Delhi District Court
Jama Masjid Shaheen Bagh Trust vs Mehruddin on 26 April, 2023
1
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE 04 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
In the matter of:
CS DJ 578/2016 10009/16
Jama Masjid Shaheen Bagh Trust
Through its Trustee Mohammad Anwar
Office at F-132, Abul Fazal Enclave,
Shaheen Bagh, Jamia Nagar, Okhla,
New Delhi-110025 .......Plaintiff
Versus
1. Mehruddin
S/o Sh. Wasi Ahmad
R/o F-167/3, Abul Fazal Enclave-II,
Shaheen Bagh, Jamia Nagar, Okhla,
New Delhi-110025
2. Mehboob Ahmad
S/o Sh. Mohammad Ishaque
R/o D-154, Abul Fazal Enclave-II,
Shaheen Bagh, Jamia Nagar, Okhla,
New Delhi-110025
3. Rashid
S/o (Unknown to Plaintiff)
R/o F-137/2, Abul Fazal Enclave-II,
Shaheen Bagh, Jamia Nagar, Okhla,
New Delhi-110025
4. Shaukeen
S/o Sh. Munaf Chaudhary
D-115, First Floor,
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16
2
Abul Fazal Enclave-II,
Shaheen Bagh, Jamia Nagar,
Okhla, New Delhi-110025
5. Riyazuddin alias Raju
S/o (Unknown to Plaintiff)
R/o FA-39, Abul Fazal Enclave-II,
Shaheen Bagh, Jamia Nagar,
Okhla, New Delhi-110025
........Defendants
SUIT FOR PERMANENT INJUNCTION AND
DECLARATION
Date of institution of suit : 11.10.2013
Judgment reserved on : 11.04.2023
Judgment passed on : 26.04.2023
Final Decision : DISMISSED
JUDGMENT
1. The present is a suit filed by Jama Masjid Shaheen Bagh Trust (hereinafter referred to as JMSB Trust) against the defendants for permanent injunction thereby restraining them from interfering in the management and running of the Mosque, restraining them from staying in the Mosque overnight, from setting up the shops inside the Mosque, raising any unauthorized and illegal construction on the vacant piece of land in the Mosque, restraining them from appointing any Imam of the Mosque, and a declaration that the management committee of defendants is not lawful and that the defendants have no power to unilaterally appoint a management committee. The case of Plaintiff Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 3
2. It is the case of plaintiff that JMSB Trust is a Charitable Trust which was registered on 10.03.2000 having its office at F-132, Adul Fazal Enclave-II, Shaheen Bagh, Jamia Nagar, Okhla, New Delhi. It is the claim of plaintiff that they have been performing the religious tenets and obligations of Islam in the Masjid, and are also carrying on various social, educational, charitable activities amongst the society for the last 12 years. The plaintiff Trust is a juristic Trust which can sue and be sued in its own name and Mohamad Anwar has been authorized by The Board of Trustees to institute the present suit on behalf of the Trust.
3. It is claimed that the plaintiff Trust was created by one Smt. Abida Khatoon, W/o. Sh. Islamullah Premi, who donated a piece of land admeasuring One Bigha in Khasra No. 379 Min. situated in Revenue Estate of Village Jasola now known as Abul Fazal Enclave-II, Shaheen Bagh (Tehsil Mehrauli), Defence Colony, District South Delhi, New Delhi-110 025 in February, 1999. After donation of this piece of land for construction of a Mosque, she appointed her son Sh. Shariq Ansarullah as her lawful attorney and delegated absolute authority to him to construct the said Mosque. The said Sh. Shariq Ansarullah, in furtherance of intention of his mother, constructed the desired Mosque. The Settler Sh. Shariq Ansarullah for better control, and to supervise the management and running of the Mosque and to carryout social, educational and charitable activities amongst the Islamic Community of India, created a Trust by name of 'Jama Masjid Shaheen Bagh (JMSB Trust)' in March, 2000. This Trust Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 4 was got registered on 25.02.2011/10.03.2011. It is claimed that the plaintiff Trust has built and constructed the Mosque known as 'Jama Masjid Shaheen Bagh' (hereinafter referred as JMSB) and has been managing and controlling the affairs of the Mosque since the day the Mosque came into existence.
4. It is claimed that the plaintiff Trust has the following main objectives:
i). To manage, control and supervise the affairs of the Mosque.
ii). To maintain and look after the building of the Mosque.
iii). To settle the salary of Imam and other employees.
iv). To make the payment of professional fees of the professionals engaged from time to time by the Mosque.
v). To look after the educational activities of Mosque.
vi). To open and operate the bank account of Mosque.
vii). To raise the funds for the general good of Shaheen Bagh Community from the Mosque.
5. The Trust from the very beginning is dedicated to religious and charitable goals. Mosque has been built and developed for the purposes of offering Namazz five times a day as mandated and to teach Islamic Religious Scriptures to the people who gather for Namazz in Mosque. The Trust has also appointed a Muazzin (the person who calls for Namazz), Imam and Vice-Imam for the purposes of discharging the religious obligation in the Mosque. The Trust has been maintaining its books of accounts and the accounts are regularly audited by a Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 5 Chartered Accountant since the year 2000. The Trust maintains the account of salary of Imam, Muazzin and other Staff of the Mosque.
6. On 06.03.1997, a bank account was also opened in Bombay Mercantile Co-operative Bank Ltd, Daryaganj Branch, New Delhi in the name of Jama Masjid Shaheen Bagh. This bank account was later on closed in 2012. Thereafter a current bank account was also opened in Indian Bank, Jamia Millia Islamia Branch in the name of Jama Masjid Shaheen Bagh Trust and Shariq Ansarullah as Chairman of the Trust. The plaintiff Trust had applied on 16.04.2008 for electricity connection and electricity meter was installed for lower ground floor, and thereafter for upper ground floor separately on application in the name of 'Jama Masjid' only. Thereafter the plaintiff Trust applied for electricity connection on 13.12.2011 in the name of Trust through its General Secretary-Sh. S.M. Naiyer. The the bills are regularly being paid by plaintiff Trust. Also plaintiff Trust had obtained PAN Card in the name of plaintiff Trust on 25.02.2011.
7. The plaintiff Trust also arranges regularly for religious speeches to be delivered by renowned Maulanas on every Sunday after the fourth Namaz of the day.
8. It is the case of plaintiff Trust that defendants are local musclemen and antisocial elements who are creating disturbance and nuisance in the Jama Masjid Shaheen Bagh. They have been making attempts to take control over the management of the Masjid for their own commercial and political gains. They have been beating and threatening the old employees i.e. Imam, Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 6 Moazzin etc of the Masjid.
9. It is stated that on 05.01.2009, a complaint was filed against defendant no. 3-Riyazuddin @ Raju for violence etc. It is further submitted that on 15.09.2012, a complaint was made by plaintiff Trust to PS Jamia Nagar against some unknown persons who were trying to stay at night in the Masjid in breach of notice disallowing stay at night.
10. It is further pleaded that on 15.09.2012 at around 09:00 p.m, the defendants alongwith some unknown and unidentified persons forcibly entered into the Masjid and asked the Imam to accommodate them in the night. The Imam apprised them that it was against the policies of the Masjid and refused. Then the defendants and their musclemen abused, physically beaten up the Imam and threatened him with dire consequences, if he objected in future. When the Trustees of the plaintiff Trust reached the Masjid, defendants went away. A written complaint regarding the same was given at PS. Jamia Nagar. Thereafter on 17.09.2012, a Civil Suit was filed by the plaintiff Trust before Sr. Civil Judge, Saket Courts, Delhi, however, the same was withdrawn with liberty to file a fresh one as there were technical defects in the same. Thereafter steps were not taken to file a fresh suit immediately as the matter was settled with the intervention of the elders and the plaintiff Trust was not willing to precipitate the issue. However, at the same time when the settlement took place, some unknown persons started disturbing the Jumma prayers and a complaint was again made to police station on 20.09.2012. Thereafter on 14.12.2012, plaintiff Trust again made a complaint Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 7 as it was anticipating trouble during Jumma prayer. However, there was disturbance and rioting and a further complaint was made on 14.12.2012. Thereafter a settlement was recorded in the PS between the rioters, defendants no. 1 to 3 and some Trustees of the Trust. However, the settlement was not ratified by the other Trustees of the plaintiff Trust.
11. Between January, 2013 to September, 2013, at least 10 complaints were filed in the PS for various offences against the defendants and others for rioting, violence and for disturbing the prayers. The defendants, as a routine, used to snatch the mike from Imam and tried to address the gathering of around 2000 people which gathered for Jumma Namazz, for their political and commercial interests. The defendants threatened the Imam and Moazzin to leave the Masjid and to vacate the premises. Their intention is to grab the Masjid. Further whenever the defendants speak by snatching the mike from the Imam and Moazzin, they would speak and propagate anti-national radical content which goes against the national security and policies of plaintiff Trust. They have been threatening the Trustees of plaintiff Trust. Various complaints were made to Local Police Stations on 17.01.2013, 20.01.2013, 11/12.02.2013, 16.03.2013, 30.08.2013, 01.09.2013 and 27.09.2013.
