High Court
Legal Reasoning
1 CRA.67-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.67 OF 2024WITHCIVIL APPLICATION NO.4554 OF 2024IN CRA.NO.67 OF 20241.Gorakh S/o Tukaram Lokhande,Age-65 Years, Occu- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.2. Bhagwat S/o Tukaram Lokhande,Died through his LRs. Raju S/o Bhagwat Lokhande, Age- 35 Years, Occu.- Govt. Service, R/o. Takalibhan, Tal-Shrirampur, Ahmednagar. Dist.3. Sanjay S/o Kondiram Lokhande,Age- 50 Years, Occu. Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.4. Balasaheb S/o Shankar Lokhande,Age- 48 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar. 5. Prakash S/o Madhukar Gadekar,Age-38 Years, Occu. Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.…ApplicantsVERSUS1. The Tahsildar, Office of Tahsildar,Shrirampur, Tal. Shrirampur, Dist. Ahmednagar.2. Maharashtra State Board of Wakfsthrough its Chief Executive Officer, Panchakki, Aurangabad.
Legal Reasoning
2 CRA.67-2024.odt3. Dargah Dawal Malik (Rah),through its Mujawar, Shaikh Imam Badshah Shaikh Mujawar, Age-33 years, Occupation Agriculture, R/o. Takalibhan, Tal. Shrirampur, Dist. Ahmednagar.4. Kondiram S/o Tukaram Lokhande,Died through his L.R. 4-A) Ramesh S/o Kondiram Lokhande,Age-58 years, Occu.-Agriculture,R/o. Takalibhan, Tal. Shrirampur, Dist. Ahmednagar.5. Chandmal S/o Chunilal Gaud,Age-60 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.6. Gorakah S/o Bhimrao Jadhav,Age-58 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.7. Kerabapu S/o Pandharinath Magar,Age- 55 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.… Respondents.WITHCIVIL APPLICATION NO.6911 OF 2024IN CRA.NO.67 OF 20241.Dattatraya Yamaji Lokhande,Age-59 Years, Occ- Agriculture, R/o-Taklibhan, Tal. Shrirampur, Dist. Ahmednagar.2. Dnyaneshwar Jagannath Lokhande,Age- 57 Years, Occ-Agriculture, R/o- Taklibhan, Tal. Shrirampur, Dist. Ahmednagar.…ApplicantsVERSUS 3 CRA.67-2024.odt1.Gorakh S/o Tukaram Lokhande,Age-65 Years, Occu- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.2.Kondiram S/o Tukaram Lokhande,Died through his L.R. 4-A) Ramesh S/o Kondiram Lokhande,Age-58 years, Occu.-Agriculture,R/o. Takalibhan, Tal. Shrirampur, Dist. Ahmednagar.3.Bhagwat S/o Tukaram Lokhande,Died through his LRs. 3-A)Raju S/o Bhagwat Lokhande, Age- 35 Years, Occu.- Govt. Service, R/o. Takalibhan, Tal-Shrirampur, Ahmednagar. Dist. Ahmednagar.4.Sanjay S/o Kondiram Lokhande,Age- 50 Years, Occu. Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.5.Balasaheb S/o Shankar Lokhande,Age- 48 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar. 6.Chandmal S/o Chunilal Gaud,Age-60 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.7. Gorakah S/o Bhimrao Jadhav,Age-58 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.8.Kerabapu S/o Pandharinath Magar,Age- 55 Years, Occu.- Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar. 4 CRA.67-2024.odt9.Prakash S/o Madhukar Gadekar,Age-38 Years, Occu. Business and Agriculture, R/o. Takalibhan, Tal-Shrirampur, Dist. Ahmednagar.10.The Tahsildar, Office of Tahsildar,Shrirampur, Tal. Shrirampur, Dist. Ahmednagar..11. Maharashtra State Board of Wakfsthrough its Chief Executive Officer, Panchakki, Aurangabad.12.Dargah Dawal Malik (Rah),through its Mujawar, Shaikh Imam Badshah Shaikh Mujawar, Age-33 years, Occupation Agriculture, R/o. Takalibhan, Tal. Shrirampur, Dist. Ahmednagar....Advocate for Applicants : Mr. Shaikh Mazhar A. Jahagirdar.AGP for Respondent-State : Mr. D. B. Bhange.Advocate for Respondent No.2 : Mr. Rameez M. Shaikh.Advocate for Respondent No.3 : Mr. K. D. Bade-Patil.…CORAM : SHAILESH P. BRAHME, J.RESERVED ON : 03.09.2025PRONOUNCED ON : 09.09.2025.JUDGMENT :- 1.Heard both sides finally.2.Applicants are questioning order dated 20.12.2023passed below Exh.5 in Miscellaneous Application No.20 of2017 declining to grant stay to the implementation of order25.06.2012. Applicants are prosecuting Miscellaneous 5 CRA.67-2024.odtApplication No.20 of 2017, pending before Maharashtra StateWakf Tribunal, Aurangabad. 3.Respondent No.3 is a Dargah. Land Gut No.249 is aWakf property. The dispute pertains to 10 R. of land, part ofwhich is let out to the applicants. Applicants are in possessionof the same and have their houses. They claim to be the lesseeinducted by registered lease deed executed on 26.09.1949 atthe instance of Mutawalli. They are continuously in possessionthough lease was initially for period of 20 years. 