Madras High Court
Salem Mohammedpura Parimala vs P.A.Kareem on 27 February, 2008
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.02.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR C.R.P.(PD)No.1126 of 2006 M.P.No.1 of 2006 Salem Mohammedpura Parimala Sunnath Jammath Masjid Committee, rep. by its Muthuvalli, D.No.6, Majeed Street, Salem-1. ... Petitioner Versus 1.P.A.Kareem 2.A.Mohammed Sheriff 3.Madeswaran 4.Rajendran 5.Mumthaj 6.S.H.Kajanajemohideen 7.Alima Bee 8.Narkees 9.Balkees 10.Rasheeda Bee 11.S.H.Mohameed Ali 12.S.H.Sowkat Ali 13.Rajeeyah 14.B.Shurbudhin 15.B.Budrudeen 16.Ramala 17.Ajeema 18.Balu 19.Barveen 20.Jamruth Bee 21.K.Venkataraman 22.K.Sampath raman 23.K.Saraswathi 24.Nirmala Perumal 25.Geetha Narayanan 26.Usha Krishnamoorthy ... Respondents Civil Revision Petition is filed against the order dated 02.12.2005 made in I.A.No.78 of 2005 in A.SNo.12 of 2005 on the file of the Court of the Court of the Additional Sub Judge, Salem. For Petitioner : Mr.K.Ilias Ali For Respondents : No appearance O R D E R
This revision is directed against the order in I.A.No.78 of 2995 in A.S.No.10 of 2005 on the file of the Subordinate Judge, Salem.
2. Though all the respondents were served, they have not entered appearance either in person or through counsel. Therefore, the Civil Revision Petition is taken up for final hearing in their absence and decided on merits.
3. The petitioner herein, is the defendant in O.S.No.815 of 1998 on the file the District Munsif Court, Salem. The petitioner is a Jamad Committee represented by its Muthavalli. The suit property is a wakf property and the respondents are the tenants of various portions of the wakf property. The tenants have instituted the above suit for permanent injunction, restraining the defendant/petitioner herein or their office bearers, servants, from causing any disturbance to the plaintiffs/respondents' possession and enjoyment of the property and for further reliefs.
4. The petitioner herein has filed a written statement in the said suit, contending inter alia that the property is a wakf property, covered under the provision of Section 83(1) of the Wakf Act, 1995. The State Government have constituted the Wakf Tribunal at Salem and therefore, the District Munsif Court, Salem lacks jurisdiction to try the suit. The petitioner has also contended that the steps have already been taken to evict the tenants/respondents from suit property for non-payment of rents. They prayed for dismissal of the suit on the ground of lack of jurisdiction.
5. The lower Court overruled the objections relating to the maintainability of the suit and granted permanent injunction. Aggrieved by the same, the petitioner has preferred an appeal in A.S.No.12 of 2005 on the file of the Additional Subordinate Judge, Salem. Pending disposal of the appeal, the petitioner has filed I.A.No.78 of 2005, praying for transfer of the appeal to the Wakf Tribunal, as contemplated under the Wakf Act, 1995.
6. In the said interlocutory application, the petitioner has submitted that they have instituted separate suits in O.S.Nos.117, 119, 143, 99, 155 and 153 of 1997 on the file of the District Muncif Court, Salem, against the respondents herein for recovery of possession and for further reliefs. They further submitted that pursuant to the constitution of the Wakf Tribunal under the Wakf Act, all these seven suits, filed against the tenants/respondents have been transferred to the Wakf Tribunal (Subordinate Court, Salem) and pending for final disposal.
7. The respondents herein resisted the above application contending inter alia that the Wakf Tribunal can adjudicate only if the dispute raised in the suit falls under anyone of the provisions of the Wakf Act. As there is no dispute about the suit property being a Wakf property, the relief of enforcement of injunction, being a civil right, cannot be adjudicated before the Wakf Tribunal.
8. On contest, the First Appellate Court, observed that, the trial court, while granting a decree of injunction, framed a specific issue with regard to maintainability of the suit and found that it is maintainable. The plea raised in the appeal was also about the maintainability of the suit and in such circumstances, it is not necessary to decide the question of maintainability, as a preliminary issue in the first appeal and therefore, dismissed the application for transfer. Against which, the petitioner has preferred this present Civil Revision Petition.
