RASHID WALI BEG versus FARID PINDARI & ORS.

[2021] 13 S.C.R.1

RASHID WALI BEG

FARID PINDARI & ORS.

(Civil Appeal No. 6336 of 2021)

OCTOBER 28, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act27 of 2013 – Suit for permanent injunction in respect of waqfproperty filed before civil court, if maintainable – Held: Words ins.83(1) “any dispute, question or other matter relating to waqf orwaqf property” cover any dispute, question or other matter relatingto waqf property – Court cannot do violence to the expresslanguage of the statute – s.83(1) even as it stood before theamendment, provided for the determination by the Waqf Tribunal,of any dispute, question or other matter relating to waqf and awaqf property – Therefore, to say that the Tribunal will havejurisdiction only if the subject property is disputed to be waqfproperty and not if it is admitted to be waqf property, is indigestiblein the teeth of s.83(1) – Dichotomy created in some decisions ofSupreme Court, between the properties admitted to be waqfproperties and disputed to be so, is on account of the misapplicationof the two limited questions in ss.6(1) and 7(1) to the whole of theAct including s.83 – In the present case, the property is admittedlya waqf property – To allow the respondent-plaintiff to ignore theWaqf Tribunal and to seek decree of permanent and mandatoryinjunction from civil court, would be to ignore the mandate ofss.83 and 85 – Approach of the High Court not in tune with the lawlaid down by Supreme Court – Further, question as to the natureof the waqf and whether the plaintiff is beneficiary of the waqf,has also arisen in this case which question has necessarily to bedecided by the Tribunal and not the civil court – Trial court to returnthe plaint to the plaintiff, for presentation to the jurisdictional WaqfTribunal – Judgment of High Court set aside – Code of CivilProcedure, 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 jurisdictionu/s.85 – Held: The 1995 Act makes specific reference to court/

Acivil Court also in certain places – ss.86, 90 and 93 make specificreference to “Court” – s.68(6) goes step further by making areference to ‘civil court’ – cumulative reading of ss.86, 89 and 90shows that the bar of jurisdiction u/s.85 is not total and omnipotentand there may be cases which could still be entertained by civilcourts.B

Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act27 of 2013 – Held: Act 27 of 2013 did 2 things – First it expandedthe jurisdiction of Waqf Tribunal even to cover landlord-tenantdisputes and the rights and obligations of lessor and lessee –Second, it enlarged the bar of jurisdiction, to cover even revenueCcourts and other authorities.

Waqf Act, 1995 – ss.6(1), 7(1) – Held: By Act 27 of 2013 thewords, “any person interested” were substituted by the words, “anyperson aggrieved”, meaning thereby that even non Muslim isentitled to invoke the jurisdiction of the Tribunal – Due to theDsubstitution of the words “any person aggrieved”, Act 27 of 2013has 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 Tribunalu/s.83(1) and dehors the bar of jurisdiction of the civil court, revenueEcourt and any other authority u/s.85, the 1995 Act contains specialprovision in s.86 for the appointment by the civil court, of Receiver,in certain cases – It is clear from s.86, that in suits or otherproceedings instituted by the Board falling u/clause (a) or thoseinstituted by the mutawalli falling u/clause (b) of s.86, the civil courtFwill have jurisdiction to appoint receiver – As corollary, the baru/s.85 will have no application to cases covered by s.86.Waqf Act, 1995 – ss.83, 85, 86, 90 and 93 – Question of barof jurisdiction of the civil court – Determination of – Held: In viewof the language employed in ss.83 and 85, coupled with the referenceto civil courts in ss.86, 90 and 93, it appears that the question ofGbar of jurisdiction of the civil court, has been left by the law makersto the vagaries of judicial opinion and this has given rise toconflicting 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 TribunalH

shall be deemed to be Civil Court and shall have the same powersas may be exercised by Civil Court under the CPC, while trying asuit or executing decree or order – The Tribunal will have powerto issue temporary injunctions u/Or. 39, r.1, CPC.

Waqf Act, 1995 – ss.6, 7 and 85 – Held: conjoint readingof ss.6, 7 and 85 would show that the bar of jurisdiction of civilcourt contained in s.6(5) and s.7(2) is confined to Chapter-II, butthe bar of jurisdiction u/s.85 is all pervasive – Distinguishingfeatures enumerated.

Words & Phrases – “any dispute, question or other matterrelating to waqf or waqf property” in s.83(1) – Discussed – WaqfAct, 1995.

Allowing the appeal, the Court

HELD: 1.1 The words “eviction of tenant or determinationof rights and obligations of the lessor and the lessee of such property”were inserted in sub-section (1) of Section 83, after the words“waqf property”, by Amendment Act 27 of 2013. Similarly, thewords, “civil court” were substituted by the words “civil court,revenue court and other authority”, in Section 85, by AmendmentAct 27 of 2013. Thus, Act 27 of 2013 did 2 things. First it expandedthe jurisdiction of Waqf Tribunal even to cover landlord-tenantdisputes and the rights and obligations of lessor and lessee.Second, the Amendment Act enlarged the bar of jurisdiction, tocover even revenue courts and other authorities. Sub-section(2) of Section 83 of the 1995 Act indicates the persons who areentitled to invoke the jurisdiction of the Tribunal. They are, (i)any mutawalli of the waqf; (ii) person interested in the waqf; or(iii) any other person aggrieved by any order made under the Actor Rules or any order made there under. [Paras 17-20][20-F-H;21-A-B]

1.2 Dehors the jurisdiction conferred upon the Tribunalunder Section 83(1) and dehors the bar of jurisdiction of the civilcourt, revenue court and any other authority under Section 85,the 1995 Act contains special provision in Section 86 for theappointment by the civil court, of Receiver, in certain cases.Section 86 thus recognises the right of the Board to institute orcommence any suit or other legal proceeding, (i) to set aside the

Asale of waqf property in execution of decree of civil court;(ii) to set aside the transfer of any waqf property made by themutawalli, without the sanction of the Board or otherwise thanin accordance with the sanction of the Board; and (iii) to recoverand restore possession of such property to the mutawalli. Clause(b) of Section 86 recognises similar right for the mutawalli toBrecover possession of waqf property, which has been transferredby the previous mutawalli or any other person without the sanctionof the Board. It is therefore clear from Section 86, that in suits orother proceedings instituted by the Board falling under clause(a) or those instituted by the mutawalli falling under clause (b) ofCSection 86, the civil court will have jurisdiction to appoint areceiver. As corollary, the bar under Section 85 will have noapplication to cases covered by Section 86. Apart from the bar ofjurisdiction of civil courts under Section 85, the Act envisagesyet another bar under Section 88. Section 88 excludes thejurisdiction of civil court to entertain challenge to anyDnotification or order or decision made, proceeding or action takenby the Central Government or the State Government under theAct. [Paras 21-24][21-C; 22-B-F]1.3 Section 89 of the Waqf Act, 1995 contains rule similarto Section 80 CPC, in respect of suits instituted against the Board.ESection 90 which regulates the procedure for the issue of noticeof suits, refers both to courts and tribunals. Sub-section (1) ofSection 90 uses the words, “the court or Tribunal” and it refersto suit or proceeding relating to title to or possession of waqfproperty or the right of the mutawalli or beneficiary. cumulativeFreading of Sections 86, 89 and 90 would show that the bar ofjurisdiction under Section 85 is not total and omnipotent and thatthere may be cases which could still be entertained by civil courts.In fact, Section 93 which prohibits the mutawalli from enteringinto compromise with the opposite party in any suit, also refersto “court”. [Paras 25-27][22-G-H; 23-E-F]G

1.4 Section 83(2) specifically enables, (i) any mutawalli; (ii)any person interested in waqf; and (iii) any other personaggrieved by an order made under the Act, to invoke thejurisdiction of the Tribunal for the determination of any dispute,question or other matter relating to the waqf. Section 83(2) doesH

not make any reference to the Waqf Board. However, Section94(1) enables the Board to apply to the Tribunal, for appropriateorders, whenever mutawalli fails to perform an act recognizedby Muslim Law as pious, religious and charitable. Under Section61 of the 1954 Act, such an application can be made by the Boardonly to the court, but now it can be made to the Tribunal underSection 94(1). In view of the language employed in Sections 83and 85, coupled with the reference to civil courts in Sections 86,90 and 93, it appears that the question of bar of jurisdiction of thecivil court, has been left by the law makers to the vagaries ofjudicial opinion and this has given rise to conflicting decisions.[Paras 28, 29][23-H; 24-A-C]

