| Headnote |
Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act 27 of 2013 – Suit for permanent injunction in respect of a waqf property filed before civil court, if maintainable – Held: Words in s.83(1) “any dispute, question or other matter relating to a waqf or waqf property” cover any dispute, question or other matter relating to a waqf property – Court cannot do violence to the express language of the statute – s.83(1) even as it stood before the amendment, provided for the determination by the Waqf Tribunal, of any dispute, question or other matter relating to a waqf and a waqf property – Therefore, 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 s.83(1) – Dichotomy created in some decisions of Supreme Court, between the properties admitted to be waqf properties and disputed to be so, is on account of the misapplication of the two limited questions in ss.6(1) and 7(1) to the whole of the Act including s.83 – In the present case, the property is admittedly a waqf property – To allow the respondent-plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent and mandatory injunction from a civil court, would be to ignore the mandate of ss.83 and 85 – Approach of the High Court not in tune with the law laid down by Supreme Court – Further, a question as to the nature of the waqf and whether the plaintiff is a beneficiary of the waqf, has also arisen in this case which question has necessarily to be decided by the Tribunal and not the civil court – Trial court to return the plaint to the plaintiff, for presentation to the jurisdictional Waqf Tribunal – Judgment of High Court set aside – Code of Civil Procedure, 1908 – Or.39, r.1 – Mussalman Waqf Validating Act, 1913 – Mussalman Waqf Act 1923 – Waqf Act 1954. Waqf Act, 1995 – ss.85, 86, 89 and 90 – Bar of jurisdiction u/s.85 – Held: The 1995 Act makes a specific reference to court/civil Court also in certain places – ss.86, 90 and 93 make specific reference to “Court” – s.68(6) goes a step further by making a reference to ‘civil court’ – A cumulative reading of ss.86, 89 and 90 shows that the bar of jurisdiction u/s.85 is not total and omnipotent and there may be cases which could still be entertained by civil courts. Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act 27 of 2013 – Held: Act 27 of 2013 did 2 things – First it expanded the jurisdiction of Waqf Tribunal even to cover landlord-tenant disputes and the rights and obligations of lessor and lessee – Second, it enlarged the bar of jurisdiction, to cover even revenue courts and other authorities. Waqf Act, 1995 – ss.6(1), 7(1) – Held: By Act 27 of 2013 the words, “any person interested” were substituted by the words, “any person aggrieved”, meaning thereby that even a non Muslim is entitled to invoke the jurisdiction of the Tribunal – Due to the substitution of the words “any person aggrieved”, Act 27 of 2013 has deleted the Explanation u/s.6(1). Waqf Act, 1995 – ss.83, 85 and 86 – Special provision u/s.86 – Held: Dehors the jurisdiction conferred upon the Tribunal u/s.83(1) and dehors the bar of jurisdiction of the civil court, revenue court and any other authority u/s.85, the 1995 Act contains a special provision in s.86 for the appointment by the civil court, of a Receiver, in certain cases – It is clear from s.86, that in suits or other proceedings instituted by the Board falling u/clause (a) or those instituted by the mutawalli falling u/clause (b) of s.86, the civil court will have jurisdiction to appoint a receiver – As a corollary, the bar u/s.85 will have no application to cases covered by s.86. Waqf Act, 1995 – ss.83, 85, 86, 90 and 93 – Question of bar of jurisdiction of the civil court – Determination of – Held: In view of the language employed in ss.83 and 85, coupled with the reference to civil courts in ss.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, 1995 – s.83 – Code of Civil Procedure, 1908 – Or.39, r.1 – Held: s.83(5) makes it clear that the Waqf 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 – The Tribunal will have power to issue temporary injunctions u/Or. 39, r.1, CPC. Waqf Act, 1995 – ss.6, 7 and 85 – Held: A conjoint reading of ss.6, 7 and 85 would show that the bar of jurisdiction of civil court contained in s.6(5) and s.7(2) is confined to Chapter-II, but the bar of jurisdiction u/s.85 is all pervasive – Distinguishing features enumerated. Words & Phrases – “any dispute, question or other matter relating to a waqf or waqf property” in s.83(1) – Discussed – Waqf Act, 1995. |
