BOARD OF WAKF, WEST BENGALversusANIS FATMA BEGUM AND ANR.

               [2010] 13 (ADDL.) S.C.R. 1063


            BOARD OF WAKF, WEST BENGAL                             A
                             v.
             ANIS FATMA BEGUM AND ANR.
              (Civil Appeal No. 5297 of 2004)
                   NOVEMBER 23, 2010
                                                                   B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

     Wakf Act, 1995: ss.83, 84- Jurisdiction of Wakf Tribunal
to entertain dispute relating to wakf or wakf property - Held:
Wakf Tribunal has been constituted for deciding any dispute,       C
question or other matters relating to wakf or wakf property -
All matters pertaining to wakf should be filed in the first
instance before the Wakf Tribunal and should not be
entertained by the civil court or by High Court straightaway ul
Article 226 of the Constitution - Wakf Tribunal has all the        D
powers of civil court under Code of Civil Procedure - The
party can approach the Wakf Tribunal even if no order has
been passed under the Act against which he is aggrieved -
Jurisdiction - Code of Civil Procedure, 1908 - Constitution
of India, 1950 - Article 226.                                      E
     Jurisdiction: If there is special law providing for special
forum then recourse cannot be taken to general law - Wakf
Act, 1995.

     The dispute pertained to the Wakf estate of one               F
Shahzadi Begum which was created by a registered deed
of Wakf dated 22.09.1936. By the said Wakf Deed, the
Wakf was created with the object of dedicating the
property in dispute, partly for the benefit of the Wakita,
her family and descendants and partly for pious and                G
religious purposes. In order to give effect to the object
of the Wakf, the property was demarcated and/or divided
into two portions having 75% share for Wakf-al-al-aulad
and 25% share for pious and religious purposes. The
                           1063                                    H
    1064 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A · Wakf was enrolled under the appropriate laws then
    prevailing, and registered as a Wakf Estate. The said
    property was partitioned by keeping 75% thereof for the
    benefit of the descendants of the family of the Wakita in
    terms of the Wakf Deed and the remaining 25% for
B religious and charitable purposes. Dispute arose between
    the parties. A suit for demarcation was filed before the
    High Court. The High Court held that the demarcation of
    the Wakf property was not correct and the Wakf Act, 1995
    was not applicable for the portion of the said property
c divided and earmarked for Wakf-al-al-aulad.
       The question which arose for consideration in the
  instant appeal was whether only the Wakf Tribunal has
  jurisdiction in the matter under the Wakf Act, 1995 and,
  therefore, the suit for demarcation of wakf property filed
D in the High Court was without jurisdiction.

       Allowing the appeal, the Court

       HELD: 1. All matters pertaining to Wakfs should be
  filed in the first instance before the Wakf Tribunal
E constituted under Section 83 r•i the Wakf Act, 1995 and
  should not be entertained by the civil court or by the High
  Court straightaway under Article 226 of the Constitution
  of India. [Para 10] [1068-G]

F      2.1. The Wakf Act, 1995 is a recent parliamentary
  statute which has constituted a Special Tribunal for
  deciding disputes relating to Wakfs. The obvious purpose
  of constituting such a Tribunal was that a lot of cases
  relating to Wakfs were being filed in the courts in India
G and they were occupying a lot of time of all the courts in
  the country, which resulted in increase in the pendency
  of cases in the courts. The Wakf Tribunal can decide all
  disputes, questions or other matters relating to a Wakf or
  Wakf property. The words "any dispute, question or other
H
   BOARD OF WAKF, WEST BENGAL v. ANIS FATMA 1065
               BEGUM AND ANR.

  matters relating to a Wakf or Wakf property" appearing        A
  in Sections 83 and 84 of Act are words of very wide
  connotation. The word 'Wakf' has been defined in
  Section 3 (r) of the Wakf Act, 1995 and, therefore, once
  the property is found to be a Wakf property as defined in
  Section 3 (r), then any dispute, question or other matter     B
  relating to it should be agitated before the Wakf Tribunal.
  [Paras 11, 14] [1068-H; 1069-A; 1069-F-H; 1070-A]

