Supreme Court: In a suit for a permanent injunction before a civil court is not barred by Section 85 of the Waqf Act, 1995, the bench of Hemant Gupta and V. Ramasubramanian, JJ has interpreted the provisions of the Waqf Act and had held that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act.
Statutory Scheme
A combined reading of Sections 68(6), 86, 90 and 93 goes to show that the bar of jurisdiction under Section 85 does not apply at least to the following matters, covered by Sections 68(6), 86 and 90:
(i) Whenever a District Magistrate passes an order directing the removed mutawalli or removed members of a Committee of Management to deliver possession of the records, accounts and properties of the waqf, to the successor or successor Committee of Management, any person claiming that he has right, title and interest in the properties specified in the order so passed by the Magistrate can approach a civil court;
(ii) The Board itself may approach a civil court either to set aside the sale in execution of a decree of civil court, of an immovable property which is a waqf property, or to set aside the transfer of any immovable property made by the mutawalli without the sanction of the Board or to recover possession of the property so sold or transferred, as the case may be;
(iii) The mutawalli is also empowered to approach the civil court to recover possession of any immovable property which is a waqf property, but which had been transferred by the previous mutawalli without the sanction of the Board (Section 86);
(iv) A waqf property can be brought to sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, but such a proceeding will be void if no notice thereof is given to the Board [Sections 90(2) & (3)].
After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and lessee of such property, come within the purview of the Tribunal.
Thus, it was seen that the Act itself has created some confusion, leaving the rest to the courts to compound the conundrum and the Amendment Act 27 of 2013 also did not address the problem fully.
While the Waqf Act, 1995 lists certain matters as capable of being adjudicated by the Tribunal, it also makes a specific reference to court/civil Court also in following places:
- Section 83(5) of the Act makes it clear that 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 CPC, while trying a suit or executing a decree or order.
- Sections 86, 90 and 93 makes specific reference to “Court”.
- Section 68(6) goes a step further by making a reference to ‘civil court.
Courts’ approach so far
Normally while interpreting a clause relating to bar of jurisdiction of civil courts in statutory enactments, this court would tend to think, depending upon the language employed, that larger questions could still be decided by civil courts, while smaller questions are to be decided by the special Fora constituted under the Act. But in the case of Waqfs Act, 1995, the reverse has happened, with the courts ruling that if a property is admittedly a waqf property, the Tribunal would have no jurisdiction, though it would have jurisdiction to decide whether or not a property is a waqf property at all.
In view of the language employed in Sections 83 and 85, coupled with the reference to civil courts in Sections 86, 90 and 93, it appears that the question of bar of jurisdiction of the civil court, has been left by the law makers to the vagaries of judicial opinion and this has given rise to conflicting decisions
Waqf Act – Interpreted
A conjoint reading of Sections 6, 7 and 85 would show that the bar of jurisdiction of civil court contained in Section 6(5) and Section 7(2) is confined to Chapter-II, but the bar of jurisdiction under Section 85 is all pervasive. This can be seen from the following distinguishing features:
(i) Section 6(5) bars the institution or commencement of a suit or other legal proceeding in a court “in relation to any question referred to in sub-section (1)”. Sub-section (1) of Section 6 speaks only about two questions namely, whether a particular property specified as a waqf property in the list of waqfs is a waqf property or not and whether a waqf is Shia waqf or Sunni waqf;
(ii) Section 7(2) bars any court, tribunal or other authority from staying any proceeding before the Waqf Tribunal, in respect of a waqf, on the only ground of pendency of any suit, application or appeal or other proceeding. Section 7(2) specifically relates to the proceedings 36 under Section 7 and not to any other proceeding. This is clear by the use of the words, “no proceeding under this Section”. Section 7(1) again deals only with two questions namely, whether a particular property specified as waqf property in the list of waqfs is a waqf property or not and whether a waqf specified in the list is a Shia waqf or Sunni waqf. Therefore, the bar under Section 7(2) is also confined only to these two questions, on account of the use of the words, “no proceeding under this Section”.
(iii) While Sections 6(1) and 7(1) speak only about two questions which are germane to the matters covered by Chapter¬II of the Act alone, Section 85 speaks (i) about any dispute, question or other matter relating to any waqf or waqf property and (ii) about “other matter which is required by or under this Act to be determined by a Tribunal”.
(iv) A major distinguishing feature between Sections 6(1) and 7 (1) on the one hand and Section 83 on the other hand is that the dispute, question or other matter referred to in Sections 6 and 7 are confined only to what is included in the list of waqfs prepared under Section 4 and published under Section 5. The words “specified … in the list of waqfs” found in sections 6 (1) and 7(1), are conspicuous by their absence in section 83 (1). Therefore, it is clear that Sections 6 and 7 speak only about two categories of cases, but Section 83 covers the entire gamut of possible disputes in relation to any waqf or waqf property.
There are 2 limbs to Section 85.
- The words, “any dispute, question or other matter relating to any waqf or waqf property” used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Sections 6(1) and 7(1).
- The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1).
“Unfortunately, many courts were misled by the reference to two specific questions in Sections 6(1) and 7(1), to come to the conclusion that the bar of jurisdiction was confined only to disputes revolving around those two questions.”
However, it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property.
Breaking the first part of Section 83 into two limbs, the Court said that the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property.
Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter
- relating to a waqf; and
- relating to a waqf property.
Hence, stating that the court cannot do violence to the express language of the statute, the Court said,
“To say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).”
[Rashid Wali Beg v. Farid Pindari, 2021 SCC OnLine SC 1003, decided on 28.10.2021]
Counsels
For appellant: Advocate Pradeep Misra
For Respondent: Senior Advocate Pradeep Kant
*Judgment by: Justice V. Ramasubramanian
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