Paragraph numbers below are the court’s original numbering, recovered from the source text.
31. A bare reading of Sections 6 and 7 extracted above, shows that the language employed therein appears to have deflected the attention of many a court without exception. The reason why we say so, is this. A careful look at the scheme of the Act would show that the Act is divided into 9 chapters. Chapter-II which contains Sections 4 to 8, is primarily concerned with the survey of waqfs4. Sections 6 and 7 are incidental to the scheme of Chapter-II alone, which is why they speak only about two questions namely, (i) whether a particular property specified as a 4 The words “waqfs”, has been substituted with the word “auqaf”, by the Amendment Act 27 of 2013. waqf property in the list of waqfs is actually a waqf property or not; and (ii) whether a waqf specified in such list is a Shia waqf or Sunni waqf. While Section 4 contemplates a preliminary survey of all waqfs in the State, Section 5(2) speaks about publication of the list of waqfs (separately for Shia and Sunni) in the official gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only to the aforesaid two questions. In other words, the questions relevant for the purposes of Sections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7.
32. Sections 83 and 85, as well as Sections 86, 90 and 93, which use the word “court”, are to be found in Chapter VIII of the Act. The heading given to Chapter VIII is “Judicial Proceedings”. Therefore, for finding an answer to the question relating to the bar of jurisdiction under Section 85, it is not enough merely to refer to Section 6(5) or Section 7(2). The language of Section 85 is clearly in contrast to the language employed in Section 6(5) and Section 7(2).
33. 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 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 RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.] 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.
34. It is seen that 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).
35. 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.
36. Interestingly, the basis of the decision in Ramesh Gobindram was removed through an amendment under Act 27 of 2013. As we have stated elsewhere, Ramesh Gobindram sought to address the question whether a Waqf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of persons in occupation of what are admittedly waqf properties. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, “eviction of tenant or determination of rights and obligations of the lessor and lessee of such property”.
37. Simultaneously, sub-section (6) was inserted in Section 7 by Act 27 of 2013. This sub-section (6) of Section 7 states that the Tribunal shall have the power of assessment of damages by unauthorized occupation of waqf property and to penalize such unauthorized occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector. It reads as follows: (6) The Tribunal shall have the powers of assessment of 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 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. Ideally, the provisions of sub-section (6) should have found a place somewhere in Section 83, since what is sought to be covered by sub- section (6) of Section 7 has no correlation to the two questions about which Section 7(1) speaks. But the reason why the Parliament thought fit to include something in Section 7, which has no correlation to sub- section (1) of Section 7, is perhaps the fact that Ramesh Gobindram turned primarily on the language of Sections 6 and 7.
38. The upshot of the above discussion is that the basis of Ramesh Gobindram now stands removed through amendment Act 27 of 2013. In fact, when Ramesh Gobindram was decided, Sections 6(1) and 7(1) enabled only three categories of persons to approach the Waqf Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any person interested therein. However, the explanation under Section 6(1) clarified that the expression “any person interested therein” shall include every person, who, though not interested in the waqf, is interested in the property. But 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 RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.] aggrieved”, Act 27 of 2013 has deleted the Explanation under 6(1). This amendment has also addressed the concern expressed in Ramesh Gobindram (in para 21 of the SCC report) whether a non Muslim could be put to jeopardy by the bar of jurisdiction, merely because the property is included in the list of waqfs. We must point out at this stage that the Explanation under sub-section (1) of Section 6, as it stood at the time when Ramesh Gobindram was decided, already took care of this contingency, but was omitted to be brought to the notice of this court.
39. Since Ramesh Gobindram, focused mainly upon the two questions indicated in Sections 6(1) and 7(1) and reached a conclusion that the Tribunal would have no jurisdiction to adjudicate upon disputes concerning properties which are admittedly waqf properties, some of the decisions which followed Ramesh Gobindram took to the extreme view that if a property is admitted to be a waqf property, by both parties, the Waqf Tribunal would not have jurisdiction to adjudicate upon a dispute concerning the said property. Such a conclusion led to an incongruity namely that the Tribunal would have jurisdiction to determine the larger question whether a property is a waqf property or not, but not smaller questions relating to what are admittedly waqf properties. 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.
40. The distinction sought to be drawn on the basis of admission or denial about a property being a waqf property, was also capable of another mischievous result. Take for instance a case where a property is disputed to be a waqf property. Then as per the decision in Ramesh Gobindram, the Waqf Tribunal would have jurisdiction to decide the question whether it is a waqf property or not. Suppose the Tribunal reaches the conclusion that the disputed property is a waqf property, would the Tribunal then continue to have jurisdiction to grant relief or would it be denuded of the jurisdiction, merely because the property was found to be a waqf property ? This is a question for which no answer could be found if we adopt the restrictive interpretation. This is why the subsequent decisions of this Court found an easy way out by distinguishing Ramesh Gobindram. For instance, the decision in Anis Fatma Begum distinguished Ramesh Gobindram on the ground that Ramesh Gobindram was confined to an eviction dispute and that the words “any dispute, question or other matters” appearing in Section 83(1) are words of wide connotation. Similarly, Akkode Jumayath Palli Paripalana Committee, held a suit for permanent injunction to be maintainable before a Waqf Tribunal, on the ground that Ramesh Gobindram, was distinguished in Anis Fatma Begum. Likewise, the ratio in Ramesh Gobindram was held in Kiran Devi to be incapable of being invoked in a case where the original proceeding was first instituted before the Civil Court and it was later transferred to the Waqf Tribunal, which order of transfer had attained finality.
