IMPORTANT POINT
Discretionary relief under Article 226 of the Constitution of India is not available in cases involving eviction from Waqf properties, and the court rejected the petitioner's contentions related to due process and eviction procedures.

JUDGMENT

Prateek Jalan, J. (Oral)

CM APPL. 48949/2023 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

W.P.(C) 12401/2023 & CM APPL. 48948/2023 (for stay)

1. The petitioner has filed the present writ petition against notices dated 25.08.2023 and 11.09.2023 issued by the Sub Divisional Magistrate (Mehrauli), Government of NCT of Delhi, in respect of eviction of the petitioner from property bearing No. 1068, Ward 1, Khasra No. 1151/3, Mehrauli, New Delhi-110030 ["subject property"].

2. The petitioner is the plaintiff in civil proceedings being ML No. 29/2018,[In the pleadings, it has been mentioned that the petitioner filed ML No.27/2018. However, as evident from the order dated 04.10.2019, attached as Annexure P8 of the petition, it is clear that the petitioner has filed ML No. 19/2018.] which is pending before the learned Waqf Tribunal. In the said suit, the petitioner has sought a declaration that the subject property is not a Waqf property under the Waqf Act, 1995 ["the Act"] and a declaration that an eviction order and notice dated 24.08.2018 passed by the respondents be declared null and void. He has also sought an injunction against the respondents to restrain them from coercively dispossessing him, and a mandatory injunction directing demarcation and declaration of Waqf property. Mr. Mehul Gupta, learned counsel for the petitioner, states that, in the same suit, the Delhi Waqf Board ["DWB"] has made a counterclaim seeking cancellation of a sale deed in favour of the petitioner, and vacation of the property by the petitioner alongwith the occupation charges.

3. An application filed by the petitioner under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 was rejected by the learned Tribunal vide order dated 04.10.2019. Against the aforesaid order, the petitioner approached this Court in C.R.P. 225/2019. The petition was heard alongwith Civil Revision Petition Nos. 223/2019 and 224/2019, filed by other occupants, and came to be dismissed by a judgment of this Court dated 15.12.2021. One of the other occupants [not the petitioner herein] sought review of the aforesaid judgment in Review Petition No. 35/2022, which was dismissed by a judgment dated 22.02.2022.

4. The contention of Mr. Gupta is that the effect of the judgment dated 15.12.2021 is to permit DWB to evict the petitioner in accordance with law. He submits that Section 54 of the Act requires eviction to be undertaken only upon an order of the Tribunal, and the notices impugned in this petition are, therefore, not in accordance with law. Mr. Gupta also submits that eviction of the petitioner ought not to be permitted, as the counterclaim of the DWB for eviction of the petitioner remains pending

5. Having heard Mr. Gupta, I am of the view that the discretionary relief under Article 226 of the Constitution of India is not available to the petitioner, particularly in light of the findings recorded by this Court in the judgment dated 15.12.2021 in C.R.P. 223/2019 & other connected matters.[Mehvish Adil v. Delhi Wakf Board, 2021 SCC OnLine Del 5227]

6. Paragraph 2 and 18 of the aforesaid judgement are relevant in this regard:

"2. A perusal of the scheme of the Waqf Act shows that this statute contemplates the creation of Waqf Boards which, in Delhi, is the Delhi Wakf Board/Respondent No.1 (hereinafter "Waqf Board"). The Waqf Board conducts surveys as per the Waqf Act. Disputes relating to Waqf properties are resolved by the Waqf Tribunal under Sections 6 & 7 of the Waqf Act. The constitution of the Waqf Board is provided for in Chapter IV of the Waqf Act, including the duties and functions of the Waqf Board. One such duty of the Waqf Board is to ensure removal of encroachments from Waqf properties under Section 54 of the Waqf Act. Section 55 of the Waqf Act further provides that the Executive Magistrate shall take action for the enforcement of such orders made under Section 54, in case the occupant against whom evict