Supreme Court of India
RAMESH GOBINDRAM (DEAD) THROUGH LRS.versusSUGRA HUMAYUN MIRZA WAKF
- Citation
- 2010 INSC 569
- Decided
- 1 September 2010
- Disposal
- Appeal(s) allowed
- Bench
- MARKANDEY KATJU
Holding
Eviction disputes concerning wakf property are not within the matters required to be determined by the Wakf Tribunal under the Wakf Act, 1995, and therefore such suits remain within the jurisdiction of civil courts, not the Tribunal.
Summary
The Wakf Board filed eviction suits against tenants occupying property identified as wakf, and the Wakf Tribunal held it had jurisdiction to decide the matters, ordering eviction. The High Court of Andhra Pradesh affirmed the Tribunal's orders. The appellants challenged the jurisdiction of the Wakf Tribunal under Section 83 of the Wakf Act, 1995, arguing that eviction disputes should be tried by civil courts. The Supreme Court held that civil courts retain expansive jurisdiction unless expressly barred, and that Sections 6(5) and 85 of the Wakf Act exclude only matters that the Act requires to be determined by the Tribunal, which does not include eviction of tenants. Consequently, the Tribunal lacked jurisdiction, and the eviction suits must be filed in civil courts. The appeals were allowed, setting aside the Tribunal and High Court orders and dismissing the eviction suits.
Issues considered
- Whether the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 has jurisdiction to entertain eviction suits concerning tenants in possession of wakf property.
- Whether Sections 6(5), 7 and 85 of the Wakf Act, 1995 exclude the jurisdiction of civil courts in eviction matters.
- Whether the phrase in Section 85 "required by or under this Act to be determined by a Tribunal" applies to eviction disputes.
- Whether the general rule of civil court jurisdiction can be ousted by implication from the Wakf Act.
Legislation cited
- Code of Civil Procedure, 1908
- Wakf Act, 1995s. 6, s. 7, s. 83, s. 85
Subjects
wakfjurisdictioncivil courttribunalevictionWakf ActSection 85Section 6Section 83civil procedure
Judgment
[2010] 10 S.C.R. 945
RAMESH GOBINDRAM (DEAD) THROUGH LRS. A
V.
SUGRA HUMAYUN MIRZA WAKF
(Civil Appeal No. 1182 of 2006)
SEPTEMBER 1, 2010
B
[MARKANDEY KATJU AND T.S. THAKUR, JJ.]
Wakf Act, 1995 - s. 6(5), 7, 83 and 85- Wakf Tribunal-
Jurisdiction of - To decide eviction suit in respect of wakf
property - Held: The Act does not provide that ·the Wakf C
Tribunal should decide the dispute regarding eviction of
tenant in possession of wakf property- Therefore, Eviction suit
is maintainable before civil court and not before Wakf
Tribunal.
Jurisdiction - Jurisdiction of civil court vis-a-vis Wakf D
Tribunal constituted under Wakf Act - Determination of -
Discussed.
Respondent filed suits seeking eviction of the
appellant-tenant, who was occupying a wakf property. E
Wakf Tribunal holding that it had the jurisdiction to decide
the issue, decreed the eviction suits. In revision petitions,
the High Court affirmed the decree.
In the instant appeals, the question for consideration
was whether the Wakf Tribunal constituted u/s. 83 of the F
Wakf Act, 1995 was competent to entertain and adjudicate
upon disputes regarding eviction of the appellants who
were occupying the wakf property.
Allowing the appeals, the Court
G
HELD: 1. The well-settled rule is that the civil courts
have the jurisdiction to try all suits of civil nature except
those entertainment whereof is expressly or impliedly
barred. The jurisdiction of civil courts to try suits of civil
945 H
•
946 SUPREME COURT REPORTS [2010] 10 S.C.R.
A nature is very expansive. Any statute which excludes
such jurisdiction is, therefore, an exception to the general
rule that all disputes shall be triable by a civil court. Any
such exception cannot be readily inferred by the courts.
The court would lean in favour of a construction that
B would uphold the retention of jurisdiction of the civil
courts and shift the onus of proof to the party that
asserts that civil court's jurisdiction is ousted. Even in
cases where the statute accords finality to the orders
passed by the tribunals, the court will have to see
c whether the tribunal has the power to grant the reliefs
which the civil courts would normally grant in suits filed
before them. If the answer is in negative exclusion of the
civil courts jurisdiction would not be ordinarily inferred.
[Paras 5 and 6) [954-H; 955-A-D]
D Rajasthan SRTC v. Bal Mukund Bairwa (2), (2009) 4
SCC 299; Pabbojan Tea Co. Ltd. v. Dy. Commr (1968) 1 SCR
260; Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003
SC 2508; Dhulabhai v. State of M.P. (1968) 3 SCR 662;
Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536;
E State of A.P. v. Manjeti Laxmi Kantha Rao (2000) 3 SCC 689;
Dhruv Green Field Ltd. v. Hukam Singh and Ors. (2002) 6
SCC 416; Dwarka Prasad Agarwal v. Ramesh Chandra
Agarwala AIR 2003 SC 2696; State of Tamil Nadu v.
