FASEELA M.versusMUNNERUL ISLAM MADRASA COMMITTEE & ANR.

                     [2014] 4 S.C.R. 613


                         FASEELA M.                                 A
                               v.
   MUNNERUL ISLAM MADRASA COMMITTEE & ANR.
        (Civil Appeal Nos. 4250-4252 of 2014)
                      MARCH 31, 2014
                                                                    B
        [R.M. LODHA AND KURIAN JOSEPH, JJ.]

     WAKF ACT, 1995:

      ss. 6 (1) and 7 (1) -- Jurisdiction of Wakf Tribunal - Suit   c
for eviction of tenant from Wakf property - Held: Is exclusively
triable by the civil court, as such a suit is not covered by the
disputes specified in ss. 6 and 7 of the Act - Jurisdiction.

     Respondent no.1 Committee filed a suit before Wakf
Tribunal for eviction of the appellant, stating that D
respondent no. 1 was the landlord and the appellant was
the tenant of the suit property which was described as
waqf property. The appellant denied the suit property to
be the waqf property and challenged the jurisdiction of
the Waqf Tribunal in determining the dispute between the E
parties. The Waqf Tribunal by its order dated 18.9.2010
directed the plaint to be returned. However, on 19.9.2010,
the Waqf Tribunal so motu recalled the order dated
18.9.201 O and posted the matter for 30.9.2010. The
appellant filed two revision petitions - one against the F
order dated 19.9.2010 and the other for declaration that
the Waqf Tribunal had no jurisdiction in the matter. The
High Court dismissed both the revision petitions.
    Allowing the appeals; the court,
                                                                    G
    HELD:
   The suit for eviction against the tenant relating to a
waqf property is exclusively triable by the civil court, as
                              613                                   H
    614      SUPREME COURT REPORTS             [2014] 4 S.C.R.

A   such a suit is not covered by the disputes specified in ss.
    6 and 7 of the Wakf Act, 1995. This Court fully concurs
    with the view taken in Ramesh Gobindram, particularly,
    with regard to construction put by it upon ss. 83 and 85
    of the Act. The decision in Bhanwar Lal is not in any
B   manner inconsistent or contrary to the view taken in
    Ramesh Gobindram. Therefore, the impugned order
    cannot be sustained and, as such, is set aside. The order
    passed by the Waqf Tribunal on 19.09.2010 is also set
    aside. The order of the Waqf Tribunal passed on
c   18.09.2010 Is restored. The civil court shall proceed with
    the suit accordingly. [Para 16 - 18) [623-C; 624-C-E]

        Ramesh Gobindram (Dead) through LRS. Vs. Sugra
    Humayun Mirza Wakf 2010 (10) SCR 945       = (2010) 8 SCC
    726 - relied on. Bhanwar Lal & Anr. Vs. Rajasthan Board of
D   Muslim Wakf and Ors. 2013 SCR 721 = 2013 (11) SCALE
    210 - referred to.

         Board of Wakf, West Bengal & Anr. Vs. Anis Fatma
                                         =
    Begum & Anr., 2010 (13) SCR 1063 (2010) 14 SCC 588
E   Sardar Khan and Ors. Vs. Syed Nazmul Hasan (Seth) and
    Ors. 2007 (3) SCR 436 = (2007) 10 SCC 727 - cited.
                         Case Law Reference:
          2010 (10) SCR 945     relied on            para 11
F                               referred to          para 13
          2013 SCR 721
          2010 (13) SCR 1063    cited               para 14
          2007 (3) SCR 436      cited               para 14
G       CIVIL APPELLAE JURISDICTION : Civil Appeal No. 4250-
    4252 of 2014.

        From the Judgment and Order dated 28.11.2011 of the
    High Court of Kerala at Ernakulam in CRP (Wakf Act) Nos. 53
H   & 56 of 2011 and O.P. (WT) No. 247 of 2011 (A).
   FASEELA M. v. MUNNERUL ISLAM MADRASA                        615
              COMMITIEE & ANR.
    Hari Kumar, G., A. Venayagam Balan for the Appellant.            A

    Renjith Marar, Bineesh K., Sindhu T.P., P.V. Dinesh for the
Respondents.

    The Judgment of the Court was delivered by
                                                                     B
    R.M. LODHA, J. 1. Leave granted.