12. The defendants have been threatening and disturbing the Trustees since 01.10.2013. They are getting more violent and continuously threatening the Imam, Vice Imam and Moazzin and also trying to replace them. The defendants are making regular attempts to stay in the Masjid at night but they have failed in their Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 8 ulterior designs till date. The defendants have no right, title or interest to interfere in the managerial and administrative affairs of the plaintiff Trust. Hence the present suit is filed thereby seeking injunction against the defendants thereby restraining the defendants from staying in the Masjid at night and also restraining them from setting up the shops inside the Masjid. Further injunction is sought thereby restraining the defendants from interfering in the management and administration of the affairs of the Masjid.
13. Hence it is pleaded that the cause of action to file the present suit arose on 15.09.2012 when the defendants and their associates forcibly and illegally made an attempt to stay inside the Masjid. It further arose on 16.09.2012, 24.09.2013, 29.09.2013 and on each further dates when the defendants committed various acts against the Masjid and objectives of the Plaintiff Trust. It is further submitted that the Trust and Masjid are situated at New Delhi and hence this Court has jurisdiction in the matter.
14. The relief of declaration is valued at Rs. 200/- on which Court Fee of Rs. 20/- is paid. For the relief of permanent injunction, the suit is valued at Rs. 22.50 lacs on which advalorem Court Fee has been paid. The plaintiff has paid a total Court Fee of Rs. 25,000/-.
The case of Defendants no. 1 to 5.
15. It is the case of answering defendants that the suit property is a Waqf Property and the same is used as a Masjid by local residents of the area including defendants since the year Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 9 1987. The present suit is filed without obtaining permission from Waqf Board and is barred by Section 85 of The Waqf Act (hereinafter called the 'Act') and hence is not maintainable.
16. It is submitted that the plaintiff is seeking injunction against the defendants thereby restraining the defendants from dispossessing the plaintiff from the suit premises. The suit premises is worth more than crores and plaintiff is not in possession of the said property, hence the present suit is not properly valued. It is submitted that the suit property is a public property, it is a Masjid which is managed by local residents of the area. It is pleaded that the defendants are resident of the same area in which the suit property is situated and are offering prayers since the existence of Masjid in the year 1987. When the residents of the area were purchasing the plots, this plot was left out. The value of this plot was paid by the residents when they purchased their lands in the adjacent area. Site plan is annexed. It is the residents of the area who have developed this Masjid by way of continuous donations since 1987. It is submitted that everything was going on smoothly in the Masjid till September, 2011 when existence of alleged Trust was disclosed to the local residents.
17. It is submitted that at the time of development of this area, the Settler of the Trust has deliberately left certain area for Masjid, Madarsa and Dispensary and the cost was paid by the residents of the locality. As the cost of the property has increased over the years, the Settler of the Trust has sold the space of dispensary and converted the Madarsa into a public school to Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 10 earn good profit. The Masjid has been constructed by collections and donations by joint efforts of the local residents and it does not belong to any Trust. The plaintiff Trust has been formed in order to unlawfully control the affairs of the Masjid by use of unfair means by members of the Trust.
18. It is submitted that the plaintiff Trust instead of performing religious tenets of Islam, they are trying to impose their own ideology and fundamentals inside the Masjid to control the affairs of the Masjid, which is not acceptable to the local residents including defendants. It is denied that the plaintiff Trust is performing the religious tenets and obligations of Islam in the Masjid and is carrying out social, educational and charitable activities in the said Masjid. The purpose of plaintiff Trust is to promote hatred and division in the society, which is not acceptable to the local residents. It is denied that Mr. Shariq is Settler of the Trust. It is denied that the Masjid is created out of donation of land by Smt. Abida Khatoon and in furtherance of her intentions, Sh. Shariq Ansarullah is entitled to formation of Trust or to take over the control of the Masjid. It is again reiterated that the intention of the plaintiff Trust is to grab the affairs of the Masjid. All the averments made in the plaint are denied in specific.
19. It is further pleaded that earlier Managing Committee of the Masjid was dissolved by the local residents on 15.12.2012 and a new committee was formed, therefore, the Board of Trustees are not empowered to control and manage the affairs of the Masjid. The Masjid came into existence in 1987 and the Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 11 plaintiff Trust was formed in the year 2000. Defendants are respectable persons of the society. After the disputes arose between the parties, a settlement was entered into on 22.01.2013 which was duly signed by Chairman and Secretary of the Trust, hence it is unlawfully denied by the plaintiff. Further, various complaints made by plaintiff Trust are settled in the proceedings u/s. 107/111/150 Cr.PC before the Court of Ld. Special Executive Magistrate.
20. In the replication to the written statement of defendants no. 1 to 5, the averments made in the written statement are denied. Further it is submitted that plaintiff is only seeking injunction hence the suit is not barred by section 85 of Waqf Act. Arguments of the Plaintiff
21. It is submitted by Ld. Counsel for plaintiff that the jurisdiction of this Court is not barred under The Waqf Act, 1995. It is submitted that in view of Section 83 of The Waqf Act, the jurisdiction of tribunals is only w.r.t. determination of any dispute in question or other matter relating to a 'waqf or waqf property'. However the present is a suit for temporary injunction against the respondents thereby restraining them from interfering in the day to day activities of the mosque in dispute. Hence the jurisdiction of civil courts is not barred.
22. It is further submitted that in view of Section 6 and Section 7 of Waqf Act, the jurisdiction of the Tribunal and the disputes which can be referred therein, are those pertaining to the question whether suit property is 'Waqf property' or not. The present being a suit for permanent injunction, the Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 12 jurisdiction of this Court is not barred.
23. It is further submitted that since this property is used exclusively for the pious purposes only. This property is not covered under the Waqf Act and is outside the jurisdiction of the Waqf Board constituted under the Waqf Act. Attention of the Court is drawn to Section 4, 5 and Section 6 of the Waqf Act thereby submitting that the Masjid, which is the subject matter of the present suit, does not figure in the list so published by the Waqf Board.
24. It is submitted that the plaintiff is a registered Trust which is managing this Masjid since its inception in the year 1999. Hence it is not covered under Waqf Act.
25. It is further submitted that no document has been placed on record by defendant to show that the present property is a Waqf property. This question has been specifically put in cross-examination to the defendant's witnesses and all of them have stated that they have not filed any document on record to prove that this is a Waqf property.
26. It is further argued that it is claimed by defendants that one committee is running this mosque, however why that committee is not brought on record, is not explained by defendants. It is admitted by defendant's witnesses in their cross-examination that that committee is not bearing the expenses of running the mosque viz. electricity bills, water bills, salary slips etc. Further witnesses have admitted that the electricity meter of the trust is in the name of plaintiff. Hence it is pleaded that it is the plaintiff Trust which is running this Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 13 mosque since its very inception. It is further submitted that at present, there is only one shop which is constructed in this mosque. The said shop has been rented out to a tenant by the plaintiff Trust, however defendants are trying to construct fresh shops in the vacant adjacent land, next to the existing shop. It is the plaintiff Trust who collects the rent from the tenants. This shows plaintiff is managing this Mosque and defendants have no right to manage it.
Arguments of the Defendant
27. It is submitted by Ld. Counsel for defendant that once a property is given for the purpose of Waqf, the founder is divested of the ownership of the property. Further the fact that members of the public are offering prayers therein shows that the Waqf is complete and irrevocable. It becomes a public place and no Trust can claim any rights over the same. Hence it is submitted that the property is a public property/ public mosque and plaintiffs cannot claim exclusive rights to run the same. It is further argued that it has come in the cross- examination of PW1 that this plaintiff's committee was formed in January, 2011, it was registered on 25.01.2011. PW1 has admitted in his cross-examination that prior to its registration, this mosque was being run by Mr. Islam Ullah Premi. Further it has come in the cross-examination that he used to run this mosque from its inception till 1997 when he expired. Trust is formed later.
28. It is further submitted by Ld. Counsel for defendant that plaintiffs are trying to grab this Waqf property. It being a Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 14 public waqf, it entitled to be run and managed by the local public of the area who are professing Muslim religion. There is no document placed on record thereby showing that Smt. Abida Khatoon or Sh. Islamullah Premi was owner of this property. Further it is noted that the area around Masjid, Shaheen Bagh is an area where the registration of property does not take place. All the properties are passed on the basis of GPA Will etc. only. Hence none of the properties in this area are registered.
