Rashid Wali Beg vs Farid Pindari & Ors.

Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act

27 of 2013 – Held: Act 27 of 2013 did 2 things – First it expanded the jurisdiction of Waqf Tribunal even to cover landlord-tenant disputes and the rights and obligations of lessor and lessee – Second, it enlarged the bar of jurisdiction, to cover even revenue courts and other authorities.

Waqf Act, 1995 – ss.6(1), 7(1) – Held: By Act 27 of 2013 the words, “any person interested” were substituted by the words, “any person aggrieved”, meaning thereby that even a non Muslim is entitled to invoke the jurisdiction of the Tribunal – Due to the substitution of the words “any person aggrieved”, Act 27 of 2013 has deleted the Explanation u/s.6(1).

Waqf Act, 1995 – ss.83, 85 and 86 – Special provision u/s.86 – Held: Dehors the jurisdiction conferred upon the Tribunal u/s.83(1) and dehors the bar of jurisdiction of the civil court, revenue court and any other authority u/s.85, the 1995 Act contains a special provision in s.86 for the appointment by the civil court, of a Receiver, in certain cases – It is clear from s.86, that in suits or other proceedings instituted by the Board falling u/clause (a) or those instituted by the mutawalli falling u/clause (b) of s.86, the civil court will have jurisdiction to appoint a receiver – As a corollary, the bar u/s.85 will have no application to cases covered by s.86. Waqf Act, 1995 – ss.83, 85, 86, 90 and 93 – Question of bar of jurisdiction of the civil court – Determination of – Held: In view of the language employed in ss.83 and 85, coupled with the reference to civil courts in ss.86, 90 and 93, it appears that the question of bar of jurisdiction of the civil court, has been left by the law makers to the vagaries of judicial opinion and this has given rise to conflicting decisions.

Waqf Act, 1995 – s.83 – Code of Civil Procedure, 1908 – Or.39, r.1 – Held: s.83(5) makes it clear that the Waqf Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the CPC, while trying a suit or executing a decree or order – The Tribunal will have power to issue temporary injunctions u/Or. 39, r.1, CPC.

Waqf Act, 1995 – ss.6, 7 and 85 – Held: A conjoint reading of ss.6, 7 and 85 would show that the bar of jurisdiction of civil court contained in s.6(5) and s.7(2) is confined to Chapter-II, but the bar of jurisdiction u/s.85 is all pervasive – Distinguishing features enumerated.

Words & Phrases – “any dispute, question or other matter relating to a waqf or waqf property” in s.83(1) – Discussed – Waqf Act, 1995.

Allowing the appeal, the Court

HELD: 1.1 The words “eviction of tenant or determination of rights and obligations of the lessor and the lessee of such property” were inserted in sub-section (1) of Section 83, after the words “waqf property”, by Amendment Act 27 of 2013. Similarly, the words, “civil court” were substituted by the words “civil court, revenue court and other authority”, in Section 85, by Amendment Act 27 of 2013. Thus, Act 27 of 2013 did 2 things. First it expanded the jurisdiction of Waqf Tribunal even to cover landlord-tenant disputes and the rights and obligations of lessor and lessee. Second, the Amendment Act enlarged the bar of jurisdiction, to cover even revenue courts and other authorities. Sub-section

(2) of Section 83 of the 1995 Act indicates the persons who are entitled to invoke the jurisdiction of the Tribunal. They are, (i) any mutawalli of the waqf; (ii) a person interested in the waqf; or

(iii) any other person aggrieved by any order made under the Act or Rules or any order made there under. [Paras 17-20][20-F-H; 21-A-B]

1.2 Dehors the jurisdiction conferred upon the Tribunal under Section 83(1) and dehors the bar of jurisdiction of the civil court, revenue court and any other authority under Section 85, the 1995 Act contains a special provision in Section 86 for the appointment by the civil court, of a Receiver, in certain cases. Section 86 thus recognises the right of the Board to institute or commence any suit or other legal proceeding, (i) to set aside the sale of a waqf property in execution of a decree of civil court;

(ii) to set aside the transfer of any waqf property made by the mutawalli, without the sanction of the Board or otherwise than in accordance with the sanction of the Board; and (iii) to recover and restore possession of such property to the mutawalli. Clause

(b) of Section 86 recognises a similar right for the mutawalli to recover possession of waqf property, which has been transferred by the previous mutawalli or any other person without the sanction of the Board. It is therefore clear from Section 86, that in suits or other proceedings instituted by the Board falling under clause