      2.2. Under Section 83 (5) of the Wakf Act, 1995, the
  Tribunal has all powers of the civil court under the Code     C
  of Civil Procedure, and hence it has also powers under
  Order 39 Rules 1, 2 and 2A, CPC to grant temporary
  injunctions and enforce such injunctions. Hence, a full-
  fledged remedy is available to any party if there is any
  dispute, question or other matter relating to a Wakf or
  Wakf property. [Para 15] [1070-B]                             D

        2.3. The party can approach the Wakf Tribunal, even
   if no order has been passed under the Act, against which
   he/she is aggrieved. Sections 83 (1) and 84 of the Act do
   not confine the jurisdiction of the Wakf Tribunal to the     E
   determination of the correctness or otherwise of an order
   passed under the Act. Section 83 (2) refers to the orders
   passed under the Act, but Sections 83 (1) and 84 of the
   Act are independent provisions, and they do not require
   an order to be passed under the Act before invoking the      F
   jurisdiction of the Wakf Tribunal. Therefore, it cannot be
   said that a party can approach the Wakf Tribunal only
   against an order passed under the Act. Even if no order
   has been passed under the Act, the party can approach
   the Wakf Tribunal for the determination of any dispute,      G
   question or other n:iat!ers relating to a Wakf or Wakf
, property, as the plain language of Sections 83 (1) and 84
 \ indicates. [Para 16] [1070-C-F]

      2.4. Under the proviso to Section 83 (9) of the Wakf
                                                                H
         \
             \
    1066 SUPREME COURT REPORTS [2010] 13 (ADDL) S.C.R.


A Act, 1995, a party aggrieved by the decision of the
  Tribunal can approach the High Court which then 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
B of Parliament 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
  the High Court. [Para 17] [1070-G]

       3. It is well-settled that when there is a special law
C providing for a special forum, then recourse cannot be
  taken to the general law. Since the matter fell under the
  purview of the Wakf Act, only the Wakf Tribunal has
  jurisdiction in the matter, and not the civil court. [Paras
  19, 21] [1070-H; 1071-A-C]
D
        Ramesh Gobindram v. Sugra Humayun Mirza Wakf
    (2010) 8 SCALE 698 - distinguished.

         Chief Engineer, Hyde/ Project & Ors v. Ravinder Nath &
E   Ors. (2008) 2 SCC 350; Sardar Khan v. Syed Najmul Hasan
    (Seth) & Ors. AIR 2007 SC 1447 - referred to.

        G.P. Singh's Principles of Statutory Interpretation 9th
    Edn. 2004 - referred to.

F                       Case Law Reference:
        (2008) 2 sec 350           referred to        Para 20
        AIR 2007 SC 1447           referred to        Para 22
        (2010) 8 SCALE 698         distinguished      Para. 23
G
        CIVIL APPEALLATE JURISDICTION : Civil Appeal No.
    5297 of 2004.

      From the Judgment & Order dated 2.5.2003 of the High
H Court at Calcutta in A.P.O.T. No. 775 of 2002.
 BOARD OF WAKF, WEST BENGAL v. ANIS FATMA 1067
             BEGUM AND ANR.

   Rajeev Dhawan, Hrien Dasan, Dhirendra Kr. Mishra,                 A
Manoj Swarup for the Appellants.

   Misum Hossein, M. Hossein, Shrish Kumar Misra, Shakil
Ahmad Syed, Goodwill lndeevar for the Respondents.

