Hon'ble Mr. Justice Ashok Bhushan
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 92 OF 2019
PUNJAB WAKF BOARD ...APPELLANT(S)
SHAM SINGH HARIKE ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 93 OF 2019
PUNJAB WAKF BOARD ...APPELLANT(S)
VERSUS
TEJA SINGH ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
These two appeals having been filed against two
separate judgments of the Punjab and Haryana High
Court allowing the Civil Revisions filed by the
respondents have been heard together and are being
decided by this common judgment.
2
2. Brief facts giving rise to the above appeals
which are necessary to be noticed for deciding these
appeals are:
Civil Appeal No.92 of 2019(Punjab Wakf Board vs. Sham
Singh Harike)
The appellant, Pubjab Wakf Board, claimed to be
owner of land measuring 269 kanals 7 marlas,
comprising in khewat No.462, khatauni Nos.589, 593,
599 and 596 in khasra Nos.103, 105, 102 min, 104,
106, of village Birmi, Tehsil and District Ludhiana.
The appellant had let out the above-mentioned land to
Sham Singh and his wife Kuldeep Kaur for cultivation
of the land. The lessee deposited the rent for few
years and thereafter initiated litigation against the
interest of the Board which was decided in favour of
the Board. The appellant filed Civil Suit No.250 of
2001 in the Court of Civil Judge, Senior Division for
the grant of permanent injunction restraining the
respondents from raising any construction and
changing the position from agricultural to
residential of the property in any manner. The
respondents filed written statement challenging the
maintainability of the suit. The title of the
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appellant was denied in the written statement. After
the constitution of the Wakf Tribunal, the suit was
transferred to the Wakf Tribunal and renumbered as
RBT No.84/2006. The respondent filed an application
before the Tribunal for rejection of the plaint on
the ground that the Tribunal has no jurisdiction to
entertain the suit and the Civil Court alone has
jurisdiction to entertain the suit. The Wakf Tribunal
by its order dated 17.04.2009 rejected the
application of the respondent and held that after
01.01.1996 it is only the Wakf Tribunal which has
jurisdiction to try the present suit.
3. The respondent aggrieved by the order dated
17.04.2009 filed Civil Revision in the High Court.
The High Court relying on the judgment of Ramesh
Gobindram(dead) through LRs. vs. Sugra Humayun Mirza
Wakf, (2010) 8 SCC 726, allowed the Revision. The
High Court held that since the appellant is a nonmuslim, the Wakf Tribunal has no jurisdiction in the
matter and it is only the Civil Court which had the
jurisdiction in the present dispute. The appellant
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aggrieved by the said judgment dated 20.09.2010 has
come up in this appeal.
Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja
Singh)
4. The Punjab Wakf Board, the appellant claiming to
be owner of the 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 the Court
of Wakf Tribunal, Ludhiana for possession of above
noted property and seeking relief for permanent
injunction restraining the respondent from
interfering and changing the nature of the property.
Plaintiff’s case in the suit was that the defendant,
Taja Singh took suit property on yearly lease from
Wakf Board till the year 1996-97 and paid lease money
to the plaintiff Board. After 1996-97 lease was not
renewed and defendant having committed certain
illegalities, the Wakf Board cancelled the lease on
05.12.1998. Notice to this effect was served upon the
defendant vide which a request was made to the
defendant to handover the vacant possession of the
leased-out property to the plaintiff Board. After
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cancellation of the lease, the possession of the
defendant over the suit property became illegal.
5. The defendant had also filed suit for grant of
injunction which was decreed by Civil Judge (Junior
Division), Ludhiana, the Court restrained the Board
from dispossessing the respondent forcibly and
illegally except in due course of law. The defendant
having failed to handover the possession, the
appellant filed the suit for possession and the grant
of permanent injunction. The defendant entered
appearance and filed written statement. The
defendant’s case in the written statement was that
the defendant always remained ready to pay the rent
due to the plaintiff and is still ready to pay and
tender the rent due to the plaintiff even in the
Court but the plaintiff is not accepting the same
intentionally just to seek possession of the tenanted
premises in an illegal manner. The defendant had
filed suit against the Wakf Board for permanent
injunction which has been decreed by Civil Judge
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(Junior Division), the appeal against which has also
been dismissed.
6. The Wakf Tribunal vide its judgment dated
03.06.2009 decreed the original suit. Following
decree has been passed by the Tribunal:
“17. Keeping in view the findings on the
above issues, the suit of the plaintiff is
decreed for possession of the suit land and
the same is also decreed for permanent
injunction restraining the defendant from
changing the nature of the suit land with
costs of the suit. Decree sheet be drawn.
File be consigned to the record room.”
7. Against the judgment of the Wakf Tribunal
decreeing the suit, the defendant filed Civil
Revision No.6157 of 2009, which has been allowed by
the High court by following order:
“In view of the judgment delivered by
the Apex Court in case Ramesh Gobindram
(dead) through L.Rs. vs. Sugra Humayun
Mirza Wakf, 2010(2) RCR(Rent) 266, the
instant petition is accepted, impugned
order is set aside and the plaint along
with documents is returned to the
Petitioner to be presented before the
appropriate court.”
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8. The appellant aggrieved by the judgment of the
High Court dated 23.02.2011 has come up in this
appeal.
9. We have heard Shri Salman Khurshid, learned
senior counsel for the appellant. Shri Vineet Bhagat
and Shri K.G. Bhagat, learned counsel and Shri S.B.
Upadhyay, learned senior counsel appeared for the
respondents.
10. Shri Salman Khurshid, learned senior counsel for
the appellant submits that Wakf Tribunal was fully
competent to entertain the suits filed by the
appellant. The defendants in both the suits having
been leased out the land which was Wakf property, the
suit clearly lay before the Wakf Tribunal as per
Section 83 of Wakf Act, 1995.
11. He submits that Wakf Tribunal was conferred
jurisdiction of entertaining every dispute pertaining
to Wakf in the Wakf Act, 1954. After the 1984
Amendment, under Section 55 of Act, 1954 for any
dispute pertaining to Wakf property suit has to be
8
filed before the Tribunal and the jurisdiction of the
Civil Court was barred by virtue of Section 55C of
the Act, 1954, which statutory scheme has been
continued under Sections 83 and 85 of Act, 1995. He
submits that judgment of Ramesh Gobindram (supra)
which has been relied by the High Court while
allowing the revisions filed by the respondents was a
case under Act, 1954 that too prior to 1984
Amendment. He, however, submits that suits filed by
the appellant were suits for possession, hence, were
fully maintainable before the Wakf Tribunal. Shri
Salman Khurshid relies on the judgment of this Court
in Board of Wakf, West Bengal & another vs. Anis
Fatma Begum & another, (2010) 14 SCC 588, where suit
filed before the Tribunal was held to be maintainable
and the judgment of Ramesh Gobindram was
distinguished.
12. Shri Khurshid has further relied on the judgment
and Order of this Court dated 13.09.2013 in C.A.
No.8194 of 2013 (Punjab Wakf Board vs. Pritpal Singh
& Anr.) where a similar order passed by the High
9
Court holding that suit of Punjab Wakf Board is not
maintainable has been set aside. He submits that the
present case is similar to the judgment of this Court
in Pritpal Singh. Shri Khurshid has relied on other
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 the judgment of this Court in
Anis Fatma Begum (supra) does not overrule Ramesh
Gobindram. The case of respondent is that he is in
possession of property since 1967. In the year 1970
property was verified as Wakf property without any
notice to the Central Government. The respondent has
been opposing the move of appellant Board to seek
mutation of its title over the property before the
Revenue Authority. Punjab Wakf Board in the year 1970
got the suit land notified in the Wakf under the Wakf
Act, 1954 without serving any notice on the
respondent. The title of the appellant has been
refuted by the respondent. The suit filed by the
appellant was not maintainable before the Civil
Court, hence, application was filed by the respondent
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under Order VII Rule 10 and 11 CPC for rejecting the
plaint.
14. It is submitted by the learned counsel for the
respondent that Sham Singh Harike and others have
also filed a suit in the Court of Civil Judge, Senior
Division against the Union of India and others
including Punjab, Wakf Board seeking a declaration
that suit land is not a Wakf property nor Wakf Board
has right and any interest nor forcibly it can
dispossess him.
