Ramesh Gobindram (dead) through Lrs.V/s Sugra Humayun Mirza Wakf 3605 of 2008 1 Sep 2010

REPORTABLE


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.1182 OF 2006


Ramesh Gobindram (dead) through Lrs. ...Appellant


Versus


Sugra Humayun Mirza Wakf ...Respondent


(With C.A. No.1183 of 2006 and C.A. No. 3605 of 2008)




JUDGMENT


T.S. THAKUR, J.


1. These three appeals by special leave arise out of three

different orders passed by the High Court of Andhra Pradesh

whereby revision petitions filed by the appellants against the

2


orders of A.P. Wakf Tribunal have been dismissed and the

orders of eviction passed by the Tribunal affirmed. Since the

appeals raise a common question of law for our

determination the same were heard together and shall stand

disposed of by this common order. The question is whether

the Wakf Tribunal constituted under Section 83 of the Wakf

Act, 1995 was competent to entertain and adjudicate upon

disputes regarding eviction of the appellants who are

occupying different items of what are admittedly Wakf

properties. The Wakf Tribunal before whom the suits for

eviction of the tenants were filed answered the question

regarding its jurisdiction in the affirmative and decreed the

suit filed against the appellant. Aggrieved by the said orders

the appellants filed revision petitions before the High Court

of Andhra Pradesh, inter alia, contending that the Tribunal

was in error in assuming jurisdiction and directing their

eviction. Dismissal of the Revision Petitions by the High

Court has led to the filing of the present appeals as already

noticed above.
3



2. Whether or not the Wakf Tribunal can entertain and

adjudicate upon a dispute regarding eviction of a tenant

holding wakf property under the Wakf Board, would depend

upon the scheme of the Wakf Act, 1995 and express or

implied exclusion of the jurisdiction of the Civil Courts to

entertain any such dispute. If the Act excludes the

jurisdiction of the Civil Courts whether such exclusion is

absolute and all pervasive or limited only to a particular

class of disputes is also an incidental question that may have

to be addressed. There is a cleavage in the judicial opinion

expressed on these questions by different High Courts in the

country. The High Court of Andhra Pradesh has in T.

Shivalingam v. A.P. Wakf Tribunal, Hyderabad & Ors.

1999 (3) ALT 602, P. Rama Rao & Ors. v. High Court of

Andhra Pradesh, rep. by Registrar (Vigilance) and Ors.

2000 (1) ALT 210, Jai Bharat Co-operative Housing

Society Ltd. v. A.P. State Wakf Board, Hyderabad 2000

(5) ALD 743 and Syed Muneer v. Chief Executive Officer

and 5 Ors. 2001 (4) ALD 430 taken the view that the
4


Tribunal established under Section 83 of the Wakf Act is

competent to entertain and adjudicate upon all kinds of

disputes so long as the same relate to any wakf property. So

also the High Court of Rajasthan in Anjuman A. Burhani v.

Daudi Bohra Jamaet, Registered Society and Anr. AIR

2009 Raj. 150 has taken the view that, the very purpose of

creating a Tribunal under the Wakf Act would be defeated if

the jurisdiction of the Tribunal is construed in a narrow

sense. A similar view has been expressed by the High Court

of Madhya Pradesh in Wakf Imambara Imlipura v. Smt.

Khursheeda Bi & Ors. AIR 2009 MP 238. The High Court of

Kerala in Aliyathammada Beethathabiyyapura Pookoya

Haji v. Pattakkal Cheriyakoya & Ors. AIR 2003 Ker. 366

and the High Court of Punjab & Haryana in Surinder Singh

v. Punjab Wakf Board & Ors., CR No.32 of 2009(1) have

also taken a similar view.


3. A contrary view has been expressed by the High Court

of Karnataka in St. Gregorious Orthodox Cathedral,

Bangalore v. Aga Ali Asgar Wakf, Bangalore and Anr.
5


2008 (6) KarLJ 358 and by the High Court of Madras in

Saleem v. PA Kareem & Ors. 2008 (2) CTC 492 (Mad).

