Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLAE JURISDICTION
CIVIL APPEAL NOS. 4250-4252 OF 2014
(arising out of S.L.P. (Civil) Nos. 23157-23159 of 2012)
FASEELA M. Appellant(s)
VERSUS
MUNNERUL ISLAM MADRASA COMMITTEE & ANR. Respondent(s)
J U D G M E N T
R.M. LODHA, J.
Leave granted.
2. Sections 6 and 7 of the Waqf Act, 1995 (for
short, 'Act') provide for determination of certain
disputes regarding auqaf only by the Waqf Tribunal.
These provisions as amended by Act 27/2013 read as
under :
JUDGMENT
“Section 6. Disputes regarding auqaf.- (1) If
any question arises whether a particular
property specified as waqf property in the
list of auqaf is waqf property or not or
whether a waqf specified in such list is a
Shia waqf or Sunni waqf, the Board or the
mutawalli of the waqf or any person aggrieved
may institute a suit in a Tribunal for the
decision of the question and the decision of
the Tribunal in respect of such matter shall
be final:
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Provided that no such suit shall be
entertained by the Tribunal after the expiry
of one year from the date of the publication
of the list of auqaf.
Provided further that no suit shall be
instituted before the Tribunal in respect of
such properties notified in a second or
subsequent survey pursuant to the provisions
contained in sub-section (6) of section 4.
(2) Notwithstanding anything contained in sub-
section (1), no proceeding under this Act in
respect of any waqf shall be stayed by reason
only of the pendency of any such suit or of
any appeal or other proceeding arising out of
such suit.
(3) The Survey Commissioner shall not be made
a party to any suit under sub- section (1) and
no suit, prosecution or other legal proceeding
shall lie against him in respect of anything
which is in good faith done or intended to be
done in pursuance of this Act or any rules
made thereunder.
(4) The list of auqaf shall, unless it is
modified in pursuance of a decision or the
Tribunal under sub-section (1), be final and
conclusive.
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(5) On and from the commencement of this Act
in a State, no suit or other legal proceeding
shall be instituted or commenced in a court in
that State in relation to any question
referred to in sub-section (1).
Section 7. Power of Tribunal to determine
disputes regarding auqaf.- (1) If, after the
commencement of this Act, any question or
dispute arises, whether a particular property
specified as waqf property in a list of auqaf
is waqf property or not, or whether a waqf
specified in such list is a Shia waqf or a
Sunni waqf, the Board or the mutawalli of the
waqf, or any person aggrieved by the
publication of the list of auqaf under section
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5 therein, may apply to the Tribunal having
jurisdiction in relation to such property, for
the decision of the question and the decision
of the Tribunal thereon shall be final:
Provided that-
(a) in the case of the list of auqaf relating
to any part of the State and published after
the commencement of this Act no such
application shall be entertained after the
expiry of one year from the date of
publication of the list of auqaf; and
(b) in the case of the list of auqaf relating
to any part of the State and published at any
time within a period of one year immediately
preceding the commencement of this Act, such
an application may be entertained by Tribunal
within the period of one year from such
commencement:
Provided further that where any such
question has been heard and finally decided by
a civil court in a suit instituted before such
commencement, the Tribunal shall not re-open
such question.
(2) Except where the Tribunal has no
jurisdiction by reason of the provisions of
sub-section (5), no proceeding under this
section in respect of any waqf shall be stayed
by any court, tribunal or other authority by
reason only of the pendency of any suit,
application or appeal or other proceeding
arising out of any such suit, application,
appeal or other proceeding.
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(3) The Chief Executive Officer shall not be
made a party to any application under sub-
section (1).
(4) The list of auqaf and where any such list
is modified in pursuance of a decision of the
Tribunal under sub- section (1), the list as
so modified, shall be final.
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(5) The Tribunal shall not have jurisdiction
to determine any matter which is the subject-
matter of any suit or proceeding instituted or
commenced in a civil court under sub-section
(1) of section 6, before the commencement of
this Act or which is the subject-matter of any
appeal from the decree passed before such
commencement in any such suit or proceeding or
of any application for revision or review
arising out of such suit, proceeding or
appeal, as the case may be.
(6) The Tribunal shall have the powers of
assessment of damages by unauthorised
occupation of waqf property and to penalise
such unauthorised occupants for their illegal
occupation of the waqf property and to recover
the damages as arrears of land revenue through
the Collector:
Provided that whosoever, being a public
servant, fails in his lawful duty to prevent
or remove an encroachment, shall on conviction
be punishable with fine which may extend to
fifteen thousand rupees for each such
offence.”
3. Thus, Sections 6 and 7 of the Act not only
confer exclusive jurisdiction upon the Waqf Tribunal
JUDGMENT
for determination of certain disputes regarding auqaf
but also take jurisdiction of the civil court away in
respect of such disputes.