15. Shri S.B. Upadhyay, learned senior counsel
appearing for Teja Singh submits that a suit has been
filed by the respondent being Suit No.265 of 1999
which has been decreed by the Civil Judge (Junior
Division) restraining the defendants from
dispossessing the plaintiff forcibly or illegally
subject to payment of dues upto date against which
appeal filed by the Punjab Wakf Board was also
dismissed on 09.04.2005. Shri Upadhyay has heavily
relied on Ramesh Gobindram case and he submits that
11
in view of the judgment of Ramesh Gobindram, the suit
filed by the appellant was not maintainable and the
plaint has rightly been returned to be presented
before the Civil Court.
16. We have considered the submissions of the
parties and perused the records.
17. The main issue which has arisen for
consideration in these appeals is as to whether suit
filed by the appellant before the Wakf Tribunal
praying for decree of possession of suit property was
maintainable in Wakf Tribunal or would lie only in a
Civil Court. Although, the Wakf Tribunal has held
that suit was maintainable before it, the High Court
has reversed the order of the Tribunal holding that
the suit is not maintainable before the Wakf Tribunal
relying on the judgment of this Court in Ramesh
Gobindram. Before we notice the judgment of this
Court in Ramesh Gobindram and the judgments relied by
the parties, the statutory provisions pertaining to
Wakf and Wakf property need to be 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, 1954 were found which led
to comprehensive amendments made by Wakf Amendment
Act, 1984 on the basis of recommendations of Wakf
Inquiry Committee. However, many provisions of 1984
(Amendment) Act could not be enforced. Before we come
to Act, 1995 it is relevant to notice the statutory
regime which was prevalent prior to Act, 1995. The
Wakf (Amendment) Bill, 1984 was moved with detail of
Statement of Objects and Reasons. Paragraph 3(vii)
which is relevant for the present purpose is as
follows:
“3. The Bill seeks to make, inter alia,
amendments to the Wakf Act, 1954, in
relation to the following matters, namely:-
xxx xxx xxx
(vii) to provide for the appointment of
Tribunals for the speedy determination of
the disputes, question or other matters
relating to wakfs; every such Tribunal is
to consist of one person who shall be a
member of the State Judicial Service
holding a rank not below that of a District
Judge or of a Civil Judge, First Class;
xxx xxx xxx”
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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 of Civil Procedure,
1908.-
(1) A suit to obtain any of the reliefs
mentioned in section 92 of the Code of
Civil Procedure, 1908, (5 of 1908.)
relating to any Wakf may, notwithstanding
anything to the contrary contained in that
section, be instituted by the Board without
obtaining the consent referred to therein.
(2) No suit to obtain any of the reliefs
referred to in section 92 of the Code of
Civil Procedure, 1908, relating to any Wakf
shall be instituted by any person or
authority other than the Board without the
consent in writing of the Board and for the
institution of any such suit, it shall not
be necessary to obtain the consent referred
to in that section, notwithstanding
anything contained therein:
Provided that nothing in this sub-section
shall apply in relation to 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 Official
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Gazette, constitute as many Tribunals as it
may think fit for the determination of any
dispute, question or other matter relating
to a wakf property which such Tribunal is,
or may be, required to determine under this
Act or any rule or order made thereunder,
and may, by the same or subsequent
notification in the Official Gazette,
define the local limits of the area in
relation to which each Tribunal appointed
by it shall exercise jurisdiction under
this Act.
(2) Any mutawalli of a wakf, person
interested in a wakf or any other person
aggrieved by any order made under this Act
or any rule or order made thereunder, may
make an application within the time
specified in this Act or where no such time
has been specified, within such time as may
be prescribed, to the Tribunal for the
determination of any dispute, question or
other matter relating to the wakf.
(3) Where any application made under subsection (1) relates to any wakf property
which falls within the territorial limits
of the Jurisdiction of two or more
Tribunals, such application, may be made to
the Tribunal within the local limits of
whose jurisdiction the mutawalli or any one
of the mutawallis of the wakf actually and
voluntarily resides, carries on business or
personally works for gain, and, where any
such application is made to the Tribunal
aforesaid, the other Tribunal or Tribunals
having jurisdiction shall not entertain any
application for the determination of such
dispute, question or other matter:
Provided that the State Government may,
if it is of opinion that it is expedient in
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the interests of the wakf or any other
person interested in the wakf or the wakf
property, to transfer such application to
any other Tribunal having jurisdiction for
the determination of the dispute, question
or other matter relating to such wakf or
wakf property, transfer such application to
any other Tribunal having jurisdiction,
and, on such transfer, the Tribunal to
which the application is so transferred
shall deal with the application from the
stage which was reached before the Tribunal
from which the application has been so
transferred, except where the Tribunal is
of opinion that it is necessary in the
interests of justice to deal with the
application afresh.
(4) Every Tribunal shall consist of one
person, who shall be a member of the State
Judicial Service holding a rank, not below
that of a District and Sessions Judge or of
a Civil Judge, Class I, and the appointment
of every such person may be made either by
name or by designation.
(5) The Tribunal shall be deemed to be a
civil court and shall have the same powers
as may be exercised by a civil court under
the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, or executing a
decree or order.
(6) Notwithstanding anything contained in
the Code of Civil Procedure, 1908 (5 of
1908), the Tribunal shall follow such
procedure as may be prescribed:
Provided that where any procedure,
different from the prescribed procedure, is
specified by this Act, the Tribunal shall
follow the procedure specified by this Act.
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(7) The decision of the Tribunal shall be
final and binding upon the parties to the
application and it shall have the force of
a decree made by a civil court.
(8) Execution of any decision of the
Tribunal shall be made by the civil court
to which such decision is sent for
execution in accordance with the provisions
of the Code of Civil Procedure, 1908 (5 of
1908).
(9) No appeal shall lie against any
decision or order whether interim or
otherwise, given or made by the Tribunal:
Provided that a High Court may, on its
own motion or on the application of the
Board or any person aggrieved, call for and
examine the records relating to any
dispute, question or other matter which has
been determined by the Tribunal for the
purpose of satisfying itself as to the
correctness, legality or propriety of such
determination and may confirm, reverse or
modify such determination or pass such
other order as it may think fit.”
21. Section 55C was inserted relating to bar of
jurisdiction of Civil Court which was to the
following effect:
“55-C. Bar of jurisdiction of civil courts
in respect of matters determined by
Tribunal. -No suit or other legal
proceeding shall lie in any civil court in
respect of any dispute, question or other
matter relating to any wakf, wakf property
or other matter which is required by, or
17
under, this Act to be determined by a
Tribunal.”
22. Chapter VIII of the Wakf Act, 1995 deals with
Judicial Proceedings. Sections 83 and 85 which are
relevant for this case are as follows:
“83. Constitution of Tribunals, etc.— (1)
The State Government shall, by notification
in the Official Gazette, constitute as many
Tribunals as it may think fit, for the
determination of any dispute, question or
other matter relating to a waqf or waqf
property under this Act and define the
local limits and jurisdiction of such
Tribunals.
(2) Any mutawalli person interested in a
waqf or any other person aggrieved by an
order made under this Act, or rules made
thereunder, may make an application within
the time specified in this Act or where no
such time has been specified, within such
time as may be prescribed, to the Tribunal
for the determination of any dispute,
question or other matter relating to the
waqf.
(3) Where any application made under subsection (1) relates to any waqf property
which falls within the territorial limits
of the jurisdiction of two or more
Tribunals, such application may be made to
the Tribunal within the local limits of
whose jurisdiction the mutawalli or any one
of the mutawallis of the waqf actually and
voluntarily resides, carries on business or
personally works for gain, and, where any
such application is made to the Tribunal
aforesaid, the other Tribunal or Tribunals
having jurisdiction shall not entertain any
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application for the determination of such
dispute, question or other matter:
Provided that the State Government may,
if it is of opinion that it is expedient in
the interest of the waqf or any other
person interested in the waqf or the waqf
property to transfer such application to
any other Tribunal having jurisdiction for
the determination of the dispute, question
or other matter relating to such waqf or
waqf property, transfer such application to
any other Tribunal having jurisdiction,
and, on such transfer, the Tribunal to
which the application is so transferred,
shall deal with the application from the
stage which was reached before the Tribunal
from which the application has been so
transferred, except where the Tribunal is
of opinion that it is necessary in the
interest of justice to deal with the
application afresh.
