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TMI Blog2019 (2) TMI 1878X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010. The view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be owner of land measuring 269 kanals 7 marlas, comprising in khewat No.462, khatauni Nos.589, 593, 599 and 596 in khasra Nos.103, 105, 102 min, 104, 106, of village Birmi, Tehsil and District Ludhiana. The appellant had let out the above-mentioned land to Sham Singh and his wife Kuldeep Kaur for cultivation of the land. The lessee deposited the rent for few years and thereafter initiated litigation against the interest of the Board which was decided in favour of the Board. The appellant filed Civil Suit No.250 of 2001 in the Court of Civil Judge, Senior Division for the grant of permanent injunction restraining the respondents from raising any construction and changing the position from agricultural to residential of the property in any manner. The respondents filed written statement challenging the maintainability of the suit. The title of the appellant was denied in the written statement. After the constitution of the Wakf Tribunal, the suit was transferred to the Wakf Tribunal and renumbered as RBT No.84/2006. The respondent filed an application before the Tribunal for rejection of the plaint on the ground that the Tribunal has no jurisdiction to entertain the suit and the Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready to pay the rent due to the plaintiff and is still ready to pay and tender the rent due to the plaintiff even in the Court but the plaintiff is not accepting the same intentionally just to seek possession of the tenanted premises in an illegal manner. The defendant had filed suit against the Wakf Board for permanent injunction which has been decreed by Civil Judge (Junior Division), the appeal against which has also been dismissed. 6. The Wakf Tribunal vide its judgment dated 03.06.2009 decreed the original suit. Following decree has been passed by the Tribunal: 17. Keeping in view the findings on the above issues, the suit of the plaintiff is decreed for possession of the suit land and the same is also decreed for permanent injunction restraining the defendant from changing the nature of the suit land with costs of the suit. Decree sheet be drawn. File be consigned to the record room. 7. Against the judgment of the Wakf Tribunal decreeing the suit, the defendant filed Civil Revision No.6157 of 2009, which has been allowed by the High court by following order: In view of the judgment delivered by the Apex Court in case Ramesh Gobindram (dead) through L.Rs. vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to later. 13. Learned counsel for the respondent, Sham Singh Harike, refuting the submission of the counsel of the appellant contends that the judgment of this Court in Anis Fatma Begum (supra) does not overrule Ramesh Gobindram. The case of respondent is that he is in possession of property since 1967. In the year 1970 property was verified as Wakf property without any notice to the Central Government. The respondent has been opposing the move of appellant Board to seek mutation of its title over the property before the Revenue Authority. Punjab Wakf Board in the year 1970 got the suit land notified in the Wakf under the Wakf Act, 1954 without serving any notice on the respondent. The title of the appellant has been refuted by the respondent. The suit filed by the appellant was not maintainable before the Civil Court, hence, application was filed by the respondent under Order VII Rule 10 and 11 CPC for rejecting the plaint. 14. It is submitted by the learned counsel for the respondent that Sham Singh Harike and others have also filed a suit in the Court of Civil Judge, Senior Division against the Union of India and others including Punjab, Wakf Board seeking a declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the speedy determination of the disputes, question or other matters relating to wakfs; every such Tribunal is to consist of one person who shall be a member of the State Judicial Service holding a rank not below that of a District Judge or of a Civil Judge, First Class; xxx xxx xxx 19. Section 55 of Wakf Act, 1954 (prior to 1984 Amendment) was as follows: Section-55. Institution of suits under section 92 of the Code of Civil Procedure, 1908.- (1) A suit to obtain any of the reliefs mentioned in section 92 of the Code of Civil Procedure, 1908, (5 of 1908.) relating to any Wakf may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein. (2) No suit to obtain any of the reliefs referred to in section 92 of the Code of Civil Procedure, 1908, relating to any Wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to in that section, notwithstanding anything contained therein: Provided that nothing in this sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District and Sessions Judge or of a Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation. (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: Provided that where any procedure, different from the prescribed procedure, is specified by this Act, the Tribunal shall follow the procedure specified by this Act. (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) Execution of any decision of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 interest of justice to deal with the application afresh. (4) Every Tribunal shall consist of 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, Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Teja Singh was let out the suit property, till the year 1996-97, neither lease was renewed nor lessee handed over the possession. Teja Singh committed illegalities, the lease had been cancelled on 05.12.1998 after legal notice. Thereafter, the suit has been filed. Plaintiff had also stated that Teja Singh failed to get the lease renewed, and a suit against the Board was filed where Civil Judge (Junior Division) decreed the suit restraining the Board from evicting Teja Singh forcibly or illegally. The case of Teja Singh in his written statement was that defendant has not violated any terms and conditions of the allotment order and rent deed, defendant is still ready to pay the rent, the lease has not been terminated according to the provisions of the Wakf Act. 25. Coming to C.A.No.92 0f 2019 (Punjab Wakf Board vs. Sham Singh Harike), the case of the plaintiff in the suit was that the suit land was let out to Sham Singh with his wife, Kuldip Kaur in the year 1972 for cultivation. Defendant deposited rent for some period and after that he acted against the interests of the Board and started a false litigation. The property was let out to the defendant for agricultural purposes hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which relate to any Wakf Property. The contrary view of the High Court of Karnataka, High Courts of Madras, Allahabad and Bombay was also noticed. This Court proceeded to examine the scheme of Wakf Act, 1995. After noticing the scheme of Sections 6, 7, 25 and other provisions with respect to Section 85 of the Act, following was stated by this Court in paragraphs 24 and 28: 24. A plain reading of the above would show that the civil court s jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The words which is required by or under this Act to be determined by a Tribunal holds the key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the civil court. 