RamalingaSamigal Madam AIR 1986 SC 794 - relied on.
F
2. In the instant case, the respondent-Wakf Board who
claims exclusion of jurisdiction of civil court has not
discharged the onus that lay upon it. From a conjoint
reading of the provisions of Sections 6 and 7 of the Wakf
Act, 1995, it is clear that the jurisdiction to determine
.G whether or not a property is a wakf property or whether a
wakf is a Shia wakf or a Sunni wakf, rests entirely with the
tribunal and no suit or other proceeding can be instituted
or commenced in a civil court in relation to any such
question after the commencement of the Act. Under
H
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 947
SUGRA HUMAYUN MIRZA WAKF
Section 6 r/w Section 7, the institution of the civil court is A
barred only in regard to questions that are specifically
enumerated therein. The bar is not complete so as to
extend to other questions that may arise in relation to the
wakf property. [Paras 8 and 12) [956-A-B; 959-F-H; 960-A]
B
Board of Muslim Wakfs Rajasthan v. Radha Kishan and
Ors. (1979) 2SCC 468; Punjab Wakf Board v. Gram
Panchayat alias Gram Sabha (2000) 2 sec 121 - relied on.
3. A plain reading of s. 85 would show that the civil
court's jurisdiction is excluded only in cases where the C
matter in dispute is required under the Act to be
determined by the tribunal. The words "which is required
by or under this Act to be determined by tribunal" holds
the key to the question whether or not all disputes
concerning the wakf or wakf property stand excluded D
from the jurisdiction of the civil court. Whenever a
question arises whether "any dispute, question or other
matter" relating to "any wakf or wakf property or other
matter" falls within the jurisdiction of a civil court, the
answer would depend upon whether any such dispute, E
question or other matter is required under the Act to be
determined by the tribunal constituted under the Act. If
the answer be in the affirmative the jurisdiction of the civil
court would be excluded qua such a question, for in that
case the tribunal alone can entertain and determine any
such question. The bar of jurisdiction contained in
F
Section 85 is in that sense much wider than that
contained in Section 6(5) r/w Section 7 of the Wakf Act.
While the latter bars the jurisdiction of the civil court only
in relation of questions specified in Sections 6(1) and
7(1), the bar of jurisdiction contained in Section 85 would G
exclude the jurisdiction of the civil courts not only in
relation to matters that specifically fall in Sections 6 and
7 but also other matters required to be determined by a
tribunal under the Act. [Para 16] [962-D-H; 963-A-B)
H
948 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 4. Section 85 of the Act clearly bars jurisdiction of the
civil courts to entertain any suit or proceedings in relation
to orders passed by or proceedings that may be
commenced before the tribunal. It follows that although
Section 85 is wider than what is contained in Sections 6
B and 7 of the Act, the exclusion of jurisdiction of civil
courts even u/s. 85 is not absolute. It is limited only to
matters that are required by the Act to be determined by
a tribunal. So long as the dispute or question raised
before the civil court does not fall within four corners of
c the powers vested in the tribunal, the jurisdiction of the
former to entertain a suit or proceedings in relation to any
such question cannot be said to be barred. [Para 18) [963-
H; 964-A-C] .
5. Section 83 of the Act, does not deal with the
D exclusion of the jurisdiction of the civil courts to entertain
civil suits generally or suit of any particular class or
category. The exclusion of civil court's jurisdiction is dealt
with by Section 6(5) and Section 85 of the Act. To
interpret Section 83 as a provision that excludes the-
E jurisdiction of the civil courts is not, therefore, legally
correct, for that provision deals with constitution of
tribunals, the procedure which the tribunals would follow
and matters relating thereto. There is nothing in Section
83 to suggest that it pushes the exclusion of the
F jurisdiction of the civil courts 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 matter relating to a wakf or wakf
G property which does not ipso facto mean that the
jurisdiction of the civil courts stands completely excluded
by reasons of such establishment. The expression "for
the determination of any dispute, question or other matter
relating to a wakf or wakf property" appearing in Section
H 83(1) also appears in Section 85 of the Act. [Paras 19 and
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 949
SUGRA HUMAYUN MIRZA WAKF
21] [964-E-G; 967-0-G] A
6. Section 85 does not, however, exclude the
jurisdiction of the civil courts in respect of any or every
question or disputes only 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 8
relation to only such matters as are required by or under
the Act to be determined by the tribunal. 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 C
the Act or the Rules, required to deal with the matter
sought to be brought before a civil court. If it is not, the
jurisdiction of the civil court is not excluded. But if the
tribunal is required to dedde the matter, the jurisdiction
. of the civil court would stand excluded. [Para 21] [967-G- D
H; 968-A-8]
7. In the instant cases, the Act does not provide for
any proceedings before the Wakf Tribunal for
determination of a dispute concerning the eviction of a E
'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, therefore, be filed only
before the civil court and not before the tribunal. [Para 22]
F
[968-B-C]
T. Shivalingam v. AP. Wakf Tribunal, Hyderabad and
Ors.1999 (3) ALT 602;. P. Rama Rao and Ors. v. High Court
of Andhra Pradesh, rep. by Registrar (Vigilance) and Ors.