1.5 The decision of this Court in Ramesh Gobindram is theone, which, ironically, attempted to settle the controversy on hand,but has produced conflicting results in the subsequent decisions.A bare reading of Sections 6 and 7 as they stood when RameshGobindram was decided shows that the language employedtherein appears to have deflected the attention of many courtwithout exception. careful look at the scheme of the Act wouldshow that the Act is divided into 9 chapters. Chapter-II whichcontains Sections 4 to 8, is primarily concerned with the surveyof waqfs. 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 particular property specified as waqf property inthe list of waqfs is actually waqf property or not; and (ii) whethera waqf specified in such list is Shia waqf or Sunni waqf. WhileSection 4 contemplates preliminary survey of all waqfs in theState, Section 5(2) speaks about publication of the list of waqfs(separately for Shia and Sunni) in the official gazette. SinceSections 6 and 7 follow Sections 4 and 5, they refer only to theaforesaid two questions. In other words, the questions relevantfor the purposes of Sections 4 and 5 alone, are dealt with inSections 6 and 7 and hence the discussion regarding thejurisdiction of the Waqf Tribunal should not start and end withSections 6 and 7. Sections 83 and 85, as well as Sections 86, 90and 93, which use the word “court”, are to be found in ChapterVIII of the Act. The heading given to Chapter VIII is “JudicialProceedings”. Therefore, for finding an answer to the questionrelating to the bar of jurisdiction under Section 85, it is not enough

Amerely to refer to Section 6(5) or Section 7(2). The language ofSection 85 is clearly in contrast to the language employed inSection 6(5) and Section 7(2). [Paras 30-32][34-F-H; 35-A-D]

Ramesh Gobindram v. Surgra Humayun Mirza Waqf(2010) 8 SCC 726 : [2010] 10 SCR 945 – distinguished.

1.6 conjoint reading of Sections 6, 7 and 85 would showthat the bar of jurisdiction of civil court contained in Section 6(5)and Section 7(2) is confined to Chapter-II, but the bar ofjurisdiction under Section 85 is all pervasive. This can be seenfrom the following distinguishing features:-

(i) Section 6(5) bars the institution or commencement of asuit or other legal proceeding in court“in relation to any questionreferred to in sub-section (1)”.Sub-section (1) of Section 6speaks only about two questions namely, whether particularproperty specified as waqf property in the list of waqfs is waqfDproperty or not and whether waqf is Shia waqf or Sunni waqf;

(ii) Section 7(2) bars any court, tribunal or other authorityfrom staying any proceeding before the Waqf Tribunal, in respectof waqf, on the only ground of pendency of any suit, applicationor appeal or other proceeding. Section 7(2) specifically relatesEto the proceedings under Section 7 and not to any otherproceeding. This is clear by the use of the words, “no proceeding”under this Section.Section 7(1) again deals only with two questionsnamely, whether particular property specified as waqf propertyin the list of waqfs is waqf property or not and whether awaqf specified in the list is Shia waqf or Sunni waqf. Therefore,Fthe bar under Section 7(2) is also confined only to these twoquestions, on account of the use of the words, “no proceedingunder this Section”.

(iii) While Sections 6(1) and 7(1) speak only about twoquestions which are germane to the matters covered by Chapter-GII of the Act alone, Section 85 speaks (i) about any dispute, questionor other matter relating to any waqf or waqf property and (ii) about“other matter which is required by or under this Act to be determinedby Tribunal”.

(iv) major distinguishing feature between Sections 6(1)and 7 (1) on the one hand and Section 83 on the other hand isthat the dispute, question or other matter referred to in Sections6 and 7 are confined only to what is included in the list of waqfsprepared under Section 4 and published under Section 5. Thewords “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 twocategories of cases, but Section 83 covers the entire gamut of possibledisputes in relation to any waqf or waqf property. [Para 33][35-D-H; 36-A-D]

1.7 There are 2 limbs to Section 85. The words, “anydispute, question or other matter relating to any waqf or waqfproperty” used in the first limb of Section 85, provide clearindication that the Tribunal would have jurisdiction to adjudicateupon any dispute and answer any question relating to waqf orwaqf property, including the two questions mentioned in Sections6(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 determinedby Tribunal”, seek to cover matters which have no relevanceto the two questions covered by Section 6(1) and 7(1).Unfortunately, many courts were misled by the reference to twospecific questions in Sections 6(1) and 7(1), to come to theconclusion that the bar of jurisdiction was confined only to disputesrevolving around those two questions. [Paras 34, 35][36-D-G]1.8 The basis of the decision in Ramesh Gobindram wasremoved through an amendment under Act 27 of 2013. RameshGobindram sought to address the question whether WaqfTribunal was competent to entertain and adjudicate upon disputesregarding eviction of persons in occupation of what are admittedlywaqf properties. Since this Court answered the question in thenegative, Section 83(1) was amended by Act 27 of 2013 to includethe words, “eviction of tenant or determination of rights andobligations of the lessor and lessee of such property”.Simultaneously, sub-section (6) was inserted in Section 7 by Act27 of 2013. This sub-section (6) of Section 7 states that theTribunal shall have the power of assessment of damages by

Aunauthorized occupation of waqf property and to penalize suchunauthorized occupants for their illegal occupation of the waqfproperty and to recover the damages as arrears of land revenuethrough the Collector. Ideally, the provisions of sub-section (6)should have found place somewhere in Section 83, since whatis sought to be covered by sub-section (6) of Section 7 has noBcorrelation to the two questions about which Section 7(1) speaks.But the reason why the Parliament thought fit to include somethingin Section 7, which has no correlation to sub-section (1) of Section7, is perhaps the fact that Ramesh Gobindram turned primarilyon the language of Sections 6 and 7. [Paras 36, 37][36-G-H; 37-CA-B, E]

1.9 The basis of Ramesh Gobindram now stands removedthrough amendment Act 27 of 2013. In fact, when RameshGobindram was decided, Sections 6(1) and 7(1) enabled only threecategories of persons to approach the Waqf Tribunal for relief.DThey are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) anyperson interested therein. However, the explanation underSection 6(1) clarified that the expression “any person interestedtherein” shall include every person, who, though not interestedin the waqf, is interested in the property. But by Act 27 of 2013the words, “any person interested” were substituted by the words,E“any person aggrieved”, meaning thereby that even nonMuslim 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 under 6(1). Thisamendment has also addressed the concern expressed in Ramesh

FGobindram whether non Muslim could be put to jeopardy bythe bar of jurisdiction, merely because the property is includedin the list of waqfs. The Explanation under sub-section (1) ofSection 6, as it stood at the time when Ramesh Gobindram wasdecided, already took care of this contingency, but was omittedto be brought to the notice of this court. [Para 38][37-F-H; 38-A-GB]

1.10 If the Waqf Act, 1995 had merely stopped with areference to the matters as listed as capable of being adjudicatedby the Tribunal, there would have been no scope for any confusion.But unfortunately, the Act makes specific reference to court/H

civil Court also in certain places. Sections 86, 90 and 93 makespecific reference to “Court”. Section 68(6) goes step furtherby making reference to ‘civil court’. combined reading ofSections 68(6), 86, 90 and 93 goes to show that the bar ofjurisdiction under Section 85 does not apply at least to the mattersas enumerated, covered by Sections 68(6), 86 and 90. [Paras 44,45][42-H; 43-A-B, D-E]

2.1 After admitting the property to be waqf property, theappellant herein (defendant no.1) filed an application under OrderVII, Rule 11 on the sole ground that suit for injunction could befiled only before the Waqf Tribunal. This application for rejectionof plaint was allowed by the Trial Court and the suit was dismissed.The first appellate court confirmed the same but on secondappeal, the High Court set aside the judgments of the Trial Courtand the first appellate court with direction to the Civil Court toproceed in accordance with law. The approach of the High Courtis not in tune with the law. The question as to whether the suit forperpetual injunction is maintainable before the Waqf Tribunal ornot, is already answered in Akkode Jumayath Palli ParipalanaCommittee. This Court, pointed out in the said decision thatRamesh Gobindram was distinguished in Anis Fatma Begum, andthat therefore the Tribunal had jurisdiction to entertain suit forperpetual injunction. But unfortunately, this decision renderedby this Court on 23.07.2013 does not appear to have beenbrought to the notice of the High Court. [Paras 49, 50][44-F-G;45-A-B]

Akkode Jumayath Palli Paripalana Committee v. P.V.Ibrahim Haji and Ors. (2014) 16 SCC 65 : [2013] 7SCR 1033 – relied on.