(a) or those instituted by the mutawalli falling under clause (b) of Section 86, the civil court will have jurisdiction to appoint a receiver. As a corollary, the bar under Section 85 will have no application to cases covered by Section 86. Apart from the bar of jurisdiction of civil courts under Section 85, the Act envisages yet another bar under Section 88. Section 88 excludes the jurisdiction of a civil court to entertain a challenge to any notification or order or decision made, proceeding or action taken by the Central Government or the State Government under the Act. [Paras 21-24][21-C; 22-B-F]

1.3 Section 89 of the Waqf Act, 1995 contains a rule similar to Section 80 CPC, in respect of suits instituted against the Board. Section 90 which regulates the procedure for the issue of notice of suits, refers both to courts and tribunals. Sub-section (1) of Section 90 uses the words, “the court or Tribunal” and it refers to suit or proceeding relating to title to or possession of a waqf property or the right of the mutawalli or beneficiary. A cumulative reading of Sections 86, 89 and 90 would show that the bar of jurisdiction under Section 85 is not total and omnipotent and that there may be cases which could still be entertained by civil courts. In fact, Section 93 which prohibits the mutawalli from entering into a compromise with the opposite party in any suit, also refers to “court”. [Paras 25-27][22-G-H; 23-E-F]

1.4 Section 83(2) specifically enables, (i) any mutawalli; (ii) any person interested in a waqf; and (iii) any other person aggrieved by an order made under the Act, to invoke the jurisdiction of the Tribunal for the determination of any dispute, question or other matter relating to the waqf. Section 83(2) does not make any reference to the Waqf Board. However, Section 94(1) enables the Board to apply to the Tribunal, for appropriate orders, whenever a mutawalli fails to perform an act recognized by Muslim Law as pious, religious and charitable. Under Section

61 of the 1954 Act, such an application can be made by the Board only to the court, but now it can be made to the Tribunal under Section 94(1). In view of the language employed in Sections 83 and 85, coupled with the reference to civil courts in Sections 86,

90 and 93, it appears that the question of bar of jurisdiction of the civil court, has been left by the law makers to the vagaries of judicial opinion and this has given rise to conflicting decisions. [Paras 28, 29][23-H; 24-A-C]

1.5 The decision of this Court in Ramesh Gobindram is the one, which, ironically, attempted to settle the controversy on hand, but has produced conflicting results in the subsequent decisions. A bare reading of Sections 6 and 7 as they stood when Ramesh Gobindram was decided shows that the language employed therein appears to have deflected the attention of many a court without exception. A careful look at the scheme of the Act would show that the Act is divided into 9 chapters. Chapter-II which contains Sections 4 to 8, is primarily concerned with the survey of waqfs. Sections 6 and 7 are incidental to the scheme of ChapterII alone, which is why they speak only about two questions namely,

(i) whether a particular property specified as a waqf property in the list of waqfs is actually a waqf property or not; and (ii) whether a waqf specified in such list is a Shia waqf or Sunni waqf. While Section 4 contemplates a preliminary survey of all waqfs in the State, Section 5(2) speaks about publication of the list of waqfs (separately for Shia and Sunni) in the official gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only to the aforesaid two questions. In other words, the questions relevant for the purposes of Sections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7. Sections 83 and 85, as well as Sections 86, 90 and 93, which use the word “court”, are to be found in Chapter VIII of the Act. The heading given to Chapter VIII is “Judicial Proceedings”. Therefore, for finding an answer to the question relating to the bar of jurisdiction under Section 85, it is not enough merely to refer to Section 6(5) or Section 7(2). The language of Section 85 is clearly in contrast to the language employed in Section 6(5) and Section 7(2). [Paras 30-32][34-F-H; 35-A-D] Ramesh Gobindram v. Surgra Humayun Mirza Waqf

(2010) 8 SCC 726 : [2010] 10 SCR 945 – distinguished.

