PUNJAB WAKF BOARD versus SHAM SINGH HARIKE on 7 February 2019

PUNJAB WAKF BOARD

v.

SHAM SINGH HARIKE

(Civil Appeal No. 92 of 2019)

FEBRUARY 07, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Wakf Act, 1995 : s.83 – Jurisdiction of Wakf Tribunal toentertain suit – Held: The constitution of Wakf Tribunal is for thedetermination of any dispute, question or other matter relating towakf or wakf property under the Act, 1995 – s.83 relates to bar ofjurisdiction of Civil Court, the relevant words are “any dispute,question or other matter relating to a wakf or wakf property” whichis required by or under this Act to be determined by the Tribunal –Thus, bar of jurisdiction of Civil Court is confined only to thosematters which are required to be determined by the Tribunal underthis Act – When issue in the suit is as to whether suit property isWakf property or not, it is covered by specific provision of ss.6 and7 of the Act, 1995, therefore, it is required to be decided by theTribunal under s.83 and bar under s.85 shall come into existencewith regard to jurisdiction of Civil Court.

Wakf Act, 1995: s.6(1), proviso – List of Wakf propertypublished under s.5 – Who has right to dispute and the limitationperiod – Held: The provision contained in proviso to s.6(1) that nosuch suit shall be entertained by the Tribunal after the expiry ofone year from the date of the publication of the list of Wakfs shallbe applicable to every person who though not interested in the Wakfconcerned, is interested in such property and to whom a reasonableopportunity had been afforded to represent his case by notice servedon him in that behalf during the course of the relevant inquiry unders.4 – When s.6 sub-section (1) provides for raising a disputeregarding Wakf property in a period of one year, it applies to everyperson who wants to dispute the list except those who have beennot served notice under s.4(1) of the Act.

Disposing of the appeals, the Court

HELD: 1. Section 83 relates to bar of jurisdiction of CivilCourt, the relevant words are “any dispute, question or othermatter relating to a wakf or wakf property” which is required by

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Aor under this Act to be determined by the Tribunal. Thus, bar ofjurisdiction of Civil Court is confined only to those matters whichare required to be determined by the Tribunal under this Act.[Para 52][87-F]

2. As per Section 6 sub-section (1), if any question arisesBas to whether a Wakf property in the list of Wakfs is wakf propertyor not, a suit can be instituted in a Tribunal for the decision of thequestion which decision shall be treated as final. Limitation forsuch suit was also provided in proviso as one year from the dateof the publication of the list of Wakfs. Sub-section (5) of Section 6contained the provision barring a suit in any Court after theCcommencement of the Act in relation to any question referred toin sub-section (1). [Para 64][94-C-D]

3. In CA No. 92 of 2019, the question has arisen as towhether suit property is a Wakf property or not. The suit whereinthis question has arisen ought to be considered by the Tribunal.DThe 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 iscontrary to the statutory scheme as contained in Section 6 of theAct, 1995. When issue in the suit is as to whether suit propertyis Wakf property or not, it is covered by specific provision ofSections 6 and 7 of the Wakf Act, 1995, hence, it is required to beEdecided by the Tribunal under Section 83 and bar under Section85 shall come into existence with regard to jurisdiction of CivilCourt. [Paras 64, 65][94-E-H]

4. The provision contained in proviso to Section 6(1) thatno such suit shall be entertained by the Tribunal after the expiryFof one year from the date of the publication of the list of Wakfsshall be applicable to every person who though not interested inthe Wakf concerned, is interested in such property and to whoma reasonable opportunity had been afforded to represent his caseby notice served on him in that behalf during the course of therelevant inquiry under Section 4. When Section 6 sub-sectionG(1) provides for raising a dispute regarding Wakf property in aperiod of one year, it applies to every person who wants to disputethe list except those who have been not served notice underSection 4(1). [Paras 68, 69][95-G-H, 96-A-B]

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PUNJAB WAKF BOARD v. SHAM SINGH HARIKE

Ramesh Gobindram(dead) through LRs. v. SugraHumayun Mirza Wakf, (2010) 8 SCC 726 : [2010] 10SCR 945; Haryana Wakf Board v. Mahesh Kumar(2014) 16 SCC 45 : [2013] 12 SCR 596; Punjab WakfBoard v. Gram Panchayat (2000) (2) SCC 121 : [1999]5 Suppl. SCR 127 – relied on Board of Wakf, West Bengal & another v. Anis FatmaBegum & another (2010) 14 SCC 588 : [2010] 13SCR 1063; Bhanwar Lal and another v. RajasthanBoard of Muslim Wakf and others (2014) 16 SCC 51 :[2013] 9 SCR 721; Sardar Khan & others v. SyedNazmul Hasan (Seth) and others (2007) 10 SCC 727 :[2007] 3 SCR 436; Faseela M. v. Munnerul IslamMadrasa Committee and another (2014) 16 SCC 38 :[2014] 4 SCR 613; Akkode Jumayath Palli ParipalanaCommittee v. P.V. Ibrahim Haji and others (2014) 16SCC 65 : [ 2013] 7 SCR 1033; Board of Muslim Wakfs,Rajasthan v. Radha Kishan and others, (1979) 2 SCC468 : [1979] 2 SCR 148 – referred to Case Law Reference From the Judgment and Order dated 20.09.2010 of the High Courtof Punjab and Haryana at Chandigarh in Civil Revision No. 4339 of2009 (O&M)

WITH

Civil Appeal No. 93 of 2019.

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ASalman Khurshid, Sr. Adv., Imtiaz Ahmed, Ms. Naghma Imtiaz,Ahmed Zargham, M/S. Equity Lex Associates, Advs. for the Appellant.

S. B. Upadhyay, Sr. Adv., Vineet Bhagat, K.G. Bhagat, PawanUpadhyay, Surender Kumar,Adv. Mr. Nishant Kumar,Adv. Ms. SharmilaUpadhyay, Advs. for the Respondent.

BThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. These two appeals having been filedagainst two separate judgments of the Punjab and Haryana High Courtallowing the Civil Revisions filed by the respondents have been heardtogether and are being decided by this common judgment.

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2. Brief facts giving rise to the above appeals which are necessaryto be noticed for deciding these appeals are:

Civil Appeal No.92 of 2019 (Punjab Wakf Board vs. ShamSingh Harike)

The appellant, Pubjab Wakf Board, claimed to be owner of landDmeasuring 269 kanals 7 marlas, comprising in khewat No.462, khatauniNos.589, 593, 599 and 596 in khasra Nos.103, 105, 102 min, 104, 106, ofvillage Birmi, Tehsil and District Ludhiana. The appellant had let out theabove-mentioned land to Sham Singh and his wife Kuldeep Kaur forcultivation of the land. The lessee deposited the rent for few years andEthereafter initiated litigation against the interest of the Board which wasdecided in favour of the Board. The appellant filed Civil Suit No.250 of2001 in the Court of Civil Judge, Senior Division for the grant of permanentinjunction restraining the respondents from raising any construction andchanging the position from agricultural to residential of the property inany manner. The respondents filed written statement challenging theFmaintainability of the suit. The title of the appellant was denied in thewritten statement. After the constitution of the Wakf Tribunal, the suitwas transferred to the Wakf Tribunal and renumbered as RBT No.84/2006. The respondent filed an application before the Tribunal for rejectionof the plaint on the ground that the Tribunal has no jurisdiction to entertainGthe suit and the Civil Court alone has jurisdiction to entertain the suit.The Wakf Tribunal by its order dated 17.04.2009 rejected the applicationof the respondent and held that after 01.01.1996 it is only the WakfTribunal which has jurisdiction to try the present suit.

3. The respondent aggrieved by the order dated 17.04.2009 filedCivil Revision in the High Court. The High Court relying on the judgmentHof Ramesh Gobindram(dead) through LRs. vs. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726, allowed the Revision. The High Courtheld that since the appellant is a non-muslim, the Wakf Tribunal has nojurisdiction in the matter and it is only the Civil Court which had thejurisdiction in the present dispute. The appellant aggrieved by the saidjudgment dated 20.09.2010 has come up in this appeal.

Civil Appeal No.93 of 2019 (Punjab Wakf Board vs. TejaSingh)

4. The Punjab Wakf Board, the appellant claiming to be owner ofthe property measuring 29 Kanals 9 Marlas comprised in Khewat No.224,khatauni No.277, Khasra Nos.55, 56, 57 filed Suit No.2 of 2007 in theCourt of Wakf Tribunal, Ludhiana for possession of above noted propertyand seeking relief for permanent injunction restraining the respondentfrom interfering and changing the nature of the property. Plaintiff’s casein the suit was that the defendant, Taja Singh took suit property on yearlylease from Wakf Board till the year 1996-97 and paid lease money to theplaintiff Board. After 1996-97 lease was not renewed and defendanthaving committed certain illegalities, the Wakf Board cancelled the leaseon 05.12.1998. Notice to this effect was served upon the defendant videwhich a request was made to the defendant to handover the vacantpossession of the leased-out property to the plaintiff Board. Aftercancellation of the lease, the possession of the defendant over the suitproperty became illegal.

