The suit for eviction against the tenant relating to a waqf property is exclusive triable by the civil court as such suit is not covered by the disputes specified in Sections 6 and 7 of the Act.
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLAE JURISDICTION
CIVIL APPEAL NOS. 4250-4252 OF 2014
(arising out of S.L.P. (Civil) Nos. 23157-23159 of 2012)
FASEELA M. Appellant(s)
VERSUS
MUNNERUL ISLAM MADRASA COMMITTEE & ANR. Respondent(s)
Dated; MARCH 31, 2014
Citation;2014(5) ALLMR971 SC
R.M. LODHA, J.
Leave granted.
2. Sections 6 and 7 of the Waqf Act, 1995 (for short, 'Act')
provide for determination of certain disputes regarding auqaf only by
the Waqf Tribunal. These provisions as amended by Act 27/2013 read as
under :
“Section 6. Disputes regarding auqaf.- (1) If any question
arises whether a particular property specified as waqf property
in the list of auqaf is waqf property or not or whether a waqf
specified in such list is a Shia waqf or Sunni waqf, the Board
or the mutawalli of the waqf or any person aggrieved may
institute a suit in a Tribunal for the decision of the question
and the decision of the Tribunal in respect of such matter shall
be final:
Provided that no such suit shall be entertained by the
Tribunal after the expiry of one year from the date of the
publication of the list of auqaf.
Provided further that no suit shall be instituted before
the Tribunal in respect of such properties notified in a second
or subsequent survey pursuant to the provisions contained in sub-
section (6) of section 4.
(2) Notwithstanding anything contained in sub-section (1), no
proceeding under this Act in respect of any waqf shall be stayed
by reason only of the pendency of any such suit or of any appeal
or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to any
suit under sub- section (1) and no suit, prosecution or other
legal proceeding shall lie against him in respect of anything
which is in good faith done or intended to be done in pursuance
of this Act or any rules made thereunder.
(4) The list of auqaf shall, unless it is modified in pursuance
of a decision or the Tribunal under sub-section (1), be final
and conclusive.
(5) On and from the commencement of this Act in a State, no suit
or other legal proceeding shall be instituted or commenced in a
court in that State in relation to any question referred to in
sub-section (1).
Section 7. Power of Tribunal to determine disputes regarding
auqaf.- (1) If, after the commencement of this Act, any question
or dispute arises, whether a particular property specified as
waqf property in a list of auqaf is waqf property or not, or
whether a waqf specified in such list is a Shia waqf or a Sunni
waqf, the Board or the mutawalli of the waqf, or any person
aggrieved by the publication of the list of auqaf under section
5 therein, may apply to the Tribunal having jurisdiction in
relation to such property, for the decision of the question and
the decision of the Tribunal thereon shall be final:
Provided that-
(a) in the case of the list of auqaf relating to any part of the
State and published after the commencement of this Act no such
application shall be entertained after the expiry of one year
from the date of publication of the list of auqaf; and
(b) in the case of the list of auqaf relating to any part of the
State and published at any time within a period of one year
immediately preceding the commencement of this Act, such an
application may be entertained by Tribunal within the period of
one year from such commencement:
Provided further that where any such question has been
heard and finally decided by a civil court in a suit instituted
before such commencement, the Tribunal shall not re-open such
question.
(2) Except where the Tribunal has no jurisdiction by reason of
the provisions of sub-section (5), no proceeding under this
section in respect of any waqf shall be stayed by any court,
tribunal or other authority by reason only of the pendency of
any suit, application or appeal or other proceeding arising out
of any such suit, application, appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party to any
application under sub-section (1).
(4) The list of auqaf and where any such list is modified in
pursuance of a decision of the Tribunal under sub- section (1),
the list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any
matter which is the subject-matter of any suit or proceeding
instituted or commenced in a civil court under sub-section (1)
of section 6, before the commencement of this Act or which is
the subject-matter of any appeal from the decree passed before
such commencement in any such suit or proceeding or of any
application for revision or review arising out of such suit,
proceeding or appeal, as the case may be.
(6) The Tribunal shall have the powers of assessment of damages
by unauthorised occupation of waqf property and to penalise such
unauthorised occupants for their illegal occupation of the waqf
property and to recover the damages as arrears of land revenue
through the Collector:
Provided that whosoever, being a public servant, fails in
his lawful duty to prevent or remove an encroachment, shall on
conviction be punishable with fine which may extend to fifteen
thousand rupees for each such offence.”
3. Thus, Sections 6 and 7 of the Act not only confer exclusive
jurisdiction upon the Waqf Tribunal for determination of certain
disputes regarding auqaf but also take jurisdiction of the civil court
away in respect of such disputes.
4. Munnerul Islam Madrasa Committee – respondent No. 1 – filed
a suit for eviction against the appellant before the Waqf Tribunal,
inter alia, setting up the plea that respondent No. 1 is the landlord
and the appellant is the tenant in the subject property. The subject
property is described as waqf property.
