REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 6336 of 2021
( Arising out of Special Leave Petition (C) No.9733 of 2015)
RASHID WALI BEG ... APPELLANT(S)
Versus
FARID PINDARI & ORS. ... RESPONDENT(S)
J U D G M E N T
V. Ramasubramanian, J.
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.10.28
16:04:49 IST
Reason:
1. Aggrieved by the Judgment of the High Court of Judicature at
Allahabad, Lucknow Bench, holding that a suit for a permanent
injunction before a civil court is not barred by Section 85 of the Waqf
1
Act, 1995 (for short “the Act ”), the defendant has come up with the
above appeal.
2. We have heard Mr. Pradeep Misra, learned counsel for the
appellant and Mr. Pradeep Kant, learned senior counsel for the first
respondent.
3. The first respondent filed a suit in R.S. No.137 of 2011
herein
against the appellant herein as defendant No. 1 and impleading the
respondents 2 to 5 herein as defendants 2 to 5. The suit was for a
mandatory injunction directing the defendants to remove the
encroachment made by them and for a permanent injunction
restraining the defendants from interfering with the plaintiff’s
possession of a piece of land situated at Mirzaganj, Pargana and Tehsil
Malihabad, Lucknow. The suit was filed in the Court of Civil Judge,
Senior Division, Malihabad. The case of the first respondent
herein /plaintiff was that the suit property originally belonged to one
Mirza Abid Ali Beg; that during his life time he created a Waqfal
Aulad; that during his life time, Mirza Abid Ali Beg was the mutawalli;
that after his life time, his elder daughter became the mutawalli; that
thereafter, the younger daughter Smt. Afzal Jahan Begum became the
2
mutawalli; that the said Afzal Jahan Begum was the grandmother of
the plaintiff; that the father of the plaintiff led a wayward life, forcing
the grandmother to deliver possession of the property to the plaintiff,
authorizing him to maintain the properties and utilize the income
thereof for the maintenance of the family; that after taking possession,
the plaintiff constructed shops on the land and let them out to
tenants; that after sometime, the grandmother of the plaintiff
appointed the father of the plaintiff as the mutawalli; that there were
criminal proceedings between the plaintiff and his father; that on
18.12.2010, the defendants brought building materials and started
digging foundation in the land behind the shops, at the instigation of
the father of the plaintiff; that though the plaintiff gave a police
complaint, they were indifferent, emboldening the defendants to raise
a boundary wall in a portion of the land and that, therefore, the
plaintiff was constrained to file a suit for mandatory and perpetual
injunction.
4. After entering appearance in the suit, the appellant who
herein
was the first defendant, filed a written statement admitting the
existence of the waqf and waqf property. Thereafter, he took out an
application under Order VII, Rule 11 CPC for rejection of plaint, on the
3
simple ground that the Civil Court has no jurisdiction to try a suit
relating to what is admittedly a waqf property. The said application
was allowed by the Civil Judge, Senior Division, Malihabad and the
suit was dismissed.
5. Challenging the aforesaid judgment, the first respondent herein /
plaintiff filed a regular appeal under Section 96 CPC, but the first
Appellate Court dismissed the appeal.
6. However, the second appeal filed by the first respondentplaintiff
was allowed by the High Court on the short ground that since the
dispute does not involve either a question as to the nature of the
property or the question whether the suit schedule property is a waqf
property or not and also since the suit is only for injunction, the Civil
Court was not barred from entertaining the suit, under Section 85 of
the Act. It is against the said judgment of the High court that the first
defendant in the suit has come up with the above appeal.
7. Therefore, the only question that arises for our consideration in
this appeal is as to whether a suit for permanent injunction in respect
of a waqf property is maintainable in a civil court or not.
4
8. The question of jurisdiction of civil courts to adjudicate upon
disputes, for the determination of which special tribunals are
constituted under special statutes, has been a vexed question which
has turned, over a period of time, into a seesaw battle. This is
especially so particularly in respect of waqfs. But there is a historical
background to this.
1913 Act
9. The earliest enactment to come up, relating to waqfs, was the
Mussalman Waqf Validating Act, 1913 (6 of 1913). This Act recognised
the right of muslims to make settlement of properties by way of waqf
in favour of their families, children and descendents. This Act declared
that no waqf shall be deemed as invalid merely because it postponed
the religious and charitable benefit confirmed therein, until the
extinction of the family of the founder. The reason why this Act was
legislated, was to overcome the decision of the Privy Council in
Abdul
1
Jata Mohammed Ishak vs. Russomoy Dhur Choudhary , which
declared as invalid, a waqf created for the benefit of the family, though
coupled with a gift to charity on the failure of the line of descendents.
1 [1894 (22) Calcutta (PC)]
5
This Validating Act of 1913 was given retrospective application by Act
32 of 1930.
1923 Act
10. Then came the Mussalman Waqf Act 1923, which can be called
the precursor of Waqf Legislation, dealing with the creation,
maintenance and administration of waqf and waqf property. This Act
required the mutawalli of every waqf to furnish to the Court within
whose jurisdiction the waqf property was situate, a statement of
particulars. The Act also mandated the mutawalli of every waqf to
furnish a full and true statement of accounts to the Court, after it is
audited. The Court was empowered under this Act to hold an inquiry
to ascertain: (i) Whether the waqf exists (ii) Whether any property is a
waqf property and (iii) Who is the mutawalli of the waqf. The 1923 Act
contemplated the creation of a Register of waqfs and the Court was
conferred with the power to record entries in the said Register. The
1923 Act contained a provision in Section 6N, empowering the Court
to authorise any one or more of the members of the waqf committee to
institute or defend any Suit or proceeding for the protection or
recovery of waqf property or for the application of a waqf property in
6
any public charitable or religious purpose. This power of the Court
under Section 6N, was notwithstanding anything contained in Section
92 of CPC.
11. Thus the 1923 Act specifically provided a role for the civil court
in the matter of recognition and registration of waqfs, protection of
waqf properties and the oversight of the management of the waqfs. In
fact, the court had enormous powers under the 1923 Act, including
the power to order a special audit.
1954 Act
12. After India attained Independence, the Parliament enacted the
Waqf Act 1954, with the professed object of providing for better
administration and supervision of waqfs. The statements of Objects
and Reasons of the 1954 Act, recorded that the 1923 Act was not of
much practical value and that therefore the provincial governments of
Bombay, Bengal and the United Provinces introduced amendments
respectively in 1934, 1935 and 1936 to the 1923 Act.
13. Sections 6, 27, 36A, 43, 55, 56, 57, 60 and 61 of the 1954 Act
recognised the Civil Court as the forum for the resolution of various
7
disputes relating to waqfs and waqf properties as could be seen from
the following :
(i) Section 6 enabled the Board or mutawalli or any person interested
to institute a suit in a Civil Court of competent Jurisdiction, wherever
any question arose as to (A) Whether a particular property specified in
the list published under Section 5 is a waqf property or (B) Whether
the waqf is a Shia waqf or a Sunni waqf.
(ii) Though Section 27(1) of the Act, authorised the waqf Board also to
decide the question whether a particular property is a waqf property or
not, the decision of the Board on the question, was made subject to
jurisdiction of the Civil Court as seen from Section 27(2).
(iii) Section 36A (1) provided for the remedy of a requisition by the
waqf Board to the Collector, whenever any immovable property of a
waqf was transferred without the previous sanction of the Board. The
Collector was empowered under this provision to pass an order
directing the person in possession of the said property, to deliver it to
the Board. The order so passed by the Collector was appealable to the
District Court under Section 36A (4).
8
(iv) Section 43(5) of the 1954 Act made the order of the Waqf Board
removing the mutawalli and directing him to deliver possession of the
waqf property, deemed to be a decree of the Civil Court, executable by
the Civil Court, as if it was a decree passed by it.
(v) Section 55 enabled the Waqf Board to institute a suit to obtain any
of the reliefs mentioned in Section 92, CPC relating to any waqf,
without obtaining the consent referred to in Section 92, CPC. Section
56 contained a provision similar to Section 80 of CPC and Section 57
laid down the procedure to be followed by the Civil Court, in every suit
or proceeding relating to title to waqf property or the right of a
mutawalli or any sale of waqf property in execution of a decree of Civil
Court.
(vi) Section 60 imposed a bar on the rights of the parties to a suit, to
enter into a compromise without the sanction of the Board. The Waqf
Board was empowered by Section 61 to make an application to the
Court in case of failure of mutawalli to discharge his duties.
Waqf Inquiry Committee and 1984 Amendment Act
14. The 1954 Act, went through some amendments in 1959, 1964
and in 1969. But by and large, the working of the Waqf Boards was
9
found to be unsatisfactory and hence with a view to tone up the
administration of waqfs, the Central Government constituted a
committee known as Waqf Inquiry Committee. The Committee made a
large number of recommendations and its Report, after consultation
with all stake holders, led to comprehensive amendments to the Act,
under the Waqf (Amendment) Act, 1984. One of the important
amendments made by this Amendment Act, was the substitution of
the existing Section 55 of the principal Act with a new provision. The
newly substituted Section 55(1) provided for the constitution of special
tribunals for the determination of any dispute, question or other
matter relating to a waqf or waqf property. But the right to invoke the
jurisdiction of the Waqf Tribunal was made available under Section
55(2) of the Act, only to, any mutawalli of the waqf; a person
(i) (ii)
interested in the waqf; or (iii) any other person aggrieved by any order
made under the Act or Rule or any order made there under. Section
55(5) declared that the Tribunal shall be deemed to be a civil court,
having the same powers as may be exercised by a civil court under the
CPC, while trying a suit or executing a decree. However, the Tribunal
was given the freedom to follow its own procedure as may be
prescribed, notwithstanding anything contained in the CPC. Though
10
the decision of the Tribunal was declared to be final under sub section
(7) of Section 55, and though no appeal would lie against a decision of
the Tribunal by virtue of subsection (9), the High Court was conferred
a power of revision under the proviso to subsection (9) of Section 55.
15. Section 55C barred the jurisdiction of civil court in respect of any
dispute, question or other matter relating to any waqf, waqf property
or other matter which is required by or under the Act to be determined
by a Tribunal. But at the same time, Section 55D contained a
provision enabling the court to appoint a Receiver under certain
circumstances. Section 55D reads as follows:
“55D. Notwithstanding anything contained in the Code of Civil
Procedure, 1908, or in any other law for the time being in force,
where any suit or other legal proceeding is instituted or
commenced
(a) by or on behalf of a Board –
(i) to set aside the sale of any immovable
property, which is waqf property, in execution of a
decree or order of a civil court;
(ii) to set aside the transfer of any immovable
property, which is waqf property, made by the
mutawalli thereof, whether for valuable consideration
or note, without, or otherwise than in accordance
with, the sanction of the Board;
(iii) to recover possession of the property referred
to in clause(a) or clause (b) or to restore possession
of such property to the mutawalli of the concerned
waqf; or
(b) by a mutawalli to recover possession of immovable
property, which is waqf property, which has been
transferred by a previous mutawalli, whether for
valuable consideration or not, without or otherwise
than in accordance with, the sanction of the Board
and which is in the possession of the defendants,
11
the court may, on the application of the plaintiff, appoint a
receiver of such property and direct such receiver to pay
from time to time to the plaintiff, out of the income of the
property, such amount as the court may consider to be
necessary for further prosecution of the suit.