2000 (1) ALT 210; Jai Bharat Co-operative Housing Society G
Ltd. v. A.P. State Wakf Board Hyderabad 2000 (5) ALO 743;
Syed Muneer v. Chief Executive Officer and 5 Ors. 2001 (4)
ALO 430; Anjuman A. Burhani v. Daudi Bohra Jamaet,
Registered Society and Anr. AIR 2009 Raj. 150; Wakf
lmambara lmlipura v. Smt. Khursheeda Bi and Ors. AIR 2009 H
•
950 SUPREME COURT REPORTS [2010] 10 S.C.R.
A MP238; Aliyathammada Beethathabiyyapura Pookoya Haji
v. Pattakkal Cheriyakoya and Ors. AIR 2003 Ker. 366;
Surinder Singh v. Punjab Wakf Board and Ors. CR No.32 of
2009(1) - disapproved.
St. Gregarious Orthodox Cathedral, Bangalore v. Aga Ali
8 Asgar Wakf, Bangalore and Anr. 2008 (6) Kar LJ 358;
Saleem v. PA Kareem and Ors. 2008 (2) CTC 492 (Mad);
Suresh Kumar v. Managing Committee 2009 INDLAW All
1770; Abdul Kadar @ Babbu s/o Ismail v. Masjid Juma
Darwaja a registered Public Trust through its Secretary
C Manzoor Mohammad z/o Zahoor Mohammad 2009 (1)
BomCR 498 - affirmed.
Case Law Reference:
1999 (3) ALT 602 Disapproved Para 2
D
2000 (1) ALT 210 Disapproved Para 2
2000 (5) ALO 743 Disapproved Para 2
2001 (4) ALO 430 Disapproved Para 2
E AIR 2009 Raj.150 Disapproved Para 2
AIR 2009 MP 238 Disapproved Para 2
AIR 2003 Ker. 366 Disapproved Para 2
F CR No.32 of 2009(1) Disapproved Para 3
2008 (6) Kar LJ 358 Affirmed Para 3
2008 (2) CTC 492 (Mad) Affirmed Para 3
2009 INDLAW All 1770 Affirmed Para 3
G
2009 (1) BomCR 498 Affirmed Para 3
(2009) 4 sec 299 Relied on Para 6
(1968) 1 SCR 260 Relied on Para 7
H
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 951
SUGRA HUMAYUN MIRZA WAKF
AIR 2003 SC 2508 Relied on Para 7 A
(1968) 3 SCR 662 Relied on Para 7
(1997) 5 sec 536 Relied on Para 7
(2000) 3 sec 689 Relied on Para 7 B
(2002) 6 sec 416 Relied on Para 7
AIR 2003 SC 2696 Relied on Para 7
AIR 1986 SC 794 Relied on Para 7
c
(1979) 2 sec 468 Relied on Para 13
(2000) 2 sec 121 Relied on Para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1182 of 2006. D
From the Judgment & Order dated 03.02.2005 and
04.03,2005 of the High Court of Andhra Pradesh at Hyderabad
in Civil Revision No. 3932 of 2004 and Civil Misc. Petition No.
1022 of 2005.
E
WITH
C.A. Nos. 1183 of 2006 and 3605 of 2008.
P.S .. Narasimha, Yogesh Jagia, Hetu Arora,Amit Sood,
Parmeshwar, Nikhil Mehra, Shishir Deshpande, Amit Yadav (for F
Sujata Kurdukar), R.B. Masodkaqr, Sanjay Hegde, A. Rasheed
Qureshi, Dharmendra Kumar Sinha, Anis Ahmed Khan, Shoaib
Ahmad Khan, Pratap Venugopal, Surekha Raman, Dileep P.
for the appearing parties.
G
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. These three appeals by special leave
arise out of three different orders passed by the High Court of
H
952 SUPREME COURT REPORTS [2010] 10 S.C.R.
A Andhra Pradesh whereby revision petitions filed by the
appellants against the orders of A.P. Wakf Tribunal have been
dismissed and the orders of eviction passed by the Tribunal
affirmed. Since the appeals raise a common question of law
for our determination the same were heard together and shall
B stand disposed of by this common order. The question is
whether the Wakf Tribunal constituted under Section 83 of the
Wakf Act, 1995 was competent to entertain and adjudicate
upon disputes regarding eviction of the appellants who are
occupying different items of what are admittedly Wakf
c properties. The Wakf Tribunal before whom the suits for eviction
of the tenants were filed answered the question regarding its
jurisdiction in the affirmative and decreed the suit filed against
the appellant. Aggrieved by the said orders the appellants filed
revision petitions before the High Court of Andhra Pradesh, inter
alia, contending that the Tribunal was in error in assuming
0
jurisdiction and directing their eviction. Dismissal of the
Revision Petitions by the High Court has led to the filing of the
present appeals as already noticed above.