5. The appellant denied that the subject property was waqf
property. He also challenged the jurisdiction of the Waqf Tribunal in
determining the dispute between the parties.
6. On 18.09.2010, the Waqf Tribunal, after hearing the
parties, directed the plaint to be returned to the civil court having
jurisdiction in the matter. However, on the next date, i.e., on
19.09.2010, the Waqf Tribunal suo motu recalled the order passed on
18.09.2010 and passed the following order :-
“Called. It seems that issue framed included whether property is
Wakf property or not. Hence to that extent this Tribunal have
jurisdiction. But due to oversight and mistake it is ordered to
return the Plaint. That order is an error apparent on face of
records and suo motu reviewed. Call on 30.9.2010.”
7. The appellant filed two revision petitions before the High
Court – one, against the order dated 19.09.2010 and the other, for
declaration that the Waqf Tribunal has no jurisdiction in the matter.
8. The High Court dismissed both revision petitions and one
original petition by the impugned order giving rise to the present
Appeals, by special leave.
9. The question, for determination in these appeals, is as to
whether the suit for eviction by the landlord against the tenant
relating to waqf property is triable by the civil court or the suit
lies within the exclusive jurisdiction of the Waqf Tribunal.
10. For determination of the above question, besides Sections 6
and 7, the two other provisions which deserve to be noticed are
Sections 83 and 85 of the Act. These provisions read :
“Section 83. Constitution of Tribunals, etc.- (1) The State
Government shall, by notification in the Official Gazette,
constitute as many Tribunals as it may think fit, for the
determination of any dispute, question or other matter relating
to a waqf or waqf property, eviction of a tenant or
determination of rights and obligations of the lessor and the
lessee of such property, under this Act and define the local
limits and jurisdiction of such Tribunals.
(2) Any mutawalli or person interested in a waqf or any other
person aggrieved by an order made under this Act, or rules made
thereunder, may make an application within the time specified in
this Act or where no such time has been specified, within such
time as may be prescribed, to the Tribunal for the determination
of any dispute, question or other matter relating to the waqf.
(3) Where any application made under sub- section (1) relates to
any waqf property which falls within the territorial limits of
the jurisdiction of two or more Tribunals, such application may
be made to the Tribunal within the local limits of whose
jurisdiction the mutawalli or any one of the mutawallis of the
waqf actually and voluntarily resides, carries on business or
personally works for gain, and, where any such application is
made to the Tribunal aforesaid, the other Tribunal or Tribunals
having jurisdiction shall not entertain any application for the
determination of such dispute, question or other matter.
Provided that the State Government may, if it is of
opinion that it is expedient in the interest of the waqf or any
other person interested in the waqf or the waqf property to
transfer such application to any other Tribunal having
jurisdiction for the determination of the dispute, question or
other matter relating to such waqf or waqf property, transfer
such application to any other Tribunal having jurisdiction, and,
on such transfer, the Tribunal to which the application is so
transferred, shall deal with the application from the stage
which was reached before the Tribunal from which the application
has been so transferred, except where the Tribunal is of opinion
that it is necessary in the interests of justice to deal with
the application afresh.
(4) Every Tribunal shall consist of-
(a) one person, who shall be a member of the State
Judicial Service holding a rank, not below that of a District,
Sessions or Civil Judge, Class I, who shall be the Chairman;
(b) one person, who shall be an officer from the
State Civil Services equivalent in rank to that of the
Additional District Magistrate, Member;
(c) one person having knowledge of Muslim law and
jurisprudence, Member;
and the appointment of every such person shall be made
either by name or by designation.
(4A) The terms and conditions of appointment including the
salaries and allowances payable to the Chairman and other
members other than persons appointed as ex officio members shall
be such as may be prescribed.
(5) The Tribunal shall be deemed to be a civil court and shall
have the same powers as may be exercised by a civil court under
the Code of Civil Procedure, 1908 (5 of 1908), while trying a
suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), the Tribunal shall follow such
procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon
the parties to the application and it shall have the force of a
decree made by a civil court.
(8) The execution of any decision of the Tribunal shall be made
by the civil court to which such decision is sent for execution
in accordance with the provisions of the Code of Civil
Procedure, 1908 (5 of 1908).
(9) No appeal shall lie against any decision or order whether
interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the
application of the Board or any person aggrieved, call for and
examine the records relating to any dispute, question or other
matter which has been determined by the Tribunal for the purpose
of satisfying itself as to the correctness, legality or
propriety of such determination and may confirm, reverse or
modify such determination or pass such other order as it may
think fit.
Section 85. Bar of jurisdiction of civil courts.- No suit or
other legal proceeding shall lie in any civil court, revenue
court and any other authority in respect of any dispute,
question or other matter relating to any waqf, waqf property or
other matter which is required by or under this Act to be
determined by a Tribunal.”
