Bombaybench High Court
Case Details
2024:BHC-AUG:3157 1 CRA.3 of 2021+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.3 OF 2021WITHCIVIL REVISION APPLICATION NO.4 OF 20211.Sayyed Moinuddin s/o Sayyed Saifoddin,Age : 49 years, Occu : Business,R/o. Plot No.19/P, New Aman Colony,Mit-Mita, Aurangabad.2.Sayyed Ejazuddin s/o Sayyed Moinuddin,Age : 68 years, Occu : Retired,R/o. Opp. A. K. Traders, Maqsood Colony,Roshan Gate, Aurangabad.…Applicants.Versus1.Pratapsingh s/o Nursing Kakarwal,Age : 50 years, Occu : Agriculture,R/o. Plot No.10, N-11, Shivsadan,Behind Rashtravadi Bhavan,Aurangabad.2.The Maharashtra State Board of Wakf,Through its Chief Executive Officer,Panchakki, At Aurangabad.… Respondents....Advocate for Applicants : Mr. S. S. Kazi. Advocate for Respondent No.1 : Ms. Shilpa R. Rajput.Advocate for Respondent No.2 : Mr. N. E. Deshmukh.…CORAM : S. G. MEHARE, J.RESERVED ON : 20.12.2023PRONOUNCED ON : 14.02.2024JUDGMENT :- 1.Heard the respective learned counsels for the parties.
Legal Reasoning
2 CRA.3 of 2021+1.odt2.The original defendants No.1 and 2 have impugned thejudgment and order of the Maharashtra State Wakf Tribunal,Aurangabad, passed in Wakf Suit Nos.4 of 2014 and 6 of 2014. 3. The "applicants" would be referred to as "defendantNos.1 and 2" and respondent No.1 would be referred to as"plaintiff". 4.The plaintiff had filed a suit before the MaharashtraState Wakf Tribunal, Aurangabad, for a declaration that theorders of the Chief Executive Officer ("C.E.O." for short) of theMaharashtra State Wakf Board, Aurangabad ("the Board" forshort), in file No.54/154/2012, dated 23.01.2013 arising outof file No. A.B.D./259/2012, including the Survey Gut No.66of village Harsool, District Aurangabad, in the Book/register ofWaqf, maintained by the Board and its registration No.MSBW/ABD/319/2012 dated 03.05.2012 passed by the C.E.O.pursuant to the so-called entry in the concerned Gazette istime-barred, hollow, inactive, in-executable, null and void andnot binding on the rights of the plaintiff. The order dated28.01.2013 arising out of the order dated 23.01.2013 in fileNo.54/154/2012 by C.E.O. arising out of the order dated 3 CRA.3 of 2021+1.odt30.04.2012 of C.E.O. in File No. A.B.D./259/2012, includingthe property Gut No. 66 of village Harsool in Book/Register ofWaqf maintained by the Board and its registration No.MSBW/ABD/319/2012 dated 03.05.2012 be quashed and setaside. Further, the declaration has been sought that the orderof the C.E.O. of the Board directing the plaintiff to remove hispossession from the suit land is bad in law. A perpetualinjunction restraining the defendants from causinginterference, disturbance in their ownership and peacefulpossession over the Suit land Survey No.66 was also sought. 5.Before filing a suit No.6/2014, the plaintiff had filedWaqf Application No.04.2014 under Section 83(2) on similarfacts and claimed the similar reliefs. However, the WaqfTribunal has passed two separate orders in these two petitions.The issue revolved around the same facts and was decided onthe day. Hence, it is taken up for hearing together and disposalby common judgment. 6.The learned Tribunal allowed the Suit and application ofthe plaintiff as prayed. 7.The plaintiff had claimed that the suit land was the Inamof Madad Maash. It belonged to one Inamdar Mr. Sayyed 4 CRA.3 of 2021+1.odtAmiroddin. The forefathers of the plaintiff were the tenants ofthe Suit land. Their names were recorded as tenants. After thedemise of their forefather, the plaintiff got the title andpossession of the Suit land. The Government took possession ofthe Suit land as per Sections 5 and 6 of the HyderabadAbolition of Inams and Cash Grants Act, 1954 ("The Inam Act"for short). In 1958, Inamdar Syed Amiroddin preferred anapplication before the Collector for a declaration that he wasentitled to the entire "Lawani" amount of the Suit land. Byorder dated 27.03.1959, the Collector declared that the suitland was a Madad-e-Maash and Amiroddin was entitled toreceive the Lawani amount. The tenants had challenged thesaid order, and lastly, the competent authority/Collector heldthat the plaintiff and his predecessor were the tenants of theSuit lands, and it was a Madad Maash land. By order dated26.02.1979 in case No.75/Watan/5, the Collector passed anorder of occupancy rights of the Suit land and granted it toNarsingh Gotiram Kakarwal, the plaintiff's father, underSection 6 of the Inam Act. Thereafter, by order dated21.04.1981, the Tahsildar determined the occupancy price forRs.288/-. The plaintiff's father deposited the said amount andreceived the occupancy certificate in his name. Then, mutationentry No.3067 was sanctioned in the name of plaintiff's father. 