29. It is further argued by Ld. Counsel for defendant that it is admitted by PW1 in his cross-examination that construction of Jama Masjid, Shaheen Bagh was done by collecting donations from general public and the construction was done somewhere in 1989-1990. The funds for construction of this property are generated out of the donations of general public.
30. It is further submitted that it is admitted by PW1 in his cross-examination that Masjid is public place and no restriction can be imposed on anyone from offering prayers therein. Hence defendants cannot be restrained from entering the Masjid for offering prayers. Further, both the parties are Sunnis is this case.
Issues and Evidence
31. From the pleadings of the parties in suit, the following issues were framed for adjudication vide order dated 06.06.2017 :-
1. Whether the plaintiff is entitled to a decree of permanent Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 15 injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from interfering in the management and administration of day to day affairs of the trust and the Jama Masjid Shaheen Bagh ? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from staying inside the Jama Masjid Shaheen Bagh at night? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from setting up shops inside the premises of the Jama Masjid Shaheen Bagh? OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from raising any unauthorized and illegal construction on the vacant piece of land of the plaintiff's trust adjacent to the Jama Masjid Shaheen Bagh? OPP
5. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from appointing any Imam in the Jama Masjid Shaheen Bagh? OPP
6. Whether the suit for permanent injunction is not maintainable as the suit property is WAQF and this court has no jurisdiction over the subject matter of the dispute? OPD
7. Whether the suit is barred in terms of Section 85 of the WAQF Act? OPD Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 16
8. Whether the suit for injunction is not properly valued for the purposes of court fee and jurisdiction and adequate court fee is not affixed? OPD
9. Whether the suit is instituted without any cause of action? OPD
10. Relief.
32. The plaintiff in support of his case has examined Sh.
Md. Anwar, AR/ Trustee of Jama Masjid Shaheen Bagh Trust as PW1 who tendered his evidence affidavit as Ex. PW1/1 and relied upon the following documents:-
S.No. Particulars Exhibits 1. The Resolution authorizing the Ex. PW-1/A
Deponent /PW-1 to institute & contest (OSR) the instant suit.
2. The constitution of the Trust (altered) Ex. PW 1/B dated September 2013. (OSR)
3. The GPA dated February 1999. Ex. PW1/C (OSR)
4. The appointment letter of Naib Imam Ex.PW1/D and salary receipts. (Colly) (OSR)
5. Ex. PW-1/E is de-exhibited as the Mark-'A' same is not produced by the PW-1 and same is now marked as Mark A.
6. Certificate from Indian Bank regarding Ex. PW-1/F current bank account of JMSB Trust (Objected by the Counsel of the defendant that it does not reflect the Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 17 same document mentioned in para 13 of the affidavit)
7. Electricity Bills (2) in the name of Jama Ex. PW-1/G Masjid. (Colly)
8. PAN Card in the name of Plaintiff Ex.PW-1/H Trust.
9. Document marked as Ex.PW-1/I is de- Mark-B exhibited as the Original is not produced and the same is marked as Mark-B.
10. Document marked is the certified copy Ex.PW-1/K of suit bearing number 336/12 along with Orders (Objected to by the Ld. Counsel for the Defendant that the Orders are not the part of Affidavit and 'Colly' word is not mentioned in the affidavit also.
11. The Complaint to the SHO, Jamia Ex.PW-1/L Nagar dated 20.09.2012 (2 pages).
12. The Complaint dated 22.01.2013 made Ex.PW-1/M to the SHO PS Jamia Nagar (2 pages)
13. The complaint dated 20.01.2013 made Ex. PW-1/N to the SHO PS sania Nagar (3 pages).
14. Document pertaining to various Ex. PW-1/O complaints dated 11.02.2013, (Colly) 16.03.2013, 30.08.2013, 01.09.2013 & 27.09.2013. Originals were not produced for the complaints dated Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 18 17.01.2013 & 20.01.2013, hence marked as Mark 'C' 7 Mark 'D'.
33. The plaintiff in support of his case has examined PW2/ Sh. Zakir Hussain who tendered his evidence by way of affidavit which is Ex. PW-2/1.
34. The plaintiff in support of his case has also examined PW3/ Sh. Sheikh Mohammad Naiyer who tendered his evidence by way of affidavit which is Ex. PW-3/1 and also relied upon the documents Ex. PW-3/A (OSR) and Ex. PW- 3/B (OSR).
35. The defendant in support of his case has examined Sh.
Mehruddin as DW1 who tendered his evidence by way of affidavit which is Ex. DW-1/A and also relied upon the documents Mark DW1/A and Ex. DW1/1 (Colly) which are receipts dated 24.07.012, 02.03.2012, 03.03.2012 and 29.02.2012.
36. The defendant in support of his case has examined Sh.
Mehboob Ahmed as DW2 who tendered his evidence by way of affidavit which is Ex. DW-2/A and also relied upon the documents already exhibited as Mark DW1/A and Ex. DW1/1 (Colly) which are receipts dated 24.07.012, 02.03.2012, 03.03.2012 and 29.02.2012.
37. The defendant in support of his case has examined Sh.
Rashid as DW3 who tendered his evidence by way of affidavit which is Ex.DW-3/A and also relied upon the the documents which are already exhibited as Mark DW-1/A and Ex. DW1/1 Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 19 (Colly) which are receipts dated 24.07.012, 02.03.2012, 03.03.2012 and 29.02.2012.
38. The defendant in support of his case has examined Sh.
Shaukeen as DW4 who tendered his evidence by way of affidavit which is Ex.DW-4/A and also relied upon the the documents which are already exhibited as Mark A and Ex. DW1/1 (Colly).
39. The defendant in support of his case has examined Sh.
Riyazuddin as DW5 who tendered his evidence by way of affidavit which is Ex.DW-5/A and also relied upon the the documents which are already exhibited as Mark A and Ex. DW1/1 (Colly).
40. The defendant in support of his case has examined Sh.
Saleem Khan as DW6 who tendered his evidence by way of affidavit which is Ex.DW-6/A and also relied upon the the documents which are already exhibited as Mark A and Ex. DW1/1.
Findings of the Court
41. The first issue to be decided by this Court is whether the present Court has jurisdiction over the subject matter of the dispute or not.Whether the present suit is barred in view of Section 85 of the Waqf Act?
Jurisdiction of Civil Court
42. It is vehemently argued by Counsel for respondent that the property being a Waqf property, the present suit filed by plaintiffs is not maintainable. It is argued that a suit on behalf of a Waqf property can only be filed by Imam or Mutawalli.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 20
43. On the other hand, it is argued by Counsel for plaintiff that the present suit is not a suit for declaration of the JMSB as Waqf property . It is simply a suit for injunction. Further it is submitted that the present Mosque does not fall in the lists of Waqf prepared by the Waqf Board, hence it is not a Waqf property.
44. It is the argument of Counsel for plaintiff that a perusal of Section 6 and Section 7 of The Waqf Act, 1995 would show that a 'list of Auqaf' is prepared under the Act, as is mentioned in Section 4 and 5 of the Waqf Act. It is only those Waqf which are mentioned in the list are covered under The Waqf Act. The jurisdiction of Tribunal set up under The Waqf Act is applicable to those Waqf which are mentioned in the list of Auqaf prepared by the Survey Commissioner. It is submitted that Jama Masjid, Shaheen Bagh was never mentioned in any of the lists so prepared by the Survey Commissioners and hence it is not a Waqf property. However this Court doesn't agree with the submissions made by Ld. Counsel for plaintiff.
45. According to Section 6 of the Waqf Act, the question whether a property which is specified in the list of Auqaf, is a Waqf property or not, or whether such property in the list is Shia Waqf or Sunni Waqf, such question is to be decided by the Waqf Board set up under the Waqf Act. According to Section 7 (6), the Tribunal also has power of assessment of damages for unauthorized occupation of Waqf property and also to penalize such unauthorized occupants for their illegal occupation. According to Section 83 of the Waqf Act, the State Government Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 21 is to set up Tribunals for the purpose of determination of any dispute or question relating to 'Waqf' or 'Waqf property', eviction of a tenant, determination of rights of the lessor and lessee.
46. However a bare perusal of Section 6 and Section 7 of the Waqf Act would reveal that it mentions those disputes which are to be raised before Waqf Board. It mentions that the question whether a property specified in the list of Auqaf is a Waqf property or not, or is a Shia Waqf or Sunni Waqf is to be decided by the Tribunal. However a perusal of these sections would show that they do not indicate that these are the "only" disputes which may be referred to the Waqf Board. If the intention of the legislature was to ensure that "only" those disputes pertaining to Waqf property which are mentioned in the list are to be decided by the Tribunal, then the word 'only' would have been mentioned. However the word 'only' is not there. Further in the scheme of the Act, there is nothing to indicate that only those disputes pertaining to Waqf property which are mentioned in "the list" are to be referred to the Tribunal. Hence disputes regarding those Auqaf which are not mentioned in the list of Auqaf prepared by the Commissioner can also be referred to the Tribunal. The definition of disputes regarding Auqaf which is mentioned in section 6 and section 7 of the Waqf Act is an inclusive one. It does not exclude those disputes relating to Waqf property which are not mentioned in the list of Auqaf.