2.2 It is not as though there was no provision in the WaqfAct conferring jurisdiction upon the Tribunal in respect of thewaqf property. The first part of Section 83 can be broken into twolimbs, the first concerning the determination of any dispute,question or other matter relating to waqf and the second,concerning the determination of any dispute, question or othermatter relating to waqf property. After Amendment Act 27 of2013, even the eviction of tenant or determination of the rightsand obligation of the lessor and lessee of such property, come

Awithin the purview of the Tribunal. Though the proceedings outof which the present appeal arises, were instituted before theAmendment Act, the words “any dispute, question or other matterrelating to waqf or waqf property” are sufficient to cover anydispute, question or other matter relating to waqf property. Thecourt cannot do violence to the express language of the statute.BSection 83(1) even as it stood before the amendment, providedfor the determination by the Tribunal, of any dispute, question orother matter (i) relating to waqf; and (ii) relating to waqfproperty. Therefore to say that the Tribunal will have jurisdictiononly if the subject property is disputed to be waqf property andCnot if it is admitted to be waqf property, is indigestible in theteeth of Section 83(1). [Paras 52, 53][45-H; 46-A-C, E]2.3 Section 83(5) of the Act makes it clear that the Tribunalshall be deemed to be Civil Court and shall have the samepowers as may be exercised by Civil Court under the CPC,Dwhile trying suit or executing decree or order. The WaqfTribunal will have power to issue temporary injunctions underOrder XXXIX, Rule 1 CPC. The dichotomy created in somedecisions of this court, between the properties which are admittedto be waqf properties and properties which are disputed to be so,is on account of the misapplication of the two limited questions inESections 6(1) and 7(1) to the whole of the Act including section83. The prescription in Section 83 cannot be taken to have beencurtailed or circumscribed by Sections 6(1) and 7(1), to come tothe conclusion that the Tribunal will assume jurisdiction only whena property is disputed to be waqf property. [Paras 54, 55][46-F-FG; 47-C-E]Syed Mohideen and Another v. Ramanathapura PeriaMogallam Jamath and Others (2010) 13 SCC 62 :[2010] 8 SCR 777 – relied on.

2.4 In the case on hand, the property is admitted to be aGwaqf property. Therefore, to allow the plaintiff to ignore the WaqfTribunal and to seek decree of permanent injunction andmandatory injunction from civil court, would be ignore themandate of section 83 and 85 which speak of any dispute, questionor other matter relating to waqf or waqf property. questionH

as to the nature of the waqf and whether the plaintiff is beneficiaryof the waqf, has also arisen in this case. This question hasnecessarily to be decided by the Tribunal and not the civil court.The judgment and decree of the High Court are set aside. Thetrial court shall return the plaint to the plaintiff, for presentationto the jurisdictional Waqf Tribunal. [Paras 56, 57][47-E-F, G-H;48-A]

Sayed Muhammed Mashur Kunhi Koyal Thangal v.Badagara Jumayath Palli Dharas Committee (2004) 7SCC 708 : 2004 (6) JT 556; Sardar Khan v. SyedNajmul Hasan (2007) 10 SCC 727 : [2007] 3 SCR 436– distinguished.

Board of Waqf v. Anis Fatma Begum (2010) 14 SCC588 : [2010] 13 SCR 1063; Telangana State Waqf Boardv. Mohamed Muzafar (2021) SCC Online SC 537;Haryana Waqf Board v. Mahesh Kumar (2014) 16 SCC45 : [2013] 12 SCR 596 – relied on.

Punjab State Waqf Board v. Pritpal Singh (2013) SCCOnline SC 1345; Bhanwar Lal v. Rajasthan Board ofMuslim Waqf (2014) 16 SCC 51 : [2013] 9 SCR 721;Faseela M v. Munnerul Islam Madrasa Committee(2014) 16 SCC 38 : [2014] 4 SCR 613; Rajasthan WaqfBoard v. Devki Nandan Pathak (2017) 14 SCC 561;Dharampal v. Punjab Waqf Board (2018) 11 SCC 449: [2017] 8 SCR 316; Punjab Waqf Board v. Sham SinghHarike (2019) 4 SCC 698 : [2019] 2 SCR 61; KiranDevi v.Bihar State Sunni Waqf Board (2021) SCCOnline SC 280; Abdul Jata Mohammed Ishak v.Russomoy Dhur Choudhary 1894 (22) Calcutta (PC)– referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6336of 2021.

CFrom the Judgment and Order dated 16.12.2014 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Second AppealNo.286 of 2014.

Pradeep Misra, Daleep Dhyani, Suraj Singh, Manoj KumarSharma, Bhuwan Chandra, Advs. for the Appellant.DPradeep Kant, Sr. Adv., Divyanshu Sahay, Anurag Kishore, Advs.for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

E1. Aggrieved by the Judgment of the High Court of Judicature atAllahabad, Lucknow Bench, holding that suit for permanent injunctionbefore civil court is not barred by Section 85 of the Waqf Act, 1995(for short “the Act”), the defendant has come up with the above appeal.

2. We have heard Mr. Pradeep Misra, learned counsel for theFappellant and Mr. Pradeep Kant, learned senior counsel for the firstrespondent.

3. The first respondent herein filed suit in R.S. No.137 of 2011against the appellant herein as defendant No. 1 and impleading therespondents 2 to 5 herein as defendants 2 to 5. The suit was for aGmandatory injunction directing the defendants to remove theencroachment made by them and for permanent injunction restrainingthe defendants from interfering with the plaintiff’s possession of pieceof land situated at Mirzaganj, Pargana and Tehsil Malihabad, Lucknow.The suit was filed in the Court of Civil Judge, Senior Division, Malihabad.The case of the first respondent herein/plaintiff was that the suit propertyHoriginally belonged to one Mirza Abid Ali Beg; that during his life time hecreated Waqf-al-Aulad; that during his life time, Mirza Abid Ali Begwas the mutawalli; that after his life time, his elder daughter became themutawalli; that thereafter, the younger daughter Smt. Afzal Jahan Begumbecame the mutawalli; that the said Afzal Jahan Begum was thegrandmother of the plaintiff; that the father of the plaintiff led waywardlife, forcing the grandmother to deliver possession of the property to theplaintiff, authorizing him to maintain the properties and utilize the incomethereof for the maintenance of the family; that after taking possession,the plaintiff constructed shops on the land and let them out to tenants;that after sometime, the grandmother of the plaintiff appointed the fatherof the plaintiff as the mutawalli; that there were criminal proceedingsbetween the plaintiff and his father; that on 18.12.2010, the defendantsbrought building materials and started digging foundation in the land behindthe shops, at the instigation of the father of the plaintiff; that though theplaintiff gave police complaint, they were indifferent, emboldening thedefendants to raise boundary wall in portion of the land and that,therefore, the plaintiff was constrained to file suit for mandatory andperpetual injunction.

4. After entering appearance in the suit, the appellant herein whowas the first defendant, filed written statement admitting the existenceof the waqf and waqf property. Thereafter, he took out an applicationunder Order VII, Rule 11 CPC for rejection of plaint, on the simpleground that the Civil Court has no jurisdiction to try suit relating towhat is admittedly waqf property. The said application was allowed bythe Civil Judge, Senior Division, Malihabad and the suit was dismissed.

5. Challenging the aforesaid judgment, the first respondent herein/plaintiff filed regular appeal under Section 96 CPC, but the first AppellateCourt dismissed the appeal.

6. However, the second appeal filed by the first respondent-plaintiffwas allowed by the High Court on the short ground that since the disputedoes not involve either question as to the nature of the property or thequestion whether the suit schedule property is waqf property or notand also since the suit is only for injunction, the Civil Court was notbarred from entertaining the suit, under Section 85 of the Act. It is againstthe said judgment of the High court that the first defendant in the suithas come up with the above appeal.

14SUPREME COURT REPORTS

7. Therefore, the only question that arises for our consideration inthis appeal is as to whether suit for permanent injunction in respect ofa waqf property is maintainable in civil court or not.

8. The question of jurisdiction of civil courts to adjudicate upondisputes, for the determination of which special tribunals are constitutedBunder special statutes, has been vexed question which has turned,over period of time, into seesaw battle. This is especially so particularlyin respect of waqfs. But there is historical background to this.

1913 Act

9. The earliest enactment to come up, relating to waqfs, was theCMussalman Waqf Validating Act, 1913 (6 of 1913). This Act recognisedthe right of muslims to make settlement of properties by way of waqf infavour of their families, children and descendents. This Act declaredthat no waqf shall be deemed as invalid merely because it postponed thereligious and charitable benefit confirmed therein, until the extinction ofDthe family of the founder. The reason why this Act was legislated, wasto overcome the decision of the Privy Council in Abdul Jata MohammedIshak vs. Russomoy Dhur Choudhary[1], which declared as invalid, awaqf created for the benefit of the family, though coupled with gift tocharity on the failure of the line of descendents. This Validating Act of1913 was given retrospective application by Act 32 of 1930.

1923 Act

10. Then came the Mussalman Waqf Act 1923, which can becalled the precursor of Waqf Legislation, dealing with the creation,maintenance and administration of waqf and waqf property. This ActFrequired the mutawalli of every waqf to furnish to the Court within whosejurisdiction the waqf property was situate, statement of particulars.The Act also mandated the mutawalli of every waqf to furnish full andtrue statement of accounts to the Court, after it is audited. The Courtwas empowered under this Act to hold an inquiry to ascertain: (i) Whetherthe waqf exists (ii) Whether any property is waqf property and (iii)GWho is the mutawalli of the waqf. The 1923 Act contemplated the creationof Register of waqfs and the Court was conferred with the power torecord entries in the said Register. The 1923 Act contained provisionin Section 6N, empowering the Court to authorise any one or more ofthe members of the waqf committee to institute or defend any Suit or

H1 [1894 (22) Calcutta (PC)]

proceeding for the protection or recovery of waqf property or for theapplication of waqf property in any public charitable or religious purpose.This power of the Court under Section 6N, was notwithstanding anythingcontained in Section 92 of CPC.