(4) Every Tribunal shall consist of one
person who shall be a member of the State
Judicial Service holding a rank, not below
that of a District, Sessions or Civil
Judge, Class I, and the appointment of
every such person may be made either by
name or by designation.
(5) The Tribunal shall be deemed to be a
Civil Court and shall have the same powers
as may be exercised by a Civil Court under
the Code of Civil Procedure, 1908, while
trying a suit, or executing a decree or
order.
(6) Notwithstanding anything contained in
the Code of Civil Procedure, 1908, the
Tribunal shall follow such procedure as may
be prescribed.
(7) The decision of the Tribunal shall be
final and binding upon the parties to the
19
application and it shall have the force of
a decree made by a Civil Court.
(8) The execution of any decision of the
Tribunal shall be made by the Civil Court
to which such decision is sent for
execution in accordance with the provisions
of the Code of Civil Procedure, 1908.
(9) No appeal shall lie against any
decision or order whether interim or
otherwise, given or made by the Tribunal:
Provided that a High Court may, on its
own motion or on the application of the
Board or any person aggrieved, call for and
examine the records relating to any
dispute, question or other matter which has
been determined by the Tribunal for the
purpose of satisfying itself as to the
correctness, legality or propriety of such
determination and may confirm, reverse or
modify such determination or pass such
other order as it may think fit.
85. Bar of jurisdiction of Civil Courts. —
No suit or other legal proceeding shall lie
in any Civil Court in respect of any
dispute, question or other matter relating
to any waqf, waqf property or other matter
which is required by or under this Act to
be determined by a Tribunal.”
23. Reverting back to the facts in these appeals, in
C.A.No.93 of 2019(Punjab Wakf Board vs. Teja Singh),
in the suit filed by the Punjab Wakf Board the
plaintiff has claimed for the following reliefs:
“It is therefore, prayed that a decree
for possession of property measuring 29K-9M
comprised in Khewat No.224, Khatauni
20
No.277, Khasra No.55, 56,57 as per the
Jamabandi for the year 2000-2001 of Village
Talwara, HB No.149, Tehsil Ludhana West,
District Ludhiana;
AND
For the grant of permanent injunction
restraining the defendant, his agents,
attorneys, associates from interfering and
changing the nature of the property in any
manner whatsoever, may kindly be 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 the
possession. Teja Singh committed illegalities, the
lease had been cancelled on 05.12.1998 after legal
notice. Thereafter, the suit has been filed.
Plaintiff had also stated that Teja Singh failed to
get the lease renewed, and a suit against the Board
was filed where Civil Judge (Junior Division) decreed
the suit restraining the Board from evicting Teja
Singh forcibly or illegally. The case of Teja Singh
in his written statement was that defendant has not
violated any terms and conditions of the allotment
order and rent deed, defendant is still ready to pay
21
the rent, the lease has not been terminated according
to the provisions of the Wakf Act.
25. Coming to C.A.No.92 0f 2019 (Punjab Wakf Board
vs. Sham Singh Harike), the case of the plaintiff in
the suit was that the suit land was let out to Sham
Singh with his wife, Kuldip Kaur in the year 1972 for
cultivation. Defendant deposited rent for some period
and after that he acted against the interests of the
Board and started a false litigation. The property
was let out to the defendant for agricultural
purposes having no right to raise construction over
the property. Details of different litigations
initiated by the defendant were given in the plaint.
Defendant initiated various proceedings for allotment
of the land from the Revenue Authority which were all
dismissed. The property has been mutated in the name
of Wakf Board. In the written statement filed by the
defendant, Sham Singh, the title of Wakf Board itself
was disputed, and it was pleaded that the suit is not
maintainable and liable to be dismissed. Until and
unless the suit property is declared to be that of
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the plaintiff no suit is maintainable. Mutation in
the name of the plaintiff does not confer any title.
Thus, in both the suits filed by the appellant, the
maintainability of the suit in the Wakf Tribunal was
questioned. In the written statement filed by Sham
Singh the title of the appellant to the suit property
was questioned and challenged.
26. Now, we need to notice the judgment of this Court
in Ramesh Gobindram(supra) on which the High Court as
well as learned counsel for the respondent have
placed heavy reliance. In the above case, the Andhra
Pradesh Wakf Tribunal has passed an order of eviction
against the appellant. Revision Petition filed before
the Andhra Pradesh High Court was dismissed against
which the appeal was filed. The issue involved in
that case has been noticed in paragraph 2 of the
judgment which is to the following effect:
“2. The question is: whether the Wakf
Tribunal constituted under Section 83 of
the Wakf Act, 1995 was competent to
entertain and adjudicate upon disputes
regarding eviction of the appellants who
are occupying different items of what are
admittedly wakf properties? The Wakf
23
Tribunal before whom the suits for eviction
of the tenants were filed answered the
question regarding its jurisdiction in the
affirmative and decreed the suit filed
against the appellant.”
27. This Court noticed in the aforesaid judgment that
there is a cleavage in the judicial opinion expressed
on the question of jurisdiction of Wakf Tribunal by
the different High Courts in the country. The view of
the Andhra Pradesh High Court, Rajasthan High Court,
Madhya Pradesh High Court, Kerala High Court and
Punjab and Haryana High Court has been noticed where
High Courts have taken the view that jurisdiction of
the Wakf Tribunal is wide enough to entertain and
adjudicate upon all kinds of disputes which relate to
any Wakf Property. The contrary view of the High
Court of Karnataka, High Courts of Madras, Allahabad
and Bombay was also noticed. This Court proceeded to
examine the scheme of Wakf Act, 1995. After noticing
the scheme of Sections 6, 7, 25 and other provisions
with respect to Section 85 of the Act, following was
stated by this Court in paragraphs 24 and 28:
24
“24. …………A plain reading of the above would
show that the civil court’s jurisdiction is
excluded only in cases where the matter in
dispute is required under the Act to be
determined by the Tribunal. The words
“which is required by or under this Act to
be determined by a Tribunal” holds the key
to the question whether or not all disputes
concerning the wakf or wakf property stand
excluded from the jurisdiction of the civil
court.
28. Section 85 of the Act clearly bars
jurisdiction of the civil courts to
entertain any suit or proceedings in
relation to orders passed by or proceedings
that may be commenced before the Tribunal.
It follows that although Section 85 is
wider than what is contained in Sections 6
and 7 of the Act, the exclusion of
jurisdiction of the civil courts even under
Section 85 is not absolute. It is limited
only to matters that are required by the
Act to be determined by a Tribunal. So long
as the dispute or question raised before
the civil court does not fall within the
four corners of the powers vested in the
Tribunal, the jurisdiction of the former to
entertain a suit or proceedings in relation
to any such question cannot be said to be
barred.”
28. This Court noticing the provisions of Section 83
has observed that Section 83 does not deal with the
exclusion of the jurisdiction of Civil Courts to
entertain the civil suits generally or suit of any
particular class or category. It interpreted Section
25
83 as a provision which does not exclude the
jurisdiction of the Civil Court. Following was stated
in paragraph 29:
“29. ………………………Section 83 of the Act,
however, does not deal with the exclusion
of the jurisdiction of the civil courts to
entertain civil suits generally or suit of
any particular class or category. The
exclusion of the civil court’s jurisdiction
is dealt with by Section 6(5) and Section
85 of the Act. To interpret Section 83 as a
provision that excludes the jurisdiction of
the civil courts is not, therefore, legally
correct, for that provision deals with
constitution of Tribunals, the procedure
which the Tribunals would follow and
matters relating thereto.”