47. Further it is laid down in Section 83 of the Waqf Act that "any dispute, question or other matter relating to a Waqf or Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 22 Waqf property" is to be decided by the Tribunal. The words "in the list of Auqaf" are absent in Section 83 which clearly indicate that the intention of the legislature was not to confine the jurisdiction of Tribunal under the Act to only those Waqf properties which are mentioned in the list of Auqaf prepared by the Survey Commissioners. Section 84 and Section 85 have also been drafted with a similar intention, as the words "in the list of Auqaf" are also absent in these sections. Hence the argument of Counsel for plaintiff that only those disputes relating to Waqf property can be referred before Tribunal which are mentioned in the list of Auqaf is misconceived. It was also observed in Rashid Wali Beg vs Farid Pindari cited as (2022) 4 SCC 414 that :-
"33. A conjoint reading of Sections 6, 7 and 85 would show that the bar of jurisdiction of civil court contained in Section 6(5) and Section 7(2) is confined to Chapter-II, but the bar of jurisdiction under Section 85 is all pervasive.
(iv) A major distinguishing feature between Sections 6(1) and 7 (1) on the one hand and Section 83 on the other hand is that the dispute, question or other matter referred to in Sections 6 and 7 are confined only to what is included in the list of waqfs prepared under Section 4 and published under Section 5. The words "specified ...
in the list of waqfs" found in sections 6 (1) and 7(1), are conspicuous by their absence in section 83 (1). Therefore, it is clear that Sections 6 and 7 speak only about two categories of cases, but Section 83 covers the entire gamut of possible disputes in relation to any waqf or waqf property.
34. It is seen that there are 2 limbs to Section 85. The words, "any dispute, question or other matter relating to any waqf or waqf property"
used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Section 6(1) and 7(1). The words in the second Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 23 limb of Section namely, "other matter which is required by or under this Act to be determined by a Tribunal", seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1)."
Hence it cannot be said that the jurisdiction of a Waqf Tribunal under The Waqf Act, 1995 is only with respect to those Waqf which are mentioned in the list of auqaf prepared under the Act. The JMSB is not mentioned in the list of auqaf prepared by the Survey Commissioner, itself is not a ground to say that it is not a 'Waqf' within the definition of Waqf provided under the Act. What is WAQF under the Waqf Act, 1995
48. The next question that arises for consideration is what is Waqf under the Waqf Act, 1995. The definition of Waqf as is contained in Waqf Act, 1995, Section 3 (r) is as follows:-
"waqf" means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes--
(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;
(iii) "grants", including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and "waqif" means any person making such dedication;]"
This is the definition of Waqf for the purposes of this Act.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 24 However this definition is not exhaustive of the concept of Waqf. The definition of Waqf itself is very vast and there may be different definitions for the purposes of different enactments/ legislations. But for the applicability of The Waqf Act, 1995, a property must fit in the definition of 'Waqf' as is contained in this Act.
49. The main ingredients of Waqf as per the definition under Waqf Act are :-
(i) Dedication of property for religious, pious or charitable purpose.
(ii) Nature of dedication must be permanent.
(iii) The dedication can made by any person capable of making dedication.
(iv) The subject of dedication must belong to the dedicator or settler.
50. The first and second ingredient are that there must be a dedication of property for a religious or pious purpose recognized under Muslim Law and it must be permanent. There is no specific mode by which property can be dedicated for such a purpose in order to constitute a Waqf. It can be oral, it can be in writing, it can be testamentary or non- testamentary, it can be by way of user. But the dedication must be permanent, clear and unequivocal. Mere intention to dedicate the property permanently for religious or pious purpose is sufficient.
51. Under Muslim Law, two types of Waqf are recognized, Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 25 i.e. Public Waqf and Private Waqf. Private Waqf is also known as a waqf-alal-aulad. It is a Waqf which is created for a pious, religious or charitable purposes but for the benefit of the family members, children and descendants of the settler. In such a Waqf also, the property dedicated also vests in God according to Sunni school. It was observed by Hon'ble Supreme Court in Radha Kanta Deb V. Commissioner of Hindu Religious Endowments Orissa cited as 1981 AIR 798, 1981 SCR (2) 826 that in Waqf-alal-aulad also, the property is dedicated to God, but the property is handled by beneficiaries and the income from the Waqf is used for the maintenance and support of the family of settler. In case the family becomes extinct, then the Waqf becomes a public Waqf. The Waqf Act does not apply to Waqf-alal-aulad as such a Waqf is not of public nature. However if such a private Waqf-alal-aulad is created partly for the benefit of family members of settler and partly for benefit of the poor in general, then in such cases the Waqf Act applies to the extent property is dedicated to a pious, religious or charitable purpose recognized under Muslim Law for general public. This was observed in Tamil Nadu Waqf Board Vs. Ebrahim Musuee cited as AIR 1979 Mad 231.
52. On the other hand, public Waqf is a Waqf which is created by dedication of property permanently for any religious, pious or charitable purpose recognized under Muslim Law for the benefit of general public. The Law on creation of public Waqf is discussed in detail by Hon'ble Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 26 Supreme Court of India in the judgment of Syed Mohd. Salie Labbai (Dead) vs Mohd. Hanifs (Dead) By L.Rs. Cited as 1976 AIR 1569, 1976 SCR (3) 721. It was observed that the word 'Waqf' means detention or appropriation. A public Waqf is a dedication made for the purposes of public charity, religious or pious purposes.
53. It was further observed that once the founder/ settler dedicates a site for the purpose of building a mosque and prayers are offered at the site even once, it becomes Waqf property and the ownership of the founder/ settler is completely extinguished. The moment a person is allowed to offer his prayers in a Mosque, the Mosque becomes dedicated to the public finally. Under the Mohammedan Law, no Muslim can be denied the right to offer prayers in a Mosque, no matter what section or creed of society he may belong to. It was further observed that even the adjuncts to the Mosque, which are used for religious purposes, become as much part of the Mosque as the Mosque itself. It was observed in the Syed Mohd. Salie Labbai vs Mohd. Hanifs case (supra) as follows:-
"This is necessary in case of prayers offered in congregation. A single Muslim can also offer his paryers with or without an Imam but the prayers in a congregation or a Jamaat are offered only behind an Imam who leads the prayers. As Islam is an extremely modern and liberal religion. there is no question of any person being denied admission into a mosque for the purpose of offering prayers and that is why the law is so strict that the moment a person is allowed to offer his prayers in a mosque, the mosque becomes dedicated to the public finally, it is not necessary for the dedication of a public mosque that a Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 27 Muttawali or a Pesh Imam should be appointed which could be done later by the members of the Muslim community. All that is necessary is that there should be a declaration of the intention to dedicate either expressly or impliedly and a divestment of his interest in the property by the owner followed by delivery of possession. Here also the delivery of possession does not involve any ritual formality or any technical rule. For instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to offer their prayers either on the vacant land or in a mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete."
" It would thus appear that in order to create a valid dedication of a public nature, the following conditions must be satisfied :
(1) that the founder must declare his intention to dedicate a property for the purpose of a mosque. No particular form of declaration is necessary.The declaration can be presumed from the conduct of the founder either express or implied;
(2) that the founder must divest himself completely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque.Even if there is no actual delivery of possession the mere fact that members of the Mahomedan public are permitted to offer prayers with azan and ikamat, the Waqf is complete and irrevocable; and (3) that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque."
54. It was further observed that in case a man makes a Masjid within his mansion and makes a way for the public to enter to make prayers, and prayers are made even once with azan and ikamat or the regular calls two or more times, it becomes a Public Mosque. It was further observed that once a Masjid is established by dedication, no condition can be Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 28 attached by the founder and if any such condition is attached, such a condition would be void and the Waqf would be lawful. Hence the proprietary right of the Waqif in a building set apart for prayers becomes extinguished either on the declaration of the Waqif that he has consecrated it for worship, or on the actual performance of prayers therein. Hence once prayers are offered by call for prayers, the Mosque becomes irrevocably dedicated to God and the Mosque belongs to Allah. It becomes absolute Waqf. Further, a Masjid cannot be consecrated for only a particular type of people or people belonging to a particular locality, and if any such reservation is made, it is void. Further a Masjid never reverts to its original owner or his legal heirs. The prayers of one individual alone is sufficient to constitute it as public Mosque as long as it is accompanied by azan and ikamat. A Mosque belongs to Allah.