     2. Sections 6 and 7 of the Waqf Act, 1995 (for short, 'Act')
provide for determination of certain disputes regarding auqaf
only by the Waqf Tribunal. These provisions as amended by Act C
27/2013 read as under:

    "Section 6. Disputes regarding auqaf.- (1) If any question
    arises whether a particular property specified as waqf
    property in the list of auqaf is waqf property or not or
    whether a waqf specified in such list is a Shia waqf or D
    Sunni waqf, the Board or the mutawalli of the waqf or any
    person aggrieved 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:
                                                           .         E
          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 auqaf.

          Provided further that no suit shall be instituted before
    the Tribunal in respect of such properties notified in a         F
    second or subsequent survey pursuant to the provisions
    contained in sub-section (6) of section 4.

    (2) Notwithstanding anything contained in sub-section (1),
    no proceeding under this Act in respect of any waqf shall G
    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            H
    616       SUPREME COURT REPORTS                    [2014] 4 S.C.R.


A         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.
B
          (4) The list of auqaf 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,
c         no suit or other legal proceeding shall be instituted or
          commenced in a court in that State in relation to any
          question referred to in sub-section (1).

          Section 7. Power of Tribunal to determine disputes
D         regarding auqaf.- (1) If, after the commencement of this
          Act, any question or dispute arises, whether a particular
          property specified as waqf property in a list of auqaf is
          waqf property or not, or whether a waqf specified in such
          list is a Shia waqf or a Sunni waqf, the Board or the
          mutawalli of the waqf, or any person aggrieved by the
E
          publication of the list of auqaf under section 5 therein, may
          apply to the Tribunal having jurisdiction in relation to such
          property, for the decision of the question and the decision
          of the Tribunal thereon shall be final:         ·

F               Provided that-
          (a} in the case of the list of auqaf relating to any part of
          the State and published after the commencement of this
          Act no such application shall be entertained after the expiry
          of one year from t~ date of publication of the list of auqaf;
G
          and
          (b) in the case of the list of auqaf relating to any part of
          the State and published at any time within a period of one
          year immediately preceding the commencement of this
H         Act, such an application may be entertained by Tribunal
FASEELA M. v. MUNNERUL !SLAM MADRASA                    617
   COMMITTEE & ANR. [R.M. LODHA, J.]
within the period of one year from such commencement:           A

       Provided further that where any such question has
been heard and finally decided by a civil court in a suit
instituted before such commencement, the Tribunal shall
not re-open such question.
                                                                B
(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 waqf shall be stayed by any
court, tribunal or other authority by reason only of the
pendency of any suit, application or appeal or other C
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 ).                      D

(4) The list of auqaf 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   E
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             F
proceeding or of any application for revision or review
arising out of such suit, proceeding or appeal, as the case
may be.

(6) The Tribunal shall have the powers of assessment of G
damages by unauthorised occupation of waqf property
and to penalise such unauthorised occupants for their
illegal occupation of the waqf property and to recover the
damages as arrears of land revenue through the Collector:

      Provided that whosoever, being a public servant, fails    H
    618      SUPREME COURT REPORTS                    (2014] 4 S.C.R.


A         in his lawful duty to prevent or remove an encroachment,
          shall on conviction be punishable with fine which may
          extend to fifteen thousand rupees for each such offence."

         3. Thus, Sections 6 and 7 of the Act not only confer
    exclusive jurisdiction upon the Waqf Tribunal for determination
8
    of certain disputes regarding auqaf but also take jurisdiction
    of the civil court away in respect of such disputes.

          4. Munnerul Islam Madrasa Committee - respondent No.
  1·-filed a suit for eviction against the appellant before the Waqf
C Tribunal, inter alia, setting up the plea that respondent No. 1 is
    the landlord and the appellant is the tenant in the subject
    property. The subject property is described as waqf property.

         5. The appellant denied that the subject property was waqf
0   property. He also challenged the jurisdiction of the Waqf
    Tribunal in determining the dispute between the parties.

         6. On 18.09.2010, the Waqf Tribunal, after hearing the
    parties, directed the plaint to be returned to the civil court having
    jurisdiction in the matter. However, on the next date, i.e., on
E   19.09.2010, the Waqf Tribunal suo motu recalled the order
    passed on 18.09.2010 and passed the following order :-

          "Called. It seems that issue framed included whether
          property is Wakf property or not. Hence to that extent this
F         Tribunal have jurisdiction. But due to oversight and mistake
          it is ordered to return the Plaint. That order is an error
          apparent on face of records and suo motu reviewed. Call
          on 30.9.2010."