The High Court of Allahabad in Suresh Kumar v. Managing

Committee 2009 INDLAW All 1770 has concurred with that

line of reasoning. The High Court of Bombay in Abdul

Kadar @ Babbu s/o Ismail v. Masjid Juma Darwaja a

registered Public Trust through its Secretary Manzoor

Mohammad z/o Zahoor Mohammad 2009 (1) BomCR

498 has also taken the view that in cases where the dispute

is not regarding the nature of the property, it is a civil

dispute which can be determined only by the competent Civil

Court and not by the Tribunal constituted under Section 83

of the Act. We shall presently advert to the reasoning and

the views taken by the High Courts in the decisions

mentioned above. But before we do so, we need to briefly

refer to the scheme of the Wakf Act, 1995 and the historical

background in which the same was enacted.


4. Wakfs and matters relating thereto were for a long time

governed by the Wakf Act, 1954. The need for a fresh
6


legislation on the subject was, however, felt because of the

deficiencies noticed in the working of the said earlier

enactment especially those governing the Wakf Boards, their

power of superintendence and control over the management

of individual wakfs. Repeated amendments to the 1954 Act,

having failed to provide effective answers to the questions

that kept arising for consideration, the Parliament had to

bring a comprehensive legislation in the form of Wakf Act

1995 for better administration of wakfs and matters

connected therewith or incidental thereto. Chapter I of the

1995 Act deals with Preliminaries like definitions, title,

extent and commencement and application of this Act.

Chapter II provides for preliminary survey of wakfs,

publication of list of wakfs, disputes regarding wakfs and

also the powers of the Tribunal to determine such disputes.

Chapter III deals with Central Wakf Council while Chapter IV

deals with establishment of Boards and their functions.

Chapter V, VI and VII regulate the registration of Wakfs and

maintenance of accounts thereof and the finances of the
7


Wakf Board. Chapter VIII, with which the controversy at

hand is more intimately connected deals with judicial

proceedings and, inter alia, provides for constitution of

tribunals and adjudication of disputes by them as well as

exclusion of jurisdiction of Civil Courts. Chapter IX is a

miscellaneous chapter that confers power on the Central

Government to regulate the secular activities of wakfs and

empowers the State Government to issue directions apart

from other provisions like establishment and reorganization

and establishment of boards.


5. Before we take up the core issue whether the

jurisdiction of Civil Court to entertain and adjudicate upon

disputes regarding eviction of wakf property stands excluded

under the Wakf Act we may briefly outline the approach that

the Courts have to adopt while dealing with such questions.

The well-settled rule in this regard is that the Civil Courts

have the jurisdiction to try all suits of civil nature except

those entertainment whereof is expressly or impliedly

barred. The jurisdiction of Civil Courts to try suits of civil
8


nature is very expansive. Any statue which excludes such

jurisdiction is, therefore, an exception to the general rule

that all disputes shall be triable by a Civil Court. Any such

exception cannot be readily inferred by the Courts. The

Court would, lean in favour of a construction that would

uphold the retention of jurisdiction of the Civil Courts and

shift the onus of proof to the party that asserts that Civil

Court's jurisdiction is ousted.


6. Even in cases where the statute accords finality to the

orders passed by the Tribunals, the Court will have to see

whether the Tribunal has the power to grant the reliefs

which the Civil Courts would normally grant in suits filed

before them. If the answer is in negative exclusion of the

Civil Courts jurisdiction would not be ordinarily inferred. In

Rajasthan SRTC v. Bal Mukund Bairwa (2), (2009) 4

SCC 299, a three-Judge Bench of this Court observed:


"There is a presumption that a civil court has
jurisdiction. Ouster of civil court's jurisdiction
is not to be readily inferred. A person taking
a plea contra must establish the same. Even
9


in a case where jurisdiction of a civil court is
sought to be barred under a statute, the civil
court can exercise its jurisdiction in respect
of some matters particularly when the
statutory authority or tribunal acts without
jurisdiction."



7. To the same effect are the decisions of this Court in

Pabbojan Tea Co. Ltd. v. Dy. Commr (1968) 1 SCR 260,

Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003

SC 2508, Dhulabhai v. State of M.P. (1968) 3 SCR 662,

Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC

536, State of A.P. v. Manjeti Laxmi Kantha Rao (2000) 3

SCC 689, Dhruv Green Field Ltd. v. Hukam Singh and

Ors. (2002) 6 SCC 416, Dwarka Prasad Agarwal v.

