RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. SUGRA HUMAYUN MIRZA WAKF

Citation: [2010] 10 S.C.R. 945

Court: Supreme Court of India

Bench: MARKANDEY KATJU, T.S. THAKUR

Case summary

RAMESH GOBINDRAM (DEAD) THROUGH LRS. v. SUGRA HUMAYUN MIRZA WAKF.pdf

Judgment text

[2010] 10 S. C. R. 945 RAMESH GOBINDRAM (DEAD) THROUGH LRS. V. SUGRA HUMAYUN MIRZA WAKF (Civil Appeal No. 1182 of 2006) SEPTEMBER 1, 2010 [MARKANDEY KATJU AND T. S. THAKUR, JJ. ] Wakf Act, 1995 - s. 6(5), 7, 83 and 85- Wakf Tribunal- Jurisdiction of - To decide eviction suit in respect of wakf property - Held: The Act does not provide that ·the Wakf Tribunal should decide the dispute regarding eviction of tenant in possession of wakf property- Therefore, Eviction suit is maintainable before civil court and not before Wakf Tribunal. Jurisdiction - Jurisdiction of civil court vis-a-vis Wakf Tribunal constituted under Wakf Act - Determination of - Discussed. Respondent filed suits seeking eviction of the appellant-tenant, who was occupying a wakf property. Wakf Tribunal holding that it had the jurisdiction to decide the issue, decreed the eviction suits. In revision petitions, the High Court affirmed the decree.

In the instant appeals, the question for consideration was whether the Wakf Tribunal constituted u/s. 83 of the Wakf Act, 1995 was competent to entertain and adjudicate upon disputes regarding eviction of the appellants who were occupying the wakf property. Allowing the appeals, the Court HELD: 1. The well-settled rule 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 nature is very expansive. Any statute 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.

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. [Paras 5 and 6) [954-H; 955-A-D] Rajasthan SRTC v. Bal Mukund Bairwa (2), (2009) 4 SCC 299; 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; State of Tamil Nadu v. RamalingaSamigal Madam AIR 1986 SC 794 - relied on. 2.

In the instant case, the respondent-Wakf Board who claims exclusion of jurisdiction of civil court has not discharged the onus that lay upon it. From a conjoint reading of the provisions of Sections 6 and 7 of the Wakf Act, 1995, it is clear that the jurisdiction to determine . G 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. Under SUGRA HUMAYUN MIRZA WAKF Section 6 r/w Section 7, 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. [Paras 8 and 12) [956-A-B; 959-F-H; 960-A] Board of Muslim Wakfs Rajasthan v. Radha Kishan and Ors. (1979) 2SCC 468; Punjab Wakf Board v.

Gram Panchayat alias Gram Sabha (2000) 2 sec 121 - relied on. 3. A plain reading of s. 85 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 the 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) r/w Section 7 of the Wakf Act. While 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. [Para 16] [962-D-H; 963-A-B) 4. 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 u/s. 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. [Para 18) [963- H; 964-A-C] . 5. Section 83 of the Act, 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 thejurisdiction 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. There is nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the civil courts 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 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. 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.

[Paras 19 and SUGRA HUMAYUN MIRZA WAKF 21] [964-E-G; 967-0-G] 6. 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 8 the jurisdiction of the civil court shall stand excluded in relation to only such matters as are required by or under the 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 not, the jurisdiction of the civil court is not excluded. But if the tribunal is required to dedde the matter, the jurisdiction . of the civil court would stand excluded. [Para 21] [967-G- H; 968-A-8] 7.

In the instant cases, the Act does not provide for any proceedings before the Wakf 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. [Para 22] [968-B-C] T. Shivalingam v. AP. Wakf Tribunal, Hyderabad and Ors. 1999 (3) ALT 602;. P. Rama Rao and 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) ALO 743; Syed Muneer v. Chief Executive Officer and 5 Ors. 2001 (4) ALO 430; Anjuman A. Burhani v. Daudi Bohra Jamaet, Registered Society and Anr. AIR 2009 Raj. 150; Wakf lmambara lmlipura v. Smt. Khursheeda Bi and Ors.