5. The defendant had also filed suit for grant of injunction whichwas decreed by Civil Judge (Junior Division), Ludhiana, the Courtrestrained the Board from dispossessing the respondent forcibly andillegally except in due course of law. The defendant having failed tohandover the possession, the appellant filed the suit for possession andthe grant of permanent injunction. The defendant entered appearanceand filed written statement. The defendant’s case in the written statementwas that the defendant always remained ready to pay the rent due to theplaintiff and is still ready to pay and tender the rent due to the plaintiffeven in the Court but the plaintiff is not accepting the same intentionallyjust to seek possession of the tenanted premises in an illegal manner.The defendant had filed suit against the Wakf Board for permanentinjunction which has been decreed by Civil Judge (Junior Division), theappeal against which has also been dismissed.

6. The Wakf Tribunal vide its judgment dated 03.06.2009 decreedthe original suit. Following decree has been passed by the Tribunal:

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A“17. Keeping in view the findings on the above issues, the suit ofthe plaintiff is decreed for possession of the suit land and thesame is also decreed for permanent injunction restraining thedefendant from changing the nature of the suit land with costs ofthe suit. Decree sheet be drawn. File be consigned to the recordroom.”B

7. Against the judgment of the Wakf Tribunal decreeing the suit,the defendant filed Civil Revision No.6157 of 2009, which has beenallowed by the High court by following order:

“In view of the judgment delivered by the Apex Court in caseRamesh Gobindram (dead) through L.Rs. vs. Sugra HumayunCMirza Wakf, 2010(2) RCR(Rent) 266, the instant petition isaccepted, impugned order is set aside and the plaint along withdocuments is returned to the Petitioner to be presented before theappropriate court.”

8. The appellant aggrieved by the judgment of the High CourtDdated 23.02.2011 has come up in this appeal.

9. We have heard Shri Salman Khurshid, learned senior counselfor the appellant. Shri Vineet Bhagat and Shri K.G. Bhagat, learnedcounsel and Shri S.B. Upadhyay, learned senior counsel appeared forthe respondents.E10. Shri Salman Khurshid, learned senior counsel for the appellant

10. Shri Salman Khurshid, learned senior counsel for the appellantsubmits that Wakf Tribunal was fully competent to entertain the suitsfiled by the appellant. The defendants in both the suits having been leasedout the land which was Wakf property, the suit clearly lay before theWakf Tribunal as per Section 83 of Wakf Act, 1995.

F11. He submits that Wakf Tribunal was conferred jurisdiction ofentertaining every dispute pertaining to Wakf in the Wakf Act, 1954.After the 1984 Amendment, under Section 55 of Act, 1954 for any disputepertaining to Wakf property suit has to be filed before the Tribunal andthe jurisdiction of the Civil Court was barred by virtue of Section 55C ofthe Act, 1954, which statutory scheme has been continued under SectionsG83 and 85 of Act, 1995. He submits that judgment of RameshGobindram (supra) which has been relied by the High Court whileallowing the revisions filed by the respondents was a case under Act,1954 that too prior to 1984 Amendment. He, however, submits that suitsfiled by the appellant were suits for possession, hence, were fullymaintainable before the Wakf Tribunal. Shri Salman Khurshid relies onH

the judgment of this Court in Board of Wakf, West Bengal & anothervs. Anis Fatma Begum & another, (2010) 14 SCC 588, where suitfiled before the Tribunal was held to be maintainable and the judgmentof Ramesh Gobindram was distinguished.

12. Shri Khurshid has further relied on the judgment and Order ofthis Court dated 13.09.2013 in C.A. No.8194 of 2013 (Punjab WakfBoard vs. Pritpal Singh & Anr.) where a similar order passed by theHigh Court holding that suit of Punjab Wakf Board is not maintainablehas been set aside. He submits that the present case is similar to thejudgment of this Court in Pritpal Singh. Shri Khurshid has relied onother judgments which shall be referred to later.

13. Learned counsel for the respondent, Sham Singh Harike,refuting the submission of the counsel of the appellant contends that thejudgment of this Court in Anis Fatma Begum (supra) does not overruleRamesh Gobindram. The case of respondent is that he is in possessionof property since 1967. In the year 1970 property was verified as Wakfproperty without any notice to the Central Government. The respondenthas been opposing the move of appellant Board to seek mutation of itstitle over the property before the Revenue Authority. Punjab Wakf Boardin the year 1970 got the suit land notified in the Wakf under the WakfAct, 1954 without serving any notice on the respondent. The title of theappellant has been refuted by the respondent. The suit filed by the appellantwas not maintainable before the Civil Court, hence, application was filedby the respondent under Order VII Rule 10 and 11 CPC for rejectingthe plaint.

14. It is submitted by the learned counsel for the respondent thatSham Singh Harike and others have also filed a suit in the Court of CivilJudge, Senior Division against the Union of India and others includingPunjab, Wakf Board seeking a declaration that suit land is not a Wakfproperty nor Wakf Board has right and any interest nor forcibly it candispossess him.

15. Shri S.B. Upadhyay, learned senior counsel appearing forTeja Singh submits that a suit has been filed by the respondent being SuitNo.265 of 1999 which has been decreed by the Civil Judge (JuniorDivision) restraining the defendants from dispossessing the plaintiffforcibly or illegally subject to payment of dues upto date against whichappeal filed by the Punjab Wakf Board was also dismissed on 09.04.2005.Shri Upadhyay has heavily relied on Ramesh Gobindram case and he A

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Asubmits that in view of the judgment of Ramesh Gobindram, the suitfiled by the appellant was not maintainable and the plaint has rightlybeen returned to be presented before the Civil Court.

16. We have considered the submissions of the parties and perusedthe records.

B17. The main issue which has arisen for consideration in theseappeals is as to whether suit filed by the appellant before the WakfTribunal praying for decree of possession of suit property wasmaintainable in Wakf Tribunal or would lie only in a Civil Court. Although,the Wakf Tribunal has held that suit was maintainable before it, the HighCourt has reversed the order of the Tribunal holding that the suit is notCmaintainable before the Wakf Tribunal relying on the judgment of thisCourt in Ramesh Gobindram. Before we notice the judgment of thisCourt in Ramesh Gobindram and the judgments relied by the parties,the statutory provisions pertaining to Wakf and Wakf property need tobe noted.

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18. Before the enactment of Wakf Act, 1995 by the Parliament,the Wakf Act, 1954 was in force. Many deficiencies in Wakf Act, 1954were found which led to comprehensive amendments made by WakfAmendment Act, 1984 on the basis of recommendations of Wakf InquiryCommittee. However, many provisions of 1984 (Amendment) Act couldnot be enforced. Before we come to Act, 1995 it is relevant to notice theEstatutory regime which was prevalent prior to Act, 1995. The Wakf(Amendment) Bill, 1984 was moved with detail of Statement of Objectsand Reasons. Paragraph 3(vii) which is relevant for the present purposeis as follows:

“3. The Bill seeks to make, inter alia, amendments to theFWakf Act, 1954, in relation to the following matters, namely:- xxxxxxxxx

(vii) to provide for the appointment of Tribunals for the speedydetermination of the disputes, question or other matters relatingto wakfs; every such Tribunal is to consist of one person whoGshall be a member of the State Judicial Service holding a ranknot below that of a District Judge or of a Civil Judge, FirstClass; xxx xxx xxx”

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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 ofCivil Procedure, 1908.-

(1) A suit to obtain any of the reliefs mentioned in section 92 ofthe Code of Civil Procedure, 1908, (5 of 1908.) relating to anyWakf may, notwithstanding anything to the contrary containedin that section, be instituted by the Board without obtaining theconsent referred to therein.

(2) No suit to obtain any of the reliefs referred to in section 92of the Code of Civil Procedure, 1908, relating to any Wakf shallbe instituted by any person or authority other than the Boardwithout the consent in writing of the Board and for the institutionof any such suit, it shall not be necessary to obtain the consentreferred to in that section, notwithstanding anything containedtherein:

Provided that nothing in this sub-section shall apply in relationto any such suit against the Board.”

20. Comprehensive amendments were made in Wakf Act, 1954.Section 55 was substituted in the following manner:

“55. Appointment, powers and jurisdiction of tribunals.(1) The State Government shall, by notification in the OfficialGazette, constitute as many Tribunals as it may think fit for thedetermination of any dispute, question or other matter relatingto a wakf property which such Tribunal is, or may be, requiredto determine under this Act or any rule or order made thereunder,and may, by the same or subsequent notification in the OfficialGazette, define the local limits of the area in relation to whicheach Tribunal appointed by it shall exercise jurisdiction under thisAct.