9. Learned counsel for the petitioner submitted that pursuant to the constitution of the Tribunal under the Wakf Act, 1995, the appellate Court ought to have decided the issue relating to the jurisdiction, as a preliminary issue and transferred the matter to the Wakf Tribunal. He further submitted that in view of the specific provisions under Sections 83 and 85 of the Wakf Act, the suit instituted by the tenants for a permanent injunction ought to have been rejected under Order VII Rule 11 of C.P.C. He also submitted that Section 85 of the Act excludes the jurisdiction of the Civil Court, with regard to any dispute, question or other matters relating to Wakf property and in such circumstances, the lower appellate Court ought to have transferred the first appeal to the Wakf Tribunal, Salem for proper adjudication. He also submitted that the suits instituted by the petitioner for recovery of possession against all the tenants/respondents, have already been transferred to the Wakf Tribunal (Additional Subordinate Judge, Salem). Since the subject matter and the parties involved in all the suits are one and the same, the lower appellate court ought to have allowed the Interlocutory Application. In support of his contentions, learned counsel for the petitioner relied on the decisions in (1) I.Salam Khan v. The Tamil Nadu Wakf Boad, Chennai reported in 2005 (1) MLJ 646, (2) Abdul Suban v. Syed Tharu Hussain reported in 2006 (5) CTC 341 and (3) Sardar Khan v. Syed Najmul Hasan reported in 2007 (2) CTC 508.
10. Before analysing the applicability of the judgments to the facts of the case, it would be appropriate to extract the relevant provisions of the Wakf Act for proper appreciation of the purport of the enactment and the provision of the Wakf Act. Sections 83, 84 and 85 of the Wakf Act reads as follows:
"83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to 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 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 or 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 so 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 interest of justice to deal with the application afresh.
(4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, 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 (5 of 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 (5 of 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 persons 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 order as it may think fit.
84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision.- Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a wakf or wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute.
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."
11. Section 83 bars institution of any suit or proceeding in any Court in respect of any dispute, question or other matter relating any Wakf, Wakf property or other matter which is required by under this Act to be determined by the Tribunal.
12. Guidance is given by the Supreme Court in State of Rajasthan and others v. Basant Nahata reported in 2005 (12) SCC 77, that preamble, statement of objects and reasons and other provisions of the statute can be taken into account if they provide good means for finding out the meaning of the offending provision, in case of vagueness or ambiguity when the language of provision is capable of giving more than one meaning but not in the case of use of any expression which is incapable being given any precise meaning.
13. In State of Maharastra v. Marwagee F. Desai and others reported in 2002 (2) SCC 318, at para 11 the Supreme Court held that "true intent of the legislature shall have to be gathered and deciphered in its proper spirit having due regard to the language used therein. Statement of objects and reasons is undoubtedly an aid to construction, but that by itself cannot be termed to be and by itself cannot be interpreted. It is a useful guide but the interpretation and the intend shall have to be gathered form the entirety of the statute.
14. In Hari Singh Nalwa v. Kartar Singh Bhadana reported in AIR 2001 P & H 86, the Supreme Court at Paragraph 45, held that a Statute is an edict of the legislature and the conventional way of interpreting or construing a statute is to seek the intention of its maker. A statute is to be construed according "to the intent of them that make it" and "the duty of judicature is to act upon the true intention of the legislature the mens or sententia legis". Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before legislature based on the information derived from past and present experience. When the purpose and object or the reason and spirit pervading through the statute is clear, Court has to adopt purposive approach in interpreting such a statute.
15. In the light of the legal principles to be followed in interpreting the provisions, it becomes necessary for this Court to have a look at the object of this Act and extract the statutory provisions relating to the functions of the Tribunal and the subjects which are demarcated to be within the exclusive domain of the Tribunal, constituted under the Act.
16. The Reasons and Objects of the Wakf Act is as follows:
"The Wakf Act, 1954 was enacted to provide for better administration and supervision of Wakfs through State Wakf Boards. The actual working of the Wakf Act, 1954 brought out many deficiencies in it and as such Amendments were carried out in it subsequently in the years 1959, 1964 and 1969. During discussion on the Wakf (Amendment) Bill. 1969, the Government assured the House that a Committee will be appointed to look into the working of the Wakf Act and for making an enquiry into the position of Wakfs at all levels.