4.Respondent No.2/Board received complaint regardingillegal occupation of the applicants. It conducted inquiry underSection 54 of Wakf Act, 1955 (herein after referred to as ‘Act’).By order dated 25.06.2012 applicants are directed to handover possession by removing the encroachment within 15 days.Being aggrieved by the order eviction, applicants approachedWakf Tribunal under Section 83 belatedly after four years and11 months. Apprehending dispossession, application Exh.5 wasalso submitted. After contest, the same was rejected by theimpugned order. 5. Learned counsel Mr. Jahagirdar submits that impugnedorder is perverse because the judgment and decree dated 6 CRA.67-2024.odt21.11.2001 passed by competent Civil Court in Regular CivilSuit No.181 of 1998, which is further confirmed in RegularCivil Appeal No.47 of 2002 is overlooked. It is furthersubmitted that applicants are in lawful possession of thedisputed property on the strength of registered lease deed andthey cannot be termed as encroachers. It is submitted that ifthey are dispossessed, then the proceedings before the Tribunalwould be infructuous. 6.Learned counsel further submits that order passed bySub Divisional Officer on 27.06.2022, upon which, reliance isplaced by the respondents is without jurisdiction. It issubmitted that when the applicants were inducted, there wasno prohibition for letting out the Wakf property for any specifictime period. It is submitted that prima facie case is made outand balance of convenience is in their favour. 7.Per contra, learned counsel Mr. Bade Patil repels thesubmissions on the basis of affidavit-in-reply. He would submitthat present revision application is not tenable and liable to berejected. It is submitted that applicants have suppressedmaterial facts. Order passed by Division Bench in Writ PetitionNo.7636 of 2019, order of Sub Divisional Officer dated27.06.2022 and order dated 14.06.2024 in Writ Petition 7 CRA.67-2024.odtNo.5696 of 2024 are suppressed. It is submitted that there wasno provision for letting out the property for 20 years. The leasedeed is void and possession is illegal. It is further submittedthat applicants have taken disadvantage of interim reliefgranted by the Vacation Court on 28.05.2024 and continued tobe in possession. It is further submitted that lease deed isagainst the Wakf Properties Lease Rules, 2014. 8.Learned counsel Mr. Shaikh appearing for respondentNo.2/Board adopts the submissions of the respondents.Learned AGP appearing for respondent No.1/State also adoptsthe submissions. 9.I have considered rival submissions of the parties.Applicants have filed Miscellaneous Application No.20 of 2017under Section 83 of the Act challenging order dated25.06.2012 passed by respondent No.2/Board under Section54(3) of the Act. It transpires from record that there is delayof four years and eleven months in approaching the Tribunalwhich has not been condoned yet. Apprehending dispossession,application Exh.5 is pressed into service which is rejected bythe impugned order. The possession is protected by this Courtvide order dated 28.05.2024 when it was represented that 8 CRA.67-2024.odtnotices dated 24.05.2024 were issued to the applicants forvacating the premises. 10.A preliminary objection is raised by the respondents formaintainability of the revision having being filed againstinterlocutory order. A reliance is placed on the judgment ofSupreme Court in Tek Singh Vs. Shashi Verma and another,Civil Appeal No.1416 of 2019, in which, it is laid down thatrevision under Section 115 of C.P.C. is not maintainable againstinterlocutory order. The matter before the Apex Court wasarising out of suit filed under Section 6 of Specific Relief Actand it was not in the context of any Wakf property or the WakfAct of 1955. The ratio cannot be made applicable to thepresent case. Learned counsel for the applicants is right incontending that revision is the only remedy by implication ofSection 83(9) and proviso thereto. A Tribunal has all powersof Civil Court. I am of the considered view that presentrevision is maintainable. 