29. On an interpretation of Section 83 following has
been laid down by this Court in paragraphs 31, 32 and
33:
“31. It is clear from sub-section (1) of
Section 83 above that the State Government
is empowered to establish as many Tribunals
as it may deem fit for the determination of
any dispute, question or other matter
relating to a wakf or wakf property under
the Act and define the local limits of
their jurisdiction. Sub-section (2) of
Section 83 permits any mutawalli or other
person interested in a wakf or any person
aggrieved of an order made under the Act or
the Rules framed thereunder to approach the
Tribunal for determination of any dispute,
question or other matter relating to the
wakf. What is important is that the
26
Tribunal can be approached only if the
person doing so is a mutawalli or a person
interested in a wakf or aggrieved by an
order made under the Act or the Rules. The
remaining provisions of Section 83 provide
for the procedure that the Tribunal shall
follow and the manner in which the decision
of a Tribunal shall be executed. No appeal
is, however, maintainable against any such
order although the High Court may call for
the records and decide about the
correctness, legality or propriety of any
determination made by the Tribunal.
32. There is, in our view, nothing in
Section 83 to suggest that it pushes the
exclusion of the jurisdiction of the civil
courts extends (sic) beyond what has been
provided for in Section 6(5), Section 7 and
Section 85 of the Act. It simply empowers
the Government to constitute a Tribunal or
Tribunals for determination of any dispute,
question of other matter relating to a wakf
or wakf property which does not ipso facto
mean that the jurisdiction of the civil
courts stands completely excluded by
reasons of such establishment.
33. It is noteworthy that the expression
“for the determination of any dispute,
question or other matter relating to a wakf
or wakf property” appearing in Section
83(1) also appears in Section 85 of the
Act. Section 85 does not, however, exclude
the jurisdiction of the civil courts in
respect of any or every question or
disputes only because the same relates to a
wakf or a wakf property. Section 85 in
terms provides that the jurisdiction of the
civil court shall stand excluded in
relation to only such matters as are
required by or under this Act to be
determined by the Tribunal.”
27
30. The ultimate conclusion by this Court has been
recorded in paragraphs 34 and 35 which are as
follows:
“34. The crucial question that shall have
to be answered in every case where a plea
regarding exclusion of the jurisdiction of
the civil court is raised is whether the
Tribunal is under the Act or the Rules
required to deal with the matter sought to
be brought before a civil court. If it is
not, the jurisdiction of the civil court is
not excluded. But if the Tribunal is
required to decide the matter the
jurisdiction of the civil court would stand
excluded.
35. In the cases at hand, the Act does not
provide for any proceedings before the
Tribunal for determination of a dispute
concerning the eviction of a tenant in
occupation of a wakf property or the rights
and obligations of the lessor and the
lessees of such property. A suit seeking
eviction of the tenants from what is
admittedly wakf property could, therefore,
be filed only before the 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 with the matter sought to
be brought before a Civil Court. If it is not, the
28
jurisdiction of the Civil Court is not excluded. But
if the Tribunal is required to decide the matter the
jurisdiction of the Civil Court would stand
excluded.” Thus, the ratio of the judgment as noticed
above is “as to whether the Tribunal is under the Act
or the Rules required to deal with the 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 following Ramesh Gobindram’s
judgment or distinguishing the same on one or other
reasons. This Court in Bhanwar Lal and another vs.
Rajasthan Board of Muslim Wakf and others, (2014) 16
SCC 51, elaborately noticed the judgment of Ramesh
Gobindram’s case. This Court ultimately in the facts
of that case held that since the suit was filed much
before the enforcement of the Act i.e. 1.1.1996, in
view of the dictum laid down in Sardar Khan & others
v. Syed Nazmul Hasan (Seth) and others, (2007) 10 SCC
727, the Civil Court where the suit was filed shall
continue to have jurisdiction. In paragraph 30
following has been laid down:
29
“30. The suit is for cancellation of sale
deed, rent and for possession as well as
rendition of accounts and for removal of
trustees. However, pleadings in the suit
are not filed before us and, therefore, the
exact nature of relief claimed as well as
the averments made in the plaint or written
statements are not known to us. We are
making these remarks for the reason that
some of the reliefs claimed in the suit
appeared to be falling within the exclusive
jurisdiction of the Tribunal whereas for
other reliefs the civil court would be
competent. Going by the ratio of Ramesh
Gobindram (2010) 8 SCC 726, suit for
possession and rent is to be tried by the
civil court. However, the suit pertaining
to removal of trustees and rendition of
accounts would fall within the domain of
the Tribunal. Insofar as relief of
cancellation of sale deed is concerned this
is to be tried by the civil court for the
reason that it is not covered by Section 6
or 7 of the Act whereby any jurisdiction is
conferred upon the Tribunal to decide such
an issue. Moreover, relief of possession,
which can be given by the civil court,
depends upon the question as to whether the
sale deed is valid or not. Thus, the issues
of sale deed and possession are
inextricably mixed with each other. We have
made these observations to clarify the
legal position. Insofar as the present case
is concerned, since the suit was filed much
before the Act came into force, going by
the dicta laid down in Sardar Khan case, it
is the civil court where the suit was filed
will continue to have the jurisdiction over
the issue and the civil court would be
competent to decide the same.”
30
33. In Faseela M. vs. Munnerul Islam Madrasa
Committee and another, (2014) 16 SCC 38, the Madrasa
Committee filed suit for eviction of the appellant
before the Wakf Tribunal with regard to a Wakf
property. The Tribunal directed the plaint to be
returned to the Civil Court which order was recalled
on 18.09.2010. The appellant had filed revision
before the High Court for declaration that the Wakf
Tribunal has no jurisdiction in the matter which was
dismissed by the High Court relying on Ramesh
Gobindram. This Court held that suit for eviction
against the tenant relating to a Wakf property is
exclusively triable by the Civil Court. In paragraph
16 following has been held:
“16. The matter before us is wholly and
squarely covered by Ramesh Gobindram. The
suit for eviction against the tenant
relating to a wakf property is exclusively
triable by the civil court as such suit is
not covered by the disputes specified in
Sections 6 and 7 of the Act.”
34. There are few judgments of this Court in which
Ramesh Gobindram has been distinguished and it was
held that in those cases the suit was maintainable
31
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 its original summons jurisdiction
questioning he demarcation of the Wakf property. In
Paragraph 4 of the judgment this Court noticed the
issues raised before the High Court. It was contended
before this Court that only the Wakf Tribunal has
jurisdiction in the matter under Wakf Act, 1995 and
the suit before the High Court was without
jurisdiction. The said submission was accepted by
this Court. In paragraphs 6 and 7 following has been
laid down:
“6. It was submitted by Dr. Rajeev Dhavan,
learned Senior Counsel appearing for the
appellant, that only the Wakf Tribunal has
jurisdiction in the matter under the Wakf
Act, 1995 and hence the suit filed in the
High Court was without jurisdiction. We
agree.
7. The dispute in the present case relates
to a wakf. In our opinion, all matters
pertaining to wakfs should be filed in the
first instance before the Wakf Tribunal
constituted under Section 83 of the Wakf
Act, 1995 and should not be entertained by
the civil court or by the High Court
straightaway under Article 226 of the
Constitution of India. It may be mentioned
32
that the Wakf Act, 1995 is a recent
parliamentary statute which has constituted
a Special Tribunal for deciding disputes
relating to wakfs. The obvious purpose of
constituting such a Tribunal was that a lot
of cases relating to wakfs were being filed
in the courts in India and they were
occupying a lot of time of all the courts
in the country which resulted in increase
in pendency of cases in the courts. Hence,
a Special Tribunal has been constituted for
deciding such matters.”
35. After noticing the provisions of Section 83 this
Court held that words “any dispute, question or other
matter relating to a Wakf or Wakf property” are words
of wide connotation and any dispute, question or
other matter whatsoever and in whatever manner which
arises relating to a Wakf or Wakf property can be
decided by the Wakf Tribunal. Following has been laid
down in paragraph 10:
“10. Thus, the Wakf Tribunal can decide all
disputes, questions or other matters
relating to a wakf or wakf property. The
words “any dispute, question or other
matters relating to a wakf or wakf
property” are, in our opinion, words of
very wide connotation. Any dispute,
question or other matters whatsoever and in
whatever manner which arises relating to a
wakf or wakf property can be decided by the
Wakf Tribunal. The word “wakf” has been
defined in Section 3(r) of the Wakf Act,
1995 and hence once the property is found
33
to be a wakf property as defined in Section
3(r), then any dispute, question or other
matter relating to it should be agitated
before the Wakf Tribunal.”