(2) Any mutawalli of a wakf, person interested in a wakf or anyother person aggrieved by any order made under this Act or anyrule or order made thereunder, may make an application withinthe time specified in this Act or where no such time has beenspecified, within such time as may be prescribed, to the Tribunalfor the determination of any dispute, question or other matterrelating to the wakf.

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(3) Where any application made under sub-section (1) relatesto any wakf property which falls within the territorial limits ofthe Jurisdiction of two or more Tribunals, such application, maybe made to the Tribunal within the local limits of whosejurisdiction the mutawalli or any one of the mutawallis of thewakf actually and voluntarily resides, carries on business orpersonally works for gain, and, where any such application ismade to the Tribunal aforesaid, the other Tribunal or Tribunalshaving jurisdiction shall not entertain any application for thedetermination of such dispute, question or other matter:

Provided that the State Government may, if it is of opinion thatit is expedient in the interests of the wakf or any other personinterested in the wakf or the wakf property, to transfer suchapplication to any other Tribunal having jurisdiction for thedetermination of the dispute, question or other matter relating tosuch wakf or wakf property, transfer such application to any otherTribunal having jurisdiction, and, on such transfer, the Tribunal towhich the application is so transferred shall deal with the applicationfrom the stage which was reached before the Tribunal from whichthe application has been so transferred, except where the Tribunalis of opinion that it is necessary in the interests of justice to dealwith the application afresh.

(4) Every Tribunal shall consist of one person, who shall be amember of the State Judicial Service holding a rank, not belowthat of a District and Sessions Judge or of a Civil Judge, Class I,and the appointment of every such person may be made either byname or by designation.

(5) The Tribunal shall be deemed to be a civil court and shallhave the same powers as may be exercised by a civil courtunder the Code of Civil Procedure, 1908 (5 of 1908), while tryinga suit, or executing a decree or order.

(6) Notwithstanding anything contained in the Code of CivilProcedure, 1908 (5 of 1908), the Tribunal shall follow suchprocedure as may be prescribed:

Provided that where any procedure, different from the prescribedprocedure, is specified by this Act, the Tribunal shall follow theprocedure specified by this Act.

(7) The decision of the Tribunal shall be final and binding upon theparties to the application and it shall have the force of a decreemade by a civil court.

(8) Execution of any decision of the Tribunal shall be made by thecivil court to which such decision is sent for execution inaccordance with the provisions of the Code of Civil Procedure,1908 (5 of 1908).

(9) No appeal shall lie against any decision or order whether interimor otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on theapplication of the Board or any person aggrieved, call for andexamine the records relating to any dispute, question or othermatter which has been determined by the Tribunal for thepurpose of satisfying itself as to the correctness, legality orpropriety of such determination and may confirm, reverse ormodify such determination or pass such other order as it maythink fit.”

21. Section 55C was inserted relating to bar of jurisdiction of CivilCourt which was to the following effect:

“55-C. Bar of jurisdiction of civil courts in respect ofmatters determined by Tribunal. -No suit or other legalproceeding shall lie in any civil court in respect of any dispute,question or other matter relating to any wakf, wakf property orother matter which is required by, or under, this Act to bedetermined by a Tribunal.”

22. Chapter VIII of the Wakf Act, 1995 deals with JudicialProceedings. Sections 83 and 85 which are relevant for this case are asfollows:

“83. Constitution of Tribunals, etc.— (1) The StateGovernment shall, by notification in the Official Gazette, constituteas many Tribunals as it may think fit, for the determination of anydispute, question or other matter relating to a waqf or waqfproperty under this Act and define the local limits and jurisdictionof such Tribunals.

(2) Any mutawalli person interested in a waqf or any other personaggrieved by an order made under this Act, or rules madethereunder, may make an application within the time specified in A

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this Act or where no such time has been specified, within suchtime as may be prescribed, to the Tribunal for the determinationof any dispute, question or other matter relating to the waqf.

(3) Where any application made under sub-section (1) relatesto any waqf property which falls within the territorial limits ofthe jurisdiction of two or more Tribunals, such application maybe made to the Tribunal within the local limits of whosejurisdiction the mutawalli or any one of the mutawallis of thewaqf actually and voluntarily resides, carries on business orpersonally works for gain, and, where any such application ismade to the Tribunal aforesaid, the other Tribunal or Tribunalshaving jurisdiction shall not entertain any application for thedetermination of such dispute, question or other matter:

Provided that the State Government may, if it is of opinion thatit is expedient in the interest of the waqf or any other personinterested in the waqf or the waqf property to transfer suchapplication to any other Tribunal having jurisdiction for thedetermination of the dispute, question or other matter relating tosuch waqf or waqf property, transfer such application to any otherTribunal having jurisdiction, and, on such transfer, the Tribunal towhich the application is so transferred, shall deal with theapplication from the stage which was reached before the Tribunalfrom which the application has been so transferred, except wherethe Tribunal is of opinion that it is necessary in the interest ofjustice to deal with the application afresh.

(4) Every Tribunal shall consist of one person who shall be amember of the State Judicial Service holding a rank, not belowthat of a District, Sessions or Civil Judge, Class I, and theappointment of every such person may be made either by nameor by designation.

(5) The Tribunal shall be deemed to be a Civil Court and shallhave the same powers as may be exercised by a Civil Courtunder the Code of Civil Procedure, 1908, while trying a suit, orexecuting a decree or order.

(6) Notwithstanding anything contained in the Code of CivilProcedure, 1908, the Tribunal shall follow such procedure asmay be prescribed.

(7) The decision of the Tribunal shall be final and binding uponthe parties to the application and it shall have the force of adecree made by a Civil Court.

(8) The execution of any decision of the Tribunal shall be madeby the Civil Court to which such decision is sent for execution inaccordance with the provisions of the Code of Civil Procedure,1908.

(9) No appeal shall lie against any decision or order whetherinterim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on theapplication of the Board or any person aggrieved, call for andexamine the records relating to any dispute, question or othermatter which has been determined by the Tribunal for thepurpose of satisfying itself as to the correctness, legality orpropriety of such determination and may confirm, reverse ormodify such determination or pass such other order as it maythink fit.

85. Bar of jurisdiction of Civil Courts. —No suit or otherlegal proceeding shall lie in any Civil Court in respect of anydispute, question or other matter relating to any waqf, waqfproperty or other matter which is required by or under this Actto be determined by a Tribunal.”

23. Reverting back to the facts in these appeals, in C.A.No.93 of2019(Punjab Wakf Board vs. Teja Singh), in the suit filed by the PunjabWakf Board the plaintiff has claimed for the following reliefs:

“It is therefore, prayed that a decree for possession of propertymeasuring 29K-9M comprised in Khewat No.224, KhatauniNo.277, Khasra No.55, 56,57 as per the Jamabandi for the year2000-2001 of Village Talwara, HB No.149, Tehsil Ludhana West,District Ludhiana;

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For the grant of permanent injunction restraining the defendant,his agents, attorneys, associates from interfering and changingthe nature of the property in any manner whatsoever, may kindlybe passed in favour of the plaintiff.”

24. Plaintiff’s case was that Teja Singh was let out the suit property,till the year 1996-97, neither lease was renewed nor lessee handed over A

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Athe possession. Teja Singh committed illegalities, the lease had beencancelled on 05.12.1998 after legal notice. Thereafter, the suit has beenfiled. Plaintiff had also stated that Teja Singh failed to get the leaserenewed, and a suit against the Board was filed where Civil Judge (JuniorDivision) decreed the suit restraining the Board from evicting Teja Singhforcibly or illegally. The case of Teja Singh in his written statement wasBthat defendant has not violated any terms and conditions of the allotmentorder and rent deed, defendant is still ready to pay the rent, the lease hasnot been terminated according to the provisions of the Wakf Act.

25. Coming to C.A.No.92 0f 2019 (Punjab Wakf Board vs. ShamSingh Harike), the case of the plaintiff in the suit was that the suit landCwas let out to Sham Singh with his wife, Kuldip Kaur in the year 1972for cultivation. Defendant deposited rent for some period and after thathe acted against the interests of the Board and started a false litigation.The property was let out to the defendant for agricultural purposes havingno right to raise construction over the property. Details of different Dlitigations initiated by the defendant were given in the plaint. Defendantinitiated various proceedings for allotment of the land from the RevenueAuthority which were all dismissed. The property has been mutated inthe name of Wakf Board. In the written statement filed by the defendant,Sham Singh, the title of Wakf Board itself was disputed, and it waspleaded that the suit is not maintainable and liable to be dismissed. UntilEand unless the suit property is declared to be that of the plaintiff no suitis maintainable. Mutation in the name of the plaintiff does not confer anytitle. Thus, in both the suits filed by the appellant, the maintainability ofthe suit in the Wakf Tribunal was questioned. In the written statementfiled by Sham Singh the title of the appellant to the suit property wasFquestioned and challenged.

