# PUNJAB WAKF BOARD v. SHAM SINGH HARIKE

- **Citation:** [2019] 2 S.C.R. 61
- **Court:** Supreme Court of India
- **Decided:** 2019-02-07
- **Case number:** Civil Appeal No. 92 of 2019
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/punjab-wakf-board-v-sham-singh-harike-33512
- **Pages:** 36

## Headnote

Wakf Act, 1995 : s.83 - Jurisdiction of Wakf Tribunal to
entertain suit - Held: The constitution of Wakf Tribunal is for the
determination of any dispute, question or other matter relating to
wakf or wakf property under the Act, 1995 - s.83 relates to bar of
jurisdiction of Civil Court, the relevant words are "any dispute,
question or other matter relating to a wakf or wakf property" which
is required by or under this Act to be determined by the Tribunal -
Thus, bar of jurisdiction of Civil Court is confined only to those
matters which are required to be determined by the Tribunal under
this Act - When issue in the suit is as to whether suit property is
Wakf property or not, it is covered by specific provision of ss.6 and
7 of the Act, 1995, therefore, it is required to be decided by the
Tribunal under s.83 and bar under s.85 shall come into existence
with regard to jurisdiction of Civil Court.
Wakf Act, 1995: s.6(1), proviso - List of Wakf property
published under s.5 - Who has right to dispute and the limitation
period - Held: The provision contained in proviso to s.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 him in that behalf during the course of the relevant inquiry under
s.4 - When s.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 s.4(1) of the Act.
Disposing of the appeals, the Court
HELD: 1. Section 83 relates to bar of jurisdiction of Civil
Court, the relevant words are "any dispute, question or other
matter relating to a wakf or wakf property" which is required by
[2019] 2 S.C.R. 61
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or under this Act to be determined by the Tribunal. Thus, bar of
jurisdiction of Civil Court is confined only to those matters which
are required to be determined by the Tribunal under this Act.
[Para 52][87-F]
2. As per Section 6 sub-section (1), if any question arises
as to whether a Wakf property in the list of Wakfs is wakf property
or not, a suit can be instituted in a Tribunal for the decision of the
question which decision shall be treated as final. Limitation for
such suit was also provided in proviso as one year from the date
of the publication of the list of Wakfs. Sub-section (5) of Section 6
contained the provision barring a suit in any Court after the
commencement of the Act in relation to any question referred to
in sub-section (1). [Para 64][94-C-D]
3. In CA No. 92 of 2019, the question has arisen as to
whether suit property is a Wakf property or not. The suit wherein
this question has arisen ought to be considered by the Tribunal.
The view of the High Court that right, title and interest of a nonMuslim to the Wakf in a property cannot be put in jeopardy is
contrary to the statutory scheme as contained in Section 6 of the
Act, 1995. 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. [Paras 64, 65][94-E-H]
4. 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

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PUNJAB WAKF BOARD
v.
SHAM SINGH HARIKE
(Civil Appeal No. 92 of 2019)
FEBRUARY 07, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Wakf Act, 1995 : s.83 - Jurisdiction of Wakf Tribunal to
entertain suit - Held: The constitution of Wakf Tribunal is for the
determination of any dispute, question or other matter relating to
wakf or wakf property under the Act, 1995 - s.83 relates to bar of
jurisdiction of Civil Court, the relevant words are "any dispute,
question or other matter relating to a wakf or wakf property" which
is required by or under this Act to be determined by the Tribunal -
Thus, bar of jurisdiction of Civil Court is confined only to those
matters which are required to be determined by the Tribunal under
this Act - When issue in the suit is as to whether suit property is
Wakf property or not, it is covered by specific provision of ss.6 and
7 of the Act, 1995, therefore, it is required to be decided by the
Tribunal under s.83 and bar under s.85 shall come into existence
with regard to jurisdiction of Civil Court.
Wakf Act, 1995: s.6(1), proviso - List of Wakf property
published under s.5 - Who has right to dispute and the limitation
period - Held: The provision contained in proviso to s.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 him in that behalf during the course of the relevant inquiry under
s.4 - When s.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 s.4(1) of the Act.
Disposing of the appeals, the Court
HELD: 1. Section 83 relates to bar of jurisdiction of Civil
Court, the relevant words are "any dispute, question or other
matter relating to a wakf or wakf property" which is required by
[2019] 2 S.C.R. 61
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or under this Act to be determined by the Tribunal. Thus, bar of
jurisdiction of Civil Court is confined only to those matters which
are required to be determined by the Tribunal under this Act.
[Para 52][87-F]
2. As per Section 6 sub-section (1), if any question arises
as to whether a Wakf property in the list of Wakfs is wakf property
or not, a suit can be instituted in a Tribunal for the decision of the
question which decision shall be treated as final. Limitation for
such suit was also provided in proviso as one year from the date
of the publication of the list of Wakfs. Sub-section (5) of Section 6
contained the provision barring a suit in any Court after the
commencement of the Act in relation to any question referred to
in sub-section (1). [Para 64][94-C-D]
3. In CA No. 92 of 2019, the question has arisen as to
whether suit property is a Wakf property or not. The suit wherein
this question has arisen ought to be considered by the Tribunal.