28. Section 85 of the Act clearly bars jurisdiction of the civil courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of the civil courts even under Section 85 is not absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down: 30. The suit is for cancellation of sale deed, rent and for possession as well as rendition of accounts and for removal of trustees. However, pleadings in the suit are not filed before us and, therefore, the exact nature of relief claimed as well as the averments made in the plaint or written statements are not known to us. We are making these remarks for the reason that some of the reliefs claimed in the suit appeared to be falling within the exclusive jurisdiction of the Tribunal whereas for other reliefs the civil court would be competent. Going by the ratio of Ramesh Gobindram (2010) 8 SCC 726, suit for possession and rent is to be tried by the civil court. However, the suit pertaining to removal of trustees and rendition of accounts would fall within the domain of the Tribunal. Insofar as relief of cancellation of sale deed is concerned this is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Act whereby any jurisdiction is conferred upon the Tribunal to decide such an issue. Moreover, relief of possession, which can be given by the civil court, depends upon the question as to whether the sale deed is valid or not. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court was without jurisdiction. We agree. 7. The dispute in the present case relates to a wakf. In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters. 35. After noticing the provisions of Section 83 this Court held that words any dispute, question or other matter relating to a Wakf or Wakf property are words of wide connotation and any dispute, question or other matter whatsoever and in whatever manner which arises relating to a Wakf or W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the aforesaid decision in Ramesh Gobindram case is distinguishable. 38. It is to be noticed that although two-Judge Bench in the above case has observed that judgment of Ramesh Gobindram is distinguishable but the ratio of the judgment of West Bengal Wakf Board as can be culled from paragraph 10 of the judgment, sounds a substantially different note from Ramesh Gobindram s case. Two-Judge Bench in West Bengal Wakf Board case held 10. The words any dispute, question or other matters relating to a wakf or wakf property are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal 39. In Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45, two-Judge Bench of this Court had occasion to consider again the provisions of Sections 7 and 85 of Wakf Act, 1995. In the above case suit was filed by Haryana Wakf Board seeking possession of property which was given on lease to different persons. It is alleged that earlier lessee illegally created a lease deed in favour of the respondent and treated it as illegal encro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tribunal. 40. In Akkode Jumayath Palli Paripalana Committee vs. P.V. Ibrahim Haji and others, (2014) 16 SCC 65, this Court again had occasion to consider Sections 83 and 84 of the Wakf Act. The question which arose in the above case is whether the Wakf Tribunal has got jurisdiction to entertain a suit for injunction restraining the defendants from interfering with the administration, management and peaceful enjoyment of the mosque and madarsa run by it and all the assets attached to the mosque. The appellant had filed suit for injunction before the Court of Munsif. It was transferred to the Wakf Tribunal. The suit was decreed. Civil Revision was filed in the High Court challenging the decree of the Wakf Tribunal. The High Court setting aside the judgment and decree of the Wakf Tribunal held that suit for injunction is not maintainable before the Wakf Tribunal placing reliance on the judgment of this Court in Ramesh Gobindram(supra). Following was noticed in paragraph 3 of the judgment: 3. The respondents herein filed a civil revision petition as CRP No. 1362 of 2004 under Section 83(9) of the Wakf Act before the Kerala High Court. The High Court vide its judgment dated 10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the suit to be maintainable in the Wakf Tribunal and noted that the ratio of Ramesh Gobindram has been distinguished in Anis Fatima case. But as per ratio of Ramesh Gobindram unless there is any provision in the Wakf Act, 1995 to entertain the said dispute only then Wakf 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 two-Judge Bench is not in accord with the ratio of Ramesh Gobindram. Only one more judgment of two-Judge Bench of this Court be noticed, where the suit filed by the Punjab Wakf Board before the Wakf Tribunal praying for mesne profits and possession was held to be maintainable, i.e, judgment in Punjab Wakf Board vs. Pritpal Singh Anr.(Civil Appeal No.8194 of 2013) decided on 13.09.2013. The facts of the case have been noticed in the following manner: Petitioner herein filed a suit before the Wakf Tribunal, Ludhiana, inter alia praying for possession as also for mesne profits. The Wakf Tribunal by its order dated 08.05.2009 decreed the suit for possession as also for recovery of mesne profits. Aggrieved by the same, the respondents preferred a writ petition befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal and the questions which are to be decided by the Tribunal. In this context sub-section (1) of Section 6 refers to the questions which are to be decided by the Tribunal. Sub-section (1) of Section 6 is as follows: Section 6(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 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 wakfs. 