2. Whether or not the Wakf Tribunal can entertain and
E adjudicate upon a dispute regarding eviction of a tenant holding
wakf property under the Wakf Board, would depend upon the
scheme of the Wakf Act, 1995 and express or implied exclusion
of the jurisdiction of the Civil Courts to entertain any such
dispute. If the Act excludes the jurisdiction of the Civil Courts
F whether such exclusion is absolute and all pervasive or limited
only to a particular class of disputes is also an incidental
question that may have to be addressed. There is a cleavage
in the judicial opinion expressed on these questions by different
High Courts in the country. The High Court of Andhra Pradesh
G has in T. Shivalingam v. A.P. Wakf Tribunal, Hyderabad &
Ors. 1999 (3) ALT 602, P. Rama Rao & Ors. v. High Court of
Andhra Pradesh, rep. by Registrar (Vigilance) and Ors. 2000
(1) ALT 210, Jai Bharat Co-operative Housing Society Ltd. v.
A.P. State Wakf Board, Hyderabad 2000 (5) ALO 743 and
H Syed Muneer v. Chief Executive Officer and 5 Ors. 2001 (4)
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 953
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
ALO 430 taken the view that the Tribunal established under A
Section 83 of the Wakf Act is competent to entertain and
adjudicate upon all kinds of disputes so long as the same relate
to any wakf property. So also the High Court of Rajasthan in
Anjuman A. Burhani v. Daudi Bohra Jamaet, Registered
Society and Anr. AIR 2009 Raj. 150 has taken the view that, B
the very purpose of creating a Tribunal under the Wakf Act would
be defeated if the jurisdiction of the Tribunal is construed in a
narrow sense. A similar view has been expressed by the High
Court of Madhya Pradesh in Wakf lmambara lmlipura v. Smt.
Khursheeda Bi & Ors. AIR 2009 MP 238. The High Court of c
Kerala in Aliyathammada Beethathabiyyapura Pookoya Haji
v. Pattakkal Cheriyakoya & Ors. AIR 2003 Ker. 366 and the
High Court of Punjab & Haryana in Surinder Singh v. Punjab
Wakf Board & Ors., CR No.32 of 2009(1) have also taken a
similar view. D
3. A contrary view has been expressed by the High Court
of Karnataka in St. Gregarious Orthodox Cathedral, Bangalore
v. Aga Ali Asgar Wakf, Bangalore and Anr. 2008 (6) KarLJ
358 and by the High Court of Madras in Saleem v. PA Kareem
& Ors. 2008 (2) CTC 492 (Mad). The High Court of Allahabad E
in Suresh Kumar v. Managing Committee 2009 INDLAW All
1770 has concurred with that line of reasoning. The High Court
of Bombay in Abdul Kadar @ Babbu s/o Ismail v. Masjid
Juma Darwaja a registered Public Trust through its Secretary
Manzoor Mohammad z/o Zahoor Mohammad 2009 (1) F
BomCR 498 has also taken the view that in cases where the
dispute is not regarding the nature of the property, it is a civil
dispute which can be determined only by the competent Civil
Court and not by the Tribunal constituted under Section 83 of
the Act. We shall presently advert to the reasoning and the G
views taken by the High Courts in the decisions mentioned
above. But before we do so, we need to briefly refer to the
scheme of the Wakf Act, 1995 and the historical background
in which the same was enacted.
H
954 SUPREME COURT REPORTS [2010) 10 S.C.R.
A 4. Wakfs and matters relating thereto were for a long time
governed by the Wakf Act, 1954. The need for a fresh
legislation on the subject was, however, felt because of the
deficiencies nOtTced in the working of the said earlier
enactment especially those governing the Wakf Boards, their
B power of superintendence and control over the management
of individual wakfs. Repeated amendments to the 1954 Act,
having failed to provide effective answers to the questions that
kept arising for consideration, the Parliament had to bring a
comprehensive legislation in the form of Wakf Act 1995 for
c better administration of wakfs and matters connected therewith
or incidental thereto. Chapter I of. the 1995 Act deals with
Preliminaries like definitions, title, extent and commencement
and application of this Act. Chapter II provides for preliminary
survey of wakfs, publication of list of wakfs, disputes regarding
wakfs and also the powers of the Tribunal to determine such
0
disputes. Chapter Ill deals with Central Wakf Council while
Chapter IV deals with establishment of Boards and their
functions. Chapter V, VI and VII regulate the registration of
Wakfs and maintenance of accounts thereof and the finances
of the Wakf Board. Chapter VIII, with which the controversy at
E hand is more intimately connected deals with judicial
proceedings and, inter alia, provides for constitution of tribunals
and adjudication of disputes by them as well as exclusion of
jurisdiction of Civil Courts. Chapter IX is a miscellaneous
chapter that confers power on the Central Government to
F regulate the secular activities of wakfs and empowers the State
Government to issue directions apart from other provisions like
establishment and reorganization and establishment of boards.