41. Having seen the extent to which this Court followed or distinguished Ramesh Gobindram in subsequent decisions and having seen that the basis of Ramesh Gobindram now stands removed by Act 27 of 2013, let us now turn our attention to the “other matters”, which are required by or under the Act to be determined by the Tribunal. This is for reason that the second limb of Section 85, as we have seen earlier, bars the jurisdiction of any Civil Court, Revenue Court and any other authority, in respect of any dispute, question or other matter which is required by or under this Act to be determined by the Tribunal.
42. The various provisions of the Act which make a reference to the Tribunal and the subject matter in relation to which such a reference is made are presented in a tabular column as follows:- RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.]
43. In sum and substance, the Act makes a reference, to 3 types of remedies, namely that of a suit, application or appeal before the Tribunal, in respect of the following matters:- (i) Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) & 7(1)]; (ii) A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)]; (iii) Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)]; (iv) Challenge to an order for restitution/restoration of the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)]; (v) Conditional attachment of the property of a mutawalli or any other person [Section 35(1)]; (vi) Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)]; (vii) Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)]; RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.] (viii) Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)]; (ix) Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)]; (x) Challenge to an order for delivery of possession of a property issued by the Collector [Section 52(4)]; (xi) Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property (Section 54(3)]; (xii) Challenge to the removal of mutawalli from office [Section 64(4)]; (xiii) Challenge to an order superseding the Committee of Management [Section67(4)]; (xiv) Challenge to the removal of a member of the Committee of Management [Section 67(6)]; (xv) Challenge to any scheme framed by the Board for the administration of waqf, containing a provision for the removal of the mutawalli and the appointment of the person next in hereditary succession [Section 69(3)]; (xvi) Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)]; (xvii) any dispute, question or other matter relating to a waqf {section 83(1)} (xviii) any dispute, question or other matter relating to a waqf property {section 83(1)} (xix) eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property {section 83(1) after its amendment under Act 27 of 2013 } (xx) Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].
44. If the Waqf Act, 1995 had merely stopped with a reference to the matters listed above as capable of being adjudicated by the Tribunal, there would have been no scope for any confusion. But unfortunately, the Act makes a specific reference to court/civil Court also in certain places. We have already seen Sections 86, 90 and 93 making specific reference to “Court”. Section 68(6) goes a step further by making a reference to ‘civil court’ and it reads as follows:- “68. Duty of mutawalli or committee to deliver possession of records, etc.- (1) … … … (2) … … … (3) … … … (4) … … … (5) … … … (6) Nothing contained in this section shall bar the institution of any suit in a competent civil court by any person aggrieved by any order made under this section, to establish that he has right, title and interest in the properties specified in the order made by any Magistrate under sub-section (2)”
45. 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 (this is implicit in Section 86); RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.] (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 [this is implicit in Sections 90(2) & (3)].
46. Thus the Act itself has created some confusion, leaving the rest to the courts to compound the conundrum. Sadly, the Amendment Act 27 of 2013 also did not address the problem fully. The case on hand
47. Having thus seen the statutory scheme, including the confusion created seemingly or schemingly, let us now come back to the facts of the case on hand. As we have seen in paragraph 3 above, the 1st respondent herein filed a suit on the file of a civil court praying for the following reliefs:- (i) A mandatory injunction directing the defendants to remove the door and encroachment made by them behind the shops of the plaintiff and to repair the broken back wall of the plaintiff’s shop; and (ii) A perpetual injunction restraining the defendants from interfering with the plaintiff’s possession of the property described therein.
48. Defendant No.1 who is the appellant herein filed a written statement, admitting that Khasra Plot No.135/3 in respect of which perpetual injunction was sought, was the property of Mirza Abid Ali Beg and that it is a waqf property, of which Riyaz Ahmad was the mutawalli.
49. After admitting the property to be a waqf property, the appellant herein (defendant no.1) filed an application under Order VII, Rule 11 on the sole ground that a suit for injunction could be filed only before the Waqf Tribunal. This application for rejection of plaint was allowed by the Trial Court and the suit was dismissed. The first appellate court confirmed the same but on a second appeal, the High Court set aside the judgments of the Trial Court and the first appellate court with a direction to the Civil Court to proceed in accordance with law. The reasoning of the High Court was that there was no dispute with regard to the property being a waqf property or the nature of the property and that therefore Civil Court will have jurisdiction. Curiously the High Court referred to the decisions in Ramesh Gobindram and Anis Fatma Begum, but held that all those decisions relied upon by the learned counsel for the Respondents were not fully applicable to the facts of the present case.