The Waqf Act, 1995
16. But it appears that the Amendment Act of 1984 came under
severe criticism and hence only two provisions of the 1984 Act came to
2
be enforced because of strong opposition from the community .
Therefore, a comprehensive bill on waqf matters incorporating the
features of the 1954 Act and such provisions of the 1984 Act in
respect of which there was near consensus, was introduced. This
became the Waqf Act, 1995. This Act provided for the setting up of
waqf tribunals to consider questions and disputes pertaining to waqfs.
An important feature of the 1995 Act is that it was made applicable to
the whole of India except the State of Jammu and Kashmir, though
the Waqf Act, 1954 was not applicable to Uttar Pradesh, West Bengal,
parts of Gujarat, parts of Maharashtra and some of the North Eastern
3
states .
2 See paragraph 3 of the Statement of Objects and Reasons of 1995 Act
3 See paragraph 6 (h) of the Statement of Objects and Reasons of 1995 Act
12
16. Sections 83 and section 85 of the Waqf Act, 1995 (as they
originally stood before amendment in 2013) read as follows:
| “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 under this Act and define the local limits
and jurisdiction under this Act of each of such Tribunals.
| (2) Any mutawalli person interested in a waqf or any other person<br>aggrieved by an order made under this Act, or rules made<br>thereunder, may make an application within the time specified in<br>this Act or where no such time has been specified, within such<br>time as may be prescribed, to the Tribunal for the determination of<br>any dispute, question or other matter relating to the waqf. | |
| | |
| (3) Where any application made under subsection (1) relates to<br>any waqf property which falls within the territorial limits of the<br>jurisdiction of two or more Tribunals, such application may be<br>made to the Tribunal within the local limits of whose jurisdiction<br>the mutawalli or any one of the mutawallis of the waqf actually<br>and voluntarily resides, carries on business or personally works<br>for gain, and, where any such application is made to the Tribunal<br>aforesaid, the other Tribunal or Tribunals having jurisdiction shall<br>not entertain any application for the determination of such<br>dispute, question or other matter: | |
| | |
| Provided that the State Government may, if it is of opinion<br>that it is expedient in the interest of the waqf or any other person<br>interested in the waqf or the waqf property to transfer such<br>application to any other Tribunal having jurisdiction for the<br>determination of the dispute, question or other matter relating to<br>such waqf or waqf property, transfer such application to any other<br>Tribunal having jurisdiction, and, on such transfer, the Tribunal<br>to which the application is so transferred shall deal with the<br>application from the stage which was reached before the Tribunal<br>from which the application has been so transferred, except where<br>the Tribunal is of opinion that it is necessary in the interests of<br>justice to deal with the application afresh. | |
| | |
| (4) Every Tribunal shall consist of— | | |
| (a) one person, who shall be a member of the State<br>Judicial Service holding a rank, not below that of<br>a District, Sessions or Civil Judge, Class I, who<br>shall be the Chairman; | | |
| | (a) one person, who shall be a member of the State<br>Judicial Service holding a rank, not below that of<br>a District, Sessions or Civil Judge, Class I, who<br>shall be the Chairman; |
13
| (b) one person, who shall be an officer from the State<br>Civil Services equivalent in rank to that of the<br>Additional District Magistrate, Member;<br>(c) one person having knowledge of Muslim law and<br>jurisprudence, Member, | (b) one person, who shall be an officer from the State<br>Civil Services equivalent in rank to that of the<br>Additional District Magistrate, Member; | | | |
|---|
| (c) one person having knowledge of Muslim law and<br>jurisprudence, Member, | | | |
| | | | |
| and the appointment of every such person may be made either by<br>name or by designation. | | | | |
| | | | |
| | | | |
| (4A) The terms and conditions of appointment including the<br>salaries and allowances payable to the Chairman and other<br>members other than persons appointed as ex officio members<br>shall be such as may be prescribed. | | | | |
| | | | |
| (5) The Tribunal shall be deemed to be a civil court and shall have<br>the same powers as may be exercised by a civil court under the<br>Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or<br>executing a decree or order. | | | | |
| (6) Notwithstanding anything contained in the Code of Civil<br>Procedure, 1908 (5 of 1908), the Tribunal shall follow such<br>procedure as may be prescribed. | | | | |
| (7) The decision of the Tribunal shall be final and binding upon<br>the parties to the application and it shall have the force of a decree<br>made by a civil court. | | | | |
| (8) The execution of any decision of the Tribunal shall be made by<br>the civil court to which such decision is sent for execution in<br>accordance with the provisions of the Code of Civil Procedure,<br>1908 (5 of 1908). | | | | |
| (9) No appeal shall lie against any decision or order whether<br>interim or otherwise, given or made by the Tribunal: | | | | |
| Provided that a High Court may, on its own motion or on<br>the application of the Board or any person aggrieved, call for and<br>examine the records relating to any dispute, question or other<br>matter which has been determined by the Tribunal for the purpose<br>of satisfying itself as to the correctness, legality or propriety of<br>such determination and may confirm, reverse or modify such<br>determination or pass such other order as it may think fit. | | | | |
| 85. Bar of jurisdiction of civil courts | | | | .—No suit or other legal |
| proceeding shall lie in any civil court 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. | | | | |
14
17. It is relevant to note at this stage that the words “
eviction of
tenant or determination of rights and obligations of the lessor
” were inserted in subsection (1) of
and the lessee of such property
Section 83, after the words “waqf property”, by Amendment Act 27 of
2013.
18. Similarly, the words, “civil court” were substituted by the words
, in Section 85, by
“civil court, revenue court and other authority”
Amendment Act 27 of 2013.
19. Thus, Act 27 of 2013 did 2 things. First it expanded the
jurisdiction of Waqf Tribunal even to cover landlordtenant disputes
and the rights and obligations of lessor and lessee. Second, the
Amendment Act enlarged the bar of jurisdiction, to cover even revenue
courts and other authorities.
20. Subsection (2) of Section 83 of the 1995 Act indicates the
persons who are entitled to invoke the jurisdiction of the Tribunal.
They are, (i) any mutawalli of the waqf; (ii) a person interested in the
waqf; or any other person aggrieved by any order made under the
(iii)
Act or Rules or any order made there under.
15
21. Dehors the jurisdiction conferred upon the Tribunal under
Section 83(1) and dehors the bar of jurisdiction of the civil court,
revenue court and any other authority under Section 85, the 1995 Act
contains a special provision in Section 86 for the appointment by the
civil court, of a Receiver, in certain cases. Section 86 reads as follows:
86. Appointment of a receiver in certain cases
Notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or in any other law for the time being
in force, where any suit or other legal proceeding is instituted or
commenced
(a) by or on behalf of a Board
(i) to set aside the sale of any immovable
property, which is waqf property, in execution
of a decree or order of a civil court;
(ii) to set aside the transfer of any immovable
property, which is waqf property, made by the
mutawalli thereof, whether for valuable
consideration or not, without or otherwise
than in accordance with, the sanction of the
Board;
(iii) to recover possession of the property referred
to in clause (a) or clause (b) or to restore
possession of such property to the mutawalli
of the concerned waqf; or
(b) by a mutawalli to recover possession of immovable
property, which is waqf property, which has been
transferred by a previous mutawalli, whether for
valuable consideration or not, without otherwise
than in accordance with the sanction of the Board,
and which is in the possession of the defendant,
the court may, on the application of the plaintiff,
appoint a receiver of such property and direct such
receiver to pay from time to time to the plaintiff, out
of the income of the property, such amount as the
court may consider to be necessary for further
prosecution of the suit.
16
22. Section 86 thus recognises the right of the Board to institute or
commence any suit or other legal proceeding, (i) to set aside the sale of
a waqf property in execution of a decree of civil court; to set aside
(ii)
the transfer of any waqf property made by the mutawalli, without the
sanction of the Board or otherwise than in accordance with the
sanction of the Board; and (iii) to recover and restore possession of
such property to the mutawalli. Clause (b) of Section 86 recognises a
similar right for the mutawalli to recover possession of waqf property,
which has been transferred by the previous mutawalli or any other
person without the sanction of the Board.
23. It is therefore clear from Section 86, that in suits or other
proceedings instituted by the Board falling under clause (a) or those
instituted by the mutawalli falling under clause (b) of Section 86, the
civil court will have jurisdiction to appoint a receiver. As a corollary,
the bar under Section 85 will have no application to cases covered by
Section 86.
24. Apart from the bar of jurisdiction of civil courts under Section
85, the Act envisages yet another bar under Section 88. Section 88
excludes the jurisdiction of a civil court to entertain a challenge to any
17
notification or order or decision made, proceeding or action taken by
the Central Government or the State Government under the Act.
Section 88 reads as follows:
| “ | 88. Bar to challenge the validity of any notification, etc | | .— |
|---|
| Save as otherwise expressly provided in this Act, no notification or | | | |
| order or decision made, proceeding or action taken, by the Central | | | |
| Government or the State Government under this Act or any rule | | | |
| made thereunder shall be questioned in any civil court.” | | | |
25. Section 89 of the Waqf Act, 1995 contains a rule similar to
Section 80 CPC, in respect of suits instituted against the Board.
Interestingly, Section 90 which regulates the procedure for the issue of
notice of suits, refers both to courts and tribunals. It reads as
follows:
| “ | 90. Notice of suits, etc., by courts | .— |
|---|
(2) Whenever any waqf property is notified for sale in
execution of a decree of a civil court or for the recovery of any
revenue, cess, rates or taxes due to the Government or any local
authority, notice shall be given to the Board by the court, Collector
or other person under whose order the sale is notified.
(3) In the absence of a notice under subsection (1), any
decree or order passed in the suit or proceeding shall be declared
void, if the Board, within one month of its coming to know of such
suit or proceeding, applies to the court in this behalf.
(4) In the absence of a notice under subsection (2), the sale
shall be declared void, if the Board, within one month of its
coming to know of the sale, applies in this behalf to the court or
other authority under whose order the sale was held.
18
26. It is seen from subsection (1) of Section 90 that it uses the
words, “the court or Tribunal” and it refers to suit or proceeding
relating to title to or possession of a waqf property or the right of the
mutawalli or beneficiary.
27. A cumulative reading of Sections 86, 89 and 90 would show that
the bar of jurisdiction under Section 85 is not total and omnipotent
and that there may be cases which could still be entertained by civil
courts. In fact, Section 93 which prohibits the from entering
mutawalli
into a compromise with the opposite party in any suit, also refers to
“court”. Section 93 reads as follows:
| “ | 93. Bar to compromise of suits by or against mutawallis | | .—No |
|---|
| suit or proceeding in any court by or against the mutawalli of a | | | |
| waqf relating to title to waqf property or the rights of the mutawalli | | | |
| shall be compromised without the sanction of the Board.” | | | |
28. We have seen elsewhere that Section 83(2) specifically enables, (i)
any mutawalli; (ii) any person interested in a waqf; and (iii) any other
person aggrieved by an order made under the Act, to invoke the
jurisdiction of the Tribunal for the determination of any dispute,
question or other matter relating to the waqf. Section 83(2) does not
make any reference to the Waqf Board. However, Section 94(1) enables
the Board to apply to the Tribunal, for appropriate orders, whenever a
19
mutawalli fails to perform an act recognized by Muslim Law as pious,
religious and charitable. Under Section 61 of the 1954 Act, such an
application can be made by the Board only to the court, but now it can
be made to the Tribunal under Section 94(1).
