Civil Court Has No Jurisdiction When There Is A Dispute As To Whether Suit Property Is Wakf Or Not: SC [Read Judgment]
“When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court.”
The Supreme Court has observed that when issue in the suit is as to whether suit property is Wakf property or not, it is required to be decided by the Tribunal and the Civil Court would have no jurisdiction.
The bench comprising Justice Ashok Bhushan and Justice KM Joseph were considering appeals filed by Punjab Wakf Board against two orders of the Punjab and Haryana High Court in different cases.
In first case, the suit was filed by Punjab Wakf Board in civil court seeking injunction restraining the defendants. The defendants filed written statement challenging the maintainability of the suit and denying the title of the plaintiff. After the suit was transferred to the Wakf Tribunal, the defendants filed an application before the Tribunal for rejection of the plaint on the ground that the Tribunal had no jurisdiction to entertain the suit and the Civil Court alone had jurisdiction to entertain the suit. This application was dismissed by the Tribunal.
The High Court, allowed the revision petition against this order, and held that since the 'tenant' was a non-muslim, the Wakf Tribunal had no jurisdiction in the matter and it was only the Civil Court which had the jurisdiction.
Allowing the appeal, the bench observed that the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Wakf Act, 1995. The bench observed that the High Court had erroneously applied that portion of judgment of Ramesh Gobindram where it had noticed an earlier judgment in Board of Muslim Wakfs, Rajasthan v. Radha Kishan. Referring to explanation to sub-section (1) of Section 6 of the Act, which was introduced subsequently, the bench said:
"The explanation to sub-section (1) of Section 6 makes it clear that any person interested 'therein makes it clear that any person interested 'therein' who, though not interested in the Wakf concerned, is interested in such property. The above amendment of Section 6 sub-section (1) has made the interpretation of this Court in Board of Muslim Wakfs (supra) of Section 6 sub-section (1) inapplicable. Thus, the interpretation that the word 'therein' refers to only Wakf has been consciously departed with and any person interested therein is a person who is interested in Wakf as well as in Wakf property both."
The court also referred to the judgment in Haryana Wakf Board vs. Mahesh Kumar, which had held that the question as to whether the suit property is a Wakf property is a question has to be decided by the Tribunal. Applying the said ratio to this case, the bench observed:
"The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court…. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal."
Another incidental issue considered by the court was whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5. In this regard, the bench said:
"The provision contained in proviso to Section 6(1) 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 shall be applicable to 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 63 him in that behalf during the course of the relevant inquiry under Section 4. .. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1)."
In the second case also, the High court had held that, the suit filed by the Wakf board for possession and permanent injunction, was maintainable only before the civil court relying on the judgment in Ramesh Gobindram case. The bench upheld the High Court order probably because in the said case there was no issue as to whether suit property is Wakf property or not. The bench said that, the crux of the judgment in Ramesh Gobindram is the following:
"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 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." Thus, the ratio of the judgment as noticed above is "as to whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought."