Waqf Tribunal Has Jurisdiction Even If Subject Property Is Admitted To Be A Waqf Property: Supreme Court

The Supreme Court has held that a Wakf Tribunal has jurisdiction to adjudicate a dispute even if a property is admitted to be a waqf property."To say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1)", the bench comprising Justices Hemant Gupta and V. Ramasubramanian observed.This judgment, to an extent, settles the conundrum that followed a 2010 judgment of the Supreme Court and the amendment of the Waqf Act in 2013.In this case, the issue raised before the Apex Court was whether a suit for permanent injunction in respect of a waqf property is maintainable in a civil court or not? The High Court, in the impugned judgment, had held that the dispute does not involve either a question as to the nature of the property or the question whether the suit schedule property is a waqf property or not and also since the suit is only for injunction, the Civil Court was not barred from entertaining the suit, under Section 85 of the Act.In its judgment, the Supreme Court has referred to various decisions including Ramesh Gobindram vs. Surgra Humayun Mirza Waqf (2010) 8 SCC 726. In Ramesh Gobindram, the Supreme Court was concerned with a case where the suits for eviction of tenants filed before the Waqf Tribunal were decreed. It was held that the Waqf Act, 1995 does not provide for any proceedings before the tribunal for determination of a dispute concerning the eviction of a tenant in occupation of Waqf property or the rights and obligations of the lessor and lessees of such property. The court held that a suit for eviction of tenants from what is admittedly a waqf property could be filed only before the civil court and not before the tribunal. Some of the later judgments took a view that if a property is admitted to be a waqf property, by both parties, the Waqf Tribunal would not have jurisdiction to adjudicate upon a dispute concerning the said property.Referring to Ramesh Gobindram and many judgments that followed it, the Court noted that this conclusion led to an incongruity: If a property is admittedly a waqf property, the Tribunal would have no jurisdiction, though it would have jurisdiction to decide whether or not a property is a waqf property at all. The Court observed that this distinction sought to be drawn on the basis of admission or denial about a property being a waqf property, was also capable of another mischievous result: "Take for instance a case where a property is disputed to be a waqf property. Then as per the decision in Ramesh Gobindram, the Waqf Tribunal would have jurisdiction to decide the question whether it is a waqf property or not. Suppose the Tribunal reaches the conclusion that the disputed property is a waqf property, would the Tribunal then continue to have jurisdiction to grant relief or would it be denuded of the jurisdiction, merely because the property was found to be a waqf property ? This is a question for which no answer could be found if we adopt the restrictive interpretation."The court also observed that the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7. It said:31. A bare reading of Sections 6 and 7 extracted above, shows that the language employed therein appears to have deflected the attention of many a court without exception. The reason why we say so, is this. A careful look at the scheme of the Act would show that the Act is divided into 9 chapters. Chapter II which contains Sections 4 to 8, is primarily concerned with the survey of waqfs4 . Sections 6 and 7 are incidental to the scheme of Chapter II alone, which is why they speak only about two questions namely, (i) whether a particular property specified as a waqf property in the list of waqfs is actually a waqf property or not; and (ii) whether a waqf specified in such list is a Shia waqf or Sunni waqf. While Section 4 contemplates a preliminary survey of all waqfs in the State, Section 5(2) speaks about publication of the list of waqfs (separately for Shia and Sunni) in the official gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only to the aforesaid two questions. In other words, the questions relevant for the purposes of Sections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7.32. Sections 83 and 85, as well as Sections 86, 90 and 93, which use the word "court", are to be found in Chapter VIII of the Act. The heading given to Chapter VIII is "Judicial Proceedings". Therefore, for finding an answer to the question relating to the bar of jurisdiction under Section 85, it is not enough merely to refer to...

Waqf Tribunal Has Jurisdiction Even If Subject Property Is Admitted To Be A Waqf Property: Supreme Court

Ashok KM

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