     The Judgment of the Court was delivered by                      B

     MARKANDEY KATJU, J. 1. This appeal has been filed
against the impugned judgment of the Division Bench of the
Calcutta High Court dated 02.5.2003 in A.P.O.T. No. 775 of
2002.                                                                c
    2. Heard learned counsel for the parties and perused the
record.
    3. The facts of this case have been stated in the impugned
judgment and hence we are not repeating the same here,               D
except where necessary.
      4. The dispute pertains to the Wakf estate of Shahzadi
 Begum which was created by a Registered Deed of Wakf
 dated 22.09.1936 by- one late Shahzadi Begum. By the said
 Wakf Deed the Wakf was created with the object of dedicating        E
·the property being Premises No. 33, Shakespeare Sarani,
 (formerly Theatre Road), Calcutta-700 017, partly for the benefit
 of the Wakifa, her family and descendants and partly for pious
 and religious purposes. In order to give effect to the object of
 the Wakf, the property had been demarcated and/or divided           F
 into two portions having 75% share for Wakf-al-al-aulad and
 25% share for pious and religious purposes. The Wakf had
 been enrolled under the appropriate laws then prevailing,, and
 registered as a Wakf Estate. The aforesaid property has been
 partitioned by metes and bounds by keeping 75% thereof for          G
 the benefit of the descendants of the family of the Wakifa in
 terms of the Wakf Deed and the remaining 25% for a religious
 and charitable purposes.

     5. Suit No. 488 of 1999 was filed in Original Summons
jurisdiction for answers to be given for the following two           H
    1068 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   questions:
                 Whether the demarcation of the Wakf property
                 being Premises No. 33, Shakespeare Sarani,
                 Calcutta - 700 017, made as above in dividing the
                 said property in two distinctive parts, one for Wakf-
B                al-al-aulad and the remaining portion for pious and
                 religious purposes, is correct and has been made
                 in consonance with the provisions of the Wakf Deed
                 ?

c                Whether the Wakf Act, 1995 is applicable for the
                 portion of the said property divided and earmarked
                 for Wakf-al-al-aulad ?
      6. By the order dated 30.02.2000 the Learned Single
  Judge answered the first question in the negative and the
D second question in the affirmative.
        7. However, in appeal, the Division Bench by the impugned
    judgment has answered both the questions in the negative.
    Hence, this appeal.
E        8. It was submitted by Dr. Rajeev Dhawan, learned Senior
    Counsel appearing for the appellant, that only the Wakf Tribunal
    has jurisdiction in the matter under the Wakf Act, 1995 and
    hence the Suit filed in the High Court was without jurisdiction.
    We agree.
F
        9. The dispute in the present case relates to a Wakf.
        10. In our opinion, all matters pertaining to Wakfs should
  be filed in the first instance before the Wakf Tribunal constituted
  under Section 83 of the Wakf Act, 1995 and should not be
G entertained by the Civil Court or by the High Court straightaway
  under Article 226 of the Constitution of India.
       11. It may be mentioned that the Wakf Act, 1995 is a
  recent parliamentary statute which has constituted a special
H Tribunal for deciding disputes relating to Wakfs. The obvious
  BOARD OF WAKF, WEST BENGAL v. ANIS FATMA 1069
    BEGUM AND ANR. [MARKANDEY KATJU, J.]
 purpose of constituting such a Tribunal was that a lot of cases        A
 relating to Wakfs were being filed in the courts in India and they
 were occupying a lot of time of all the Courts in the country,
 which resulted in increase in pende~cy of cases in the Courts.
 Hence, a special Tribunal has been constituted for deciding
 such matters.                                                          B
      12. Section 83 (1) of the Wakf Act, 1995 states,
      '"83. Constitution of Tribunals, etc. - (1) The State
      Government shall, by notification if the Official Gazette,
      constitute as many Tribunals as it may think fit, for the         C
      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
      or such Tribunals."
      13. Section 84 of the Act states,                                 D

