Andhra HC (Pre-Telangana)
Mahboob Khan vs Mohd. Khaja And 4 Ors. on 23 December, 2004
Equivalent citations: 2005(1)ALD839, 2005(2)ALT308, 2005 A I H C 1233, 2013 (11) SCC 623, (2005) 2 CURCC 449, (2005) 1 ANDHLD 839, (2005) 2 ANDH LT 308, (1987) 4 JT 312 (SC), (1988) 14 ALL LR 16, 2005 AIHC 1233
ORDER G. Yethirajulu, J.
1. This revision petition is filed under Section 115 of the Code of Civil Procedure against the order of the III Additional District Judge (FTC), Nirmal dated 18-11-2002 in A.S.No.50 of 2002 confirming the order of the Junior Civil Judge, Bhainsa dated 31-1-2001 passed in O.S.No.82 of 1997 ordering return of the plaint on the ground that the Civil Court has no jurisdiction to entertain the suit relating to a dispute of wakf property and that the Wakf Tribunal has the jurisdiction to entertain the same.
2. The petitioner is the plaintiff in O.S.No.82 of 1997. He filed the suit for perpetual injunction restraining the respondents from interfering with his possession and enjoyment of a graveyard situated in S.No.330/2 admeasuring 28 guntas. According to the plaintiff, the suit land was originally a part of bigger extent belonging to his paternal grandfather Sri Abdullah Khan. The said Abdullah Khan donated one acre land towards a Mosque. Some extent was acquired for location of bus station and the remaining land is the suit land reserved for the family burial ground. His ancestors were buried in the suit land and it has been notified as a wakf through a Government notification dated 4-1-1990 at Serial No.7602. The defendants who have no right are trying to encroach upon the land. The trial court dismissed the suit holding that the petitioner is not entitled for the relief of perpetual injunction not only on the ground of jurisdiction, but also on factual position. The appellate court taking into consideration the points whether the suit property is a wakf property, whether the suit dispute is a dispute covered by Section 85 read with Section 6 of the Wakf Act, 1995 (for short 'the Act') and the legal position placed before it, observed that under Section 83 of the Act the Wakf Tribunal is a Civil Court and the procedure laid down in the Code of Civil Procedure for trial of the suit or for execution of a decree is also extended to the Tribunal under sub-sections 5 and 8 of Section 83, and that the Tribunal can entertain the suit under Section 6 of the Act to deal with the question; therefore, the plaint has to be returned to the plaintiff for presentation before the Tribunal instead of dismissing the suit. The appellate court therefore modified the order of the Junior Civil Judge and it reads as follows: A notice is ordered to the plaintiff's counsel that the plaint is intended to be returned on 20-11-2002, at 10-30 a.m., on the ground of lack of jurisdiction in Civil Court and the plaintiff is at liberty to make an application as required under Order 7 Rule 10 (a)(2) of the Code of Civil Procedure.
3. The learned counsel for the petitioner contended that the order of the appellate court directing return of the plaint is erroneous and contrary to the provisions of the Act. There is no dispute that the suit schedule property is a wakf property and the suit was filed for perpetual injunction. A suit before a Civil Court is not barred under Sections 6 and 85 of the Act.
4. In the light of the contentions raised by each party, the point for consideration is: Whether the Civil Court has no jurisdiction to entertain the suit for perpetual injunction against a wakf property and whether the suit has to be filed before the Tribunal constituted under the Wakf Act, 1995?
Point:
5. Before answering the point, I would like to refer to the relevant provisions of the Wakf Act, 1995. Section 6 of the Act deals with the disputes regarding wakfs and Section 7 with regard to the power of the Tribunal to determine disputes regarding Wakfs. Section 83 deals with the Constitution of Tribunals, etc., Section 85 deals with bar of jurisdiction of Civil Courts. Sections 6, 7, 83 and 85 of the Wakf Act, 1995 read as under:
Sec. 6. Disputes regarding Wakfs:
1) If any question arises whether a particular property specified as Wakf property in the list of Wakfs is Wakf property or not or whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf, theBoard or the mutawalli of the Wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs. Explanation: For the purposes of this Section and Section 7, the expression "any person interested therein" shall, in relation to any property specified as Wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.
2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.
3) The Survey Commissioner shall not be made a party to any suit under sub- section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.
5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section (1).