The view of the High Court that right, title and interest of a nonMuslim to the Wakf in a property cannot be put in jeopardy is
contrary to the statutory scheme as contained in Section 6 of the
Act, 1995. 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. [Paras 64, 65][94-E-H]
4. 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 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). [Paras 68, 69][95-G-H, 96-A-B]
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Ramesh Gobindram(dead) through LRs. v. Sugra
Humayun Mirza Wakf, (2010) 8 SCC 726 : [2010] 10
SCR 945; Haryana Wakf Board v. Mahesh Kumar
(2014) 16 SCC 45 : [2013] 12 SCR 596; Punjab Wakf
Board v. Gram Panchayat (2000) (2) SCC 121 : [1999]
5 Suppl. SCR 127 - relied on
Board of Wakf, West Bengal & another v. Anis Fatma
Begum & another (2010) 14 SCC 588 : [2010] 13
SCR 1063; Bhanwar Lal and another v. Rajasthan
Board of Muslim Wakf and others (2014) 16 SCC 51 :
[2013] 9 SCR 721; Sardar Khan & others v. Syed
Nazmul Hasan (Seth) and others (2007) 10 SCC 727 :
[2007] 3 SCR 436; Faseela M. v. Munnerul Islam
Madrasa Committee and another (2014) 16 SCC 38 :
[2014] 4 SCR 613; Akkode Jumayath Palli Paripalana
Committee v. P.V. Ibrahim Haji and others (2014) 16
SCC 65 : [ 2013] 7 SCR 1033; Board of Muslim Wakfs,
Rajasthan v. Radha Kishan and others, (1979) 2 SCC
468 : [1979] 2 SCR 148 - referred to
Case Law Reference
[2010] 10 SCR 945
relied on
Para 3
[2010] 13 SCR 1063
referred to
Para 11
[2013] 9 SCR 721
referred to
Para 32
[2007] 3 SCR 436
referred to
Para 32
[2014] 4 SCR 613
referred to
Para 33
[2013] 7 SCR 1033
referred to
Para 40
[1979] 2 SCR 148
referred to
Para 56
[1999] 5 Suppl. SCR 127
relied on
Para 61
[2013] 12 SCR 596
relied on
Para 65
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 92 of
2019.
From the Judgment and Order dated 20.09.2010 of the High Court
of Punjab and Haryana at Chandigarh in Civil Revision No. 4339 of
2009 (O&M)
WITH
Civil Appeal No. 93 of 2019.
PUNJAB WAKF BOARD v. SHAM SINGH HARIKE
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Salman Khurshid, Sr. Adv., Imtiaz Ahmed, Ms. Naghma Imtiaz,
Ahmed Zargham, M/S. Equity Lex Associates, Advs. for the Appellant.
S. B. Upadhyay, Sr. Adv., Vineet Bhagat, K.G. Bhagat, Pawan
Upadhyay, Surender Kumar,Adv. Mr. Nishant Kumar,Adv. Ms. Sharmila
Upadhyay, Advs. for the Respondent.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. These two appeals having been filed
against two separate judgments of the Punjab and Haryana High Court
allowing the Civil Revisions filed by the respondents have been heard
together and are being decided by this common judgment.
2. Brief facts giving rise to the above appeals which are necessary
to be noticed for deciding these appeals are:
Civil Appeal No.92 of 2019 (Punjab Wakf Board vs. Sham
Singh Harike)
The appellant, Pubjab Wakf Board, claimed to be owner of land
measuring 269 kanals 7 marlas, comprising in khewat No.462, khatauni
Nos.589, 593, 599 and 596 in khasra Nos.103, 105, 102 min, 104, 106, of
village Birmi, Tehsil and District Ludhiana. The appellant had let out the
above-mentioned land to Sham Singh and his wife Kuldeep Kaur for
cultivation of the land. The lessee deposited the rent for few years and
thereafter initiated litigation against the interest of the Board which was
decided in favour of the Board. The appellant filed Civil Suit No.250 of
2001 in the Court of Civil Judge, Senior Division for the grant of permanent
injunction restraining the respondents from raising any construction and
changing the position from agricultural to residential of the property in
any manner. The respondents filed written statement challenging the
maintainability of the suit. The title of the appellant was denied in the
written statement. After the constitution of the Wakf Tribunal, the suit
was transferred to the Wakf Tribunal and renumbered as RBT No.84/
2006. The respondent filed an application before the Tribunal for rejection
of the plaint on the ground that the Tribunal has no jurisdiction to entertain
the suit and the Civil Court alone has jurisdiction to entertain the suit.
The Wakf Tribunal by its order dated 17.04.2009 rejected the application
of the respondent and held that after 01.01.1996 it is only the Wakf
Tribunal which has jurisdiction to try the present suit.
