RAJASTHAN WAKF BOARDversusDEVKI NANDAN PATHAK & ORS.

                           [2017] 3 S.C.R. 878


A                     RAJASTHAN WAKF BOARD
                                    v.
                  DEVKI NANDAN PATHAK & ORS.
                      (Civil Appeal No. 6310 of 2017)
B                             MAY04,2017
      [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.)
         Wakf Act, 1995 - ss.51, 52, 83 and 85 - Jurisdiction of Wakf
  Tribunal - The main question involved in the instant suit was whether
  the suit land was a Wa!if properzv or not - Plaintiff stated that it
c was a Wakf property whereas the defendants claimed that it was
  not the Wa!if property but was their self property - This question
  could be decided only by the Tribunal and not by the Ci"t! Court -
  Secondly, once the property is declared to be a Wakf property, a
  fortiori, whether the sale of such property is made by a person not
D connected with the affairs of the Wa!if or by a person dealing with
  the affairs of the Wakj; the same becomes void by virtue of s.51 of
  the Act ·unless it is proved that it was made after obtaining prior
  permission of the Board as provided under the Act - The matters
  falling ulss.51 and 52 of the Act are also required to be decided by
E the Tribunal and. therefore, jurisdiction of the Civil Court to decide
  such matters is also barred by virtue of provisions contained in
  s.85 of the Act - Matter remanded to the High Court for deciding
   the revision afresh with a view to decide as to whether the findings
   of the Tribunal on merits by which the suit was decreed were correct
   or not.
F
          Allowing the appeal and remitting the matter to High Court,
   the Court
        HELD: 1. The case at hand is governed by the Wakf Act,
  1995. Section 51 of the Act provides that notwithstanding
  anything contained in the Wakf Deed, any gift, sale, exchange or
G mortgage of any immovable property, which is a Wakf property,
  shall be void unless it is effected with the prior sanction of the
  Board. Section 52 of the Act empowers the Board to approach
  the Collector of the District to obtain possession of such Wakf
  property, which is alienated in contravention of Section 51 or
H
                                    878

         ..
  RAJASTHAN WAKF BOARD v. DEVKI NANDAN PATHAK                       879



Section 56 of the Act. It also provides a right of appeal to the A
Tribunal against the order of the Collector passed under Section
52(2) of the Act. Section 54 of the Act provides that the Chief
Executive Officer to approach the Tribunal to se.ek an order of
eviction against any encroacher of the Wakf property. Section 83
of the Act empowers the Tribunal to determine any dispute, B
question or other matter relating to a Waqf or Wakf property
under this Act. Section 85 of the Act which deals with the Bar of
jurisdiction of Civil Court provides that no suit or other legal
proceedings shall lie in any civil court in respect of any dispute,
question or other matter relating to any Wakf, Wakf property or
other matter which is required by or under this Act to be C
determined by the Tribunal. The Tribunal was right in its view in
holding that it had the jurisdiction to try the suit on merits whereas
the High Court was not so in holding the otherwise.[Paras 21-
25) (883-H; 884-A-F)
       2. The Tribu11:il does have jurisdiction to decide the D
question arising in the suit filed by respondent No.6 and, therefore,
the Tribunal rightly trh:d the suit on merits. The reasons are not
far to seek. In the first place, the main question involved in the
suit was whether the suit land is a Wakf property or not. Plaintiff
 says that it is a Wakf property whereas the defendants say that it
is not the Wakfproperty but it is their self property. This question E
can be decided only by the Tribunal and not by the Civil Court.
Second, once the property is declared to be a Wakf property, a
fortiori, whether the sale of such property is made by a person
 not connected with the affairs of the Wakf or by a person dealing
with the affairs of the Wakf, the same becomes void by virtue of F
 Section 51 of the Act unless it is proved that it was made after
 obtaining prior permission of the Board as provided under the
Act. One cannot dispute that the matters falling under Sections
 51 and 52 of the Act are also required to be decided by the
 Tribunal and hence jurisdiction of the Civil Court to decide such
 matters is also barred by virtue of provisions contained in Section G
 85 of the Act. The High Court while deciding the question did
 not examine the question in its proper perspective.[Paras 26-
 28) (884-F-H; 885-A-D]
      Ramesh Gobindram v. Sugra Hamay1111 Mirza Waqf
                                                                    H
880            SUPREME COURT REPORTS                           [2017] 3 S.C.R.


