Calcutta High Court (Appellete Side)
Sayed Hassan Ali vs Mahammed Sahidul Islam on 4 August, 2016
Author: Indira Banerjee
Bench: Indira Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice INDIRA BANERJEE
And
The Hon'ble Justice SAHIDULLAH MUNSHI
F.M.A.T. No.195 of 2016
With
C.A.N.2132 of 2016
SAYED HASSAN ALI
... Appellant/Petitioner
-Versus-
MAHAMMED SAHIDUL ISLAM
... Respondent/Opposite Party
Mr. Arindam Mukherjee ... for the appellant Mr. S.E. Huda, Ms. Safila Khanam ... for the respondent Last heard on : 29.07.2016.
Judgment on : August 4, 2016.
Sahidullah Munshi, J.:-
This appeal has been filed by the appellant who was petitioner before the learned Court below in Misc. Case No.422/15 (R-667/15). The said Misc. Case arose out of an application under Section 9 of the Arbitration and Conciliation Act, 1996, hereinafter to be referred as the said Act of 1996, praying for interim relief by way of an order of temporary injunction till the disposal of the suit against the respondent from making addition or alterations and/or from changing the nature and character of the suit property and from transferring and/or parting with possession of the suit property described in the Schedule mentioned in the said application under Section 9 of the said Act of 1996 and also from creating any third party interest by making any clandestine deal. In the said Misc. Case the respondents herein entered appearance and filed written objection.
By the order impugned being Order No.3 dated 2nd January, 2016 the learned Court below, after a contested hearing, rejected the appellant's application under Section 9 of the said Act of 1996.
In the appeal the appellant has filed an application for injunction and/or appropriate orders. The respondents entered appearance and contested the matter. In course of hearing parties agreed for hearing and disposal of the appeal along with the application for injunction. Accordingly, the appeal and injunction application were taken up together for hearing. Parties agreed to file their respective written notes of submissions and so filed by them have been taken on record.
In rejecting the appellant's application under Section 9 of the aforesaid Act of 1996 the learned Court below has held that the appellant executed a Memorandum of Understanding, in short, MOU with the respondent for construction of some buildings including a Mosque jointly with the respondent and such MOU can be termed to be a Partnership Deed where both of them as partners could share their profit and loss equally. The respondent has admitted that the appellant spent some money for construction of the Mosque. The respondent has, however, denied the genuineness of some of the vouchers submitted by the appellant in support of his claim for expenditure of more than Rs.25,00,000/- (Rupees Twenty Five Lakh) only. Learned Court below observed that the contentions raised by the appellant regarding violation of the terms of the MOU and/or recession of the arbitration agreement unilaterally, all these would be decided by an Arbitrator particularly when it appeared that the respondent had already requested the petitioner to submit accounts and statement of expenditure so that the same could be settled and, therefore, the prayer of the appellant for passing an order of injunction restraining the respondent from handing over the property to the mutawalli would not be passed because such order would directly affect the mutawalli of a waqf estate, who is not a party in the Misc. Case. According to the learned Court below, no order of injunction could be passed upon any third party nor can any such order be passed which may, ultimately, affect a third party. Learned Court below held that the petitioner would at best claim for damages from the respondent for his alleged violation of terms and conditions of the MOU dated 7th December, 2013. Upon going through the written objection filed by the respondent in the said Misc. Case pending before the learned Court below it appears that among other grounds for rejection of the appellant's Section 9 application the respondent urged in paragraph 6 that the Board of Waqf is a necessary party to the proceeding and further that the petition under Section 9 is not maintainable in view of the bar created under Section 85 of the Waqf Act, 1995 and in continuation of such statements in paragraph 16 of the said written objection it was reiterated that the learned Court below had no jurisdiction to try the proceeding.
However, on perusal of the order impugned we find that the learned Court below has not dealt with such questions either about the jurisdiction and/or about the bar under Section 85 of the Waqf Act, or about the impleadment of the 'Board' as a necessary party in the proceeding in question. It is profitable to quote the said objections in the respective paragraphs of the written objection -
"2) That the said petition is not maintainable as the same is barred under Section 85 of the Wakf Act, 1995.
6) That as the instant proceeding relates to wakf-e-lillah property, the Board of Wakf, Government of West Bengal is necessary party to this proceeding.
16) ... The Ld. Court has no jurisdiction to try the instant proceeding. ..."
