'Person Interested' Can Directly Sue for Waqf Encroachment Removal Under S.83(2), Need Not Go Via CEO Route (S.54/55): Bombay HC - 2025-05-01

Bombay High Court Clarifies Locus Standi for Waqf Encroachment Suits, Upholds Eviction Order

Mumbai: The Bombay High Court, in a significant ruling concerning Waqf property protection, has held that a "person interested in Waqf" has the locus standi to directly file a suit before the Waqf Tribunal for the removal of encroachments under Section 83(2) of the Waqf Act, 1995. Justice Sandeep V.Marne clarified that such persons are not obligated to follow the procedure involving the Chief Executive Officer (CEO) outlined in Sections 54 and 55 of the Act. The Court dismissed a Civil Revision Application challenging an eviction decree passed by the Maharashtra State Waqf Tribunal, Aurangabad.

Case Background

The case involved a dispute over a property measuring 350 sq.ft. belonging to the Kamruddin Masjid (Jamiyatul Kubra) Waqf Institute in Pune. Two individuals claiming to be "persons interested" in the Waqf (Original Plaintiffs/Respondents No. 1 & 2) filed a suit before the Waqf Tribunal seeking eviction of the occupants (Applicants/Original Defendants No. 1 to 5). The Plaintiffs alleged that the occupants were initially granted an 11-month lease which was not renewed as per Section 56 of the Waqf Act, and they subsequently became encroachers. They filed the suit as the Waqf Institute itself allegedly failed to take action.

The Waqf Tribunal decreed the suit, ordering the occupants (Applicants) to deliver vacant possession of the property to the Waqf Institute and initiated an inquiry into mesne profits. This decision was challenged before the High Court via a Revision Application.

Arguments Presented

Applicants (Occupants): * Challenged the locus standi of the Plaintiffs, arguing that only the CEO of the Waqf Board could initiate encroachment removal proceedings by making an application to the Tribunal under the specific mechanism provided in Sections 54 and 55 of the Waqf Act. * Contended that allowing direct suits by "persons interested" would render the specific procedure under Sections 54 and 55 redundant. * Asserted they were not "encroachers" as defined under Section 3(ee) of the Act, claiming long-standing tenancy originating possibly before the Act (citing a 1938 rent receipt, though their pleading mentioned 1960). They relied on the Supreme Court's decision in P.V. Nidhish to argue that expiry of a lease doesn't automatically make a lessee an encroacher.

Respondents (Original Plaintiffs & Waqf Institute): * Maintained that the Plaintiffs, being "persons interested," had the right to approach the Tribunal directly under Section 83(2). * Argued that Sections 54 and 55 provide an alternative mechanism but do not bar direct suits by those specified in Section 83(2). * Stressed the court's parens patriae jurisdiction over charitable and religious trusts, suggesting technical objections to locus standi should not hinder the protection of Waqf property. * Claimed the Applicants were indeed encroachers, as any lease violating Section 56 (regarding lease duration limits) is void, and occupation after lease expiry falls under the definition of encroachment in Section 3(ee). Rent acceptance by the Waqf management doesn't validate a void lease.

High Court's Analysis and Decision

Justice Marne meticulously analyzed the provisions of the Waqf Act and relevant case law.

On Locus Standi (Sections 54, 55 vs. Section 83(2)): The Court held that Section 83(2) explicitly permits a "Mutawalli," a "person interested in Waqf," or "any other person aggrieved" to apply to the Tribunal. It found no prohibition restricting such persons from seeking encroachment removal directly. The Court reasoned:

> "In my view, therefore in absence of any restriction or prohibition on a Mutawalli or person interested in Waqf to make an application for removal of encroachment, it cannot be held that the suit instituted by a person interested in Waqf Institute would be not maintainable." (Para 17)

The Court harmoniously interpreted Sections 54/55 and 83(2), stating they offer alternative routes:

> "The correct and harmonious way of interpreting the provisions of Sections 54 and Section 83(2) of the Waqf Act is to hold that a mutawalli or a person interested have an option of either filing a complaint...with the CEO...or a mutawalli or a person interested can directly sue the encroacher under Section 83(2) of the Waqf Act..." (Para 26)

The Court cited Madras High Court precedents ( Ameerunnisa Begum Sahiba Endowments , M.K. Sulthan , Bibijan ) supporting the right of Mutawallis and even worshippers to file suits to protect Waqf property. It also emphasized the Court's parens patriae jurisdiction over such institutions.

On Encroachment: The Court rejected the Applicants' claim of valid tenancy. It noted their own pleading stated tenancy began in 1960, well after the Waqf Act, 1954, was enacted. Any lease created then would be subject to the Act's restrictions (similar to Section 56 of the 1995 Act), making long-term leases void.

> "Even under the Waqf Act 1954, there was similar provision making leases in excess of three years void. Therefore even going by the pleaded case of Defendants that the lease was created in the year 1960, the same was otherwise void." (Para 31)

The Court affirmed that acceptance of rent does not cure the invalidity of a lease violating statutory provisions ( Shaikh Shafiq s/o. Shaikh Osman ). It held that the definition of 'encroacher' under Section 3(ee) (added in 2013), which includes persons whose lease has expired, applies even if the occupation predates the amendment, as the mechanism for encroachment removal existed previously. The reliance on P.V. Nidhish was distinguished as that case involved unique facts, including a pre-Waqf Act lease and focus on criminal liability under Section 52A.

> "Mere incorporation of definition of the term ‘encroacher’ vide Act 27 of 2013 would not protect unlawful possession of the Applicants in respect of waqf property." (Para 33)

Final Order

Finding no perversity or jurisdictional error in the Waqf Tribunal's judgment, the High Court dismissed the Civil Revision Application. The eviction order stands upheld. The Court, however, granted a four-week stay on the execution of the decree considering the occupants resided in the premises.