50. The approach of the High Court, in our considered view, is not in tune with the law. The question as to whether the suit for perpetual injunction is maintainable before the Waqf Tribunal or not, is already answered in Akkode Jumayath Palli Paripalana Committee. This Court, pointed out in the said decision that Ramesh Gobindram was distinguished in Anis Fatma Begum, and that therefore the Tribunal had jurisdiction to entertain a suit for perpetual injunction. But unfortunately, this decision rendered by this Court on 23.07.2013 does not appear to have been brought to the notice of the High Court.
51. It is true that in Punjab Waqf Board vs. Sham Singh Harike, a two member bench of this Court considered Ramesh Gobindram, Anis Fatma Begum as well as Akkode Jumayath Palli Paripalana Committee and doubted in paragraph 43 (of the SCC report) the correctness of the decision in Akkode Jumayath Palli Paripalana Committee on the ground that it was not in accord with the ratio of Ramesh Gobindram. But the said conclusion was on the basis of the observations in Ramesh Gobindram to the effect that unless there is any provision in the Waqf Act to entertain the dispute, the Tribunal cannot have jurisdiction. The relevant portion of Paragraph 43 of Sham Singh Harike reads as follows:- “43. The two-Judge Bench of this Court in the above case held the suit to be maintainable in the Waqf Tribunal and noted that the ratio of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] has been distinguished in Anis Fatma case [W.B. Waqf Board v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC (Civ) 773]. But as per ratio of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] unless there is any provision in the Waqf Act, 1995 to entertain the said dispute only then the Waqf Tribunal has jurisdiction, the suit filed for injunction was not maintainable in the above case. Thus, what is held in the above judgment by the two-Judge Bench is not in accord with the ratio of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] .”
52. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.] into two limbs, 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. 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. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words “any dispute, question or other matter relating to a waqf or waqf property” are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram was sought to be distinguished both in Anis Fatma Begum and Pritpal Singh and such distinction was taken note of in Akkode Jumayath Palli Paripalana Committee. Additionally, this Court in Kiran Devi, refused to apply the ratio of Ramesh Gobindram, on the ground that the suit was originally instituted before the Civil Court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram.
53. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to 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 Section 83(1).
54. In fact, 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. This is why this Court held in Syed Mohideen and Another vs. Ramanathapura Peria Mogallam Jamath and Others5 that the Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 CPC.
55. We must also point out at this stage that all the 14 decisions which we have tabulated in paragraph 13 above, except the one at Sl.No.13, namely Kiran Devi vs. Bihar State Sunni Waqf Board6, are 5 (2010) 13 SCC 62 6 2021 SCC Online SC 280 decisions of two member benches. Kiran Devi was a decision of a three member bench of this Court. In Kiran Devi, an objection to the maintainability of the proceeding before the Waqf Tribunal was raised on the basis of the decision in Ramesh Gobindram. But this court refused to accept it on the ground that once the order of transfer of the suit from the Civil Court to the Waqf Tribunal had attained finality, the question of jurisdiction cannot be raised. If Waqf tribunal had no jurisdiction at all, this court could not have held in Kiran Devi that the order of transfer already passed cannot be undone by accepting this plea. The decision of the three member bench in Kiran Devi is significant in the sense that it recognized the fact that Ramesh Gobindram cannot be used as a magic wand to toss the proceedings relating to a waqf property from one forum to another. The dichotomy created in some decisions of this court, between the properties which are admitted to be waqf properties and properties which are disputed to be so, is on account of the misapplication of the two limited questions in Sections 6(1) and 7(1) to the whole of the Act including section 83. At the cost of repetition we should point out that Section 83(1) provides for the determination of any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property.
56. In the case on hand, the property is admitted to be a waqf property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be ignore the mandate of section 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property. There is also one more issue. In the written statement, the Defendant No.1 has admitted the existence of the waqf and also admitted that the father of the plaintiff by name Riyaz Ahmad is the mutawalli. But the claim of the plaintiff that he is the beneficiary of the waqf has been denied. Therefore, 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. This question has necessarily to be decided by the Tribunal and not the civil court.
57. In view of the above, the appeal is allowed and the judgment and decree of the High Court are set aside. The trial court shall return RASHID WALI BEG v. FARID PINDARI & ORS. [V. RAMASUBRAMANIAN, J.] the plaint to the plaintiff, for presentation to the jurisdictional Waqf Tribunal. Since pleadings are complete, the Waqf Tribunal shall proceed from the stage of framing of issues and dispose of the suit within a period of 6 months. There will no order as to costs. Divya Pandey Appeal allowed.