Punjab-Haryana High Court
Haryana Wakf Board vs Abdul Gafoor S/O Shri Maqbool on 25 September, 2009
Civil Revision No. 889 of 2007
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Civil Revision No. 889 of 2007
Date of decision. 25.09.2009
Haryana Wakf Board, Ambala Cantt, through its Estate Officer,
Jagadhri Circle, Yamuna Nagar.
....... Petitioner
Versus
Abdul Gafoor s/o Shri Maqbool, r/o near office of HSEB,
Mustafabad, Tehsil Jagadhri, District Yamuna Nagar.
...... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Arun Palli, Senior Advocate with
Mr.Sunil Garg,Advocate for
for the petitioner.
Mr. Navin Mahajan, Advocate
for the respondent.
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Sham Sunder, J.
This revision-petition is directed against the order dated 24.11.2006, rendered by the Court of Additional District Judge (Ist) Yamunanagar at Jagadhri, vide which it held that the suit filed by the Haryana Wakf Board, Ambala Cantt, for Civil Revision No. 889 of 2007
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possession of the suit property and recovery of arrears of rent, after the termination of tenancy, was not triable by the Wakf Tribunal.
2. The Haryana Wakf Board, Ambala Cantt, filed a suit for possession of plot measuring 225.5 square yards forming part of land measuring 61 kanals 17 marlas comprising khasra No.102, situated in Mustafabad, Tehsil, Jagadhri, District Yamunanagar by removal of construction or other material and for recovery of a sum of Rs.9,782/- as arrears of rent upto 31.03.2006 as also for recovery of mesne profit @ Rs.100/- per day, for illegal use and occupation of the same, after the termination of tenancy, till the delivery of possession.
3. During the pendency ,the Court of Additional District Judge (Ist), Yamunanagar at Jagadhri, passed the impugned order holding that the Wakf Tribunal had no jurisdiction to try such a suit.
4. Feeling aggrieved, against the order impugned, the instant revision petition, has been filed by the revision-petitioner.
5. I have heard the Counsel for the parties, and have gone through and perused the record of the case, Civil Revision No. 889 of 2007
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carefully.
6. The Counsel for the revision-petitioner, submitted that, according to Sections 83 and 85 of the Wakf Act, 1995, the Wakf Tribunal has got wide jurisdiction to determine any dispute, question or other matter, relating to the Wakf or Wakf property. He further submitted that the words any dispute, question or other matter relating to Wakf or Wakf property' under Section 85 are wide enough to take within its sweep not only the matters , the jurisdiction whereof is specifically conferred on the Tribunal, by various provisions of the Act, but also any dispute, question or any other matter, relating to any Wakf or Wakf Property. He further submitted that the intention of the Legislature is to resolve all disputes, by one machinery, and forum, provided in the Act itself. He further submitted that the Wakf Tribunal had jurisdiction to entertain and decide the suit, referred to above. He also placed reliance on Pookoya Haji v. Cheriyakoya, 2003(4) RCR (Civil) 474 Kerala High Court (DB), M. Bikshapathi v. Government of Andhra Pradesh, 2003(1) RCR (Civil) 212 Andhra Pradesh High Court (DB), and Jagdish Rai v. Manohar Lal and others, 2007(2) RCR, 50, Punjab & Haryana High Court, in support of his contention. He further submitted that the order impugned, being illegal, was liable to be set aside.
Civil Revision No. 889 of 2007
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7. On the other hand, the Counsel for the respondent, submitted that the Wakf Tribunal had no jurisdiction to entertain and try the suit of the nature, referred to above. He further submitted that the Wakf Tribunal under the Wakf Act could only decide a dispute with regard to Wakf or Wakf property and not the dispute between the Wakf Board and a third party. He further submitted that only the Civil Court had jurisdiction to entertain and try such a suit. He also placed reliance on Akhtar & ors v. Dist. Judge, Mau & Anr. 2006(2) RCR (Civil) 488 in support of his contention. He further submitted that the order impugned, being legal and valid, was liable to be upheld.
8. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the revision petition deserves to be accepted, for the reasons, to be recorded hereinafter. The Apex Court in Dhulabhai v. State of M.P. (AIR 1969 SC 78) laid down certain principles regarding the exclusion of jurisdiction of Civil Court. The principles laid down by the Apex Court, which are relevant for the determination of this controversy are stated as follows:-
"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such Civil Revision No. 889 of 2007
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provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays clown that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
Now let us examine the scope of Sections 83 and 85 of the Wakf Act, 1995, as also the other related provisions, in the light of the principle of law, laid down, in Dhulabhai's case (supra). Section 85 of the Wakf Act, reads as under:- Civil Revision No. 889 of 2007
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"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 Wakf, Wakf property or other matter which is required by or under this Act, be determined by the Tribunal."