The report of the Wakf Enquiry Committee was received in 1976. Based mainly on the recommendations of this Committee, the Wakf Amendment Bill, 1984 was introduced in Parliament. Even when the Bill was being discussed in Rajya Sabha, strong Opposition was voiced by Muslim Members of Parliament and 36 Members of Parliament submitted specific suggestions for amendment in the Bill. The Bill was, however, passed and became the Wakf (Amendment) Act, 1984.'
17. In view of the strong opposition expressed by Muslim Members of Parliament and also from Muslim Institutions only the following two provisions of the Wakf (Amendment) Act, 1984 could be enforced:
(i)Period of limitation for filing suits for recovery of Wakf Property in adverse possession would be 30 years instead of 12 years (Sec. 66G) and
(ii)The Evacuee Wakf property would be and would deem to have always been vested with the Wakf Board (Sec. 66H).
18. The main criticism of the Wakf (A) Act, 1984 was that it is a 'gross interference' by the State in the day-to-day management of the Wakfs. Other criticism related to the powers given to the Wakf Commissioner which were considered to be overriding of the powers of the Wakf Boards in certain cases. There were many attempts of further amending the provisions of the Wakf (A) Act, 1984. The provisions of the Wakf(A) Act, 1984 were examined in the light of the suggestions / objections received in regard to them by a Committee called Committee on Wakf(A) Act, 1984, chaired by the then Minister of Welfare Smt.Bajpai.
19. A series of discussions with Muslim Members of Parliament, State Government Ministers in-charge of Wakfs, Members of Central Wakf Council and some other eminent Muslim Personalities led to a broad consensus in regard to various provisions of the Wakf Law. On the basis of a near consensus that finally emerged, it was decided to repeal the Wakf Act, 1954 and the Wakf(A) Act, 1984 and to introduce a comprehensive Bill, namely, the Wakf Bill, 1993."
20. The Wakf Act 1995 seeks to provide, inter-alia, the following features:
"(a) Wakf Boards for the States and for the Union Territory of Delhi shall have not less than 7 and not more than 13 members of which the majority will comprise such persons as are elected from amongst Muslim Members of Parliament, Muslim Members of State Legislatures, Muslim Members of the Bar Council in a State and Mutawallis of Wakfs having an annual income of Rs.1 lakh or more. The nominated members will be from Muslim Organisations of State eminence, recognised scholars in Muslim theology and a representative of the State Government on below the rank of Deputy Secretary. In a State where there are Shia Wakfs but no separate Shia Wakf Board, at least one of the Members shall be a Shia Muslim. A smaller Wakf Board is envisaged for Union Territories other than Delhi.
(b) Distribution of powers between the Wakf Board and the Chief Executive Officer and the Chief Executive Officer who would be subordinate to the Wakf Board.
(c) Appointment of the Executive Officer in respect of Wakfs whose performance is not satisfactory and whose annual income is Rs.5 lakhs or more.
(d) To strengthen the finances of the Wakf Board, one of the measures being contemplated is to raise the rate of the contribution by a Wakf to the Wakf Board from 6 percent of its annual income to 7 percent.
(e) Restrictions on the powers of Mutawallis in the interest of better management of Wakf Properties.
(f) Setting up of Wakf Tribunals to consider questions and disputes pertaining to Wakfs.
(g) Alienation of Wakf properties to be made difficult.
(h) To bring uniformity in respect of Wakf administration throughout the country except in Jammu and Kashmir State."
21. The provisions of the Wakf Act are dealt with. Section 6 deals with Disputes regarding Wakf Act, is extracted hereunder:
"6. Disputes regarding Wakfs:- (1) If any question arises whether a particular property specified as wakf property in the list of waks is wakf property or not or whether a wakf-specified in such list is a Shia wakf or Sunni Wakf, the Board 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 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 proceedings shall be instituted or commenced in a Court in that state in relation to any question referred to in sub-section (1)."
22. Section 7 deals with the power of the Tribunal to determine disputes regarding Wakf Act reads as follows:
"7. Power of the 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 Sunni Wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relating 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 to 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 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, he 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."
23. Section 33 deals with the power of inspection by the Chief Executive Officer or the person authorised by him. By reason of any failure or negligence on the part of the Muthavalli in the performance of executive or administrative duties, if any loss or any damage has been caused to any Wakf or Wakf property, the Chief Executive Officer with a prior approval of the Board, either by himself or any other person authorised by him on his behalf, may inspect all the movables or immovable properties, which are Wakf properties or all records, correspondences, plans, accounts and other documents relate thereto. After affording reasonable opportunity of show cause, the Chief Executive Officer, is empowered to pass order of recovery of the amount or property, which has been misappropriated, misapplied or fraudulently retained etc.
