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2020 Supreme(Guj) 766
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Saiyed Imtiyazali Ashrafmiya – Appellant
Versus
Gujarat State Waqf Board – Respondent
R/Civil Revision Application No. 138 of 2020
Decided on : 08-10-2020
Advocate Appeared:
For the Appellant : MS MAMTA R. VYAS
For the Respondent: MR MEHUL SHARAD SHAH, MR MEHULSHARAD SHAH, adv
Point of Law: Section 83 (6) specifically provides that Civil Procedure Code is not applicable; (C) petition in present format not maintainable as Petitioners ought to have preferred civil revision as per Section 83(9) proviso; (D) no evidence produced to show that petitioners are tenants. Even otherwise impugned order is just, legal and reasonable and therefore no interference is required at the behest of Petitioners who have been unsuccessful to prove their right to occupy said property.
Headnote:
Waqf Act, 1995 - Section 54 – Property is demolished - Waqf property - Legal tenants - Impugned order passed by Tribunal in Waqf Application is hereby quashed and set aside - Matter is remanded back to the Gujarat State Waqf Tribunal to pass a fresh denovo order in Waqf Application after considering evidence on record as well as after giving adequate opportunity of hearing to all parties and pass a reasoned order after considering and adjudicating the applications filed by petitioners in accordance with law.
Facts of the case: Petitioners submitted that finding recorded by tribunal with regard to non production of original rent receipts by petitioners is incorrect - She has submitted that vide list of documents, which is at in this compilation, receipts have been produced by petitioners, of different dates - She has further submitted that for arriving at such a finding, tribunal has neither considered or rather referred any of documents produced nor any material is taken into consideration by tribunal for reaching at such a finding, and therefore, she has submitted that impugned order is required to be interfered with.
Findings of the court: It is not possible to discern as to what weighed with Tribunal to reject application as there is no discussion or any reason given by Tribunal, except coming to final conclusion that application are required to be rejected by giving findings in negative, for issue framed by Tribuna - Waqf property without considering panchnama as well as reply of respondent wherein, it is specifically mentioned that petitioner are tenants of Waqf property but Tribunal has not considered that aspect of matter - Moreover, Tribunal has not considered facts recorded in panchnama which was carried out - Thus, it prima facie appears that impugned order passed by Tribunal is contrary to facts and evidence emerging form record as well as without giving any reason for rejecting application - Considering evidence on record as well as after giving adequate opportunity of hearing to all parties and pass a reasoned order after considering and adjudicating applications filed by petitioners in accordance with law - Such exercise shall be completed within six months from date of receipt of writ of this order.
Result: Civil Revision Application is partly allowed.
ORDER :
1. Heard learned advocate Ms. Mamta Vyas for the petitioners, learned advocate Mr. Mehul Sharad Shah for respondents no. 2 and 3 and learned advocate Mr. Utsav Sheth for learned advocate Mr. Manish Shah for the respondent no.1 through video conference.
2. Rule returnable forthwith. Learned advocates Mr. Mehul Sharad Shah and Utsav Sheth waives service of notice of rule on behalf of the respective respondents.
3. Having regard to the controversy involved in the matter in narrow compass, with consent of all the parties, the matter is taken up for final hearing.
4. The petitioners have earlier preferred Special Civil Application No.7374 of 2020, challenging the order dated 18.02.2020, passed by the Gujarat State Waqf Tribunal qua the petitioners.
5. This Court (Coram: Hon'ble Mr.Justice Umesh A. Trivedi) passed the following order on 11.06.2020, in Special Civil Application No.7374 of 2020:
“Heard Ms. Mamta Vyas, learned advocate for the petitioners.
Drawing attention to the impugned order, more particularly, the finding recorded at page 23 paragraph 20, she submitted that the finding recorded by the tribunal with regard to non production of original rent receipts by the petitioners is incorrect. She has submitted that vide list of documents, which is at page 58, in this compilation, the receipts have been produced by the petitioners, of different dates. She has further submitted that for arriving at such a finding, the tribunal has neither considered or rather referred any of the documents produced nor any material is taken into consideration by the tribunal for reaching at such a finding, and therefore, she has submitted that the impugned order is required to be interfered with. At the same time, she has submitted that the said order has come to be passed on 18.02.2020 and thereafter its implementation came to be stayed till 19.03.2020 on an application given by the petitioners through their advocate vide Exh.34. Subsequent thereto, in view of the lockdown and closure of all temples and shrines etc., though the petition is filed, it could not be taken up for hearing. However, recently when lockdown is eased and with the opening of temples and shrines etc., if their tenanted property is demolished, considering it to be an encroachment, an irreparable loss would be caused to them. She has further submitted that tribunal has directed removal of the said encroachment within 15 days from the date of the order. However, as on today, according to the submission of Ms. Mamta Vyas, learned advocate for the petitioners, it has not been removed yet.
In view thereof, NOTICE returnable on 02.07.2020. Meanwhile, the impugned order of the tribunal dated 18.02.2020 so far as it relates to the petitioners is hereby stayed.”
6. Thereafter, on raising preliminary objection by the learned advocate Mr. Manish Shah appearing for the Waqf Board, that Civil Revision Application would be maintainable against the order passed by the Waqf Tribunal, and therefore, this Court (Coram: Hon'ble Mr.Justice G.R.Udhwani), by the order dated 05.08.2020, granted permission to convert the Special Civil Application into Civil Revision Application which reads thus:
“Instead of statutory revision, the petition is filed; maintainability of which is being objected to by learned Counsel Mr.Manish Shah appearing for respondent No.1. Confronted with the above situation, learned counsel for the petitioner seeks permission to convert this SCA into CRA in view of the decision rendered in SCA No.18852 of 2014. The conversion is permitted. The converted CRA shall now be listed next week with all the appearances as recorded in this petition. Interim-relief to continue till then.”
7. Learned advocate Ms. Vyas appearing for the petitioners submitted that the applicants are the tenants of the respondent No.2-The Dargah Sharif Hasrat Mira Sayedali Datar Waqf Trust, having Waqf Register No. B/240/Mehsana. It was pointed out that some person filed an application, for alleged encroachm