In the above context, we shall first deal with the question of maintainability of an application under Section 9 of the aforesaid Act of 1996 before the learned District Judge and the bar under Section 85 of the Waqf Act, 1995. Section 85 of the Waqf Act, 1995 creates a bar of jurisdiction of Civil Courts. The said provision is quoted below :
"85. Bar of jurisdiction of Civil Courts - No suit or other legal proceeding shall lie in any [civil court, revenue court and any other authority] in respect of any dispute, question or other matter relating to any [waqf], [waqf] property or other matter which is required by or under this Act to be determined by a Tribunal."
The language of Section 85 is very clear. It says that any dispute, question or other matter relating to any waqf or waqf property or other matter which is required by or under the said Act to be determined by a Tribunal within the meaning of Section 8 of the said Act, shall not be decided by any Civil Court.
Section 83 has made provision for constitution of Tribunals. The said provision is as follows :
"83. Constitution of Tribunals, etc. - [(1) The State Government shall, by notification in the Official Gazette, constitute as may Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.] (2) Any mutawalli person interested in a [waqf] 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 [waqf]."
Sub-Section (1) of Section 83 has, therefore, been created for certain specified purpose, namely, determination of any dispute, question or other matter relating to a waqf or waqf property and eviction of tenant or determination of rights and obligations of the lessor and the lessee of such property under the said Act. What kind of disputes are to be decided by the Tribunal, have been specified in various provisions under the Act and those apart, Tribunal is also required to hear out applications at the instance of a mutawalli, person interested in a waqf or any other person if they feel aggrieved by an order made under the said Act or Rules made thereunder subject to limitation if prescribed by the Act itself.
Few such instances where Act provides for specified proceeding are as follows :
(i) Sections 6 and 7 - Disputes regarding properties specified as waqf property in the list of waqf published by the Board or whether a waqf specified in the list is a 'Shia' waqf or 'Sunni' waqf. On going through the Sections it is evident that Section 6 prescribes for a suit whereas Section 7 prescribes for an application before Tribunal. There is a distinctive feature between Section 6 and Section 7. The distinction is notable.
Section 6 indicates that any person can challenge a list of waqf within a period of one year by instituting a suit in a Tribunal whether the property is a waqf property or not or whether the property is 'Shia' waqf or 'Sunni' waqf. The list of auqaf referred to in Section 6 indicates for a list of auqaf not only for the one published for the first time after enactment of the 1995 Act, but includes a list of auqaf even existing prior to the commencement of the Act of 1995 and a suit is maintainable in Tribunal to challenge only those lists but for the second or subsequent list of auqaf only application has been prescribed under Second Proviso to Section 6 of the Act, as added by way of amendment under Act 27 of 2013. List of auqaf referred to in Section 7 relates to a list published under Section 5 of the Waqf Act, 1995. Since the action proposed to be challenged under Section 7 is an action in pursuance of the provisions of the Act itself, provision has been made to challenge the same by way of an application to the Tribunal and nowhere else and not by any other proceeding. In an identical situation in one place, i.e., in Section 6 the Act says about filing of a suit before the Tribunal whereas in case of Section 7 the Legislature has consciously made the provision for filing of an application. Thing is more clarified by the Second Proviso under Section 6 which prohibits filing of suit before the Tribunal in respect of properties notified in second or subsequent survey pursuant to provisions contained in Sub-Section (6) of Section 4. It has also created a bar under Sub-Section (5) of Section 7 that Tribunal shall not have any jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced under Wakf Act, 1954 in a Civil Court under Sub-Section (1) of Section 6 before the commencement of the Waqf 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 decision or review within such suit, proceeding or appeal, as the case may be.
(ii) Section 32(3) - Suit in a Tribunal to set aside the settlement of any scheme of management framed by or directions issued by the Board by any person interested in the wakf or affected by such settlement or direction. Here again a suit has been prescribed. Therefore, no such suit would be maintainable by Civil Court.
(iii) Section 33(4) - Appeal to the Tribunal by a mutawalli or other person aggrieved by an order of the Chief Executive Officer for recovery of any amount or property.
(iv) Section 35. Application to the Tribunal by the Chief Executive Officer for conditional attachment of the property of the mutawalli or any other person against whom an order for payment is made.
(v) Section 38(7) - An appeal to the Tribunal by any Executive Officer or a member of his staff who is aggrieved by any order of removal or dismissal made against him.
(vi) Section 39(3) - An application to the Tribunal by the Board for recovery of possession of any building or place which was being used for any religious purpose or instruction or for charity and which has ceased to be used for that purpose.