48. Similarly, sub-section (1) of Section 7 also refers to decision of the question by the Tribunal. Sub-section (1) of Section 7 is quoted below: Section 7(1).-If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakf, is wakf property or not or whether a wakf specified in such list is a Shia wakf or a Sunni wakf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order the Tribunal can appoint a receiver. These are provisions in the Act which refer to the Tribunal and refer to the subject matter which can be brought before the Tribunal by mutawalli or Board or any aggrieved person. The use of the word under this Act , under Section 83(1) relates to the words for the determination of any dispute, question or other matter relating to a Wakf or Wakf property . Section 83(1) provides for constitution of Tribunal. Other provisions of Section 83 deals with the procedure including bar of appeal against the order of the Tribunal except power of the High Court to revise the order of the Tribunal. 52. Coming to Section 83 which relates to bar of jurisdiction of Civil Court, the relevant words are any dispute, question or other matter relating to a wakf or wakf property which is required by or under this Act to be determined by the Tribunal. Thus, bar of jurisdiction of Civil Court is confined only to those matters which are required to be determined by the Tribunal under this Act. Thus, Civil Court shall have jurisdiction to entertain suit and proceedings which are not required by or under the Act, 1995 to be determined. Thus, answering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained. Thus, the present revision petition is allowed and the impugned order is set aside holding that since the Petitioner is a non-muslim, the Wakf Tribunal has no jurisdiction in the matter and it is only the Civil Court which had the jurisdiction in the present dispute. 56. The High Court had noticed that portion of judgment of Ramesh Gobindram where this Court had noticed an earlier judgment of this Court in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others, (1979) 2 SCC 468. Paragraphs 20 and 21 of the judgment of Ramesh Gobindram have been relied which are to the following effect: 20.From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a civil court 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 (sic a suit in) the civil court is barred only in regard to questions that are specifically enumera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt jurisdiction for decision of such question within a period of one year, as provided for under sub- section (1) of Section 6, makes the inclusion of such property in the list of wakfs published by the Board under sub- section (2) of Section 5 of the Act final and conclusive under sub-section (4) of Section 6. 58. In the above case the respondents were mortgagee of property which under Section 5 of 1954, Act was published for inclusion in the list of Wakfs. The writ petition was filed by the respondents challenging legality and validity of the proceedings taken which was allowed by the High Court. The High Court held that where a person claiming title is a stranger to the Wakf, the inclusion of such property in the list of Wakfs by the Board under sub-section (2) of Section 5 of the Act shall not be final and conclusive. This Court noticed the contention of the respondents who contended that they being non-Muslims they are outside the scope of sub-section (1) of Section 6 and they have no right to file the suit contemplated by that sub-section, therefore, the list of Wakfs published under sub-section (2) of Section 5 cannot be final and conclusive against them under sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akfs published under sub-section (2) of Section 5 of the Act. We must also hold, on a construction of sub-section (1) of Section 6 that the list of wakfs so published by the Board was not final and conclusive under sub-section (4) of Section 6 against the Respondents 1 and 2 due to their failure to bring a suit within one year as contemplated by sub- section (1) of Section 6. 60. In the above sub-section (1) of Section 6 of Act, 1995 an explanation has been added which is to the following effect: Explanation.- For the purposes of this Section and Section 7 the expression any person interested therein, shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf 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. The explanation to sub-section (1) of Section 6 makes it clear that any person interested therein who, though not interested in the Wakf concerned, is interested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no material before us to show that any notice was issued to the Gram Panchayat before the issuance of the notification, as required by the explanation. If no notice was issued as required by the notification, the notification would not come in the way of a civil court to decide the question if raised between the Wakf and a third party, even if such a suit was filed beyond one year from the date of the notification. Thus, once the Assistant Collector and the Collector had jurisdiction to decide, their decision became final and Section 13 of the Punjab Act barred the civil suit filed by the Wakf Board. 62. The judgment of this Court in Punjab Wakf Board v. Gram Panchayat interpreting the explanation, thus, held that the notification issued under Section 5 would be binding not only on those interested in the Wakf but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under Section 4 preceding the notification under Section 5(2). The interpretation put by this Court in Punjab Wakf Board Vs. Gram Panchayat to the explanation added by Amendment Act, 1984 can equally be applied to interpretation of explanation to sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by its order dated 20.09.2010. 65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court. In this context, in the judgment in Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45, this Court has laid down that the question as to whether the suit property is a Wakf property is a question which has to be decided by the Tribunal. In the above case plaint was returned by the Appellate Court under Order VII Rule 10 for presentation before the Tribunal which view was upheld by this Court. In paragraph 6 of the judgment following was laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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