29. In view of the language employed in Sections 83 and 85, coupled
with the reference to civil courts in Sections 86, 90 and 93, it appears
that the question of bar of jurisdiction of the civil court, has been left
by the law makers to the vagaries of judicial opinion and this has
given rise to conflicting decisions, to some of which, we shall now turn
our attention.
30. Some of the decisions of this Court, in which this controversy
was addressed, are presented in the form of a table, for the purpose of
easy appreciation. Apart from the cause title and citation, the table
below gives an indication of the forum from which the original
proceedings emanated in those cases, the reliefs sought by the
plaintiff/applicant in those original proceedings and a summary of
facts and the ratio laid down in each of them.
20
| S.No | Cause Title &<br>Case No. | | Emanating | Reliefs sought in<br>the original<br>proceeding | Opinion of this court on the<br>question of Jurisdiction of<br>civil court/Tribunal | | | |
|---|
| | | from Civil | | | | | |
| | | Court / Waqf | | | | | |
| | | Tribunal | | | | | |
| 1 | Sayed<br>Muhammed<br>Mashur Kunhi<br>Koyal Thangal<br>vs.<br>Badagara<br>Jumayath Palli<br>Dharas<br>Committee<br>(2004) 7 SCC<br>708 | Civil Court | Civil Court | Declaration of Title | | 1. | The matter arose out of a civil | |
| | | | and Recovery of | | suit filed in 1984, before the | | |
| | | | possession of the | | advent of the Waqf Act, 1995. | | |
| | | | Plaint Schedule | | 2. | The trial court decreed the | |
| | | | Property. | | suit, but the first appellate court | | |
| | | | | | reversed it. In the second appeal | | |
| | | | | | filed in 1988 which came up for | | |
| | | | | | hearing in 2001 after the advent | | |
| | | | | | of the 1995 Act, the High Court | | |
| | | | | | framed a question with reference | | |
| | | | | | to Section 85 and held that the | | |
| | | | | | civil court had jurisdiction to try | | |
| | | | | | the suit. | | |
| | | | | | 3. | Though this Court reversed the | |
| | | | | | judgment of the High Court, the | | |
| | | | | | same was not on the question of | | |
| | | | | | maintainability of the suit. The | | |
| | | | | | net result is that the opinion of | | |
| | | | | | the High court on the question of | | |
| | | | | | jurisdiction was left untouched. | | |
| 2 | Sardar Khan<br>vs.<br>Syed Najmul<br>Hasan<br>(2007) 10 SCC<br>727 | Civil Court | | Not clear from the<br>narration of facts in<br>the judgment. | 1. The suit was filed in December,<br>1976, and the trial (civil) court<br>dismissed the suit on merits on<br>23.01.1996. The Waqf Act, 1995<br>came into force w.e.f. 01.01.1996.<br>2. The plaintiff filed an appeal<br>before High court on 131996<br>and contended that the civil court<br>ceased to have jurisdiction after<br>the coming into force of the 1995<br>Act. High court agreed and<br>relegated the parties to the Waqf<br>Tribunal. This was challenged in<br>this court.<br>3. This Court referred to Section<br>7(5) of the Waqf Act, 1995 and<br>held that the tribunal will have no<br>jurisdiction to decide any matter<br>which is the subject matter of any<br>suit instituted or commenced in a<br>civil court before commencement<br>of the 1995 Act.<br>4. So holding, this Court reversed<br>the judgment of the High Court | 1. | The suit was filed in December, | |
| | | | | | 1976, and the trial (civil) court | | |
| | | | | | dismissed the suit on merits on | | |
| | | | | | 23.01.1996. The Waqf Act, 1995 | | |
| | | | | | came into force w.e.f. 01.01.1996. | | |
| | | | | | 2. | | The plaintiff filed an appeal |
| | | | | | before High court on 131996 | | |
| | | | | | and contended that the civil court | | |
| | | | | | ceased to have jurisdiction after | | |
| | | | | | the coming into force of the 1995 | | |
| | | | | | Act. High court agreed and | | |
| | | | | | relegated the parties to the Waqf | | |
| | | | | | Tribunal. This was challenged in | | |
| | | | | | this court. | | |
| 3. | This Court referred to Section |
|---|
| 7(5) of the Waqf Act, 1995 and | |
| held that the tribunal will have no | |
| jurisdiction to decide any matter | |
| which is the subject matter of any | |
| suit instituted or commenced in a | |
| civil court before commencement | |
| of the 1995 Act. | |
| 4. | So holding, this Court reversed |
| the judgment of the High Court | |
21
| | | | | | | | which relegated the parties to the<br>Waqf tribunal. | | |
|---|
| 3 | Ramesh<br>Gobindram<br>vs.<br>Surgra<br>Humayun<br>Mirza Waqf<br>(2010) 8 SCC<br>726 | Waqf Tribunal | Suit for Eviction of<br>tenants occupying<br>Waqf properties. | | | | | | 1 | . Suits for eviction of tenants |
| | | | | | | | | filed before the Waqf Tribunal | |
| | | | | | | | | were decreed. The tenants filed | |
| | | | | | | | | revision petitions before the High | |
| | | | | | | | | Court but the High Court | |
| | | | | | | | | dismissed the revision petitions. | |
| | | | | | | | | Hence the tenants were on | |
| | | | | | | | | appeal. | |
| | | | | | | | | 2. | This Court held that the Waqf |
| | | | | | | | | Act, 1995 does not provide for | |
| | | | | | | | | any proceedings before the | |
| | | | | | | | | tribunal for determination of a | |
| | | | | | | | | dispute concerning the eviction of | |
| | | | | | | | | a tenant in occupation of Waqf | |
| | | | | | | | | property or the rights and | |
| | | | | | | | | obligations of the lessor and | |
| | | | | | | | | lessees of such property. | |
| | | | | | | | | 3. | Holding that a suit for eviction |
| | | | | | | | | of tenants from what is | |
| | | | | | | | | admittedly a waqf property could | |
| | | | | | | | | be filed only before the civil court | |
| | | | | | | | | and not before the tribunal, this | |
| | | | | | | | | Court overruled the views of the | |
| | | | | | | | | High Courts of Andhra Pradesh, | |
| | | | | | | | | Rajasthan, Madhya Pradesh, | |
| | | | | | | | | Kerala and Punjab and Haryana. | |
| | | | | | | | | The views taken by the High | |
| | | | | | | | | Courts of Allahabad, Karnataka, | |
| | | | | | | | | Madras and Bombay were | |
| | | | | | | | | affirmed. It was further held that | |
| | | | | | | | | the interest of those uninterested | |
| | | | | | | | | in the waqf (nonmuslims) will be | |
| | | | | | | | | put in jeopardy if Section 6(1) is | |
| | | | | | | | | limited to only the muttavalli, | |
| | | | | | | | | board and those interested in | |
| | | | | | | | | waqf, hence the special limitation | |
| | | | | | | | | imposed by Section 6(1) is | |
| | | | | | | | | inapplicable to strangers. | |
| 4 | Board of Waqf<br>vs.<br>Anis Fatma<br>Begum<br>(2010) 14 SCC<br>588 | Civil Court | | Questions raised | | | | | 1 | . While the single judge of the |
| | | | were: | (i) | whether the | | | High Court held that the Waqf | |
| | | | division of | | | | | Act is applicable for the property | |
| | | | immovable property | | | | | earmarked for waqfalalaulad, | |
| | | | into two distinctive | | | | | the Division Bench of the High | |
| | | | parts, one for waqf | | | | | Court reversed it. | |
| | | | alalaulad, and | | | | | 2 | . While reversing the decision of |
| | | | another for pious | | | | | the Division Bench of the High | |
| | | | and religious | | | | | Court, this Court held that the | |
22
| | | purposes is in<br>accordance with the<br>Act; and (ii) whether<br>the Waqf Act is<br>applicable for the<br>portion of the<br>property earmarked<br>for waqfalalaulad. | | words, “any dispute, question or | | | | |
|---|
| | | | | other matters” are words of very | | | | |
| | | | | wide connotation and that the | | | | |
| | | | | tribunal has all the powers of the | | | | |
| | | | | civil court including the power to | | | | |
| | | | | grant temporary injunctions | | | | |
| | | | | under Order XXXIX, CPC. | | | | |
| | | | | 3. | This Court further held that | | | |
| | | | | though Section 83(2) refers to | | | | |
| | | | | orders passed under the Act, | | | | |
| | | | | Sections 83(1) and 84 are | | | | |
| | | | | independent provisions and that | | | | |
| | | | | they do not require an order | | | | |
| | | | | passed under the Act for invoking | | | | |
| | | | | the jurisdiction of the Waqf | | | | |
| | | | | Tribunal. Even if no order has | | | | |
| | | | | been passed under the Act, the | | | | |
| | | | | party can approach the Waqf | | | | |
| | | | | Tribunal. | | | | |
| | | | | 4. | The decision in | | | Ramesh |
| | | | | Gobindram | | | was distinguished, on | |
| | | | | the ground that the same related | | | | |
| | | | | to an eviction dispute. | | | | |
| 5 | Punjab State<br>Waqf Board<br>vs.<br>Pritpal Singh<br>2013 SCC<br>Online SC<br>1345 | Waqf Tribunal | Suit for possession<br>and mesne profits. | | 1. | A suit for possession and | | | |
| | | | | mesne profits was decreed by the | | | | |
| | | | | Waqf Tribunal. But on a writ | | | | |
| | | | | petition, the High Court set aside | | | | |
| | | | | the judgment of the Waqf | | | | |
| | | | | Tribunal on the ground that the | | | | |
| | | | | Tribunal had no jurisdiction to | | | | |
| | | | | entertain a suit for ejectment. | | | | |
| | | | | 2. | However, this Court set aside | | | |
| | | | | the judgment of the High Court | | | | |
| | | | | holding that the suit was | | | | |
| | | | | maintainable before the Waqf | | | | |
| | | | | Tribunal. This Court pointed out | | | | |
| | | | | that the High Court mistook the | | | | |
| | | | | suit to be one for eviction, though | | | | |
| | | | | in fact, it was for possession and | | | | |
| | | | | mesne profits. | | | | |
| 6 | Akkode<br>Jumayath Palli<br>Paripalana<br>Committee<br>vs.<br>P.V. Ibrahim<br>Haji and Ors.<br>(2014) 16 SCC<br>65 | First filed<br>before Civil<br>Court, but<br>later<br>transferred to<br>Waqf Tribunal | Suit for permanent<br>injunction | | 1. | | A suit for permanent | | |
| | | | | injunction was first filed before | | | | |
| | | | | the civil court, but it was | | | | |
| | | | | transferred to the waqf tribunal. | | | | |
| | | | | 2. | The waqf tribunal decreed the | | | |
| | | | | suit and granted a decree of | | | | |
| | | | | perpetual injunction, restraining | | | | |
| | | | | the defendants from interfering in | | | | |
| | | | | the administration, management, | | | | |
| | | | | peaceful possession and | | | | |
| purposes is in | | |
|---|
| accordance with the | | |
| Act; and | (ii) | whether |
| the Waqf Act is | | |
| applicable for the | | |
| portion of the | | |
| property earmarked | | |
| for waqfalalaulad. | | |
23
| | | | | enjoyment of the mosque, the | | | | | | | | | | |
|---|
| | | | | madarassa run by it and all the | | | | | | | | | | |
| | | | | assets attached to the mosque. | | | | | | | | | | |
| | | | | 3. | On revision under Section | | | | | | | | | |
| | | | | 83(9) of the Act, the Kerala High | | | | | | | | | | |
| | | | | Court set aside the judgment of | | | | | | | | | | |