36. This Court also held that when there is special
law providing for a special forum, then recourse
cannot be taken to the general law. In paragraphs 14,
15 and 16 following was laid down:
“14. It is well settled that when there is
a special law providing for a special
forum, then recourse cannot be taken to the
general law, vide Justice G.P. Singh’s
Principles of Statutory Interpretation (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 in the area
covered by the Industrial Disputes Act, the
civil court would have no jurisdiction. In
the above decision the Court has referred
to several earlier decisions on this point.
16. In view of the above, we are of the
opinion that since the matter fell under
the purview of the Wakf Act, only the Wakf
Tribunal has jurisdiction in the matter,
and not the civil court. However, in view
of the decision of this Court in Sardar
Khan v. Syed Najmul Hasan (Seth), (2007) 10
SCC 727, the Wakf Act will not be
applicable to
suits/appeals/revisions/proceedings
commenced prior to 1-1-1996 when the Wakf
Act came into force.”
34
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 on the decision of this
Court in Ramesh Gobindram v. Sugra Humayun
Mirza Wakf. In the aforesaid decision it
was held that eviction proceedings can only
be decided by the civil court and not by
the Wakf Tribunal. The dispute in the
present case is not an eviction dispute.
Hence, the aforesaid decision in Ramesh
Gobindram case is distinguishable.”
38. It is to be noticed that although two-Judge Bench
in the above case has observed that judgment of
Ramesh Gobindram is distinguishable but the ratio of
the judgment of West Bengal Wakf Board as can be
culled from paragraph 10 of the judgment, sounds a
substantially different note from Ramesh Gobindram’s
case. Two-Judge Bench in West Bengal Wakf Board case
held
“10. ………………The words “any dispute, question
or other matters relating to a wakf or wakf
property” are, in our opinion, words of
very wide connotation. Any dispute,
question or other matters whatsoever and in
whatever manner which arises relating to a
35
wakf or wakf property can be decided by the
Wakf Tribunal………………………”
39. In Haryana Wakf Board vs. Mahesh Kumar, (2014) 16
SCC 45, two-Judge Bench of this Court had occasion to
consider again the provisions of Sections 7 and 85 of
Wakf Act, 1995. In the above case suit was filed by
Haryana Wakf Board seeking possession of property
which was given on lease to different persons. It is
alleged that earlier lessee illegally created a lease
deed in favour of the respondent and treated it as
illegal encroachment by the respondent. The appellant
requested him to vacate the premises and when he did
not do so, suit was filed in the Court of Civil
Judge, Junior Division, Karnal. The respondent
appeared and raised various objections and one of the
issues framed was that the suit is not maintainable
in the present forum. The trial court decreed the
suit against which appeal was filed before the
Additional District Judge. The Additional District
Judge held that since the claim of the suit by the
Wakf Board was on the basis that suit property was
Wakf property and since the respondent had denied it
36
to be the Wakf property, such a question could be
decided only by the Tribunal constituted under the
Wakf Act. The appeal court, therefore, returned the
plaint for presentation to the Court of competent
jurisdiction, namely, the Tribunal. The decree by the
trial court was set aside. The second appeal filed by
the defendant was dismissed hence appeal was filed.
This Court after examining Sections 7, 83 and 85 laid
down that wherever there is a dispute regarding the
nature of the property, namely, whether the suit
property is Wakf property or not, it is the Tribunal
which has the exclusive jurisdiction to decide the
same. In paragraph 13 following has been laid down:
“13. The present suit was instituted in the
year 2000 i.e. after the Wakf Act, 1995
came into force. Therefore, the present
case is not covered by exception to Section
7(5) of the Wakf Act. Thus, on a plain
reading of Section 7 read with Section 85
of the Act, it becomes manifest that
wherever there is a dispute regarding the
nature of the property, namely, whether the
suit property is wakf property or not, it
is the Tribunal constituted under the Wakf
Act, which has the exclusive jurisdiction
to decide the same. We need not delve into
this issue any longer, inasmuch as in a
recent judgment by this very Bench of this
Court in Bhanwar Lal v. Rajasthan Board of
37
Muslim Wakf, (2014) 16 SCC 51, decided on
9-9-2013, this Court took the same view,
after taking note of earlier judgments on
the subject, namely, Sardar Khan v. Syed
Najmul Hasan, (2007) 10 SCC 727, Ramesh
Gobindram v. Sugra Humayun Mirza Wakf,
(2010) 8 SCC 726. This view has been
reaffirmed in Akkode Jumayath Palli
Paripalana Committee v. P.V. Ibrahim Haji,
(2014) 16 SCC 65.”
The view of the High Court was approved upholding
the jurisdiction of the Wakf Tribunal.
40. In Akkode Jumayath Palli Paripalana Committee vs.
P.V. Ibrahim Haji and others, (2014) 16 SCC 65, this
Court again had occasion to consider Sections 83 and
84 of the Wakf Act. The question which arose in the
above case is whether the Wakf Tribunal has got
jurisdiction to entertain a suit for injunction
restraining the defendants from interfering with the
administration, management and peaceful enjoyment of
the mosque and madarsa run by it and all the assets
attached to the mosque. The appellant had filed suit
for injunction before the Court of Munsif. It was
transferred to the Wakf Tribunal. The suit was
decreed. Civil Revision was filed in the High Court
38
challenging the decree of the Wakf Tribunal. The High
Court setting aside the judgment and decree of the
Wakf Tribunal held that suit for injunction is not
maintainable before the Wakf Tribunal placing
reliance on the judgment of this Court in Ramesh
Gobindram(supra). Following was noticed in paragraph
3 of the judgment:
“3. The respondents herein filed a civil
revision petition as CRP No. 1362 of 2004
under Section 83(9) of the Wakf Act before
the Kerala High Court. The High Court vide
its judgment dated 10-11-2010 set aside the
judgment and decree passed by the Wakf
Tribunal holding that a suit for injunction
is not maintainable before a Wakf Tribunal
placing reliance on the judgment of this
Court in Ramesh Gobindram v. Sugra Humayun
Mirza Wakf. The Court also granted
permission to the appellant to take back
the plaint for presenting before the
appropriate court. Later, the appellant
preferred a review petition which was also
dismissed by the High Court on 4-2-2011.
The legality of the orders is under
challenge in this appeal.”
41. This Court disapproved the view of the High Court
and held that suit was maintainable. Two-judge Bench
has further observed that the judgment in Ramesh
Gobindram (supra) later came up for consideration
before this Court in Board of Wakf, West Bengal v.
39
Anis Fatma Begum (supra) and the judgment in Ramesh
Gobindram was held to be distinguishable. Following
was laid down by this Court in paragraphs 5 and 6:
“5. The ratio laid down in the
abovementioned judgment in Ramesh Gobindram
case later came up for consideration before
this Court in W.B. Wakf Board v. Anis Fatma
Begum, (2010) 14 SCC 588 and the judgment
in Ramesh Gobindram case was held
distinguishable. That was a case where the
dispute related to the wakf estate which
was created by a registered deed of wakf
dated 22-9-1936. The question raised was
with regard to the demarcation of the wakf
property, which this Court held is a matter
which fell under the purview of the Wakf
Act. The judgment of the Calcutta High
Court which held otherwise was set aside
and this Court held that the Wakf Tribunal
has jurisdiction to decide those disputes.
6. We are of the view that the dispute that
arises for consideration in this case is
with regard to the management and peaceful
enjoyment of the mosque and madarsa and the
assets which relate to wakf. Nature of the
relief clearly shows that the Wakf Tribunal
has got jurisdiction to decide those
disputes. We, therefore, find no error in
the Wakf Tribunal entertaining OS No. 53 of
2003 filed by the appellant and the High
Court has committed an error in holding
otherwise. Consequently, the impugned order
passed by the High Court is set aside and
the matter is remitted to the High Court to
consider the revision on merits. The
appeals are disposed of as above, with no
order as to costs.”
