. 2 to 7 (petitioner no. 2 to 4 are sons of petitioner no. 1 and petitioner no. 5 to 7 are daughters and sons of late Quasir Hussain respectively) also filed their reply to show cause and adopted the reply filed by Mirza Akhtar Hussain.
5. However, in view of order passed in Criminal Miscellaneous No. 47321 of 2014, an enquiry was conducted by the then Chief Executive Officer along with Administrative Officer and on the basis of enquiry report dated 07.03.2019, the Chief Executive Officer passed an order dated 29.08.2019 under Section 54 of the Waqf Act declaring opposite parties as encroacher under Section 3(ee) of the Waqf Estate.
6. In view of Waqf (Amendment) Act, 2013, the Waqf Board filed Eviction Application No. 24 of 2020 before the learned Waqf Tribunal for grant of order of eviction of opposite parties (petitioners) for removing the encroachment from the Waqf premises. It is further contended that opposite parties (petitioners) are not the tenant nor the owner of the Waqf premises. They occupied the premises as encroacher of the Waqf Estate No. 230/Patna.
7. On summon, the opposite parties (petitioners) filed their reply wherein, it is pleaded that the Mirza Wazir Hussain Waqf Estate was created by great grandfather of petitioner no. 1 namely, Mirza Wazir Hussain. It is further pleaded that it is a private Waqf for Masjid & Imambara and the Waqif has constructed a Hujra over the part of Plot No. 1216 for his residence and to look after and take care of Mosque and Imambara. It is further contended that the Waqif was living in that Hujra with his family members. Waqif namely
Removal from Mutawalliship of Waqf estate – Disputed question of facts which cannot be gone into in a writ petition under Article 226 of Constitution of India.
The Waqf Board must adhere to the rules of succession as per the waqf deed, reinforcing the principle of governance according to established customs and the intent of the waqif.
A Waqf cannot be created within an existing Waqf, and the Waqf Board lacks authority to create new Waqfs under the Waqf Act.
The court affirmed that interested persons in a Waqf can maintain a suit for removal of encroachment, and that expired leases result in automatic classification as encroachers under the Waqf Act.
The court affirmed that interested persons in a Waqf can file for removal of encroachment, and that expired leases render occupants encroachers under the Waqf Act.
A person interested in a Waqf can maintain a suit for removal of encroachment, and an expired lease results in automatic classification as an encroacher under the Waqf Act.
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