4. Munnerul Islam Madrasa Committee – respondent
No. 1 – filed a suit for eviction against the appellant
before the Waqf Tribunal, inter alia , setting up the
plea that respondent No. 1 is the landlord and the
appellant is the tenant in the subject property. The
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subject property is described as waqf property.
5. The appellant denied that the subject property
was waqf property. He also challenged the jurisdiction
of the Waqf Tribunal in determining the dispute between
the parties.
6. On 18.09.2010, the Waqf Tribunal, after
hearing the parties, directed the plaint to be returned
to the civil court having jurisdiction in the matter.
However, on the next date, i.e., on 19.09.2010, the
Waqf Tribunal suo motu recalled the order passed on
18.09.2010 and passed the following order :-
“Called. It seems that issue framed included
whether property is Wakf property or not.
Hence to that extent this Tribunal have
jurisdiction. But due to oversight and
mistake it is ordered to return the Plaint.
That order is an error apparent on face of
records and suo motu reviewed. Call on
30.9.2010.”
JUDGMENT
7. The appellant filed two revision petitions
before the High Court – one, against the order dated
19.09.2010 and the other, for declaration that the Waqf
Tribunal has no jurisdiction in the matter.
8. The High Court dismissed both revision
petitions and one original petition by the impugned
order giving rise to the present Appeals, by special
leave.
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9. The question, for determination in these
appeals, is as to whether the suit for eviction by the
landlord against the tenant relating to waqf property
is triable by the civil court or the suit lies within
the exclusive jurisdiction of the Waqf Tribunal.
10. For determination of the above question,
besides Sections 6 and 7, the two other provisions
which deserve to be noticed are Sections 83 and 85 of
the Act. These provisions read :
“Section 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.
(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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(3) Where any application made under sub-
section (1) relates to any waqf property
which falls within the territorial limits of
the jurisdiction of two or more Tribunals,
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such application may be made to the Tribunal
within the local limits of whose
jurisdiction the mutawalli or any one of the
mutawallis of the waqf actually and
voluntarily resides, carries on business or
personally works for gain, and, where any
such application is made to the Tribunal
aforesaid, the other Tribunal or Tribunals
having jurisdiction shall not entertain any
application for the determination of such
dispute, question or other matter.
Provided that the State Government may,
if it is of opinion that it is expedient in
the interest of the waqf or any other person
interested in the waqf or the waqf property
to transfer such application to any other
Tribunal having jurisdiction for the
determination of the dispute, question or
other matter relating to such waqf or waqf
property, transfer such application to any
other Tribunal having jurisdiction, and, on
such transfer, the Tribunal to which the
application is so transferred, shall deal
with the application from the stage which
was reached before the Tribunal from which
the application has been so transferred,
except where the Tribunal is of opinion that
it is necessary in the interests of justice
to deal with the application afresh.
(4) Every Tribunal shall consist of-
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(a) one person, who shall be a
member of the State Judicial Service holding
a rank, not below that of a District,
Sessions or Civil Judge, Class I, who shall
be the Chairman;
(b) one person, who shall be an
officer from the State Civil Services
equivalent in rank to that of the Additional
District Magistrate, Member;
(c) one person having knowledge
of Muslim law and jurisprudence, Member;
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and the appointment of every such
person shall be made either by name or by
designation.
(4A) The terms and conditions of appointment
including the salaries and allowances
payable to the Chairman and other members
other than persons appointed as ex officio
members shall be such as may be prescribed.
(5) 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 Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, or executing a
decree or order.
(6) Notwithstanding anything contained in
the Code of Civil Procedure, 1908 (5 of
1908), the Tribunal shall follow such
procedure as may be prescribed.
(7) The decision of the Tribunal shall be
final and binding upon the parties to the
application and it shall have the force of a
decree made by a civil court.
(8) The execution of any decision of the
Tribunal shall be made by the civil court to
which such decision is sent for execution in
accordance with the provisions of the Code
of Civil Procedure, 1908 (5 of 1908).
(9) No appeal shall lie against any decision
or order whether interim or otherwise, given
or made by the Tribunal:
JUDGMENT
Provided that a High Court may, on its
own motion or on the application of the
Board or any person aggrieved, call for and
examine the records relating to any dispute,
question or other matter which has been
determined by the Tribunal for the purpose
of satisfying itself as to the correctness,
legality or propriety of such determination
and may confirm, reverse or modify such
determination or pass such other order as it
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may think fit.
Section 85. Bar of jurisdiction of civil
courts.- No suit or other legal proceeding
shall lie in any civil court, revenue court
and any other authority in respect of any
dispute, question or other matter relating
to any waqf, waqf property or other matter
which is required by or under this Act to be
determined by a Tribunal.”