5 CRA.3 of 2021+1.odtIn this way, the plaintiff's father became the absolute owner ofthe suit land, and after his demise, the plaintiff inherited thesame. 8.Suddenly, the plaintiff received a notice dated23.10.2013 from Tahsildar for the removal of encroachmentfrom the Suit land. On inquiry with the Board and legal heirsof Amiroddin i.e. defendant No.1, he learnt that the C.E.O. ofthe Board, without inquiry, without giving notice, opportunityof hearing and verifying the record, passed the order on30.04.2012 in the Wakf register and declared that the suit landis a Wakf property. He registered the Wakf proceeding bearingNo.MSBW/ABD/319/2012, dated 03.05.2012. He alsoincluded the Suit land as Wakf property in Jodpatra. Theplaintiff also learnt that the suit land was notified in theGovernment Gazette in 1973 in the name of Wakf. Thatnotification is also illegal and not binding upon the plaintiff. 9.Defendant No.1 contested the Suit and application andfiled his written statement below Exh.90 in a suit. DefendantNo.2 adopted his written statement. They have supported theorders of defendant No.3. They had come with a case that thesuit land was the service Inam land. It was notified in the 6 CRA.3 of 2021+1.odtGovernment Gazette as provided under the Wakf Act, 1995. Inthat notification, the suit land was shown to be a service Inamland. The plaintiff did not challenge the Governmentnotification in time. Once the property is declared as Wakf landin the Government Gazette, its nature cannot be converted intoprivate property or into the Madad-e-Maash for the reasonsthat once Wakf is always Wakf. There was no reference in theMuntakhab that the Suit land was Madad Maash. The revenuerecord disclosed that the Suit land was the service Inam land ofthe Masjid (Mosque) and the graveyard of village Harsool,District Aurangabad. Therefore, the Government had no rightto acquire and occupy the Suit land under Sections 5 and 6 ofthe Inam Act. The Collector/Competent Authority had nojurisdiction to pass the orders as claimed by the plaintiff. TheInam Act exempts the grand properties under Sections 5 and 6,which are service Inam lands belonging to Waqf institutions.The Government Gazette of 1973 was not impugned within ayear. Therefore, the Suit of the plaintiff in that respect is time-barred. Since the Suit land was the service Inam land, thepossession of the plaintiff cannot be said legal. They denied theplaintiff's Suit and prayed for the dismissal. 7 CRA.3 of 2021+1.odt10.In Waqf Application No.4.2014, the original defendantNo.1 had filed a reply below Ex.16, and defendant No. 2adopted it by a pursis. They had a defence that SyedAmiroddin was the Mutawali of the Waqf institution, and hisname was recorded as Inamdar. The disputed land was aservice Inam Land for the services of the Waqf Institution, andsuch entry was taken long back in 1973 in the GovernmentGazette. The applicant never challenged/impugned the saidentry. Therefore, it has attained the finality and conclusiveproof that it was a Waqf property. As per Muntakhab No.1288dated 14 Sharvar Fasli, the suit land and another piece of landwere shown as Service Inam land. Munatkhab is the basicdocument of the title. The Collector's order declaring MadadMaash on payment of occupancy price is irrelevant, withoutAuthority and jurisdiction. 11.Defendant No.3/CEO appeared but did not file a writtenstatement. Hence, the Suit proceeded without say. 12.The learned Tribunal held that the plaintiff was theowner and possessor of the suit land, defendants Nos.1 and 2failed to prove that the Suit land was Wakf property of Masjidand graveyard, which has been registered as a Wakf institution 8 CRA.3 of 2021+1.odtunder the Wakf Act, 1995. It has also been held thatdefendants Nos.1 and 2 failed to prove that the plaintiff was inpossession of the Suit lands as an encroacher. It has also beenheld that the plaintiff proved that the defendants were causingdisturbance to his possession of the Suit land. The plaintiff alsoproved that the order of C.E.O. dated 28.01.2013 in caseNo.54/154/2012, is illegal, null and void. The Tribunal alsoheld that the Suit was within limitation and the plaintiff isentitled to the reliefs sought. 