T.VAIPHEI, J. - (1.) THESE revision petitions filed under Article 227 of the Constitution (wrongly registered as writ petitions) involving a common question of law and arising out of the common judgment and order dated 9.10.2003 passed by the learned District Judge, Shillong in Misc. Civil Appeal Nos. 3 and 4(H) of 1994 and the order dated 17.11.2003 passed by him in CRP No. 1(H) of 2003, were heard together and are now being disposed of by this common judgment.
(2.) THE facts common to both the revision petitions may be noticed at the outset. THE petitioner No. 1 is the Chief Executive Officer of the Meghalaya Wakf Board, which had come into existence in the year 1976 after the State of Meghalaya was bifurcated from the State of Assam in the year 1972, but in the interregnum, the management and affairs of the Wakf properties in the State of Meghalaya continued to be controlled by the Assam Wakf Board. According to the petitioners, the Haji Elahi Buksh Wakf Estate of Shillong is one of the registered Wakf properties under the Meghalaya Board of Wakf ("the Board" for short), and this Wakf estate has several valuable landed properties and both the disputed properties herein situate at G.S. Road, Police Bazar, Shillong covered by Patta No. 62 issued by the Collector, East Khasi Hills are some of those properties. It is the further case of the petitioners that the disputed properties stand in the name of the petitioner No. 2, who is the sole mutawalli of the said wakf estate. He was appointed as the joint mutawalli on 4.3.1973 and 23.4.1975 with Haji Kanumia by the Assam Board of Wakf in accordance with the Wakf Deed dated 9.11.1936 executed by the late Haji Elahi Buksh and after the death of the said Haji Kanu Mia in the year 1980, he became the sole mutawalli in terms of the order dated 7.2.1980 passed by the Meghalaya Board of Wakf. Both the respondents in the writ petitions through the said Haji Kanumia, according to the petitioner, had illegally occupied the disputed properties and surreptitiously constructed multi-storeyed RCC buildings thereon merely on the strength of unregistered tenancy agreements dated 12.4.1974 and dated 12.4.1974 respectively without obtaining permission from the competent authority and also contrary to the terms and conditions of the said agreements. Both the private respondents are engaged in multifarious businesses by renting out the buildings to a number of tenants, are earning a huge amount of money therefrom and are also fraudulently depriving both the mutawalli and the Board of the benefits to be used for charity as intended by the original wakf of the petitioner No. 2. It is also the case of the petitioners that on getting information about such unauthorized occupations, the Board in its meeting held on 17.2.1982 at Mahendraganj, decided to set up a Sub-Committee to enquire into the two disputed properties. Two separate enquiries under Section 36-A of the Wakf Act, 1954 ("1954 Act") were initiated by the Board against each of the private respondents by issuing statutory notices requiring them to furnish all the documents and papers relevant for facilitating the enquiries. The common Sub-Committee after making spot enquiries and inspection and after giving adequate opportunities to both the respondents concluded the enquiries and submitted their reports. On being satisfied with the enquiry reports, the Board resolved to recover the disputed properties and requisitioned the Collector, East Khasi Hills District as provided for in Section 36-B of the 1954 Act for their recovery. On receipt of requisition orders from the Board, the Collector gave statutory notices to the two private respondents to vacate the disputed properties and their premises within thirty days vide separate orders but bearing the same date i.e. 18.7.1986. It is contended by the petitioners that the aforesaid orders for requisition operate as a decree of a Civil Court, and the notice of eviction so issued by the Collector under Section 36-B of the 1954 Act are in exercise of the power of an executing Court under the 1983 Rules, which is appealable under Section 36-B(4) of the 1954 Act; the statutory period of limitation prescribed therefor being thirty days. Neither of the private respondents preferred an appeal against the order dated 18.7.1986 of the Collector but had chosen to file Civil Rule No. 176 (SH) of 1989 before this Court, which, however, by its order dated 27.9.1992 dismissed the writ petition by directing them to first exhaust the alternative remedy provided under Section 36-B(4) of the 1954 Act. The respondents accordingly preferred Misc. Civil Appeal No. 3 and Misc. Civil Appeal No. 4 of 1994 respectively before the learned District Judge, Shillong on 8.4.1994. The appeals were finally disposed of in favour of the private respondents after nine long years by the impugned judgment and order. Both the petitioners, aggrieved thereby, sought for review of the said judgment and order before the learned District Judge by filing C.R.P. No.1(H) of 2003 jointly, which was , however, rejected by the second impugned order dated 17.11.2003. The findings of the learned District Judge are that the tenancy in question were created by the said Haji Kanumia in favour of the father of the private respondents; that their father was allowed to run the business in a temporary structure situated on the disputed properties, for which monthly rents were fixed, but the structures were devastated by fire; that the private respondents were evidently the tenants of the Haji Elahi Wakf Estate managed and run by the said Haji Kanumia and that the said Haji Kanumia subsequently issued the authorization letter allowing the private respondents to construct the RCC buildings thereon with their own costs and expenses. According to the learned District Judge, the notice dated 15.2.1980 issued by Md.Taiyab, the respondent No. 4 in the appeals, disclosed that notice had been served upon the private respondents in his capacity as the new mutawalli as the previous mutawalli had expired and that they had been paying rents to the said Md. Taiyab. On the basis of these findings, the learned District Judge concluded that the private respondents could not be termed illegal occupants of the Haji Elahi Wakf Estate. The learned District Judge