11. Thus the 1923 Act specifically provided role for the civilcourt in the matter of recognition and registration of waqfs, protection ofwaqf properties and the oversight of the management of the waqfs. Infact, the court had enormous powers under the 1923 Act, including thepower to order special audit.

1954 Act

12. After India attained Independence, the Parliament enactedthe Waqf Act 1954, with the professed object of providing for betteradministration and supervision of waqfs. The statements of Objects andReasons of the 1954 Act, recorded that the 1923 Act was not of muchpractical value and that therefore the provincial governments of Bombay,Bengal and the United Provinces introduced amendments respectivelyin 1934, 1935 and 1936 to the 1923 Act.

13. Sections 6, 27, 36A, 43, 55, 56, 57, 60 and 61 of the 1954 Actrecognised the Civil Court as the forum for the resolution of variousdisputes relating to waqfs and waqf properties as could be seen fromthe following :-

(i) Section 6 enabled the Board or mutawalli or any personinterested to institute suit in Civil Court of competent Jurisdiction,wherever any question arose as to (A) Whether particular propertyspecified in the list published under Section 5 is waqf property or (B)Whether the waqf is Shia waqf or Sunni waqf.

(ii) Though Section 27(1) of the Act, authorised the waqf Boardalso to decide the question whether particular property is waqfproperty or not, the decision of the Board on the question, was madesubject to jurisdiction of the Civil Court as seen from Section 27(2).

(iii) Section 36-A (1) provided for the remedy of requisition bythe waqf Board to the Collector, whenever any immovable property of awaqf was transferred without the previous sanction of the Board. TheCollector was empowered under this provision to pass an order directingthe person in possession of the said property, to deliver it to the Board.The order so passed by the Collector was appealable to the DistrictCourt under Section 36A (4).

A(iv) Section 43(5) of the 1954 Act made the order of the WaqfBoard removing the mutawalli and directing him to deliver possession ofthe waqf property, deemed to be decree of the Civil Court, executableby the Civil Court, as if it was decree passed by it.

(v) Section 55 enabled the Waqf Board to institute suit to obtainBany of the reliefs mentioned in Section 92, CPC relating to any waqf,without obtaining the consent referred to in Section 92, CPC. Section 56contained provision similar to Section 80 of CPC and Section 57 laiddown the procedure to be followed by the Civil Court, in every suit orproceeding relating to title to waqf property or the right of mutawalli orany sale of waqf property in execution of decree of Civil Court.C

(vi) Section 60 imposed bar on the rights of the parties to suit,to enter into compromise without the sanction of the Board. The WaqfBoard was empowered by Section 61 to make an application to theCourt in case of failure of mutawalli to discharge his duties.DWaqf Inquiry Committee and 1984 Amendment Act

14. The 1954 Act, went through some amendments in 1959, 1964and in 1969. But by and large, the working of the Waqf Boards wasfound to be unsatisfactory and hence with view to tone up theadministration of waqfs, the Central Government constituted committeeEknown as Waqf Inquiry Committee. The Committee made large numberof recommendations and its Report, after consultation with all stakeholders, led to comprehensive amendments to the Act, under the Waqf(Amendment) Act, 1984. One of the important amendments made bythis Amendment Act, was the substitution of the existing Section 55 ofthe principal Act with new provision. The newly substituted SectionF55(1) provided for the constitution of special tribunals for the determinationof any dispute, question or other matter relating to waqf or waqfproperty. But the right to invoke the jurisdiction of the Waqf Tribunalwas made available under Section 55(2) of the Act, only to, (i) anymutawalli of the waqf; (ii) person interested in the waqf; or (iii) anyGother person aggrieved by any order made under the Act or Rule or anyorder made there under. Section 55(5) declared that the Tribunal shallbe deemed to be civil court, having the same powers as may beexercised by civil court under the CPC, while trying suit or executinga decree. However, the Tribunal was given the freedom to follow itsown procedure as may be prescribed, notwithstanding anything contained

in the CPC. Though the decision of the Tribunal was declared to be finalunder sub section (7) of Section 55, and though no appeal would lieagainst decision of the Tribunal by virtue of sub-section (9), the HighCourt was conferred power of revision under the proviso to sub-section(9) of Section 55.

15. Section 55C barred the jurisdiction of civil court in respect ofany dispute, question or other matter relating to any waqf, waqf propertyor other matter which is required by or under the Act to be determinedby Tribunal. But at the same time, Section 55D contained provisionenabling the court to appoint Receiver under certain circumstances.Section 55D reads as follows:-

“55D. Notwithstanding anything contained in the Code of CivilProcedure, 1908, or in any other law for the time being in force,where any suit or other legal proceeding is instituted orcommenced-

(a)by or on behalf of Board –

(i) to set aside the sale of any immovable property, whichis waqf property, in execution of decree or order of acivil court;

(ii) to set aside the transfer of any immovable property,which is waqf property, made by the mutawalli thereof,whether for valuable consideration or note, without, orotherwise than in accordance with, the sanction of theBoard;

(iii) to recover possession of the property referred to inclause(a) or clause (b) or to restore possession of suchproperty to the mutawalli of the concerned waqf; or

(b)by mutawalli to recover possession of immovableproperty, which is waqf property, which has beentransferred by previous mutawalli, whether for valuableconsideration or not, without or otherwise than inaccordance with, the sanction of the Board and whichis in the possession of the defendants, the court may, onthe application of the plaintiff, appoint receiver of suchproperty and direct such receiver to pay from time totime to the plaintiff, out of the income of the property,

Asuch amount as the court may consider to be necessaryfor further prosecution of the suit.

The Waqf Act, 1995

16. But it appears that the Amendment Act of 1984 came undersevere criticism and hence only two provisions of the 1984 Act came toBbe enforced because of strong opposition from the community[2].Therefore, comprehensive bill on waqf matters incorporating thefeatures of the 1954 Act and such provisions of the 1984 Act in respectof which there was near consensus, was introduced. This became theWaqf Act, 1995. This Act provided for the setting up of waqf tribunals toCconsider questions and disputes pertaining to waqfs. An important featureof the 1995 Act is that it was made applicable to the whole of Indiaexcept the State of Jammu and Kashmir, though the Waqf Act, 1954was not applicable to Uttar Pradesh, West Bengal, parts of Gujarat,parts of Maharashtra and some of the North Eastern states[3].

D16. Sections 83 and section 85 of the Waqf Act, 1995 (as theyoriginally stood before amendment in 2013) read as follows:-

“83. Constitution of Tribunals, etc.—

(1) The State Government shall, by notification in the OfficialGazette, constitute as many Tribunals as it may think fit, for theEdetermination of any dispute, question or other matter relating toa waqf or waqf property under this Act and define the local limitsand jurisdiction under this Act of each of such Tribunals.

(2) Any mutawalli person interested in waqf or any other personaggrieved by an order made under this Act, or rules madeFthereunder, may make an application within the time specified inthis Act or where no such time has been specified, within suchtime as may be prescribed, to the Tribunal for the determinationof any dispute, question or other matter relating to the waqf.

(3) Where any application made under sub-section (1) relates toGany waqf property which falls within the territorial limits of thejurisdiction of two or more Tribunals, such application may bemade to the Tribunal within the local limits of whose jurisdictionthe mutawalli or any one of the mutawallis of the waqf actually

2 See paragraph 3 of the Statement of Objects and Reasons of 1995 Act

3 See paragraph 6 (h) of the Statement of Objects and Reasons of 1995 Act

and voluntarily resides, carries on business or personally worksfor gain, and, where any such application is made to the Tribunalaforesaid, the other Tribunal or Tribunals having jurisdiction shallnot entertain any application for the determination of such dispute,question or other matter:

Provided that the State Government may, if it is of opinionthat it is expedient in the interest of the waqf or any other personinterested in the waqf or the waqf property to transfer suchapplication to any other Tribunal having jurisdiction for thedetermination of the dispute, question or other matter relating tosuch waqf or waqf property, transfer such application to any otherTribunal having jurisdiction, and, on such transfer, the Tribunal towhich the application is so transferred shall deal with the applicationfrom the stage which was reached before the Tribunal from whichthe application has been so transferred, except where the Tribunalis of opinion that it is necessary in the interests of justice to dealwith the application afresh.

(4) Every Tribunal shall consist of—

(a) one person, who shall be member of the State JudicialService holding rank, not below that of District,Sessions or Civil Judge, Class I, who shall be theChairman;

(b) one person, who shall be an officer from the State CivilServices equivalent in rank to that of the AdditionalDistrict Magistrate, Member;

(c) one person having knowledge of Muslim law andjurisprudence, Member,

and the appointment of every such person may be made either byname or by designation.

