Bombay High Court: Mutawalli Or Person Interested In Waqf Institute Can Maintain Suit For Eviction Without Invoking Section 54 Waqf Act For Removal Of Encroachment

The Court dismissed a Revision Application challenging the Order by the Maharashtra State Waqf Tribunal (Tribunal), which had earlier directed the Applicants to deliver vacant possession of a suit property to a Waqf Institute. The Court stated a Mutawalli or a person interested in Waqf Institute are capable themselves of suing an encroacher under Section 83(2) of the Waqf Act 1995 (the Act).

A Single Bench of Justice Sandeep V Marne held, “Though, Section 54 of the Waqf Act empowers the CEO to make an application to the Waqf Tribunal for removal of encroachment, sub-section (2) of Section 83 does not impose any prohibition or restriction on the three categories of persons to move an application before the Waqf Tribunal. In my view, therefore in absence of any restriction or prohibition on a Mutawalli or person interested in Waqf to make an application for removal of encroachment, it cannot be held that the suit instituted by a person interested in Waqf Institute would be not maintainable.”

Advocate Anurag Mishra appeared for the Applicants, while Advocate Altaf Khan represented the Respondents.

Brief Facts

The dispute in the case was over a property belonging to Kamruddin Masjid (Jamaiyatul Kubra) Camp, a Waqf Institute. The Respondents, claiming to be Muslims interested in the Waqf Institute, alleged that the Applicants were encroachers on the said property. The Applicants, however, contended that they were in possession of the property since 1960 through tenancy.

The Tribunal decreed the suit in favour of the Respondents, directing the Applicants to hand over possession of the property.

Court’s Reasoning

The High Court remarked, “In my view, the correct and harmonious way of interpreting the provisions of Sections 54 and Section 83(2) of the Waqf Act is to hold that a mutawalli or a person interested have an option of either filing a complaint of encroachment with the CEO of the Board, who can then make an inquiry into existence of waqf property and whether there is encroachment and then file an application before the Waqf Tribunal under sub-section (3) of Section 54 of the Act to the Tribunal, which then adjudicates the issues of existence of waqf property and existence of encroachment.”

The Bench explained, “This course of action can be resorted to by any person without need of establishing that he/she is a mutawalli or person interested. Also, such complainant, after filing complaint under Section 54(1) of the Act, leaves the matter to the CEO, who then conducts the preliminary enquiry and files and prosecutes the reference before the Tribunal.”

Therefore, the Court held that “it cannot be contended that a mutawalli or a person interested must take a route of Sections 54 and 55 of the Waqf Act for removal of encroachment and that they are incapable themselves for suing the encroacher under Section 83(2) of the Waqf Act. In my view therefore, even a person interested can maintain a suit for removal of encroachment under Section 83(2) of the Waqf Act without resorting to the machinery under Section 54 and 55 thereof.”

Consequently, the Court ordered, “After considering the overall conspectus of the case, I do not find any element of perversity in the findings recorded by the Waqf Tribunal. The Tribunal has passed the impugned order in exercise of jurisdiction vested in it. Therefore, there is no scope for interference in the impugned order passed by the Tribunal in exercise of revisionary jurisdiction under sub-section (9) of Section 83 of the Waqf Act.”

Accordingly, the High Court dismissed the Application.

Cause Title: Zubaida & Ors. v. Khan Mubeen Ahmed Ali & Ors. (Neutral Citation: 2025:BHC-AS:19632)

Appearance:

Applicants: Advocates Anurag Mishra and Pooja Kankariya

Respondents: Advocates Altaf Khan, Mazhar Khan, Rahimtulla Momin and Divya Parab

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