55. Further there is no categorization of Mosque in Islam as Sunni mosque or Shia Mosque or Hanafi Mosque. Every Muslim is entitled to offer prayers in any of the public Mosques irrespective of the fact that who dedicated it, how it was dedicated, who is managing it. Though there are small differences in the way prayers are made. The Sunnis make their prayers with folded hands in front while Shias drop their hands straight down by their sides while Shaifis raise their hands while pronouncing Takbir and pronounce the word Ameen loudly. However these minor ritualistic differences have no bearing on the right to offer prayers in a Mosque. In a Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 29 Mosque every Muslim is entitled to follow his own form during prayers. The Imam may be of a particular school but there is no prohibition on Muslim of any school to say prayers behind him. There is only one congregational prayer in a Mosque in which Muslims of all schools may participate. It was so observed in Mohamed Wasi Vs Bachchan Sahib cited as AIR 1955 All 68.
56. It was observed in Syed Mohd. Salie Labbai (Dead) vs Mohd. Hanifs (Dead) By L.Rs. Cited as 1976 AIR 1569, 1976 SCR (3) 721 that once a property is dedicated for public worship and is used for offering prayers since a very long time, it becomes Waqf by user. Normally a Waqf requires an express dedication, but where there is no evidence as to when Waqf was created, by whom it was created and how it was created, it's existence may be proved by way of evidence of user. Waqf by user is generally seen in cases of Public Mosques, kabristan, dargah etc. The long continuous uninterrupted user as such of these places is sufficient to treat them as public waqf by the members of Muslim community, the land on which they are situate are necessarily inferred to have been dedicated by the owners for such religious purposes and hence they have the character of Waqf. Further in such cases, the long user is the only available evidence to show that the property is a Waqf property. Further if any additional room or shops or graveyard is constructed and are used for religious purposes, the entire property becomes Waqf by user.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 30
57. It was observed in Syed Mohd. Salie Labbai vs Mohd. Hanifs Cited as 1976 AIR 1569, 1976 SCR (3) 721 case that :-
It is also well settled that where a mosque has been in existence for a long time and prayers have been offered therein, the Court will infer that it is not by leave and licence but that the dedication is complete and the property no longer belongs to the owner. In Miru V. Ramgopal (2) the High Court of Allahabad observed as follows:
"But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be a matter of inference for the Court which is the judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself had been allowed to be consecrated for the purposes of such rights being performed. Where there is a mosque or a temple, which has been in existence for a long time, and the terms of the original grant of the land cannot now be ascertained, there would be a fair presumption that the sites on which mosques or temples stand are dedicated property."
58. Further a land may be dedicated as Mosque without a building and once a building in the nature of Mosque is built on it, a clear case of dedication is made out. Once a Mosque is constructed, it stood dedicated to God and the rights of the owner/ settlor gets extinguished completely. Once there is a complete dedication of Mosque as a place of public worship, any condition imposed by the owner would be void. In such cases who actually made the construction becomes wholly irrelevant. The Act of permitting Mohammadans to build a Mosque itself amounts to complete dedication or a declaration that the Mosque is a public property. It was observed in Syed Mohd. Salie Labbai vs Mohd. Hanifs By L.Rs.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 31 Cited as 1976 AIR 1569, 1976 SCR (3) 721 case that :-
"In our view the question of the person who actually made the construction is wholly irrelevant because all the constructions made by any person used for religious purposes incidental to offering of prayers in the mosque would be deemed to be accretions to the mosque itself and there is unchallenged evidence to show that all the constructions were used by the Mahomedan community for the purpose of offering their prayers in the mosque on special occasions."
59. Further where arrangements are made in the Mosque for Wazoo, the entire Mosque is used for offering prayers and loud speakers are used for azan and delivering khudbaz, it becomes a public Mosque meant for religious purpose. It was observed in Syed Mohd. Salie Labbai vs Mohd. Hanifs case (supra) that :-
"It is well known that on special occasions like Fridays, Id, Ide-Milad and other auspicious occasions the entire Muslim community flock to the mosque for the purpose of offering prayers, because offering of prayers on such days is, according to the Islamic tenets, extremely auspicious and highly efficacious. It is also established from the evidence that the constructions referred to above had been made for the purpose of the mosque. Before a Mussalman offers his prayers he has first to wash his hands and feet in the prescribed manner and for this purpose arrangements are made in every mosque, and Pallivasal is no exception. Accoedingly a tank or a Hauz, where water was pumped in was meant for the purpose of Wazoo i.e. for washing hands and feet which is a prerequisite for offering the prayers. Similarly as a large number of Muslims assembled on special occasions as mentioned above, the entire space including the mosque, the Mandapam, and the corridor was used for the purpose of offering prayers. Thus these constructions were used for religious purposes incidental to the offering of prayers and have become accretions to the mosque so as to constitute one single entity. Similarly the mats are meant for the Mahomedans to be used at the time of offering prayers. Lastly the loud speaker is used for reciting Azan and delivering Khutbas i.e. religious sermons. Thus all the Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 32 adjuncts of the mosque are meant for purely religious purpose connected with the offering of prayers in the mosque."
"The case of the defendants was that these constructions were their private property, but there is not an iota of evidence to prove the same. The law on the point is well settled that where any construction is made for the purpose of the mosque or for its benefit or by way of gift to the mosque, the same also becomes a public Waqf."
60. The right to officiate in a Mosque of public nature has to be decided according to the principles of Mohammedan Law and custom. It was further observed in Syed Mohd. Salie Labbai vs Mohd. Hanifs case that once a Mosque is held to be a public Mosque, the Mohammedan Law does not favour the right of a person to officiate as Imam to be hereditary, in the absence ofany custom or usage to the contrary. The property having been dedicated to God, it is not open to the founder or his descendants to interfere with the performance of public prayers. An Imam must possess certain essential virtues before he can claim to lead the congregations at the prayers. It was observed in Syed Mohd. Salie Labbai vs Mohd. Hanifs case (supra) that :
"There is some dispute about the right to act as an Imam. We have already pointed out that the Mahomedan Law does not favour the hereditary right of being an Imam because an Imam must possess certain special qualities and certain special knowledge of the scriptures before he can be allowed to lead the prayers. The evidence shows that the Labbais have undoubtedly been acting as Imams, though not for a continuous period. This, however, is a matter for the entire Muslim community to decide because an Imam is normally chosen under the Mahomadan Law by the Muslim community. There is no clear evidence of any usage or custom by which the right to act as Imam is hereditary in this case."
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 33 Jama Masjid, Shaheen Bagh - if a Waqf property
61. Whether a JMSB is a public Waqf or not is to be decided on the basis of facts and evidence lead before the Court.
62. It is the claim of plaintiffs that Mrs. Abida Khatoon, W/o Late Sh. Islamullah Premi was the owner of this property and she executed a GPA dated 23.03.1999 in favour of her son Sh. Shariq Ansarullah to manage the affairs of the mosque. However it is repeatedly averred by respondents in their written statement as well as evidence affidavit that Mrs. Abida Khatoon was not the owner of this land and she had no authority to execute any GPA in favour of Sh. Shariq Ansarullah. The onus was on plaintiffs to prove that they are authorised to manage the JMSB and hence entitled to the injunction sought for.
63. During their evidence, the plaintiffs had filed on record the said GPA dated 23.03.1999 which is claimed to be executed by Smt. Abida Khatoon in favour of Shariq Ansarullah thereby giving him authority to manage the affairs of the Mosque. However plaintiffs have failed to produce any evidence before the Court thereby showing that Mrs. Abida Khatoon was the owner of this land. There is a specific issue framed in this case if the plaintiff is entitled to injunction as the property is claimed to be a Waqf property. When it is the specific claim of plaintiffs that Sh. Shariq Ansarullah is the settler, acting under the GPA of Mrs. Abida Khatoon and is empowered to form a Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 34 trust for the management of JMSB, the onus was on plaintiffs to prove the authority of Mrs. Abida Khatoon to execute this GPA. A Muslim can dedicate a property to be used as a Mosque or Waqf only if he is owner of it. A person who is not the owner of a land, cannot dedicate it for the purpose of creation of a Waqf or Mosque. However there is not even an iota of evidence to prove that Mrs. Abida Khatoon was the owner of this land. Hence she had no authority to give any GPA qua this land to anyone. Any such GPA is without any effect.