40
42. Two-Judge Bench of this Court in the above case
held the suit to be maintainable in the Wakf Tribunal
and noted that the ratio of Ramesh Gobindram has been
distinguished in Anis Fatima case. But as per ratio
of Ramesh Gobindram unless there is any provision in
the Wakf Act, 1995 to entertain the said dispute only
then Wakf Tribunal has jurisdiction, the suit filed
for injunction was not maintainable in the above
case. Thus, what is held in the above judgment by the
two-Judge Bench is not in accord with the ratio of
Ramesh Gobindram. Only one more judgment of two-Judge
Bench of this Court be noticed, where the suit filed
by the Punjab Wakf Board before the Wakf Tribunal
praying for mesne profits and possession was held to
be maintainable, i.e, judgment in Punjab Wakf Board
vs. Pritpal Singh & Anr.(Civil Appeal No.8194 of
2013) decided on 13.09.2013. The facts of the case
have been noticed in the following manner:
“Petitioner herein filed a suit before
the Wakf Tribunal, Ludhiana, inter alia
praying for possession as also for mesne
profits. The Wakf Tribunal by its order
dated 08.05.2009 decreed the suit for
possession as also for recovery of mesne
profits.
41
Aggrieved by the same, the respondents
preferred a writ petition before the High
Court for quashing the said order. By
impugned order dated 16.12.2010, the Punjab
& Haryana High Court had set aside the
order of the Wakf Tribunal on its finding
that the Wakf Tribunal had no jurisdiction
to entertain a suit for ejectment. It is
against this order that the petitioner has
preferred this special leave petition.”
43. After considering the submissions, this Court
laid down:
“Having heard learned counsel for the
parties, we are of the opinion that the
High Court had erred in holding that the
suit was for ejectment and that being so
the Wakf Tribunal has no jurisdiction. As
we have observed earlier, the suit filed
before the Wakf Tribunal was for possession
and mesne profits and, therefore, the High
Court had erred in setting aside the order
of the Wakf Tribunal.”
44. Section 83 sub-section (1) has been substituted
by Act 27 of 2013. Substituted sub-section (1) is as
follows:
“Section 83(1).- The State Government
shall, by notification in the Official
Gazette, constitute as many Tribunals as it
may think fit, for the determination of any
dispute, question or other matter relating
to a waqf or waqf property, eviction of a
tenant or determination of rights and
obligations of the lessor and the lessee of
such property, under this Act and define
42
the local limits and jurisdiction of such
Tribunals.”
45. Section 83 sub-section (1) specifically includes
eviction of a tenant or determination of rights or
obligations of the lessor and lessee of such
property.
46. In both the suits giving rise to these appeals
the suits were filed 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 to the above Amendment, 2013.
47. In sub-section (1) of Section 83 the State
Government shall by notification in the Official
Gazette, constitute as many Tribunals as it may think
fit. The words following the above sentence are “for
the determination of any dispute, question or other
matter relating to a wakf or wakf property under this
Act….”. The Constitution of Tribunal is, thus, for
the determination of any dispute, question or other
matter relating to wakf or wakf property under the
Act, 1995. The “dispute, question or other matter
43
relating to wakf or wakf property”, thus, has to
arise under the Act, 1995. Various provisions of the
Act, 1995 refer to the Tribunal and the questions
which are to be decided by the Tribunal. In this
context sub-section (1) of Section 6 refers to the
questions which are to be decided by the Tribunal.
Sub-section (1) of Section 6 is as follows:
“Section 6(1).-If any question arises
whether a particular property specified as
wakf property in the list of wakfs is wakf
property or not or whether a wakf specified
in such list is a Shia wakf or Sunni Wakf,
the Board or the mutawalli of the wakf or
any person interested therein may institute
a suit in a Tribunal for the decision of
the question and the decision of the
Tribunal in respect of such matter shall be
final:
Provided that no such suit shall be
entertained by the Tribunal after the
expiry of one year from the date of the
publication of the list of wakfs.”
48. Similarly, sub-section (1) of Section 7 also
refers to decision of the question by the Tribunal.
Sub-section (1) of Section 7 is quoted below:
“Section 7(1).-If, after the commencement
of this Act, any question arises, whether a
particular property specified as wakf
property in a list of wakf, is wakf
property or not or whether a wakf specified
in such list is a Shia wakf or a Sunni
44
wakf, the Board or the mutawalli of the
wakf, or any person interested therein, may
apply to the Tribunal having jurisdiction
in relation to such property, for the
decision of the question and the decision
of the Tribunal thereon shall be final:”
49. Section 33 contemplates filing of an appeal
before the Tribunal against orders passed under
Section 33. Section 33 sub-section (4) is as follows:
“Section 33(4) A mutawalli or other person
aggrieved by such order may, within thirty
days of the receipt by him of the order,
appeal to the Tribunal:
Provided that no such appeal shall be
entertained by the Tribunal unless the
appellant first deposits with the Chief
Executive Officer the amount which has been
determined under sub-section (3) as being
payable by the appellant and the Tribunal
shall have no power to make any order
staying pending the disposal of the appeal,
the operation of the order made by the
Chief Executive Officer under sub-section
(3).”
50. Similar provision of appeal to Tribunal is also
contained under Section 51 sub-section (5). Section
52 sub-section (4) is again a provision to file an
appeal before the Tribunal. Section 54 deals with
removal of encroachment from Wakf property. Under
Section 54(4) any person aggrieved by an order passed
45
by the Chief Executive Officer directing removal of
encroachment and delivering possession of the land,
building, space or other property can institute a
suit in a Tribunal to establish his right, title or
interest. Section 54(4) is as follows:
“Section 54(4) Nothing contained in subsection (3) shall prevent any person
aggrieved by the order made by the Chief
Executive Officer under that sub-section
from instituting a suit in a Tribunal to
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 who has been let
into possession of the land, building,
space or other property as a lessee,
licence or mortgagee by the mutawalli of
the wakf or by any other person authorised
by him in this behalf.”
51. Section 54(4) contemplates an appeal to the
Tribunal by the mutawalli who is aggrieved by an
order of removal. Sub-section (6) of Section 64 is
again a power of the Tribunal to appoint a suitable
person as receiver to manage the Wakf. On an
application filed by the Board in an appeal
challenging his removal order the Tribunal can
appoint a receiver. These are provisions in the Act
46
which refer to the Tribunal and refer to the subject
matter which can be brought before the Tribunal by
mutawalli or Board or any aggrieved person. The use
of the word “under this Act”, under Section 83(1)
relates to the words “for the determination of any
dispute, question or other matter relating to a Wakf
or Wakf property”. Section 83(1) provides for
constitution of Tribunal. Other provisions of Section
83 deals with the procedure including bar of appeal
against the order of the Tribunal except power of the
High Court to revise the order of the Tribunal.
52. Coming to Section 83 which relates to bar of
jurisdiction of Civil Court, the relevant words are
“any dispute, question or other matter relating to a
wakf or wakf property” which is required by or under
this Act to be determined by the Tribunal. Thus, bar
of jurisdiction of Civil Court is confined only to
those matters which are required to be determined by
the Tribunal under this Act. Thus, Civil Court shall
have jurisdiction to entertain suit and proceedings
which are not required by or under the Act, 1995 to
be determined. Thus, answering the question of
47
jurisdiction, question has to be asked whether the
issue raised in the suit or proceeding is required to
be decided under the Act, 1995 by the Tribunal, under
any provision or not. In the event, the answer is
affirmative, the bar of jurisdiction of Civil Court
shall operate.
53. In the judgment in Ramesh Gobindram (supra) this
Court after considering Sections 83 and 85 as noted
above has explained the provisions. We now have to
apply the proposition of the law as noted above in
facts before us in both the appeals.
54. In Civil Appeal No.92 of 2019(Punjab Wakf Board
vs. Sham Singh Harike) suit for injunction was
initiated by the Board in the Civil Court against the
defendant. In the written statement filed by Sham
Singh Harike it was pleaded that suit property is not
a Wakf property. In paragraph 2 of the written
statement following was stated:
“2. Para 2 of the plaint is wrong and
denied. It is wrong that land measuring
269K-7M is a Wakf property. Mutation does
not confer any title on any person.
Mutation is under challenge as detailed in
the preliminary objections. Plaintiff has
48
intentionally concealed the said fact. The
plaintiff has also not disclosed the fact
that the notification on the basis of which
the alleged mutation has been sanctioned,
does not confer any right, title or
interest. The property can only be
transferred by a registered instrument duly
registered under the provision of
Registration Act. Thus, plaintiff has no
right, title or interest in the suit
property nor is competent to file the
present suit qua the said property.”