A           [2010) 10 SCR 945 : (2010) 8 SCC 726; Bhanwar Lal
            & Anr. v. Rajasthan Board of Muslim Wakf & Ors.
            (2013) 9 SCR 721 : (2014) 16 SCC 51 - relied on.
                              Case Law Reference
            [2010) 10 SCR 945           relied on                 Para 27
B
            [2013] 9 SCR 721            relied on                 Para 27
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. ~310
      of2017.
        From the Judgment and Order dated 30.01.2014 of the High Court
C ofJudicature at Rajasthan Bench at Jaipur in Civil Revision Petition No.
  400 of2001.
           S. Wasim A. Qadri, Jubair Ahmad Khan, Zaid Ali, Tamim Qadri,
      Mudasir Nabi, Ms. Shabeena Anjum, Ms. Mithali Chauhan, Lakshmi
      Raman Singh, Ad vs. for the Appellant.
D
            Nitin Bhardwaj, Baij Nath Patel, Praveen Chaturvedi, Advs. for
      the Respondents.
            The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. I. Leave granted.
 E        2. This appeal is filed by defendant No.6 against the final judgment
   and order dated 30.01.2014 passed by the High Court of Judicature for
   Rajasthan, Bench at Jaipur in CRP No.400 of2001 whereby the High
   Court allowed the revision petition filed by the respondent Nos. I to 5
   herein and set aside the order dated 22.02.2001 passed by the Presiding
 F Officer, Rajasthan WakfTribunal, Jaipur, wherein the Tribunal decreed
   the suit filed by the plaintiff-respondent No.6 herein against defendant
   Nos. I to 5 in respect of the suit land.
              3. In order to appreciate the issue involved in the appeal, which
      lies in a narrow compass, it is necessary to state the relevant facts infra.
 G·         4. The appellant herein is defendant No. 6 whereas respondent
      Nos. 1 to 5 are defendant Nos. I to 5 and respondent No. 6 is the
      plaintiff in a suit out of which this appeal arises.
          5. The appellant is a WakfBoard registered under the Waqf Act,
   1995 (hereinafter referred to as "the Act"). It has an office at Jaipur in
 H the State ofRajasthan.
  RAJASTHAN WAKF BOARD v. DEVKI NANDAN PATHAK                                 881
            [ABHAY MANOHAR SAPRE, J.]

      6. There is a property called "Kauria Wali Masjid" situated in          A
Town Hindaun, Tehsil Hindaun Barpara District Karauli, Rajasthan. The
property is registered as "Wakf' at Serial No. 23, Page No.116 in the list
of Wakf published under Section 5 of the Act. Respondent No. 6 is the
Mutawali of the Masjid.
       7. On 05.06.1998, respondent No.5 claiming to be the owner of B
the land situated adjacent to "Kauria Wali Masjid" property measuring
37 feet x 34 feet (hereinafter called the "suit land") sold to respondent
Nos. I to 4 by deed of sale. This sale gave rise to the dispute between
the Wakf represented by respondent No. 6 on the one hand and
Respondent Nos. I to 5 on the other.
                                                                              c
          8. Respondent No.6 filed a suit against respondent Nos. I to 5 and
the appellant before the Rajasthan WakfTribunal at Jaipur. The foundation
on which respondent No. 6 (plaintiff) filed the suit for claiming relief
therein, inter alia, was that the "suit land" is the Wakf property or, in
other words, a part of the Wakf property and hence respondent No.5,
who is an individual and unconnected with the affairs of the Wakf, had D
no right, title and interest to sell the suit land to anyone much less to
respondent Nos. I to 4. It was alleged that the sale of the suit land was
equally in contravention of Section 51 of the Act and hence the same
was void and illegal (para 7 of the plaint). It was also alleged that even
the plaintiff, who is a Mutawali of the Masjid (wakf), had no right to sell E
the Wakf property or/and any of its part without following the due
procedure prescribed under the Act. Respondent No.6, therefore, claimed
a relief that firstly, respondent Nos. I to 4 (defendant Nos. I to 4) should
not forcibly take possession of the suit land and in the alternate the sale
in question be declared void.
                                                                                F
          9. Respondent Nos.I to 5 filed the written statement and denied
the claim set up by respondent No.6 in the plaint. According to them, the
suit land was neither the Wakf property and nor a part of any Wakf
property. It was alleged that respondent No.5 being the owner of the
suit land had every right to sell the suit land to respondent Nos. I to 4 and
which he did by executing the sale deed. It was also alleged that the G
Tribunal has no jurisdiction to try the suit and the remedy of the plaintiff
 is to file civil suit before the Civil Court for claiming appropriate reliefs.
 The Tribunal, on the basis of the pleadings, framed the following issues
 for adjudication:
                                                                              H
882            SUPREME COURT REPORTS                           [2017] 3 S.C.R.


