Chief Executive Officer vs Md. Reazuddin & Ors

Subhasis Dasgupta, J

The impugned judgment dated 26th June, 2018 passed by the learned Chairman, Waqf Tribunal, West Bengal, in eviction case No. 01 of 2017 under Section 54(3) of the Waqf Act of 1995, setting aside the order of the Chief Executive Officer holding the opposite parties to be the encroachers and soliciting approval from the Tribunal for grant of an order of eviction for removing the alleged encroachment and delivery of possession of land encroached upon to the Mutawalli of the Waqf property is subject of challenge in this revisional application.

Learned advocate for the petitioner assailing the impugned judgment passed by the Chairman, Waqf Tribunal submitted that learned Chairman, Waqf Tribunal failed to appreciate the relevant provisions of law, mentioned in Section 3 (aa) of West Bengal Premises Tenancy Act, 1997, exempting public Waqf from the application of West Bengal Premises Tenancy Act, 1977, and as such determination of the tenancy was not the guiding factor so as to implement the order of the C.E.O. holding the opposite par ties to be encroachers. Adverting to a copy of the eviction notice, dated 17th November, 2009, learned advocate for the petitioner submitted that after the demise of erstwhile tenant, being the mother of the opposite parties, the tenancy had been duly determined by serving notice, which the opposite parties duly received the same, and this aspect could not be taken care of by the learned Chairman of the Waqf Tribuanl, while setting aside the order of the C.E.O. holding the opposite parties to be the encroachers.

Learned advocate for the petitioners further submitted that when there had been sufficient compliance with regard to the formalities, specifically mentioned in Section 54 of Waqf Act of 1995, prior to holding the opposite parties to be the encroachers as per assessment of C.E.O. Board of Waqf, West Bengal, regarding two rooms in occupation of the opposite parties in the first floor having an area of 250 sq. ft. (approx) and one room in occupation, bath with common passage in the mezzanine floor, having an area of 450 sq. ft. (approx), the Tribunal ought to have approved the order of the C.E.O. by granting the order of eviction for removing such encroachment, and delivery of possession of the land in occupation of the opposite parties being encroached upon, to the Mutawalli of the Waqf property.

Learned advocate for the opposite parties controverting the submission raised by the petitioner submitted that they were in possession of the tenanted premises after the demise of their mother and for the refusal of the Mutawalli to accept the rent, they had been depositing the rent with the Rent Controller, and they did not do anything in respect of the tenanted premises within the meaning of alleged encroachment. Learned advocate for the opposite parties further submitted that the little modification of the tenanted premises under their possession, carried out simply to make it more suitably habitable, done with the verbal approval of previous Mutawalli, long before, could not be construed to be a case of encroachment, as alleged.

The only point to be addressed by this court is whether impugned order passed by the Chairman of the Waqf Tribunal is sustainable or not.

Admittedly, 250 sq. ft. on the first floor and 450 sq. ft. in the mezzanine floor of the disputed premises, now under the possession of the opposite parties, were held to be encroached portion of the Waqf property, as per assessment of the C.E.O., Board of Waqf, West Bengal. Opposite parties claimed themselves to have inherited the tenanted premises from their mother, who admittedly was the accepted tenant in respect of the tenanted premises now under possession of the opposite parties. One Raushan Ara is the mother of the opposite parties, who left this world in 2008. The Mutawalli of Waqf property admittedly submitted a complaint, dated 03.11.2015, alleging encroachment, the reference of which is mentioned hereinabove. The C.E.O. of the Board of Waqf, West Bengal, held the opposite parties to be the encroachers within the meaning of Section 3 (ee) of Waqf Act of 1995, and solicited an order from the Tribunal making out a prima facie case for grant of an order of eviction for removing such encroachment and delivery of possession of the land being encroached upon to the Mutawalli of the Waqf property. In view of the scheme formulated in Section 54 of the Waqf Act, 1995, the findings reached by the C.E.O. holding the opposite parties to be the encroachers is always subject to the decision of the Chairman, Waqf Tribunal, whose decision will be conclusive in nature, so as to pass an order of eviction for removing such encroachment and delivery of the possession thereunder in respect of the encroached land to the Mutawalli of the Waqf property.

The case of the petitioner is that no tenancy in favour of the opposite party was ever created and in the absence of the tenancy being created, they could be well regarded as encroachers, which stood established in the findings reached by the C.E.O., Board of Waqf, West Bengal. More so, it is the further case of the petitioner that when there had been previous determination of the tenancy by issuing a notice dated 17th November, 2009, which the opposite party had duly accepted the same, the alleged claim of tenancy of the opposite parties in respect of the disputed premises would not be an acceptable stand.