G        7. The appellant filed two revision petitions before the High
    Court - one, against the order dated 19.09.2010 and the other,
    for declaration that the Waqf Tribunal has no jurisdiction in the
    matter.

        8. The High Court dismissed both revision petitions and
H   one original petition by the impugned order giving rise to the
    FASEELA M. v. MUNNERUL ISLAM MADRASA                      619
       COMMITTEE & ANR. [R.M. LODHA, J.]
present Appeals, by special leave.                                    A

      9. The question, for determination in these appeals, is as
to whether the suit for eviction by the landlord against the tenant
relating to waqf property is triable by the civil court or the suit
lies within the exclusive jurisdiction of the' Waqf Tribunal.
                                                                      B
    10. For determination of the above question, besides
Sections 6 and 7, the two other provisions which deserve to
be noticed are Sections 83 and 85 of the Act. These provisions
read:
                                                                      c
    "Section 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 waqf or waqf property, eviction of a tenant or 0
    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 or person interested in a waqf or any
    other person aggrieved by an order made under this Act,           E
    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.                    F

    (3) Where any application made under sub- section (1)
    relates to any waqf property which falls within the territorial
    limits of the jurisdiction of two or more Tribunals, such
    application may be made to the Tribunal within the local          G
    limits of whose jurisdiction the mutawalli or any one of the
    mutawallis of the waqf 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    H
    620       SUPREME COURT REPORTS                    (2014] 4 S.C.R.


A         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 waqf or
          any other person interested in the waqf or the waqf
B
          property to transfer such application to any other Tribunal
          having jurisdiction for the determination of the dispute,
          question or other matter relating to such waqf or waqf
          property, transfer such application to any other Tribunal
          having jurisdiction, and, on such transfer, the Tribunal to
c         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 interests of justice to deal with the
D         application afresh.

          (4) Every Tribunal shall consist of-

                (a) 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, who shall be the
          ChairlT!an;                                            •

                 (b) one person, who shall be an officer from the\State
          Civil Services equivalent in rank to that of the Additional
F         District Magistrate, Member;

                 (c) one person having knowledge of Muslim law and
          jurisprudence, Member;

              and the appointment of every such person shall be
G         made either by name or by designation.

          (4A) The terms and conditions of appointment including
          the salaries and allowances payable to the Chairman and
          other members other than persons appointed as ex officio
H
FASEELA M. v. MUNNERUL ISLAM MADRASA                    621
   COMMITTEE & ANR. [R.M. LODHA, J.]
members shall be such as may be prescribed.                    A

(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 (5of1908),
while trying a suit, or executing a decree or order.           B

(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    c
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
                                                               0
of Civil Procedure, 1908 (5 of 1908).

(9) No appeal shall lie against any decision or order
whether interim or otheiwise, given or made by the Tribunal:
                                                               E
       Provided that a High Court may, on its own motion
or on the application of the Board or any pers9n aggrieved,
call for and exa(lline 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        F
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.

Section 85. Bar of jurisdiction of civil courts.- No suit or
other legal proceeding shall lie in any civil court, revenue   G
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."
                                                               H
    622       SUPREME COURT REPORTS                   [2014) 4 S.C.R.


A         11. In Ramesh Gobindram (Dead) through LRS. Vs.
    Sugra Humayun Mirza Wakfl, this Court considered Sections
    6(1 ), 6(5), 7(1 ), 7(5), 83, 85 and few other provisions of the Act
    and explained the jurisdiction of the Waqf Tribunal vis-a-vis Civil
    Court. As regards the suit for eviction against the tenant(s) of
B   waqf property, thethourt held that such suit is triable by the Civil
    Court as it is not covered by Sections 6 and 7 of the Act.