A           "l. Whether the plaintiff is entitled to file       the case?
            2. Whether the property in suit is the part ofMasjid Kauria
               Wali?
             3. Whether this Board has no jurisdiction to entertain this
                case?
 B
             4. Whether the case is time barred?
             5. To what relief the plaintiff is entitled?"
           10. The parties adduced evidence. By order dated 22.02.2001,
   the Tribunal decreed the suit and accordingly passed an order against
 C respondent Nos. I to 5. It was held that firstly, the Tribunal has the
   jurisdiction to try the suit; secondly, the plaintiff(respondent No.6) is the
   Mutawali of the Wakfproperty and, therefore, competent to file the suit
   in relation to the suit land; and thirdly, the suit land is the Wakf property
   or, in other words, a part ofthe Wakf property and, therefore, it is subjected
 D to the Wakf Act.
              11. Felt aggrieved, respondent Nos. I to 5 filed the revi.sion under
      Section 83(9) of the Act in the High Court. By impugnc:d order, the
      Single Judge of the High Court allowed the revision and set aside the
      order of the Tribunal on the ground that the Tribunal had no jurisdiction
      to try the suit and the remedy ofrespondcnt No.6 (plaintiff) was to file
 E
      civil suit before the Civil Court. The High Court, therefore, did not examine
      the merits of the issues arising in the case.
             12. Felt aggrieved, defendant No.6-WakfBoard filed this appeal
      by way of special leave petition questioning the legality and correctness
      of the order of the High Court.
 F
            13. Heard Mr. Salman Khurshid, learned senior counsel for the
      appellant and Mr. Ni tin Bhardwaj and Mr. Praveen Chaturvedi, learned
      counsel for the respondents.
          14. Mr. Salman Khurshid, learned senior counsel appearing for
 G the appellant-WakfBoard while assailing the legality and correctness of
   the impugned order contended that the High Court erred in holding that
   the Tribunal did not have jurisdiction to try the suit out of which this
   appeal arises.


 H
  RAJASTHAN WAKF BOARD v. DEVKI NANDAN PATHAK                                  883
            [ABHAY MANOHAR SAPRE, J.]

       15. According to him, reading the averments made in the plaint          A
as a whole would clearly go to show that the suit filed before the Tribunal
was maintainable and, therefore, it was rightly tried and decreed by the
Tribunal on merits holding the suit land to be the Wakf property.
        16. Learned counsel urged that the basic question, which was
required to be decided in the suit as would be clear from issue No. 2, B
was whether the suit land is a Wakf prope1iy or, in other words, whether
it is a part ofWakf property or not. Learned counsel pointed out from
the pleadings that it has been the case of the plaintiff (respondent No.6
herein) that the suit land has all along been the part of the Wakfproperty
and hence neither respondent No.5 nor anyone had any right to sell the
said land so long as the procedure prescribed under the Act for sale of
                                                                           c
such property is followed.
       17. Learned counsel pointed out that under the Scheme of the
Act, the question as to whether a particular property is a Wakfproperty
or not has to be tried and decided by the Tribunal under Section 83 of the
Act and the jurisdiction of the Civil Court to decide such question is         D
expressly barred by Section 85 of the Act.
      18. Learned counsel, therefore, urged that the impugned order
should be set aside by holding that the Tribunal has the jurisdiction to try
and decide the suit and the matter be accordingly remitted to the High
Court for deciding the revision on merits with a view to decide as to          E
whether the Tribunal was justified in holding the suit land to be part of
Wakf property or not.
       19. In reply, learned counsel for the respondents (defendant Nos.
1 to 5) supported the impugned order and contended that it docs not
need any interference and the same be upheld by dismissing the appeal.         F
       20. Having heard learned counsel for the parties and on perusal
of the record of the case, we find force in the submission of the learned
counsel for the appellant.
      21. The main question that arises for consideration in this appeal
                                                                               G
is whether the High Court was justified in holding that the suit was not
capable of being tried by the Tribunal under Section 83 of the Act and
the remedy of the plaintiff was to file a civil suit before the Civil Court.
    22. The Waqf Act, 1995 was amended by The Wakf
(Amendment) Act, 2013 (Act No. 27/2013). Since the case at hand is
                                                                               H
884            SUPREME COURT REPORTS                            [2017] 3 S.C.R.