24. Clause 4 to Section 33 enables the Muthavalli or any other person, aggrieved by such order to file an appeal to the Tribunal, within 30 days from the date of receipt of the order. Section 33 deals with the power of the Tribunal to adjudicate upon the orders passed in respect of recovery of the amount or property from the Muthavalli or any other person who has caused loss or damage to any Wakf or Wakf property.
25. Section 35 enables the Tribunal to pass an order directing the Muthavalli or person concerned, as the case may be to furnish security and also order conditional attachment of whole or any portion of the property so specified.
26. Section 40 enables the Wakf Board to collect information regarding any property which it has reason to believe to be Wakf property and if any question arises whether the property is a Wakf property or not or whether the Wakf is a Sunni Wakf or Shia Wakf, it may, after making such enqiry as it may deem fit, decide the question. The decision of the Board on question under Sub-Section (1) shall be final, unless it is revoked or modified by the Tribunal. Reading of Section makes it clear that the question as to whether the property is a Wakf property or not, and whether it is Sunni Wakf or Shia Wakf, is a dispute which falling within the ambit of Section 83 of the Act.
27. As per Section 47 of the Act, the accounts of the Wakfs submitted by the Board under Section 46 shall be audited and the manner of the audit is provided thereto. Section 48 of the Act empowers the Board to examine the auditor's report and may call for an explanation from any person in regard to the matter mentioned thereunder, and shall pass such orders as it thinks fit including the orders for recovery of amount certified by the auditor under Sub-Section 2 of Section 47. The Muthavalli or any other person aggrieved by any order made by the Board, may, within 30 days of the receipt of the order, can apply to the Tribunal to modify and set aside the order. As per Clause 4 of Section 48, the order passed by the Tribunal is final. The above provision empowers the Tribunal to test the correctness of the orders passed by the Board, including the orders of recovery of the amount certified by the auditor. As per Section 51 of the Act, alienation of the Wakf property without sanction of the Board is void.
28. In respect of transactions referred to in Sub-Section 1 of Section 51, gift, sale, exchange or mortgage of any immovable property, which is Wakf property, the Board, after publishing in the official gazette, the particulars relating to the transactions and after inviting any objections and suggestions from the concerned Muthavalli or any other person interested in the Wakf, accord to such transaction, if it is of the opinion that such transaction is, (i) necessary or beneficial to the Wakf, (ii) consistent with the objects of the Wakf; and (iii) the consideration thereof is reasonable and adequate. Aggrieved by the orders passed in sub-Section (3), the Muthavalli or any other person may prefer an appeal to the Tribunal.
29. If any immovable property of a Wakf entered as such in the register of the Wakf maintained under Section 36 has been transferred without the previous sanction of the Board in contravention of the provisions of Section 51, the Board may send a requisition to the Collector within whose jurisdiction the property is situated to obtain and deliver possession of the property to it. The orders of the Collector directing the person in possession of the property to deliver the property to the Board is subject to an appeal to the Tribunal.
30. Section 54 (3) of the Act empowers the Chief Executive Officer of the Board to pass an order of eviction of an encroacher of any land, building space or other property which is a Wakf property registered under the Act, after due notice and opportunity to the encroacher and nothing contained in Sub Section (3) shall prevent any person aggrieved by the Order of the Chief Executive Officer, from instituting a suit in a Tribunal to establish that he has right, title or interest of the land, building space or other property. Proviso to the Sub Section (4) of Section 54, bars the institution of the suit in the Tribunal, who has been let into possession of the land building etc., as a lessee, licencee or mortgagee by the Muthavalli of the Wakf or by any other person authorised by him in this behalf. Reading of Section 54, makes it clear that a statutory right to file a suit in the Tribunal is provided to an encroacher to challenge the order of the Chief Executive Officer of the Board in the Tribunal and it is not extended to the licencee, lessee or mortgagee of the Wakf property, whose possession is authorised by the Muthavalli or by any other authorised person. The proviso makes it clear that the above said persons, not being encroachers cannot challenge the Orders by instituting any suit in the Tribunal.
