Delhi District Court
Sh. Mohd. Saleem vs Sh. Abdul Moez on 15 October, 2009
Date : 15.10.09 -: 1:- Suit No. 136/07
IN THE COURT OF SH. JITENDRA SINGH,
CIVIL JUDGE-02 (CENTRAL ): DELHI
SUIT NO. 136/07
Date of Institution on : 02.02.2008
Date of Order : 15.10.09
IN THE MATTER OF :-
Sh. Mohd. Saleem,
S/o Sh. Balbir Ahmad,
R/o 259/5-B, Arbindo Marg,
New Delhi. ........Plaintiff
Versus
1. Sh. Abdul Moez,
S/o Late Abdul Malik
R/o House No. 2758,
Gali Kiran Wali, Pahari Bhojia,
Delhi.
2. Mohd. Imran ,
S/o Sh. Mohd Umair,
R/o 278, Kucha Meer Ashiq,
Chawri Bazar, Delhi.
Date : 15.10.09 -: 2:- Suit No. 136/07
3. The Chairman,
Delhi Wakf Board ,
Darya Ganj,New Delhi.
..........Defendants
ORDER
1. By this order I shall decide the preliminary issue no. 4 & 5 framed by my Ld. Predecessor vide order dated 08.04.08 i.e. Preliminary issue no.4 "
Whether the suit is barred U/s 85 of the Delhi Wakf Act 1995" and preliminary issue no.5 " Whether the suit is maintainable in view of section 91 of Code of Civil Procedure.
2. The brief facts of the case, as relevant for the purpose of the disposal of the present controversy are as under.
3. By way of the present suit Plaintiff has prayed for mandatory and permanent injunction against the defendants whereby restraining the Defendants and Date : 15.10.09 -: 3:- Suit No. 136/07 their associates to display and remove the hoardings upon and around the Mosque known as Masjid Haji Ali Jaan , 5, Lado Sarao, Mehrauli, New Delhi (Hereinafter referred as suit property).
4. Briefly stated, it is the case of plaintiff that the Plaintiff has been participating to protect the Mosque, Dargahs and other monuments and Waqf properties as well as he was one of the members of the Muntzma Committee, Masjid Hazi Ali Jaan , 5, Lado Sarai, Mehrauli, Delhi. It is stated that all the Defendants intended to let out the portion of the Mosque i.e. Suit property known as Masjid Hazi Ali Jaan,5, Lado Sarai, Mehrauli, Delhi, for displaying hoarding having objectionable photographs or commercial purpose which are strictly prohibited in Islam. When the Plaintiff strongly objected on the said act he was removed from the office of Muntzma committee in an illegal and improper manner. It is further stated that despite service of legal notice dated 27.09.06, the Defendants did not remove the hoardings on the mosque and threatened to permit the Date : 15.10.09 -: 4:- Suit No. 136/07 display of hoardings around and upon the mosque to mint money. Hence the present suit is filed by the Plaintiff .
5. Detailed WS has been by defendants no. 1 and 2 wherein preliminary objections are taken by the Defendants. It is alleged that the Plaintiff has the no locus standi to file the present suit as the suit property belongs to Delhi Wakf Board. It is also stated that only Wakf Tribunal has right to try and decide the dispute in question. It is further stated that suit property is a wakf property in which the Plaintiff has no legal interest. It is further stated that as per Section 91 of C.P.C., no single person can file the suit in respect of a property in which he has no right, title or interest. Thus, the present suit is liable to be dismissed.
6. WS is also filed on behalf of Defendant no.3 whereby it is stated that as per Section 85 of the Wakf Act, 1995 no suit or other legal proceedings shall lie in any Civil Court in respect of any dispute relating to any Wakf Property which is required by or under this act to be determined by a Tribunal. It is also stated Date : 15.10.09 -: 5:- Suit No. 136/07 that there is nothing objectionable in the hoardings displayed outside the Mosque. All the allegations are denied by the Defendant no.3.
7. I have heard the submissions of Ld. Counsel for Defendants. Record perused. The main contention to be adjudicated is ' Whether the suit is maintainable in view of Section 85 of the Wakf Act, when the suit property is admittedly a Wakf Property.'
8. Before dwelling into these issues it would be proper and necessary to understand the purpose and object of Wakf Act and establishment of Tribunal. The same has been explained in various Judgments where it has been observed:-
(a) ".... The very purpose and intend for setting up of tribunal is to provide an expert machinery for the resolution of disputes relating to institution of Wakf or the provisions of dedicating property movable or immovable or religious purposes and for the uplift of the poorer section of the society have been a distinguishing feature of the socio Date : 15.10.09 -: 6:- Suit No. 136/07 economic structure of Islamic Law.." ( A.I.R. 2003 Kerala 366).