26. Now, we need to notice the judgment of this Court in RameshGobindram(supra) on which the High Court as well as learned counselfor the respondent have placed heavy reliance. In the above case, theAndhra Pradesh Wakf Tribunal has passed an order of eviction againstthe appellant. Revision Petition filed before the Andhra Pradesh HighGCourt was dismissed against which the appeal was filed. The issueinvolved in that case has been noticed in paragraph 2 of the judgmentwhich is to the following effect:

“2. The question is: whether the Wakf Tribunal constituted underSection 83 of the Wakf Act, 1995 was competent to entertain andH

adjudicate upon disputes regarding eviction of the appellants whoare occupying different items of what are admittedly wakfproperties? The Wakf Tribunal before whom the suits for evictionof the tenants were filed answered the question regarding itsjurisdiction in the affirmative and decreed the suit filed against theappellant.”

27. This Court noticed in the aforesaid judgment that there is acleavage in the judicial opinion expressed on the question of jurisdictionof Wakf Tribunal by the different High Courts in the country. The viewof the Andhra Pradesh High Court, Rajasthan High Court, MadhyaPradesh High Court, Kerala High Court and Punjab and Haryana HighCourt has been noticed where High Courts have taken the view thatjurisdiction of the Wakf Tribunal is wide enough to entertain and adjudicateupon all kinds of disputes which relate to any Wakf Property. The contraryview of the High Court of Karnataka, High Courts of Madras, Allahabadand Bombay was also noticed. This Court proceeded to examine thescheme of Wakf Act, 1995. After noticing the scheme of Sections 6, 7,25 and other provisions with respect to Section 85 of the Act, followingwas stated by this Court in paragraphs 24 and 28:

“24. …………A plain reading of the above would show thatthe civil court’s jurisdiction is excluded only in cases where thematter in dispute is required under the Act to be determined bythe Tribunal. The words “which is required by or under this Act tobe determined by a Tribunal” holds the key to the questionwhether or not all disputes concerning the wakf or wakf propertystand excluded from the jurisdiction of the civil court.

28. Section 85 of the Act clearly bars jurisdiction of the civilcourts to entertain any suit or proceedings in relation to orderspassed by or proceedings that may be commenced before theTribunal. It follows that although Section 85 is wider than whatis contained in Sections 6 and 7 of the Act, the exclusion ofjurisdiction of the civil courts even under Section 85 is notabsolute. It is limited only to matters that are required by theAct to be determined by a Tribunal. So long as the dispute orquestion raised before the civil court does not fall within thefour corners of the powers vested in the Tribunal, the jurisdictionof the former to entertain a suit or proceedings in relation to anysuch question cannot be said to be barred.”

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A28. This Court noticing the provisions of Section 83 has observedthat Section 83 does not deal with the exclusion of the jurisdiction ofCivil Courts to entertain the civil suits generally or suit of any particularclass or category. It interpreted Section 83 as a provision which does notexclude the jurisdiction of the Civil Court. Following was stated inparagraph 29:B

“29. ………………………Section 83 of the Act, however,does not deal with the exclusion of the jurisdiction of the civilcourts to entertain civil suits generally or suit of any particularclass or category. The exclusion of the civil court’s jurisdictionis dealt with by Section 6(5) and Section 85 of the Act. To interpretCSection 83 as a provision that excludes the jurisdiction of the civilcourts is not, therefore, legally correct, for that provision dealswith constitution of Tribunals, the procedure which the Tribunalswould follow and matters relating thereto.”

29. On an interpretation of Section 83 following has been laidDdown by this Court in paragraphs 31, 32 and 33:

“31. It is clear from sub-section (1) of Section 83 above thatthe State Government is empowered to establish as manyTribunals as it may deem fit for the determination of any dispute,question or other matter relating to a wakf or wakf propertyunder the Act and define the local limits of their jurisdiction.ESub-section (2) of Section 83 permits any mutawalli or otherperson interested in a wakf or any person aggrieved of an ordermade under the Act or the Rules framed thereunder to approachthe Tribunal for determination of any dispute, question or othermatter relating to the wakf. What is important is that the Tribunal Fcan be approached only if the person doing so is a mutawalli or aperson interested in a wakf or aggrieved by an order made underthe Act or the Rules. The remaining provisions of Section 83provide for the procedure that the Tribunal shall follow and themanner in which the decision of a Tribunal shall be executed. Noappeal is, however, maintainable against any such order althoughGthe High Court may call for the records and decide about thecorrectness, legality or propriety of any determination made bythe Tribunal.

32. There is, in our view, nothing in Section 83 to suggest that itpushes the exclusion of the jurisdiction of the civil courts extendsH(sic) beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Governmentto constitute a Tribunal or Tribunals for determination of anydispute, question of other matter relating to a wakf or wakfproperty which does not ipso facto mean that the jurisdiction ofthe civil courts stands completely excluded by reasons of suchestablishment.

33. It is noteworthy that the expression “for the determinationof any dispute, question or other matter relating to a wakf orwakf property” appearing in Section 83(1) also appears inSection 85 of the Act. Section 85 does not, however, excludethe jurisdiction of the civil courts in respect of any or everyquestion or disputes only because the same relates to a wakf or awakf property. Section 85 in terms provides that the jurisdictionof the civil court shall stand excluded in relation to only suchmatters as are required by or under this Act to be determined bythe Tribunal.”

30. The ultimate conclusion by this Court has been recorded inparagraphs 34 and 35 which are as follows:

“34. The crucial question that shall have to be answered inevery case where a plea regarding exclusion of the jurisdictionof the civil court is raised is whether the Tribunal is under theAct or the Rules required to deal with the matter sought to bebrought before a civil court. If it is not, the jurisdiction of thecivil court is not excluded. But if the Tribunal is required to decidethe matter the jurisdiction of the civil court would stand excluded.

35. In the cases at hand, the Act does not provide for anyproceedings before the Tribunal for determination of a disputeconcerning the eviction of a tenant in occupation of a wakfproperty or the rights and obligations of the lessor and the lesseesof such property. A suit seeking eviction of the tenants from whatis admittedly wakf property could, therefore, be filed only beforethe civil court and not before the Tribunal.”

31. The crux of the judgment as noticed in paragraph 34 is that“whether the Tribunal is under the Act or the Rules required to deal withthe matter sought to be brought before a Civil Court. If it is not, thejurisdiction of the Civil Court is not excluded. But if the Tribunal is requiredto decide the matter the jurisdiction of the Civil Court would standexcluded.” Thus, the ratio of the judgment as noticed above is “as to A

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Awhether the Tribunal is under the Act or the Rules required to deal withthe matter sought to be brought”.

32. After the judgment of this Court in Ramesh Gobindram,there are several two-Judge judgments of this Court either followingRamesh Gobindram’s judgment or distinguishing the same on one orBother reasons. This Court in Bhanwar Lal and another vs. RajasthanBoard of Muslim Wakf and others, (2014) 16 SCC 51, elaboratelynoticed the judgment of Ramesh Gobindram’s case. This Courtultimately in the facts of that case held that since the suit was filed muchbefore the enforcement of the Act i.e. 1.1.1996, in view of the dictumlaid down in Sardar Khan & others v. Syed Nazmul Hasan (Seth)Cand others, (2007) 10 SCC 727, theCivil Court where the suit wasfiled shall continue to have jurisdiction. In paragraph 30 following hasbeen laid down:

“30. The suit is for cancellation of sale deed, rent and forpossession as well as rendition of accounts and for removal oftrustees. However, pleadings in the suit are not filed before usand, therefore, the exact nature of relief claimed as well as theaverments made in the plaint or written statements are not knownto us. We are making these remarks for the reason that some ofthe reliefs claimed in the suit appeared to be falling within theexclusive jurisdiction of the Tribunal whereas for other reliefs thecivil court would be competent. Going by the ratio of RameshGobindram (2010) 8 SCC 726, suit for possession and rent is tobe tried by the civil court. However, the suit pertaining to removalof trustees and rendition of accounts would fall within the domainof the Tribunal. Insofar as relief of cancellation of sale deed isconcerned this is to be tried by the civil court for the reason that itis not covered by Section 6 or 7 of the Act whereby any jurisdictionis conferred upon the Tribunal to decide such an issue. Moreover,relief of possession, which can be given by the civil court, dependsupon the question as to whether the sale deed is valid or not.Thus, the issues of sale deed and possession are inextricably mixedwith each other. We have made these observations to clarify thelegal position. Insofar as the present case is concerned, since thesuit was filed much before the Act came into force, going by thedicta laid down in Sardar Khan case, it is the civil court wherethe suit was filed will continue to have the jurisdiction over theissue and the civil court would be competent to decide the same.”

