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2023 Supreme(All) 1585
IN THE HIGH COURT OF ALLAHABAD
ALOK MATHUR, J.
C.E.O. U.P. Sunni Central Waqf Board Lucknow – Appellant
Versus
Mohammad Nihal And Ors. – Respondents
Civil Revision No. - 35 of 2022
Decided on : 11-12-2023
Advocate Appeared:
For the Appellant : Syed Aftab Ahmad
For the Respondent: Adil Hussain, Farhan Habib, Syed Qamar Hasan Rizvi
The distinction between the procedures under different sections of the Waqf Act and the applicability of court fee for specific proceedings.
Headnote:
Court Fee - Waqf Property - Section 45 - Section 54(4) of the Waqf Act, 1995 - Court Fee Act, 1870
Fact of the Case:
The Chief Executive Officer filed a complaint regarding non-payment of rent and sought eviction of encroachers from a waqf property. The U.P. Waqf Tribunal held that the proceedings initiated under Section 45 are akin to suit proceedings and directed the petitioner to pay court fee.
Finding of the Court:
The court found that the procedure under Section 54 for removal of encroachers is distinct from the procedure for suit proceedings under Sections 6 and 7 of the Waqf Act, and the petitioner was not liable to pay court fee for the application under Section 54.
Issues: Whether the proceedings under Section 54 of the Waqf Act are akin to suit proceedings and whether court fee is payable for such proceedings.
Ratio Decidendi: The court held that the procedure under Section 54 is different from the procedure for suit proceedings under Sections 6 and 7 of the Act, and there is a clear distinction with regard to the payment of court fee.
Final Decision: The court set aside the order of the U.P. Waqf Tribunal and directed the Tribunal to proceed with the proceedings expeditiously, without requiring the petitioner to pay court fee.
JUDGMENT :
1. Heard Sri Syed Aftab Ahmad, learned counsel for the revisionist and Sri Pankaj Srivastava for respondent No.1.
2. By means of this revision the revisionist has assailed the order dated 28.3.2022 passed by U.P. waqf Tribunal, Lucknow in case No.28 of 2020 (Chief Executive Officer Vs. Mohd. Nihal and others) whereby the Tribunal held that the proceedings initiated on the behest of Chief Executive Officer of U.P. Sunni Central Waqf Board under Section 45 are akin to suit proceedings and accordingly direction has been given for payment of court fee by the revisionist which has been deficient to the valuation of Rs.6,72,000/-.
3. A complaint was moved by Chief Executive Officer in respect of Waqf Masjid Bande Ali Khan, Lucknow stating therein that the waqf is duly registered in the office of U.P. Sunni Central Waqf Board, Lucknow and the property situated at Nawal Kishore Road, Hazratganj, Lucknow of which respondent No.s 1 and 2 who were tenants in shop No.6 situated on the ground floor of the said property at the monthly rate of Rs.15/-and he has deposited the payment of rent but he has not paid arrears of rent of Rs.2805/-for the period from 1.8.2000 to 29.2.2016. It was stated that the notice had also been given to opposite party No.s 1 and 2 but despite the notice the opposite party has failed to pay the rent including arrears of rent and also to vacate the shop in question and accordingly it is in aforesaid facts that prayer was made to remove the encroachment in respect to the premises in question and proceedings accordingly for eviction of the encroachers for from the premises in question and deliver the vacant possession of the premises to the applicant.
4. The Chief Executive Officer directed an inquiry to be conducted with regard to the allegations made by the petitioner and on the submission of report of the inquiry issued a notice to respondent Nos.1 and 2 directing them to deliver the possession of the property within 15 days to the committee of management appointed by the waqf but the opposite party put in appearance and objected to the claim made by the revisionist. On the basis of the rival submission made before the Chief Executive Officer he moved an application to the waqf Tribunal at Lucknow seeking direction under Section 54(4) of the Waqf Act, 1995 against opposite party Nos.1 and 2 directing them to deliver the possession of the waqf property (shop No.6) to the committee of management.
5. The Tribunal accordingly registered a case and issued notice to the opposite parties who put in appearance before the Tribunal and moved applications stating that the application preferred by Chief Executive officer under Section 54 of the Act of 1995 was akin to suit proceedings and as per Rule 3 of the UP. Waqf Tribunal Rules, 2017 and court fee is liable to be paid on such an application. The Tribunal considered the application preferred by the respondents and allowed the same by means of the impugned order dated 28.3.2022 and returned a finding that the application of the Chief Executive Officer is akin to suit for eviction on which as per Section 7 (5) court fee is liable to be paid as per the Court Fee Act, 1870.
6. Learned counsel for the petitioner while assailing the said order has submitted that in the present case application was moved by the Waqf -respondent No.3 i.e. committee of management, Waqf Masjid Bandey Ali Khan, Nawal Kishor Road, Hazratganj, Lucknow before the Chief Executive Officer under Section 54 of the Act of 1995. According to Section 54 the matter was inquired into and recommendation of the Chief Executive Officer were moved before the Tribunal in the form of application seeking direction for issuance of order of eviction as provided for in under Section 3(4). He submits that the said proceedings have been initiated on an application under Section 54 of the Waqf Act and in sub Section 3 it has been provided that the Chief Executive Officer on his satisfaction that there has been encroach