5. Before we take up the core issue whether the
G jurisdiction of Civil Court to entertain and adjudicate upon
disputes regarding eviction of wakf property stands excluded
under the Wakf Act we may briefly outline the approach that the
Courts have to adopt while dealing with such questions. The
well-settled rule in this regard is that the Civil Courts have the
H jurisdiction to try all suits of civil nature except those
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 955
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
entertainment whereof is expressly or impliedly barred. The A
jurisdiction of Civil Courts to try suits of civil nature is very
expansive. Any statue which excludes such jurisdiction is,
therefore, an exception to the general rule that all disputes shall
be triable by a Civil Court. Any such exception cannot be
readily inferred by the Courts. The Court would, lean in favour B
of a construction that would uphold the retention of jurisdiction
of the Civii Courts and shift the OO!JS of proof to the party that
asserts that Civil Court's jurisdiction is ousted.
6. Even in cases where the statute accords finality to the
orders passed by the Tribunals, the Court will have to see C
whether the Tribunal has the power to grant the reliefs which
the Civil Courts would normally grant in suits filed before them.
If the answer is in negative exclusion of the Civil Courts
jurisdiction would not be ordinarily inferred. In Rajasthan SRTC
v. Bal Muf<und Bairvva (2), (2009) 4 SCC 299, a three-Judge D
Bench of this Court observed:
"There is a presumption that a civil court has jurisdiction.
Ouster of civil court's jurisdiction is not to be readily
inferred. A person taking a plea contra must establish the E
same. Even in a case where jurisdiction of a civil court is
sought to be barred under a statute, the civil court can
exercise its jurisdiction in respect of some matters
particularly when the statutory authority or tribunal acts
without jurisdiction." F
7. To the same effect are the decisions of this Court in
Pabbojan Tea Co. Ltd. v. Dy. Commr (1968) 1 SCR 260,
Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 SC
2508, Dlwlabhai v. State of MP. (1968) 3 SCR 662, Mafatlal
Industries Ltd. v. Union of India, (1997) 5 SCC 536, State of G
A.P. v. Manjeti Laxmi Kantha Rao (2000) 3 SCC 689, Dhruv
Green Field Ltd. v. Hukam Singh and Ors. (2002) 6 SCC 416,
Dwarka Prasad Agarvval v..Ramesh Chandra Agarwala, AIR
2003 SC 2696 and State of Tamil Nadu v. Ramalinga
Samigal Madam AIR 1986 SC 794. H
956 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 8. Let us now see whether the respondent-Wakf Board
who claims exclusion of jurisdiction of Civil Court has
discharged the onus that lay upon it: Section 6 of the Act which
bears direct relevance to that question may at this stage be
extracted:
B
"Section 6. Disputes regarding wakfs.-
(1) If any question arises whether a particular property
specified as wakf property in the list of wakfs is wakf
property or not or whether a wakf specified in such list is
c 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:
D
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
E Section 7, the expression "any person interested therein",
shall, in relation to any property specified as wakf property
in the list of wakfs published arter the commencement of
this Act, shall include also every person who, though not
interested in the wakf concerned, is interested in such
F property and to whom a reasonable opportunity had been/
afforded to represent his case by notice served on him in
that behalf during the course of the relevant inquiry under
Section 4.
(2) Notwithstanding anything contained in sub-section (1 ),
G
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
H
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 957
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
(3) The Survey Commissioner shall not be made a party 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 ofwakfs shall, unless it is modified in pursuance
of a decision of 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 )."
9. A plain reading of sub-section (5) of Section 6 (supra) D
would show that the Civil Court's jurisdiction to entertain any
suit or other proceedings stands specifically excluded in
relation to any question referred to in sub-section (1 ). The
exclusion it is evident from the language employed is not
absolute or all pervasive. It is limited to the adjudication of the E
question (a) whether a particular property specified as wakf
property in the list of wakfs is or is not a wakf property, and (b)
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 in the wakf is competent to institute a suit in a Tribunal
F
for a decision on the above question or questions, which
decision shall then be final provided that no such suit can be
entertained by the Tribunal after the expiry of one year from the
date of the publication of the list of wakfs.