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33. In Faseela M. vs. Munnerul Islam Madrasa Committeeand another, (2014) 16 SCC 38, the Madrasa Committee filed suit foreviction of the appellant before the Wakf Tribunal with regard to a Wakfproperty. The Tribunal directed the plaint to be returned to the CivilCourt which order was recalled on 18.09.2010. The appellant had filedrevision before the High Court for declaration that the Wakf Tribunalhas no jurisdiction in the matter which was dismissed by the High Courtrelying on Ramesh Gobindram. This Courtheld that suit for evictionagainst the tenant relating to a Wakf property is exclusively triable bythe Civil Court. In paragraph 16 following has been held:

“16. The matter before us is wholly and squarely covered byRamesh Gobindram. The suit for eviction against the tenantrelating to a wakf property is exclusively triable by the civil courtas such suit is not covered by the disputes specified in Sections 6and 7 of the Act.”

34. There are few judgments of this Court in which RameshGobindram has been distinguished and it was held that in those casesthe suit was maintainable before the Wakf Tribunal. In Board of Wakf,West Bengal and another vs. Anis Fatma Begum and another,(2010) 14 SCC 588, a suit was filed in the Calcutta High Court in itsoriginal summons jurisdiction questioning he demarcation of the Wakfproperty. In Paragraph 4 of the judgment this Court noticed the issuesraised before the High Court. It was contended before this Court thatonly the Wakf Tribunal has jurisdiction in the matter under Wakf Act,1995 and the suit before the High Court was without jurisdiction. Thesaid submission was accepted by this Court. In paragraphs 6 and 7following has been laid down:

“6. It was submitted by Dr. Rajeev Dhavan, learned SeniorCounsel appearing for the appellant, that only the Wakf Tribunalhas jurisdiction in the matter under the Wakf Act, 1995 and hencethe suit filed in the High Court was without jurisdiction. We agree.

7. The dispute in the present case relates to a wakf. In ouropinion, all matters pertaining to wakfs should be filed in thefirst instance before the Wakf Tribunal constituted under Section83 of the Wakf Act, 1995 and should not be entertained by thecivil court or by the High Court straightaway under Article 226 ofthe Constitution of India. It may be mentioned that the Wakf Act,1995 is a recent parliamentary statute which has constituted aSpecial Tribunal for deciding disputes relating to wakfs. The A

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Aobvious purpose of constituting such a Tribunal was that a lot ofcases relating to wakfs were being filed in the courts in India andthey were occupying a lot of time of all the courts in the countrywhich resulted in increase in pendency of cases in the courts.Hence, a Special Tribunal has been constituted for deciding suchmatters.”B35. After noticing the provisions of Section 83 this Court held thatwords “any dispute, question or other matter relating to a Wakf or Wakfproperty” are words of wide connotation and any dispute, question orother matter whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal.CFollowing has been laid down in paragraph 10:

“10. Thus, the Wakf Tribunal can decide all disputes, questionsor other matters relating to a wakf or wakf property. The words“any dispute, question or other matters relating to a wakf orwakf property” are, in our opinion, words of very wideDconnotation. Any dispute, question or other matters whatsoeverand in whatever manner which arises relating to a wakf or wakfproperty can be decided by the Wakf Tribunal. The word “wakf”has been defined in Section 3(r) of the Wakf Act, 1995 and henceonce the property is found to be a wakf property as defined inSection 3(r), then any dispute, question or other matter relating toEit should be agitated before the Wakf Tribunal.”36. This Court also held that when there is special law providingfor a special forum, then recourse cannot be taken to the general law. Inparagraphs 14, 15 and 16 following was laid down:

“14. It is well settled that when there is a special law providingFfor a special forum, then recourse cannot be taken to the generallaw, vide Justice G.P. Singh’s Principles of StatutoryInterpretation (9th Edn., 2004, pp. 133-34).

15. In Chief Engineer, Hydel Project v. Ravinder Nath,(2008)2 SCC 350, this Court held that when the matter fell inGthe area covered by the Industrial Disputes Act, the civil courtwould have no jurisdiction. In the above decision the Court hasreferred to several earlier decisions on this point.

16. In view of the above, we are of the opinion that since thematter fell under the purview of the Wakf Act, only the WakfHTribunal has jurisdiction in the matter, and not the civil court.

However, in view of the decision of this Court in Sardar Khanv. Syed Najmul Hasan (Seth), (2007) 10 SCC 727, the WakfAct will not be applicable to suits/appeals/revisions/proceedingscommenced prior to 1-1-1996 when the Wakf Act came intoforce.”

37. Distinguishing the judgment of this Court in Ramesh Gobindram (supra) following was stated in paragraph 17:

“17. Learned counsel for the respondent, however, relied onthe decision of this Court in Ramesh Gobindram v. SugraHumayun Mirza Wakf. In the aforesaid decision it was heldthat eviction proceedings can only be decided by the civil courtand not by the Wakf Tribunal. The dispute in the present case isnot an eviction dispute. Hence, the aforesaid decision in RameshGobindram case is distinguishable.”

38. It is to be noticed that although two-Judge Bench in the abovecase has observed that judgment of Ramesh Gobindram isdistinguishable but the ratio of the judgment of West Bengal WakfBoard as can be culled from paragraph 10 of the judgment, sounds asubstantially different note from Ramesh Gobindram’s case. Two-Judge Bench in West Bengal Wakf Board case held “10. ………………The words “any dispute, question or othermatters relating to a wakf or wakf property” are, in our opinion,words of very wide connotation. Any dispute, question or othermatters whatsoever and in whatever manner which arisesrelating to a wakf or wakf property can be decided by the WakfTribunal………………………”

39. In Haryana Wakf Board vs. Mahesh Kumar, (2014) 16SCC 45, two-Judge Bench of this Court had occasion to consider againthe provisions of Sections 7 and 85 of Wakf Act, 1995. In the abovecase suit was filed by Haryana Wakf Board seeking possession ofproperty which was given on lease to different persons. It is alleged thatearlier lessee illegally created a lease deed in favour of the respondentand treated it as illegal encroachment by the respondent. The appellantrequested him to vacate the premises and when he did not do so, suitwas filed in the Court of Civil Judge, Junior Division, Karnal. Therespondent appeared and raised various objections and one of the issuesframed was that the suit is not maintainable in the present forum. Thetrial court decreed the suit against which appeal was filed before theAdditional District Judge. The Additional District Judge held that since A

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Athe claim of the suit by the Wakf Board was on the basis that suit propertywas Wakf property and since the respondent had denied it to be theWakf property, such a question could be decided only by the Tribunalconstituted under the Wakf Act. The appeal court, therefore, returnedthe plaint for presentation to the Court of competent jurisdiction, namely,the Tribunal. The decree by the trial court was set aside. The secondBappeal filed by the defendant was dismissed hence appeal was filed.This Court after examining Sections 7, 83 and 85 laid down that whereverthere is a dispute regarding the nature of the property, namely, whetherthe suit property is Wakf property or not, it is the Tribunal which has theexclusive jurisdiction to decide the same. In paragraph 13 following hasCbeen laid down:“13. The present suit was instituted in the year 2000 i.e. afterthe Wakf Act, 1995 came into force. Therefore, the presentcase is not covered by exception to Section 7(5) of the WakfAct. Thus, on a plain reading of Section 7 read with Section 85Dof the Act, it becomes manifest that wherever there is a disputeregarding the nature of the property, namely, whether the suitproperty is wakf property or not, it is the Tribunal constitutedunder the Wakf Act, which has the exclusive jurisdiction to decidethe same. We need not delve into this issue any longer, in as muchas in a recent judgment by this very Bench of this Court inEBhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16SCC 51, decided on 9-9-2013, this Court took the same view,after taking note of earlier judgments on the subject, namely, SardarKhan v. Syed Najmul Hasan, (2007) 10 SCC 727, RameshGobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCCF726. This view has been reaffirmed in Akkode Jumayath PalliParipalana Committee v. P.V. Ibrahim Haji, (2014) 16 SCC65.”

The view of the High Court was approved upholding thejurisdiction of the Wakf Tribunal.G40. In Akkode Jumayath Palli Paripalana Committee vs. P.V.Ibrahim Haji and others, (2014) 16 SCC 65, this Court again hadoccasion to consider Sections 83 and 84 of the Wakf Act. The questionwhich arose in the above case is whether the Wakf Tribunal has gotjurisdiction to entertain a suit for injunction restraining the defendantsfrom interfering with the administration, management and peacefulHenjoyment of the mosque and madarsa run by it and all the assets attached to the mosque. The appellant had filed suit for injunction before theCourt of Munsif. It was transferred to the Wakf Tribunal. The suit wasdecreed. Civil Revision was filed in the High Court challenging the decreeof the Wakf Tribunal. The High Court setting aside the judgment anddecree of the Wakf Tribunal held that suit for injunction is not maintainablebefore the Wakf Tribunal placing reliance on the judgment of this Courtin Ramesh Gobindram(supra). Following was noticed in paragraph 3of the judgment:

“3. The respondents herein filed a civil revision petition as CRPNo. 1362 of 2004 under Section 83(9) of the Wakf Act before theKerala High Court. The High Court vide its judgment dated 10-11-2010 set aside the judgment and decree passed by the WakfTribunal holding that a suit for injunction is not maintainable beforea Wakf Tribunal placing reliance on the judgment of this Court inRamesh Gobindram v. Sugra Humayun Mirza Wakf. The Courtalso granted permission to the appellant to take back the plaint forpresenting before the appropriate court. Later, the appellantpreferred a review petition which was also dismissed by the HighCourt on 4-2-2011. The legality of the orders is under challenge inthis appeal.”