9. A plain reading of the provisions of Section 85 of the Act extracted above, clearly goes to reveal that 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. This is the first limb of Section 85. The second limb of Section 85 is that no suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter which is required by or under this Act to be determined by the Tribunal. According to Section 83(5) of the Wakf Act,the Tribunal shall be deemed to be a civil Court.The Wakf Act has conferred powers on the Tribunal to resolve various disputes under the Wakf Act. Sections 6,7,32(3),54(4) of the Act, deal with the matters where the suits can be filed before the Tribunal. Sections 6 and 7 of the Act deal with the dispute, as to whether a particular property is a Wakf,whether it is Shia Wakf or Sunni Wakf.Section 32(22)(d) of the Act enables the Wakf Board to settle schemes of management of a Wakf, and, if any Civil Revision No. 889 of 2007
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person, who is interested in the Wakf or affected by the settlement or direction may institute a suit before the Tribunal. Section 54 deals with the removal of encroachment from the Wakf property. Any person aggrieved by the order passed by the Chief Executive Officer could institute a suit, before the Tribunal. The Tribunal can also entertain applications. Section 39 (21) empowers the Board to make an application to the Tribunal for the recovery of possession of any building or other place which was being used for religious purposes or institution or for charity before the commencement of the Act, has ceased to be used for that purpose. The second proviso to Section 51(2) also enables the Tribunal to entertain application concerning alienation of Wakf property.
10. From the perusal of the aforesaid provisions, as also the other provisions, contained in the Wakf Act, it is evident that considerable powers have been conferred on the Tribunal by entertaining such appeals, applications etc. to resolve various disputes, relating to Wakf and Wakf property. Therefore, when a dispute, is raised before the Wakf Tribunal or in a Civil suit, the Tribunal and the Court have to examine whether those disputes fall within Civil Revision No. 889 of 2007
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the jurisdiction of the Tribunal, by way of suit, appeals or applications. Thus, any dispute, question or other matters relating to Wakf or Wakf property, under the Wakf Act, as well as any dispute, question or other matters relating to the Wakf property are required, to be resolved, by the Tribunal. In this view of the matter, it cannot be said that such like matters are required to be decided by a Civil Court and the Wakf Tribunal has no jurisdiction. The very purpose and intent for setting up the Wakf Tribunals is to provide an expert machinery for the resolution of disputes relating to Wakf and Wakf property, movable or immovable. The Tribunals under the Wakf Act, have been constituted with a view to dispose of the matters/cases expeditiously, and disputes, relating to the Wakf and Wakf property. If the Tribunal concludes that the disputes like the one, involved in the suit referred to above, are not triable by it, but by the Civil Court, then the very purpose of conferring the powers on it under the Act, would be defeated. The Tribunal, thus, in the instant case, took a pedantic and very narrow view, that the suit of the nature, referred to above, was not triable by it. The jurisdiction of the Civil Court was completely barred, under Section 85 of the Act. The words 'any dispute, question or Civil Revision No. 889 of 2007
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other matter relating to Wakf or Wakf property' under Section 85 are wide enough to take within its sweep not only the matters which are specifically triable by the Tribunal under various provisions of the Act, but also any dispute, question or any other matter, relating to any Wakf or Wakf Property. Similar principle of law, was laid down, in Pookoya Haji's case (supra), decided by a Division Bench of Kerala High Court,M. Bikshapathi's case (supra) decided by a Division Bench of Andhra Pradesh High Court,and Jagdish Rai's case (supra), decided by this Court. No help can be drawn, by the Counsel for the respondent from Akhtar & ors's case (supra) as the facts thereof are clearly distinguishable, from the facts of the instant case.
11. The order impugned, suffers from illegality, and perversity, warranting the interference of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. Consequently, the order impugned, is liable to be set aside.
12. For the reasons recorded above, the revision- petition is accepted. The order impugned is set aside. Civil Revision No. 889 of 2007
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13. The parties are directed to appear before the Tribunal under the Act, Yamunanagar, at Jagadhri, on 24.10.2009 at 10.00 AM positively, for further proceedings.
(Sham Sunder) Judge 25.09.2009 dinesh