Sec.7. Power of Tribunal to determine disputes regarding Wakfs:
1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of Wakfs is Wakf property or not, or whether a wakf specified in such list is a Shia Wakf or a SunniWakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:
Provided that -
a) in the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and
b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement. Provided further that where any such question has been heard and finally decided by a Civil Court in a suit instituted before such commencement, the Tribunal shall not reopen such question.
2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this Section in respect of any wakf shall be stayed by any Court, Tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.
3) The Chief Executive Officer shall not be made a party to any application under sub-section (1).
4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.
5) The Tribunal shall not have jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of this Act or which is the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.
Sec.83. Constitution of Tribunals etc.
1) The State Government shall, by notification in the Official Gazettee, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
2) 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.
3) Where any application made under sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the Wakf or any other person interested in the Wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Wakf or Wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is transferred shall deal with the application from the stage, which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.
4) Every Tribunal shall consist of one person, who shall be member of the Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class 1, and the appointment of every such person may be made either by name or by designation.
5) The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
6) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Tribunal shall follow such procedure as may be prescribed.
7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court.
8) The execution of any decision of the Tribunal shall be made by the Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908.
9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other orders as it may think fit.
Sec. 85. Bar of jurisdiction of Civil Courts:
No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
6. Section 83 provides that the State Government shall by notification constitute as many Tribunals as it may think fit for the determination of any dispute, question or other matter relating to a wakf property under this Act. Section 83 therefore grants jurisdiction to the Tribunals to entertain any dispute with regard to a wakf property. Section 85 of the Act makes the position further clear as it is barring the jurisdiction of Civil Courts in respect of any dispute, question or other matter relating to the wakf property. Section 83 confers the jurisdiction to the Tribunals to entertain other types of suits with regard to property which is declared as wakf property. A combined reading of Sections 83 and 85 clearly indicates that there is no bar for the Tribunals to entertain the other suits relating to the wakfs.
7. Section 7 provides that a dispute as to the nature of property viz., whether the property is a wakf property or not can be decided only by a Tribunal constituted under the Act.
8. There are divergent views expressed by various High Courts and the Supreme Court regarding the maintainability of a suit in a Civil Court in respect of a wakf property. The first set of judgments are as under:
9. In Chowk Mosque, Nandyal v. P.V.H.Maqbul Basha, a learned single Judge (Ms.Justice S.V. Maruthi) of this Court held that if there is no dispute as to the nature of the property i.e., whether it is wakf or whether it is Shia or Sunni wakf, then the Tribunal has no jurisdiction to deal with it. A suit for permanent injunction restraining the defendants from interfering with construction of shops in mosque premises does not fall within the ambit of Sections 6, 7 and 83 of the Wakf Act, 1995; therefore, the question of instituting a suit in the Tribunal does not arise.
10. In the case covered by the above decision, the learned Judge while rendering the above judgment referred to Sections 6, 7 and 83 of the Wakf Act, 1995, did not refer to Section 85 of the Act.
11. In Abdul Rahiman Musaliar v. T.M.Muhammed Sahib, a single Bench of the Kerala High Court held that in view of Section 85 of the Act, no suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act is to be determined by a Tribunal. Where the suit was for a permanent prohibitory injunction restraining the defendants from interfering with the affairs of the mosque, the right of office of Muttawalli as claimed by plaintiff being a common law right and in the absence of any provision specifically requiring such disputes to be adjudicated by the Tribunal and it being a suit for injunction, a relief could be granted only by the Civil Court, therefore, the suit instituted was within the jurisdiction of the Civil Court to be tried and decided.
12. In A.M. Ali Akber v. Keelakarai South Street Zamath Masjid Paripalana Committee, AIR 2001 Mad. 431 the Madras High Court considered the scope of the tribunal's jurisdiction to entertain petition seeking temporary and permanent injunctions restraining the opposite party from holding elections. While examining the said question, the Madras High Court referred to various provisions of the Wakf Act, 1995 and observed as follows:
Where petition was filed by members of zamath seeking for permanent injunction restraining the opposite party from interfering in their management of the zamath, and for temporary injunction restraining them from holding the elections, the tribunal constituted under Section 83 (1) would have no jurisdiction to entertain the petition to grant temporary injunction.