55. The suit was transferred to the Wakf Tribunal and
the same was renumbered as RBT No.84/2006. An
application was filed by the defendant for rejection
of the plaint on the ground that the Tribunal has no
jurisdiction to entertain the suit. The Tribunal
rejected the application. Against the order of
rejecting application, civil revision was filed by
the defendant in the High Court. The High Court
relying on judgment of this Court in Ramesh Gobindram
has given the following reason for allowing the
revision:
“In view of the aforesaid authoritative
pronouncement by the Apex Court, where in
it has been held that the right, title and
interest of a non-muslim to the Wakf in a
property cannot be put in jeopardy because
that property is included in the list of
49
Wakf, the impugned order cannot be
sustained.
Thus, the present revision petition is
allowed and the impugned order is set aside
holding that since the Petitioner is a nonmuslim, the Wakf Tribunal has no
jurisdiction in the matter and it is only
the Civil Court which had the jurisdiction
in the present dispute.”
56. The High Court had noticed that portion of
judgment of Ramesh Gobindram where this Court had
noticed an earlier judgment of this Court in Board of
Muslim Wakfs, Rajasthan v. Radha Kishan and others,
(1979) 2 SCC 468. Paragraphs 20 and 21 of the
judgment of Ramesh Gobindram have been relied which
are to the following effect:
“20. From a conjoint reading of the
provisions of Sections 6 and 7 (supra) it
is clear that the jurisdiction to determine
whether or not a property is a wakf
property or whether a wakf is a Shia wakf
or a Sunni wakf rests entirely with the
Tribunal and no suit or other proceeding
can be instituted or commenced in a civil
court in relation to any such question
after the commencement of the Act. What is
noteworthy is that under Section 6 read
with Section 7 (supra) the institution of
(sic a suit in) the civil court is barred
only in regard to questions that are
specifically enumerated therein. The bar is
not complete so as to extend to other
50
questions that may arise in relation to the
wakf property.
21. We may at this stage usefully digress
from the core issue only to highlight the
fact that Section 6(1) and the proviso
thereto have fallen for interpretation of
this Court on a few occasions. In Board of
Muslim Wakfs v. Radha Kishan,(1979) 2 SCC
468, one of the questions that fell for
determination was, who are the parties that
could be taken to be concerned in a
proceeding under sub-section (1) of Section
6 of the Act. This Court held that under
Section 6(1) the Board or the mutawalli of
the wakf or any person interested therein
is entitled to file a suit but the word
“therein” following the expression “any
person interested” must necessarily refer
to the word “wakf” which immediately
precedes it. The object underlying the
proviso, observed this Court, was to
confine the power to file a suit to the
mutawalli and persons interested in the
wakf. It did not extend to persons who are
not persons interested in the wakf.
Consequently, the right, title and interest
of a stranger, (a non-Muslim), to the wakf
in a property cannot be put in jeopardy
merely because that property is included in
the list of wakfs. The special rule of
limitation prescribed by the proviso to
Section 6(1) was itself held inapplicable
to him and a suit for declaration of title
to any property included in the list of
wakfs held maintainable even after the
expiry of the period of one year.”
57. This Court in Ramesh Gobindram has referred to
earlier judgment in Board of Muslim Wakfs, Rajasthan
51
v. Radha Kishan and others, (1979) 2 SCC 468. In the
case of Board of Muslim Wakfs this Court had occasion
to interpret sub-section (1) of Section 6 with
proviso to sub-section (1) of Wakf Act, 1954. The
questions which fell for consideration in the above
case has been considered in paragraph 22 which is to
following effect:
“22. The questions that fall for
determination upon the appeal are two:
first, whether a Commissioner of Wakfs
appointed under sub-section (1) of Section
4 of the Wakf Act, 1954, has the
jurisdiction under sub-section (3) of
Section 4 to enquire whether a certain
property is wakf property or not when such
a dispute is raised by a stranger to the
wakf and second, if so, whether the failure
of such a person to institute a suit in a
civil court of competent jurisdiction for
decision of such question within a period
of one year, as provided for under subsection (1) of Section 6, makes the
inclusion of such property in the list of
wakfs published by the Board under subsection (2) of Section 5 of the Act final
and conclusive under sub-section (4) of
Section 6.”
58. In the above case the respondents were mortgagee
of property which under Section 5 of 1954, Act was
published for inclusion in the list of Wakfs. The
writ petition was filed by the respondents
52
challenging legality and validity of the proceedings
taken which was allowed by the High Court. The High
Court held that where a person claiming title is a
stranger to the Wakf, the inclusion of such property
in the list of Wakfs by the Board under sub-section
(2) of Section 5 of the Act shall not be final and
conclusive. This Court noticed the contention of the
respondents who contended that they being non-Muslims
they are outside the scope of sub-section (1) of
Section 6 and they have no right to file the suit
contemplated by that sub-section, therefore, the list
of Wakfs published under sub-section (2) of Section 5
cannot be final and conclusive against them under
sub-section (4) of Section 6. The argument raised by
the respondents was accepted by this Court and
following was laid down in paragraph 33:
“33. The answer to these questions must
turn on the true meaning and construction
of the word “therein” in the expression
“any person interested therein” appearing
in sub-section (1) of Section 6. In order
to understand the meaning of the word
“therein” in our view, it is necessary to
refer to the preceding words ‘the Board or
the mutawalli of the wakf’. The word
‘therein’ must necessarily refer to the
“wakf” which immediately precedes it. It
53
cannot refer to the “wakf property”. Subsection (1) of Section 6 enumerates the
persons who can file suits and also the
questions in respect of which such suits
can be filed. In enumerating the persons
who are empowered to file suits under this
provision, only the Board, the mutawalli of
the wakf, and “any person interested
therein”, thereby necessarily meaning any
person interested in the wakf, are listed.
It should be borne in mind that the Act
deals with wakfs, its institutions and its
properties. It would, therefore, be logical
and reasonable to infer that its provisions
empower only 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’. After holding the above
following was laid down in paragraphs 39 and 42:
“39. It follows that where a stranger who
is a non-Muslim and is in possession of a
certain property his right, title and
interest therein cannot be put in jeopardy
merely because the property is included in
the list. Such a person is not required to
file a suit for a declaration of his title
within a period of one year. The special
rule of limitation laid down in proviso to
sub-section (1) of Section 6 is not
applicable to him. In other words, the list
published by the Board of Wakfs under subsection (2) of Section 5 can be challenged
by him by filing a suit for declaration of
title even after the expiry of the period
of one year, if the necessity of filing
such suit arises.
54
42. We must accordingly hold that the
Commissioner of Wakfs acted within
jurisdiction in holding the disputed
property to be wakf property. It must,
therefore, follow that the Board of Muslim
Wakfs, Rajasthan was justified in including
the property in the list of wakfs published
under sub-section (2) of Section 5 of the
Act. We must also hold, on a construction
of sub-section (1) of Section 6 that the
list of wakfs so published by the Board was
not final and conclusive under sub-section
(4) of Section 6 against the Respondents 1
and 2 due to their failure to bring a suit
within one year as contemplated by subsection (1) of Section 6.”
60. In the above sub-section (1) of Section 6 of
Act, 1995 an explanation has been added which is to
the following effect:
“Explanation.- For the purposes of this
Section and Section 7 the expression “any
person interested therein,” shall, in
relation to any property specified as wakf
property in the list of wakfs published
after the commencement of this Act, shall
include also every person who, though not
interested in the wakf concerned, is
interested in such property and to whom a
reasonable opportunity had been afforded to
represent his case by notice served on him
in that behalf during the course of the
relevant inquiry under Section 4.”
The explanation to sub-section (1) of Section 6
makes it clear that any person interested ‘therein’
55
who, though not interested in the Wakf concerned, is
interested in such property. The above amendment of
Section 6 sub-section (1) has made the interpretation
of this Court in Board of Muslim Wakfs (supra) of
Section 6 sub-section (1) inapplicable. Thus, the
interpretation that the word ‘therein’ refers to only
Wakf has been consciously departed with and any
person interested therein is a person who is
interested in Wakf as well as in Wakf property both.