| | | | | the waqf tribunal holding that a | | | | | | | | | | |
| | | | | suit for perpetual injunction is | | | | | | | | | | |
| | | | | not maintainable before the waqf | | | | | | | | | | |
| | | | | tribunal. The High Court relied | | | | | | | | | | |
| | | | | upon the decision of this Court in | | | | | | | | | | |
| | | | | Ramesh Gobindram. | | | | | | | | | | This |
| | | | | judgment of the High Court was | | | | | | | | | | |
| | | | | challenged before this Court | | | | | | | | | | |
| | | | | 4. | This Court allowed the appeal | | | | | | | | | |
| | | | | by relying upon the decision in | | | | | | | | | | |
| | | | | W.B. | | | Waqf Board v | | | . | | Anis Fatma | | |
| | | | | Begum | | | | , (2010) 14 SCC 588, in | | | | | | |
| | | | | which | | | | | Ramesh Gobindram | | | | was | |
| | | | | distinguished. | | | | | | | | | | |
| | | | | 5. | In other words a suit for | | | | | | | | | |
| | | | | perpetual injunction was held to | | | | | | | | | | |
| | | | | be maintainable before the waqf | | | | | | | | | | |
| | | | | tribunal. | | | | | | | | | | |
| 7. | Bhanwar Lal<br>vs.<br>Rajasthan<br>Board of<br>Muslim Waqf<br>(2014) 16 SCC<br>51 | Civil Court<br>(filed in 1980) | Suit was first filed<br>for possession and<br>rendition of accounts<br>but subsequently<br>amended to include<br>a prayer to declare<br>the sale deed as<br>invalid. | | 1. | A suit was filed in the civil | | | | | | | | | |
| | | | | court for possession and | | | | | | | | | | |
| | | | | rendition of accounts way back in | | | | | | | | | | |
| | | | | the year 1980. During the | | | | | | | | | | |
| | | | | pendency of the suit, the property | | | | | | | | | | |
| | | | | was sold in 1983 and hence the | | | | | | | | | | |
| | | | | plaint was amended for | | | | | | | | | | |
| | | | | additional relief of declaration | | | | | | | | | | |
| | | | | that the sale deed was invalid. | | | | | | | | | | |
| | | | | 2. | During the pendency of the | | | | | | | | | |
| | | | | suit, the 1995 Act came into force | | | | | | | | | | |
| | | | | and hence the plaintiffs | | | | | | | | | | |
| | | | | themselves (State Waqf Board | | | | | | | | | | |
| | | | | and Muslim Board Committee) | | | | | | | | | | |
| | | | | filed an application under Section | | | | | | | | | | |
| | | | | 85 of the 1995 Act seeking return | | | | | | | | | | |
| | | | | of the plaint to enable them to | | | | | | | | | | |
| | | | | resubmit the same before the | | | | | | | | | | |
| | | | | waqf tribunal. | | | | | | | | | | |
| | | | | 3. | The Trial court allowed the | | | | | | | | | |
| | | | | application on the ground of bar | | | | | | | | | | |
| | | | | of jurisdiction and the defendants | | | | | | | | | | |
| | | | | filed a revision before the High | | | | | | | | | | |
| | | | | Court. The revision was | | | | | | | | | | |
| | | | | dismissed by the High Court and | | | | | | | | | | |
| | | | | the defendant was before this | | | | | | | | | | |
24
| | | | | Court. | | | | | | | | | |
|---|
| | | | | 4 | . After taking note of Section | | | | | | | | |
| | | | | 7(5) and Section 85 as well as the | | | | | | | | | |
| | | | | decision in | | | | | | Sardar Khan, | | | this |
| | | | | Court held that those matters | | | | | | | | | |
| | | | | which are already pending before | | | | | | | | | |
| | | | | the civil court, would continue to | | | | | | | | | |
| | | | | be adjudicated by the civil court, | | | | | | | | | |
| | | | | even after if the subject matter is | | | | | | | | | |
| | | | | covered by Section 6(1). | | | | | | | | | |
| | | | | 5. | | The decision in | | | | | | Ramesh | |
| | | | | Gobindram, | | | | | | | was extensively | | |
| | | | | referred to and it was held that a | | | | | | | | | |
| | | | | suit for possession and rent is to | | | | | | | | | |
| | | | | be tried by the civil court, but a | | | | | | | | | |
| | | | | suit pertaining to removal of | | | | | | | | | |
| | | | | trustees and rendition of | | | | | | | | | |
| | | | | accounts would fall within the | | | | | | | | | |
| | | | | domain of the tribunal. | | | | | | | | | |
| | | | | 6. | | It was further held that the | | | | | | | |
| | | | | relief of cancellation of sale deed | | | | | | | | | |
| | | | | is not covered by Section 6 or 7 | | | | | | | | | |
| | | | | and that therefore it is to be tried | | | | | | | | | |
| | | | | by the civil court. | | | | | | | | | |
| 8 | Haryana Waqf<br>Board<br>vs.<br>Mahesh<br>Kumar<br>(2014) 16 SCC<br>45 | Civil Court | Suit for possession | 1. A suit for possession was filed<br>by the Waqf Board before the civil<br>court on the ground that the<br>property involved was notified as<br>a waqf property under Section<br>5(2).<br>2. The trial court decreed the<br>suit but the first appellate court<br>reversed it on the ground that a<br>question has arisen as to whether<br>the suit property is a waqf<br>property or not and that the said<br>question has to be decided only<br>by the tribunal. So holding, the<br>first appellate court set aside the<br>judgment of the trial court and<br>ordered the return of the plaint<br>under Order VII, Rule 10. The<br>High Court confirmed the said<br>judgment on a second appeal.<br>3. Relying upon the decision in<br>Bhanwar Lal, this Court<br>dismissed the SLP, thereby<br>confirming the view of the first<br>appellate court and the High | 1. | | | A suit for possession was filed | | | | | | |
| | | | | by the Waqf | | | | | Board before the civil | | | | |
| | | | | court on the ground that the | | | | | | | | | |
| | | | | property involved was notified as | | | | | | | | | |
| | | | | a waqf property under Section | | | | | | | | | |
| | | | | 5(2). | | | | | | | | | |
| 2. | The trial court decreed the | |
|---|
| suit but the first appellate court | | |
| reversed it on the ground that a | | |
| question has arisen as to whether | | |
| the suit property is a waqf | | |
| property or not and that the said | | |
| question has to be decided only | | |
| by the tribunal. So holding, the | | |
| first appellate court set aside the | | |
| judgment of the trial court and | | |
| ordered the return of the plaint | | |
| under Order VII, Rule 10. The | | |
| High Court confirmed the said | | |
| judgment on a second appeal. | | |
| 3. | Relying upon the decision in | |
| Bhanwar Lal | | , this Court |
| dismissed the SLP, thereby | | |
| confirming the view of the first | | |
| appellate court and the High | | |
25
| | | | | Court that the waqf tribunal | | | | | |
|---|
| | | | | alone had jurisdiction. | | | | | |
| 9 | Faseela M<br>vs.<br>Munnerul<br>Islam Madrasa<br>Committee<br>(2014) 16 SCC<br>38 | Waqf Tribunal | For eviction of the<br>tenant, filed by<br>Madrasa Committee | 1. The Madarssa Committee filed<br>an application before the waqf<br>tribunal for the eviction of a<br>person on the ground that he was<br>a tenant in respect of a waqf<br>property. The respondent denied<br>that the subject property is a<br>waqf property and he also<br>challenged the jurisdiction of the<br>tribunal.<br>2. The waqf tribunal first ordered<br>the return of the plaint for<br>presentation before a civil court<br>but later recalled the previous<br>order on the ground that the<br>issue whether the subject<br>property is a waqf property or not<br>has arisen for consideration.<br>3. The said order of the waqf<br>tribunal was challenged in a<br>revision before the High Court.<br>The High Court confirmed the<br>second order of the waqf tribunal.<br>4. Holding that the issue relating<br>to eviction of tenant is squarely<br>covered by the decision of this<br>Court in Ramesh Gobindram,<br>and that Bhanwar Lal is not<br>inconsistent with Ramesh<br>Gobindram, this Court allowed<br>the appeals and restored the first<br>order of the tribunal directing the<br>return of the plaint. | 1. | The Madarssa Committee filed | | | | |
| | | | | an application before the waqf | | | | | |
| | | | | tribunal for the eviction of a | | | | | |
| | | | | person on the ground that he was | | | | | |
| | | | | a tenant in respect of a waqf | | | | | |
| | | | | property. The respondent denied | | | | | |
| | | | | that the subject property is a | | | | | |
| | | | | waqf property and he also | | | | | |
| | | | | challenged the jurisdiction of the | | | | | |
| | | | | tribunal. | | | | | |
| | | | | 2. | The waqf tribunal first ordered | | | | |
| | | | | the return of the plaint for | | | | | |
| | | | | presentation before a civil court | | | | | |
| | | | | but later recalled the previous | | | | | |
| | | | | order on the ground that the | | | | | |
| | | | | issue whether the subject | | | | | |
| | | | | property is a waqf property or not | | | | | |
| | | | | has arisen for consideration. | | | | | |
| | | | | 3. The said order of the waqf | | | | | |
| | | | | tribunal was challenged in a | | | | | |
| | | | | revision before the High Court. | | | | | |
| | | | | The High Court confirmed the | | | | | |
| | | | | second order of the waqf tribunal. | | | | | |
| | | | | 4. Holding that the issue relating | | | | | |
| | | | | to eviction of tenant is squarely | | | | | |
| | | | | covered by the decision of this | | | | | |
| | | | | Court in | | | Ramesh Gobindram, | | |
| | | | | and that | | Bhanwar Lal | | | is not |
| | | | | inconsistent with | | | | | Ramesh |
| | | | | Gobindram, | | | | this Court allowed | |
| | | | | the appeals and restored the first | | | | | |
| | | | | order of the tribunal directing the | | | | | |
| | | | | return of the plaint. | | | | | |
| 10 | Rajasthan<br>Waqf Board<br>vs.<br>Devki Nandan<br>Pathak.<br>(2017) 14 SCC<br>561 | Waqf Tribunal | Suit for declaration<br>that the sale of the<br>subject Property was<br>void as it was a Waqf<br>Property. There was<br>also an alternative<br>prayer to prevent the<br>opponents from<br>taking forceful<br>possession of the<br>property from the<br>waqf. | | 1. | The suit was filed by the | | | | |
| | | | | mutawalli of a masjid before the | | | | | |
| | | | | waqf tribunal. | | | | | |
| | | | | 2. | The tribunal held the suit | | | | |
| | | | | property to be a waqf property | | | | | |
| | | | | and hence decreed the suit. | | | | | |
| | | | | 3. | The High Court set aside the | | | | |
| | | | | judgment of the waqf tribunal on | | | | | |
| | | | | a revision filed by the persons | | | | | |
| | | | | who purchased the property from | | | | | |
| | | | | a private individual as though it | | | | | |
| | | | | was a private property. The High | | | | | |
| | | | | Court held that the remedy would | | | | | |
| | | | | lie before the civil court. | | | | | |
26
| | | | | | 4. | This court allowed the appeal | | | |
|---|
| | | | | | holding that the main controversy | | | | |
| | | | | | in the suit was whether the | | | | |
| | | | | | subject property is a waqf | | | | |
| | | | | | property or not and that the same | | | | |
| | | | | | could be tried only by the waqf | | | | |
| | | | | | tribunal. The decisions in | | | | |