13. The second set of judgments expressing a different view are as follows:
14. In P. Rama Rao v. High Court of A.P., (DB) a Division Bench of this Court held as follows:
On the plain language of Section 85, the bar against the entertainment of suit seems to arise on and from the date of the commencement of the Act. The moment the Act came into force, the bar operates, prima facie. The fundamental postulate of Section 85 read with the other relevant provisios is that the Wakf Tribunal shall be a substitute for the Civil Courts in respect of matters required to be dealt with by the Tribunal under the Act. The Scheme of the Act contemplates and unfolds the intention of the Legislature in clearest terms that the obliteration of the jurisdiction of the Civil Court and the creation of the Tribunal to take over the exclusive jurisdiction confided to it is a simultaneous process. No vacuum or hiatus could have been intended by the Legislature. The delay in the constitution of the Tribunal would not have been foreseen by t he Legislature. Surely, it could not have been the intention of the Legislature that the existing remedy or recourse to Civil Court should be extinguished as a first step and that remedy should be made available only when the Wakf Tribunal is set up.
15. From the above judgment it is made clear that the bar of jurisdiction of the Civil Courts contemplated under Section 85 of the Wakf Act, 1995 would be effective only from the date of the constitution of the Wakf Tribunal. Until such time, the jurisdiction of the Civil Court should continue as a rightful forum for the adjudication of the wakf disputes.
16. The Division Bench while dealing with the situation of gap between the date of legislation and the date of constitution of the Tribunal, observed that the Wakf Tribunal is a substitute for the Civil Court.
17. In U.P. Shia Central Board of Wakf v. U.P.Sunni Central Board of Wakf, 2001 AIR SCW 1833 the Supreme Court dealt with a dispute whether the property is wakf property or not, whether wakf is Shia Wakf or Sunni Wakf and whether it can be referred for adjudication to Tribunal within one year from the date of publication of list of Wakfs. The Supreme Court while answering the said question held that under the proviso to sub-section (1) of Section 6, a restriction is imposed that no such dispute shall be entertained by a Tribunal after the expiry of one year from the date of publication of the list of wakfs under sub-section (4) of Section 6.
18. In T. Shivalingam v. A.P.Wakf Tribunal, the High Court of Andhra Pradesh examined the scope of the powers of the Wakf Tribunal to decide a dispute relating to wakfs. In the above case, it was contended by the petitioner that the Wakf Tribunal can decide the dispute relating to wakf only within the scope of Section 7 of the Act and not otherwise. A learned single Judge (Justice Bilal Nazki) of this court, while answering the said contention observed as follows:
This is a highly misconceived writ petition. A suit has been filed by the respondents before A.P.State Wakf Tribunal seeking eviction of the petitioner from the property belonging to wakf ... A Writ of Prohibition has been filed on the ground that the Tribunal has no jurisdiction to entertain suits of the present nature i.e., suit for eviction. Reliance has been placed on Section 7 of the Wakf Act, 1995. ... The petitioner has conveniently forgotten to see the import of Chapter VIII of the Wakf Act, 1995. Section 83 lays down that the State Government shall by notification constitute Tribunals for the determination of any dispute, question or other matter relating to wakf property under the Act. So it is Section 83 which grants jurisdiction to the Tribunals to entertain any dispute with regard to wakf property. So, all disputes with regard to wakf property, are triable by the Tribunal. ... Section 7 of the At is not a bar for entertaining of such suits but it only lays down that disputes regarding nature of property as to whether it is wakf property or not can be decided only by the Tribunal. ... This writ petition is misconceived and deserves dismissal and is accordingly dismissed.
Section 83 grants jurisdiction to the Tribunals to entertain any disputes with regard to Wakf property. So, all disputes with regard to wakf property are triable by the Tribunal. It becomes more clear after reading Section 85 of the Act that this is the only interpretation which can be placed on Section 83, because Section 85 bars the jurisdiction of Civil Courts in respect of any dispute, question or other matter relating to any wakf property. The Tribunal has jurisdiction to entertain and decide the suit which is pending before it. Section 7 of the Act is not a bar for entertaining of such suits but it only lays down that disputes regarding nature of property as to whether it is wakf property or not can be decided only by the Tribunal. Jurisdiction to entertain other types of suits with regard to property which is declared as wakf property is conferred on the Tribunal by Section 83 of the Act.
19. In M. Bikshapathi v. Government of Andhra Pradesh, (DB) a Division Bench of this Court held that the jurisdiction of the Wakf Tribunal is not limited to the matters prescribed in Section 6. It is competent to determine the question relating to the management of the wakf property, including its lease.
