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TMI Blog2010 (9) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction is ousted. The difficulty, however, arises on account of the fact that apart from Section 6(5) which bars the jurisdiction of the Civil Courts to determine matters referred to in Section 6(1), Section 85 of the Act also bars the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute, question or matter relating to a wakf property. In our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends 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. 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly Wakf properties. The Wakf Tribunal before whom the suits for eviction of the tenants were filed answered the question regarding its jurisdiction in the affirmative and decreed the suit filed against the appellant. Aggrieved by the said orders the appellants filed revision petitions before the High Court of Andhra Pradesh, inter alia, contending that the Tribunal was in error in assuming jurisdiction and directing their eviction. Dismissal of the Revision Petitions by the High Court has led to the filing of the present appeals as already noticed above. 2. Whether or not the Wakf Tribunal can entertain and adjudicate upon a dispute regarding eviction of a tenant holding wakf property under the Wakf Board, would depend upon the scheme of the Wakf Act, 1995 and express or implied exclusion of the jurisdiction of the Civil Courts to entertain any such dispute. If the Act excludes the jurisdiction of the Civil Courts whether such exclusion is absolute and all pervasive or limited only to a particular class of disputes is also an incidental question that may have to be addressed. There is a cleavage in the judicial opinion expressed on these questions by different High Courts in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto were for a long time governed by the Wakf Act, 1954. The need for a fresh legislation on the subject was, however, felt because of the deficiencies noticed in the working of the said earlier enactment especially those governing the Wakf Boards, their power of superintendence and control over the management of individual wakfs. Repeated amendments to the 1954 Act, having failed to provide effective answers to the questions that kept arising for consideration, the Parliament had to bring a comprehensive legislation in the form of Wakf Act 1995 for better administration of wakfs and matters connected therewith or incidental thereto. Chapter I of the 1995 Act deals with Preliminaries like definitions, title, extent and commencement and application of this Act. Chapter II provides for preliminary survey of wakfs, publication of list of wakfs, disputes regarding wakfs and also the powers of the Tribunal to determine such disputes. Chapter III deals with Central Wakf Council while Chapter IV deals with establishment of Boards and their functions. Chapter V, VI and VII regulate the registration of Wakfs and maintenance of accounts thereof and the finances of the Wakf Board. Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To the same effect are the decisions of this Court in Pabbojan Tea Co. Ltd. v. Dy. Commr (1968) 1 SCR 260, Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 SC 2508, Dhulabhai v. State of M.P. (1968) 3 SCR 662, Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, State of A.P. v. Manjeti Laxmi Kantha Rao (2000) 3 SCC 689, Dhruv Green Field Ltd. v. Hukam Singh and Ors. (2002) 6 SCC 416, Dwarka Prasad Agarwal v. Ramesh Chandra Agarwala, AIR 2003 SC 2696 and State of Tamil Nadu v. Ramalinga Samigal Madam AIR 1986 SC 794. 8. Let us now see whether the respondent-Wakf Board who claims exclusion of jurisdiction of Civil Court has discharged the onus that lay upon it. Section 6 of the Act which bears direct relevance to that question may at this stage be extracted: Section 6. Disputes regarding wakfs.- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. 10. We may at this stage refer to Section 7 of the Act which provides for the forum for determination of questions referred to therein and arising after the commencement of this Act. What is important is that the questions referred to in Section 7(1) are the very same questions that are referred to in Section 6(1) with the only difference that Section 7(1) refer to the said questions arising after the commencement of the Act. Section 7 is extracted below: Section 7. Power of Tribunal to determine disputes regarding wakfs.- (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, 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 a case of the list of wakfs relating to any part of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property. 13. We may at this stage usefully digress from the core issue only to highlight the fact that Sections 6(1) and the proviso thereto has fallen for interpretation of this Court on a few occasions. In Board of Muslim Wakfs Rajasthan v. Radha Kishan and Ors. (1979) 2 SCC 468 one of the questions that fell for determination was, who are the parties that could be taken to be concerned in a proceeding under sub-section(1) of Section 6 of the Act. This Court held that under Section 6(1) the Board or the mutawalli of the wakf or any person interested therein is entitled to file a suit but the word therein following the expression any person interested must necessarily refer to the word wakf which immediately precedes it. The object underlying the proviso observed, this Court was to confine the power to file a suit to the mutawalli and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises. 14. To the same effect is the decision of this Court in Punjab Wakf Board v. Gram Panchayat Alias Gram Sabha (2000) 2 SCC 121. 15. The exclusion of the jurisdiction of the Civil Courts to adjudicate upon disputes whether a particular property specified in the wakf list is or is not a wakf property or whether a wakf specified in list is a Shia wakf or a Sunni wakf is clear and presents no difficulty whatsoever. The difficulty, however, arises on account of the fact that apart from Section 6(5) which bars the jurisdiction of the Civil Courts to determine matters referred to in Section 6(1), Section 85 of the Act also bars the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute, question or mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order for the recovery of the amount or property which has been misappropriated, misapplied or fraudulently retained. Sub-section (4) of Section 33 then entitles the aggrieved person to file an appeal to the Tribunal and empowers the Tribunal to deal with and adjudicate upon the validity of the orders passed by the Chief Executive Officer. 17. Similarly under Section 35 the Tribunal may direct the mutawalli or any other person concerned to furnish security or direct conditional attachment of the whole or any portion of the property so specified. 18. Section 47 of the Act requires the accounts of the wakfs to be audited whereas Section 48 empowers the Board to examine the audit report, and to call for an explanation of any person in regard to any matter and pass such orders as it may think fit including an order for recovery of the amount certified by the auditor under Section 47(2) of the Act. The mutawalli or any other person aggrieved by any such direction has the right to appeal to the Tribunal under Section 48. Similar provisions giving powers to the Wakf Board to pass orders in respect of matters stipulated therein are found in Sections 51, 54, 61, 64, 67, 72 and 73 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this Act of each of such Tribunals. (2) Any mutawalli person interested in a wakf 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 wakf. (3) Where any application made under sub- section (1) relates to any wakf 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 wakf 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 wakf or any other person interested in the wakf or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty under the Act and define the local limits of their jurisdiction. Sub-section (2) of Section 83 permits any mutawalli or other person interested in a wakf or any person aggrieved of an order made under the Act or the rules framed thereunder to approach the Tribunal for determination of any dispute, question or other matter relating to the wakf. What is important is that the Tribunal can be approached only if the person doing so is a mutawalli or a person interested in a wakf or aggrieved by an order made under the Act or the rules. The remaining provisions of Section 83 provide for the procedure that the Tribunal shall follow and the manner in which the decision of a Tribunal shall be executed. No appeal is, however, maintainable against any such order although the High Court may call for the records and decide about the correctness, legality or propriety of any determination made by the Tribunal. 21. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends 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 Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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