Ramesh Chandra Agarwala, AIR 2003 SC 2696 and

State of Tamil Nadu v. Ramalinga Samigal Madam AIR

1986 SC 794.


8. Let us now see whether the respondent-Wakf Board

who claims exclusion of jurisdiction of Civil Court has

discharged the onus that lay upon it. Section 6 of the Act
10


which bears direct relevance to that question may at this

stage be extracted:

"Section 6. Disputes regarding wakfs.-

(1) If any question arises whether a
particular property specified as wakf property
in the list of wakfs is wakf property or not or
whether a wakf specified in such list is a Shia
wakf or Sunni wakf, the Board or the
mutawalli of the wakf or any person
interested therein may institute a suit in a
Tribunal for the decision of the question and
the decision of the Tribunal in respect of such
matter shall be final:

Provided that no such suit shall be
entertained by the Tribunal after the expiry
of one year from the date of the publication
of the list of wakfs.

Explanation-For the purposes of this
section and Section 7, the expression "any
person interested therein", shall, in relation
to any property specified as wakf property in
the list of wakfs published after the
commencement of this Act, shall include also
every person who, though not interested in
the wakf concerned, is interested in such
property and to whom a reasonable
opportunity had been afforded to represent
his case by notice served on him in that
behalf during the course of the relevant
inquiry under Section 4.

(2) Notwithstanding anything contained in
sub-section (1), no proceeding under this Act
11


in respect of any wakf shall be stayed by
reason, only of the pendency of any such suit
or of any appeal or other proceeding arising
out of such suit.

(3) The Survey Commissioner shall not be
made a party to any suit under sub-section
(1) and no suit, prosecution or other legal
proceeding shall lie against him in respect of
anything which is in good faith done or
intended to be done in pursuance of this Act
or any rules made thereunder.

(4) The list of wakfs shall, unless it is
modified in pursuance of a decision of the
Tribunal under sub-section (1), be final and
conclusive.

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


9. A plain reading of sub-section (5) of Section 6 (supra)

would show that the Civil Court's jurisdiction to entertain

any suit or other proceedings stands specifically excluded in

relation to any question referred to in sub-section (1). The

exclusion it is evident from the language employed is not

absolute or all pervasive. It is limited to the adjudication of

the question (a) whether a particular property specified as
12


wakf property in the list of wakfs is or is not a wakf

property, and (b) whether a wakf specified in such list is a

Shia wakf or a Sunni wakf. The Board or the mutawalli of

the wakf or any person interested in the wakf is competent

to institute a suit in a Tribunal for a decision on the above

question or questions, which decision shall then be final

provided that no such suit can be entertained by the

Tribunal after the expiry of one year from the date of the

publication of the list of wakfs.


10. We may at this stage refer to Section 7 of the Act

which provides for the forum for determination of questions

referred to therein and arising after the commencement of

this Act. What is important is that the questions referred to

in Section 7(1) are the very same questions that are

referred to in Section 6(1) with the only difference that

Section 7(1) refer to the said questions arising after the

commencement of the Act. Section 7 is extracted below:


"Section 7. Power of Tribunal to
determine disputes regarding wakfs.-
13



(1) If, after the commencement of this Act,
any question arises, whether a
particular property specified as wakf
property in a list of wakfs is wakf
property or not, or whether a wakf
specified in such list is a Shia wakf or a
Sunni wakf, the Board or the mutawalli
of the wakf, or any person interested
therein, may apply to the Tribunal
having jurisdiction in relation to such
property, for the decision of the
question and the decision of the
Tribunal thereon shall be final:

Provided that -

(a) in a case of the list of wakfs relating to
any part of the State and published
after the commencement of this Act no
such application shall be entertained
after the expiry of one year from the
date of publication of the list of wakfs;
and

(b) in the case of the list of wakfs to any
part of the State and published at any
time within a period of one year
immediately preceding the
commencement of this Act, such an
application may be entertained by
Tribunal within the period of one year
from such commencement;

Provided further that where any such
question has been heard and finally decided
by a Civil Court in a suit instituted before
14


such commencement, the Tribunal shall not
re-open such question.