| | | | | | Ramesh Gobindram | | | and | Bhanwar |
| | | | | | Lal, | | were relied upon. | | |
| | | | | | 5. | This Court also relied upon | | | |
| | | | | | Section 51 which declares the | | | | |
| | | | | | sale of any waqf property, made | | | | |
| | | | | | without the prior sanction of the | | | | |
| | | | | | board as void and pointed out | | | | |
| | | | | | that under Section 52(2), the | | | | |
| | | | | | right of appeal was only to the | | | | |
| | | | | | tribunal in such matters. | | | | |
| 11 | Dharampal<br>v.<br>Punjab Waqf<br>Board<br>(2018) 11 SCC<br>449: | Civil Court | Suit was for<br>Possession and<br>injunction restraining<br>the defendants from<br>changing the nature<br>of the land and<br>making any<br>construction over it | Suit was for | 1. The State Waqf Board filed a<br>suit for possession and<br>injunction before the civil court in<br>the year 1991 (before the advent<br>of the 1995 Act), against persons<br>who continued to occupy a land<br>even after the expiry of the lease<br>and who also encroached upon<br>additional land.<br>2. Defendant no.1 filed a counter<br>claim to the effect that he has<br>perfected title by adverse<br>possession.<br>3. By a judgment delivered in<br>1998 (after the advent of the<br>1995 Act), the suit was<br>dismissed, but the counter claim<br>was allowed holding that<br>defendant no.1 had perfected title<br>by adverse possession.<br>4. The first appellate court<br>reversed the judgment and decree<br>of the trial court, dismissing the<br>counter claim and decreeing the<br>suit of the waqf board for<br>possession.<br>5. The High Court affirmed the<br>judgment of the first appellate<br>court on a second appeal and the<br>dispute landed up before this<br>Court.<br>6. This Court addressed several | 1. | The State Waqf Board filed a | | | |
| | | | Possession and | | suit for possession and | | | | |
| | | | injunction restraining | | injunction before the civil court in | | | | |
| | | | the defendants from | | the year 1991 (before the advent | | | | |
| | | | changing the nature | | of the 1995 Act), against persons | | | | |
| | | | | | who continued to occupy a land | | | | |
| | | | of the land and | | | | | | |
| | | | | | even after the expiry of the lease | | | | |
| | | | making any | | | | | | |
| | | | | | and who also encroached upon | | | | |
| | | | construction over it | | | | | | |
| | | | | | additional land. | | | | |
| 2. | | Defendant no.1 filed a counter |
|---|
| claim to the effect that he has | | |
| perfected title by adverse | | |
| possession. | | |
| 3. | | By a judgment delivered in |
| 1998 (after the advent of the | | |
| 1995 Act), the suit was | | |
| dismissed, but the counter claim | | |
| was allowed holding that | | |
| defendant no.1 had perfected title | | |
| by adverse possession. | | |
| 4 | . The first appellate court | |
| reversed the judgment and decree | | |
| of the trial court, dismissing the | | |
| counter claim and decreeing the | | |
| suit of the waqf board for | | |
| possession. | | |
| 5. | | The High Court affirmed the |
| judgment of the first appellate | | |
| court on a second appeal and the | | |
| dispute landed up before this | | |
| Court. | | |
| 6. | | This Court addressed several |
27
| | | | | issues, one of which was the bar | | |
|---|
| | | | | of jurisdiction. Since the suit had | | |
| | | | | been filed before the advent of the | | |
| | | | | 1995 Act, this Court referred to | | |
| | | | | Section 55C of the Waqf Act, | | |
| | | | | 1954 inserted by way of | | |
| | | | | Amendment Act 69 of 1984. | | |
| | | | | 7. | But this court took note of the | |
| | | | | fact that the aforesaid | | |
| | | | | amendment under Act 69 of 1984 | | |
| | | | | was never notified and that | | |
| | | | | therefore, Section 55C had no | | |
| | | | | application. As a consequence | | |
| | | | | this Court held that the civil | | |
| | | | | court had jurisdiction to decide | | |
| | | | | the suit by virtue of Section 6 of | | |
| | | | | the 1954 Act. | | |
| 12 | Punjab Waqf<br>Board<br>vs.<br>Sham Singh<br>Harike<br>(2019) 4 SCC<br>698 | There were two<br>civil appeals<br>before this<br>Court, one<br>arising out of a<br>suit filed before<br>the civil court<br>for permanent<br>injunction, but<br>which got<br>transferred to<br>the waqf<br>tribunal and<br>the other<br>arising out of a<br>suit filed before<br>the waqf<br>tribunal for<br>possession and<br>permanent<br>injunction. | The relief sought in<br>one proceeding was<br>for a permanent<br>injunction and the<br>relief sought in the<br>second proceeding<br>was for possession<br>and permanent<br>injunction. | | 1. | There were two civil appeals | |
| | | | | before this Court. | | |
| | | | | 2. | Facts in one appeal | |
| | | | | * | | |
| | | | | was filed by the waqf board before | | |
| | | | | the civil court seeking to restrain | | |
| | | | | the respondents from raising any | | |
| | | | | construction and changing the | | |
| | | | | nature of the property from | | |
| | | | | agricultural to residential. | | |
| | | | | * | | |
| | | | | | The respondent denied the title | |
| | | | | of the waqf board and raised the | | |
| | | | | question of maintainability of the | | |
| | | | | su | it. | |
| | | | | * | | |
| | | | | | The suit was transferred to the | |
| | | | | waqf tribunal but an application | | |
| | | | | for rejection of plaint was filed | | |
| | | | | before the tribunal on the ground | | |
| | | | | that the tribunal had no | | |
| | | | | jurisdiction. | | |
| | | | | * | | |
| | | | | application for rejection of plaint, | | |
| | | | | holding that the waqf tribunal | | |
| | | | | had jurisdiction. But the | | |
| | | | | judgment of the tribunal was | | |
| | | | | reversed by the High Court on a | | |
| | | | | revision, by relying upon the | | |
| | | | | judgment of this Court in | | |
| | | | | Ramesh Gobindram. | | The High |
| | | | | Court also held that the person | | |
| | | | | against whom reliefs were sought, | | |
28
| | | | was a nonMuslim.<br>3. Facts in next appeal<br>* The Waqf Board filed a suit for<br>possession and injunction before<br>the Waqf Tribunal. The defendant<br>admitted tenancy and claimed<br>readiness to pay the rent. The<br>waqf tribunal decreed the suit.<br>* The High Court on a revision<br>set aside the judgment of the<br>waqf tribunal on the basis of the<br>decision in Ramesh Gobindram.<br>4. The judgment of the High<br>Court in both the matters came<br>up for consideration before this<br>Court in the two appeals.<br>5. OPINION OF THIS COURT<br>* After taking note of Section 55<br>of the Waqf Act, 1954, as it stood<br>prior to the 1984 amendment, the<br>amendments sought to be made<br>by the 1984 Act and the<br>provisions of the 1995 Act, this<br>Court dealt in extenso with the<br>reasoning of this Court in<br>Ramesh Gobindram.<br>* This Court also took note of the<br>decisions in Bhanwar Lal, Sardar<br>Khan, Faseela, Anis Fatma<br>Begum, Mahesh Kumar and<br>Akkode Jumayath Palli<br>Paripalana Committee. The<br>provisions of Sections 6(1), 7(1),<br>33(4), 51(5), 52(4) and 54(4) as<br>well as the amendment to Section<br>83(1) under Act 27 of 2013 were<br>also referred to.<br>* Thereafter this Court held at<br>the outset that the High Court’s<br>view that the right of a non<br>Muslim cannot be jeopardized<br>under the Act, is contrary to the<br>statutory scheme contained in<br>Section 6.<br>* After holding so, this Court<br>allowed the 1st civil appeal which |
|---|
| was a nonMuslim. | | | | | | |
|---|
| 3. | | Facts in next appeal | | | | |
| * | | | | | | |
| | The Waqf Board filed a suit for | | | | |
| possession and injunction before | | | | | | |
| the Waqf Tribunal. The defendant | | | | | | |
| admitted tenancy and claimed | | | | | | |
| readiness to pay the rent. The | | | | | | |
| waqf tribunal decreed the suit. | | | | | | |
| * | | | | | | |
| | The High Court on a revision | | | | |
| set aside the judgment of the | | | | | | |
| waqf tribunal on the basis of the | | | | | | |
| | | | | | |
| decision in | | | | | Ramesh Gobindram | . |
| 4 | . | | The judgment of the High | | | |
| Court in both the matters came | | | | | | |
| up for consideration before this | | | | | | |
| Court in the two appeals. | | | | | | |
| 5. | OPINION OF THIS COURT | | | | |
|---|
| * | | | | | |
| of the Waqf Act, 1954, as it stood | | | | | |
| prior to the 1984 amendment, the | | | | | |
| amendments sought to be made | | | | | |
| by the 1984 Act and the | | | | | |
| provisions of the 1995 Act, this | | | | | |
| Court dealt in extenso with the | | | | | |
| reasoning of this Court in | | | | | |
| Ramesh Gobindram. | | | | | |
| * | | | | | |
| This Court also took note of the | | | | |
| decisions in | | Bhanwar Lal, Sardar | | | |
| Khan, Faseela, Anis Fatma | | | | | |
| Begum, Mahesh Kumar and | | | | | |
| Akkode Jumayath Palli | | | | | |
| Paripalana Committee | | | | | . The |
| provisions of Sections 6(1), 7(1), | | | | | |
| 33(4), 51(5), 52(4) and 54(4) as | | | | | |
| well as the amendment to Section | | | | | |
| 83(1) under Act 27 of 2013 were | | | | | |
| also referred to. | | | | | |
| * | | | | | |
| Thereafter this Court held at | | | | |
| the outset that the High Court’s | | | | | |
| view that the right of a non | | | | | |
| Muslim cannot be jeopardized | | | | | |
| under the Act, is contrary to the | | | | | |
| statutory scheme contained in | | | | | |
| Section 6. | | | | | |
| * | | | | | |
| After holding so, this Court | | | | |
| allowed the 1 | | | st | civil appeal which | |
29
| | | | arose out of a suit for permanent<br>injunction, earlier filed before the<br>civil court and later transferred to<br>the waqf tribunal. The reason<br>given by this court was that the<br>question whether the subject<br>property is a waqf property or not<br>has arisen for consideration in<br>the said suit and hence the<br>Tribunal had jurisdiction.<br>* However, this Court dismissed<br>the 2nd civil appeal on the ground<br>that it was a suit for possession<br>and permanent injunction where<br>the property was admitted to be a<br>waqf property and that therefore<br>the issue arising therein was fully<br>covered by the decision in<br>Ramesh Gobindram. | | | | | | | | |
|---|
| 13 | Kiran Devi<br>v.<br>Bihar State<br>Sunni Waqf<br>Board<br>2021 SCC<br>Online SC 280 | Instituted before | The suit was for<br>declaration that the<br>plaintiff had<br>succeeded to the<br>tenancy rights, as a<br>member of joint<br>Hindu family and<br>that therefore the<br>plaintiff is entitled to<br>continue as tenant. | | 1. | | The suit was originally | | | | | |
| | the civil court | | | instituted before the civil court | | | | | | | |
| | but it was | | | but it was transferred to the waqf | | | | | | | |
| | transferred to | | | tribunal on an application taken | | | | | | | |
| | waqf tribunal on | | | out by the waqf board and | | | | | | | |
| | an application | | | another. The transfer of the suit | | | | | | | |