13.The learned Tribunal in Waqf Application No.4/2012held that the order registering the Waqf Institution Masjid andGraveyard with its property mentioned in the Jodpatra underSection 36 of the Waqf Act 1995, dated 03.05.2012 in File No.MSBW/ABD/319/2012 and order dated 30.04.2012 in File No.A.B.D./259/2012 is not proper, correct, or legal. Hence, thoseare quashed and set aside. 14.Learned counsel for the petitioner Mr. Kazi hasvehemently argued that the Government Gazette of 1973 wasnot impugned. The Suit is barred under Section 50(3) of WakfRules 2003. Once a person admits that Mutawali inducted him,the remedy is available under Section 83(2) of the Waqf Act, 9 CRA.3 of 2021+1.odt1995. The order under Section 54 was issued after the 2013amendment. Therefore, the Suit was not maintainable. TheSuit against such orders ought to have been filed within sixtydays. Hence, the Suit was limitation barred. The issue of thelocus of the plaintiff to file Suit was not framed, though prayedspecifically by an application Ex.91. While deciding the saidapplication, it was observed that the defendants could arguethe said point thoroughly. The witness was cross-examined onthat issue. However, the learned Tribunal did not discuss thatmaterial issue. It is a good ground to remit the matter back tothe learned Tribunal. The Muntakhab is admitted to therespondents. However, it was a composite Muntakhab. If theMuntakhab is composite, the law is settled that the landsincluded in such composite Muntakhab should be presumed tobe service Inam lands. The Suit land was a service Inam land.The learned Tribunal did not mention a single case law reliedon by them. 15.In Revision No.3, he argued that the Government gazettewas never impugned. Re-registration is not required. 16.To bolster his arguments, he relied on the case of AbdulQayyum Vs. The Additional Collector, Nanded ; 2013 (1)
Legal Reasoning
10 CRA.3 of 2021+1.odtMh.L.J. 449. The findings of the learned Tribunal are perverseand illegal. Hence, the civil revision application may beallowed. 17.Per contra, learned counsel for the respondentsreiterated that the suit land was the Inam land. His forefatherswere tenants since 1925. They have been protected tenantssince 1979, and occupancy certificates were granted to him.Before publishing the Government Gazette, the SurveyCommissioner did not give notice, did not go through therevenue record and mechanically included the Suit land in theGazette as a Wakf property. The registration was allowed onthe basis of Muntakhab. Nobody was looking after andmaintaining the Suit land. The person who applied forregistration was neither Mutawali nor the successor. The orderregarding the Inam abolition and the tenancy rights was neverimpugned. Therefore, the Tribunal has correctly not consideredor disturbed it. The Tribunal has no power to set aside theorders of the competent authority/Collector granting thetenancy rights and abolishing the lands as Inam lands. Thenotices of registration and proceeding under Section 54 werenever served upon the plaintiff. He is a non-muslim. Hence,the limitation of one year is not applicable. The Tribunal has 11 CRA.3 of 2021+1.odtcorrectly discussed the law on the limitation. The defendantshave no right to claim that the suit land is and was the Wakfland. She prayed to dismiss the revision application. 18.After hearing the respective learned counsels at length,the following points fall for consideration :(a) Would the Wakf Board has overriding jurisdictionto the provisions of the Hyderabad Tenancy andAgriculture Lands Act?(b) Was it the composite Muntakhab?(c) Was the suit within limitation?(d) Is the order of C.E.O. adding the Suit land in aWakf register binding upon the respondent/plaintiff?(e) Was the Suit not maintainable in view of Section54 (4) of the Wakf Act 1995?19.The respondent has a specific case that the Suit landswere the tenanted lands since their forefathers, and after them,the present respondents have inherited it. One Amiroddin wasthe Inamdar of the Suit lands. He had filed an applicationbefore the Collector in 1958 and claimed that the suit field isthe Madad Maash land and is entitled to the entire payment ofLawani amount. The Collector on 27.03.1959 held that the suitland was the Madad Maash land of Inamdar Shri. Amiroddin, 12 CRA.3 of 2021+1.odtand is entitled to the payment of the Lawani amount andMustadi, appointed on the payment by the competentAuthority, is not entitled to any portion out of the proceed ofthe Madad Maash. Inamdar Amiroddin, again behind the backof the forefathers of respondents in collusion with theAuthorities of Marathwada Wakf Board, had produced acertificate of the said Board Authorities in 1970 that he hasbeen