          12. The Court in para 35, page 738 held as follows :
          "35. In the cases at hand the Act does not provide for any
c         proceedings before the Tribunal for determination of a
          dispute concerning the eviction of a tenant in occupation
          of a wakf property or the rights and obligations of the lessor
          and the lessees of such property. A suit seeking eviction
          of the tenants from what is admittedly wakf property could,
o         therefore, be filed only before the civil court and not before
          the Tribunal."
        13. Mr. Renjith Marar, learned counsel for respondent No.
  1, submits that in a_ subsequent decision in Bhanwar Lal & Anr.
   Vs. Rajasthan Board of Muslim Wakf and Ors. 2 , this Court has
E taken a different view. According to him, Section 85 of the Act
  leaves no manner of doubt that the Waqf Tribunal has
  jurisdiction to decide the suit for eviction. It is so because one
  of the questions for determination is whether the suit property
  is waqf property or not.                  ..,.
F
      14. The Court in Bhanwar LaP considered the decision in
  Ramesh Gobindram1 at quite some length. Besides Ramesh
  Gobindram1, the Court in Bhanwar LaP also considered two
  other decisions, one, Board ,of Wakf, West Bengal & Anr. Vs.
  Anis Fatma Begum & Anr. 3 and two, Sardar Khan and Ors.
G Vs. Syed Nazmul Hasan (Seth) and Ors. 4 • In Anis Fatma

    1.   c2010) 8 sec 12s.
    2.   2013 (11) SCALE 210.
  3.     c2010) 14 sec 588.
H 4.     c2001) 10 sec 121.
   FASEELA M. v. MUNNERUL !SLAM MADRASA                       623
      COMMITTEE & ANR. [R.M. LODHA, J.]
Begum3 , this Court had held that the Waqf Tribunal constituted       A
under Section 83 of the Act will have exclusive jurisdiction to
deal with the questions relating to demarcation of the waqf
property.

     15. Pertinently, the Court in Bhanwar La/2 held that the suit
                                                                      8
for cancellation of sale deed was triable by the civil court.

     16. Bhanwar Lal 2 follows the line of reasoning in Ramesh
Gobindram 1 • The decision of this Court in Bhanwar LaF- is not
in any manner inconsistent or contrary to the view taken by this
Court in Ramesh Gobindram 1 • We fully concur with the view of        C
this Court in Ramesh Gobindram 1 , particularly with regard to
construction put by it upon Sections 83 and 85 of the Act. In
Ramesh Gobindram 1 , the Court said :-

    "32. There is, in our view, nothing in Section 83 to suggest
                                                                      0
    that it pushes the exclusion of the jurisdiction of the civil
    courts extends (sic) beyond what has been provided for in
    Section 6(5), Section 7 and Section 85 of the Act. It simply
    empowers the Government to constitute a Tribunal or
    Tribunals for determination of any dispute, question of other     E
    matter relating to a wakf or wakf property which does not
    ipso facto mean that the jurisdiction of the civil courts
    stands completely excluded by reasons of such
    establishment.

    33. It is noteworthy that the expression "for the                 F
    determination of any dispute, question or other matter
    relating to a wakf or wakf property" appearing in Section
    83(1) also appears in Section 85 of the Act. Section 85
    does not, however, exclude the jurisdiction of the civil courts
    in respect of any or every question or disputes only              G
    because the same relates to a wakf or a wakf property.
    Section 85 in terms provides that the jurisdiction of the civil
    court shall stand excluded in relation to only such matters
    as are required by or under this Act to be determined by
    the Tribunal.                                                     H
    624       SUPREME COURT REPORTS                     [2014] 4 S.C.R.


A         34. The crucial question that shall have to be answered in
          every case where a plea regarding exclusion of the
          jurisdiction of the civil court is raised is whether the
          Tribunal is under the Act or the Rules required to deal with
          the matter sought to be brought before a civil court. If it is
8         not, the jurisdiction of the civil court is not excluded. But if
          the Tribunal is required to decide the matter the jurisdiction
          of the Civil Court would stand excluded."

        17. The matter before us is wholly and squarely covered
    by Ramesh Gobindram 1 • The suit for eviction against the
C   tenant relating to a waqf property is exclusive triable by the civil
    court as such suit is not covered by the disputes specified in
    Sections 6 and 7 of the Act.

         18. In view of the above, the impugned order cannot be
o   sustained and it is liable to be set aside and is set aside. The
    order passed by the Waqf Tribunal on 19.09.2010 is also set
    aside. The order of the Waqf Tribunal dated 18.09.2010 is
    restored. The Civil Court shall now proceed with the suit
    accordingly.
E         19. Civil Appeals are allowed with no order as to costs.

    RP.                                               Appeals allowed