(4A) The terms and conditions of appointment including the salariesand allowances payable to the Chairman and other members otherthan persons appointed as ex officio members shall be such asmay be prescribed.

(5) The Tribunal shall be deemed to be civil court and shall havethe same powers as may be exercised by civil court under the

Code of Civil Procedure, 1908 (5 of 1908), while trying suit, orexecuting decree or order.

(6) Notwithstanding anything contained in the Code of CivilProcedure, 1908 (5 of 1908), the Tribunal shall follow suchprocedure as may be prescribed.

(7) The decision of the Tribunal shall be final and binding upon theparties to the application and it shall have the force of decreemade by civil court.

(8) The execution of any decision of the Tribunal shall be madeby the civil court to which such decision is sent for execution inaccordance with the provisions of the Code of Civil Procedure,1908 (5 of 1908).

(9) No appeal shall lie against any decision or order whether interimor otherwise, given or made by the Tribunal:

DProvided that High Court may, on its own motion or onthe application of the Board or any person aggrieved, call for andexamine the records relating to any dispute, question or other matterwhich has been determined by the Tribunal for the purpose ofsatisfying itself as to the correctness, legality or propriety of suchdetermination and may confirm, reverse or modify suchEdetermination or pass such other order as it may think fit.

85. Bar of jurisdiction of civil courts.—No suit or other legalproceeding shall lie in any civil court in respect of any dispute,question or other matter relating to any waqf, waqf property orother matter which is required by or under this Act to be determinedFby Tribunal.

17. It is relevant to note at this stage that the words “eviction oftenant or determination of rights and obligations of the lessor andthe lessee of such property” were inserted in sub-section (1) of Section83, after the words “waqf property”, by Amendment Act 27 of 2013.

18. Similarly, the words, “civil court” were substituted by the words“civil court, revenue court and other authority”, in Section 85, byAmendment Act 27 of 2013.

19. Thus, Act 27 of 2013 did 2 things. First it expanded thejurisdiction of Waqf Tribunal even to cover landlord-tenant disputes andH

the rights and obligations of lessor and lessee. Second, the AmendmentAct enlarged the bar of jurisdiction, to cover even revenue courts andother authorities.

20. Sub-section (2) of Section 83 of the 1995 Act indicates thepersons who are entitled to invoke the jurisdiction of the Tribunal. Theyare, (i) any mutawalli of the waqf; (ii) person interested in the waqf;or (iii) any other person aggrieved by any order made under the Act orRules or any order made there under.

21. Dehors the jurisdiction conferred upon the Tribunal underSection 83(1) and dehors the bar of jurisdiction of the civil court, revenuecourt and any other authority under Section 85, the 1995 Act contains aspecial provision in Section 86 for the appointment by the civil court, ofa Receiver, in certain cases. Section 86 reads as follows:-

-86. Appointment of receiver in certain casesNotwithstanding anything contained in the Code of Civil Procedure,1908 (5 of 1908), or in any other law for the time being in force,where any suit or other legal proceeding is instituted orcommenced-

(a) by or on behalf of Board-

(i)to set aside the sale of any immovable property, which iswaqf property, in execution of decree or order of civilEcourt;

(ii)to set aside the transfer of any immovable property, whichis waqf property, made by the mutawalli thereof, whetherfor valuable consideration or not, without or otherwisethan in accordance with, the sanction of the Board;

(iii) to recover possession of the property referred to in clause(a) or clause (b) or to restore possession of such propertyto the mutawalli of the concerned waqf; or

(b) by mutawalli to recover possession of immovable property,Gwhich is waqf property, which has been transferred by aprevious mutawalli, whether for valuable consideration or not,without otherwise than in accordance with the sanction of theBoard, and which is in the possession of the defendant,

the court may, on the application of the plaintiff, appoint areceiver of such property and direct such receiver to pay fromtime to time to the plaintiff, out of the income of the property,such amount as the court may consider to be necessary forfurther prosecution of the suit.

B22. Section 86 thus recognises the right of the Board to instituteor commence any suit or other legal proceeding, (i) to set aside the saleof waqf property in execution of decree of civil court; (ii) to setaside the transfer of any waqf property made by the mutawalli, withoutthe sanction of the Board or otherwise than in accordance with thesanction of the Board; and (iii) to recover and restore possession ofCsuch property to the mutawalli. Clause (b) of Section 86 recognises asimilar right for the mutawalli to recover possession of waqf property,which has been transferred by the previous mutawalli or any other personwithout the sanction of the Board.

23. It is therefore clear from Section 86, that in suits or otherDproceedings instituted by the Board falling under clause (a) or thoseinstituted by the mutawalli falling under clause (b) of Section 86, the civilcourt will have jurisdiction to appoint receiver. As corollary, the barunder Section 85 will have no application to cases covered by Section86.

24. Apart from the bar of jurisdiction of civil courts under Section85, the Act envisages yet another bar under Section 88. Section 88excludes the jurisdiction of civil court to entertain challenge to anynotification or order or decision made, proceeding or action taken by theCentral Government or the State Government under the Act. Section 88reads as follows:-F

“88. Bar to challenge the validity of any notification, etc.—Save as otherwise expressly provided in this Act, no notificationor order or decision made, proceeding or action taken, by theCentral Government or the State Government under this Act orGany rule made thereunder shall be questioned in any civil court.”

25. Section 89 of the Waqf Act, 1995 contains rule similar toSection 80 CPC, in respect of suits instituted against the Board.Interestingly, Section 90 which regulates the procedure for the issue ofnotice of suits, refers both to courts and tribunals. It reads as follows:-

“90. Notice of suits, etc., by courts.— (1) In every suit orproceeding relating to title to or possession of waqf propertyor the right of mutawalli or beneficiary, the court or Tribunalshall issue notice to the Board at the cost of the party institutingsuch suit or proceeding.

(2) Whenever any waqf property is notified for sale inexecution of decree of civil court or for the recovery of anyrevenue, cess, rates or taxes due to the Government or any localauthority, notice shall be given to the Board by the court, Collectoror other person under whose order the sale is notified.

(3) In the absence of notice under sub-section (1), anydecree or order passed in the suit or proceeding shall be declaredvoid, if the Board, within one month of its coming to know of suchsuit or proceeding, applies to the court in this behalf.

(4) In the absence of notice under sub-section (2), thesale shall be declared void, if the Board, within one month of itscoming to know of the sale, applies in this behalf to the court orother authority under whose order the sale was held.

26. It is seen from sub-section (1) of Section 90 that it uses thewords, “the court or Tribunal” and it refers to suit or proceeding relatingto title to or possession of waqf property or the right of the mutawallior beneficiary.

27. cumulative reading of Sections 86, 89 and 90 would showthat the bar of jurisdiction under Section 85 is not total and omnipotentand that there may be cases which could still be entertained by civilcourts. In fact, Section 93 which prohibits the mutawalli from enteringinto compromise with the opposite party in any suit, also refers to“court”. Section 93 reads as follows:-

“93. Bar to compromise of suits by or against mutawallis.—

No suit or proceeding in any court by or against the mutawalli ofa waqf relating to title to waqf property or the rights of themutawalli shall be compromised without the sanction of the Board.”

28. We have seen elsewhere that Section 83(2) specifically enables,(i) any mutawalli; (ii) any person interested in waqf; and (iii) any otherperson aggrieved by an order made under the Act, to invoke the jurisdictionof the Tribunal for the determination of any dispute, question or other

Amatter relating to the waqf. Section 83(2) does not make any referenceto the Waqf Board. However, Section 94(1) enables the Board to applyto the Tribunal, for appropriate orders, whenever mutawalli fails toperform an act recognized by Muslim Law as pious, religious andcharitable. Under Section 61 of the 1954 Act, such an application can bemade by the Board only to the court, but now it can be made to theBTribunal under Section 94(1).

29. In view of the language employed in Sections 83 and 85, coupledwith the reference to civil courts in Sections 86, 90 and 93, it appearsthat the question of bar of jurisdiction of the civil court, has been left bythe law makers to the vagaries of judicial opinion and this has given riseCto conflicting decisions, to some of which, we shall now turn our attention.

30. Some of the decisions of this Court, in which this controversywas addressed, are presented in the form of table, for the purpose ofeasy appreciation. Apart from the cause title and citation, the table belowgives an indication of the forum from which the original proceedingsDemanated in those cases, the reliefs sought by the plaintiff/applicant inthose original proceedings and summary of facts and the ratio laiddown in each of them.