A governed by the unamended Act, we take note of some of the relevant
  unamended provisions of the Act hereinbelow.
          23. Section 51 of the Act provides that notwithstanding anything
   contained in the WakfDeed, any gift, sale, exchange or mortgage of any
   immovable property, which is a Wakf property, shall be void unless it is
 B effected  with the prior sanction of the Board. Section 52 of the Act
   empowers the Board to approach the Collector of the District to obtain
   possession of such Wakf property, which is alienated in contravention of
   Section 51 or Section 56 of the Act. It also provides a right of appeal to
   the Tribunal against the order of the Collector passed under Section
   52(2) of the Act. Section 54 of the Act provides that the Chief Executive
 c Officer to approach the Tribunal to seek an order of eviction against any
   encroacher of the Wakf property.
          24. Section 83 of the Act empowers the Tribunal to determine
   any dispute, question or other matter relating to a Waqf or Wakf property
   under this Act. Section 85 of the Act which deals with the Bar of
 D jurisdiction of Civil Court provides that no suit or other legal proceedings
   shall lie in any civil court in respect of any dispute, question or other
   matter relating to any Wakf, Wakf property or other matter which is
   required by or under this Act to be determined by the Tribunal.
            25. Reading the averments made in the plaint in the light of
 E    aforementioned sections, we are of the·, considered opinion that the
      Tribunal was right in its view in holding that it had the jurisdiction to try
      the suit on merits whereas the High Court was not so in holding the
      otherwise.
            26. In other words, we are of the view that the Tribunal does ·
 F    have jurisdiction to decide the question arising in the suit filed by
      respondent No.6 and, therefore, the Tribunal rightly tried the suit on
      merits. The reasons are not far to seek.
           27. In the first place, the main question involved in the suit was
   whether the suit land is a Wakf property or not. Plaintiff says that it is a
 G Wakf property whereas the defendants say that it is not the Wakf property
   but it is their self property. This question, in our opinion, can be decided
   only by the Tribunal and not by the Civil Court as has been decided by
   this Court consistently in ·Ramesh Gofiindram vs. Sugra Hamayun
   Mirza Waqf, (2010) 8 SCC 726 ~nd Bhanwar Lal & Anr. Vs.
 H Rajasthan Board of Muslim Wakf & Ors., (2014) 16 SCC 51).
  RAJASTBAN WAKF BOARD v. DEVKI NANDAN PATHAK                                  885
           [ABHAY MANOHAR SAPRE, J.]

Second, once the property is declared to be a Wakfproperty, a fortiori, A
whether the sale of such property is made by a person not connected
with the affairs of the Wakf or by a person dealing with the affairs of the
Wakf, the same becomes void by virtue of Section 51 of the Act unless
it is proved that it was made afterobtaining prior permission of the Board
as provided under the Act. One cannot dispute that the matters.falling B
under Sections 51and52 of the Act are also required to be decided by
the Tribunal and hence jurisdiction of the Civil Court to decide such
matters is also barred by virtue of provisions contained in Section 85 of
the Act.
       28. In the light of foregoing discussion, we are unable to concur
with the reasoning and the conclusion arrived at by the High Court as          C
we find that the High Court while deciding the question did not examine
the question in its proper perspective keeping in view the aforementioned
provisions, their scope and the law laid down in the cases referred supra.
       29. As a result, the appeal succeeds and is allowed. The impugned
order is set aside.                                                      D
      30. As a consequence thereof, the matter is remanded to the High
Court for deciding the revision afresh on merits with a view to decide as
to whether the findings of the Tribunal on merits by which the suit was
decreed are correct or not?
                                                                               E
      31. We, however, make it clear that we have not expressed any
opinion on the merits of the case and hence the High Court would now
decide the revision expeditiously on merits strictly in accordance with
law uninfluenced by any of our observations.


Devika Gujral                                                Appeal allowed.