61. In the above context it is relevant to notice
another judgment of this Court in Punjab Wakf Board
v. Gram Panchayat, (2000) (2) SCC 121, in which case
the explanation which was inserted in Section 6(1) of
the Wakf Act, 1954 by Central Act 69 of 1984 came to
be considered. The explanation which was added in
Section 6(1) by 1984 Amendment has brought almost the
same statutory scheme which has been brought by
explanation of Section 6(1) of Act, 1995. On
explanation inserted by 1984 Amendment, this Court
laid down following:
56
“24. Learned counsel for the appellant
also referred to the explanation added
below to sub-section (1) of Section 6 of
the Wakf Act, 1954, by Central Act 69 of
1984. The explanation reads as follows:
“Explanation.—For the purpose of
this section and Section 6-A, the
expression ‘any person interested
therein’ occurring in sub-section (1)
of this section and in sub-section (1)
of Section 6-A, shall, in relation to
any property specified as wakf
property in a list of wakfs published,
under sub-section (2) of Section 5,
after the commencement of the Wakf
(Amendment) Act, 1984, shall include
also every person who, though not
interested in the wakf concerned, is
interested in such property and to
whom a reasonable opportunity had been
afforded to represent his case by
notice served on him in that behalf
during the course of the relevant
inquiry under Section 4.”
25. Obviously, the intention of
Parliament was to say that if a suit was
not filed within one year, the notification
would be binding not only on those
interested in the trust but even strangers,
claiming interest in the property in
question, provided they were given notice
in the inquiry under Section 4 preceding
the notification under Section 5(2).
26. In this connection, we have to point
out that the Government of India has not
issued any date for commencement of the
explanation in Section 6 of the Wakf Act
quoted above. Even if it is assumed that
the explanation can be invoked, there is no
material before us to show that any notice
57
was issued to the Gram Panchayat before the
issuance of the notification, as required
by the explanation. If no notice was issued
as required by the notification, the
notification would not come in the way of a
civil court to decide the question if
raised between the Wakf and a third party,
even if such a suit was filed beyond one
year from the date of the notification.
Thus, once the Assistant Collector and the
Collector had jurisdiction to decide, their
decision became final and Section 13 of the
Punjab Act barred the civil suit filed by
the Wakf Board.”
62. The judgment of this Court in Punjab Wakf Board
v. Gram Panchayat interpreting the explanation, thus,
held that the notification issued under Section 5
would be binding not only on those interested in the
Wakf but even strangers, claiming interest in the
property in question, provided they were given notice
in the inquiry under Section 4 preceding the
notification under Section 5(2). The interpretation
put by this Court in Punjab Wakf Board Vs. Gram
Panchayat to the explanation added by Amendment Act,
1984 can equally be applied to interpretation of
explanation to sub-section (1) of Section 6 of Act,
1995. Applying the above ratio to the interpretation
58
of explanation of Section 6(1) of Act, 1995 following
two conclusions can be drawn:
(a) Any person interested in the Wakf property
which is specified as Wakf property in the list
of Wakfs published under Section 5 can also raise
the dispute regarding the Wakf property by
instituting a suit in a Tribunal. Limitation for
filing such suit by any person interested in the
Wakf property is one year as per Section 6(1)
proviso.
(b) The finality of the Wakf property being
included in the list of Wakfs published under
Section 5(2) shall not be on a person to whom a
reasonable opportunity had not been afforded to
represent his case by notice served on him during
the course of relevant inquiry under Section 4.
63. We may also notice the provision of Section 6 of
sub-section (5) as it existed when suit was filed by
Punjab Wakf Board against Sham Singh Harike. Section
6 sub-section (5) provided as follows:
59
“6(5) On and from the commencement of this
Act in a State, no suit or other legal
proceeding shall be instituted or commence in
a Court 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 to whether a Wakf property in the list of
Wakfs is wakf property or not,a suit can be
instituted in a Tribunal for the decision of the
question which decision shall be treated as final.
Limitation for such suit was also provided in proviso
as one year from the date of the publication of the
list of Wakfs. Sub-section (5) of Section 6 contained
the provision barring a suit in any Court after the
commencement of the Act in relation to any question
referred to in sub-section (1). In Suit No.250 dated
10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf
Board vs. Sham Singh) the question has arisen as to
whether suit property is a Wakf property or not. We
have noticed pleadings in written statement filed by
the defendant in the above suit where it was
specifically denied that suit property is a Wakf
property. Thus, within the meaning of sub-section (1)
60
of Section 6 question that whether a suit property is
a Wakf property or not has arisen. Thus, the suit
wherein the above question has arisen ought to be
considered by the Tribunal and the High Court clearly
erred in allowing the revision filed by the defendant
by its order dated 20.09.2010.
65. Thus, the view of the High Court that right,
title and interest of a non-Muslim to the Wakf in a
property cannot be put in jeopardy is contrary to the
statutory scheme as contained in Section 6 of the
Act, 1995. Thus, the reason of the High Court to
allow the revision petition is wholly unfounded. The
defendant in written statement has pleaded that the
suit property is not Wakf property. When issue in the
suit is as to whether suit property is Wakf property
or not it is covered by specific provision of
Sections 6 and 7 of the Wakf Act, 1995, hence, it is
required to be decided by the Tribunal under Section
83 and bar under Section 85 shall come into existence
with regard to jurisdiction of Civil Court. In this
context, in the judgment in Haryana Wakf Board vs.
61
Mahesh Kumar, (2014) 16 SCC 45, this Court has laid
down that the question as to whether the suit
property is a Wakf property is a question which has
to be decided by the Tribunal. In the above case
plaint was returned by the Appellate Court under
Order VII Rule 10 for presentation before the
Tribunal which view was upheld by this Court. In
paragraph 6 of the judgment following was laid down:
“6....Deciding the question of
maintainability and locus standi, in
respect of which Issues 2 and 4 were
framed, the first appellate court held that
since the claim in the suit by the
petitioner which is a Wakf Board, was on
the basis that suit property was wakf
property and since the respondent had
denied it to be the wakf property, the
question had arisen as to whether suit
property is wakf property or not. Such a
question, in the opinion of the learned
Additional District Judge, could be decided
only by the Tribunal constituted under the
Wakf Act. The appeal court, therefore,
returned the plaint to the petitioner under
Order 7 Rule 10 CPC for presentation to the
court of competent jurisdiction, namely,
the Tribunal. The result was that the
decree passed by the trial court was set
aside and the plaint returned.”
66. Civil Appeal No.92 of 2019 is, thus, fully
covered by the judgment of this Court in Haryana Wakf
62
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 has committed error in allowing the
revision petition. Thus, this appeal deserves to be
allowed.
67. One more question needs to be considered is as
to whether a suit within the meaning of Section 6
sub-section (1) or Section 7(1) is to be filed within
a period of one year of publication of list of Wakfs
under Section 5.
68. The provision contained in proviso to Section
6(1) that no such suit shall be entertained by the
Tribunal after the expiry of one year from the date
of the publication of the list of Wakfs shall be
applicable to every person who though not interested
in the Wakf concerned, is interested in such property
and to whom a reasonable opportunity had been
afforded to represent his case by notice served on
63
him in that behalf during the course of the relevant
inquiry under Section 4.
69. When Section 6 sub-section (1) provides for
raising a dispute regarding Wakf property in a period
of one year, it applies to every person who wants to
dispute the list except those who have been not
served notice under Section 4(1).
70. Now coming to Civil Appeal No.93 of 2019(Punjab
Wakf Board vs. Teja Singh), the suit was filed by
Wakf Board for possession of suit property and
injunction in the Tribunal. The above suit was fully
covered by the ratio laid down by this Court in
Ramesh Gobindram (supra). The High court relying on
Ramesh Gobindram case has allowed revision petition
filed by the defendant. We do not find any error in
the order of the High Court allowing the revision
petition filed by the defendant directing the plaint
along with documents was returned to be presented
before the appropriate court i.e. Civil Court. We
uphold the above order of the High Court. In the
result, this appeal deserves to be dismissed.
64
71. In view of the foregoing discussions, we allow
Civil Appeal No.92 of 2019 (Punjab Wakf Board vs.
Sham Singh Harike) and set aside the order of the
High Court dated 20.09.2010. Civil Appeal No.93 of
2019 (Punjab Wakf Board vs. Teja Singh) is dismissed.
Parties shall bear their own costs.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
February 07,2019.