31. Section 61 enumerates certain acts to be done by the Muthavalli of a Wakf. In the event of failure and if reasonable cause is not shown, the Court or the Tribunal may impose a fine amount which may extend to eight thousand rupees.
32. Section 64 of the Act contemplates certain situations warranting the removal of the Muthavalli by the Board, notwithstanding anything contained in any other law or the deed of Wakf. Any Muthavalli who is aggrieved by an order may prefer an appeal to the Tribunal within one month from the date of receipt of the Order. Sub Section (6) of Section 64, empowers the Tribunal to appoint a receiver to manage the Wakf, pending decision of the appeal, if any application is made in this behalf by the Board.
33. As per Section 67 of the Act, whenever the Board is satisfied that a Committee appointed for the purpose of supervising and managing the Wakf is not functioning properly or satisfactorily, the Board can pass an Order superseeding such Committee and on such Supersession, any direction issued in so far as it relates to the Constitution of the Committee shall cease to have any force. Sub Section 4 of the said section empowers the Tribunal to test the correctness of Supersession. A scheme framed by the Board for administration of Wakf can be challenged by any person aggrieved before the Tribunal within sixty days from the date of order after hearing the appeal, the Tribunal may confirm, reverse or modify the order.
34. Section 72 of the Act mandates the Muthavalli of every Wakf, the net annual income of which is not less than five thousand rupees, to pay annually, not exceeding seven percent of the annual income to the Board for the services rendered by the Board to the Wakf. If the Muthavalli realises the income of the Wakf and refuses to pay or does not pay such contribution, the Board is empowered to pass an order making him personally liable for such contribution and the amount is realised from his person or property.
35. An order of Assessment of net income or revision of return passed by the Chief Executive Officer of the Board, under appealable under Sub Section (7) of Section 72.
36. Section 73 empowers the Chief Executive Officer of the Board to make an order directing any bank in which, or any person with whom any money belonging to a Wakf is deposited to pay the contribution, tenable under Section 72 of the Act. The Bank or the bank who is ordered to make the payment shall prefer an appeal to the Tribunal.
Let me now consider the decisions relied on by the learned counsel for the petitioner.
37. In I.Salam Khan v. The Tamil Nadu Wakf Boad, Chennai reported in 2005 (1) MLJ 646, this Court in Paragraph 6 has held as follows:
"6. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The works "any dispute, question or other matters relating to a Wakf or Wakf 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 Wakf or Wakf property can be decided by the Wakf Tribunal. The work 'Wakf' has been defined in Sec.3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Sec.3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal."
In Paragraph 11, the Division Bench of this Court held as follows:
"We may clarify that under the proviso to Sec.83(9) of the Wakf 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 makes it clear that the intention of Partliament is that the party who wishes to raise any dispute or matter relating to a wakf or wakf property should first approach the Tribunal before approaching this Court."
38. Following the above said judgment, learned single Judge of this Court in Abdul Suban v. Syed Tharu Hussain reported in 2006 (5) CTC 341, considered the issue as to whether the suit for injunction before the Civil Court in respect of a property known to him as Wakf property is maintainable before the Civil Court or Wakf tribunal alone is competent to adjudicate the matter. The facts of the above reported case are that the suit in O.S.No.28 of 2005 was filed for permanent injunction, restraining the defendants from interferring with the possession and enjoyment of the suit property. The first defendant in the suit filed an application to decide the issue of jurisdiction as a preliminary issue contending, inter alia, that the suit property was a Wakf property and therefore, the Civil Court has no jurisdiction to try the same. The said application was resisted, on the ground, that the suit property is not a wakf property and therefore, the suit is not maintainable. The Trial Court allowed the application and returned the plaint for proper presentation before proper Court. In the Civil Revision Petition, the argument advanced before the learned single Judge of this Court was that as the dispute raised in the suit was whether the property was a wakf property or not, the remedy open to the plaintiff was only to approach the wakf Tribunal constituted under the Wakf Act and not before the Civil Court. Referring to the provisions of the Wakf Act and following the judgment of this Court cited supra, learned Single Judge of this Court, at Paragraph 15, held as follows:
"As discussed earlier, it is a clear case of abuse of process of law in filing the suit before the District Munsif, Thirumangalam. The petitioner, who is well aware about the fact that the suit property is a wakf property and that already proceedings are pending before the Wakf Tribunal in respect of the same property, has filed the suit for bare injunction. Therefore, the respondent need not wait till all the defendants are served in the Suit, issues are framed and then file the application raising the question of jurisdiction. When on fact and on law it can be prima facie seen that the Suit is not maintainable, it cannot be said that the application is pre-mature."