64. Even if the argument of plaintiff is accepted that Mrs. Abida Khatoon was the owner of this property and she had executed this GPA in favour of her son, she had already dedicated this property for the purpose of construction of Jama Masjid and a Waqf was already created by her when she executed this GPA. A perusal of this GPA dated 23.03.1999 would show that she has appointed Sh. Shariq Ansarullah as settler for a piece of land which she had already donated to Allah. It is pertinent to quote here the relevant extract from the GPA dated 23.03.1999 :-
"I Mrs. Abida Khatoon, do hereby nominate, appoint and constitute my son Sh. Shariq Ansarullah, S/o Late Mr. Islamullah Premi, R/o E-15, Abul Fazal Enclave, New Delhi- 110025 (hereinafter called the attorney) as my lawful legal Attorney and authorise him to do the following acts, deeds and things for and on my behalf and in my name in respect of my donated piece of land for Jama Masjid measuring 1 Bigha comprising in Khasra No. 379 min, situated in the Revenue Estate Village Jasola, Tehsil Mehrauli, District, New Delhi, State Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 35 Delhi (hereinafter called the property). To manage, control and supervise the affairs of Jama Masjid, Shaheen Bagh and to do all acts as are ancillary and incidental for the same including to take the entire control, management and personally handling and looking after the affairs of Jama Masjid."
65. Beside the above mentioned clauses in this GPA, the other clauses are about the acts which the settler was to do for the construction of Mosque/ Jama Masjid viz. to represent her in any office for permissions, to get water and electricity meters, to get construction and alteration of Jama Masjid, to represent her in all the Courts, to receive and accept consideration or money with respect to Jama Masjid etc.
66. A perusal of the above mentioned extract from this GPA dated 23.03.1999 would show that her intention was to permanently dedicate this property to Allah and she only appointed a settler for the same. Hence a Waqf was already created by her when she executed this GPA. Needless to say that the Waqf may be created orally also and there is no special or particular mode for creation of a Waqf.
67. A perusal of the above extract of GPA would show that she had not given any rights for use of funds from Jama Masjid to her legal heirs. She had no intention of creating Waqf alal-aulad, for she had not mentioned that she is dedicating this land for the benefit of her legal heirs. She has only given right to manage the Mosque to a settler. Beside that, there is no whisper in the entire GPA, of any rights given to family members or descendants. She has Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 36 authorized the settler to make a committee, appoint an Imam and to accept the funds, for the purpose of management of Jama Masjid only. Hence going by this alleged GPA, the intention of Abida Khatoon was to create a public Waqf only. Hence this being a Waqf property as per the GPA dated 23.03.1999, the issue so raised in the present suit has to be raised before appropriate authority/ Waqf Tribunal under the Waqf Act.
68. Further JMSB was constructed with the funds of the public. The plaintiffs have filed on record certain minutes of the meeting of the Committee which was claimed to be managing the affairs of JMSB from the very beginning. A perusal of these minutes would show that money was collected from the public for the purpose of construction of Jama Masjid. The relevant extract of the few Minutes of Meeting of committee of plaintiff is as follows :-
"Meeting of the Managing Committe, Shahin Masjid Jama Masjid, Shaheen Bagh held after Maghrib on 26.03.2000, Sunday in the Masjid. Various topics were put up for discussion in the meeting and after deliberations the following things were decided :
Construction of work of the masjid should be started immediately. The construction plan should be got made through a good architect.
A team of people should be made for getting special contributions from well off people penses to meet out daily expenses as well as construction related expenses.
It was unanimously decided that a trust should be registered for running the affairs of the masjid in a Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 37 more secure and systematic manner.
The trust deed should be drafted after due consultation with a lawyer. In the coming meeting a dummy copy of the same should be prepared, and after review it should be got duly registered."
"Masjid committee meeting, 1 st September, 2002. Masjid committee meeting started at 09.30 am today.
Discussions on the 1st point on the agenda regarding construction work was done. It was unanimously decided that the new construction work be started because it has become necessary. It was decided that a box be made and placed near the gate for fund collection and a banner for the same be also placed at the gate.
In the Juma namaz after salam two persons each should stand at both the gates with a 'chadar' so that collection of the cash contributions made by the people could be done. Jb Tausif sb should be consulted regarding the construction work of Masjid. Labour contract could be given. Abbas sb & Abdul Mannan sb may also be consulted.
Jb Sheikh Nizamuddin sb, Adil sb & Abul Mannan sb may be contacted for bringing Rao Khan sb to the masjid and show him. This work should be done before 10th September. Some person should be send abroad to collect fund."
"Meeting Masjid Committee Date and Time : 26.07.2009 post Maghrib Salah The session started with the recitation of the Holy Quraan by Mr. Jalaluddin Firstly, The issue of the construction of WuduKhana and its estimated cost of Rs. 1 lac was discussed. Mr. Rehan suggested that we should reach out to people to raise the fund for this purpose. Mr. Kamaluddin offered Rs. 1 lac as a loan, so that its construction be completed before the month of ramadhan."
69. It is admitted by plaintiff's witnesses in their cross-examination that JMSB was created by raising funds from the public. To show the public character of JMSB, it Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 38 is pertinent to quote here what witnesses have deposed regarding the same. The relevant extract is as follows:-
"Relevant portion of cross-examination of PW1-Sh. Md. Anwar, S/o Sh. Saeeduzzafar :
....... Sh. Islamullah Premi, the husband of Smt. Abida Khatton had got the Mosque constructed from his own funds. We have not placed on record to prove that Mr. Islamullah Premi had spent his own money for the construction of the said Masjid........
....... A Management Committee formed by Mr. Islamullah Premi used to manage the affairs of the said Mosque upto 1997 from its inception............
.......It is correct that the said Management Committee mostly comprised of the members from the said locality........
.......The plaintiff Trust was created after the demise of Sh. Islamullah Premi.....
...... It is correct that the construction of Jama Masjid Shaheen Bagh was done by collecting donation from the general public.......
...... It is correct that the Masjid above said is a public place and no restrictions can be imposed on anyone coming for offering prayers in the said Masjid........ ........ It is correct that Jama Masjid Shaheen Bagh is a Masjid which is used for offering prayers and religious rituals/sermons. It is correct that this Masjid is vested in God and this Masjid is not a personal property of any individual. It is correct that no body can impose any conditions or restrictions in offering Namaz in the Masjid or for pray to God to any individual. Prior to the year 2000, all the accounts of the Jama Masjid Shaheen Bagh were maintained by the Management Committee. It is correct that prior to the year 2011 the executive body was elected by way of an election in general body meeting. It is correct that in the general body meetings local residents also used to participate..........
.... It is wrong to suggest that we have filed wrong complaints against the defendants. It is wrong to suggest that these are false complaints and because of this police has not taken any cognizance of these complaints. I do not remember the exact date when the defendants tried to stay overnight in the Mosque. It is wrong to suggest that we want to grab the Jama Masjid Shaheen Bagh for our personal use and is meant for general public only. It is also wrong to suggest that neither the settler of the Trust nor any Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 39 Trustee has any right, title or interest over the said Masjid or in the managerial or administrative affairs of the same. It is wrong to suggest that the Trust in the name of Jama Masjid Shaheen Bagh was got registered for misusing the money collected by us in the name of the Welfare of the said Masjid. It is wrong to suggest that it is myself and my associates named in the Trust Deed used to make the quarrel and used to extend the threats to the defendants and other regular Namazis.......
Relevant portion of cross-examination of PW2-Sh. Zakir Hussain, S/o Late Majid Hussain :
.......... It is correct that Masjid is a public place and there should not be any restriction on anybody to come and offer prayers. I do not know the exact that when Sh. Shariq Ansarullah Khan started the construction of the Mosque in question.......
.......It is correct that when the Mosque in question was constructed the Trust was not in existence........ .......There are 3 (three) Imams leading the prayers in the Masjid namely Maulana Tabarakullah, Maulana Nadwi and Maulana Mansoor. Maulana Mansoor has been appointed in the said Masjid by the defendants. I have come to know through Maulana Mansoor himself in this regard. Maulana Mansoor in my knowledge is not very regular in prayers but sometimes I see him in Fajr, Maghrib and Isha. It is wrong to suggest that Maulana Mansoor who is appointed by the defendants and the local residents of the colony as the defendants and other local residents only manage the affairs of the Mosque. It is wrong to suggest that Trust does not manage or look after the affairs of the Masjid. It is wrong to suggest that neither the Trust nor its settler nor its Board of Trustees has any right to interfere in the Management of the Masjid done by the local residents of the colony.
Relevant portion of cross-examination of DW1-Sh. Mehruddin, S/o Sh. Wasi Ahmed :
....... I do not have any document to prove that the Mosque in dispute is a Waqf property. Shariq Ansarullah who was the settler of the Trust had shown us the Map in which space/area for Masjid, Madarsa and Dispensary were earmarked, but he sold the space earmarked for Dispensary and the space earmarked for Madarsa was converted into a school namely Shaheen Public School for himself. All this happened in the year 1999 when I had just shifted to that area. Mr. Salim Kahan had given us the site plan of the area and through him Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 40 I came to know that Masjid was constructed in the year 1987..........
