When jurisdiction of civil court is not barred to try dispute relating wakf Act?

 The learned counsel for
the applicant argued on the basis that the Waqf (Amendment)
Act, 2013 has been enforced on the day it was gazetted i.e.
23.9.2013 to claim that now such suit after amendment can be
filed only in Waqf Tribunal. But, the fact remains that the
amendment was not enforced on 23.9.2013. Gazette of India
(Extraordinary), Part II S/3, dated 29.10.2013, S.O.3292(E),
issued by Ministry of Minority Affairs, shows that, in exercise
of powers conferred by Sub-section (2) of Section 1 of the Waqf
(Amendment) Act, 2013, the Central Government appointed the
first day of November 2013 as the date on which the provisions
of the said Amendment Act shall come into force. Thus, the
amendment to Section 83(1) of the Waqf Act relied on by the
learned counsel for applicant came into force subsequently and
the suit was filed earlier. Even the impugned order was passed
on 28.10.2013 before the amendment came into force. The
impugned order is based on the judgment of the Hon'ble
Supreme Court in the matter of Ramesh Govindram (supra).
Nothing is shown that the Amendment Act requires transfer of

pending proceedings relating to eviction of tenant or
determination of rights and obligations of the lessor and lessee
to Waqf Tribunal.
Looking to the observations of the Hon'ble
Supreme Court referred above (in para 6 of this judgment), no
fault can be found with the impugned order. Consequently,
there is no substance in this Civil Revision Application. The
Civil Revision Application stands rejected


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.292 OF 2013

Sohail Azam Azimuddin, Vs  Mohammed Atiq-Ur-Rehman 


CORAM: A.I.S. CHEEMA, J.

Date of pronouncing judgment : 17/2/2014
Citation;2015(1)ALLMR701



1. The civil revision application is admitted and heard
finally with the consent of learned counsel for both sides.

2. The Civil Revision Application has been filed by Sohail
Azam, original defendant No.1 in Regular Civil Suit No.103/2013
(I will refer him as defendant). The Regular Civil Suit has been
filed in the Court of Civil Judge, Senior Division, Biloli by
respondent No.1 (hereinafter referred to as "plaintiff" ). It is a
suit for declaration of subsistence of lease and perpetual
injunction. Plaintiff sought temporary injunction vide application
Exhibit 6 and defendant opposed the application vide reply
Exhibit 29, and raised an objection to the jurisdiction of the Court
on the ground that the dispute raised by the plaintiff is triable
before the Waqf Tribunal in accordance with the provisions of
The Waqf Act, 1995 and so the jurisdiction of the Civil Court was
excluded. Other defendants earlier arrayed and in the suit as
defendants- the Wakf Board and Wakf Officer, were deleted and
now Collector, Nanded and Taluka Inspector of Land Records,
Degloor remain as defendant Nos.2 and 3 respectively. The trial
Court heard the rival submissions and came to the conclusion
that the scheme of the Waqf Act does not oust the jurisdiction of
the Civil Court to try and entertain the suit of present nature.
Being aggrieved by the order, defendant has filed this revision.
3. As question of jurisdiction of the Civil Court to
entertain the suit has been raised, the contents of the plaint are
material. Perusal of the plaint in brief shows that plaintiff

claimed that the defendant is Mutawalli Inamdar of Dargah
Murtuza Shah Wali, situated at Degloor. Defendant entered into
lease deed of Block No.17, admeasuring 2 Hectors 80 R, land
situated at Bagan Takli, Taluka Degloor in favour of the plaintiff
by lease deed dated 29.6.1998 for a period of 99 years against
amount of Rs.70,000=00. There were some disputes in respect of
the open site and defendant succeeded in taking possession of the
suit area, but was in financial problems. Defendant constructed
some R.C.C. rooms and executed lease deed styled as ‘agreement’
on 29.6.1998 about those rooms and suit land Gat No.17,
admeasuring 2 Hectors 80 R. Defendant had agreed to bring the
required permission from Waqf Board. Plaintiff received
possession of the suit land Block No.17 of Bagan Takli and was in
possession since execution of the agreement of lease. Plaint
contends that, proceeding to regularize and grant of
"Bhadepatta" was started by plaintiff before the Waqf Board.
Accordingly, the Board, on 31.12.2011 granted lease Bhadepatta
to plaintiff vide No.Waqf/Atiyat/4906, dated 31.12.2011.
Defendant, on instigation by adversaries, became hostile to
plaintiff and quoted false facts in application to Chief Executive
Officer. Plaint gives particulars regarding how Chief Executive
Officer cancelled the Bhadepatta on 28.12.2012. It is claimed
that, against the cancellation of Bhadepatta by Chief Executive
Officer, Writ Petition No.59/2013 was filed and as per directions