39. In Sardar Khan v. Syed Najmul Hasan reported in 2007 (2) CTC 508, the Apex Court considered the issue as to whether the provisions of the Wakf Act can be applied to the pending suit, revision or appeal, which commenced prior to coming into the force of the Act, i.e., 01.01.1996 and whether the Wakf Tribunal will have jurisdiction to decide the suit or appeal against the judgment and decree passed after the commencement of the Act, in respect of the suit instituted prior to 01.01.1996. In Paragraph 15, the Apex Court held as follows:
"By virtue of sub-section (5) of Section 7, it clearly transpires that the Tribunal shall not have jurisdiction to determine any matter which is the subject matter of any Suit or proceeding insituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of this Act, i.e., if any Suit has been instituted in any Civil Court prior to coming into force of the Wakf Act, 1995, then the Tribunal will have no jurisdiction to decide such matter and it will be continued and concluded as if Act has not come into force."
In Paragraph 16, the Apex Court held as follows:
"In the case of syed Inamul Hag Shah (supra), the learned single Judge only considered the effect of Section 85 but did not examine the effect of sub-section (5) of Section 7 and, on the basis of Section 85, it was held that all the proceeding which were pending before the Civil Court, the Civil Court will have no jurisdiction. With great respect, perhaps the attention of the learned Single Judge was not drawn to sub-section (5) of Section 7 which specifically provides an exception that this will not be applicable to the pending Suits, Appeals and Revisions. It has purpose behind it that when Act was made prospective, how can it operative retrospectively, therefore, all pending matters were taken out from purview of this Act."
In Paragraph 17 of the judgment, the Apex Court held that, "On a conjoint reading of sub-section (5) of Section 7 and Section 85, the result would be that the Act will not be applicable to the pending Suits or Proceedings or Appeals or Revisions which have commenced prior to 01.01.1996, ie., comming into force of the Wakf Act, 1995. therefore, the view taken by the learned Single Judge was not correct in the case of Syed Inamul Hag Shah (supra)."
Ouster of jurisdiction of the Civil Court should be specific or by necessary implication and therefore, it would be useful to extract few decisions of the Supreme Court on this point.
40. In Shivkumar Chadha v. Municipal Corporation of Delhi reported in 1993 (3) SCC 161, the Supreme Court held as follows:
"where statutory enactments only create rights or liabilities without providing forums for remedies, any person having a grievance that he has been wronged or his right is being affected, can approach the ordinary civil Court on the principle of law that where there is a right there is a remedy ubi jus ibi remedium. Where a particular Act creates a right or liability and also provides a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, the ouster of court's jurisdiction can be upheld on the finding that the rights or liabilities in question have been created by the Act without touching a pre-existing common law right and the remedy provided therein is adequate and complete. But the situation will be different where a statute purports to curb and curtail a pre-existing common law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute is concerned. In such cases, the Courts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the person aggrieved may agitate his grievance. In spite of the bar placed on the power of the Court, orders passed under such statutes can be examined on "jurisdictional question".
41. The Apex Court in Saraswathi v. Lachanna reported in 1994 (1) SCC 611 at Para 7 held as follows:
"where a particular Act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil Court then ouster of civil Court jurisdiction has to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out of such right or liability is provided. In such a situation of ouster of the civil Court's jurisdiction is not to be easily inferred."