26SUPREME COURT REPORTS[2021] 13 S.C.R.ABCDEFGH

ABCDEFGH

30SUPREME COURT REPORTS[2021] 13 S.C.R.ABCDEFGH

ABCDEFGH

A30. It can be seen from the table given above that the originalproceedings from out of which the decisions at Sl.No.1 and 2 (SyedMuhammed Mashur Kunhi Koyal Thangal & Sardar Khan) arose,were instituted long before the advent of the Waqf Act, 1995 and hencethe ratio laid therein on the basis of Section 7(5) of the Act does notthrow any light upon the actual controversy on hand. The decision ofBthis Court in Ramesh Gobindram included at Sl.No.3 in the table above,is the one, which, ironically, attempted to settle the controversy on hand,but has produced conflicting results in the subsequent decisions. Theonly question that arose in Ramesh Gobindram, as seen from paragraph2 (of the SCC report), is as to whether or not, the Waqf Tribunal isCcompetent to entertain and adjudicate upon disputes regarding evictionof persons occupying what are admittedly waqf properties. For findingan answer to this question, this Court started its discussion with the wellestablished rule that the ouster of jurisdiction of the civil court is not tobe readily inferred and that the bar of jurisdiction should be express orimplied. After laying such foundation, this Court started building mainlyDupon Sections 6 and 7. This was perhaps due to the caption given toSections 6 and 7. While Section 6 is given the caption, “Disputesregarding waqfs”, Section 7 is given the caption “Power of Tribunalto determine disputes regarding waqfs”. Sections 6 and 7 as theystood when Ramesh Gobindram was decided, read as follows:-

6. Disputes regarding waqfs.—(1) If any question ariseswhether particular property specified as waqf property in thelist of waqfs is waqf property or not or whether waqf specifiedin such list is Shia waqf or Sunni waqf, the Board or themutawalli of the waqf or any person interested therein may instituteFa suit in Tribunal for the decision of the question and the decisionof the Tribunal in respect of such matter shall be final:

Provided that no such suit shall be entertained by the Tribunalafter the expiry of one year from the date of the publication of thelist of waqfs:

Explanation.—For the purposes of this section and section7, the expression “any person interested therein”, shall, in relationto any property specified as waqf property in the list of waqfspublished after the commencement of this Act, shall include alsoevery person who, though not interested in the waqf concerned,is interested in such property and to whom reasonable opportunity

had been afforded to represent his case by notice served on himin that behalf during the course of the relevant inquiry under section4.

(2) Notwithstanding anything contained in sub-section (1),no proceeding under this Act in respect of any waqf shall be stayedby reason only of the pendency of any such suit or of any appealor other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made party toany suit under sub-section (1) and no suit, prosecution or otherlegal proceeding shall lie against him in respect of anything whichis in good faith done or intended to be done in pursuance of thisAct or any rules made thereunder.

(4) The list of waqfs shall, unless it is modified in pursuanceof decision of the Tribunal under sub-section (1), be final andconclusive.

(5) On and from the commencement of this Act in State,no suit or other legal proceeding shall be instituted or commencedin court in that State in relation to any question referred to insub-section (1).

7. Power of Tribunal to determine disputes regarding

waqfs.—(1) If, after the commencement of this Act, any questionarises, whether particular property specified as waqf propertyin list of waqfs is waqf property or not, or whether waqfspecified in such list is Shia waqf or Sunni waqf, the Board orthe mutawalli of the waqf, or any person interested therein, mayapply to the Tribunal having jurisdiction in relation to such property,for the decision of the question and the decision of the Tribunalthereon shall be final:

Provided that—

(a) in the case of the list of waqfs relating to any part ofthe State and published after the commencement of thisAct no such application shall be entertained after theexpiry of one year from the date of publication of thelist of waqfs; and

(b) in the case of the list of waqfs relating to any part ofthe State and published at any time within period of

one year immediately preceding the commencement ofthis Act, such an application may be entertained byTribunal within the period of one year from suchcommencement:

Provided further that where any such question has beenheard and finally decided by civil court in suit instituted beforesuch commencement, the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reasonof the provisions of sub-section (5), no proceeding under thissection in respect of any waqf shall be stayed by any court, tribunalCor other authority by reason only of the pendency of any suit,application or appeal or other proceeding arising out of any suchsuit, application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be made partyto any application under sub-section (1).

(4) The list of waqfs and where any such list is modified inpursuance of decision of the Tribunal under sub-section (1), thelist as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determineany matter which is the subject-matter of any suit or proceedingEinstituted or commenced in civil court under sub-section (1) ofsection 6, before the commencement of the Act or which is thesubject-matter of any appeal from the decree passed before suchcommencement in any such suit or proceeding or of any applicationfor revision or review arising out of such suit, proceeding or appeal,Fas the case may be.

31. bare reading of Sections 6 and 7 extracted above, showsthat the language employed therein appears to have deflected the attentionof many court without exception. The reason why we say so, is this. Acareful look at the scheme of the Act would show that the Act is dividedinto 9 chapters. Chapter-II which contains Sections 4 to 8, is primarilyconcerned with the survey of waqfs[4]. Sections 6 and 7 are incidental tothe scheme of Chapter-II alone, which is why they speak only abouttwo questions namely, (i) whether particular property specified as

4 The words “waqfs”, has been substituted with the word “auqaf”, by the AmendmentHAct 27 of 2013.

waqf property in the list of waqfs is actually waqf property or not; and(ii) whether waqf specified in such list is Shia waqf or Sunni waqf.While Section 4 contemplates preliminary survey of all waqfs in theState, Section 5(2) speaks about publication of the list of waqfs(separately for Shia and Sunni) in the official gazette. Since Sections 6and 7 follow Sections 4 and 5, they refer only to the aforesaid twoquestions. In other words, the questions relevant for the purposes ofSections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence thediscussion regarding the jurisdiction of the Waqf Tribunal should not startand end with Sections 6 and 7.

32. Sections 83 and 85, as well as Sections 86, 90 and 93, whichuse the word “court”, are to be found in Chapter VIII of the Act. Theheading given to Chapter VIII is “Judicial Proceedings”. Therefore, forfinding an answer to the question relating to the bar of jurisdiction underSection 85, it is not enough merely to refer to Section 6(5) or Section7(2). The language of Section 85 is clearly in contrast to the languageemployed in Section 6(5) and Section 7(2).

33. conjoint reading of Sections 6, 7 and 85 would show that thebar of jurisdiction of civil court contained in Section 6(5) and Section7(2) is confined to Chapter-II, but the bar of jurisdiction under Section85 is all pervasive. This can be seen from the following distinguishingfeatures:-

(i) Section 6(5) bars the institution or commencement of suitor other legal proceeding in court “in relation to any question referredto in sub-section (1)”. Sub-section (1) of Section 6 speaks only abouttwo questions namely, whether particular property specified as waqfproperty in the list of waqfs is waqf property or not and whether awaqf is Shia waqf or Sunni waqf;

(ii) Section 7(2) bars any court, tribunal or other authority fromstaying any proceeding before the Waqf Tribunal, in respect of waqf,on the only ground of pendency of any suit, application or appeal orother proceeding. Section 7(2) specifically relates to the proceedingsunder Section 7 and not to any other proceeding. This is clear by the useof the words, “no proceeding under this Section”. Section 7(1) againdeals only with two questions namely, whether particular propertyspecified as waqf property in the list of waqfs is waqf property or notand whether waqf specified in the list is Shia waqf or Sunni waqf.Therefore, the bar under Section 7(2) is also confined only to these two

Aquestions, on account of the use of the words, “no proceeding underthis Section”.

(iii) While Sections 6(1) and 7(1) speak only about two questionswhich are germane to the matters covered by Chapter-II of the Actalone, Section 85 speaks (i) about any dispute, question or other matterBrelating to any waqf or waqf property and (ii) about “other matterwhich is required by or under this Act to be determined by Tribunal”.

(iv) 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 confinedConly to what is included in the list of waqfs prepared under Section 4 andpublished under Section 5. The words “specified … in the list of waqfs”found in sections 6 (1) and 7(1), are conspicuous by their absence insection 83 (1). Therefore, it is clear that Sections 6 and 7 speak onlyabout two categories of cases, but Section 83 covers the entire gamutof possible disputes in relation to any waqf or waqf property.D

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 waqfproperty” used in the first limb of Section 85, provide clear indicationthat the Tribunal would have jurisdiction to adjudicate upon any disputeand answer any question relating to waqf or waqf property, includingEthe two questions mentioned in Sections 6(1) and 7(1). The words in thesecond limb of Section 85 namely, “other matter which is required byor under this Act to be determined by Tribunal”, seek to covermatters which have no relevance to the two questions covered by Section6(1) and 7(1).F

35. Unfortunately, many courts were misled by the reference totwo specific questions in Sections 6(1) and 7(1), to come to the conclusionthat the bar of jurisdiction was confined only to disputes revolving aroundthose two questions.

36. Interestingly, the basis of the decision in Ramesh GobindramGwas removed through an amendment under Act 27 of 2013. As we havestated elsewhere, Ramesh Gobindram sought to address the questionwhether Waqf Tribunal was competent to entertain and adjudicateupon disputes regarding eviction of persons in occupation of what areadmittedly waqf properties. Since this Court answered the question inthe negative, Section 83(1) was amended by Act 27 of 2013 to includeH

the words, “eviction of tenant or determination of rights andobligations of the lessor and lessee of such property”.