| | filed by the waqf | | | to the tribunal was challenged | | | | | | | |
| | board and the | | | but in vain. Therefore, the parties | | | | | | | |
| | tenant newly | | | went to trial before the waqf | | | | | | | |
| | inducted into | | | tribunal. | | | | | | | |
| | the premises by | | | 2. | | The tribunal dismissed the | | | | | |
| | the waqf board. | | | suit, but on a writ petition filed | | | | | | | |
| | | | | against the said order, the High | | | | | | | |
| | | | | Court reversed the same. | | | | | | | |
| | | | | Actually, the judgment was on | | | | | | | |
| | | | | merits. | | | | | | | |
| | | | | 3 | . Before this Court it was | | | | | | |
| | | | | contended that the tribunal had | | | | | | | |
| | | | | no jurisdiction in view of the | | | | | | | |
| | | | | decision in | | | | Ramesh Gobindram | | . | |
| | | | | 4. | | | Though this Court found that | | | | |
| | | | | in terms of | | | | | Ramesh Gobindram | | , |
| | | | | the waqf tribunal could not grant | | | | | | | |
| | | | | a declaration as claimed by the | | | | | | | |
| | | | | plaintiff, this Court held that it | | | | | | | |
| | | | | cannot entertain such an | | | | | | | |
| | | | | objection especially after the | | | | | | | |
| | | | | order of transfer of the suit from | | | | | | | |
| | | | | the civil court to the waqf | | | | | | | |
| arose out of a suit for permanent | | | | | | |
|---|
| injunction, earlier filed before the | | | | | | |
| civil court and later transferred to | | | | | | |
| the waqf tribunal. The reason | | | | | | |
| given by this court was that the | | | | | | |
| question whether the subject | | | | | | |
| property is a waqf property or not | | | | | | |
| has arisen for consideration in | | | | | | |
| the said suit and hence the | | | | | | |
| Tribunal had jurisdiction. | | | | | | |
| * | | However, this Court dismissed | | | | |
| the 2 | | | nd | civil appeal on the ground | | |
| that it was a suit for possession | | | | | | |
| and permanent injunction where | | | | | | |
| the property was admitted to be a | | | | | | |
| waqf property and that therefore | | | | | | |
| the issue arising therein was fully | | | | | | |
| covered by the decision in | | | | | | |
| Ramesh Gobindram | | | | | . | |
30
| | | | | tribunal had attained finality. It | | | | | | | |
|---|
| | | | | was argued that the parties | | | | | | | |
| | | | | cannot confer jurisdiction upon a | | | | | | | |
| | | | | tribunal by consent. But that | | | | | | | |
| | | | | argument was repelled on the | | | | | | | |
| | | | | ground that it was not a case | | | | | | | |
| | | | | where jurisdiction was conferred | | | | | | | |
| | | | | by consent of parties, but a case | | | | | | | |
| | | | | where proceedings were | | | | | | | |
| | | | | transferred by a judicial order to | | | | | | | |
| | | | | a tribunal. | | | | | | | |
| 14 | Telangana<br>State Waqf<br>Board<br>vs.<br>Mohamed<br>Muzafar<br>2021 SCC<br>Online SC 537 | Waqf Tribunal | For the eviction of<br>the tenant, both<br>from the tenanted<br>portion as well as the<br>encroached portion. | | 1 | . The waqf tribunal decreed the | | | | | | |
| | | | | suit and directed the defendants | | | | | | | |
| | | | | to vacate the suit property. | | | | | | | |
| | | | | 2. | | But on a revision, the High | | | | | |
| | | | | Court set aside the judgment of | | | | | | | |
| | | | | the tribunal on the ground that in | | | | | | | |
| | | | | view of the decision in | | | | | | | Ramesh |
| | | | | Gobindram | | | | | the suit was not | | |
| | | | | maintainable before the Waqf | | | | | | | |
| | | | | Tribunal. | | | | | | | |
| | | | | 3. | | | | However, this Court | | | |
| | | | | distinguished | | | | | | Ramesh Gobindram | |
| | | | | on the ground that a suit for | | | | | | | |
| | | | | ejectment of a person from what | | | | | | | |
| | | | | is admittedly a waqf property | | | | | | | |
| | | | | would stand on a different footing | | | | | | | |
| | | | | from a suit for ejectment of a | | | | | | | |
| | | | | person from a property which is | | | | | | | |
| | | | | disputed to be a waqf property. | | | | | | | |
| | | | | 4. | | | This Court noted the decision | | | | |
| | | | | in | | | Faseela, Anis Fatma Begum, | | | | |
| | | | | Mahesh Kumar and Sham Singh | | | | | | | |
| | | | | Harike | | | | , and eventually came to | | | |
| | | | | the conclusion that the facts and | | | | | | | |
| | | | | circumstances of each case will | | | | | | | |
| | | | | have to be taken note of in the | | | | | | | |
| | | | | background of the legal | | | | | | | |
| | | | | framework contained in the Waqf | | | | | | | |
| | | | | Act, to determine jurisdiction. | | | | | | | |
| | | | | This Court reiterated that | | | | | | | |
| | | | | wherever the subject property is | | | | | | | |
| | | | | disputed to be a waqf property, | | | | | | | |
| | | | | the issue would fall squarely | | | | | | | |
| | | | | within the jurisdiction of the waqf | | | | | | | |
| | | | | tribunal. | | | | | | | |
30. It can be seen from the table given above that the original
31
proceedings from out of which the decisions at Sl.No.1 and 2 ( Syed
Muhammed Mashur Kunhi Koyal Thangal & Sardar Khan ) arose, were
instituted long before the advent of the Waqf Act, 1995 and hence the
ratio laid therein on the basis of Section 7(5) of the Act does not throw
any light upon the actual controversy on hand. The decision of this
Court in Ramesh Gobindram included at Sl.No.3 in the table above, is
the one, which, ironically, attempted to settle the controversy on hand,
but has produced conflicting results in the subsequent decisions. The
only question that arose in Ramesh Gobindram , as seen from
paragraph 2 (of the SCC report), is as to whether or not, the Waqf
Tribunal is competent to entertain and adjudicate upon disputes
regarding eviction of persons occupying what are admittedly waqf
properties. For finding an answer to this question, this Court started
its discussion with the well established rule that the ouster of
jurisdiction of the civil court is not to be readily inferred and that the
bar of jurisdiction should be express or implied. After laying such a
foundation, this Court started building mainly upon Sections 6 and 7.
This was perhaps due to the caption given to Sections 6 and 7. While
Section 6 is given the caption, “D isputes regarding waqfs ”, Section 7 is
given the caption “P ower of Tribunal to determine disputes regarding
32
waqfs ”. Sections 6 and 7 as they stood when Ramesh Gobindram was
decided, read as follows:
6. Disputes regarding waqfs .—(1) If any question arises
whether a particular property specified as waqf property in the list
of waqfs 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 interested therein 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:
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 waqfs:
| | Explanation.—For the purposes of this section and section |
|---|
| 7, the expression “any person interested therein”, shall, in relation | | |
| to any property specified as waqf property in the list of waqfs | | |
| published after the commencement of this Act, shall include also | | |
| every person who, though not interested in the waqf concerned, is | | |
| interested in such property and to whom a reasonable opportunity | | |
| had been afforded to represent his case by notice served on him in | | |
| that behalf during the course of the relevant inquiry under section | | |
| 4. | | |
(2) Notwithstanding anything contained in subsection (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 subsection (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 waqfs shall, unless it is modified in pursuance
of a decision of the Tribunal under subsection (1), be final and
conclusive.
(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
subsection (1).
7. Power of Tribunal to determine disputes regarding
waqfs .—(1) If, after the commencement of this Act, any question
arises, whether a particular property specified as waqf property in
a list of waqfs is waqf property or not, or whether a waqf specified
33
in such list is a Shia waqf or a Sunni waqf, the Board or the
mutawalli of the waqf, or any person interested 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 waqfs 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 waqfs; and
(b) in the case of the list of waqfs 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 reopen such
question.
(2) Except where the Tribunal has no jurisdiction by reason
of the provisions of subsection (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.
(3) The Chief Executive Officer shall not be made a party to
any application under subsection (1).
(4) The list of waqfs and where any such list is modified in
pursuance of a decision of the Tribunal under subsection (1), the
list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine
any matter which is the subjectmatter of any suit or proceeding
instituted or commenced in a civil court under subsection (1) of
section 6, before the commencement of the Act or which is the
subjectmatter 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.
31. A bare reading of Sections 6 and 7 extracted above, shows that
the language employed therein appears to have deflected the attention
34
of many a court without exception. The reason why we say so, is this.
A careful look at the scheme of the Act would show that the Act is
divided into 9 chapters. ChapterII which contains Sections 4 to 8, is
4
primarily concerned with the survey of waqfs . Sections 6 and 7 are
incidental to the scheme of ChapterII alone, which is why they speak
only about two questions namely, whether a particular property
(i)
specified as a waqf property in the list of waqfs is actually a waqf
property or not; and (ii) whether a waqf specified in such list is a Shia
waqf or Sunni waqf. While Section 4 contemplates a preliminary
survey of all waqfs in the State, Section 5(2) speaks about publication
of the list of waqfs (separately for Shia and Sunni) in the official
gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only
to the aforesaid two questions. In other words, the questions relevant
for the purposes of Sections 4 and 5 alone, are dealt with in Sections 6
and 7 and hence the discussion regarding the jurisdiction of the Waqf
Tribunal should not start and end with Sections 6 and 7.
32. Sections 83 and 85, as well as Sections 86, 90 and 93, which use
the word “court”, are to be found in Chapter VIII of the Act. The
heading given to Chapter VIII is “Judicial Proceedings”. Therefore, for
4 The words “waqfs”, has been substituted with the word “auqaf”, by the Amendment Act 27 of 2013.
35
finding an answer to the question relating to the bar of jurisdiction
under Section 85, it is not enough merely to refer to Section 6(5) or
Section 7(2). The language of Section 85 is clearly in contrast to the
language employed in Section 6(5) and Section 7(2).