(b) " The object of the legislature is to provide better administration and supervision of Wakf's throughout the Country.." ( A.I.R 2003 Kerala 366)
(c) "It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statue which has constituted a special tribunal for deciding disputes relating to Wakfs.
The obvious purpose of constituting such a Tribunal was that a lot of petition relating to Wakfs were being filed in the Court in India and they are Occupying a lot of time of all the courts in the country, which remitted in increase in pendency of cases in Date : 15.10.09 -: 7:- Suit No. 136/07 the courts. Hence, a special tribunal has been constituted for deciding such matters .( A.I.R. 2005 Madras
241).
(d) Further Section 84 lays down that : " whenever an application is made to a Tribunal for the determination of any dispute , question and other matters relating to a Wakf or Wakf property, it shall hold its proceedings a expeditiously as possible...".
10. After examining the purposes laid down in various judgments referred above, it can be concluded that establishment of tribunal is to provide better administration and expeditious adjudication of the Wakf throughout the country.
11. In the present matter, for deciding the maintainability of the suit it would be relevant to go Date : 15.10.09 -: 8:- Suit No. 136/07 through the provision of Section 54 of the Wakf Act 1995:
"... 54. Removal of encroachment from Wakf property:-
(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice,as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli.
(2)The notice referred to in sub-section(1) shall be served in such manner as may be prescribed. (3) If, after considering the objections, received Date : 15.10.09 -: 9:- Suit No. 136/07 during the period specified in the notice , and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is Wakf property and that there has been an encroachment on any such wakf property, he may , by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf.
(4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property:
Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, Date : 15.10.09 -: 10:- Suit No. 136/07 licensee or mortgage by the mutawalli of the wakf or by any other person authorised by him in this behalf .'' A bare perusal of the Section shows that if after considering the objections from the concerned person, if the chief executive officer is satisfied that the property in question is a WAKF property and that there has been an encroacher on such property, he may, by an order require the encroacher to remove such encroachment and till the possession of the land. If a person is aggrieved by the order of the Chief Executor then he has a remedy for instituting a suit in a tribunal to establish his right or interest in the land. Therefore, if there is an encroachment in the Wakf Property a complaint can be filed to the Chief Executive Officer .
12. It would also be relevant to go through the Section 85 of the WAKF Act 1995 for deciding the maintainability of the suit :
'' 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 Date : 15.10.09 -: 11:- Suit No. 136/07 to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal".
A bare perusal of the provision would show that the jurisdiction of the Civil Court is barred when a matter relating to any WAKF property or other matter which is required by under this Act to be determined by a tribunal.
13. Law point on this issue has been further clarified by the Judgment of the Division Bench of Kerala High Court in case titled as Aliyathammada Beethathabiyyapura pookoya Haji, appellant Vs. Pattakkal Cheriyakoya and other, AIR 2003,366 Respondents.
(A) Wakf Act (43 of 1995) , ss 83,85 - Powers of Wakf Tribunal - Tribunal has jurisdiction not only on matter specifically conferred on Tribunal by provision of Act but also on mater relating to Wakf or Wakf property .
AIR 2003 Kerala 84, overruled.
Date : 15.10.09 -: 12:- Suit No. 136/07 "..The words any dispute, question or other matters relating to Wakf or Wakf property under Section 85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other mater relating to Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself . On examining the scheme of the Act and various provisions it would be clear that the intention of the legislature is to resolve all disputes by one machinery and forum provided in the Act itself, that is, the Wakf Tribunal and not by the Civil Courts in the States..". Date : 15.10.09 -: 13:- Suit No. 136/07 Para No.6. Section 85 stipulates that no suit or other legal proceedings shall lie to any Civil Court in respect of any dispute, question or other matter relating to any Wakf property. This is the first limb of Section 85 . The second limb 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 a tribunal. In the first limb of Section 85 we see the words "
or other matters relating to " and in the 2nd limb of Section 85 also we find the words" or other matter which is required". In other words, in the first limb the emphasis is on the words "
relating to " and in the second limb the emphasis is on the words "
Date : 15.10.09 -: 14:- Suit No. 136/07 relating to" and in the second limb the emphasis is on the words "
required by". The Wakf Act has been conferred powers on the Tribunal to resolve various disputes by way of appeals and applications. Section 6.7.32(3). 54(4) etc., confers powers to entertain suits. Section 6 and Section 7 deals with disputes as to whether a particular property is a wakf, whether it is a Shia Wakf or Sunni Wakf.
Section 32(2) (d) enables the Wakf Board to settle schemes of management of a Wakf and if any 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 removal of encroachment from the Wakf property. Any person aggrieved Date : 15.10.09 -: 15:- Suit No. 136/07 by the order passed by the Chief Executive officer could institute a suit before the Tribunal.