11.There is no dispute that order passed by therespondent/Board on 25.06.2012 is sought to be challengedafter four years by filing application No.20 of 2017 before theTribunal. The delay is yet to be condoned. From 2017 till thisdate, no endeavour has been made by the parties to request 9 CRA.67-2024.odtthe Tribunal to consider the condonation of delay. The Tribunalalso dealt with application Exh.5 without hearing parties oncondonation of delay. The Tribunal does not get jurisdiction toentertain the application without condoning the delay. TheTribunal should have peremptorily decided the issue of delay.12.Applicants are claiming to be lessee of respondent No.3on the strength of lease deed dated 26.09.1949, which was for20 years. Already respondent No.2/Board conducted inquiryunder Section 54(3) of the Act and directed them to vacate thepremises. Besides that the directions issued by Division Benchin Writ Petition No.7636 of 2019 vide order dated 27.04.2022are not disclosed. Applicants themselves had filed the saidpetition and solicited the orders. In pursuance of those orders,further inquiry was conducted by Sub Divisional Officer. Theapplicants are held to be encroachers and they were directed toremove the encroachment by invoking powers under Section55(1) vide order dated 27.06.2022 which is also not disclosed.There is substance in the submissions of the respondents thatapplicants have suppressed material facts from this Court.They are enjoying the interim relief which was secured duringvacation. 10 CRA.67-2024.odt13.Learned counsel for the applicants is unable to satisfythis Court as to how the applicants are continued in possessionafter expiry of lease period. Even if some benefits are given tothem for having being inducted in the premises vide registeredlease deed, their further continuation appears to be prima facieillegal. It is further endorsed by detail inquiry and orderpassed by Sub Divisional Officer on 27.06.2022. I do not findprima facie case in favour of the applicants. 14.Applicants are banking on the judgment passed by CivilCourt in Regular Civil Suit No.181 of 1998. It is confirmed byAppellate Court in Regular Civil Appeal No.47 of 2002. But,the judgments would show their possession. They do notcertify them to be lawful tenant. There is nothing on record tosuggest that they are paying rent. I am not inclined to give anybenefit to the applicants only on the basis of continuouspossession. 15.Parties have raised contentious issues regarding validityof the lease and the authority to let out the property for morethan three years. It is appropriate for the Tribunal to examinethose issues, if the delay is condoned. It is not necessary toexamine purport of Rule 4 of the Wakf Properties Lease Rules,2014 and the purport of judgment referred by the applicants in 11 CRA.67-2024.odtthe matter of Brigadier K. K. Verma and another Vs. NaraindasC. Malkani. This aspect needs to be gone into in a full-fledgedinquiry. 16. I do not find any perversity or material irregularity inthe impugned order. It is necessary to request the Tribunal toconsider issue of delay peremptorily. The applicants are guiltyof lapses and they went on representing this Court that theyhave eminent threats of dispossession. Tribunal is justified inrefusing to exercise discretionary jurisdiction in their favour. (i)Civil Revision Application is rejected.(ii)Maharashtra State Wakf Tribunal, Aurangabad isrequested to consider issue of condonation ofdelay peremptorily, as early as possible and notmore than one (1) month from today. (iii)Pending civil applications accordingly disposed of. (SHAILESH P. BRAHME, J.)...vmk/-17.After pronouncement of judgment, learned counsel forthe applicants prays for continuation of interim relief by way ofprotection to their possession. It is contended that the 12 CRA.67-2024.odtpossession is being protected since 28.05.2024 and applicantshave residential houses in the suit premises.18.Request is opposed by the learned counsel Mr. Bade Patilfor the respondent. It is contended that the delay is yet to becondoned in the substantive proceedings. Applicants areenjoying their possession, which is unauthorized. It is furthercontended that similarly situated persons have vacated theirpremises.19.I have observed that the Tribunal has not yet condonedthe delay. It is further observed that possession of theapplicants is illegal and even they are not paying any renttowards the same. I have further recorded finding thatapplicants have suppressed material facts. In suchcircumstances, I am not inclined to continue interimprotection. Request of the applicants is rejected. (SHAILESH P. BRAHME, J.)...vmk/-