Removal of encroachment from waqf property

In India a substantial number of auqaf exist. The property comprised in a waqf is vested in the implied ownership of Almighty God and administration is vested in natural persons. As such it is open for abuse often. The successive legislations on the protection of property had no effect. Therefore, a humble beginning was made by Waqf Act, 1995.

The waqf Act, 1995 came into force all over India with effect from 1-1-1996. It saw an amendment in 2013. The scope was presumed to be enlarged from the original provision as enacted in 1995. But if one reads the amended provisions one can see that the provision is diluted and made more cumbersome and time consuming. I here below give the provision as enacted by the amended Act.

'54. Removal of encroachment from waqf property:

(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is waqf property and which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned muthawalli;.

(2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed.

(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is waqf property and that there has been an encroachment on any such waqf property, , 2[he may make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon, to the muthawalli of the waqf.]

2[(4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for the reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property:

Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer;

(5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property]

2. Substituted by the Waqf (Amendment) Act, 2013

Comments

The Act, as it was passed originally, did not contain the definition for the term 'encroachment' or 'encroacher'. In the absence of the definition of the term, assistance was being drawn from the general terminology to mean person in occupation of the waqf property without sanction of law. In other words the possession of the person, initially, was illegal and unlawful or that his position was that of a trespasser. With a view to streamlining the matter, the Waqf (Amendment) Act, 2013 has defined the term 'encroacher'. The 'Clause (ee)' of Section 3 is inserted which defines an 'encroacher' as follows:

'3(ee) 'encroacher' means any person occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by the Board';]

Now, with this amendment, a person who comes to occupy a property which is waqf property either in whole or in part without the authority of law is termed as an encroacher. In other words at the very inception or entry into the property, the occupation or possession of a person is illegal and unlawful.

It is an inclusive definition. The definition now takes into its ambit cases where the initial entry of a person on a waqf property was lawful and with authority but subsequently it has become unauthorized by reason of expiry of tenancy for whatever reason, or determination of tenancy or lease or license during its currency. The definition of encroacher as contained in amended provision is not based on logic. The Act also refers to unauthorised occupant which required elaboration. The two concepts, namely, coming into occupation (i) unlawfully without authority, and (ii) entry though under lawful authority and the authority having expired or determined in accordance with law, are different and distinct from each other. A separate definition of 'unauthorised occupation' is required to be included in the Act.

The Act empowers the Chief Executive Officer to exercise quasi-judicial function under this section. The cognizance can be taken either on a complaint, or on his own motion. The Section uses the word 'consider' in sub-section (1). It means that the Chief Executive Officer mentally, by weighing the merits of the case, or that he is of the opinion, regards that he should go deep into the matter. This formation of prima facie opinion may come from any complaint or on own motion. The complaint may be either from the muthawalli of a waqf, or any person having knowledge of the encroachment. It may even be from the Chief Executive Officer himself on his own inspection note. He can also take action on inspection note of any officer of the Board. Whatever may be the source of his information, here he takes action suo motu or of his own motion and on his satisfaction.

The High Court of Karnataka while dealing with the provisions of the Karnataka Cooperative Societies Act has elucidated the expression 'own motion' thus.

'There could be no doubt that the expression 'on his own motion' is synonymous to suo-motu, which according to the dictionary means, 'on one's own initiative'. 'Own motion' obviously implies application of mind and formation of one's own opinion. It does not matter how and from what source he gets information. But, it does not mean that the authority conferred with such power should eschew from consideration, information or material furnished by external sources and should look to the information collected by his own self effort. The exercise of powers suo-motu or on one's own motion cannot and ought not to be construed in a narrow sense and in a sense which defeats the salutary purpose of the provision. No fetter can be placed on the specified authority from the stand point of source material on which it should exercise the power. An authority exercising the suo motu power is not debarred from obtaining information and materials from various sources. The only requirement is that on the basis of such information and materials gathered either on his own initiative or received from other sources, the concerned authority has to come to the conclusion, on an active application of mind whether to take up the enquiry or not. Undoubtedly, the decision must be his. He cannot mechanically act at the behest of some other person, a conclusion on the need and expediency of holding an inquiry….”