41. This Court disapproved the view of the High Court and heldthat suit was maintainable. Two-judge Bench has further observed thatthe judgment in Ramesh Gobindram(supra) later came up forconsideration before this Court in BoardofWakf, West Bengal v. AnisFatma Begum (supra) and the judgment in Ramesh Gobindram washeld to be distinguishable. Following was laid down by this Court inparagraphs 5 and 6:

“5. The ratio laid down in the abovementioned judgment inRamesh Gobindram case later came up for consideration beforethis Court in W.B. Wakf Board v. Anis Fatma Begum, (2010) 14SCC 588 and the judgment in Ramesh Gobindram case washeld distinguishable. That was a case where the dispute related tothe wakf estate which was created by a registered deed of wakfdated 22-9-1936. The question raised was with regard to thedemarcation of the wakf property, which this Court held is a matterwhich fell under the purview of the Wakf Act. The judgment ofthe Calcutta High Court which held otherwise was set aside andthis Court held that the Wakf Tribunal has jurisdiction to decidethose disputes.

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A6. We are of the view that the dispute that arises for considerationin this case is with regard to the management and peacefulenjoyment of the mosque and madarsa and the assets which relateto wakf. Nature of the relief clearly shows that the Wakf Tribunalhas got jurisdiction to decide those disputes. We, therefore, findno error in the Wakf Tribunal entertaining OS No. 53 of 2003 filedBby the appellant and the High Court has committed an error inholding otherwise. Consequently, the impugned order passed bythe High Court is set aside and the matter is remitted to the HighCourt to consider the revision on merits. The appeals are disposedof as above, with no order as to costs.”C42. Two-Judge Bench of this Court in the above case held the suitto be maintainable in the Wakf Tribunal and noted that the ratio of RameshGobindram has been distinguished in Anis Fatima case. But as perratio of Ramesh Gobindram unless there is any provision in the WakfAct, 1995 to entertain the said dispute only then Wakf Tribunal hasDjurisdiction, the suit filed for injunction was not maintainable in the abovecase. Thus, what is held in the above judgment by the two-Judge Benchis not in accord with the ratio of Ramesh Gobindram. Only one morejudgment of two-Judge Bench of this Court be noticed, where the suitfiled by the Punjab Wakf Board before the Wakf Tribunal praying formesne profits and possession was held to be maintainable, i.e, judgmentEin Punjab Wakf Board vs. Pritpal Singh & Anr.(Civil AppealNo.8194 of 2013) decided on 13.09.2013. The facts of the casehave 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.FThe Wakf Tribunal by its order dated 08.05.2009 decreed the suitfor possession as also for recovery of mesne profits.

Aggrieved by the same, the respondents preferred a writ petitionbefore the High Court for quashing the said order. By impugnedorder dated 16.12.2010, the Punjab & Haryana High Court hadset aside the order of the Wakf Tribunal on its finding that theGWakf Tribunal had no jurisdiction to entertain a suit for ejectment.It is against this order that the petitioner has preferred this specialleave petition.”

43. After considering the submissions, this Court laid down:“Having heard learned counsel for the parties, we are of theHopinion that the High Court had erred in holding that the suit was for ejectment and that being so the Wakf Tribunal has nojurisdiction. As we have observed earlier, the suit filed beforethe Wakf Tribunal was for possession and mesne profits and,therefore, the High Court had erred in setting aside the order ofthe Wakf Tribunal.”

44. Section 83 sub-section (1) has been substituted by Act 27 of2013. Substituted sub-section (1) is as follows:

“Section 83(1).- The State Government shall, by notification inthe Official Gazette, constitute as many Tribunals as it may thinkfit, for the determination of any dispute, question or other matterrelating to a waqf or waqf property, eviction of a tenant ordetermination of rights and obligations of the lessor and the lesseeof such property, under this Act and define the local limits andjurisdiction of such Tribunals.”

45. Section 83 sub-section (1) specifically includes eviction of atenant or determination of rights or obligations of the lessor and lesseeof such property.

46. In both the suits giving rise to these appeals the suits werefiled much before the amendment of Section 83 by Act 27 of 2013. We,thus, in the present case has to interpret Section 83 as it existed prior tothe above Amendment, 2013.

47. In sub-section (1) of Section 83 the State Government shallby notification in the Official Gazette, constitute as many Tribunals as itmay think fit. The words following the above sentence are “for thedetermination of any dispute, question or other matter relating to a wakfor wakf property under this Act….”. The Constitution of Tribunal is,thus, for the determination of any dispute, question or other matter relatingto wakf or wakf property under the Act, 1995. The “dispute, question orother matter relating to wakf or wakf property”, thus, has to arise underthe Act, 1995. Various provisions of the Act, 1995 refer to the Tribunaland the questions which are to be decided by the Tribunal. In this contextsub-section (1) of Section 6 refers to the questions which are to bedecided by the Tribunal. Sub-section (1) of Section 6 is as follows:

“Section 6(1).-If any question arises whether a particularproperty specified as wakf property in the list of wakfs is wakfproperty or not or whether a wakf specified in such list is a Shiawakf or Sunni Wakf, the Board or the mutawalli of the wakf orany person interested therein may institute a suit in a Tribunal for A

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Athe decision of the question and the decision of the Tribunal inrespect of such matter shall be final:

Provided that no such suit shall be entertained by the Tribunalafter the expiry of one year from the date of the publication ofthe list of wakfs.”

B48. Similarly, sub-section (1) of Section 7 also refers to decision ofthe question by the Tribunal. Sub-section (1) of Section 7 is quoted below:

“Section 7(1).-If, after the commencement of this Act, anyquestion arises, whether a particular property specified as wakfproperty in a list of wakf, is wakf property or not or whether awakf specified in such list is a Shia wakf or a Sunni wakf, theCBoard or the mutawalli of the wakf, or any person interestedtherein, may apply to the Tribunal having jurisdiction in relationto such property, for the decision of the question and the decisionof the Tribunal thereon shall be final:”

49. Section 33 contemplates filing of an appeal before the TribunalDagainst orders passed under Section 33. Section 33 sub-section (4) is asfollows:

“Section 33(4) A mutawalli or other person aggrieved by suchorder may, within thirty days of the receipt by him of the order,appeal to the Tribunal:

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EProvided that no such appeal shall be entertained by the Tribunalunless the appellant first deposits with the Chief Executive Officerthe amount which has been determined under sub-section (3) asbeing payable by the appellant and the Tribunal shall have no powerto make any order staying pending the disposal of the appeal, theoperation of the order made by the Chief Executive Officer underFsub-section (3).”

50. Similar provision of appeal to Tribunal is also contained underSection 51 sub-section (5). Section 52 sub-section (4) is again a provisionto file an appeal before the Tribunal. Section 54 deals with removal ofencroachment from Wakf property. Under Section 54(4) any personGaggrieved by an order passed by the Chief Executive Officer directingremoval of encroachment and delivering possession of the land, building,space or other property can institute a suit in a Tribunal to establish hisright, title or interest. Section 54(4) is as follows:

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“Section 54(4) Nothing contained in sub-section (3) shall preventany person aggrieved by the order made by the Chief ExecutiveOfficer under that sub-section from instituting a suit in a Tribunalto establish that he has right, title or interest in the land, building,space or other property:

Provided that no such suit shall be instituted by a person whohas been let into possession of the land, building, space or otherproperty as a lessee, licence or mortgagee by the mutawalli of thewakf or by any other person authorised by him in this behalf.”

51. Section 54(4) contemplates an appeal to the Tribunal by themutawalli who is aggrieved by an order of removal. Sub-section (6) ofSection 64 is again a power of the Tribunal to appoint a suitable personas receiver to manage the Wakf. On an application filed by the Board inan appeal challenging his removal order the Tribunal can appoint areceiver. These are provisions in the Act which refer to the Tribunal andrefer to the subject matter which can be brought before the Tribunal bymutawalli or Board or any aggrieved person. The use of the word “underthis Act”, under Section 83(1) relates to the words “for the determinationof any dispute, question or other matter relating to a Wakf or Wakfproperty”. Section 83(1) provides for constitution of Tribunal. Otherprovisions of Section 83 deals with the procedure including bar of appealagainst the order of the Tribunal except power of the High Court torevise the order of the Tribunal.