performing services of concerned Harsul MosqueInstitution and obtained ex-parte order of Collector on06.07.1972 to release other lands including the Suit landMadad Maash. The forefathers of the plaintiff were tried todispossess. Therefore, the grandfather and father of theplaintiff had filed an appeal against the said order before theCommissioner, Aurangabad, on 29.08.1973.The Commissioner,Aurangabad, held that the forefathers of the plaintiff were inpossession of the land as a tenant. He remanded the matterback. The Deputy Collector made an inquiry and, by his orderdated 26.02.1979, passed the order of occupancy rights of thesuit field. He sent the matter to the Tahsildar for determiningthe price. By his order dated 21.04.1981, the Tahsildar fixedthe purchase price. The plaintiff deposited the price of theland. The Tahsildar issued the occupancy certificate in 1983.Since then, they have been enjoying the suit property as their 13 CRA.3 of 2021+1.odtabsolute property. Suddenly, the plaintiff received a noticedated 23.10.2013 under Section 247 of M.L.R. Code.Defendant Sayed Moinuddin Sayed Saifuddin, the legal heir ofAmiroddin, had asked for the settlement of the matter. Then,from reliable sources, the plaintiff learned that SyedMoinuddin, the petitioner, filed a proceeding before the ChiefExecutive Officer, Maharashtra Wakf Board, on 27.04.2012.The notice of said proceeding was never served to therespondents. Hence, the Suit filed was within limitation. 20.As to point Nos.A and B :- The arguments of the learnedcounsel for the petitioner revolved around the nature of theproperty and the jurisdiction of the Wakf Board. He hasvehemently argued that since it was a composite Muntakhab, itis the Wakf property. He also argued that Muntakhab is notdenied to the respondent. 21.Per contra, the learned counsel for the respondentswould submit that the composite Muntakhab did not state thatthe suit property was also the Wakf property. The nature of theproperty was decided long ago by the competent Authorityunder the Tenancy Act. Therefore, the jurisdiction of the WakfBoard under the Wakf Act would not prevail over the 14 CRA.3 of 2021+1.odtprovisions of the Hyderabad Tenancy and Agricultural LandsAct. 22.To bolster the arguments, learned counsel for thepetitioner, Mr. Kazi relied on the case of Abdul Qayyum(supra). In this case, the issue was about the jurisdiction of theC.E.O. Maharashtra State Wakf Board under Sections 51 and52 of the Wakf Act, 1995, as there was no resolution regardingthe delegation of power by Wakf Board to the Chief ExecutiveOfficer in the present matter. Secondly, the issue was whetherthe Wakf Tribunal has jurisdiction to try and decide the matterregarding tenancy rights, and the third one was aboutcomposite Muntakhab. The said Muntakhab was read in thematter in the context of its nature, and the Wakf Tribunal hadheld that the Muntakhab specifically mentioned that Inams arefor conjoint services of Kazat, Imamat and Moazzani of JameMasjid. The Muntakhab, thus, is a composite Muntakhab, andit is not only for the service of Kazat, as contended by theappellants. However, at no point in time did the petitioner, whowas fighting against the respondents, say that it was acomposite Muntakhab and the suit land was the service Inamland. The said Muntakhab appears to have been considered bythe Revenue Authorities when the disputes were opened before 15 CRA.3 of 2021+1.odtthe Tenancy Court. The revenue entries were accordinglyrecorded on the basis of the Muntakhab. After hearing bothparties, it was decided finally that the suit land was the MadadMaash land. Hence, the ratio of the Abdul Qayyum (supra),which was on different issue could not assist the defendant. 23.The respondent's counsel raises a small question, "couldthe Wakf Board reconsider the issue of the nature of the suitland under the Wakf Act, 1995"? 