of the Court, plaintiff approached Waqf Tribunal, but Waqf
Tribunal did not grant stay or injunction, due to which another
Writ Petition (actually it is Civil Revision Application) was filed
bearing No.182/2013. The High Court set aside order of Chief
Executive Officer canceling the Bhadepatta and directed
maintenance of status quo and also directed the Chief Executive
Officer to make enquiry. The plaintiff brought the suit with
following prayers :
(A) That, it may be declared that the lease deed of Block No.
17 measuring 2H-80 Ar village Bagan Takli Tq. Degloor
executed on dt. 29.6.98 by defendant No.1 in favour of
plaintiff is valid.
(B) That, declaration that the lease (lawni) of suit land block
No.17 area 2H 80 Ars of Bagan Takli Tq. Degloor
granted by defendant No.2 i.e. C.E.O., M.S. Wakf Board,
Aurangabad on 31.12.2011 for the period of three years
for Rs.7000/- each year and initially for a period of 11
months for Rs.7000/- and later on to continue by such
order and confirming the possession already existing
with the plaintiff is legally enforceable and given effect
thereto in favour of plaintiff and the same may not be
declared invalid.
(C) That, the defendant No.1 may be restrained perpetually
in the peaceful possession of the plaintiff over the suit

land Block No.17 measuring 2H 80 Ar village Bagan
Takli, by issue of injunction order or status quo about
possession may be ordered.
(D) That, defendant No.3 may be restrained not to measure
the land Block No.17 of Bagan Takli.
4. The plaint gives various details. Above is the
substance of the plaint. The plaintiff had filed Writ Petition No.
59/2013 claiming that the order dated 28.12.2012 of the Chief
Executive Officer regarding cancellation of Bhadepatta should be
quashed and set aside. The Division Bench of this Court, vide
order dated 17.4.2013, granted leave to withdraw the petition
with liberty to avail appropriate remedy. The plaintiff then filed
Application No.64/2013 before the Waqf Tribunal under Section
83(2) of the Waqf Act, claiming that defendant, who had entered
into agreement of lease for 99 years, had failed to obtain
necessary permission from Waqf Board and so, the plaintiff had
moved the District Waqf Officer, and the Waqf Board, after
following procedure, vide order dated 31.12.2011, granted suit
land on the basis of lease to the plaintiff for a period of three
years, and the plaintiff was directed to pay amount in three
installments, and the District Waqf Officer was to execute
document for every 11 months. The Application No.64/2013
before the Waqf Tribunal stated as to how the Bhadepatta came
to be cancelled by Chief Executive Officer vide order dated
28.12.2012 and that while canceling the Bhadepatta the plaintiff
had not been heard. The plaintiff’s application to the Waqf
Tribunal for staying the order of Chief Executive Officer was
rejected and plaintiff filed Civil Revision Application No.
182/2013. This Court, on 22.7.2013, quashed and set aside the
order dated 28.12.2012 of the Chief Executive Officer. It was
made clear that this Court had not entered into merits or
correctness of the order and the same was set aside only on the
ground that the plaintiff had not been heard. The Chief Executive
Officer was directed to hear the parties and take fresh decision
within six weeks. Parties were directed to maintain status quo till
decision afresh by the Chief Executive Officer. The proceedings
before the Waqf Tribunal i.e. Waqf Application No.64/2013 were
directed to stand disposed of.
5. Although the matter had been relegated to Chief
Executive Officer with regard to the orders passed by him with
reference to Bhadepatta, dated 13.12.2011, prayer (B) as above
was made in the suit. At the time of hearing of present revision,
learned counsel for respondent-plaintiff submitted that plaintiff is
giving up prayer (B) as made in the suit. Thus, what survives of
the suit as brought before the trial Court is the prayer of plaintiff
to declare that lease dated 29.6.1998 executed by defendant in