33. A conjoint reading of Sections 6, 7 and 85 would show that the
bar of jurisdiction of civil court contained in Section 6(5) and Section
7(2) is confined to ChapterII, but the bar of jurisdiction under Section
85 is all pervasive. This can be seen from the following distinguishing
features:
(i) Section 6(5) bars the institution or commencement of a suit
or other legal proceeding in a court “
in relation to any question
referred to in subsection (1) ”. Subsection (1) of Section 6 speaks
only about two questions namely, whether a particular property
specified as a waqf property in the list of waqfs is a waqf property or
not and whether a waqf is Shia waqf or Sunni waqf;
Section 7(2) bars any court, tribunal or other authority from
(ii)
staying any proceeding before the Waqf Tribunal, in respect of a waqf,
on the only ground of pendency of any suit, application or appeal or
other proceeding. Section 7(2) specifically relates to the proceedings
36
under Section 7 and not to any other proceeding. This is clear by the
use of the words, “ no proceeding under this Section ”. Section 7(1)
again deals only with two questions namely, whether a particular
property specified as waqf property in the list of waqfs is a waqf
property or not and whether a waqf specified in the list is a Shia waqf
or Sunni waqf. Therefore, the bar under Section 7(2) is also confined
only to these two questions, on account of the use of the words, “ no
proceeding under this Section ”.
(iii) While Sections 6(1) and 7(1) speak only about two questions
which are germane to the matters covered by ChapterII of the Act
alone, Section 85 speaks (i)
about any dispute, question or other
matter relating to any waqf or waqf property and (ii) about “ other
matter which is required by or under this Act to be determined
by a Tribunal ”.
(iv) A major distinguishing feature between Sections 6(1) and 7
(1) on the one hand and Section 83 on the other hand is that the
dispute, question or other matter referred to in Sections 6 and 7 are
confined only to what is included in the list of waqfs prepared under
Section 4 and published under Section 5. The words “specified … in
37
found in sections 6 (1) and 7(1), are conspicuous
the list of waqfs”
by their absence in section 83 (1). Therefore, it is clear that Sections
6 and 7 speak only about two categories of cases, but Section 83
covers the entire gamut of possible disputes in relation to any
.
waqf or waqf property
34. It is seen that there are 2 limbs to Section 85. The words, “any
dispute, question or other matter relating to any waqf or waqf
property” used in the first limb of Section 85, provide a clear
indication that the Tribunal would have jurisdiction to adjudicate
upon any dispute and answer any question relating to a waqf or waqf
property, including the two questions mentioned in Sections 6(1) and
7(1). The words in the second limb of Section 85 namely, “ other matter
which is required by or under this Act to be determined by a Tribunal ”,
seek to cover matters which have no relevance to the two questions
covered by Section 6(1) and 7(1).
35. Unfortunately, many courts were misled by the reference to two
specific questions in Sections 6(1) and 7(1), to come to the conclusion
that the bar of jurisdiction was confined only to disputes revolving
around those two questions.
38
36. Interestingly, the basis of the decision in Ramesh Gobindram was
removed through an amendment under Act 27 of 2013. As we have
stated elsewhere, Ramesh Gobindram sought to address the question
whether a Waqf Tribunal was competent to entertain and adjudicate
upon disputes regarding eviction of persons in occupation of what are
admittedly waqf properties. Since this Court answered the question in
the negative, Section 83(1) was amended by Act 27 of 2013 to include
the words, “ eviction of tenant or determination of rights and obligations
of the lessor and lessee of such property” .
37. Simultaneously, subsection (6) was inserted in Section 7 by Act
27 of 2013. This subsection (6) of Section 7 states that the Tribunal
shall have the power of assessment of damages by unauthorized
occupation of waqf property and to penalize such unauthorized
occupants for their illegal occupation of the waqf property and to
recover the damages as arrears of land revenue through the Collector.
It reads as follows:
(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
39
for each such offence.
Ideally, the provisions of subsection (6) should have found a place
somewhere in Section 83, since what is sought to be covered by sub
section (6) of Section 7 has no correlation to the two questions about
which Section 7(1) speaks. But the reason why the Parliament thought
fit to include something in Section 7, which has no correlation to sub
section (1) of Section 7, is perhaps the fact that Ramesh Gobindram
turned primarily on the language of Sections 6 and 7.
38. The upshot of the above discussion is that the basis of Ramesh
Gobindram now stands removed through amendment Act 27 of 2013.
In fact, when Ramesh Gobindram was decided, Sections 6(1) and 7(1)
enabled only three categories of persons to approach the Waqf
Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the
waqf; or any person interested therein. However, the explanation
(iii)
under Section 6(1) clarified that the expression “ any person interested
” shall include every person, who, though not interested in the
therein
waqf, is interested in the property. But by Act 27 of 2013 the words,
“ any person interested ” were substituted by the words, “ any person
aggrieved ”, meaning thereby that even a non Muslim is entitled to
40
invoke the jurisdiction of the Tribunal. Due to the substitution of the
words “ any person aggrieved ”, Act 27 of 2013 has deleted the
Explanation under 6(1). This amendment has also addressed the
concern expressed in Ramesh Gobindram (in para 21 of the SCC
report) whether a non Muslim could be put to jeopardy by the bar of
jurisdiction, merely because the property is included in the list of
waqfs. We must point out at this stage that the Explanation under
subsection (1) of Section 6, as it stood at the time when Ramesh
Gobindram was decided, already took care of this contingency, but was
omitted to be brought to the notice of this court.
39. Since Ramesh Gobindram , focused mainly upon the two
questions indicated in Sections 6(1) and 7(1) and reached a conclusion
that the Tribunal would have no jurisdiction to adjudicate upon
disputes concerning properties which are admittedly waqf properties,
some of the decisions which followed Ramesh Gobindram took to the
extreme view that if a property is admitted to be a waqf property, by
both parties, the Waqf Tribunal would not have jurisdiction to
adjudicate upon a dispute concerning the said property. Such a
conclusion led to an incongruity namely that the Tribunal would have
jurisdiction to determine the larger question whether a property is a
41
waqf property or not, but not smaller questions relating to what are
admittedly waqf properties. Normally while interpreting a clause
relating to bar of jurisdiction of civil courts in statutory enactments,
this court would tend to think, depending upon the language
employed, that larger questions could still be decided by civil courts,
while smaller questions are to be decided by the special Fora
constituted under the Act. But in the case of Waqfs Act, 1995, the
reverse has happened, with the courts ruling that if a property is
admittedly a waqf property, the Tribunal would have no jurisdiction,
though it would have jurisdiction to decide whether or not a property
is a waqf property at all.
40. The distinction sought to be drawn on the basis of admission or
denial about a property being a waqf property, was also capable of
another mischievous result. Take for instance a case where a property
is disputed to be a waqf property. Then as per the decision in Ramesh
the Waqf Tribunal would have jurisdiction to decide the
Gobindram,
question whether it is a waqf property or not. Suppose the Tribunal
reaches the conclusion that the disputed property is a waqf property,
would the Tribunal then continue to have jurisdiction to grant relief or
would it be denuded of the jurisdiction, merely because the property
42
was found to be a waqf property ? This is a question for which no
answer could be found if we adopt the restrictive interpretation. This
is why the subsequent decisions of this Court found an easy way out
by distinguishing Ramesh Gobindram. For instance, the decision in
Anis Fatma Begum distinguished Ramesh Gobindram on the ground
that Ramesh Gobindram was confined to an eviction dispute and that
the words “ any dispute, question or other matters ” appearing in Section
83(1) are words of wide connotation. Similarly, Akkode Jumayath Palli
Paripalana Committee , held a suit for permanent injunction to be
maintainable before a Waqf Tribunal, on the ground that Ramesh
Gobindram , was distinguished in Anis Fatma Begum . Likewise, the
ratio in Ramesh Gobindram was held in Kiran Devi to be incapable of
being invoked in a case where the original proceeding was first
instituted before the Civil Court and it was later transferred to the
Waqf Tribunal, which order of transfer had attained finality.
41. Having seen the extent to which this Court followed or
distinguished Ramesh Gobindram in subsequent decisions and having
seen that the basis of Ramesh Gobindram now stands removed by Act
27 of 2013, let us now turn our attention to the “ other matters” , which
43
are required by or under the Act to be determined by the Tribunal.
This is for reason that the second limb of Section 85, as we have seen
earlier, bars the jurisdiction of any Civil Court, Revenue Court and
any other authority, in respect of any dispute, question or other
matter which is required by or under this Act to be determined by the
Tribunal.