.......... It is correct that the plaintiff Trust never displayed any Board or any other Account related statement in the Mosque at any place to show that they are the people managing the affairs of the Mosque in question. The Committee that according to us runs the affairs of the Mosque also did not do the same. Nobody knew who actually is running/managing the affairs of the Mosque in question..........
......... It is wrong to suggest that on various dates in the year 2013, as mentioned in the plaint, the defendants were disturbing the smooth functioning in the Masjid by snatching mikes, donation box, not allowing the Imam to lead the Namaz etc. on the contrary it was the plaintiff were doing this. We have filed complaints against them in the police but we have not placed on record any such complaint. It is also correct that because of these nuisance/issues interse the parties, proceedings u/s. 107/111/150 Cr.PC were initiated before the Court of SEM, Amar Colony. It is correct that many local residents were trying to remove/replace Mr. Tabarakullah from the Imamat. It is wrong to suggest that we were trying to replace Mr. Khalid Naqwi from the post of Nayab-Imam who was appointed by the plaintiff Trust. Vol. He himself left the job. It is wrong to suggest that I removed the wiring of the CCTV Cameras when the plaintiff Trust was getting the CCTV Cameras in the Masjid precinct after passing of the stay order by Hon'ble HC. The other local residents removed the same.......... .........We allowed people to stay in the Masjid for religious purpose only and intimated and supplied the list of such people to the local police. It is wrong to suggest that we did not allow the plaintiff Trust to put up a Notice Board in the Mosque precincts. Vol. The Local residents did not allow the plaintiff Trust to put up any Board as the dispute has arisen between the parties. ...... ........It is wrong to suggest that we want to set up shops in the Masjid precincts and for that want to remove the plaintiff from the management of the Mosque in question. Vol. The shops already existing and run by the plaintiff Trust, we want to remove that also. It is wrong to suggest that with the intention establishing the shops in the Mosque precincts we have been disturbing the smooth functioning of the affairs of the Mosque by the plaintiff Trust and have been disturbing them by various criminal acts and omissions.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 41 Relevant portion of cross-examination of DW6-Sh. Saleem Khan, S/o Sh. Abdul Latif Khan :
........Shariq Ansarullah who was earlier the Trustee of the plaintiff Trust is my brother in law (Sala). It is correct that Mr. Shariq Ansarullah had opened a School in place of a Madarsa, but I cannot say if the place earmarked for Charitable Dispensary was opened or not or used for any other purpose or not. On the earmarked site in the site plan given by him at the initial stage of rehabilitation of the area. The Masjid was constructed by us, the local residents of the Society where we were living. There was no name of the Managing Committee which was running the affairs of the Mosque in question. There were no President, Secretary or Treasurer of the said Managing Committee of the local residents, but I know the names of the people who were running it."
70. It is also the case of defendants that defendants and other public have been contributing money for the purpose of construction of JMSB and they have also filed on record certain payment receipts. In view of the minutes of meeting of Committee and admission of plaintiff's witnesses in their cross-examination, it is proved that JMSB is constructed with the help of funds of public. It is also admitted by plaintiff's witnesses that general public is allowed to offer prayers in the JMSB after azan and ikamat. It has come on record that general public is offering prayers in JMSB since 1991 if not earlier. There is no discretion of settler to admit or deny the public, the right to make prayers in JMSB. It is settled law that once, even one person from public offers prayer in a Masjid after azan and ikamat, it becomes a public Mosque and hence a public Waqf. JMSB is constructed with the funds of public and Muslims from any and all walks of life have Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 42 been offering prayers in JMSB for years now. Hence JMSB is a Waqf by user. The JMSB has become a public Waqf by way of its long, steady, continuous, uninterrupted user for offering prayers by the Muslim community.
71. It is the own case of plaintiffs that they are carrying out social, educational, religious and charitable activities through the Mosque amongst the Islamic community in India. Hence it is the own case of plaintiffs that this Mosque was dedicated to Allah by Mrs. Abida Khatoon to carry out social, educational, religious and charitable activities and they have created this Trust in furtherance of the said intention of Abida Khatoon. They themselves admit the dedication of this property to Allah by Abida Khatoon to carry out a purpose which is duly recognized in Muslim Law. Hence according to the own pleadings of plaintiff, JMSB is a Waqf only, which was dedicated to Allah by Abida Khatoon for a pious cause.
72. It is settled law that under Muslim Law, once a property is dedicated to Waqf or by way of Waqf alal- aulad, it is permanently dedicated to Allah and the property vests in Allah. The property does not revert back to the original owner. The settler/ Mutawalli only manages the property in furtherance of intention of Waqif/ dedicator. Hence the property does not belong to any Trust or Committee. Nor can they claim absolute right to manage it. Its a Waqf property, to be managed in accordance with the Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 43 provisions of the Waqf Act. The owner is Allah and it vests in Allah.
73. Coming to the formation of Trust and management of the Mosque by it, it is to be noted that before the Trust was formed, it has come on record that one Mr. Premi was managing it. It has come on record that there was a managing committee who was managing the same but now there is a Trust to manage it. The trust claims absolute right to manage on the basis of a GPA . The property being a Waqf, the issue of management of the JMSB is to be decided by appropriate authority under the Waqf Act, 1985.
Relief of Injunction - Outside jurisdiction of this Court
74. Having held so that the JMSB is a Waqf property, the obvious corollary is that all disputes pertaining to the Waqf or Waqf property are to be raised before the Tribunal. But it is the argument of Counsel for plaintiff that by way of present suit, plaintiff is only seeking an injunction thereby restraining the defendants from interfering in the management and running of the Mosque, restraining them from staying in the Mosque overnight , restraining the defendants from setting up shops inside the Mosque and restraining them from raising any unauthorized and illegal construction in the Mosque. It is argued that plaintiff is not claiming any rights in the 'Waqf.' However by seeking such an injunction, the plaintiff is indirectly seeking a right to let him manage the Mosque and to let him peacefully enjoy the assets which relate to the Waqf Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 44 including Mosque. The nature of relief claimed shows that this case is with regard to peaceful enjoyment of the Mosque which is a Waqf property and right to manage the affairs of the Mosque and assets related to the Waqf. Such a right being related to Waqf and Waqf property, is to be raised before the Tribunal set up under the Waqf Act and the jurisdiction of Civil Court is barred. It was observed by Hon'ble Supreme Court of India in Akkode Jumayath Palli Paripalana vs P.V. Ibrahim Haji & Ors cited as [(2014) 16 SCC 65 :
(2015) 3 SCC (Civ) 446 : 2013 SCC OnLine SC 655] that where a dispute is with regard to management and peaceful enjoyment of Mosque and Madarsa and assets which relate to the Waqf, the nature of relief clearly shows that Waqf Tribunal has got jurisdiction to decide such disputes. The relevant extract from the judgment is as follows:-
"The question that arises for consideration in this appeal is whether the Waqf Tribunal has got jurisdiction to entertain a suit for injunction restraining the defendants from interfering with the adminisration, management and peaceful enjoyment of the Mosque and madrassa run by it and all the assets attached to the Mosque.
Appellant, a society registered under the Societies Registration Act stated to be formed for the management and administration of Waqf property including a Mosque situated therein, filed a suit for an injunction before the Court of Munsiff, Manjeri, which was transferred to the Court of Waqf Tribunal, Kozhikode and numbered as O.S. No.53 of 2003. The suit was contested by the respondents on merits and ultimately it was decreed by the Waqf Tribunal on 28.09.2004 and the plaintiff was given a decree for a perpetual injunction restraining the defendants/respondents and their men from interfering in any manner in the administration, management and peaceful possession and enjoyment of the Mosque, namely, Akkode Juyamath Palli, the madrassa run by it and all the assets attached to the Mosque.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 45 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 madrassa and the assets which relate to Waqf. Nature of the relief clearly shows that the Waqf Tribunal has got jurisdiction to decide those disputes. We, therefore, find no error in the Waqf Tribunal entertaining O.S. 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."
75. It was observed by Hon'ble Supreme Court of India in Board Of Waqf, West Bengal vs. Anis Fatma Begum & Anr cited as (2011) 1 WBLR (SC)308 that once a property is found to be a Waqf property, all matters pertaining to Waqf or Waqf property have to be agitated before Waqf Tribunal. Under the Waqf Act, 1995, it has powers of Civil Court and has power to grant temporary injunctions even. The relevant extract is as follows:-
"14. Thus, the Waqf Tribunal can decide all disputes, questions or other matters relating to a Waqf or Waqf property. The words "any dispute, question or other matters relating to a Waqf or Waqf 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 Waqf or Waqf property can be decided by the Waqf Tribunal. The word `Waqf' has been defined in Section 3 (r) of the Waqf Act, 1995 and hence once the property is found to be a Waqf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Waqf Tribunal.