1.6 A conjoint reading of Sections 6, 7 and 85 would show that the bar of jurisdiction of civil court contained in Section 6(5) and Section 7(2) is confined to Chapter-II, but the bar of jurisdiction under Section 85 is all pervasive. This can be seen from the following distinguishing features:-

(i) Section 6(5) bars the institution or commencement of a suit or other legal proceeding in a court “in relation to any question referred to in sub-section (1)”. Sub-section (1) of Section 6 speaks only about two questions namely, whether a particular property specified as a waqf property in the list of waqfs is a waqf property or not and whether a waqf is Shia waqf or Sunni waqf;

(ii) Section 7(2) bars any court, tribunal or other authority from staying any proceeding before the Waqf Tribunal, in respect of a waqf, on the only ground of pendency of any suit, application or appeal or other proceeding. Section 7(2) specifically relates to the proceedings under Section 7 and not to any other proceeding. This is clear by the use of the words, “no proceeding under this Section”. Section 7(1) again deals only with two questions namely, whether a particular property specified as waqf property in the list of waqfs is a waqf property or not and whether a waqf specified in the list is a Shia waqf or Sunni waqf. Therefore, the bar under Section 7(2) is also confined only to these two questions, on account of the use of the words, “no proceeding under this Section”.

(iii) While Sections 6(1) and 7(1) speak only about two questions which are germane to the matters covered by ChapterII of the Act alone, Section 85 speaks (i) about any dispute, question or other matter relating to any waqf or waqf property and (ii) about “other matter which is required by or under this Act to be determined by a Tribunal”.

(iv) A major distinguishing feature between Sections 6(1) and 7 (1) on the one hand and Section 83 on the other hand is that the dispute, question or other matter referred to in Sections

6 and 7 are confined only to what is included in the list of waqfs prepared under Section 4 and published under Section 5. The words “specified … in the list of waqfs” found in sections 6 (1) and 7(1), are conspicuous by their absence in section 83 (1). Therefore, it is clear that Sections 6 and 7 speak only about two categories of cases, but Section 83 covers the entire gamut of possible disputes in relation to any waqf or waqf property. [Para 33][35-DH; 36-A-D]

1.7 There are 2 limbs to Section 85. The words, “any dispute, question or other matter relating to any waqf or waqf property” used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Sections 6(1) and 7(1). The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1). Unfortunately, many courts were misled by the reference to two specific questions in Sections 6(1) and 7(1), to come to the conclusion that the bar of jurisdiction was confined only to disputes revolving around those two questions. [Paras 34, 35][36-D-G]

1.8 The basis of the decision in Ramesh Gobindram was removed through an amendment under Act 27 of 2013. Ramesh Gobindram sought to address the question whether a Waqf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of persons in occupation of what are admittedly waqf properties. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, “eviction of tenant or determination of rights and obligations of the lessor and lessee of such property”. Simultaneously, sub-section (6) was inserted in Section 7 by Act

27 of 2013. This sub-section (6) of Section 7 states that the Tribunal shall have the power of assessment of damages by unauthorized occupation of waqf property and to penalize such unauthorized occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector. Ideally, the provisions of sub-section (6) should have found a place somewhere in Section 83, since what is sought to be covered by sub-section (6) of Section 7 has no correlation to the two questions about which Section 7(1) speaks. But the reason why the Parliament thought fit to include something in Section 7, which has no correlation to sub-section (1) of Section 7, is perhaps the fact that Ramesh Gobindram turned primarily on the language of Sections 6 and 7. [Paras 36, 37][36-G-H; 37A-B, E]

1.9 The basis of Ramesh Gobindram now stands removed through amendment Act 27 of 2013. In fact, when Ramesh Gobindram was decided, Sections 6(1) and 7(1) enabled only three categories of persons to approach the Waqf Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any person interested therein. However, the explanation under Section 6(1) clarified that the expression “any person interested therein” shall include every person, who, though not interested in the waqf, is interested in the property. But by Act 27 of 2013 the words, “any person interested” were substituted by the words, “any person aggrieved”, meaning thereby that even a non Muslim is entitled to invoke the jurisdiction of the Tribunal. Due to the substitution of the words “any person aggrieved”, Act 27 of 2013 has deleted the Explanation under 6(1). This amendment has also addressed the concern expressed in Ramesh Gobindram whether a non Muslim could be put to jeopardy by the bar of jurisdiction, merely because the property is included in the list of waqfs. The Explanation under sub-section (1) of Section 6, as it stood at the time when Ramesh Gobindram was decided, already took care of this contingency, but was omitted to be brought to the notice of this court. [Para 38][37-F-H; 38-AB]