42. The various provisions of the Act which make a reference to the
Tribunal and the subject matter in relation to which such a reference
is made are presented in a tabular column as follows:
| Sl.N<br>o. | Provision of the Act | Subject Matter |
|---|
| 1. | Section 32(3) | Wherever the Waqf Board has settled any<br>scheme of management or issued a direction,<br>any person interested in the waqf or affected by<br>the settlement of a scheme or directions may<br>institute a suit before the Tribunal. |
| 2. | Section 33(4) | A mutawalli or other person aggrieved by an<br>order passed by the Chief Executive Officer<br>under Section 33(3) directing such person to<br>make payment of any amount misappropriated,<br>misapplied or fraudulently retained and to<br>restore the property of the waqf, may appeal to<br>the Tribunal. |
| 3. | Section 35(1) | The Tribunal is conferred with the power to<br>order conditional attachment of any property,<br>which, a mutawalli or any other person is likely<br>to dispose of with intent to delay or defeat the<br>execution of any order passed under Section 33. |
| 4. | Section 38(7) | Any Executive Officer or a member of the staff<br>who is aggrieved by an order of removal or<br>dismissal passed by the Waqf Board under<br>Section 38(6) has a right of appeal to the<br>Tribunal. |
| 5. | Section 39(3) | Whenever a building or other place which was |
44
| | earlier used for religious purpose or instruction<br>or for charity, has ceased to be used for that<br>purpose, the Board may make an application to<br>the Tribunal for an order for recovery of<br>possession. |
|---|
| 6. | Sections 40(2) and (4) | The decision of the Board on the question<br>whether a particular property is a waqf property<br>or not or whether a waqf is a Sunni Waqf or<br>Shia Waqf, is made subject to the decision of<br>the Tribunal under subsection (2). Similarly, a<br>direction issued by the Board to any Trust or<br>Society under Section 40(3) to get registered, is<br>made subject to the decision of the Tribunal<br>under subsection (4) |
| 7. | Section 48(2) | Whenever a Board examines the Auditor’s<br>report and passes orders on the basis of the<br>report, directing the recovery of any amount<br>certified by the Auditor, the mutawalli or any<br>other person aggrieved by such order may apply<br>to the Tribunal. |
| 8. | Section 52(4) | Wherever an order is passed by the Collector<br>under Section 52(2) directing the person in<br>possession of a property to deliver the property<br>to the Waqf Board, on the basis of a requisition<br>made by the Board, the person aggrieved by<br>such order may file an appeal to the Tribunal. |
| 9. | Section 54(3) | Whenever the Chief Executive Officer is satisfied<br>that there is an encroachment on a waqf<br>property, he may make an application to the<br>Tribunal for the removal of such encroachment. |
| 10. | Section 64(4) | A mutawalli removed from office for the reasons<br>contained in clauses (c) to (i) of subsection (1)<br>is entitled to file an appeal to the Tribunal. |
| 11. | Section 67(4) | Any person aggrieved by an order passed by the<br>Board superseding the Committee of<br>Management may file an appeal to the Tribunal<br>under the 1st proviso to subsection (4) of<br>Section 67. |
| 12. | Section 67(6) | Whenever a member of a Committee of<br>Management is removed by the Board, instead<br>of exercising the option of superseding the<br>Committee of Management, such removed<br>member may file an appeal to the Tribunal<br>under the 2nd proviso to subsection (6) of<br>Section 67. |
| 13. | Section 69(3) | Whenever a scheme is framed by the Board for<br>the administration of a waqf, which include a<br>provision for the removal of the mutawalli and<br>the appointment of his successor, a person |
45
| | aggrieved by the same may file an appeal to the<br>Tribunal. |
|---|
| 14. | Section 73(3) | Whenever a direction is issued by the Chief<br>Executive Officer to any bank to pay out of the<br>money belonging to the waqf, the contribution<br>leviable under Section 72, the bank may file an<br>appeal to the Tribunal. |
| 15. | Sections 94(1) & (2) | Whenever a mutawalli who is under an<br>obligation to perform a pious, religious or<br>charitable act fails to perform such act or<br>whenever a mutawalli willfully fails to discharge<br>any other duties imposed on him under the<br>waqf, an application could be made to the<br>Tribunal for appropriate directions to the<br>mutawalli. If it is a case covered by sub<br>section(1), the Tribunal may be moved by the<br>Board. If it is a case covered by subsection(2)<br>the Tribunal may be moved by the Board or any<br>person interested in the waqf. |
43. In sum and substance, the Act makes a reference, to 3 types of
remedies, namely that of a suit, application or appeal before the
Tribunal, in respect of the following matters:
(i) Any question or dispute whether a property specified as
waqf property in the list of waqfs is a waqf property or not [ Sections
6(1) & 7(1) ];
(ii) A question or dispute whether a waqf specified in the list of
waqfs is a Shia Waqf or Sunni Waqf [ Sections 6(1) & 7(1) ];
Challenge to the settlement of a scheme for management of
(iii)
the waqf or any direction issued in relation to such management
46
[ Section 32(3) ];
Challenge to an order for restitution/restoration of the
(iv)
property of the waqf or an order for payment to the waqf of any
amount misappropriated or fraudulently retained by the mutawalli
[ Section 33(4) ];
(v) Conditional attachment of the property of a mutawalli or
any other person [ Section 35(1) ];
(vi) Challenge to the removal or dismissal of an Executive
Officer or member of the staff [ Section 38(7) ];
Application by the Board, seeking an order for recovery of
(vii)
possession of a property earlier used for religious purpose but later
ceased to be used as such [ Section 39(3) ];
(viii) Challenge to a direction issued by the Board to any Trust
or Society to get it registered [ Section 40(4) ];
(ix) Challenge to an order for recovery of money from the
mutawalli, as certified by the Auditor [ Section 48(2) ];
Challenge to an order for delivery of possession of a
(x)
47
property issued by the Collector [ Section 52(4) ];
Application by the Chief Executive Officer for the removal of
(xi)
encroachment and for delivery of possession of a waqf property
( Section 54(3) ];
(xii) Challenge to the removal of mutawalli from office [ Section
];
64(4)
Challenge to an order superseding the Committee of
(xiii)
Management [ Section67(4) ];
Challenge to the removal of a member of the Committee of
(xiv)
Management [ Section 67(6) ];
(xv) Challenge to any scheme framed by the Board for the
administration of waqf, containing a provision for the removal of the
mutawalli and the appointment of the person next in hereditary
succession [ Section 69(3) ];
(xvi) Challenge to an order for recovery of contribution payable
by the waqf to the Board, from out of the monies lying in a bank
[ Section 73(3) ];
any dispute, question or other matter relating to a waqf
(xvii)
{section 83(1)}
48
any dispute, question or other matter relating to a waqf
(xviii)
property {section 83(1)}
(xix) eviction of a tenant or determination of the rights and
obligations of lessor and lessee of waqf property {section 83(1) after its
amendment under Act 27 of 2013 }
(xx) Whenever a mutawalli fails to perform an act or duty which
he is liable to perform [ Section 94 ].
44. If the Waqf Act, 1995 had merely stopped with a reference to the
matters listed above as capable of being adjudicated by the Tribunal,
there would have been no scope for any confusion. But unfortunately,
the Act makes a specific reference to court/civil Court also in certain
places. We have already seen Sections 86, 90 and 93 making specific
reference to “Court”. Section 68(6) goes a step further by making a
reference to ‘civil court’ and it reads as follows:
“ 68. Duty of mutawalli or committee to deliver possession of
records, etc.
(1) … … …
(2) … … …
(3) … … …
(4) … … …
(5) … … …
(6) Nothing contained in this section shall bar the
institution of any suit in a competent civil court by any
person aggrieved by any order made under this section, to
establish that he has right, title and interest in the
properties specified in the order made by any Magistrate
under subsection (2)”
49
45. A combined reading of Sections 68(6), 86, 90 and 93 goes to
show that the bar of jurisdiction under Section 85 does not apply at
least to the following matters, covered by Sections 68(6), 86 and 90 :
(i) Whenever a District Magistrate passes an order directing
the removed mutawalli or removed members of a Committee of
Management to deliver possession of the records, accounts and
properties of the waqf, to the successor or successor Committee of
Management, any person claiming that he has right, title and interest
in the properties specified in the order so passed by the Magistrate
can approach a civil court;
(ii) The Board itself may approach a civil court either to set
aside the sale in execution of a decree of civil court, of an immovable
property which is a waqf property, or to set aside the transfer of any
immovable property made by the mutawalli without the sanction of
the Board or to recover possession of the property so sold or
transferred, as the case may be;
(iii) The mutawalli is also empowered to approach the civil court
to recover possession of any immovable property which is a waqf
property, but which had been transferred by the previous mutawalli
50
without the sanction of the Board (this is implicit in Section 86);
A waqf property can be brought to sale in execution of a
(iv)
decree of a civil court or for the recovery of any revenue, cess, rates or
taxes due to the Government or any local authority, but such a
proceeding will be void if no notice thereof is given to the Board [ this is
implicit in Sections 90(2) & (3) ].
46. Thus the Act itself has created some confusion, leaving the rest
to the courts to compound the conundrum. Sadly, the Amendment Act
27 of 2013 also did not address the problem fully.
The case on hand
47. Having thus seen the statutory scheme, including the confusion
created seemingly or schemingly, let us now come back to the facts of
st
the case on hand. As we have seen in paragraph 3 above, the 1
respondent herein filed a suit on the file of a civil court praying for the
following reliefs:
A mandatory injunction directing the defendants to remove
(i)
the door and encroachment made by them behind the shops of the
plaintiff and to repair the broken back wall of the plaintiff’s shop; and
51
A perpetual injunction restraining the defendants from
(ii)
interfering with the plaintiff’s possession of the property described
therein.
48. Defendant No.1 who is the appellant herein filed a written
statement, admitting that Khasra Plot No.135/3 in respect of which
perpetual injunction was sought, was the property of Mirza Abid Ali
Beg and that it is a waqf property, of which Riyaz Ahmad was the
mutawalli.
49. After admitting the property to be a waqf property, the appellant
herein (defendant no.1) filed an application under Order VII, Rule 11
on the sole ground that a suit for injunction could be filed only before
the Waqf Tribunal. 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.
52
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.
50. 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 and that therefore the Tribunal
Anis Fatma Begum ,
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.
51. It is true that in vs. , a two
Punjab Waqf Board Sham Singh Harike
member bench of this Court considered Ramesh Gobindram, Anis
Fatma Begum as well as Akkode Jumayath Palli Paripalana Committee
and doubted in paragraph 43 (of the SCC report) the correctness of the
decision in Akkode Jumayath Palli Paripalana Committee on the
ground that it was not in accord with the ratio of Ramesh Gobindram .
53
But the said conclusion was on the basis of the observations in
Ramesh Gobindram to the effect that unless there is any provision in
the Waqf Act to entertain the dispute, the Tribunal cannot have
jurisdiction. The relevant portion of Paragraph 43 of Sham Singh
Harike reads as follows:
. The twoJudge Bench of this Court in the above case held the
“43
suit to be maintainable in the Waqf Tribunal and noted that the
ratio of Ramesh Gobindram [ Ramesh Gobindram v. Sugra
Humayun Mirza Waqf , (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553]
has been distinguished in Anis Fatma case [ W.B. Waqf
Board v. Anis Fatma Begum , (2010) 14 SCC 588 : (2012) 1 SCC
(Civ) 773]. But as per ratio of Ramesh Gobindram [ Ramesh
Gobindram v. Sugra Humayun Mirza Waqf , (2010) 8 SCC 726 :
(2010) 3 SCC (Civ) 553] unless there is any provision in the Waqf
Act, 1995 to entertain the said dispute only then the Waqf
Tribunal has jurisdiction, the suit filed for injunction was not
maintainable in the above case. Thus, what is held in the above
judgment by the twoJudge Bench is not in accord with the ratio
of Ramesh Gobindram [ Ramesh Gobindram v. Sugra Humayun
Mirza Waqf , (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] .”
52. 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
54
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
Additionally, this Court in refused to apply the
Committee . Kiran Devi,
ratio of Ramesh Gobindram, on the ground that the suit was originally
instituted before the Civil Court, but was later 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 .
53. 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
55
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).
54. 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 Syed
Mohideen and Another vs. Ramanathapura Peria Mogallam
5
that the Waqf Tribunal will have power to issue
Jamath and Others
temporary injunctions under Order XXXIX, Rule 1 CPC.
55. We must also point out at this stage that all the 14 decisions
which we have tabulated in paragraph 13 above, except the one at
6
Sl.No.13, namely vs.
Kiran Devi Bihar State Sunni Waqf Board ,
are decisions of two member benches. Kiran Devi was a decision of a
three member bench of this Court. In Kiran Devi, an objection to the
maintainability of the proceeding before the Waqf Tribunal was raised
on the basis of the decision in Ramesh Gobindram. But this court
refused to accept it on the ground that once the order of transfer of
5 (2010) 13 SCC 62
6 2021 SCC Online SC 280
56
the suit from the Civil Court to the Waqf Tribunal had attained
finality, the question of jurisdiction cannot be raised. If Waqf tribunal
had no jurisdiction at all, this court could not have held in Kiran Devi
that the order of transfer already passed cannot be undone by
accepting this plea. The decision of the three member bench in Kiran
Devi is significant in the sense that it recognized the fact that Ramesh
Gobindram cannot be used as a magic wand to toss the proceedings
relating to a waqf property from one forum to another. The dichotomy
created in some decisions of this court, between the properties which
are admitted to be waqf properties and properties which are disputed
to be so, is on account of the misapplication of the two limited
questions in Sections 6(1) and 7(1) to the whole of the Act including
section 83. At the cost of repetition we should point out that Section
83(1) provides for the determination of any dispute, question or any
other matter, (i) relating to a waqf and (ii) relating to a waqf property.
This prescription cannot be taken to have been curtailed or
circumscribed by Sections 6(1) and 7(1), to come to the conclusion
that the Tribunal will assume jurisdiction only when a property is
disputed to be a waqf property.
56. In the case on hand, the property is admitted to be a waqf
57
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 ignore the mandate of section
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 No.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.
57. In view of the above, the appeal is allowed and the judgment and
decree of the High Court are set aside. The trial court shall return the
plaint to the plaintiff, for presentation to the jurisdictional Waqf
Tribunal. Since pleadings are complete, the Waqf Tribunal shall
proceed from the stage of framing of issues and dispose of the suit
within a period of 6 months. There will no order as to costs.
58
…..…………....................J.
(Hemant Gupta)
.…..………...................... J.
(V. Ramasubramanian)
New Delhi
October 28, 2021
59