15. Under Section 83 (5) of the Waqf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Waqf or Waqf property.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 46
17. We may clarify that under the proviso to Section 83(9) of the Waqf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Waqf or Waqf property should first approach the Tribunal before approaching the High Court."
76. As far as the argument that this being only a suit for injunction and hence the declaration that JMSB is a Waqf property could not have been given, I do not agree with the argument made. There was a specific issue framed regarding this. A perusal of this issue would show that the injunction which plaintiffs were claiming, they were entitled to the same only if the property was found not to be a Waqf property and the dispute was not covered under 'Waqf Act'. Further JMSB is Waqf property by way of its long, continuous user as such and it remains so, even if there is no declaration so sought with respect to its nature. Once an issue was framed if it is a Waqf property, the nature and legal character of the Jama Masjid was necessarily involved and it is in issue in the present case. Only if it would have been found that the property was not a Waqf property or not covered under the provisions of the Act that the plaintiff would have been entitled to the injunction. But having held so that its a Waqf property, plaintiff is not entitled to the injunction sought for, as this issue is to be decided by Waqf Tribunal.
Mismanagement in JMSB Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 47
77. A perusal of the cross-examination of the witnesses reproduced above along with the documents placed on record would show that there is mismanagement in managing the affairs of the mosque. It is claimed by defendants that plaintiffs have unlawfully constructed the shops in mosque. Both the parties i.e. plaintiffs and defendants have been claiming the right to appoint imams and have appointed their own respective imams. There have been disputes between the parties after which complaints have been filed in the police station. There have been allegations against each other that they are unlawfully permitting certain members of Muslim community to stay in the mosque over night. During the oral arguments before this Court, there have been allegations of parties indulging in anti-social activities which have resulted in a riot like situation not only in JMSB but also in the vicinity. It has disturbed peace and Law and Order of this area. It is claimed that there have been incidents of snatching mikes during the prayers beside other allegations. It is claimed that land kept for Madarasa and dispensary has been unauthorizedly disposed off/ utilized. It is claimed that despite the orders being passed by this Court, there have been violations of the orders of this Court. All these incidents and cross allegations and cross complaints only show the disturbance which is created in JMSB and in managing its day to day affairs.
Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 48
78. As far as right to appoint an Imam is concerned, once the Mosque is held to be a public Mosque, the right to appoint a person to officiate as Imam is to be decided while framing scheme for its management by Waqf Board. Here we have two groups i.e. plaintiffs and defendants and both claim the right to appoint Imam and have also appointed their respective Imams. It has come in the evidence of defendant's witnesses that there are Imams appointed by both the sides. This shows mismanagement in the affairs of the Mosque. Needless to say both the groups claim various rights to manage JMSB but it being a public Waqf, it has to be managed with the intervention of relevant authority under the Waqf Act.
79. The purpose of creation of sacred places like Jama Masjid is to provide a serene and peaceful environment to the people where they can offer their prayers to the God. A prayer is a way of establishing a connection with the God. People flock to such places to offer prayers to get peace and happiness. Every religion has established its own sort of places where people can go to worship the God and offer their prayers. These places have a different and peaceful environment which is a result of the process of offering prayers over a long period of time. People get peace, bliss, happiness in visiting such places. These are sacred places where either idols are consecrated or Holy books are worshiped. There are priests/ imams to lead the prayers. However such an environment, which this Mosque was supposed to provide, has been disturbed by the acts of the Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 49 both the parties herein, in claiming rights over the Mosque to manage it, to supervise it and to control it. The purpose for which this sacred Mosque was created appears to have been left behind.
80. In such circumstances and in order to ensure that such incidents are not repeated in future, it is appropriate that the affairs of the mosque are managed by the intervention of appropriate authority under the Waqf Act, 1995.
Interim Orders to Continue
81. The claim of right to manage the Mosque by the plaintiffs and the counter right claimed by defendants has resulted in unrest not only in the Masjid but also in the vicinity. The various complaints placed on record by the parties would show the unrest which was created in this area in the year 2012 and 2013. The Hon'ble Delhi High Court vide order dated 11.10.2013 had imposed certain interim conditions for better management of the Mosque and people who intend to stay therein. Also during final arguments, there have been allegations of parties indulging in anti-national and anti-social activities which need not be elaborated here as it has already been observed that this is a public Mosque and no party can claim the right to manage its affairs exclusively and absolutely.
82. A perusal of the provisions of the Waqf Act, 1995 would show that the jurisdiction of the Civil Court is not completely barred. Those disputes which are not covered Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 50 under the provisions of the Waqf Act are to be decided by the Civil Courts. The order of Hon'ble Delhi High Court dated 11.10.2013 regarding imposition of conditions for over night stay in the Mosque is one such order which is within the purview of the Civil Court. The interim order dated 11.10.2013 was passed by Hon'ble Delhi High Court in this case thereby directing that in case someone from outside needs to stay overnight in the Mosque, he may be permitted to do so subject to proof of his identity submitted to the SHO of the area concerned. It was directed that :-
"3. None of the parties except Muazzin of the Mosque would be staying there inside the Mosque during the nights. None of the residents of the locality as also any resident of Delhi would be allowed to stay overnight in the Mosque. However, if someone from outside needs to stay overnight in the Mosque keeping in view his religious sentiments, he/she can be permitted to stay overnight in the Mosque, but, subject to his proof of Identity Card to be submitted with SHO of the area. In the event of such a person during his stay, doing any unlawful activity or behaving disorderly or indecently, SHO of the area, on the request of the plaintiff, would be empowered to remove him from the Mosque forthwith. For any reason, any such person will not be allowed to stay more than three nights."
As the present Court does not have jurisdiction and the dispute between parties regarding the claim of management of the affairs of JMSB are still subsisting, the said interim order passed by Hon'ble Delhi High Court to the extent reproduced above shall continue unless it is vacated or varied by the Civil Court, on an appropriate application being made by the appropriate authority, after considering the law and order situation Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 51 in Jama Masjid, Shaheen Bagh at that time.
83. The issue wise finding is as follows:-
1. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from interfering in the management and administration of day to day affairs of the trust and the Jama Masjid Shaheen Bagh ? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from staying inside the Jama Masjid Shaheen Bagh at night? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from setting up shops inside the premises of the Jama Masjid Shaheen Bagh? OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from raising any unauthorized and illegal construction on the vacant piece of land of the plaintiff's trust adjacent to the Jama Masjid Shaheen Bagh? OPP
5. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from appointing any Imam in the Jama Masjid Shaheen Bagh? OPP Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 52 In view of above discussion, the plaintiff is not entitled to the injunction from this Court as the JMSB is a Waqf property and this issue is to be decided by appropriate authority/ Waqf Tribunal under the Waqf Act, 1995.
6. Whether the suit for permanent injunction is not maintainable as the suit property is WAQF and this court has no jurisdiction over the subject matter of the dispute? OPD The present suit for permanent injunction is not maintainable before this Court as JMSB is a Waqf property and this Court has no jurisdiction over subject matter of the dispute.
7. Whether the suit is barred in terms of Section 85 of the WAQF Act? OPD As discussed above, present suit is barred by Section 85 of Waqf Act.
8. Whether the suit for injunction is not properly valued for the purposes of court fee and jurisdiction and adequate court fee is not affixed? OPD The onus to prove this issue was on defendant but defendant has failed to prove the same. This issue is decided in favour of plaintiff.
9. Whether the suit is instituted without any cause of action? OPD As discussed above, there is a specific authority/ Waqf Tribunal created under Waqf Act, 1995 to deal with this issue. Hence jurisdiction of this Court is barred under Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16 53 section 85 of The Waqf Act,1995.
10. Relief.
a) In view of above discussion, it is hereby held that Jama Masjid, Shaheen Bagh is a Waqf property covered by the provisions of the Waqf Act, 1995 and there is a specific authority/ Tribunal created under Waqf Act, 1995 to deal with this issue. The jurisdiction of this Court is barred in view of section 85 of The Waqf Act,1995. Hence the present suit before this Court is dismissed being not maintainable and outside the subject matter jurisdiction of this Court.
b) The interim orders passed by Hon'ble Delhi High Court dated 11.10.2013 as discussed above, shall continue unless varied on an application being made by appropriate authority.
84. Nothing mentioned in this judgment shall tantamount to giving any opinion on title or ownership of the land on which JMSB is situated, as the same was not in issue before this Court.
Announced in Open Court on 26.04.2023 (TWINKLE WADHWA) ADJ-04/South-East, Saket Courts, New Delhi/26.04.2023 Jama Masjid Shaheen Bagh Trust Vs. Mehruddin & Ors.
CS DJ 578/2016 10009/16