1.10 If the Waqf Act, 1995 had merely stopped with a reference to the matters as listed as capable of being adjudicated by the Tribunal, there would have been no scope for any confusion. But unfortunately, the Act makes a specific reference to court/civil Court also in certain places. Sections 86, 90 and 93 make specific reference to “Court”. Section 68(6) goes a step further by making a reference to ‘civil court’. A combined reading of Sections 68(6), 86, 90 and 93 goes to show that the bar of jurisdiction under Section 85 does not apply at least to the matters as enumerated, covered by Sections 68(6), 86 and 90. [Paras 44, 45][42-H; 43-A-B, D-E]

2.1 After admitting the property to be a waqf property, the appellant herein (defendant no.1) filed an application under Order VII, Rule 11 on the sole ground that a suit for injunction could be filed only before the Waqf Tribunal. This application for rejection of plaint was allowed by the Trial Court and the suit was dismissed. The first appellate court confirmed the same but on a second appeal, the High Court set aside the judgments of the Trial Court and the first appellate court with a direction to the Civil Court to proceed in accordance with law. The approach of the High Court is not in tune with the law. The question as to whether the suit for perpetual injunction is maintainable before the Waqf Tribunal or not, is already answered in Akkode Jumayath Palli Paripalana Committee. This Court, pointed out in the said decision that Ramesh Gobindram was distinguished in Anis Fatma Begum, and that therefore the Tribunal had jurisdiction to entertain a suit for perpetual injunction. But unfortunately, this decision rendered by this Court on 23.07.2013 does not appear to have been brought to the notice of the High Court. [Paras 49, 50][44-F-G; 45-A-B]

Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji and Ors. (2014) 16 SCC 65 : [2013] 7 SCR 1033 – relied on.

2.2 It is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. The first part of Section 83 can be broken into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words “any dispute, question or other matter relating to a waqf or waqf property” are sufficient to cover any dispute, question or other matter relating to a waqf property. The court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1). [Paras 52, 53][45-H; 46-A-C, E]

2.3 Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the CPC, while trying a suit or executing a decree or order. The Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 CPC. The dichotomy created in some decisions of this court, between the properties which are admitted to be waqf properties and properties which are disputed to be so, is on account of the misapplication of the two limited questions in Sections 6(1) and 7(1) to the whole of the Act including section

83. The prescription in Section 83 cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property. [Paras 54, 55][46-FG; 47-C-E] Syed Mohideen and Another v. Ramanathapura Peria Mogallam Jamath and Others (2010) 13 SCC 62 :

[2010] 8 SCR 777 – relied on.

2.4 In the case on hand, the property is admitted to be a waqf property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be ignore the mandate of section 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property. A question as to the nature of the waqf and whether the plaintiff is a beneficiary of the waqf, has also arisen in this case. This question has necessarily to be decided by the Tribunal and not the civil court. The judgment and decree of the High Court are set aside. The trial court shall return the plaint to the plaintiff, for presentation to the jurisdictional Waqf Tribunal. [Paras 56, 57][47-E-F, G-H; 48-A]

Sayed Muhammed Mashur Kunhi Koyal Thangal v.

Badagara Jumayath Palli Dharas Committee (2004) 7 SCC 708 : 2004 (6) JT 556; Sardar Khan v. Syed Najmul Hasan (2007) 10 SCC 727 : [2007] 3 SCR 436 – distinguished.

Board of Waqf v. Anis Fatma Begum (2010) 14 SCC

588 : [2010] 13 SCR 1063; Telangana State Waqf Board v. Mohamed Muzafar (2021) SCC Online SC 537;

Haryana Waqf Board v. Mahesh Kumar (2014) 16 SCC

45 : [2013] 12 SCR 596 – relied on.

Punjab State Waqf Board v. Pritpal Singh (2013) SCC Online SC 1345; Bhanwar Lal v. Rajasthan Board of Muslim Waqf (2014) 16 SCC 51 : [2013] 9 SCR 721; Faseela M v. Munnerul Islam Madrasa Committee

(2014) 16 SCC 38 : [2014] 4 SCR 613; Rajasthan Waqf Board v. Devki Nandan Pathak (2017) 14 SCC 561; Dharampal v. Punjab Waqf Board (2018) 11 SCC 449 : [2017] 8 SCR 316; Punjab Waqf Board v. Sham Singh Harike (2019) 4 SCC 698 : [2019] 2 SCR 61; Kiran Devi v.Bihar State Sunni Waqf Board (2021) SCC Online SC 280; Abdul Jata Mohammed Ishak v.

Russomoy Dhur Choudhary 1894 (22) Calcutta (PC) – referred to.