(2) Except where the Tribunal has no
jurisdiction by reason of the provisions
of sub-section (5), no proceeding under
this section in respect of any wakf shall
be stayed by any Court. Tribunal or
other authority by reason only of the
pendency of any suit, application or
appeal or other proceeding arising out
of any such suit, application, appeal or
other proceeding.

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

(4) The list of wakfs and where any such list
is modified in pursuance of a decision of
the Tribunal under sub-section (1), the
list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction
to determine any matter which is the
subject-matter of any suit or proceeding
instituted or commenced in a Civil Court
under sub-section (1) of Section 6,
before the commencement of this Act or
which is the subject-matter of any
appeal from the decree passed before
such commencement in any such suit or
proceeding or of any application for
revision or review arising out of such
suit, proceeding or appeal, as the case
may be."
15


11. Second proviso to Section 7(1) accords finality to the

judgments of the Civil Court in suits instituted before such

commencement. Sub-section (5) to Section 7 excludes from

the jurisdiction of the Tribunal any dispute which is the

subject matter of a suit in a Civil Court instituted before the

commencement of the Act.


12. From a conjoint reading of the provisions of Sections 6

and 7 (supra) it is clear that the jurisdiction to determine

whether or not a property is a wakf property or whether a

wakf is a Shia wakf or a Sunni wakf rests entirely with the

Tribunal and no suit or other proceeding can be instituted or

commenced in a Civil Court in relation to any such question

after the commencement of the Act. What is noteworthy is

that under Section 6 read with Section 7 (supra) the

institution of the Civil Court is barred only in regard to

questions that are specifically enumerated therein. The bar

is not complete so as to extend to other questions that may

arise in relation to the wakf property.
16


13. We may at this stage usefully digress from the core

issue only to highlight the fact that Sections 6(1) and the

proviso thereto has fallen for interpretation of this Court on

a few occasions. In Board of Muslim Wakfs Rajasthan v.

Radha Kishan and Ors. (1979) 2 SCC 468 one of the

questions that fell for determination was, who are the

parties that could be taken to be concerned in a proceeding

under sub-section(1) of Section 6 of the Act. This Court held

that under Section 6(1) the Board or the mutawalli of the

wakf or any person interested therein is entitled to file a suit

but the word "therein" following the expression "any person

interested" must necessarily refer to the word "wakf" which

immediately precedes it. The object underlying the proviso

observed, this Court was to confine the power to file a suit

to the mutawalli and persons interested in the Wakf. It did

not extend to persons who are not persons interested in the

wakf. Consequently the right, title and interest of a stranger,

(a non-Muslim), to the wakf in a property cannot be put in

jeopardy merely because that property is included in the list
17


of wakfs. The special rule of limitation prescribed by the

proviso to Section 6(1) was itself held inapplicable to him

and a suit for declaration of title to any property included in

the list of wakfs held maintainable even after the expiry of

the period of one year. The following passage from the

decision is in this regard apposite:

"The question that arises for
consideration, therefore, is as to who are the
parties that could be taken to be concerned
in a proceeding under sub-section (1) of
Section 6 of the Act, and whether the list
published under sub-section (2) of Section 5
declaring certain property to be wakf
property, would bind a person who is neither
a mutawalli nor a person interested in the
wakf.


The answer to these questions must
turn on the true meaning and construction of
the word `therein' in the expression `any
person interested therein' appearing in sub-
section (1) of Section 6. In order to
understand the meaning of the word `therein'
in our view, it is necessary to refer to the
preceding words `the Board or the mutawalli
of the wakf'. The word `therein' must
necessarily refer to the `wakf' which
immediately precedes it. It cannot refer to
the `wakf property'. Sub-section (1) of
Section 6 enumerates the persons who can
file suits and also the questions in respect of
which such suits can be filed. In enumerating
the persons who are empowered to file suits
18


under this provision, only the Board, the
mutawalli of the wakf, and `any person
interested therein', thereby necessarily
meaning any person interested in the wakf,
are listed. It should be borne in mind that
the Act deals with wakfs, its institutions and
its properties. It would, therefore, be logical
and reasonable to infer that its provisions
empower only those who are interested in
the wakfs, to institute suits.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxx It follows that where a stranger
who is a non-Muslim and is in possession of a
certain property his right, title and interest
therein cannot be put in jeopardy merely
because the property is included in the list.
Such a person is not required to file a suit for
a declaration of his title within a period of
one year. The special rule of limitation laid
down in proviso to sub-section (1) of Section
6 is not applicable to him. In other words,
the list published by the Board of Wakfs
under sub-section (2) of Section 5 can be
challenged by him by filing a suit for
declaration of title even after the expiry of
the period of one year, if the necessity of
filing such suit arises."