42. In V.V.Subba Rao v. Chatlapalli Seetharamatna Ranganaya kumma reported in AIR 1997 SC 3082, the Supreme Court, while dealing with the jurisdiction of the Special Tribunal vis-a-vis the Civil Court, at Paragraph 15 of the judgment, held that under Section 9, C.P.C., the Courts shall subject to the provisions contained therein have jurisdiction to all suits of civil nature excepting suits cognizance of which is either expressly or impliedly barred. When a legal right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and the Civil Courts would take cognizance of it. Therefore, the normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The Rule of construction being that every presumption would be made in favour of the existence of a right and remedy in a democratic set up governed by rule of law and jurisdiction of the Civil Courts is assumed. The exclusion would, therefore normally be an exception. Courts generally construct the provisions strictly when jurisdiction of the Civil Courts is claimed to be excluded. However, in the development of civil abnormal delay at hierarchical states statutes intervene and provide alternative mode of resolution of disputes with less expensive but limited jurisdiction cannot assume jurisdiction and decide for itself the dispute conclusively in such a situation. It is the Court that is required to decide whether the Tribunal with limited jurisdiction has correctly assumed jurisdiction and decided the dispute within `its limits. It is also equally settled that when jurisdiction is conferred on a Tribunal, the Courts examine whether the essential principles of jurisdiction have been followed and decided by the Tribunals leaving the decision on merits to the Tribunal. It is also equally settled legal position that where a statute gives finality to the orders of the special Tribunal, the Civil Court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the Civil Court would normally do in a suit. Such a provision particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. Where there is an express bar of jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary that the statute creates a special right or liability and provides procedure for the determination of the right or liability and further lays down that all questions about the said right or liability shall be determined by the Tribunal so constituted and whether remedies is normally associated with the action in Civil Courts or prescribed by the statutes or not. Therefore, each case requires examination whether the statute provides right and remedies and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excludes the jurisdiction of the Civil Court in respect thereof.
43. In State of Andra Pradesh v. Manjeti Laxmi Kantha Rao (D) by L.R., and others reported in AIR 2000 (SC) 2220, the Supreme Court held that the normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a question is (i) whether the legislature intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it.
44. In Corrocraft Ltd., v. Pan American Airways reported in AIR 1975 SC 1951, the Supreme Court has held that while examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion. Notwithstanding the conventional principle that the duty of judges is to expound and not to legislate. The Courts have taken the view that the judicial are of interpretation and appraisal is imbued with creativity and realism and since interpretation always implied a degree of discretion and choice, the Court would adopt particularly in areas such as constitutional adjudication dealing with social and (sic) rights.
45. While deciding the maintainability of the revision petition filed under section 115 of C.P.C, against the order made by the Civil Court in an appeal preferred under section 37 of the Act, the supreme Court in M/s.I.T.I Ltd. V. M/s.Siemens public communications Networks Ltd., reported in AIR 2002 SC 2308, held that when there is no express exclusion in the Arbitration Act, it cannot be inferred that the C.P.C., is not applicable to the proceedings arising out of an order passed under the provisions of the Arbitration Act. In Paragraph Nos.10 and 11, the supreme Court held as follows:
"it is true in the present Act application of the Code is not specifically provided for but what is to be noted is: Is there an express prohibition against the application of the Code to a proceeding arising out of the Act before a civil Court? We find no such specific exclusion of the Code in the present Act. When there is no express exclusion, we cannot by inference hold that the Code is not applicable. "
11. It has been held by this Court in more than one case that the jurisdiction of the civil Court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is always a strong presumption that the Civil Courts have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to be an inference the same should be in favour of the jurisdiction of the Court rather then the exclusion of such jurisdiction and there being no such exclusion of the Code in specific terms except to the extent stated in S.37(2), we cannot draw an inference that merely because the Act has not provided the C.P.C., to be applicable, by inference it should be held that the Code is inapplicable. This general principle apart, this issue is not settled by the judgment of a three Judge Bench of this Court in the case of Bhatia international V. Bulk Trading S.A., and another in C.A.No.6527 of 2001 decided on 13.03.2002 wherein while dealing with a similar argument arising out of the present Act, this Court held: "while examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by the inferential conclusion the Court arrives at the same when such a conclusion is only conclusion "
46. Reading of the provisions relating to the jurisdiction of the Tribunal makes it clear that the Tribunal which is a creature of the statute is empowered to deal with specific instances or circumstances, for resolution of such disputes or questions, and not to adjudicate upon the rights of the parties which are not specifically required by or under the Act to be determined by the Tribunal, which the legislature hs intended to decide. The intention of the parliament gathered from several sources, such as the preamble of the Statute, statement of objects and the reading of the Wakf Act in entirety makes it clear that the words spoken by the legislature appear prima facie to mean only such of the disputes or questions which are spelt out in clear terms at appropriate places in the Act and the powers of the Tribunal are circumscribed within the specific provisions under the Act. The Tribunal does not have the power and jurisdiction to travel beyond the scope of the Act. When there is no specific exclusion of certain rights in the statute, the scope and applicability of the Act has to be examined and tested on the anvil of the provisions of the Statute. In the absence of any exclusion, either express or implied, conferring jurisdiction on the Tribunal to adjudicate and decide all matters, where a remedy is provided under common law , would amount to transgression of the powers by the Court.