[ILR 2001 Kar.766 (FB) - Bangalore Grain Merchants Association vs. District Registrar of Societies and Another]

The next point that the Chief Executive Officer has to consider is, whether the property is (i) waqf property; and (ii) registered as such under the Waqf Act. The property may be either land or building or space or other property and there has been encroachment on such property. The identity of the property must be clearly established.

The power to register a property as waqf property, either under Section 36 or Section 40 or 41, is vested in the Board. The Act is silent as to the period of limitation within which a person aggrieved, Muslim or non-Muslim, is to agitate the order of the Board. In the event the Board publishes the details of registration of property in Official Gazette it can claim the legal presumption available under Section 81 of Evidence Act. This is a legal presumption. This presumption is rebuttable. In the absence of any decree, obtained from a Tribunal, against the order of the Board, the Chief Executive Officer has to presume that the property has been duly registered. It is also necessary that the details of registration have been entered in the Waqf Register maintained under Section 37.

The unamended sub-section (4) of Section 54 provided that any person aggrieved by the order made by the Chief Executive Officer under sub-section (3) from instituting a suit before the Tribunal to establish that he has right, title and interest in the said property. However, the proviso to the sub-section barred suit from a lessee, licensee or mortgagee let into possession by the muthawalli or any person authorised by him in this behalf. The suit under the sub-section did not contemplate seeking declaration of title or cancellation of the gazette notification made under Section 5 or registration made under Section 36 or 40 of the Act or removing the entry made into the Waqf Register.

The word other property used in the sub-section (1) may be some movable property which are normally not registered under the Act but still it is considered as waqf property such as nazars, khabarposh, gold, silver, vessels and other offerings made by devotees to a Dargah or worshippers of a Masjid or Madrasa, like mats, Carpet, fans, light fittings, geysers etc. No doubt such offerings could not be mentioned in the notification but such offerings are made from time to time by the devotees who visit a Dargah or Masjid. By their very nature they constitute the income of the waqf.

A reading of the definition of encroachment indicates that a lessee of waqf property is an encroacher and can be tried summarily under the procedure laid down in Section 54 and evicted either under sub-section (5) of Section 54 or Section 55. The lessee has come in occupation of the waqf premises under a civil contract and continues to be in occupation unless he is evicted as per law available for eviction of tenants. This being a civil matter can be adjudicated by a Civil Court. The Tribunal is not clothed with the power to adjudicate land lord-tenant relationship. What Section 7 states is that the Tribunal can assess damages and impose penalty. The provision contained in sub-section (1) of Section 83 is of no assistance. Therefore, proceeding under Section 54 for eviction of unauthorised occupants of waqf property is not covered by the disputes specified in Sections 6 and 7 of the Act. Please refer AIR 2014 SC 2064 - Faseela M vs. Munnerul Islam Madrasa Committee and another.

If the Chief Executive Officer is convinced that the property is waqf property and registered as such under the Act, he is required to issue a notice to the encroacher. The notice spoken of in sub-section (1) shall contain the particulars of the property, the area encroached and calling upon the encroacher to show cause before a particular date, as to why an order requiring him to remove the encroachment, before the date mentioned in the notice, shall not be made. It is mandatory for the Chief Executive Officer to send a copy of the show cause notice, and serve, on the muthawalli of the waqf, in case the complainant is not the Muthawalli.

The procedure of service of such notice is to be prescribed by Rules to be framed by the State Government under the Act. The notice could be served either through messenger, or by post (Registered post Acknowledgement Due) or any recorded delivery recognised by the Code of Civil Procedure, 1908. The notice should be affixed on some conspicuous part at the last known residence of the encroacher, or tender it to an adult member or servant of the family of the encroacher and also affix a copy on any conspicuous part of the property encroached. In case the encroacher is a minor service of Notice upon his guardian or upon any adult member of his family or servant of his family is sufficient compliance of the service of the notice.