      "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       E
      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".
                                                                        F
        14. Thus, the Wakf Tribunal can decide all disputes,
   questions or other matters relating to a Wakf or Wakf property.
   The words "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       G
.. and in whatever manner which arises relating to a Wakf or Wakf
   property can be decided by the Wakf Tribunal. The word 'Wakf
   has been defined in Section 3 (r) of the Wakf Act, 1995 and
   hence once the property is found to be a Wakf property as
   defined in Section 3 (r), then any dispute, question or other        H
    1070 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   matter relating to it should be agitated before the Wakf Tribunal.
         15. Under Section 83 (5) of the Wakf Act, 1995 the
    Tribunal has all powers of the Civil Court under the Code of Civil
    Procedure, and hence it has also powers under Order 39 Rules
    1, 2 and 2A of the Code of Civil Procedure to grant temporary
8
    injunctions and enforce such injunctions. Hence, a full-fledged
    remedy is available to any party if there is any dispute, question
    or other matter relating to a Wakf or Wakf property.
        16. We may further clarify that the party can approach the
c Wakf Tribunal, even if no order has been passed under the Act,
  against which he/she is aggrieved. It may be mentioned that
  Sections 83 (1) and 84 of the Act do not confine the jurisdiction
  of the Wakf Tribunal to the determination of the correctness or
  otherwise of an order passed under the Act. No doubt Section
0 83  (2) refers to the orders passed under the Act, but, in our
  opinion, Sections 83 (1) and 84 of the Act are independent
  provisions, and they do not require an order to be passed under
  the Act before invoking the jurisdiction of the Wakf Tribunal.
  Hence, it cannot be said that a party can approach the Wakf
E Tribunal only against an order passed under the Act. In our
  opinion, even if no order has been passed under the Act, the
  party can approach the Wakf Tribunal for the determination of
  any dispute, question or other matters relating to a Wakf or
  Wakf property, as the plain language of Sections 83 (1) and
  84 indicates.
F
        17. We may clarify that under the proviso to Section 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
G propriety of the decision of the Tribunal. This provision make it
  clear that the intention of Parliament is that the party who wishes
  to raise any dispute or matter relating to a Wakf or Wakf
  property should first approach the Tribunal before approaching
  the High Court.
H        19. It is well-settled that when there is a special law
 BOARD OF WAKF, WEST BENGAL v. ANIS,,FATMA 1071
   BEGUM AND ANR. [MARKANDEY KAT JU; J.]

providing for a special forum, then recourse cannot .be taken        A
to the general law vide Justice G.P. Singh's Principles of
Statutory Interpretation (9th Edn. 2004, pp 133-134).
     20. In Chief Engineer, Hyde/ Project & Ors vs. Ravinder
Nath & Ors. (200S) 2 SCC 350, this Court held that when the
matter fell in the area covered by the Industrial Disputes Act,
                                                                     8
the Civil Court would have no jurisdiction. In the above decision
the Court has referred to several earlier decisions on this point.
     21. In view of the above, we are of the opinion that since
the matter fell under the purview of the Wakf Act, only the Wakf     c
Tribunal has jurisdiction in the matter, and not the Civil Court.
     22. However, in view of the decision of this Court in Sardar
Khan vs. Syed Najmul Hasan (Seth) & Ors. AIR 2007 SC
1447, the Wakf Act will not be applicable to suits/appeals/
revisions/proceedings commenced prior to 1.1.1996 when the D
Wakf Act came into force.
     23. Learned counsel for the respondent, however, relied
on the decision of this Court in Ramesh Gobindram VS; Sugra
Hurriayun Mirza Wakf (2010) 8 SCALE 698. In the aforesaid            E
decision it was held that eviction proceedings can only be
decided by the Civil Court and not by the Wakf Tribunal.
     24. The. dispute in the present case is not an eviction
dispute. Hence, the aforesaid decision in Ramesh Gobindram's
case is distinguishable.                                             F

      25. For the reasons mentioned above, the impugned
judgment of the Calcutta High Court cannot be sustained and
it is hereby set aside. We hold that only the Wakf Tribunal has
jurisdiction in the matter and the parties can approach the Wakf
Tribunal, if so advised. The appeal stands allowed. There shall      G
be no order as to costs.

D.G.                                            Appeal allowed.