Waqf Institutions Not Exempt From Paying Court Fees For Raising Dispute Before State Tribunal: Gujarat High Court

The Gujarat High Court on Wednesday (December 17) dismissed a batch of petitions moved by various waqf institutions challenging orders passed by Gujarat State Waqf Tribunal rejecting applications under the Waqf Act over disputes pertaining to waqf properties, citing insufficient court fee. In doing so the court held that there was "no blanket exemption" or waiver granted to waqf institutions from paying court fees for filing applications under Section 83(3) of Waqf Act in the State. The court was hearing a batch revision petitions pertaining to Waqf institutions, which had instituted Waqf Suits before the Gujarat State Waqf Tribunal under Section 83 of the Waqf Act, seeking recovery of possession of Waqf properties from the tenants and/or alleged encroachers, along with ancillary reliefs including mesne profits.The Tribunal found that the Waqf institutions had neither correctly valued the suits nor affixed the requisite court fees commensurate with such valuation. Despite directions Waqf plaintiffs failed to cure the defects by correcting the valuation or by depositing the requisite court fees. The tribunal thus rejected the suits. Against this the waqf institutions moved the high court.Justice JC Doshi referred to Section 83 of the Waqf Act and noted that it contemplates the institution of an application for judicial proceedings under Chapter VIII for determination of any dispute relating to a Waqf or Waqf property, which includes "eviction of a tenant and adjudication of the respective rights and obligations of the lessor and the lessee in respect of such property".The waqf institutions argued that since the Waqf Act does not use the expressions 'plaint' or 'suit', the provisions of the Court Fees Act are not attracted. Section 83(3) proceedings akin to civil suitThe court referred to definition of a plaint and observed:"the interplay of the expressions “plaint”, “application”, and “suit” unmistakably indicates that these terms are employed in different connotations under different statutes... Simplest meaning of application is to make urge before adjudicating authority to settle or decide quarrel. At the cost of repetition, it is apposite to advert to Section 83(1) of the Waqf Act, 1995, wherein the legislature has expressly conferred a right upon a Mutawalli, a person interested in a waqf, or any other person aggrieved by an order made under the Act or the Rules framed thereunder, to prefer an application for determination of any dispute, question, or other matter relating to a waqf or waqf property, including eviction of a tenant and determination of the rights and obligations of the lessor and the lessee in respect of such property""The application before the Waqf Tribunal, which constitutes the subject matter of the present revision, has been instituted precisely for the purposes of eviction of a tenant from waqf property and for adjudication of the reciprocal rights and obligations of the lessor and the lessee thereof. Chapter VIII of the Waqf Act squarely falls within the rubric of “judicial proceedings”, and the procedural mechanism governing such adversarial litigation commences with an application under Section 83(3) of the Waqf Act. The proceedings thereafter are conducted in a manner akin to a civil suit, wherein a written statement is invited, issues are framed, the parties are afforded full opportunity to adduce evidence, to advance arguments, and ultimately, the Waqf Tribunal renders its decision determining the rights of the landlord and tenant as well as the rights and obligations of the lessor and the lessee in relation to the waqf property".The court thus said that in substance and in effect, such proceedings under Section 83 of the Waqf Act are "essentially in the nature of a suit" albeit styled as an “application”. The court observed that waqf institutions had not contended that institution of judicial proceedings by filing application under Section 83(3), does not prescribe a legal course of action for enforcement of rights against a tenant, or that such proceedings do not envisage adjudication of the rights and obligations of the lessor and the lessee."On the contrary, the aforesaid statutory scheme clearly demonstrates that, whether the lis is instituted in the form of a plaint, a suit, or an application, once an action is set in motion before a Court or Tribunal for determination of competing rights inter se the parties and for grant of consequential redress by way of a judicial determination having force of executable decree, the same necessarily attracts the levy of court fees, in accordance with law," it said. On the contention that the Waqf Act and the relevant Rules are silent with regard to payment of court fees, the high court said that Section 1(5)of the Gujarat Court Fees Act, clearly indicates that the enactment governs the fees leviable in Courts and public offices within the State, in absence of any special law governing issue of levy of court ...

Waqf Institutions Not Exempt From Paying Court Fees For Raising Dispute Before State Tribunal: Gujarat High Court

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