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TMI Blog2016 (11) TMI 1757X X X X Extracts X X X X X X X X Extracts X X X X ..... established under the Act. Still, it is astonishing that Writ Petitions and Regular First Appeals are being preferred by the aggrieved parties before this Court challenging the decisions rendered by the Tribunals constituted under the Act. It is also not understandable how such appeals or writ petitions are being entertained once there is specific bar in terms of Section 83(9) of the Act that no appeal will lie against the order of the Tribunal - In terms of proviso to Sub Section (9) of Section 83 of the Act, any person aggrieved by the orders of the Tribunals can invoke the revisional jurisdiction of the High Court. Thus, remedy is provided to the aggrieved person by way of filing revision petition and not by the medium of appeal. In a similar case, the High Court of Andhra Pradesh in case titled as Mohd. Abdul Kareem And Anr. v. Andhra Pradesh State Wakf Board [ 2004 (2) TMI 743 - ANDHRA PRADESH HIGH COURT ], held that the jurisdiction of the High Court in disputes pertaining to Wakfs can be invoked by way of filing revision petition and not by the medium of a writ petition. Whether a suit for eviction and recovery of use and occupation charges against a person, who, admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2014. 7. The writ petitioner filed the writ petition for quashing Annexure P-3 i.e. resolution and for declaring entire proceedings initiated on the basis of Annexure P-3 as null and void. The writ petitioner also prayed that the respondents be directed to allow the petitioner to continue with honorary Immamt with all facilities provided to him. 8. The writ petition came to be dismissed vide the impugned judgment, hence the instant appeal. CR No. 159 of 2003 9. This Civil Revision Petition has been filed by the petitioner under Section 83 of Wakf Act, 1995 against the judgment and decree passed by Wakf Tribunal, Kangra, Hamirpur, Kullu, Una, Lahaul and Spiti, and Chamba at Dharamshala in Civil Suit No. 2-D/1/2002/(1994), dated 25.3.2003, whereby the suit of the plaintiff/respondent herein was decreed. 10. Plaintiff-Punjab Wakf Board, (now Himachal Wakf Board), filed a suit for possession and for demolition of the structure, being owner of the suit property the description of which has been given in the plaint. The Tribunal decreed the suit of the plaintiff (respondent No. 1 herein), sale deed dated 14.2.1984 and 23.1.1984 executed in favour of defendant No. 1 (appellant her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e declared as null, void, illegal and inoperative. 17. The Tribunal, vide the impugned judgment, dismissed the suit of the plaintiff, hence the present petition. RFA No. 343 of 2008 18. The instant Regular First Appeal has been preferred under Section 96 of the Code of Civil Procedure (for shot, CPC) by defendant No. 1 against the judgment and decree, dated 30th August, 2008, passed by Wakf Tribunal, Kangra at Dharamshala, whereby suit of the plaintiff-Wakf Board was decreed, (for short, the impugned judgment). 19. Plaintiff-Board filed a suit for permanent injunction against the defendants, being the owner of the suit property as the same was the property of the mosque. It was averred that the entries reflecting defendant No. 1 as owner in possession of the suit land were wrong and illegal. 20. The suit was decreed by the Tribunal, vide the impugned judgment, and the defendants were restrained from raising construction over the suit land or changing nature thereof, hence the present appeal. RFA No. 265 of 2011 21. This appeal under Section 96 of the CPC arises out of the judgment and decree, dated 31st May, 2011, passed by the Wakf Tribunal, Shimla, whereby the suit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf 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 wakfs 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 subsection (1)." 27. Section 7 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review arising out of such suit, proceeding or appeal, as the case may be." 28. Thus, Sections 6 and 7 of the Act provides for determination of certain disputes regarding wakf properties only by the Wakf Tribunal. But the question arises that after determining the dispute by the Tribunal, what remedy is available to the aggrieved party. 29. Before the establishment of the Wakf Tribunal, District Judge was hearing the cases and determining the disputes under the Act. After amendment in the Act, under Section 83 of the Act, Tribunals are constituted having three members i.e. District Judge as Chairman, one person from the State Civil Services of the rank of Additional District Magistrate and one person having knowledge of Muslim Law and jurisprudence, as members. It is apt to reproduce Section 83 of the Act hereunder "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 wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised by a civil court under Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. (6) Notwithstanding anything contained in Code of Civil Procedure, 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 Code of Civil Procedure, 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." 30. Sub Section 9 of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to go into the merits of the contentions on other two questions raised by the learned Counsel for respective parties. These are left open to be decided at an appropriate stage in appropriate proceedings." 33. In view of the above discussion, the question supra is answered accordingly. 34. Next question, which arises for determination is whether a suit for eviction and recovery of use and occupation charges against a person, who, admittedly, is a tenant, will lie before the Wakf Tribunal or before the Civil Court. 35. This point was neither raised before us by any of the parties nor arguments were addressed. However, we may observe that Sections 6 and 7 of the Act, reproduced above, nowhere encompasses the disputes relating to eviction of a tenant occupying the wakf property. Therefore, such disputes are triable by the civil court and not by the Tribunal established under the Act. 36. Our this view is fortified by the judgment rendered by the Apex Court in Faseela M. v. Munnerul Islam Madrasa Committee and another, 2014 AIR SCW 2503, wherein it was held by their Lordships that suit for eviction from wakf property is triable by a civil court and not by the Wakf Tribunal sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RD OF MUSLIM WAKF & ORS, 2013 11 SCALE 210 is not in any manner inconsistent or contrary to the view taken by this Court in Ramesh Gobindram (Dead) Through Lrs v. Sugra Humayun Mirza Wakf, 2010 8 SCC 726,. We fully concur with the view of this Court in Ramesh Gobindram (2010) 8 SCC 726, particularly with regard to construction put by it upon Sections 83 and 85 of the Act. In Ramesh Gobindram (Dead) Through LRs v. Sugra Humayun Mirza Wakf, 2010 8 SCC 726, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd had filed a civil suit, which came to be decreed. Feeling aggrieved, the writ petitioner filed RFA No. 484 of 2011, which was dismissed by this court vide judgment dated 10th September, 2014. Thereafter, the writ petitioner filed the writ petition giving rise to the instant appeal. In fact, the writ petition was filed for the same relief, which already stands determined by the Wakf Tribunal and upheld by this Court in regular first appeal supra. As we have held above, though regular first appeal against the order of the Tribunal was not maintainable, however, since the judgment rendered by this Court has attained finality, therefore, we are not going into the said question. 41. Thus, the writ petition on the same cause of action was not maintainable and therefore, the learned Single Judge has rightly held that the writ petition was not maintainable. It is apt to reproduce paragraphs No. 13 and 16 of the impugned judgment hereunder: "13. Be that as it may, the power of this Court to exercise extraordinary jurisdiction under Article 226 of the Constitution is to ensure that rule of law prevails and not to issue directions or writ to perpetuate illegality or to act in disre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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