District Wakf Officer vs Jeelanikhan Roshankhan and Another

V.K. Barde, J.—Heard Shri Khader, learned Counsel for the petitioner and Shri Deshpande, learned Counsel for respondent No. 1.

Respondent No. 1 Jeelanikhan filed Regular Civil Suit No. 523 of 1990 in the Court of the Civil Judge, Senior Division, Nanded, for injunction against the District Wakf Officer, District Wakf Office, Station Road, Nanded, and Shaikh Ali Shaikh Imam, alleging that they, in pursuance of their conspiracy, are creating obstruction in plaintiffs possession of the suit premises, which the plaintiff had taken on monthly rent from the Wakf Board for running his pan shop. Defendant No. 1 i.e. the District Wakf Officer, filed appearance in the suit and then filed an application that the suit was not maintainable for want of notice u/s 56 of the Wakf Act, 1954.

Because of the said objection, an issue was framed. Whether the suit was tenable for want of notice u/s 56 of the Wakf Act. The said issue was heard and the learned Joint Civil Judge, Senior Division, Nanded, by his order, dated 18-12-1990, held that the suit was tenable without notice, Being aggrieved by the said order, the present revision petition is filed.

The learned Counsel for the petitioner has argued that Section 56 of the Wakf Act, 1954, is very clear. A notice is necessary before instituting any suit against the Wakf Board. In the present case, admittedly, no notice was served on the Wakf Board, and, therefore, the suit is not maintainable. The learned Civil Judge has fully quoted the provisions of Section 56 of the Wakf Act, 1954, in his order.

The important words of Section 56 of the Wakf Act are, "No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or any rules made thereunder." Here, the suit is not filed against the Board. It is filed against the official of the Board and it is alleged that the said official, in league with defendant No. 2, is causing obstruction in the plaintiffs possession on the property taken by him on lease from the Board. If the suit had been filed against the Board itself, then the provisions of Section 56 of the said Act would have been applicable. There is no allegation against the Board. The allegation is only against the official of the Board and Section 56 does not prohibit any suit against the official of the Board without notice under that section.

The learned Counsel for the petitioner has argued that if any order is passed against that official, it will affect the Board and the Board will not be able to take any action against the present plaintiff. So, ultimately, the Board would be the sufferer and, therefore, the notice ought to have been issued to the Board.

Even while advancing this argument, it is not being contended that the Board is taking any action in pursuance of the Act or the rules made under the Act. It is not the contention of defendant No. 1 or the Board that the obstruction in the possession of the plaintiff was taken by the Board in pursuance of the provisions of the Act or the rules made thereunder.

In such circumstances, it clearly appears that the allegation is purely personal against the then official of the Board. There is nothing in the plaint to indicate that the plaintiff wanted to contend that the action of the said official was in pursuance of the provisions of the Act or the rules made thereunder. On the contrary, the allegation is that the official is acting 011 his own after conspiring with defendant No. 2 and if such a position is there, then it cannot be said that any action was taken by the Board in pursuance of the provisions of the Act or the rules made thereunder. If any decree is passed against that official, it will be against him personally and not against the Board.

If the contention of the plaintiff is correct that he is holding the property as a tenant, then the Board can take steps as per law to evict him by terminating the tenancy and, if that contention is not correct, then also, the Board can taken legal action for possession of the property from the plaintiff by following due process of law. That may be under the general law or under the Wakf Act, either of 1954 or 1995, as the case may be. But so far as the present nature of the suit is concerned, it is against only the acts done by the officer of the Board and not by the Board itself under the provisions of the Act or the rules made thereunder. Therefore, Section 56 of the said Act cannot be made applicable. The order of the learned Civil Judge is correct. No interference is called for.

Civil Revision Application dismissed. Rules discharged. Interim relief stands vacated. No order as to costs. Order accordingly.