(vii) Section 40(2) - Appeal to the Tribunal against the decision of the Board on the question whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf.
(viii) Section 40(4) - Appeal to the Tribunal against the order of the Board calling upon any trust or society to register any property under this Act.
(ix) Section 48(2) - Application to the Tribunal against the order of the Board for recovery of any amount from the mutawalli or any person on the basis of the auditor's report.
(x) Section 51 - Since nothing has been prescribed under this Section, a person aggrieved by the recommendation for development of wakf property can take recourse to Section 83(2) of the Waqf Act, 1995 against the decision of the Board. However, so far the 3rd Proviso relating to acquisition of wakf property general law remedy may be available.
(xi) Section 51(5) - Appeal to the Tribunal by the mutawalli or any other person having any interest in the wakf against the order of the Board in respect of utilization or investment of the amount realized by sale, exchange, or mortgage of wakf property.
(xii) Section 52(4) - An appeal to the Tribunal by any person aggrieved by the order of the Collector for recovery of immovable property improperly alienated on the requisition sent by the Board.
(xiii) Section 54 - Against final order of the Tribunal remedy will lie before the High Court under Section 83(9) of the Waqf Act, 1995.
(xiv) Section 64(4) - An appeal to the Tribunal by a mutawalli who is aggrieved by the order of the Board for his removal under section 64(1)(c) to (j).
(xv) Section 67(4) - An appeal to the Tribunal by any person aggrieved by the order of the Board superseding the committee of management.
(xvi) Section 67(6) - Proviso (2) An appeal to the Tribunal by a Member of the committee of management who is aggrieved by an order of the Board for his removal.
(xvii) Section 69(3) - Proviso (1) An appeal to the Tribunal by any person aggrieved by an order of the Board framing a scheme for the administration of a wakf.
(xviii) Section 73(3) - An appeal to the Tribunal by any Bank or other person who is ordered by the Chief Executive Officer to make any payment out of any amount standing to the credit of any wakf.
(xix) Section 83(2) - An application to the Tribunal by any mutawalli or person interested in a wakf or any other person aggrieved by any order made under this Act or rules made thereunder.
(xx) Section 94(1) - Application to the Tribunal for an order directing the mutawalli to pay to the Board or to any person authorized by the Board the amount necessary for purpose of any act which the mutawalli fails to perform.
We find that besides the aforesaid specified provisions, Tribunal cannot invoke jurisdiction at all. Tribunal is a creature of Statute and it has to act within the periphery of the provisions of the Act. It is the cardinal principle of law that authority must act according to the requirement of Statute. As held by this Court in the case of Purna Chowdhury - Vs. - Jadavpur University & Ors. reported in 2003(4) CHN 612, if Statute requires a thing to be done in a particular manner, it is to be done in that manner only or else not at all.
On a reading from Section 83 and Section 85 we, however, find that Act bars only those suits or matters which are specifically to be determined only by the Tribunal and no other Court but, so far the other matters required other than what to be decided under Sections 83 and 85 the Act cannot have an extended area. Thus in those field Civil Court's Jurisdiction under Section 9 of the Code of Civil Procedure cannot be curtailed.
We further notice that Waqf Act, 1995 itself has prescribed for at least two suits which are to be instituted before the Civil Court. Sub- Section (6) of Section 68 of the Waqf Act, 1995 provides for filing of a suit in a competent Civil Court by any person aggrieved by any order made under Section 68 for the purpose of establishing that he has right, title and interest in the properties specified in the order which might have been passed by any Magistrate under Sub-Section (2) of Section 68. Similarly, Section 86, is a Section provided in the Act immediately after Section 85, which creates a bar of jurisdiction of Civil Court, provides for filing of a suit before Civil Court by a party no other than the Board of Waqf itself. Such Civil Suit can be instituted by the Board of Auqaf to set aside, sell of any immovable property, which is Waqf property, in execution of a decree or order of a Civil Court and in other cases as referred to under Sub-Section (a) of Section 86. Sub-Section (b) of Section 86 refers to filing of a suit by a mutawalli to recover possession of immovable property, which is waqf property and which has been transferred by a previous mutawalli or by any other person, whether for valuable consideration or not, without otherwise than in accordance with the sanction of the Board, and which is in possession of the defendant. Legislature is very wise in making such provision and has made a provision for appointment of receiver in such a suit. Such a provision has been made keeping in mind that Tribunal may not be equipped with such mechanism to appoint receiver or other expertized personnel. Therefore, suit in a Civil Court at times is required to be filed.