52. Coming to Section 83 which relates to bar of jurisdiction ofCivil Court, the relevant words are “any dispute, question or other matterrelating to a wakf or wakf property” which is required by or under thisAct to be determined by the Tribunal. Thus, bar of jurisdiction of CivilCourt is confined only to those matters which are required to bedetermined by the Tribunal under this Act. Thus, Civil Court shall havejurisdiction to entertain suit and proceedings which are not required byor under the Act, 1995 to be determined. Thus, answering the questionof jurisdiction, question has to be asked whether the issue raised in thesuit or proceeding is required to be decided under the Act, 1995 by theTribunal, under any provision or not. In the event, the answer isaffirmative, the bar of jurisdiction of Civil Court shall operate.

53. In the judgment in Ramesh Gobindram (supra) this Courtafter considering Sections 83 and 85 as noted above has explained theprovisions. We now have to apply the proposition of the law as notedabove in facts before us in both the appeals.

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54. In Civil Appeal No.92 of 2019(Punjab Wakf Board vs. ShamSingh Harike) suit for injunction was initiated by the Board in the CivilCourt against the defendant. In the written statement filed by ShamSingh Harike it was pleaded that suit property is not a Wakf property. Inparagraph 2 of the written statement following was stated:

B“2. Para 2 of the plaint is wrong and denied. It is wrong thatland measuring 269K-7M is a Wakf property. Mutation doesnot confer any title on any person. Mutation is under challengeas detailed in the preliminary objections. Plaintiff has intentionallyconcealed the said fact. The plaintiff has also not disclosed thefact that the notification on the basis of which the alleged mutationChas been sanctioned, does not confer any right, title or interest.The property can only be transferred by a registered instrumentduly registered under the provision of Registration Act. Thus,plaintiff has no right, title or interest in the suit property nor iscompetent to file the present suit qua the said property.”

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55. The suit was transferred to the Wakf Tribunal and the samewas renumbered as RBT No.84/2006. An application was filed by thedefendant for rejection of the plaint on the ground that the Tribunal hasno jurisdiction to entertain the suit. The Tribunal rejected the application.Against the order of rejecting application, civil revision was filed by theEdefendant in the High Court. The High Court relying on judgment of thisCourt in Ramesh Gobindram has given the following reason for allowingthe revision:

“In view of the aforesaid authoritative pronouncement by theApex Court, where in it has been held that the right, title andinterest of a non-muslim to the Wakf in a property cannot be putFin jeopardy because that property is included in the list of Wakf,the impugned order cannot be sustained.

Thus, the present revision petition is allowed and the impugnedorder is set aside holding that since the Petitioner is a non-muslim,the Wakf Tribunal has no jurisdiction in the matter and it is onlyGthe Civil Court which had the jurisdiction in the present dispute.”

56. The High Court had noticed that portion of judgment ofRamesh Gobindram where this Court had noticed an earlier judgmentof this Court in Board of Muslim Wakfs, Rajasthan v. Radha Kishanand others, (1979) 2 SCC 468. Paragraphs 20 and 21 of the judgmentHof Ramesh Gobindram have been relied which are to the followingeffect:

“20. From a conjoint reading of the provisions of Sections 6 and7 (supra) it is clear that the jurisdiction to determine whether ornot a property is a wakf property or whether a wakf is a Shiawakf or a Sunni wakf rests entirely with the Tribunal and no suitor other proceeding can be instituted or commenced in a civilcourt in relation to any such question after the commencement ofthe Act. What is noteworthy is that under Section 6 read withSection 7 (supra) the institution of (sic a suit in) the civil court isbarred only in regard to questions that are specifically enumeratedtherein. The bar is not complete so as to extend to other questionsthat may arise in relation to the wakf property.

21. We may at this stage usefully digress from the core issueonly to highlight the fact that Section 6(1) and the proviso theretohave fallen for interpretation of this Court on a few occasions.In Board of Muslim Wakfs v. Radha Kishan,(1979) 2 SCC468, one of the questions that fell for determination was, whoare the parties that could be taken to be concerned in a proceedingunder sub-section (1) of Section 6 of the Act. This Court held thatunder Section 6(1) the Board or the mutawalli of the wakf or anyperson interested therein is entitled to file a suit but the word“therein” following the expression “any person interested” mustnecessarily refer to the word “wakf” which immediately precedesit. The object underlying the proviso, observed this Court, was toconfine the power to file a suit to the mutawalli and personsinterested in the wakf. It did not extend to persons who are notpersons interested in the wakf. Consequently, the right, title andinterest of a stranger, (a non-Muslim), to the wakf in a propertycannot be put in jeopardy merely because that property is includedin the list of wakfs. The special rule of limitation prescribed by theproviso to Section 6(1) was itself held inapplicable to him and asuit for declaration of title to any property included in the list ofwakfs held maintainable even after the expiry of the period ofone year.”

57. This Court in Ramesh Gobindram has referred to earlierjudgment in Board of Muslim Wakfs, Rajasthan v. Radha Kishanand others, (1979) 2 SCC 468. In the case of Board of MuslimWakfs this Court had occasion to interpret sub-section (1) of Section 6with proviso to sub-section (1) of Wakf Act, 1954. The questions which AB

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Afell for consideration in the above case has been considered in paragraph22 which is to following effect:

“22. The questions that fall for determination upon the appealare two: first, whether a Commissioner of Wakfs appointed undersub-section (1) of Section 4 of the Wakf Act, 1954, has theBjurisdiction under sub-section (3) of Section 4 to enquire whethera certain property is wakf property or not when such a dispute israised by a stranger to the wakf and second, if so, whether thefailure of such a person to institute a suit in a civil court ofcompetent jurisdiction for decision of such question within a periodof one year, as provided for under sub-section (1) of Section 6,Cmakes the inclusion of such property in the list of wakfs publishedby the Board under sub-section (2) of Section 5 of the Act finaland conclusive under sub-section (4) of Section 6.”

58. In the above case the respondents were mortgagee ofproperty which under Section 5 of 1954, Act was published for inclusionDin the list of Wakfs. The writ petition was filed by the respondentschallenging legality and validity of the proceedings taken which wasallowed by the High Court. The High Court held that where a personclaiming title is a stranger to the Wakf, the inclusion of such property inthe list of Wakfs by the Board under sub-section (2) of Section 5 of theAct shall not be final and conclusive. This Court noticed the contentionEof the respondents who contended that they being non-Muslims they areoutside the scope of sub-section (1) of Section 6 and they have no rightto file the suit contemplated by that sub-section, therefore, the list ofWakfs published under sub-section (2) of Section 5 cannot be final andconclusive against them under sub-section (4) of Section 6. The argumentFraised by the respondents was accepted by this Court and following waslaid down in paragraph 33:

“33. The answer to these questions must turn on the truemeaning and construction of the word “therein” in the expression“any person interested therein” appearing in sub-section (1) ofGSection 6. In order to understand the meaning of the word “therein”in our view, it is necessary to refer to the preceding words ‘theBoard or the mutawalli of the wakf’. The word ‘therein’ mustnecessarily refer to the “wakf” which immediately precedes it. Itcannot refer to the “wakf property”. Sub-section (1) of Section 6

enumerates the persons who can file suits and also the questionsin respect of which such suits can be filed. In enumerating thepersons who are empowered to file suits under this provision, onlythe Board, the mutawalli of the wakf, and “any person interestedtherein”, thereby necessarily meaning any person interested inthe wakf, are listed. It should be borne in mind that the Act dealswith wakfs, its institutions and its properties. It would, therefore,be logical and reasonable to infer that its provisions empoweronly those who are interested in the wakfs, to institute suits.”

59. This Court after holding that the word ‘therein’ used in sub-section (1) of Section 6 must necessarily refer to the ‘wakf’. Afterholding the above following was laid down in paragraphs 39 and 42:

“39. It follows that where a stranger who is a non-Muslim and isin possession of a certain property his right, title and interest thereincannot be put in jeopardy merely because the property is includedin the list. Such a person is not required to file a suit for adeclaration of his title within a period of one year. The special ruleof limitation laid down in proviso to sub-section (1) of Section 6 isnot applicable to him. In other words, the list published by theBoard of Wakfs under sub-section (2) of Section 5 can bechallenged by him by filing a suit for declaration of title even afterthe expiry of the period of one year, if the necessity of filing suchsuit arises.

42. We must accordingly hold that the Commissioner of Wakfsacted within jurisdiction in holding the disputed property to bewakf property. It must, therefore, follow that the Board of MuslimWakfs, Rajasthan was justified in including the property in the listof wakfs published under sub-section (2) of Section 5 of the Act.We must also hold, on a construction of sub-section (1) of Section6 that the list of wakfs so published by the Board was not finaland conclusive under sub-section (4) of Section 6 against theRespondents 1 and 2 due to their failure to bring a suit within oneyear as contemplated by sub-section (1) of Section 6.”

60. In the above sub-section (1) of Section 6 of Act, 1995 anexplanation has been added which is to the following effect:“Explanation.- For the purposes of this Section and Section 7the expression “any person interested therein,” shall, in relationto any property specified as wakf property in the list of wakfs AB

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published after the commencement of this Act, shall include alsoevery person who, though not interested in the wakf concerned, isinterested in such property and to whom a reasonable opportunityhad been afforded to represent his case by notice served on himin that behalf during the course of the relevant inquiry underSection 4.”