24.Learned counsel for the respondent relied on the case ofSunil Vasudeo Nirgude and others Vs. Hasan Khan S/oMaheboob Khan and another Civil Revision Application No.158of 2012 of this Court, decided on 11.09.2023. In this case, alsothe issue was raised whether Section 56 of the Wakf Act has anoverriding effect on the provisions of Sections 6, 7, 9 and 46 ofthe Bombay Tenancy and Agricultural Lands (Vidarbha Region)Act, 1958 and the next question was, Does Chief ExecutiveOfficer under the Wakf Act, 1995 or the Wakf Tribunal underthe Act 1995 has jurisdiction to decide the legality of thepurchase certificate granted under the Tenancy Act"? The Courthad gone through the said judgment. It elaborately discussesthe powers of the State and the Central to enact the laws. 16 CRA.3 of 2021+1.odtSchedules 7 and 9 of the Constitution of India have also beendiscussed. Considering the relevant provisions, this Court heldthat Section 56 of the Wakf Act does not override theprovisions of the Vidarbha Region Tenancy Act, 1958. Theprovisions of the Tenancy Act, 1958 and the HyderabadTenancy Act 1950 (1950 Act for short) are pari materia. It hasalso been held that the tenancy protected under the TenancyAct can only be inquired and adjudicated upon by theAuthorities constituted under the Tenancy Act. It has also beenheld that unless the ownership certificate granted under theTenancy Act is quashed by the Appellate Authority, noproceeding qua the same lands can be initiated under the WakfAct for eviction of the protected tenants/deemed ownersdeclared under the Tenancy Act. 25.Admittedly, the defendants knew well about theproceedings opened before the Tenancy Court. Every attemptof the defendants before the tenancy Court failed. Whateverthe orders they had obtained, ex-parte against the plaintiff andhis forefathers were contested on merits. Since there is no barenumerated in the Wakf Act 1955 not to create tenancy rightsunder the statute of the 1950 Act, the Wakf Board had nopowers to deal with such issues. The defendants appear to 17 CRA.3 of 2021+1.odthave not disclosed this fact when they applied to add the Suitland to a Wakf register. Considering the restricted jurisdictionof the Wakf Board on the subject of the Wakf property and thefact of a detailed inquiry made by the competent Authorityconstituted under the Tenancy Act, every Act of the Wakf Boardis apparently out of its jurisdiction. The Wakf Tribunal or theWakf Board cannot deal with the issue of the tenancy rightsgranted to the tenant by the process of law. The Act done byany authority without jurisdiction is void ab initio. In view ofthe matter, this Court held that the Waqf Board has nooverriding jurisdiction to deal with the tenancy issue decidedunder the 1950 Act, and the Muntakhab shows that it was aservice Inam land. 26.The record further reveals that the respondent hasclaimed the Revenue Authority under the capacity of Inamdar.The Collector also considered this issue in the proceedinginitiated at the instance of the present petitioner. After makinga due inquiry, finally, under its power, the Revenue Authoritydetermined that the suit property was a Madad Mash. It is notthe case that the defendants did not know about thoseproceedings. He was well aware of it, but it appears that since 18 CRA.3 of 2021+1.odthe lost before the Tenancy Tribunal, he thought it proper to letthe suit property go to the Wakf. 27.As to points Nos. C, D, and E :- The next limb of theargument of the learned counsel for the petitioner is that inview of Section 85 of the Wakf Act, the suit is notmaintainable, and the respondents had remedy only underSection 83(2) of the Wakf Act. Section 85 speaks of the bar ofthe jurisdiction of the Civil Court, Revenue Court and otherAuthority. This is the provision of the Wakf Act 1995. This Actcame into force on 20.11.1995. Section 82 provides that anydispute relating to any Wakf or Wakf property or other mattershould be dealt with only by the Tribunal. For invoking theremedy under said section, the dispute should be about theWakf or Wakf property. Learned counsel for the petitionerwould submit that the suit land was included in the officialGazette in 1973. Therefore, the Gazette ought to have beenimpugned before the Competent Court. However, he fairlyconceded that the limitation for impugning the Gazette for aperiod of year would not apply to the party if either of theparties is not governed under the Muslim Law. The respondentsare admittedly Hindus. Therefore, the limitation to impugnedsuch Gazette is not applicable to them. That apart, the root 19 CRA.3 of 2021+1.odtquestion was whether the Suit lands were Wakf property. TheGovernment Gazette was published in 1973. At that time, theWaqf Act 1954 was in force. Section 4 of the 1954 Act providesfor the preliminary survey of Waqf properties by the SurveyCommissioner appointed by the Government. The SurveyCommissioner was to make an inquiry and submit his report tothe Board with respect to the (Waqf) existing on the date of thecommencement of the Act. Thereafter, the Board was toexamine the report and send it back to the State Governmentfor publication. The Waqf Act of 1995 repealed the Act of1954. Section 112 of the Act of 1995 says