37. Simultaneously, sub-section (6) was inserted in Section 7 byAct 27 of 2013. This sub-section (6) of Section 7 states that the Tribunalshall have the power of assessment of damages by unauthorizedoccupation of waqf property and to penalize such unauthorized occupantsfor their illegal occupation of the waqf property and to recover thedamages as arrears of land revenue through the Collector. It reads asfollows:

(6) The Tribunal shall have the powers of assessment ofdamages by unauthorised occupation of waqf property andto penalise such unauthorised occupants for their illegaloccupation of the waqf property and to recover the damagesas arrears of land revenue through the Collector:

Provided that whosoever, being public servant, fails in hislawful duty to prevent or remove an encroachment, shall onconviction be punishable with fine which may extend to fifteenthousand rupees for each such offence.

Ideally, the provisions of sub-section (6) should have found placesomewhere in Section 83, since what is sought to be covered by sub-section (6) of Section 7 has no correlation to the two questions aboutwhich Section 7(1) speaks. But the reason why the Parliament thoughtfit to include something in Section 7, which has no correlation to sub-section (1) of Section 7, is perhaps the fact that Ramesh Gobindramturned primarily on the language of Sections 6 and 7.

38. The upshot of the above discussion is that the basis of RameshGobindram 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 Tribunalfor relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii)any person interested therein. However, the explanation under Section6(1) clarified that the expression “any person interested therein” shallinclude every person, who, though not interested in the waqf, is interestedin the property. But by Act 27 of 2013 the words, “any person interested”were substituted by the words, “any person aggrieved”, meaningthereby that even non Muslim is entitled to invoke the jurisdiction ofthe Tribunal. Due to the substitution of the words “any person

Aaggrieved”, Act 27 of 2013 has deleted the Explanation under 6(1).This amendment has also addressed the concern expressed in RameshGobindram (in para 21 of the SCC report) whether non Muslim couldbe put to jeopardy by the bar of jurisdiction, merely because the propertyis included in the list of waqfs. We must point out at this stage that theExplanation under sub-section (1) of Section 6, as it stood at the timeBwhen Ramesh Gobindram was decided, already took care of thiscontingency, but was omitted to be brought to the notice of this court.

39. Since Ramesh Gobindram, focused mainly upon the twoquestions indicated in Sections 6(1) and 7(1) and reached conclusionthat the Tribunal would have no jurisdiction to adjudicate upon disputesCconcerning properties which are admittedly waqf properties, some ofthe decisions which followed Ramesh Gobindram took to the extremeview that if property is admitted to be waqf property, by both parties,the Waqf Tribunal would not have jurisdiction to adjudicate upon disputeconcerning the said property. Such conclusion led to an incongruityDnamely that the Tribunal would have jurisdiction to determine the largerquestion whether property is waqf property or not, but not smallerquestions relating to what are admittedly waqf properties. Normally whileinterpreting clause relating to bar of jurisdiction of civil courts in statutoryenactments, this court would tend to think, depending upon the languageemployed, that larger questions could still be decided by civil courts,Ewhile smaller questions are to be decided by the special Fora constitutedunder the Act. But in the case of Waqfs Act, 1995, the reverse hashappened, with the courts ruling that if property is admittedly waqfproperty, the Tribunal would have no jurisdiction, though it would havejurisdiction to decide whether or not property is waqf property at all.F

40. The distinction sought to be drawn on the basis of admissionor denial about property being waqf property, was also capable ofanother mischievous result. Take for instance case where propertyis disputed to be waqf property. Then as per the decision in RameshGobindram, the Waqf Tribunal would have jurisdiction to decide theGquestion whether it is waqf property or not. Suppose the Tribunal reachesthe conclusion that the disputed property is waqf property, would theTribunal then continue to have jurisdiction to grant relief or would it bedenuded of the jurisdiction, merely because the property was found tobe waqf property ? This is question for which no answer could befound if we adopt the restrictive interpretation. This is why the subsequentH

decisions of this Court found an easy way out by distinguishing RameshGobindram. For instance, the decision in Anis Fatma Begumdistinguished Ramesh Gobindram on the ground that RameshGobindram was confined to an eviction dispute and that the words “anydispute, question or other matters” appearing in Section 83(1) arewords of wide connotation. Similarly, Akkode Jumayath PalliParipalana Committee, held suit for permanent injunction to bemaintainable before Waqf Tribunal, on the ground that RameshGobindram, was distinguished in Anis Fatma Begum. Likewise, theratio in Ramesh Gobindram was held in Kiran Devi to be incapable ofbeing invoked in case where the original proceeding was first institutedbefore 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 ordistinguished Ramesh Gobindram in subsequent decisions and havingseen that the basis of Ramesh Gobindram now stands removed by Act27 of 2013, let us now turn our attention to the “other matters”, whichare required by or under the Act to be determined by the Tribunal. Thisis 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 otherauthority, in respect of any dispute, question or other matter which isrequired by or under this Act to be determined by the Tribunal.

42. The various provisions of the Act which make reference tothe Tribunal and the subject matter in relation to which such referenceis made are presented in tabular column as follows:-

ABCDEFGH

[2021] 13 S.C.R.

43. In sum and substance, the Act makes reference, to 3 typesof remedies, namely that of suit, application or appeal before theTribunal, in respect of the following matters:-

(i) Any question or dispute whether property specified as waqfproperty in the list of waqfs is waqf property or not [Sections 6(1) &7(1)];

(ii) question or dispute whether waqf specified in the list ofwaqfs is Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)];

(iii) Challenge to the settlement of scheme for management ofthe waqf or any direction issued in relation to such management [Section32(3)];

(iv) Challenge to an order for restitution/restoration of the propertyof the waqf or an order for payment to the waqf of any amountmisappropriated or fraudulently retained by the mutawalli [Section33(4)];

(v) Conditional attachment of the property of mutawalli or anyother person [Section 35(1)];

(vi) Challenge to the removal or dismissal of an Executive Officeror member of the staff [Section 38(7)];

(vii) Application by the Board, seeking an order for recovery ofpossession of property earlier used for religious purpose but later ceasedto be used as such [Section 39(3)];

A(viii) Challenge to direction issued by the Board to any Trust orSociety to get it registered [Section 40(4)];

(ix) Challenge to an order for recovery of money from themutawalli, as certified by the Auditor [Section 48(2)];

(x) Challenge to an order for delivery of possession of propertyBissued by the Collector [Section 52(4)];

(xi) Application by the Chief Executive Officer for the removalof encroachment and for delivery of possession of waqf property(Section 54(3)];

C(xii) Challenge to the removal of mutawalli from office [Section64(4)];

(xiii) Challenge to an order superseding the Committee ofManagement [Section67(4)];

(xiv) Challenge to the removal of member of the Committee of

DManagement [Section 67(6)];

(xv) Challenge to any scheme framed by the Board for theadministration of waqf, containing provision for the removal of themutawalli and the appointment of the person next in hereditary succession[Section 69(3)];

(xvi) Challenge to an order for recovery of contribution payableby the waqf to the Board, from out of the monies lying in bank [Section73(3)];

(xvii) any dispute, question or other matter relating to waqf{section 83(1)}F

(xviii) any dispute, question or other matter relating to waqfproperty {section 83(1)}

(xix) eviction of tenant or determination of the rights andobligations of lessor and lessee of waqf property {section 83(1) after itsGamendment under Act 27 of 2013 }

(xx) Whenever mutawalli fails to perform an act or duty whichhe is liable to perform [Section 94].

44. If the Waqf Act, 1995 had merely stopped with reference tothe matters listed above as capable of being adjudicated by the Tribunal,

Hthere would have been no scope for any confusion. But unfortunately,

the Act makes specific reference to court/civil Court also in certainplaces. We have already seen Sections 86, 90 and 93 making specificreference to “Court”. Section 68(6) goes step further by making areference to ‘civil court’ and it reads as follows:-

“68. Duty of mutawalli or committee to deliver possessionof records, etc.-

(1) … … …(2) … … …

(3) … … …(4) … … …

(5) … … …

(6) Nothing contained in this section shall bar the institutionof any suit in competent civil court by any person aggrievedby any order made under this section, to establish that he hasright, title and interest in the properties specified in the ordermade by any Magistrate under sub-section (2)”

45. combined reading of Sections 68(6), 86, 90 and 93 goes toshow that the bar of jurisdiction under Section 85 does not apply at leastto the following matters, covered by Sections 68(6), 86 and 90 :

(i) Whenever District Magistrate passes an order directing theremoved mutawalli or removed members of Committee of Managementto deliver possession of the records, accounts and properties of the waqf,to the successor or successor Committee of Management, any personclaiming that he has right, title and interest in the properties specified inthe order so passed by the Magistrate can approach civil court;

(ii) The Board itself may approach civil court either to set asidethe sale in execution of decree of civil court, of an immovable propertywhich is waqf property, or to set aside the transfer of any immovableproperty made by the mutawalli without the sanction of the Board or torecover possession of the property so sold or transferred, as the casemay be;

(iii) The mutawalli is also empowered to approach the civil courtto recover possession of any immovable property which is waqf property,but which had been transferred by the previous mutawalli without thesanction of the Board (this is implicit in Section 86);

A(iv) waqf property can be brought to sale in execution of adecree of civil court or for the recovery of any revenue, cess, rates ortaxes due to the Government or any local authority, but such proceedingwill be void if no notice thereof is given to the Board [this is implicit inSections 90(2) & (3)].B46. Thus the Act itself has created some confusion, leaving therest to the courts to compound the conundrum. Sadly, the AmendmentAct 27 of 2013 also did not address the problem fully.

