Arakkal Bhagavathay Kshethram Punar ... vs Masjidul Nooriya Palli Committee on 24 July, 2024

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Kerala High Court

Arakkal Bhagavathay Kshethram Punar ... vs Masjidul Nooriya Palli Committee on 24 July, 2024

1. The present CRP is directed against the judgment and decree dated 07.02.2017 of the Wakf Tribunal in O.S.No.24 of 2011 originally instituted in O.S.No.318 of 1991 on the file of Munsiff Court, Parappanangadi for claiming injunction earlier and thereafter, by amendment, possession of the property belonging to the temple.

2. The aforementioned civil suit was subsequently returned for presentation before the proper court on the basis of the valuation on the subject matter of the suit and the suit was presented before the Sub Court, Thirur as Original Suit No.73 of 2017. But later on Sub Court also found that it had no jurisdiction and the plaint was returned for presentation before the proper court. It is in that background the petitioners - plaintiffs preferred CRP(WAKF) NO. 145 OF 2017 -7- the suit before the Wakf Tribunal, Kozhikode which was numbered as O.S.No.67 of 2006. The aforementioned suit was decided by the tribunal holding that it had no jurisdiction and was ordered to be returned to the plaintiffs to present it before the Sub Court. But when the matter was posted for further proceedings, both the parties conceded that the dispute with regard to some of the properties involved in the case were of wakf properties, therefore, civil court would not have any jurisdiction to try the suit. In the meantime, Sub Court had returned the plaint to the tribunal as per the order dated 14.03.2011 in I.A.No.761 of O.S.No.132 of 2007 which was assigned fresh number after the second remand.

3. Learned tribunal on the basis of the argument addressed by the parties in paragraph No.28 held as under:

"28. The learned counsel for the defendants CRP(WAKF) NO. 145 OF 2017 -8- again placed reliance on the decision Sardar Khan and Others AIR 2007 SC 1447 to argue that the Wakf Tribunal has no jurisdiction to try the suit as it was filed before the Civil Court in the year 1991 before the coming into force of the Wakf Act 1995. In the above said decision, it is held that "the jurisdiction of the Wakf Tribunal does not extend to suits pending in civil court before the enforcement of the Wakf Act 1995 which came into force on 01.01.1996. The exclusion of jurisdiction of civil court is limited by sec.7(5) of the Wakf Act 1995." A perusal of the proceeding paper and the history of the case manifests that when the Wakf Act came into force on 01.01.1996, the suit was pending before the civil court. So, I find force in the above said contention of the learned counsel for the defendant on the basis of the binding ratio of the Hon'ble Apex Court in the above said decision. So, on that ground also, the suit is not maintainable."

But despite holding that it did not have the jurisdiction, gave the findings on merit. Mr.Ramkumar, learned Senior Counsel submitted that once the tribunal had arrived at a finding in respect of jurisdictional issue there CRP(WAKF) NO. 145 OF 2017 -9- was no occasion for rendering the findings on the merit of the matter, thus, there is an abdication and illegality.

4. On the other hand, learned counsel appearing on behalf of the defendants submitted that original suit before the civil court was in a representative capacity, as per the provisions of order 1 Rule 8 of the Code of Civil Procedure, was not maintainable for want of notice and various other non-compliances.

5. Mr.Jamsheed, learned Standing Counsel appearing for the Wakf Board submitted that the Wakf Act, 1995 came into force with effect from 01.01.1996 and there are two(2) provisions expressly barring the jurisdiction of the Civil Court, Section 85 and Section 7 of the Act.

6. We have heard learned counsel for the parties and appraised the paper book.

7. Section 7 of the Act reads as under: CRP(WAKF) NO. 145 OF 2017 -10-

"7. Power of Tribunal to determine disputes regarding [auqaf].--(1) If, after the commencement of this Act, any question or dispute arises, whether a particular property specified as [waqf] property in a list of [auqaf] is [waqf] property or not, or whether a [waqf] specified in such list is a Shia [waqf] or a Sunni [waqf], the Board or the mutawalli of the [waqf], or any person aggrieved by the publication of the list of auqaf under section 5 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:

Provided that--

(a) in the case of the list of [auqaf] relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of [auqaf]; and

(b) in the case of the list of [auqaf] relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such CRP(WAKF) NO. 145 OF 2017 -11- commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-

section (5), no proceeding under this section in respect of any [waqf] shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to any application under sub- section (1).

(4) The list of [auqaf] and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject- matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of CRP(WAKF) NO. 145 OF 2017 -12- the Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.

[(6) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.]"

8. Section 7(5) says that in case of any suit is pending before the civil court, on coming into force of the Wakf Act with effect from 01.01.1996, the tribunal would not assume the jurisdiction and it will continue to be adjudicated by the civil court. Be that as it may. But the fact remains on two occasions the suit was remanded to civil court. Thus the parties during all this CRP(WAKF) NO. 145 OF 2017 -13- process had been oscillating before two courts i.e., tribunal and civil court.

9. Section 85 of the Act expressly bars the jurisdiction of the civil court after coming into force of the Wakf Act.

10. Concededly the suit as per the facts noticed above, was filed prior to the coming into force of the Act and therefore as per the provisions of Section 7(5), was required to be decided by the civil court de hors of the fact that few of the properties were still wakf properties. But the tribunal while rendering the findings for want of jurisdiction ought not to have adjudicated the lis on merits of the matter. Thus, in our considered view, it is an act of aberration and repugnance, therefore the findings are set aside. The original suit No.24 of 2011 decided by the tribunal is ordered to be returned back to the Sub Court, Thirur, Malappuram for afresh adjudication.

CRP(WAKF) NO. 145 OF 2017 -14-

Parties are directed to appear before the Sub Court on 13.08.2024. Records are to be returned to the Sub Court, Thirur. Revision stands disposed off.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE vv

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