that notwithstandingsuch repeal, anything done or any action taken under the saidActs shall be deemed to have been done or taken under thecorresponding provisions of this Act. Similar to the provisionsunder the Waqf Act 1952, the Survey Commissioner has tomake a detailed inquiry under the Act of 1995. He has to makethe local inspection and local investigation. He has the powersvested to call for the discovery and production of anydocument, summon and examine any witness, and requisitionany public record from any court or office. These powersappear to be vested particularly to have a detailed survey ofthe property allegedly to be the Wakf property during thesurvey. The Survey Commissioner also has the power to decide 20 CRA.3 of 2021+1.odtthe dispute, if any arose during the inquiry on the basis of anydeed. Section 5 of the Wakf Act 1995, further provides that onreceipt of the report of the Survey Commissioner under SubSection (3) of Section 4, the State Government shall forward acopy of the same to the Board. The Board shall examine thereport forwarded to it within six (6) months for publication inthe Official Gazette. Whether the Wakf is in existence at thecommencement of this Act or coming into existence, thereafter,to which the report relates and containing such otherparticulars as may be prescribed. It has also been provided thatthe Revenue Authorities shall include the list of auqaf referredto Sub Section (2) of Section 5 while updating the landrecords. The provisions indicate that the revenue recordinspection was signed to ascertain the rights of the partiesconcerned. Herein the case, the defendants have no material assuch. They barely relied on the Government Gazette of 1973,which included the Suit land as a Wakf property, to prove thatit was a Waqf property. They also have no material to satisfythe Court at any point in time, the Survey Commissioner hadheard the plaintiff or the Survey Commissioner had inspectedthe revenue record. There is also no material on whether theSurvey Commissioner submitted the survey report of the Suitland to the Wakf Board and it had examined the revenue 21 CRA.3 of 2021+1.odtrecords showing the possession of the respondents over theSuit land. 28.Learned counsel Mr. Kazi has argued that once Wakf isalways Wakf and that property never changes its character.However, to claim the doctrine of perpetuity, there must beevidence that the lands were dedicated for the purposerecognized by Muslim Law as religious, pious or charitable andsuch properties were transferred to God. The sole basis forclaiming the property as a Wakf property is the GovernmentGazette of 1973. Learned counsel Mr. Kazi has tried to advancethe argument that if the property is added as a Wakf propertyin the Government gazette, it is the conclusive proof that thesuit land was the Wakf property. 29.The Hon'ble Supreme Court recently, in the case ofSalem Muslim Burial Ground Protection Committee Vs. Stateof Tamilnadu and others; 2023 LiveLaw (SC) 454 held thatconducting a survey under Section 4 of the Wakf Act 1954before declaring a property as a Wakf property is the sine quanon and an indispensable requirement. In the absence of asurvey conducted under Section 4 of the Wakf Act, the mereissuance of notification under the Act would not constitute a 22 CRA.3 of 2021+1.odtvalid Wakf. It has also been held that in the absence of suchmaterial, the mere issuance of the notification under Section 5of the Act would not constitute a valid Wakf with respect to theSuit land. It has also been observed by the Hon'ble SupremeCourt that once a Wakf is always a Wakf, would not alter itsnature so as to confer any right upon the claimants. A Wakfcould be created in several ways, but the permanent dedicationof any movable and immovable property by a personprofessing Islam for any purpose recognized by Muslim law asa pious, religious or charitable purpose. In the absence of suchdedication, it could also be presumed to have come intoexistence by long use. 30.As discussed above, there was no iota of evidence thatany time the survey was done and the Survey Commissionerhad examined the revenue record. If the survey was done, theSurvey Commissioner would have got detailed informationabout the previous litigation and the decision of the competentAuthority under the Tenancy Act, deciding the nature of theSuit land as Madad Maash. In view of that matter, this Courtdoes not find substance in the argument of learned counsel forthe applicants that it is a Wakf land. 23 CRA.3 of 2021+1.odt31.The learned counsel, Mr. Kazi submitted that the Boardpassed the order under Section 54 of the Act 1995 on23.01.2013. The said order is before the amendment of 2013,which came into force on 20th September 2013; therefore, thesuit ought to have been filed within sixty days, as providedunder Rule 50(3) of the Maharashtra Waqf Rules 2003, fromthe date of order. The suit is prima facie time-barred. Hence, itwas liable to be dismissed. 