The case on hand

47. Having thus seen the statutory scheme, including the confusionCcreated seemingly or schemingly, let us now come back to the facts ofthe case on hand. As we have seen in paragraph 3 above, the 1[st]respondent herein filed suit on the file of civil court praying for thefollowing reliefs:-

(i) mandatory injunction directing the defendants to remove theDdoor and encroachment made by them behind the shops of the plaintiffand to repair the broken back wall of the plaintiff’s shop; and

(ii) perpetual injunction restraining the defendants frominterfering with the plaintiff’s possession of the property described therein.

48. Defendant No.1 who is the appellant herein filed writtenEstatement, admitting that Khasra Plot No.135/3 in respect of whichperpetual injunction was sought, was the property of Mirza Abid Ali Begand that it is waqf property, of which Riyaz Ahmad was the mutawalli.

49. After admitting the property to be waqf property, the appellantherein (defendant no.1) filed an application under Order VII, Rule 11 onFthe sole ground that suit for injunction could be filed only before theWaqf Tribunal. This application for rejection of plaint was allowed bythe Trial Court and the suit was dismissed. The first appellate courtconfirmed the same but on second appeal, the High Court set aside thejudgments of the Trial Court and the first appellate court with directionGto the Civil Court to proceed in accordance with law. The reasoning ofthe High Court was that there was no dispute with regard to the propertybeing waqf property or the nature of the property and that thereforeCivil Court will have jurisdiction. Curiously the High Court referred tothe decisions in Ramesh Gobindram and Anis Fatma Begum, but heldthat all those decisions relied upon by the learned counsel for theHRespondents were not fully applicable to the facts of the present case.

50. The approach of the High Court, in our considered view, is notin tune with the law. The question as to whether the suit for perpetualinjunction is maintainable before the Waqf Tribunal or not, is alreadyanswered in Akkode Jumayath Palli Paripalana Committee. ThisCourt, pointed out in the said decision that Ramesh Gobindram wasdistinguished in Anis Fatma Begum, and that therefore the Tribunal hadjurisdiction to entertain suit for perpetual injunction. But unfortunately,this decision rendered by this Court on 23.07.2013 does not appear tohave 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 ParipalanaCommittee and doubted in paragraph 43 (of the SCC report) thecorrectness of the decision in Akkode Jumayath Palli ParipalanaCommittee on the ground that it was not in accord with the ratio ofRamesh Gobindram. But the said conclusion was on the basis of theobservations in Ramesh Gobindram to the effect that unless there isany provision in the Waqf Act to entertain the dispute, the Tribunal cannothave jurisdiction. The relevant portion of Paragraph 43 of Sham SinghHarike reads as follows:-“43. The two-Judge Bench of this Court in the above case heldthe suit to be maintainable in the Waqf Tribunal and noted that theratio of Ramesh Gobindram [Ramesh Gobindram v. SugraHumayun Mirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ)553] has been distinguished in Anis Fatma case [W.B. WaqfBoard v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC(Civ) 773]. But as per ratio of Ramesh Gobindram [RameshGobindram v. Sugra Humayun Mirza Waqf, (2010) 8 SCC 726: (2010) 3 SCC (Civ) 553] unless there is any provision in theWaqf Act, 1995 to entertain the said dispute only then the WaqfTribunal has jurisdiction, the suit filed for injunction was notmaintainable in the above case. Thus, what is held in the abovejudgment by the two-Judge Bench is not in accord with the ratioof Ramesh Gobindram [Ramesh Gobindram v. Sugra HumayunMirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] .”

52. We have already seen that it is not as though there was noprovision in the Waqf Act conferring jurisdiction upon the Tribunal inrespect of the waqf property. We can break the first part of Section 83

Ainto two limbs, the first concerning the determination of any dispute,question or other matter relating to waqf and the second, concerningthe determination of any dispute, question or other matter relating to awaqf property. After Amendment Act 27 of 2013, even the eviction of atenant or determination of the rights and obligation of the lessor andlessee of such property, come within the purview of the Tribunal. ThoughBthe proceedings out of which the present appeal arises, were institutedbefore the Amendment Act, the words “any dispute, question or othermatter relating to waqf or waqf property” are sufficient to coverany dispute, question or other matter relating to waqf property. This iswhy Ramesh Gobindram was sought to be distinguished both in AnisCFatma Begum and Pritpal Singh and such distinction was taken note ofin Akkode Jumayath Palli Paripalana Committee. Additionally, thisCourt 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 resurrectDthe issue through Ramesh Gobindram.

53. It is well settled that the court cannot do violence to the expresslanguage of the statute. Section 83(1) even as it stood before theamendment, provided for the determination by the Tribunal, of any dispute,question or other matter (i) relating to waqf; and (ii) relating to waqfEproperty. Therefore to say that the Tribunal will have jurisdiction only ifthe subject property is disputed to be waqf property and not if it isadmitted to be waqf property, is indigestible in the teeth of Section83(1).

54. In fact, Section 83(5) of the Act makes it clear that the TribunalFshall be deemed to be Civil Court and shall have the same powers asmay be exercised by Civil Court under the CPC, while trying suit orexecuting decree or order. This is why this Court held in Syed Mohideenand Another vs. Ramanathapura Peria Mogallam Jamath andOthers[5]that the Waqf Tribunal will have power to issue temporaryGinjunctions under Order XXXIX, Rule 1 CPC.

55. We must also point out at this stage that all the 14 decisionswhich we have tabulated in paragraph 13 above, except the one atSl.No.13, namely Kiran Devi vs. Bihar State Sunni Waqf Board[6], are

5 (2010) 13 SCC 62H6 2021 SCC Online SC 280

decisions of two member benches. Kiran Devi was decision of athree member bench of this Court. In Kiran Devi, an objection to themaintainability of the proceeding before the Waqf Tribunal was raisedon the basis of the decision in Ramesh Gobindram. But this court refusedto accept it on the ground that once the order of transfer of the suit fromthe Civil Court to the Waqf Tribunal had attained finality, the question ofjurisdiction cannot be raised. If Waqf tribunal had no jurisdiction at all,this court could not have held in Kiran Devi that the order of transferalready passed cannot be undone by accepting this plea. The decision ofthe three member bench in Kiran Devi is significant in the sense that itrecognized the fact that Ramesh Gobindram cannot be used as magicwand to toss the proceedings relating to waqf property from one forumto another. The dichotomy created in some decisions of this court, betweenthe properties which are admitted to be waqf properties and propertieswhich are disputed to be so, is on account of the misapplication of thetwo limited questions in Sections 6(1) and 7(1) to the whole of the Actincluding section 83. At the cost of repetition we should point out thatSection 83(1) provides for the determination of any dispute, question orany other matter, (i) relating to waqf and (ii) relating to waqf property.This prescription cannot be taken to have been curtailed or circumscribedby Sections 6(1) and 7(1), to come to the conclusion that the Tribunalwill assume jurisdiction only when property is disputed to be waqfproperty.

56. In the case on hand, the property is admitted to be waqfproperty. Therefore, to allow the plaintiff to ignore the Waqf Tribunaland to seek decree of permanent injunction and mandatory injunctionfrom civil court, would be ignore the mandate of section 83 and 85

which speak of any dispute, question or other matter relating to waqfor waqf property. There is also one more issue. In the written statement,the Defendant No.1 has admitted the existence of the waqf and alsoadmitted that the father of the plaintiff by name Riyaz Ahmad is themutawalli. But the claim of the plaintiff that he is the beneficiary of the

waqf has been denied. Therefore, question as to the nature of thewaqf and whether the plaintiff is beneficiary of the waqf, has alsoarisen in this case. This question has necessarily to be decided by theTribunal and not the civil court.

57. In view of the above, the appeal is allowed and the judgmentand decree of the High Court are set aside. The trial court shall return

ABC

Athe plaint to the plaintiff, for presentation to the jurisdictional WaqfTribunal. Since pleadings are complete, the Waqf Tribunal shall proceedfrom the stage of framing of issues and dispose of the suit within aperiod of 6 months. There will no order as to costs.

Divya Pandey

Appeal allowed.