Allowed

Haji Abdul Hashim Khan v. Prashant Chandak

Chhattisgarh HC8 May 2023MA/27/2023

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal and quashed a temporary injunction granted in a suit for specific performance. The court held that disputes regarding waqf property and the validity of a lease without board sanction fall under the exclusive jurisdiction of the Waqf Tribunal under the Wakf Act, 1995, precluding civil court interference.

What did the court decide?

The order dated 17.01.2023 passed by the trial Court restraining the defendant from raising construction is quashed.

Haji Abdul Hashim Khan Vs Prashant Chandak — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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	Order Sheet M.A. No. 27 of 2023 Haji Abdul Hashim KhanVersusPrashant Chandak
08.05.2023	Shri Manish Nigam, counsel for the Appellant.
	Shri Satish Gupta, counsel for the Respondent.
	With the consent of the parties, the matter is heard finally.
	Order dictated in open Court. Signed and dated separately.
	Sd/-
	(Sanjay S. Agrawal) Judge

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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M.A. No. 27 of 2023

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Haji Abdul Hashim Khan S/o Mujjaffar Aged About 69 Years Working As Sadar/ President, Anjuman, Islamiya Committee, Jagdalpur, District Bastar Chhattisgarh (Fathers Name And Aged Not Mentioned In The Cause Title Of The Impugned Order)

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---- Appellant

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Versus

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Prashant Chandak S/o Suresh Chandak Aged About 26 Years Businessman, R/o Indravati Ward, Jagdalpur, District Bastar Chhattisgah

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---- Respondent

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(cause title is taken from CIS)

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For Appellant: For Respondent:

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Shri Manish Nigam, Advocate. Shri Satish Gupta, Advocate.

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Single Bench:Hon'ble Shri Sanjay S. Agrawal, J Order on Board

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08.05.2023

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This miscellaneous appeal has been preferred by the defendant under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the order dated 17.01.2023 passed by Third Additional District Judge, Bastar, Place Jagdalpur (C.G.) in Civil Suit No.1-B/2022, whereby, the learned trial Court has allowed the application filed under Order 39 Rule 1 & 2 read with Section 151 of CPC. The parties to this appeal shall be referred hereinafter as per their description in the trial Court.

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Briefly stated the facts of the case are that a suit was instituted by the plaintiff/respondent on 26.07.2022 claiming specific performance of Rent Agreement executed on 10.11.2015 by submitting inter alia that

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under the said agreement, the appellant/defendant had promised to construct a shop admeasuring 20'x50'=1000 sq.ft. on Sheet No.77, plot No.152/153 situated opposite Sadar Mosque at Jagdalpur. According to the alleged Rent Agreement, the plaintiff was required to deposit a sum of Rs.40,00,000/-, out of which, Rs.20,00,000/- would be non-refundable, while rest has to be adjusted towards the rent. It is pleaded by the plaintiff that despite depositing a sum of Rs.12,00,000/- (Rupees Twelve Lacs Only), the defendant has failed to construct the shop and has thus violated the terms and conditions of it and instead trying to let it out to someone else by constructing a shop, therefore, an application under Order 39 Rule 1 & 2 of CPC has been filed praying for restraining the defendant from raising any construction over the alleged plot in order to let it out to someone else during the pendency of the suit.

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In reply to the aforesaid claim, it was pleaded by the defendant that since the alleged plot is the waqf property, therefore, it cannot be given on lease unless and until the permission is obtained from the waqf Board. It is contended further that since no permission as such was obtained before the execution of the alleged agreement by the then Sadar /President, the plaintiff is, therefore, not entitled to get the relief of specific performance of contract. Further contention of the defendant is that since an alternative relief was claimed for damages of Rs.12,00,000/- along with the interest @12% per annum, therefore, no irreparable loss would be caused to the plaintiff. It is, therefore, contended that neither the prima facie case lies in his favour nor the balance of convenience and no irreparable loss would, therefore, cause to him.

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After considering the contention of the parties, it was observed by

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the trial Court that the three essential ingredients for issuance of temporary injunction are in favour of the plaintiff as the defendant is constructing a shop over the disputed plot in order to let it out to someone else despite the execution of the alleged Agreement and that by observing as such has restrained the defendant from raising a construction over the suit plot for the period of six months. This is the order which has been questioned by way of preferring this appeal.

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Learned counsel appearing for the appellant/defendant, while inviting attention to the provision prescribed under Section 51 of the Waqt Act, 1995 (hereinafter referred to as the 'Act, 1995') submits that since the alleged Rent Agreement was executed without prior permission of the waqf Board, therefore, based upon such an agreement, no relief could be claimed by the plaintiff. It is contended further that the dispute as raised by the plaintiff is to be determined by the concerned Tribunal constituted under the said Act, 1995, therefore, the trial Court has committed an illegality in holding that the three essentials for issuance of temporary injunction are in favour of the plaintiff and thereby erred in restraining the defendant from raising the construction with regard to the plot in question for the period of six months. The order impugned is, therefore, liable to be set aside. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of Rashid Wali Beg vs. Farid Pindari and others reported in 2022 (4) SCC 414.

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On the other hand, learned counsel appearing for the plaintiff/respondent has supported the order impugned as passed by the trial Court.

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I have heard learned Counsel for the parties and perused the entire

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papers annexed with this appeal carefully.

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Admittedly, the property in question is the waqf property as reflected from the averments made by the parties to this effect. It appears further from perusal of the Rent Agreement that a sum of Rs.40,00,000/- was required to be deposited by the plaintiff, however, he deposited only a sum of Rs.12,00,000/-, though disputed by the defendant, and that too in two installments, firstly on 10.11.2015 and secondly on 28.11.2017 and till date the entire amount as required to be paid under the alleged agreement has not been paid for construction of the shop said to have been constructed as per the terms and conditions of the alleged agreement.

