Point of Law: Expression ‘waqf by user’ finding place in Section 3 (r) (i) of the Act is a defined expression and is not qualified by any word to suggest that it has to be of immemorial user, the Court would have to confine or restrict itself to the definition as provided by the statute.

ORDER :

UJJAL BHUYAN, J.

C.R.P.No.1168 OF 2021

Heard learned counsel for the parties.

2. By filing this Civil Revision Petition under Article 227 of the Constitution of India, petitioners seek quashing of order dated 28.07.2021 passed by the Telangana State Waqf Tribunal at Hyderabad in I.A.No.345 of 2021 in O.S.No.63 of 2021.

3. Petitioners are defendants in O.S.No.63 of 2021 instituted by the respondent as the plaintiff before the Telangana State Waqf Tribunal at Hyderabad (briefly, ‘the Tribunal’, hereinafter).

4. Be it stated that plaintiff has instituted the said suit before the Tribunal seeking a decree against the defendants to restrain them perpetually from interfering with and causing hindrance to the plaintiff and other musallies visiting the schedule mosque i.e. Mahmood Habib Masjid and Islamic Centre situated at ground floor in the apartment complex known as Mahmood Habib Apartments, bearing Municipal No.8-2-584/1 to 3 and 8-2-584/7B to 11B, Road No.9, Banjara Hills, Hyderabad.

5. Case of the plaintiff is that he is a permanent resident of Road No.3, Banjara Hills, Hyderabad and a regular musalli to the schedule mosque. He has been offering prayers therein for the last 13 years. The schedule mosque was established 13 years ago by the developer of the apartment complex known as Mahmood Habib Apartments to provide a place of worship to the residents of the apartments.

6. In the schedule mosque there is a regular Imam and Peshimam to look after the religious and other pious activities. It is stated that the schedule mosque is a ‘Waqf by user’, as defined under Section 3(r) of the Waqf Act, 1995 (briefly, ‘the Act’, hereinafter).

7. Of late, the defendants have been putting up obstruction and hindrance to the plaintiff and other musallies preventing them from having free ingress and aggress to the schedule mosque. It appears that some disputes have cropped up between the defendants and the developer regarding contractual issues. Taking advantage of such disputes, the defendants are illegally preventing the plaintiff and other musallies from having access to the schedule mosque.

8. Plaintiff approached local police i.e. Banjara Hills Police Station on 24.6.2021. But the police were not inclined to accept any first information lodged by the plaintiff against the defendants on the pretext that the matter is a sensitive one and is civil in nature.

9. In such circumstances, plaintiff instituted the related suit before the Tribunal under Section 83 (1) of the Act seeking the relief as indicated above.

10. Defendants filed a petition under Order VII Rule 11 (a) and (d) of the Civil Procedure Code, 1908 (CPC) for rejection of the plaint in O.S.No.63 of 2021. The said petition was registered as I.A.No.345 of 2021. According to the defendants, the property in question is purely a private property and is not a Waqf property. It has not been notified as a Waqf property in the Official Gazette. No preliminary survey has been conducted under Section 4 of the Act. As a result, there is no publication of the schedule property as a Waqf property as prescribed under Section 5 of the Act. It was contended that if a particular property is not mentioned in the Section 5 list, any aggrieved person may institute a suit before the Tribunal for a decision on the question of inclusion and non-inclusion. But the limitation for institution of such suit is one year which period had long expired. No application has been made either by the plaintiff or by any other person for registration of the schedule property as Waqf property. Therefore, the Tribunal had no jurisdiction to entertain the suit. Reliance was placed on a decision of the Supreme Court in the case of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, (2017) 13 SCC 174. In the building permission accorded by the Greater Hyderabad Municipal Corporation, there is no provision for setting up of a mosque. Therefore, setting up of a mosque is an illegality. It violates Sections 2 (d) and 24 of the Telang