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2024 Supreme(Online)(Bom) 1530
BOMBAY HIGH COURT
R. M. JOSHI, J
THE BOMBAY XAVIERIAN CORPORATION THRU. TRUSTEE FATHER ANTHONY TASCANO – Appellant
Versus
SAROSH ABDULLAH ZAKERIA TRUSTEE JAMA MASJID NAWAYAT TRUST – Respondent
CRA 18 / 2024
An inquiry and evidence are essential prerequisites for ordering removal of encroachments on Wakf property under the Wakf Act.
Headnote:
Wakf - Encroachment - Wakf Act, 1995 - Section 54 - The court analyzed the unamended and amended provisions of Section 54 of the Wakf Act, emphasizing the necessity of conducting an inquiry and presenting evidence before ordering removal of encroachments, ultimately setting aside the impugned order due to lack of evidence.
Fact of the Case:
The applicant contested an order by the C.E.O. of the Wakf Board for removal of alleged encroachment on Wakf property, claiming ownership and possession of adjacent land without any evidence of encroachment being presented.
Issues: Whether the C.E.O. had the authority to order removal of encroachment without conducting an inquiry and whether the applicant had any remedy post-amendment of Section 54.
Ratio Decidendi: The court held that an inquiry is mandatory before ordering removal of encroachments, and without evidence, such orders cannot be sustained.
Final Decision: The impugned order was set aside.
JUDGMENT :
1. This application under Section 115 of the Code of Civil Procedure takes exception to order passed by the Chief Executive Officer (for short “C.E.O.”), Wakf Board in Case No. 54/261/2010 whereby direction is issued against the applicant for removing encroachment over Survey No. 365/1, Village - Gass, Taluka – Vasai, District – Palghar, under Section 54 of the Wakf Act, 1995 (for short “the Act”).
2. The facts which led to filing of this application can be narrated in brief as under:
(i) Applicant claims to have purchased Survey No. 364 under registered sale deed executed in July - 2012 and pursuant to the said sale deed applicant’s name was mutated in the revenue record vide Mutation Entry No. 4608. It is the contention of the applicant that the land was duly measured by T.I.L.R. on 16.04.2010 and the applicant is in possession of the land owned by it. Respondent No.1 filed proceeding before C.E.O. for removal of alleged encroachment caused by applicant, on Survey No. 365/1 which is adjoining land to the land owned by the applicant. C.E.O. passed order dated 15.01.2013 whereby it was directed for removal of encroachment caused on Survey No. 365/1, it being a Wakf property. It is specific case of the applicant that though such order was allegedly passed on 15.01.2013, however, the same was communicated to the applicant for the first time after four years i.e. in February-2017. Present application is filed by the applicant taking exception to the said order on the ground that it is passed without conducting an enquiry as contemplated by Section 54 of the Act. C.E.O. has failed to appreciate the evidence on record i.e. the measurement map drawn by T.I.L.R on 16.04.2010 and registered Sale deed of the applicant. It is further claimed that without recording any finding of encroachment being committed by applicant and in absence of any evidence to indicate. So, order impugned came to be passed and hence the same is not sustainable.
3. Learned Senior Counsel appearing on behalf of the applicant, at the outset submits that present revision is maintainable for the reason that the order impugned is passed under unamended Section 54 of the Act which subsequently was amended in the year 2013, whereby the power of removal of encroachment from the Wakf property with C.E.O. has now been vested in the Wakf Tribunal. It is submitted that in view of the fact that the order impugned was communicated for the first time in the year 2017, the applicant is left without any remedy under the Act for challenging the said order. It is his further submission that pursuant to the amendment to Section 54, the Tribunal has become Authority for directing removal of encroachment and at the same time the provision of sub- Section 4 permitting institution of a suit against order passed by C.E.O. has been taken away. Thus, it is his submission that in this peculiar circumstances, revision is maintainable.
4. He further argued on merit to contend that in any case, C.E.O. could not have passed any order of eviction of the applicant from the Wakf property without recording a finding that encroachment has been committed thereon. It is his submission that in absence of any measurement of the said property being carried out, it is not possible for any Authority to determine the issue of encroachment. By drawing attention of the Court, to the impugned order, it is submitted that wrongful reliance is placed by C.E.O. on the measurement map of the property belonging to the applicant, which does not show any encroachment by applicant. According to him, for the purpose of deciding the encroachment caused on Survey No. 365/1, measurement of the said property was necessary. It is, therefore, submitted that the order impugned deserves to be set aside. Without prejudice to the rights of the applicant it is submitted that applicant is not interested in keeping any dispute pending and hence appropriate direction be issued for measurement of both the properties in order t