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The explanation to sub-section (1) of Section 6 makes it clearthat any person interested ‘therein’ who, though not interestedin the Wakf concerned, is interested in such property. The aboveamendment of Section 6 sub-section (1) has made theinterpretation of this Court in Board of Muslim Wakfs (supra)Cof Section 6 sub-section (1) inapplicable. Thus, the interpretationthat the word ‘therein’ refers to only Wakf has been consciouslydeparted with and any person interested therein is a person who isinterested in Wakf as well as in Wakf property both.

61. In the above context it is relevant to notice another judgmentDof this Court in Punjab Wakf Board v. Gram Panchayat, (2000) (2)SCC 121, in which case the explanation which was inserted in Section6(1) of the Wakf Act, 1954 by Central Act 69 of 1984 came to beconsidered. The explanation which was added in Section 6(1) by 1984Amendment has brought almost the same statutory scheme which hasbeen brought by explanation of Section 6(1) of Act, 1995. On explanationEinserted by 1984 Amendment, this Court laid down following:

“24. Learned counsel for the appellant also referred to theexplanation added below to sub-section (1) of Section 6 of theWakf Act, 1954, by Central Act 69 of 1984. The explanationreads as follows:

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“Explanation.—For the purpose of this section and Section6-A, the expression ‘any person interested therein’ occurring insub-section (1) of this section and in sub-section (1) of Section6-A, shall, in relation to any property specified as wakf propertyin a list of wakfs published, under sub-section (2) of Section 5,Gafter the commencement of the Wakf (Amendment) Act, 1984,shall include also every person who, though not interested in thewakf concerned, is interested in such property and to whom areasonable opportunity had been afforded to represent his caseby notice served on him in that behalf during the course of therelevant inquiry under Section 4.”

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25. Obviously, the intention of Parliament was to say that if asuit was not filed within one year, the notification would be bindingnot only on those interested in the trust but even strangers, claiminginterest in the property in question, provided they were given noticein the inquiry under Section 4 preceding the notification underSection 5(2).

26. In this connection, we have to point out that the Governmentof India has not issued any date for commencement of theexplanation in Section 6 of the Wakf Act quoted above. Even if itis assumed that the explanation can be invoked, there is nomaterial before us to show that any notice was issued to theGram Panchayat before the issuance of the notification, asrequired by the explanation. If no notice was issued as requiredby the notification, the notification would not come in the way ofa civil court to decide the question if raised between the Wakfand a third party, even if such a suit was filed beyond one yearfrom the date of the notification. Thus, once the Assistant Collectorand the Collector had jurisdiction to decide, their decision becamefinal and Section 13 of the Punjab Act barred the civil suit filed bythe Wakf Board.”

62. The judgment of this Court in Punjab Wakf Board v. GramPanchayat interpreting the explanation, thus, held that the notificationissued under Section 5 would be binding not only on those interested inthe Wakf but even strangers, claiming interest in the property in question,provided they were given notice in the inquiry under Section 4 precedingthe notification under Section 5(2). The interpretation put by this Courtin Punjab Wakf Board Vs. Gram Panchayat to the explanation addedby Amendment Act, 1984 can equally be applied to interpretation ofexplanation to sub-section (1) of Section 6 of Act, 1995. Applying theabove ratio to the interpretation of explanation of Section 6(1) of Act,1995 following two conclusions can be drawn:

(a) Any person interested in the Wakf property which isspecified as Wakf property in the list of Wakfs published underSection 5 can also raise the dispute regarding the Wakf propertyby instituting a suit in a Tribunal. Limitation for filing such suit byany person interested in the Wakf property is one year as perSection 6(1) proviso.

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(b) The finality of the Wakf property being included in thelist of Wakfs published under Section 5(2) shall not be on aperson to whom a reasonable opportunity had not been affordedto represent his case by notice served on him during the courseof relevant inquiry under Section 4.

B63. We may also notice the provision of Section 6 of sub-section(5) as it existed when suit was filed by Punjab Wakf Board againstSham Singh Harike. Section 6 sub-section (5) provided as follows:

“6(5) On and from the commencement of this Act in a State, nosuit or other legal proceeding shall be instituted or commence in aCCourt in that State in relation to any question referred to in sub-section (1).

64. As per Section 6 sub-section (1) if any question arises as towhether a Wakf property in the list of Wakfs is wakf property or not,asuit can be instituted in a Tribunal for the decision of the question whichDdecision shall be treated as final. Limitation for such suit was also providedin proviso as one year from the date of the publication of the list ofWakfs. Sub-section (5) of Section 6 contained the provision barring asuit in any Court after the commencement of the Act in relation to anyquestion 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) theEquestion has arisen as to whether suit property is a Wakf property ornot. We have noticed pleadings in written statement filed by the defendantin the above suit where it was specifically denied that suit property is aWakf property. Thus, within the meaning of sub-section (1) of Section 6question that whether a suit property is a Wakf property or not hasFarisen. Thus, the suit wherein the above question has arisen ought to beconsidered by the Tribunal and the High Court clearly erred in allowingthe revision filed by the defendant by its order dated 20.09.2010.

65. Thus, the view of the High Court that right, title and interestof a non-Muslim to the Wakf in a property cannot be put in jeopardy iscontrary to the statutory scheme as contained in Section 6 of the Act,G1995. Thus, the reason of the High Court to allow the revision petition iswholly unfounded. The defendant in written statement has pleaded thatthe suit property is not Wakf property. When issue in the suit is as towhether suit property is Wakf property or not it is covered by specificprovision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is requiredHto be decided by the Tribunal under Section 83 and bar under Section 85

shall come into existence with regard to jurisdiction of Civil Court. Inthis context, in the judgment in Haryana Wakf Board vs. MaheshKumar, (2014) 16 SCC 45, this Court has laid down that the questionas to whether the suit property is a Wakf property is a question whichhas to be decided by the Tribunal. In the above case plaint was returnedby the Appellate Court under Order VII Rule 10 for presentation beforethe Tribunal which view was upheld by this Court. In paragraph 6 of thejudgment following was laid down:

“6....Deciding the question of maintainability and locus standi, inrespect of which Issues 2 and 4 were framed, the first appellatecourt held that since the claim in the suit by the petitioner which isa Wakf Board, was on the basis that suit property was wakfproperty and since the respondent had denied it to be the wakfproperty, the question had arisen as to whether suit property iswakf property or not. Such a question, in the opinion of the learnedAdditional District Judge, could be decided only by the Tribunalconstituted under the Wakf Act. The appeal court, therefore,returned the plaint to the petitioner under Order 7 Rule 10 CPCfor presentation to the court of competent jurisdiction, namely, theTribunal. The result was that the decree passed by the trial courtwas set aside and the plaint returned.”

66. Civil Appeal No.92 of 2019 is, thus, fully covered by thejudgment of this Court in Haryana Wakf Board vs. Mahesh Kumar.The defendant having pleaded that suit property is not a Wakf property,the question has to be decided by the Tribunal. Thus, the High Court hascommitted error in allowing the revision petition. Thus, this appealdeserves to be allowed.

67. One more question needs to be considered is as to whethera suit within the meaning of Section 6 sub-section (1) or Section 7(1) isto be filed within a period of one year of publication of list of Wakfsunder Section 5.

68. The provision contained in proviso to Section 6(1) that nosuch suit shall be entertained by the Tribunal after the expiry of one yearfrom the date of the publication of the list of Wakfs shall be applicable toevery person who though not interested in the Wakf concerned, isinterested in such property and to whom a reasonable opportunity hadbeen afforded to represent his case by notice served on him in thatbehalf during the course of the relevant inquiry under Section 4.

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A69. When Section 6 sub-section (1) provides for raising a disputeregarding Wakf property in a period of one year, it applies to everyperson who wants to dispute the list except those who have been notserved notice under Section 4(1).

70. Now coming to Civil Appeal No.93 of 2019(Punjab WakfBBoard vs. Teja Singh), the suit was filed by Wakf Board for possessionof suit property and injunction in the Tribunal. The above suit was fullycovered by the ratio laid down by this Court in Ramesh Gobindram(supra). The High court relying on Ramesh Gobindram case hasallowed revision petition filed by the defendant. We do not find any errorin the order of the High Court allowing the revision petition filed by theCdefendant directing the plaint along with documents was returned to bepresented before the appropriate court i.e. Civil Court. We uphold theabove order of the High Court. In the result, this appeal deserves to bedismissed.

71. In view of the foregoing discussions, we allow Civil AppealDNo.92 of 2019 (Punjab Wakf Board vs. Sham Singh Harike) and setaside the order of the High Court dated 20.09.2010. Civil Appeal No.93of 2019 (Punjab Wakf Board vs. Teja Singh) is dismissed. Parties shall bear their own costs.

EDevika Gujral

Appeals disposed of.

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