State of M.P., vs Sohan Khatik S/o Shrilal Khatik

This revision has been preferred under Section 83 (9) of the Waqf Act, 1995 ( for brevity "Act, 1995") challenging the order dated 04.02.2012, passed by Madhya Pradesh State Waqf Tribunal, Bhopal in Case No. 114/2009 wherein the application under Section 83 (2) of the "Act, 1995" filed by the petitioner for declaration and permanent injunction against the respondents, has been dismissed, while allowing the application under Section 151 C.P.C submitted by the respondent No. 3.

Bereft of the unnecessary details, facts requisite for disposal of this petition are that the applicant/petitioner filed Case No. 114/2009 under Section 83 (2) of the "Act, 1995" against the respondents seeking declaration and permanent injunction in which the plaintiff/petitioner has claimed that the plaintiff/Committee is an elected body and is responsible for the maintenance of the properties of Waqf Masjid Zakaria & Madarsa and the President of the Committee has the responsibility to look after of the safety and maintenance of the properties. Therefore, the Committee has filed the case. It is claimed that the respondent Nos. 1, 2 and 4 are not entitled to trespass into the property of the Waqf Masjid Zakaria & Madarsa for they have no right and interest in the property. The Chairman of the Committee/respondent No. 3 Alamgeer Gauri also approved the appointment of the plaintiff/Committee respondent Nos. 3 and 4. The plaintiff/Committee filed Case No. 56/2007 against the respondent Nos. 3, 4 under Section 83 (2) of the "Act, 1995." Mohammad Sadik also filed Case No. 60/08 against the respondent Nos. 3 and 4 before the Waqf Tribunal. The respondent Nos. 3 and 4 in conspiracy with respondent Nos. 1, 2 started repairing the Masjid and are trying to change the structure of the Masjid. Respondent No. 4 is being conspired with respondent Nos. 1, 2 and 3. A legal notice was issued on 29.09.2009, which was served on 03.10.2009 to the respondents. Despite this notice, the construction work was being conducted by respondent No. 4 which is illegal and, therefore, it is necessary to injunct the respondent No. 4. If any permission has been granted for construction by the respondent No. 3, the same be set aside and the respondent Nos. 1, 2 and 3 if have issued any certificate in favour of respondent No. 4, the same be recalled. The materials kept in the Masjid compound by respondent No. 4 be directed to be removed and the structure of the Masjid be not changed.

During the pendency of this case, an application was filed by the respondent No. 4 in Case No. 56/08 under Order 7 Rule 11 of C.P.C alleging that the petitioner/Committee was appointed for three years and the tenure of three years began on 31.03.2007 and completed on 31.03.2010. Thereafter, the Committee has no locus. The same was dismissed by the Waqf Tribunal. Subsequently, evidence was led by the petitioner after completion of the evidence. In the present case, respondent No. 3 filed an application under Section 151 C.P.C claiming that the petitioner/Committee completed its tenure on 31.03.2010. Therefore, the petitioner/Committee has no locus standi, hence, case be dismissed. The plaintiff/applicant opposed the same. After hearing both the parties, the learned Waqf Tribunal allowed the same and dismissed the Case No. 114/2009 on the ground that even after the evidence adduced by the petitioner/Committee, the Committee failed to prove that it has locus after 31.03.2010. Therefore, the case is not maintainable.

In this background, the present revision has been preferred on the ground that M.P. State Waqf Tribunal had already passed an order on 11.01.2011 and rejected the application filed by the respondent No. 4. Therefore, subsequent application under Section 151 C.P.C by defendant No. 3 is barred by the principle of res-judicata under the provision of Section 11 of the C.P.C. The learned Tribunal overlooked the same and passed the order impugned dismissing the case of the plaintiff. Therefore, the order impugned is illegal, incorrect and has no propriety. Hence, liable to be set aside. The Waqf Tribunal failed to exercise his jurisdiction vested in it, hence, the order be set aside.

Heard the parties. Perused the written arguments submitted by the parties.

It would be appropriate to mention here that in Case No. 56/2008, subsequently to 26.03.2011, on the application of respondent No. 1, under Section 151 C.P.C, the learned M.P. Waqf Tribunal, Bhopal dismissed the suit filed by Haji Abdul Latif, Managing Committee, Masjid Zakaria & Madarsa. The same was challenged before the High Court in Civil Revision No. 190/11, decided on 16.01.2013, wherein the order dated 26.03.2011 has been affirmed in absentia of the petitioner.

It would be appropriate to mention here that in Case No. 56/2008, the application under Order 7 Rule 11 of C.P.C was filed by respondent No. 4 which was decided on 11.01.2011. Subsequently, after adducing the evidence in the present case, i.e. Case No. 114/2009 filed by the Haji Abdul Latif, Managing Committee, Masjid Zakaria & Madarsa against the respondent No. 3- Madhya Pradesh Waqf Board, Bhopal filed the present application under Section 151 of C.P.C which was considered by the learned Waqf Tribunal and pronounced the order impugned.

It would be appropriate to mention here that Rule 32 of the M.P. Waqf Rules, 2000 provides that if the Waqf Tribunal is of the opinion that the case has no basis for any proceeding or barred by limitation or jurisdiction or barred by any law or procedure then the Waqf Tribunal after considering such application may allow the application and dismiss the case summarily.

In the present case, the applicant in his evidence has failed to show that after the tenure of the Committee from 31.03.2007 to 31.03.2010, the period of the Committee was over headed by the petitioner- Haji Abdul Latif. Therefore, after expiry of the period, no further extension has been granted to the Committee, hence, the Committee failed to prove that it has any locus to file the application under Section 83 (2) of the "Act, 1995." The respondent No. 3 has, subsequently, appointed Committee/ respondent No. 4. The M.P. Wakf Board/respondent No. 3 has authorized the Committee/respondent No. 4 to make such construction as per the document 6 dated 21.01.2011. Hence, it cannot be said that the respondent No. 4 is constructing/repairing the Masjid Zakaria & Madarsa illegally and un-authorizedly. Hence, the present revision sans merit and, therefore, is dismissed.