11. In Ramesh Gobindram (Dead) through LRS. Vs. Sugra Humayun
Mirza Wakf1, this Court considered Sections 6(1), 6(5), 7(1), 7(5),
83, 85 and few other provisions of the Act and explained the
jurisdiction of the Waqf Tribunal vis-a-vis Civil Court. As regards
the suit for eviction against the tenant(s) of waqf property, the
Court held that such suit is triable by the Civil Court as it is not
covered by Sections 6 and 7 of the Act.
12. The Court in para 35, page 738 held as follows :
“35. In the cases at hand the Act does not provide for any
proceedings before the Tribunal for determination of a dispute
concerning the eviction of a tenant in occupation of a wakf
property or the rights and obligations of the lessor and the
lessees of such property. A suit seeking eviction of the tenants
from what is admittedly wakf property could, therefore, be filed
only before the civil court and not before the Tribunal.”
13. Mr. Renjith Marar, learned counsel for respondent No. 1,
submits that in a subsequent decision in Bhanwar Lal & Anr. Vs.
Rajasthan Board of Muslim Wakf and Ors.2, this Court has taken a
different view. According to him, Section 85 of the Act leaves no
manner of doubt that the Waqf Tribunal has jurisdiction to decide the
suit for eviction. It is so because one of the questions for
determination is whether the suit property is waqf property or not.
14. The Court in Bhanwar Lal2 considered the decision in Ramesh
Gobindram1 at quite some length. Besides Ramesh Gobindram1, the Court
in Bhanwar Lal2 also considered two other decisions, one, Board of
Wakf, West Bengal & Anr. Vs. Anis Fatma Begum & Anr.3 and two,
Sardar Khan and Ors. Vs. Syed Nazmul Hasan (Seth) and Ors.4. In Anis
Fatma Begum3, this Court had held that the Waqf Tribunal constituted
under Section 83 of the Act will have exclusive jurisdiction to deal
with the questions relating to demarcation of the waqf property.
15. Pertinently, the Court in Bhanwar Lal2 held that the suit
for cancellation of sale deed was triable by the civil court.
16. Bhanwar Lal2 follows the line of reasoning in Ramesh
Gobindram1. The decision of this Court in Bhanwar Lal2 is not in any
manner inconsistent or contrary to the view taken by this Court in
Ramesh Gobindram1. We fully concur with the view of this Court in
Ramesh Gobindram1, particularly with regard to construction put by it
upon Sections 83 and 85 of the Act. In Ramesh Gobindram1, the Court
said :-
“32. There is, in our view, nothing in Section 83 to suggest
that it pushes the exclusion of the jurisdiction of the civil
courts extends (sic) beyond what has been provided for in
Section 6(5), Section 7 and Section 85 of the Act. It simply
empowers the Government to constitute a Tribunal or Tribunals
for determination of any dispute, question of other matter
relating to a wakf or wakf property which does not ipso facto
mean that the jurisdiction of the civil courts stands
completely excluded by reasons of such
establishment.
33. It is noteworthy that the expression "for the
determination of any dispute, question or other matter relating
to a wakf or wakf property" appearing in Section 83(1) also
appears in Section 85 of the Act. Section 85 does not, however,
exclude the jurisdiction of the civil courts in respect of any
or every question or disputes only because the same relates to a
wakf or a wakf property. Section 85 in terms provides that the
jurisdiction of the civil court shall stand excluded in relation
to only such matters as are required by or under this Act to be
determined by the Tribunal.
34. The crucial question that shall have to be answered in
every case where a plea regarding exclusion of the jurisdiction
of the civil court is raised is whether the Tribunal is under
the Act or the Rules required to deal with the matter sought to
be brought before a civil court. If it is not, the jurisdiction
of the civil court is not excluded. But if the Tribunal is
required to decide the matter the jurisdiction of the Civil
Court would stand excluded.”
17. The matter before us is wholly and squarely covered by
Ramesh Gobindram1. The suit for eviction against the tenant relating
to a waqf property is exclusive triable by the civil court as such
suit is not covered by the disputes specified in Sections 6 and 7 of
the Act.
18. In view of the above, the impugned order cannot be
sustained and it is liable to be set aside and is set aside. The
order passed by the Waqf Tribunal on 19.09.2010 is also set aside. The
order of the Waqf Tribunal dated 18.09.2010 is restored. The Civil
Court shall now proceed with the suit accordingly.
19. Civil Appeals are allowed with no order as to costs.
.......................J.
( R.M. LODHA )
NEW DELHI; .......................J.
MARCH 31, 2014 ( KURIAN JOSEPH )
1 . (2010) 8 SCC 726
2 . 2013 (11) SCALE 210
3 . (2010) 14 SCC 588
4 . (2007) 10 SCC 727
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