disagreed with the findings of the Enquiry Committee constituted by the Board accepting the case of the petitioners noticed earlier and questioned as to how the private respondents became unauthorized occupants of the disputed properties when they took the same on rents from the said Md. Kanumia, more so, when the RCC Buildings were subsequently constructed by them in terms of the authorization letter issued by the former; the enquiry report was also silent as to in what manner, the private respondents had tried to usurp the disputed properties. The learned District Judge also disputed the view taken by the Enquiry Committee that the private respondents were barred by Section 36 of the 1954 Act from occupying the disputed properties which were located in an urban area for more than one year under lease. According to the learned District Judge, Section 36 did not say that Wakf property located in urban area could not be occupied for more than one year even under a lease; which is mainly concerned with the duties of mutawalli. Though the learned District Judge found from the said report that there was some internal dispute between Md. Suleiman and Md. Taiyab, he held that the private respondents could not be victimized for this so long as they regularly paid rents to the rightful owner or the authorized agent. The learned District Judge also recorded the findings that it is the duty of the Board to decide as to who is the authorized mutawalli; that the enquiry was held ex-parte and no copy of the report was furnished to the private respondents; that the file of the Collector disclosed that the parties were not given sufficient opportunity to place their grievances before issuing the notice under Section 36-B(2) of the Wakf Act, 1955 (sic) and that notices were issued without applying his mind. According to the District Judge, as the transfer by way of lease is not included in Section 36-A(1) of the 1954 Act, the tenancy agreements in question are not hit by Section 36-B(1), and the notices under Section 36-B of the 1954 Act are, therefore, without jurisdiction. The notices were accordingly set aside by the learned District Judge. The correctness of the views taken by the appellate Court is called into question in these revision petitions.
(3.) BOTH the private respondents filed their respective affidavits-in-opposition. The common stands taken by both of them is that both of them are the tenants of Md. Taiyab, who is the sole mutawalli of the Wakf properties, and his appointment as mutawalli has not been cancelled and that the construction of the buildings on the disputed properties were done with the permission of the then mutawalli and the competent authority; that they never deprived the petitioner No. 2 of his rents nor have they sub-let/mortgaged/sold or transferred any of the disputed properties to anyone; that they had not received any notice for furnishing all the relevant papers or documents; that they are not aware of the enquiry report dated 28.2.1985; that the grounds taken by the petitioners in paragraphs 12 (B), 12(D), 12 (E) of the revision petitions are departures from their pleadings in the appeal and the same are after-thoughts. They also asserted that the grounds stated by the petitioners in paragraphs 12(A), (C), (F), (G), (H), (I), (J), (K), (L), (M), (N) and other grounds stated elsewhere are baseless and that as they are defaulters, the question of their delivering vacant possession of the tenanted premises to the Board does not arise. They also contended that the provisions of Section 36(B)(2) of the Wakf Act are not applicable to these cases and that the revision petitions are devoid of merits, which are liable to be dismissed. Mr. T.T. Diengdoh, the learned counsel for the petitioner No.1, and Mr. H. Ahmed, the learned senior counsel for the petitioner No. 2, assail the impugned judgment by arguing that the appellate Court has completely overlooked the glaring fact that Wakf (Amendment) Act, 1984, except for the provisions relating to the enhancement of the period of limitation for filing suits in respect of wakf properties in adverse possession from 12 years to 30 years and the application of the provisions of Wakf Act, 1954 to the evacuee properties, has never been enforced and that it is the 1954 Act as amended in 1964, which held the field till the Wakf Act, 1995 ("1995 Act" for short) came into force and that as the instant dispute arose on 2.2.1985, when the enquiry report was submitted, Section 36A of the 1954 Act did provide for obtaining the sanction of the Board for grant of the lease in question. It is the contention of both the learned counsel that the provision of 52 (2) of the Wakf Act, 1995 requiring the previous sanction of the Board to grant lease does not have retrospective effect so as to cover the lease transaction which took place prior to the coming into force thereof. So construed, contends the learned counsel, the learned District Judge has committed grave error of law in applying the abortive Sections 36-A and 36-B of the 1984 Amendment. They also contend that the enquiry conducted by the Sub-Committee appointed by the Board does not suffer from any procedural infirmity as all the requirements of law prescribed under the Meghalaya Wakf (Register of Wakf and Recovery of Wakf Property) Rules, 1983 have been fully complied with and that as the Collector has acted as the Executing Court under Section 36 B (2), he was not required to issue notice to the private respondents. On the contention of the intervener that the disputed properties are not wakf properties as they were never registered in accordance with Section 26 of the 1954 Act, the learned counsel maintain that the intervener, having not challenged the enquiry report of the Board or the order of the Collector, is not a person interested in the wakf and has, therefore, no locus standi to intervene in these revision petitions. Per contra, Ms. R. M. Kharsynthiew, the learned counsel for the respondent No. 1, supports the impugned judgment and contends that no infirmity could be pointed out by the learned counsel appearing for the petitioners which will warrant the interference of this Court. The written submissions filed on behalf of the two petitioners and that of the intervener have been duly considered by me.;