When the objections are received, within the date specified in the notice, the same has to be considered by the Chief Executive Officer. The Inquiry Officer has powers of a Civil Court under Code of Civil Procedure while trying a suit. The inquiry is summary in nature covering the points whether the property is waqf property or not and whether it is registered or not, and whether there is encroachment or not. In the guise of inquiry the Chief Executive Officer is not permitted to re-open the inquiry made by the Waqf Survey Commissioner under Section 4, or declaration made by the Board, under Sections 36 and 40 or 41 of the Act, namely, that the property is waqf property or not a waqf property. The law as defined in the Indian Evidence Act in Section 81 is that the Chief Executive Officer has the judicial presumption that the contents of the registration certificate is final and conclusively unless it is rebutted in a properly constituted suit filed before a proper Forum. The appropriate forum, as far as quashing of registration, is not Chief Executive officer but a Tribunal. Therefore, the scope of inquiry by the Chief Executive Officer is limited and restricted to whether there is encroachment or not with reference to the registration of the property. Likewise, what is contemplated in inquiry under sub-section (3) is that the person against whom proceedings are taken has to prove by sufficient material that he is lawfully entitled to be in possession. The Chief Executive Officer has no jurisdiction to go into the question as to whether the property is waqf property or not a waqf property. Therefore, the scope of the inquiry to be conducted by the Chief Executive Officer is limited to ascertaining, merely, the fact that the person accused of encroachment has any authority or not to be in occupation of the said property.

On satisfaction that the property is waqf property and is registered and that there has been encroachment on the same the Chief Executive Officer has to make an application to the Waqf Tribunal for grant of an order of eviction. The application should contain the details of the property, details of registration and reasons to pass such an order. A second inquiry by the Tribunal is not contemplated under sub-section (4). The Tribunal, after satisfaction is to pass the order of eviction but after giving an opportunity of being heard, to the encroacher. It then has to pass an order of eviction directing all persons who may be in occupation of the property or part thereof to remove encroachment from the waqf property and hand over the possession of such property consisting of either land or building, space or other property to the muthawalli of the waqf.

Once the eviction order is issued by the Tribunal, the Chief Executive Officer, under provision of sub-section (5) or any Officer authorised by him, may evict the encroacher and hand over the property to the muthawalli of the concerned waqf. In other words the Chief Executive Officer can execute the order of eviction passed by the Waqf Tribunal, under sub-section (5) of Section 54 of the Act.

The findings of the Chief Executive Officer should specify the extent of encroachment, nature of encroachment, details of property encroached. The order should be speaking order and details are sufficient to require the encroacher to remove such encroachment and sufficient to the person executing the order of the Chief Executive Officer.

A reading of the provisions of Section 54 makes it clear that the power conferred upon the Chief Executive Officer is conspicuous and distinct. It further implies that even if any suit for any purpose is filed by the Waqf Board in a Civil Court, that does not take away the jurisdiction of the Chief Executive Officer conferred under Section 54(3) of the Act. [2004(1) Civil LJ 219 - Nanda Seshikala and others vs. A.P. State Waqf Board and others]

In the proceedings taken by the Chief Executive Officer under this Section, the person in encroachment is not entitle to challenge the entry made in the List published under Section 5 of the Act or an entry already made in the Register of Auqaf maintained under Section 37 of the Act, and therefore, a very limited objection could be filed by the encroacher. Through the limited objection an encroacher could only show the right available to him to remain in occupation of the property but not the right based on ownership. If a person has not claimed any right to remain in occupation of the property in dispute except the right based on ownership in his objection statement or during the inquiry, it indicates that he has failed to prove his case. In such an event there is substantial compliance, by the Chief Executive Officer, of the procedure prescribed by the Act and the Rules framed there-under and that has been followed by the Chief Executive Officer. [AIR 1985 Allahabad 79 - Afzal Hussain vs. Addl. District Judge and others] On the same analogy if a waqf encroaches the land belonging to other authorities, it amounts to encroachment.

The raising of construction beyond area of waqf property thereby encroaching upon property belonging to Railways constitutes encroachment of public premises. The Estate Officer of the Railways has jurisdiction over land belonging to Railways. Similarly, jurisdiction to order removal of any construction raised beyond waqf property over Railway land also vests in Estate Officer. The Order of Estate Officer directing removal of unauthorised construction is proper.

[AIR 2005 RAJASTHAN 93 - Mohammad Islam and etc., v. Union of India and others]