AIR 2009 MP238; Aliyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal Cheriyakoya and Ors. AIR 2003 Ker. 366; Surinder Singh v. Punjab Wakf Board and Ors. CR No. 32 of 2009(1) - disapproved. St. Gregarious Orthodox Cathedral, Bangalore v. Aga Ali 8 Asgar Wakf, Bangalore and Anr. 2008 (6) Kar LJ 358; Saleem v. PA Kareem and Ors. 2008 (2) CTC 492 (Mad); Suresh Kumar v. Managing Committee 2009 INDLAW All 1770; 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 - affirmed. Case Law Reference: 1999 (3) ALT 602 Disapproved Para 2 2000 (1) ALT 210 Disapproved Para 2 2000 (5) ALO 743 Disapproved Para 2 2001 (4) ALO 430 Disapproved Para 2 AIR 2009 Raj. 150 Disapproved Para 2 AIR 2009 MP 238 Disapproved Para 2 AIR 2003 Ker. 366 Disapproved Para 2 CR No.

32 of 2009(1) Disapproved Para 3 2008 (6) Kar LJ 358 Affirmed Para 3 2008 (2) CTC 492 (Mad) Affirmed Para 3 2009 INDLAW All 1770 Affirmed Para 3 2009 (1) BomCR 498 Affirmed Para 3 (2009) 4 sec 299 Relied on Para 6 (1968) 1 SCR 260 Relied on Para 7 SUGRA HUMAYUN MIRZA WAKF AIR 2003 SC 2508 Relied on Para 7 (1968) 3 SCR 662 Relied on Para 7 (1997) 5 sec 536 Relied on Para 7 (2000) 3 sec 689 Relied on Para 7 (2002) 6 sec 416 Relied on Para 7 AIR 2003 SC 2696 Relied on Para 7 AIR 1986 SC 794 Relied on Para 7 (1979) 2 sec 468 Relied on Para 13 (2000) 2 sec 121 Relied on Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1182 of 2006. From the Judgment & Order dated 03. 02. 2005 and 04. 03,2005 of the High Court of Andhra Pradesh at Hyderabad in Civil Revision No. 3932 of 2004 and Civil Misc. Petition No. 1022 of 2005. WITH C. A. Nos. 1183 of 2006 and 3605 of 2008. P. S..

Narasimha, Yogesh Jagia, Hetu Arora,Amit Sood, Parmeshwar, Nikhil Mehra, Shishir Deshpande, Amit Yadav (for Sujata Kurdukar), R. B. Masodkaqr, Sanjay Hegde, A. Rasheed Qureshi, Dharmendra Kumar Sinha, Anis Ahmed Khan, Shoaib Ahmad Khan, Pratap Venugopal, Surekha Raman, Dileep P. for the appearing parties. The Judgment of the Court was delivered by 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 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 0 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. 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) ALO 743 and Syed Muneer v.

Chief Executive Officer and 5 Ors. 2001 (4) ALO 430 taken the view that the 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 lmambara lmlipura 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. Gregarious Orthodox Cathedral, Bangalore v. Aga Ali Asgar Wakf, Bangalore and Anr. 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 legislation on the subject was, however, felt because of the deficiencies nOtTced 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 0 disputes. Chapter Ill 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 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 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 Civii Courts and shift the OO! JS 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 Muf OOCOO OOCXXX)()()OOCOO OO (2) Any mutawalli person interested in awakf or any other person aggrieved by an order made under this Act, or rules 8 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 interested in the wakf or the wakf property to transfer such application to any other Jribunal 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, (5of1908), 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 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 A Act and define the local limits of their jurisdiction. Sub-section (2) of Section 83 permits any mutawalli or other 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 B 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 c 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. D 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 Tribunals for E 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 F 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 G 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 H A 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 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. B 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 C 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, D 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. E 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 F 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. K. K. T Appeals allowed.