32.The plaintiff had filed a petition U/S 54(4) of the Act on13.01.2014, which was registered as Waqf Suit No. 6 /2014.On 02.01.2014, he filed an application U/S 83(2) of the Act,and it was registered as Waqf Application No. 04/2014. 33.The plaintiff has pleaded that Moinuddin met him on20.11.2013. He told him about the impugned orders. On thevery same day, he applied for certified copies. His application isat Exh.97. It bears acknowledgment of the Office of C.E.O. Hepleaded that the Office of C.E.O. avoided giving him copies.The superintendent of the record section of the Waqf Boardissued him a letter dated 06.12.2013 and 31.12.2013 that therecord was missing and show cause notice was served upon theconcerned. Lastly, he received the certified copies of the order 24 CRA.3 of 2021+1.odtdated 30.04.2012 of proceeding No.ADB/259/2012 andMSBW/ABD/ 319/2012 dated 03.05.2012 about registration ofthe Waqf under Section 36 of the Act on 05.12.2013. Heapplied for certified copies of the order passed on 23.01.2013,corrected on 28.01.2013 from time to time. Lastly, he receivedthe copies on 05.12.2013. From the date of knowledge he filedthe petitions in time. However, he did not receive the ordersdated 28.01.2013 of File No.54/154/2012 on its Xerox copiesand letters from the Board's Office. 34.It is the vehement argument of the learned counsel forthe plaintiff that at no point in time notice was served uponhim by the Wakf Board of the proceeding initiated at theinstance of the defendants. When he learnt about such anillegal order, he immediately filed a suit. She has correctlypointed out that the Wakf Board was the party to the suit. Itdid not file a reply and also did not produce a copy of thenotice served upon the petitioner. Even before this Court, nosuch record is produced to satisfy the Court that the impugnedproceeding was initiated and the notice of hearing was servedupon the plaintiff. The silence of the Wakf Board speaks a lot.Therefore, the petitions were within limitation. 25 CRA.3 of 2021+1.odt35.In 2013, there were many amendments to the Act.Section 54 (4) was substituted, Sub-section (1) of Section 83was also substituted. The said amendments were brought intoeffect from 20.09.2013. Prior to the substitution of sub-section4, it was as under;"(4) Noting contained in sub-section (3) shall preventany person aggrieved by the order made by the ChiefExecutive Officer under that sub-section frominstituting a suit in a Tribunal to establish that he hasright, title or interest in the land, building, space orother property." 36.After the substitution of the above sub-section, theprovision to institute the suit was deleted, and it has beensubstituted that upon the enquiry of encroachment of the Waqfproperty, the Chief Executive Officer has to submit anapplication to the Tribunal. Upon receiving such anapplication, the Tribunal, on enquiry, has to make an order ofremoval of such encroachment and direct the encroacher tovacate the Waqf property. 37.Under amended Section 83 (1) the Tribunal hasconferred with the powers to determine the questionsregarding the Waqf, Waqf property, eviction of tenant etc.Under Sub-section (2), such a dispute should be filed before 26 CRA.3 of 2021+1.odtthe Tribunal within the time specified in this Act and where nosuch time has been specified within such time as may beprescribed. The term “Prescribed” has been defined underclause (l) of Section 3 as, except in Chapter III, meansprescribed by the rules made by the State government. 38.The State of Maharashtra has framed the MaharashtraWaqf Rules 2003 (Rules for short). Rule 50 provides for thetime limit under sub-section 83(2) of the Act. It has provideddifferent limitations for the disputes against the orders of theBoard under Section 40(1)(3), sub-section 51(2) andsubsection 54 (3) of the Act. We are concerned with sub-rule(3), which provides a time limit of Sixty days from the date ofthe order passed under Section 54(3) of the Act to raise adispute under Section 83 of the Act. Before amending sub-section 3 of Section 54, the Chief Executive Officer had powersto remove the encroacher. The amendments of 2013 onlywithdrew a right to sue in Civil Court and conferred all thepowers to the Tribunal. 