favour of plaintiff is valid and that defendant should not obstruct
his possession got under the lease.
6. Regarding jurisdiction, the trial Court discussed the
pleadings in para 9 of the order. It recorded that the dispute
raised in the plaint appears to be a dispute between the tenant
and the lessor, and the dispute is regarding protection of
possession allegedly handed over to the plaintiff in the capacity of
lessee. The trial Court then relied on the case of Ramesh
Govindram (deceased, by L.Rs.) Vs. Sugra Humayun Mirza Wakf,
reported in AIR 2010 (SC) 2897. Portion was extracted from the
judgment of the Hon’ble Supreme Court relating to various
provisions of the Waqf Act and where Hon’ble Supreme Court
held that :
“The Act does not provide for any proceeding
before the Tribunal for determination of 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 tenant
from what is admittedly Wakf property could,
therefore, be filed only before the Civil Court
and not before the Tribunal.”
In view of this judgment of the Hon’ble Supreme
Court, the trial Court found that it has jurisdiction and decided
the preliminary issue accordingly.
7. At the time of arguments, the learned counsel for

applicant-defendant submitted that the judgment in the matter
of "Ramesh Govindram" (supra) would now no more be
applicable. He submitted that, Section 83 of the Waqf Act has
now been amended so as to include dispute relating to eviction
of tenant or determination of rights and obligations of the lessor
and lessee within jurisdiction of the Tribunal.
8. The learned counsel for applicant submitted that,
the Waqf (Amendment) Act of 2013 has been enforced on 23rd
September 2013 and the suit was filed on 24th September
2013 and thus, if amended Section 83(1) is read with Section
85 of the Waqf Act, the Civil Court can no more deal with
matters relating to eviction of tenant or determination of rights
and obligations of the lessor and the lessee of Waqf property.
Learned counsel for respondents claimed that, the suit was
filed on 21.9.2013. The learned counsel thus tried to show
that, the suit was filed before the amendment came into force
and thus, according to him, the orders passed by the trial Court
were correct as they were based on the Supreme Court
judgment. According to learned counsel for respondents, as
the suit was filed before the amendment came into force, it was
maintainable before the Civil Judge.
9. The trial Court record was called and from the

record, what can be ascertained is that the presentation of the
suit was accepted on 24.9.2013, after the plaintiff could tide
over obstructions to the institution of suit in view of Section 80
of CPC and Section 89 of the Waqf Act. I need not, however,
enter into the details of the suit whether the same was
presented on 21.9.2013 or 24.9.2013. The learned counsel for
the applicant argued on the basis that the Waqf (Amendment)
Act, 2013 has been enforced on the day it was gazetted i.e.
23.9.2013 to claim that now such suit after amendment can be
filed only in Waqf Tribunal. But, the fact remains that the
amendment was not enforced on 23.9.2013. Gazette of India
(Extraordinary), Part II S/3, dated 29.10.2013, S.O.3292(E),
issued by Ministry of Minority Affairs, shows that, in exercise
of powers conferred by Sub-section (2) of Section 1 of the Waqf
(Amendment) Act, 2013, the Central Government appointed the
first day of November 2013 as the date on which the provisions
of the said Amendment Act shall come into force. Thus, the
amendment to Section 83(1) of the Waqf Act relied on by the
learned counsel for applicant came into force subsequently and
the suit was filed earlier. Even the impugned order was passed
on 28.10.2013 before the amendment came into force. The
impugned order is based on the judgment of the Hon'ble
Supreme Court in the matter of Ramesh Govindram (supra).
Nothing is shown that the Amendment Act requires transfer of

pending proceedings relating to eviction of tenant or
determination of rights and obligations of the lessor and lessee
to Waqf Tribunal.
Looking to the observations of the Hon'ble
Supreme Court referred above (in para 6 of this judgment), no
fault can be found with the impugned order. Consequently,
there is no substance in this Civil Revision Application. The
Civil Revision Application stands rejected. No order as to
costs.
(A.I.S. CHEEMA, J.)