47. The Tribunal created under the Statute provides a remedial forum only for certain specific matters relating to administration and management of wakf properties, which are regulatory in nature and it does not provide for a forum for adjudicating the common law remedies. Any person who has grievance that he has been wronged and the Civil right is affected, where no remedial measure is provided under the Statute, he can approach the ordinary civil Court on the principle of law that where there is a right, there is a remedy.
48. Where a Special Tribunal is created by an Act for the purposes of determining as to the rights which are creation of the Act, then the jurisdiction of that Tribunal is exclusive unless provided otherwise and the Civil Court cannot take cognizance of such matters. But where the subject matters of the suit falls outside the exclusive jurisdiction of the Special Tribunal, the jurisdiction always remains with the Court.
49. The Wakf Act has created certain rights on the person in charge of administering the wakf and its properties and obligates such person to do certain functions towards the betterment of the wakf, taking into consideration the objects of the deed and the law governing wakfs. The Act does not create any forum for adjudication of any dispute between the landlord and the tenant, arising out of a lease deed. In such a situation, the ouster of civil Court's jurisdiction is not to be easily inferred. Mere conferment of special jurisdiction on the Tribunal on certain specific subject matters in the Wakf Act does not by itself exclude the jurisdiction of civil Court for enforcement of civil rights.
50. Courts have consistently held that a statute is an edict of the legislature and the conventional way of interpreting or construing a statute is to seek the intention of the legislature. While interpreting a provision, the Court has to give a purposive construction, so as to achieve the object behind the Act. Reading of the Act in entirety makes it clear that the intention of the Act is to provide a machinery to supervise and maintain the wakfs and its properties, and it is not intended to take away the powers of the Civil Court, wheere no remedy is provided under the Wakf Act.
51. The scheme of the Wakf Act and the provisions thereunder are not wide enough to determine any matter, which forms the subject matter of any suit or proceeding, instituted or commenced in a Civil Court and it is confined only 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 the Tribunal. Suits or proceedings falling within the ambit of the Act, instituted after 01.01.1996, i.e., the date of commencement of the Wakf Act, 1995, alone are to be transferred to the Wakf Tribunal.
52. Admittedly, the respondents are the tenants of the Wakf property. Separate suits were instituted by the petitioner against the respondents/tenants for recovery of possession and for further reliefs in the year 1996 and pursuant to the creation of the Wakf Tribunal under the Act, those suits were transferred to the Wakf Tribunal (Additional subordinate Court), Salem. The respondents/tenants joined together and filed the above suit seeking for permanent injunction against the petitioner herein not to disturb the possession and enjoyment of the suit property.
53. It is not indispute that the subject matter of the suit is a Wakf property and that the respondents are the tenants of the said property. Some of the suits instituted by the petitioner for eviction, after the commencement of the Act, have been transferred to the Wakf Tribunal (Additional Sub Court), Salem for adjudication. It is evident from the typed-set of papers that one of the suits in O.S.No.99 of 1997 filed against the first respondent was transferred to the Wakf Tribunal in W.O.P.No.17 of 1999. The respondents have filed the suit in O.S.No.815 of 1998 on the file of the District Munsif, Salem seeking for permanent injunction in respect of the same property. The dispute between the parties, as to whether the petitioner herein has attempted to disturb the peaceful possession and enjoyment of the respondents in respect of portions held by them as tenants and whether the respondents herein, have defaulted in payment of rent, in my opinion, clearly falls outside the ambit of words "other matter relating to any wakf or wakf property or other matter which is required by or under this Act to be determined by a Tribunal". Therefore, the Civil Court's jurisdiction is not ousted by either express or by implied exclusion.
54. In the light of the above discussion, I am of the considered view that the appellate Court is right in dismissing the Interlocutory Application and it is in accordance with the scheme of the Wakf Act. I do not find illegality in the order impugned in this Civil Revision Petition and accordingly, it is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
28.02.2008 skm S. MANIKUMAR, J.
skm To The Additional Sub Judge, Salem.C.R.P.(PD)No.1126 of 2006
28.02.2008