39.A notice to the person allegedly encroached upon theWaqf land/property was the sine qua non. If any suit is filedbefore the Tribunal against the order under Section 54 of the 27 CRA.3 of 2021+1.odtAct, the burden is on the Board to prove that such notice wasserved upon the encroacher. The Board conveniently did notfile a reply to the petitions. It is evident that before theimpugned orders were passed, no notices were served to theplaintiff. 40.The pleadings and arguments of the plaintiff reveal thathe received the certified copies of the order dated 30.04.2013on 05.12.2013. He did not receive the copies of the ordersdated 28.01.2013. He filed an application under Section 83(2)on 02.01.2014 and the suit under Section 54(4) on13.01.2014. He learned about the impugned orders fromdefendant Moinuddin on 20.11.2013. It was the date of hisknowledge. From that date, the plaintiff impugned the above-mentioned orders within Sixty days. Hence, it could not saidthat the petitions of the plaintiff are time- barred. 41.Another limb of the argument of the learned counsel forthe defendant was that the learned Tribunal, though heard onthe tenability of the Suit under Section 54(4) of the Act 1995,did not discuss the crucial issue. His notes of writtenarguments filed before the learned Tribunal reveal that it hasbeen objected, that since, the plaintiff admitted he received the 28 CRA.3 of 2021+1.odtSuit land from Mutawali. Therefore, the suit is notmaintainable, and he had no cause for action. 42.Section 54(4) of the Act 1995 before its amendment hasbeen discussed above. It gives rise to the person aggrieved tolodge a suit if aggrieved by the orders of the C.E.O. Its provisoclause prohibits the person in possession from filing such suitunder the said section that where the Mutalwali let himpossess the land as lessee, licensee or by a mortgage. Thepleading of the plaint nowhere reflects that the plaintiffclaimed that he possesses the suit land from a Mutawali. Hehas a case that his forefathers were the tenants of the Inamdar,who was the exclusive owner. The Inamdar has claimed that hewas entitled to receive the entire "Lawani'. That proceedingalso attained the finality. Once again, the previous litigationsbefore the Tenancy Tribunal have had an effect on the presentsuit. This Court observed above that after losing the battle inTenancy Court, the defendants might have decided to let go ofthe suit land to Wakf. Reading the pleading and the reply, theCourt is of the opinion that the suit was not hit by Section52(4) of the Act 1995 before its amendment. The plaintiff hadimpugned the orders in two petitions under different Sections.Since, the orders were passed before the amendment of 2013, 29 CRA.3 of 2021+1.odtthe plaintiff might have thought to avoid the risk, it is better tofiled petitions under Section 54 (4) and Section 83(2) of theAct. After the amendment of 2013 to Section 85, thejurisdiction of the Civil and Revenue Court and other Authorityhas been ousted about any dispute about the Waqf or Waqfproperty. Both petitions were filed before the Tribunal. Therewas no evidence before the Court that the plaintiff had filedany suit before the Civil or Revenue Court or other Authority.In these circumstances it could not be said that the proceedingsbefore the Tribunal was not maintainable under Section 54(4)of the Act. 43.The orders of the Tenancy Tribunal holding the plaintifftenant in the suit land were never impugned. Under itsjurisdiction under Section 54 of the 1995 Act, the Board couldnot disturb the rights conferred upon the plaintiff under thesaid orders. The point Nos.C to E have been answeredaccordingly. 44.It has been vehemently argued that the learned Tribunaldid not consider the factual aspects. This Court has gonethrough the impugned order. The learned Tribunal had framedthe issues on controversial facts and answered each and every 30 CRA.3 of 2021+1.odtpoint framed for consideration. It appears that the learnedTribunal has considered the submissions of each party,discussed the material and recorded the correct findings. Theimpugned orders are free from illegality and infirmity. Hence,it does not warrant interference. 45.Both revision applications stand dismissed. 46.No order as to costs. 47.The learned counsel for the applicants prays to stay thisorder for six weeks. Considering the dispute, the order isstayed for six (6) weeks from today. (S. G. MEHARE, J.)...vmk/-