10. We may at this stage refer to Section 7 of the Act which G
provides for the forum for determination of questions referred
to therein and arising after the commencement of this Act. What
is important is that the questions referred to in Section 7(1) are
the very same questions that are referred to in Section 6(1) with
the only difference that Section 7(1) refer to the said questions H
958 SUPREME COURT REPORTS [2010) 10 S.C.R.
A arising after the commencement of the Act. Section 7 is
extracted below:
"Section 7. Power of Tribunal to determine disputes
regarding wakfs.-
8
(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
c interested therein, may apply to the Tribunal having
jurisdiction in relation to such property, for the decision of
the question andJhe decision of the Tribunal thereon shall
be final:
D Provided that -
(a) in a case of the list of wakfs 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 the date of publication of the list of wakfs;
E
and
(b) in the case of the list of wakfs to any part of the State
and published at any time within a period of one year
immediately preceding the commencement of this Act,
F 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, the Tribunal shall
G
not re-open 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
H Court. Tribunal or other authority by reason only of the
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 959
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
pendency of any suit, application or appeal or other A
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). B
(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 C
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 D
proceeding or of any application for revision or review
arising out of such suit, proceeding or appeal, as the case
may be."
11. Second proviso to Section 7(1) accords finality to the
judgments of the Civil Court in suits instituted before such
E
commencement. Sub-section (5) to Section 7 excludes from the
jurisdiction of the Tribunal any dispute which is the subject
matter of a suit in a Civil Court instituted before the
commencement of the Act.
F
12. From a conjoint reading of the provisions of Sections
6 and 7 (supra) it is clear that the jurisdiction to determine
whether or not a property is a wakf property or whether a wakf
is a Shia wakf or a Sunni wakf rests entirely with the Tribunal
and no suit or other proceeding can be instituted or commenced G
in a Civil Court in relation to any such question after the
commencement of the Act. What is noteworthy is that under
Section 6 read with Section 7 (supra) the institution of the Civil
Court is barred only in regard to questions that are specifically
enumerated therein. The bar is not complete so as to extend H
960 SUPREME COURT REPORTS [2010] 10 S.C.R.
A to other questions that may arise in relation to the wakf property.
13. We may at this stage usefully digress from the core
issue only to highlight the fact that Sections 6(1) and the proviso
thereto has fallen for interpretation of this Court on a few
occasions. In Board of Muslim Wakfs Rajasthan v. Radha
8
Kishan and Ors. (1979) 2 SCC 468 one of the questions that
fell for determination was, who are the parties that could be
taken to be concerned in a proceeding under sub-section(1)
of Section 6 of the Act. This Court held that under Section 6(1)
the Board or the mutawalli of the wakf or any person interested
C therein is entitled to file a suit but the word "therein" following
the expression "any person interested" must necessarily refer
to the word "wakf which immediately precedes it. The object
underlying the proviso observed, this Court was to confine the
power to file a suit to the mutawalli and persons interested in
D the Wakf. It did not extend to persons who are not persons
interested in the wakf. Consequently the right, title and interest
of a stranger, (a non-Muslim), to the wakf in a property cannot
be put in jeopardy merely because that property is included in
the list of wakfs. The special rule of limitation prescribed by the
E proviso to Section 6(1) was itself held inapplicable to him and
a suit for declaratiQn of title to any property included in the list
of wakfs held maintainable even after the expiry of the period
of one year. The following passage from the decision is in this
regard apposite:
F
'The question that arises for consideration, therefore,
is as to who are the parties that could be taken to be
concerned in a proceeding under sub-section (1) of
Section 6 of the Act, and whether the list published under
sub-section (2) of Section 5 declaring certain property to
G be wakf property, would bind a person who is neither a
mutawalli nor a person interested in the wakf.
The answer to these questions must turn on the true
meaning and construction of the word 'therein' in the
H expression 'any person interested therein' appearing in
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 961
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
sub-section (1) of Section 6. In order to understand the A
meaning of the word 'therein' in our view, it is necessary
to refer to the preceding words 'the Board or the mutawalli
of the wakf. The word 'therein' must necessarily refer to
the 'wakf which immediately precedes it. It cannot refer
to the 'wakf property'. Sub-section (1) of Section 6 B
enumerates the persons who can file suits and also the
questions in respect of which such suits can be filed. In
enumerating the persons who are empowered to file suits
under this provision, only the Board, the mutawalli of the
wakf, and 'any person interested therein', thereby c
necessarily meaning any person interested in the wakf, are
listed. It should be borne in mind that the Act deals with
wakfs, its institutions and its properties. It would, therefore,
be logical and reasonable to infer that its provisions
empower only those who are interested in the wakfs, to D
( institute suits. Xxl<XXXXXXX>OOCOO<XXX:xx>OOCXXX)()()OOCOO<XXX:xx>OO<
'1 It follows that where a stranger who is a non-Muslim and
},is in possession of a certain property his right, title and
interest therein cannot be put in jeopardy merely because
the property is included in the list. Such a person is not
E
required to file a suit for a declaration of his title within a
period of one year. The special rule of limitation laid down
in proviso to sub-section("' of Section 6 is not applicable
to him. In other words, the list published by the Board of
Wakfs under sub-section (2) of Section 5 can be
challenged by him by filing a suit for declaration of title even F
after the expiry of the period of one year, if the necessity
of filing such suit arises."