14. To the same effect is the decision of this Court in

Punjab Wakf Board v. Gram Panchayat Alias Gram

Sabha (2000) 2 SCC 121.
19


15. The exclusion of the jurisdiction of the Civil Courts to

adjudicate upon disputes whether a particular property

specified in the wakf list is or is not a wakf property or

whether a wakf specified in list is a Shia wakf or a Sunni

wakf is clear and presents no difficulty whatsoever. The

difficulty, however, arises on account of the fact that apart

from Section 6(5) which bars the jurisdiction of the Civil

Courts to determine matters referred to in Section 6(1),

Section 85 of the Act also bars the jurisdiction of the Civil

Courts to entertain any legal proceedings in respect of any

dispute, question or matter relating to a wakf property.

Section 85 of the Act reads:



"85. Bar of jurisdiction of Civil Courts -
No suit or other legal proceedings shall lie in
any Civil Court in respect of any dispute,
question or other matter relating to any
wakf, wakf property or other matter which is
required by or under this Act to be
determined by a Tribunal. "
20


16. A plain reading of the above would show that the Civil

Court's jurisdiction is excluded only in cases where the

matter in dispute is required under the Act to be determined

by the Tribunal. The words "which is required by or under

this Act to be determined by Tribunal" holds the key to the

question whether or not all disputes concerning the wakf or

wakf property stand excluded from the jurisdiction of the

Civil Court. Whenever a question arises whether "any

dispute, question or other matter" relating to "any wakf or

wakf property or other matter" falls within the jurisdiction of

a Civil Court the answer would depend upon whether any

such dispute, question or other matter is required under the

Act to be determined by the Tribunal constituted under the

Act. If the answer be in the affirmative, the jurisdiction of

Civil Court would be excluded qua such a question, for in

that case the Tribunal alone can entertain and determine

any such question. The bar of jurisdiction contained in

Section 85 is in that sense much wider than that contained

in Section 6(5) read with Section 7 of the Wakf Act. While
21


the latter bars the jurisdiction of the Civil Court only in

relation of questions specified in Sections 6(1) and 7(1), the

bar of jurisdiction contained in Section 85 would exclude the

jurisdiction of the Civil Courts not only in relation to matters

that specifically fall in Sections 6 and 7 but also other

matters required to be determined by a Tribunal under the

Act. There are a host of such matters in which the Tribunal

exercises original or appellate jurisdiction. To illustrate the

point we may usefully refer to some of the provisions of the

Act where the bar contained in the said section would get

attracted. Section 33 of the Act deals with the power of

inspection by a Chief Executive Officer or person authorized

by him. In the event of any failure or negligence on the part

of a mutawalli in the performance of his duties leading to

any loss or damage, the Chief Executive Officer can with the

prior approval of the Board pass an order for the recovery of

the amount or property which has been misappropriated,

misapplied or fraudulently retained. Sub-section (4) of

Section 33 then entitles the aggrieved person to file an
22


appeal to the Tribunal and empowers the Tribunal to deal

with and adjudicate upon the validity of the orders passed

by the Chief Executive Officer.


17. Similarly under Section 35 the Tribunal may direct the

mutawalli or any other person concerned to furnish security

or direct conditional attachment of the whole or any portion

of the property so specified.