Upon perusal of the impugned judgment, it appears that learned Chairman, Waqf Tribunal was not satisfied with the termination or determination of the tenancy right of the opposite parties in due process of law. After viewing the words used in the notice dated 17th November, 2009, being grossly relied upon by the petitioner, it appears that the opposite parties, who were sought to be evicted, were provided with 15 (fifteen) days time from the date of the receipt of the notice, which is purely in contravention of the tenancy legislation. In the impugned judgment, though there has been finding by the Chairman, Waqf Tribunal that tenancy right of the opposite parties in respect of the suit premises was not determined by due process of law, but there was no finding revealing the status of the opposite parties in respect of the premises under their possession vis-à-vis the case made out by the C.E.O describing them to be the encroachers.

Though much had been discussed in the impugned order of the C.E.O., Board of Waqf, West Bengal, regarding the alleged encroachment, but there left nothing as to when did the alleged encroachment take place. When it is the definite case of the opposite parties that little modification in respect of the tenanted premises, carried out simply to make it more and more suitably habitable, and that too done with the previous knowledge of the then Mutawalli, who verbally approved the action undertaken by the opposite parties with respect to the rooms under their possession, the possibility of obtaining ratification with the passage of time in respect of the alleged encroachment cannot be completely eliminated. It was the incumbent duty on the part of the Chairman, Waqf Tribunal in the given set of facts to address the issue, and decide whether the alleged encroachment received any ratification from the previous Mutawalli or not. There was nothing mentioned in the order of the C.E.O. if the alleged encroachment was old enough or new one, prior to arriving at a finding, holding the opposite parties to be the encroachers.

From the written statement filed by the opposite parties in connection with E.C. No. 1506 pertaining to the office of the Waqf Borad, West Bengal, it appears that an ejectment suit was previously instituted against the opposite parties serving ejectment notice therefor, but for the reasons best known to the Mutawalli, the ejectment suit, previously instituted against the opposite parties, could not be proceeded with. Thus this is a case where the opposite parties were previously accepted as tenants, and inconsequence thereof, an ejectment suit was filed, serving an ejectment notice earlier. That being the position, it is for the Tribunal to come to a definite finding, in disclosure of the status of the opposite parties, because under the gurb of encroachment proceedings, opposite parties were sought to be evicted after having accepted the case of alleged tenancy of opposite parties, manifested from the previous institution of eviction suit against opposite parties.

In view of Section 3(aa) of the West Bengal Premises Tenancy Act, 1997, any premises being a Waqf property exclusively for a Waqf Lillah (public Waqf), the provisions of the West Bengal Premises Tenancy Act providing protection to tenants will not be applicable. The disputed property was duly enrolled with the Board of Waqf and under E.C. No. 1506 and in the register duly maintained for the purpose, the same has been shown as public Waqf. However, the nature of Waqf property could be best decided upon true construction of words employed in Waqfnama, which goes unproduced in this case.

Admittedly, the provision incorporated in Section 3(aa) has exempted the premises being a public Waqf property from the application of the West Bengal Premises Tenancy Act, 1997, but the same has been introduced in the Act of 1997 itself by Section 2 of West Bengal Premises Tenancy (Amendment) Act, 2008 (West Bengal Act XXI of 2008) dated 02.09.2008, with effect from 01.10.2008.

In the instant case, the alleged tenancy of opposite parties originated long before the amendment came into effect and as such, the Tribunal needs to determine the applicability of Section 3(aa) of West Bengal Premises Tenancy Act, 1997, over the facts and circumstances of the present case for resolving the matter in controversy between the parties, based on the alleged claim of tenancy vis-à-vis the case, made out as encroachers against the opposite parties. The disposal of the prayer of the C.E.O. under Section 54(3) of Waqf Act, appears to have done in a slipshod, cryptic manner without addressing the necessary points, discussed hereinabove. That being the position, the court is of the view that the justice will be best sub-served, if the prayer of the C.E.O. under Section 54(3) of Waqf Act is considered afresh by the learned Chairman, Waqf Tribunal and address the points indicated hereinabove, giving sufficient opportunities to the either of the parties to this case bearing in mind that previously the suit for eviction was instituted against the opposite parties after accepting them as tenant.

The impugned judgment dated 26th June, 2018 passed by the learned Chairman, Waqf Tribunal, West Bengal is thus set aside.

Chairman, Waqf Tribunal is directed to hear out afresh the prayer of the C.E.O. under Section 54(3), giving sufficient opportunities to the either of the parties to this case after addressing the points specifically discussed in the body of this judgment and decide the issue afresh in accordance with provisions of law.

With these observations and directions the C.O. No. 2966 of 2018 accordingly stands disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.