14. To the same effect is the decision of this Court in
Punjab Wakf Board v. Gram Panchayat Alias Gram Sabha G
(2000) 2 sec 121.
15. The exclusion of the jurisdiction of the Civil Courts to
adjudicate upon disputes whether a particular property
specified in the v.(akf list is or is not a wakf property or whether
H
962 SUPREME COURT REPORTS [2010] 10 S.C.R.
A a wakf specified in list is a Shia wakf or a Sunni wakf is clear
and presents no difficulty whatsoever. The difficulty, however,
arises on account of the fact that apart from Section 6(5) which
bars the jurisdiction of the Civil Courts to determine matters
referred to in Section 6(1 ), Section 85 of the Act also bars the
B jurisdiction of the Civil Courts to entertain any legal proceedings
in respect of any dispute, question or matter relating to a wakf
property. Section 85 of the Act reads:
"85. Bar of jurisdiction of Civil Courts - No suit or other
legal proceedings shall lie in any Civil Court in respect of
c 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."
16. A plain reading of the above would show that the Civil
D Court's jurisdiction is excluded only in cases where the matter
in dispute is required under the Act to be determined by the
Tribunal. The words "which is required by or under this Act to
be determined by Tribunal" holds the key to the question
whether or not all disputes concerning the wakf or wakf property
E stand excluded from the jurisdiction of the Civil Court. Whenever
a question arises whether "any dispute, question or other
matter" relating to "any wakf or wakf property or other matter''
falls within the jurisdiction of a Civil Court the answer would
depend upon whether any such dispute, question or other
F matter is required under the Act to be determined by the
Tribunal constituted under the Act. If the answer be in the
affirmative, the jurisdiction of Civil Court would be excluded qua
such a question, for in that case the Tribunal alone can entertain
and determine any such question. The bar of jurisdiction
G contained in Section 85 is in that sense much wider than that
contained in Section 6(5) read with Section 7 of the Wakf Act.
While the latter bars the jurisdiction of the Civil Court only in
relation of questions specified in Sections 6(1) and 7(1), the
bar of jurisdiction contained in Section 85 would exclude the
jurisdiction of the Civil Courts not only in relation to matters that
H
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 963
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
specifically fall in Sections 6 and 7 but also other matters A
required to be determined by a Tribunal under the Act. There
are a host of such matters in which the Tribunal exercises
original or appellate jurisdiction. To illustrate the point we may
usefully refer to some of the provisions of the Act where the bar
contained in the said section would get attracted. Section 33 B
of the Act deals with the power of inspection by a Chief
Executive Officer or person authorized by him. In the event of
any failure or negligence on the part of a mutawalli in the
performance of his duties leading to any loss or damage, the
Chief Executive Officer can with the prior approval of the Board c
pass an order for the recovery of the amount or property which
has been misappropriated, misapplied or fraudulently retained.
Sub-section (4) of Section 33 then entitles the aggrieved person
to file an appeal to the Tribunal and empowers the Tribunal to
deal with and adjudicate upon the validity of the orders pass.ed
D
by the Chief Executive Officer.
17. Similarly under Section 35 the Tribunal may direct the
mutawalli or any other person concerned to furnish security or
direct conditional attachment of the whole or any portion of the
property so specified. E
18. Section 47 of the Act requires the accounts of the
wakfs to be audited whereas SE. ... :ion 48 empowers the Board
to examine the audit report, and to call for an explanation of
any person in regard to any matter and pass such orders as it F
may think fit including an order for recovery of the amount
certified by fhe auditor under Section 47(2) of the Act. The
mutawalli or any other person aggrieved by any such direction
has the right to appeal to the Tribunal under Section 48. Similar
provisions giving powers to the Wakf Board to pass orders in G
respect of matters stipulatE:ld therein are found in Sections 51,
54, 61, 64, 67, 72 and 73 of the Act. Suffice it to say that there
are a host of questions and matters that have to be determined
by the Tribunal under the Act, in relation to the wakf or wakf
property or other matters. Section 85 of the Act clearly bars
H
_964 SUPREME COURT REPORTS [2010] 10 S.C.R.
A jurisdiction of the Civil Courts to entertain any suit or
proceedings in relation to orders passed by or proceedings that
may be commenced before the Tribunal. It follows that although
Section 85 is wider than what is contained in Sections 6 and
7 of the Act, the exclusion of jurisdiction of Civil Courts even
B under Section 85 is not absolute. It is limited only to matters
that are required by the Act to be determined by a Tribunal. So
long as the dispute or question raised before the Civil Court
does not fall within four corners of the powers vested in the
Tribunal, the jurisdiction of the former to entertain a suit or
C proceedings in relation to any such question cannot be said to
be barred.