18. Section 47 of the Act requires the accounts of the

wakfs to be audited whereas Section 48 empowers the

Board to examine the audit report, and to call for an

explanation of any person in regard to any matter and pass

such orders as it may think fit including an order for

recovery of the amount certified by the auditor under

Section 47(2) of the Act. The mutawalli or any other person

aggrieved by any such direction has the right to appeal to

the Tribunal under Section 48. Similar provisions giving

powers to the Wakf Board to pass orders in respect of

matters stipulated therein are found in Sections 51, 54, 61,
23


64, 67, 72 and 73 of the Act. Suffice it to say that there are

a host of questions and matters that have to be determined

by the Tribunal under the Act, in relation to the wakf or wakf

property or other matters. Section 85 of the Act clearly bars

jurisdiction of the Civil Courts to entertain any suit or

proceedings in relation to orders passed by or proceedings

that may be commenced before the Tribunal. It follows that

although Section 85 is wider than what is contained in

Sections 6 and 7 of the Act, the exclusion of jurisdiction of

Civil Courts even under Section 85 is not absolute. It is

limited only to matters that are required by the Act to be

determined by a Tribunal. So long as the dispute or question

raised before the Civil Court does not fall within four corners

of the powers vested in the Tribunal, the jurisdiction of the

former to entertain a suit or proceedings in relation to any

such question cannot be said to be barred.


19. The High Courts of Andhra Pradesh, Rajasthan, Madhya

Pradesh, Punjab and Haryana have in the decisions to which

we have made reference in the earlier part of this judgment
24


taken the view that the jurisdiction of the Civil Courts is

barred in respect of disputes that concerns with any wakf or

wakf property. The decisions rendered by these High Courts

draw support for that conclusion from Section 83 of the

Wakf Act, 1995. The language employed in Section 83 of the

Act has been understood to be so wide as to include any

dispute, question or other matter relating to a wakf or wakf

property. Section 83 of the Act, however, does not deal with

the exclusion of the jurisdiction of the Civil Courts to

entertain civil suits generally or suit of any particular class or

category. The exclusion of Civil Court's jurisdiction is dealt

with by Section 6(5) and Section 85 of the Act. To interpret

Section 83 as a provision that excludes the jurisdiction of

the Civil Courts is not, therefore, legally correct, for that

provision deals with constitution of Tribunals, the procedure

which the Tribunals would follow and matters relating

thereto. It reads:



"83. Constitution of Tribunals, etc.
25


(1) The State Government shall, by
notification in the Official Gazette, constitute
as many Tribunals, as it may think fit, for the
determination of any dispute, question or
other matter relating to a wakf or wakf
property under this Act and define the local
limits and jurisdiction under this Act of each
of such Tribunals.

(2) Any mutawalli person interested in a wakf
or any other person aggrieved by an order
made under this Act, or rules made
thereunder, may make an application within
the time specified in this Act or where no
such time has been specified, within such
time as may be prescribed, to the Tribunal
for the determination of any dispute,
question or other matter relating to the wakf.

(3) Where any application made under sub-
section (1) relates to any wakf property
which falls within the territorial limits of the
jurisdiction of two or more Tribunals, such
application may be made to the Tribunal
within the local limits of whose jurisdiction
the mutawalli or any one of the mutawallis of
the wakf actually and voluntarily resides,
carries on business or personally works for
gain, and, where any such application is
made to the Tribunal aforesaid, the other
Tribunal or Tribunals having jurisdiction shall
not entertain any application for the
determination of such dispute, question or
other matter:

Provided that the State Government
may, if it is of opinion that it is expedient in
the interest of the wakf or any other person
26


interested in the wakf or the wakf property to
transfer such application to any other
Tribunal having jurisdiction for the
determination of the dispute, question or
other matter relating to such wakf or wakf
property, transfer such application to any
other Tribunal having jurisdiction, and, on
such transfer, the Tribunal to which the
application is so transferred shall deal with
the application from the stage which was
reached before the Tribunal from which the
application has been so transferred, except
where the Tribunal is of opinion that it is
necessary in, the interests of justice to deal
with the application afresh.

(4) Every Tribunal shall consist, of one
person, who shall be a, member of the State
Judicial Service holding a rank, not below
that of a District, Sessions or Civil Judge,
Class I, and the appointment of every such
person may be made either by name or by
designation.

(5) The Tribunal shall be deemed to be a civil
court and shall have the same powers as
may be exercised by a civil court under the
Code of Civil Procedure, 1908 , (5 of 1908 .)
while trying a suit, or executing a decree or
order.