20. In Syed Muneer v. Chief Executive Officer, A.P.State Wakf Board, (D.B.) the Wakf Board has taken possession of the wakf property. A writ petition was filed under Article 226 of the Constitution challenging the action of the Board on the ground that wakf property in question is not a registered one and therefore the provisions of the Act are not attracted. A learned single Judge of this Court held that, as provided under Section 83 of the Act, the dispute in question can be raised before the Tribunal. The Division Bench, in appeal, held that dismissal of the writ petition on the ground that the appellant-petitioner had an alternative remedy under Section 83 of the Wakf Act is sustainable.
21. In Intazamia Committee Idgah Morar v. M.P. Wakf Board, the Madhya Pradesh High Court held that when appeal is provided against any decision to Tribunal and decision of the tribunal is made final, then the jurisdiction of the Civil Court stands ousted.
22. In Allauddin Charities and Jakath Wakf v. Hamid Ali and Ors., a Division Bench of this Court observed as follows:
Under sub-section (5) of Section 83, the Tribunal constituted under sub-section (1) of Section 83 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 while trying a suit or executing a decree or order. The jurisdiction of the civil court is specifically barred under Section 85 of the Wakf Act, 1995. Therefore, when tribunal has been conferred with the power to determine any dispute, question or other matter relating to a wakf or wakf property under the jurisdiction under Article 226 of the Constitution, cannot permit a party to bypass such statutory authority or tribunal by dealing with the disputed questions of fact or title. It is only after the issue or dispute is determined by the Tribunal at the first instance, the High Court, in exercise of the power under proviso to sub-section (9) of Section 83 of the Wakf Act gets jurisdiction and can go into the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. Therefore, unless the party aggrieved of the orders of the C.E.O. has availed of the alternative remedy available to him under the statute and the wakf tribunal has determined the issue or dispute or the nature of the property as provided under the provisions of the Act, this Court cannot go into the question of validity of the orders passed by the Chief Executive Officer (CEO).
23. In the light of the principle laid down in the second set of judgments by this Court and the Madhya Pradesh High Court, the decisions rendered by this Court in Chowk Mosque (1 supra) and Abdul Rahiman (2 supra) does not appear to be well-founded, and the principle laid down in the second set of judgments holds the field.
24. While interpreting the provisions of the Act, the object behind establishing a forum under a special enactment has to be taken into consideration. The Wakf Act, 1995 was brought into existence with a view to have effective adjudication of the matters relating to the wakf. The Wakf Tribunal was established to adjudicate the matters relating to the wakf viz., disputes regarding the nature of the property, the sect to which it belongs to and all other reliefs relating to the properties notified as Wakfs. The Act vested the Tribunal with the powers of a Civil Court for all practical purposes. Since the Wakf Tribunal is vested with all the powers of a Civil Court, I do not find any force in the contention of the petitioner that it has no jurisdiction to entertain the suit for perpetual injunction and it is maintainable only before the Civil Court. When there is a special forum created for adjudication of the disputes relating to the wakf properties, entertaining those disputes by the Civil Court, despite ouster of jurisdiction under Section 85 of the Act, leads to multiplicity of litigation leading to failure of the object of establishing the Special Tribunals. Simply because there is a specific mention in Sections 6 and 7 regarding the aspect whether a particular property is a wakf property or whether a person is entitled to be a mutawalli of the wakf, whether a wakf is a Shia Wakf or a Sunni Wakf, it cannot take away the effect of Sections 83 and 85 of the Act. Though it is not expressly provided under the Act that the Tribunal can also entertain the suits for injunctions and other reliefs, the specific wording "the determination of any dispute, question or other matter relating to wakf or wakf property" used in Section 83 coupled with the ouster of the jurisdiction of the Civil Court under Section 85 of the Act mandates that the Tribunal is the only competent authority to entertain all types of suits, which can be entertained by a Civil Court, relating to the disputes of wakf or wakf properties and the Civil Courts are barred from entertaining any suits relating to the wakf or wakf properties from the date of the constitution of the Tribunal. If there is more workload in the Tribunal, the Government has every liberty to establish such number of Tribunals in such areas as the situation warrants.
25. In the light of the foregoing discussion, I hold that the Wakf Tribunal is the only forum for the determination of any disputes, question or other matter relating to a wakf or wakf property, including the suits for perpetual injunction and the Civil Court has no jurisdiction to entertain any suits for the determination of any dispute relating to wakf or wakf properties. The revision petition is accordingly dismissed by confirming the order of the appellate court. The petitioner-plaintiff is at liberty to take return of the plaint and present it before the Wakf Tribunal for the same relief, which he claimed in the Civil Court. No order as to costs.