Para no. 12. We are , therefore, of the considered view that the words any dispute, question or other matters relating to Wakf or Wakf property under Section 85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other mater relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself. On examining the scheme of the Act and various provisions we are of the view that the intention of the legislature is to Date : 15.10.09 -: 16:- Suit No. 136/07 resolve all disputes by one machinery and forum provided in the Act itself, that is, the Wakf Tribunal and not by the civil courts in the States.''
15. Further, section 83 is also relevant to decide the present application. The relevant extract of this section is being reproduced below for easy reference:
Section 83 :-
(i) -----------------------------------------------------------------------
(ii) Any mutawalli person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.
(iii) ------------------------------------------------------------------------
------
(iv) ------------------------------------------------------------------------
Date : 15.10.09 -: 17:- Suit No. 136/07
------
(v) The Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure, 1908 ( 5 if 1908) , while trying a suit, or executing a decree or order.
Further another question arises ' Whether the tribunal has the power to grant temporary injunction and enforce such injunction. In a decision rendered by a Bench of High Court of Madras, consisting of the Hon'ble Mr. Justice Markanday Katju, Chief Justice (as his Lordship then was ) and D. Murugesan, J, in Salam Khan V/s Tamil Nadu Wakf Board AIR 2005 Madras 241 , the Ld. Chief Justice , speaking for the bench , observed :
(Para No.8) : Under Section 83 (5) of the Wakf Act , 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it Date : 15.10.09 -: 18:- Suit No. 136/07 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 wakf or Wakf property .
18. A bare reading of Section 83 (5) would show that the tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by Civil Court, meaning thereby Tribunal has also power of granting injunctions.
19. Further, the present suit is the suit for injunction and it is well settled that where equal and efficacious remedy is available, the injunction cannot be granted which is laid down under Section 41 (h) of the Specific Relief Act , 1963, which runs as '' When Date : 15.10.09 -: 19:- Suit No. 136/07 equally and efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust".
16. A bare reading of Section 41 (h) reflects that the expression "equally and efficacious relief" which can certainly be obtained has been emphasised. In fact the word efficacious is adjective according to grammar and its noun is efficacy. The word 'efficacy' is derived from Latin word 'efficacie' which means capacity to produce results. The word 'efficacious' accordingly means able to produce the intended effect or result. In case the relief which can be obtained by other usual mode, is equally efficacious meaning thereby equally able to produce the result which was intended by the Plaintiff, then only injunction can be refused. Applying this principal in the present case and discussion above, it is without any doubt that the Tribunal has all the powers of the Civil Court .
Therefore , considering the Judgment of Salam Khan's case ( Supra) the Tribunal do provide equally and efficacious remedy .
Date : 15.10.09 -: 20:- Suit No. 136/07 Further, the decision in Salam Khan's case was affirmed by the Hon'ble Supreme Court in Special Leave Petition(C) No. 4156/2005 by dismissing the Special Leave Petition 'in limine' with the words "
we see no reason to interfere" ( mentioned in page no.333 of the Book " The Law of Wakfs : an analytical and critical study by S.A.Kader, Second Edition , Eastern law House)
17. Taking into consideration ratio declared by the Hon'ble Court in Salam Khan V/s Tamil Nadu Wakf Board AIR 2005 Madras 241 and Aliyathammada Beethathabiyyapura pookoya Haji, appellant Vs. Pattakkal Cheriyakoya and other, AIR 2003,366 Respondents, and further considering the object for which the Tribunal has been created and Section 85 of the Wakf Act,1995, that the Tribunal has the jurisdiction to decide the issues raised in the present suit. Therefore issue no.4 is decided in favour of the Defendant and against the Plaintiff . Date : 15.10.09 -: 21:- Suit No. 136/07
18. With respect to the preliminary issue no.5. "
Whether the suit is maintainable in view of section 91 of Code of Civil Procedure", Section 91 is being reproduced below for the easy reference:
Section 91- Public Nuisances - (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case may be instituted ,-
( a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.] (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
Date : 15.10.09 -: 22:- Suit No. 136/07 In the instant case the Plaintiff has failed to show his locus with respect to the cause of action. Further, as injunction has been sought therefore Section 41 , sub-clause (f) comes into play which provides that injunction cannot be granted on the ground of nuisance. The same is reproduced below for easy reference:
Section 41. Injunction when refused - An injunction cannot be granted-
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that Date : 15.10.09 -: 23:- Suit No. 136/07 it will be a nuisance;
The Plaintiff has not followed the conditions laid down u/S 91 of the CPC. Therefore, this issue is decided in favour of the Defendant and against the Plaintiff .
19. In view of the discussion made above, and findings of Preliminary Issues no. 4 and 5. I am of the view that this Court has no jurisdiction to try the present case and hence the plaint is rejected Under Order 7 Rule 11 CPC. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the open court (JITENDRA SINGH) on 15th day of October, 2009. CIVIL JUDGE-02, CENTRAL DELHI