11. In Ramesh Gobindram (Dead) through LRS. Vs.
1
Sugra Humayun Mirza Wakf , this Court considered
Sections 6(1), 6(5), 7(1), 7(5), 83, 85 and few other
provisions of the Act and explained the jurisdiction of
the Waqf Tribunal vis-a-vis Civil Court. As regards the
suit for eviction against the tenant(s) of waqf
property, the Court held that such suit is triable by
the Civil Court as it is not covered by Sections 6
and 7 of the Act.
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12. The Court in para 35, page 738 held as
follows :
“35. In the cases at hand the Act does not
provide for any proceedings before the
Tribunal for determination of a dispute
concerning the eviction of a tenant in
occupation of a wakf property or the rights
and obligations of the lessor and the lessees
of such property. A suit seeking eviction of
the tenants from what is admittedly wakf
property could, therefore, be filed only
before the civil court and not before the
Tribunal.”
1. (2010) 8 SCC 726
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13. Mr. Renjith Marar, learned counsel for
respondent No. 1, submits that in a subsequent decision
in Bhanwar Lal & Anr. Vs. Rajasthan Board of Muslim
2
Wakf and Ors. , this Court has taken a different view.
According to him, Section 85 of the Act leaves no
manner of doubt that the Waqf Tribunal has jurisdiction
to decide the suit for eviction. It is so because one
of the questions for determination is whether the suit
property is waqf property or not.
2
14. The Court in Bhanwar Lal considered the
1
decision in Ramesh Gobindram at quite some length.
1 2
Besides Ramesh Gobindram , the Court in Bhanwar Lal
also considered two other decisions, one, Board of
3
Wakf, West Bengal & Anr. Vs. Anis Fatma Begum & Anr.
JUDGMENT
and two, Sardar Khan and Ors. Vs. Syed Nazmul Hasan
4 3
(Seth) and Ors. . In Anis Fatma Begum , this Court had
held that the Waqf Tribunal constituted under Section
83 of the Act will have exclusive jurisdiction to deal
with the questions relating to demarcation of the waqf
property.
2
15. Pertinently, the Court in Bhanwar Lal held
2. 2013 (11) SCALE 210
3. (2010) 14 SCC 588
4. (2007) 10 SCC 727
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that the suit for cancellation of sale deed was triable
by the civil court.
2
16. Bhanwar Lal follows the line of reasoning in
1
Ramesh Gobindram . The decision of this Court in
2
Bhanwar Lal is not in any manner inconsistent or
contrary to the view taken by this Court in Ramesh
1
Gobindram . We fully concur with the view of this
1
Court in Ramesh Gobindram , particularly with regard to
construction put by it upon Sections 83 and 85 of the
1
Act. In Ramesh Gobindram , the Court said :-
“32. There is, in our view, nothing in
Section 83 to suggest that it pushes the
exclusion of the jurisdiction of the civil
courts extends (sic) beyond what has been
provided for in Section 6(5), Section 7 and
Section 85 of the Act. It simply empowers
the Government to constitute a Tribunal or
Tribunals for determination of any dispute,
question of other matter relating to a wakf
or wakf property which does not ipso facto
mean that the jurisdiction of the civil
courts stands completely excluded by
reasons of such establishment.
JUDGMENT
33. It is noteworthy that the expression
"for the determination of any dispute,
question or other matter relating to a wakf
or wakf property" appearing in Section 83(1)
also appears in Section 85 of the Act.
Section 85 does not, however, exclude the
jurisdiction of the civil courts in respect
of any or every question or disputes only
because the same relates to a wakf or a wakf
property. Section 85 in terms provides that
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the jurisdiction of the civil court shall
stand excluded in relation to only such
matters as are required by or under this Act
to be determined by the Tribunal.
34. The crucial question that shall have to
be answered in every case where a plea
regarding exclusion of the jurisdiction of
the civil court is raised is whether the
Tribunal is under the Act or the Rules
required to deal with the matter sought to
be brought before a civil court. If it is
not, the jurisdiction of the civil court is
not excluded. But if the Tribunal is
required to decide the matter the
jurisdiction of the Civil Court would stand
excluded.”
17. The matter before us is wholly and squarely
1
covered by Ramesh Gobindram . The suit for eviction
against the tenant relating to a waqf property is
exclusive triable by the civil court as such suit is
not covered by the disputes specified in Sections 6 and
7 of the Act.
JUDGMENT
18. In view of the above, the impugned order
cannot be sustained and it is liable to be set aside
and is set aside. The order passed by the Waqf
Tribunal on 19.09.2010 is also set aside. The order of
the Waqf Tribunal dated 18.09.2010 is restored. The
Civil Court shall now proceed with the suit
accordingly.
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19. Civil Appeals are allowed with no order as to
costs.
.......................J.
( R.M. LODHA )
NEW DELHI; .......................J.
MARCH 31, 2014 ( KURIAN JOSEPH )
JUDGMENT
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