We, therefore, hold that Section 85 has not created an absolute bar for the Civil Court for determination of a dispute of like nature as has been agitated in the Section 9 application before the learned Court below. We hold that the learned District Judge is competent to entertain an application under Section 9 of the aforesaid Act of 1996.
Arbitration and Conciliation Act, 1996 has been enacted after the Waqf Act, 1995. Therefore, while enacting the said Act of 1996 Legislature was quite aware of the consequences of the said Act and has not intentionally kept any provision in the Act of 1996 creating any exception to the jurisdiction of arbitration in respect of any matter arising out of a valid agreement related to a waqf property. We, therefore, hold that the learned Court below has got jurisdiction to entertain an application under Section 9 of the said Act of 1996. Since the question of jurisdiction and the bar created under Section 85 of the Waqf Act has been taken as a specific objection in the written objection of the respondent, the learned Court below ought to have dealt with the question before rejection of the Section 9 application.
So far the objection of the respondent in the written objection before the learned Court below that Waqf Board is a necessary party and in his absence the proceeding under Section 9 was not maintainable, has also not been dealt with by the learned Court below. This is a very prime question with regard to the fate of an arbitration proceeding in a case like this where it relates to a waqf property which is enrolled with the Board of Waqfs, West Bengal.
According to the provisions of Section 2 of the Waqf Act, 1995, the said Act applies to all Auqaf whether created before or after the commencement of the said Act. Some provisions have been made in the Waqf Act, 1995 with regard to the initiation of proceedings in respect of waqf property and service of notice upon the Board. Sections 89, 90 and 92 of the said Act are important for the present case. Those Sections are quoted below :
"89. Notice of suits by parties against Board. - No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
90. Notice of suits, etc., by courts. - (1) In every suit or proceeding relating to a title to or possession of a [waqf] property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.
(2) Whenever any [waqf] property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates of tax due to the Government or any local authority, notice shall be given to the Board by the court, Collector or other person under whose order the sale is notified.
(3) In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within [six months] of its coming to know of such suit or proceeding, applies to the court in this behalf.
(4) In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.
92. Board to be party to suit or proceeding. - In any suit or proceeding in respect of a [waqf] or any [waqf] property the Board may appear and plead as a party to the suit or proceeding."
Section 89 is a provision in pari materia with that of Section 80 of the Civil Procedure Code which requires two months' prior notice to the Board or at its office before institution of any suit against the Board. Section 90(1) is of immense importance in the instant case. It says that in every suit or proceeding relating to title to or possession of waqf property or the right of a mutawalli or beneficiary the Court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding. Sub-Section (3) of Section 90 says that in absence of a notice under Sub-Section (1), any decree or order passed in a particular suit or proceeding shall be declared void, if the Board, within six months of its coming to know of such suit or proceeding, applies to the Court in that behalf. It, therefore, appears that it is a mandatory provision under the Waqf Act, 1995 which requires at least a notice to the Board of Waqf after institution of the proceeding, if no notice had been served prior to the institution of the said proceeding. Section 92 of the Waqf Act, 1995 also envisages that in any suit or proceeding in respect of waqf or waqf property the Board may appear and plead as a party to the suit or proceeding. Therefore, on a combined reading of Sections 90 and 92 it appears that Board is a necessary party in a suit or proceeding. If the Board is not made party in a proceeding the minimum requirement is that either the Court or the Tribunal shall issue notice to the Board at the cost of the plaintiff, instituting suit or petitioner, initiating proceeding.
In the present case, however, no notice has been served upon the Waqf Board which vitiates the proceeding altogether. Learned Court below ought to have taken note of such non-compliance of the statutory requirement. Without going into the merits of the case made out by the appellant in his Section 9 application, we hold that the proceeding initiated by the appellant cannot continue without first having issued a notice upon the Board and the learned Court below has failed to exercise a jurisdiction vested in it under the law by not issuing notice upon the Board knowing fully well that the dispute relates to the waqf property. We have no other option but to remit the case back to the learned Court below for a fresh decision. We set aside the order impugned and direct the learned District Judge to issue a notice upon the Board of Waqfs within a period of 30 days from the date of receipt of a certified copy of our order and to dispose of the application under Section 9 within sixty days thereafter.
The appeal and all connected applications stand disposed of. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
I agree.
(Indira Banerjee, J.) (Sahidullah Munshi, J.)