(6) Notwithstanding anything contained in the
Code of Civil Procedure, 1908, (5 of 1908),
the Tribunal shall follow such procedure as,
may be prescribed.

(7) The decision of the Tribunal shall be final
and binding upon the parties to the
27


application and it shall have the force of a
decree made by a, civil court.

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

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

Provided that a High Court may, on its
own motion or on the application of the
Board or any person aggrieved, call for and
examine the records relating to any dispute,
question or other matter which has been
determined by the Tribunal for the purpose of
satisfying itself as to the correctness, legality
or propriety of such determination and may
confirm, reverse or modify such
determination or pass such other order as it
may think fit."



20. It is clear from sub-section(1) above that the State

Government is empowered to establish as many Tribunals as

it may deem fit for the determination of any dispute,

question or other matter relating to a wakf or wakf property

under the Act and define the local limits of their jurisdiction.

Sub-section (2) of Section 83 permits any mutawalli or other
28


person interested in a wakf or any person aggrieved of an

order made under the Act or the rules framed thereunder to

approach the Tribunal for determination of any dispute,

question or other matter relating to the wakf. What is

important is that the Tribunal can be approached only if the

person doing so is a mutawalli or a person interested in a

wakf or aggrieved by an order made under the Act or the

rules. The remaining provisions of Section 83 provide for the

procedure that the Tribunal shall follow and the manner in

which the decision of a Tribunal shall be executed. No appeal

is, however, maintainable against any such order although

the High Court may call for the records and decide about the

correctness, legality or propriety of any determination made

by the Tribunal.


21. There is, in our view, nothing in Section 83 to suggest

that it pushes the exclusion of the jurisdiction of the Civil

Courts extends beyond what has been provided for in

Section 6(5), Section 7 and Section 85 of the Act. It simply

empowers the Government to constitute a Tribunal or
29


Tribunals for determination of any dispute, question of other

matter relating to a wakf or wakf property which does not

ipso facto mean that the jurisdiction of the Civil Courts

stands completely excluded by reasons of such

establishment. It is noteworthy that the expression "for the

determination of any dispute, question or other matter

relating to a wakf or wakf property" appearing in Section

83(1) also appears in Section 85 of the Act. Section 85 does

not, however, exclude the jurisdiction of the Civil Courts in

respect of any or every question or disputes only because

the same relates to a wakf or a wakf property. Section 85 in

terms provides that the jurisdiction of the Civil Court shall

stand excluded in relation to only such matters as are

required by or under this Act to be determined by the

Tribunal. The crucial question that shall have to be answered

in every case where a plea regarding exclusion of the

jurisdiction of the Civil Court is raised is whether the

Tribunal is under the Act or the Rules required to deal with

the matter sought to be brought before a Civil Court. If it is
30


not, the jurisdiction of the Civil Court is not excluded. But if

the Tribunal is required to decide the matter the jurisdiction

of the Civil Court would stand excluded.


22. In the cases at hand the Act does not provide for any

proceedings before the Tribunal for determination of a

dispute concerning the eviction of a tenant in occupation of a

wakf property or the rights and obligations of the lessor and

the lessees of such property. A suit seeking eviction of the

tenants from what is admittedly wakf property could,

therefore, be filed only before the Civil Court and not before

the Tribunal. The contrary view expressed by the Tribunal

and the High Court of Andhra Pradesh is not, therefore,

legally sound. So also the view taken by the High Courts of

Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana

in the decisions referred to earlier do not declare the law

correctly and shall to the extent they run counter to what we

have said hereinabove stand overruled. The view taken by

the High Courts of Allahabad, Karnataka, Madras and

Bombay is, however, affirmed.
31


23. In the result these appeals succeed and are hereby

allowed. The impugned orders passed by the High Court and

those passed by the Wakf Tribunal shall stand set aside and

the suit filed by the respondent-Wakf Board for the eviction

of the appellants dismissed leaving the parties to bear their

own costs. We make it clear that this order shall not prevent

the Wakf Board from instituting, if so advised, appropriate

civil action before the competent Civil Court for redress in

accordance with law. No costs.




.................................J.
(MARKANDEY KATJU)




.................................J.
New Delhi (T.S. THAKUR)
September 1, 2010