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That apart, the alleged Rent Agreement was executed by the then Sadar/President, namely, Salim Raza without obtaining prior sanction of the waqf Board, therefore, it cannot be said that the plaintiff is entitled to get the relief for specific performance of contract based upon it. The said provision is relevant for the purpose, which reads as under:-

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51. Alienation of waqf property without sanction of Board to be void.—

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(1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board:

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Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013.

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1(A) xxxx xxxx xxxx xxxx

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According to the aforesaid provision, it is, thus, evident that if the property is the waqf property then the alleged agreement could be executed only with the prior sanction of the Board. However, no such permission has been obtained prior to the execution of the alleged Rent

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Agreement in order to provide the suit plot after constructing the shop thereon to the plaintiff. Even otherwise, the dispute as raised by the plaintiff appears to be determinable by the Tribunal constituted under Section 83 of the Act, 1995. The said provision is also relevant for the purpose, which reads as under:-

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83. Constitution of Tribunals, etc. —(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.

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(2) Any mutawalli or person interested in a waqf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf.

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It, thus, appears from a bare perusal of the aforesaid provision that for the determination of any dispute, question or other matter, which is in relation to the waqf or waqf property, eviction of a tenant or determination

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of rights and obligations of the lessor and the lessee of such property, it could then be determinable by the Tribunal constituted under the said Act, 1995. At this juncture, it is necessary to see the principles laid down by the Supreme Court in the matter of Rashid Wali Beg vs. Farid Pindari and others (supra), wherein it has been observed at paragraphs 60, 61, 64, 65, 66 & 69 as under:-

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“ 60. After admitting the property to be a waqf property, the appellant herein (Defendant 1) filed an application under Order 7 Rule 11 on the sole ground that a suit for injunction could be filed only before the Waqf Tribunal.

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This application for rejection of plaint was allowed by the trial court and the suit was dismissed. The first appellate court confirmed the same but on a second appeal, the High Court set aside the judgments of the trial court and the first appellate court with a direction to the civil court to proceed in accordance with law. The reasoning of the High Court was that there was no dispute with regard to the property being a waqf property or the nature of the property and that therefore civil court will have jurisdiction. Curiously the High Court referred to the decisions in Ramesh Gobindram and Anis Fatma Begum , but held that all those decisions relied upon by the learned counsel for the respondents were not fully applicable to the facts of the present case.

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61. The approach of the High Court, in our considered view, is not in tune with the law. The question as to whether the suit for perpetual injunction is maintainable before the Waqf Tribunal or not, is already answered in Akkode Jumayath Palli Paripalana Committee . This Court, pointed out in the said decision that Ramesh Gobindram was distinguished in Anis Fatma Begum , and that therefore the Tribunal had jurisdiction to entertain a suit for perpetual injunction. But unfortunately, this decision rendered by this Court on 23.07.2013 does not appear to have been brought to the notice of the High Court.

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64. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words “ any dispute, question or other matter relating to a waqf or waqf property ” are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram was sought to be distinguished both in Anis Fatma Begum and Pritpal Singh and such distinction was taken note of in Akkode Jumayath Palli Paripalana Committee . Additionally, this Court in Kiran Devi , refused to apply the ratio of Ramesh Gobindram , on the ground that the suit was originally instituted before the Civil Court, but was later

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transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram .

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65. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter ( i ) relating to a waqf; and ( ii ) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).

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66. In fact, Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the CPC, while trying a suit or executing a decree or order. This is why this Court held in Mohideen vs. Ramanathapura Peria Mogallam Jamath that the Waqf Tribunal will have power to issue temporary injunctions under Order 39 Rule 1 CPC.

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69. In the case on hand, the property is admitted to be a waqf property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be to ignore the mandate of Sections 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property. There is also one more issue. In the written statement, the Defendant 1 has admitted the existence of the waqf and also admitted that the father of the plaintiff by name Riyaz Ahmad is the mutawalli. But the claim of the plaintiff that he is the beneficiary of the waqf has been denied. Therefore, a question as to the nature of the waqf and whether the plaintiff is a beneficiary of the waqf, has also arisen in this case. This question has necessarily to be decided by the Tribunal and not the civil court.”

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Considering the facts and circumstances of the case, considering further the fact that the plaintiff has failed to deposit the amount of Rs.40,00,000/- as per the alleged Rent Agreement and that by considering further the fact that the plot in question is admittedly the waqf property and the alleged Rent Agreement was executed without prior sanction of the

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Board, therefore, in the light of the principles laid down by the Supreme Court in the aforesaid matter, it cannot be said that the three essentials required for issuance of temporary injunction are in favour of the plaintiff.

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Consequently, the appeal is allowed and the order impugned dated 17.01.2023 passed by the learned trial Court in Civil Suit No.1-B/2022 restraining the defendant from raising the construction with regard to the plot in question for the period of six months is hereby quashed.

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Before parting with the matter, it is made clear that I have not considered the merits of the issues involved in the suit and, therefore, the trial Court would decide the suit strictly in accordance with law on merits without influenced by any of the observations of mine, which I have refrained from making on merits.

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No order as to costs.

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Sd/-

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(Sanjay S. Agrawal) JUDGE

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Nikita

Haji Abdul Hashim Khan v. Prashant Chandak

Case brief

What is this about?

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Haji Abdul Hashim Khan v. Prashant Chandak

Case brief

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