19. The High Courts of Andhra Pradesh, Rajasthan,
Madhya Pradesh, Punjab and Haryana have in the decisions
to which we have made reference in the earlier part of this
D judgment taken the view that the jurisdiction of the Civil Courts
is barred in respect of disputes that concerns with any wakf or
wakf property. The decisions rendered by these High Courts
draw support for that conclusion from Section 83 of the Wakf
Act, 1995. The language employed in Section 83 of the Act has
E been understood to be so wide as to include any dispute,
question or other matter relating to a wakf or wakf property.
Section 83 of the Act, however, does not deal with the exclusion
of the jurisdiction of the Civil Courts to entertain civil suits
generally or suit of any particular class or category. The
F exclusion of Civil Court's jurisdiction is dealt with by Section
6(5) and Section 85 of the Act. To interpret Section 83 as a
provision that excludes the jurisdiction of the Civil Courts is not,
therefore, legally correct, for that provision deals with
constitution of Tribunals, the procedure· which the Tribunals
G would follow and matters relating thereto. It reads:
"83. Constitution of Tribunals, etc.
(1) The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals, as it may
H think fit, for the determination of any dispute, question or
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 965
SUGRA HUMAYUN MIRZA WAKF [TS. THAKUR, J.]
other matter relating to a wakf or wakf property under this A
Act and define the local limits· and jurisdiction under this
Act of each of such Tribunals.--::=.::>
(2) Any mutawalli person interested in awakf or any other
person aggrieved by an order made under this Act, or rules
8
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.
c
(3) Where any application made under sub- section (1)
relates to any wakf 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
limits of whose jurisdiction the mutawalli or any one of the D
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 E
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 Jribunal F
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 G
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
application· afresh. H
966 SUPREME COURT REPORTS [2010] 10 S.C.R.
A (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.
B
(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.
c (6) Notwithstanding anything contained in the Code of Civil
Procedure, 1908, (5of1908), the Tribunal shall follow such
procedure as, may be prescribed.
(7) The decision of the Tribunal shall be final and binding
D 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
E of Civil Procedure, 1908 (5 of 1908).
(9) No appeal shall he 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
F
or on the application of the Board or any person 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
G may confirm, reverse or modify such determination or pass
such other order as it may think fit."
20. It is clear from sub-section(1) above that the State
Government is empowered to establish as many Tribunals as
H it may deem fit for the determination of any dispute, question
RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. 967
SUGRA HUMAYUN MIRZA WAKF [T.S. THAKUR, J.]
or other matter relating to a wakf or wakf property under the A
Act and define the local limits of their jurisdiction. Sub-section
(2) of Section 83 permits any mutawalli or other person
interested in a wakf or any person aggrieved of an order made
under the Act or the rules framed thereunder to approach the
Tribunal for determination of any dispute, question or other B
matter relating to the wakf. What is important is that the Tribunal
can be approached only if the person doing so is a mutawalli
or a person interested in a wakf or aggrieved by an order
made under the Act or the rules. The remaining provisions of
Section 83 provide for the procedure that the Tribunal shall c
follow and the manner in which the decision of a Tribunal shall
be executed. No appeal is, however, maintainable against any
such order although the High Court may call for the records and
decide about the correctness, legality or propriety of any
determination made by the Tribunal.
D
21. There is, in our view, nothing in Section 83 to suggest
that it pushes the exclusion of the jurisdiction of the Civil Courts
extends 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 E
determination of any dispute, question of other 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. It is noteworthy that the
expression "for the determination of any dispute, question or F
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 because
the same relates to a wakf or a wakf property. Section 85 in G
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. 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 H
968 SUPREME COURT REPORTS [2010) 10 S.C.R.
A 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 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.
B
22. In the cases at hand the Act does not provide for any
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
C from what is admittedly wakf property could, therefore, be filed
only before the Civil Court and not before the Tribunal. The
contrary view expressed by the Tribunal and the High Court of
Andhra Pradesh is not, therefore, legally sound. So also the
view taken by the High Courts of Rajasthan, Madhya Pradesh,
D Kerala and Punjab and Haryana in the decisions referred to
earlier do not declare the law correctly and shall to the extent
they run counter to what we have said hereinabove stand
overruled. The view taken by the High Courts of Allahabad,
Karnataka, Madras and Bombay is, however, affirmed.
E
23. In the result these appeals succeed and are hereby
allowed. The impugned orders passed by the High Court and
those passed by the Wakf Tribunal shall stand set aside and
the suit filed by the respondent-Wakf Board for the eviction of
F the appellants dismissed leaving the parties to bear their own
costs. We make it clear that this order shall not prevent the Wakf .
Board from instituting, if so advised, appropriate civil action·
before the competent Civil Court for redress in accordance with
law. No costs.
K.K.T Appeals allowed.
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