3. The respondent aggrieved by the order dated 17.04.2009 filed
Civil Revision in the High Court. The High Court relying on the judgment
of Ramesh Gobindram(dead) through LRs. vs. Sugra Humayun
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Mirza Wakf, (2010) 8 SCC 726, allowed the Revision. The High Court
held that since the appellant is a non-muslim, the Wakf Tribunal has no
jurisdiction in the matter and it is only the Civil Court which had the
jurisdiction in the present dispute. The appellant aggrieved by the said
judgment dated 20.09.2010 has come up in this appeal.
Civil Appeal No.93 of 2019 (Punjab Wakf Board vs. Teja
Singh)
4. The Punjab Wakf Board, the appellant claiming to be owner of
the property measuring 29 Kanals 9 Marlas comprised in Khewat No.224,
khatauni No.277, Khasra Nos.55, 56, 57 filed Suit No.2 of 2007 in the
Court of Wakf Tribunal, Ludhiana for possession of above noted property
and seeking relief for permanent injunction restraining the respondent
from interfering and changing the nature of the property. Plaintiff's case
in the suit was that the defendant, Taja Singh took suit property on yearly
lease from Wakf Board till the year 1996-97 and paid lease money to the
plaintiff Board. After 1996-97 lease was not renewed and defendant
having committed certain illegalities, the Wakf Board cancelled the lease
on 05.12.1998. Notice to this effect was served upon the defendant vide
which a request was made to the defendant to handover the vacant
possession of the leased-out property to the plaintiff Board. After
cancellation of the lease, the possession of the defendant over the suit
property became illegal.
5. The defendant had also filed suit for grant of injunction which
was decreed by Civil Judge (Junior Division), Ludhiana, the Court
restrained the Board from dispossessing the respondent forcibly and
illegally except in due course of law. The defendant having failed to
handover the possession, the appellant filed the suit for possession and
the grant of permanent injunction. The defendant entered appearance
and filed written statement. The defendant's case in the written statement
was that the defendant always remained ready to pay the rent due to the
plaintiff and is still ready to pay and tender the rent due to the plaintiff
even in the Court but the plaintiff is not accepting the same intentionally
just to seek possession of the tenanted premises in an illegal manner.
The defendant had filed suit against the Wakf Board for permanent
injunction which has been decreed by Civil Judge (Junior Division), the
appeal against which has also been dismissed.
6. The Wakf Tribunal vide its judgment dated 03.06.2009 decreed
the original suit. Following decree has been passed by the Tribunal:
PUNJAB WAKF BOARD v. SHAM SINGH HARIKE
[ASHOK BHUSHAN, J.]
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"17. Keeping in view the findings on the above issues, the suit of
the plaintiff is decreed for possession of the suit land and the
same is also decreed for permanent injunction restraining the
defendant from changing the nature of the suit land with costs of
the suit. Decree sheet be drawn. File be consigned to the record
room."
7. Against the judgment of the Wakf Tribunal decreeing the suit,
the defendant filed Civil Revision No.6157 of 2009, which has been
allowed by the High court by following order:
"In view of the judgment delivered by the Apex Court in case
Ramesh Gobindram (dead) through L.Rs. vs. Sugra Humayun
Mirza Wakf, 2010(2) RCR(Rent) 266, the instant petition is
accepted, impugned order is set aside and the plaint along with
documents is returned to the Petitioner to be presented before the
appropriate court."
8. The appellant aggrieved by the judgment of the High Court
dated 23.02.2011 has come up in this appeal.
9. We have heard Shri Salman Khurshid, learned senior counsel
for the appellant. Shri Vineet Bhagat and Shri K.G. Bhagat, learned
counsel and Shri S.B. Upadhyay, learned senior counsel appeared for
the respondents.
10. Shri Salman Khurshid, learned senior counsel for the appellant
submits that Wakf Tribunal was fully competent to entertain the suits
filed by the appellant. The defendants in both the suits having been leased
out the land which was Wakf property, the suit clearly lay before the
Wakf Tribunal as per Section 83 of Wakf Act, 1995.
11. He submits that Wakf Tribunal was conferred jurisdiction of
entertaining every dispute pertaining to Wakf in the Wakf Act, 1954.
After the 1984 Amendment, under Section 55 of Act, 1954 for any dispute
pertaining to Wakf property suit has to be filed before the Tribunal and
the jurisdiction of the Civil Court was barred by virtue of Section 55C of
the Act, 1954, which statutory scheme has been continued under Sections
83 and 85 of Act, 1995. He submits that judgment of Ramesh
Gobindram (supra) which has been relied by the High Court while
allowing the revisions filed by the respondents was a case under Act,
1954 that too prior to 1984 Amendment. He, however, submits that suits
filed by the appellant were suits for possession, hence, were fully
maintainable before the Wakf Tribunal. Shri Salman Khurshid relies on
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the judgment of this Court in Board of Wakf, West Bengal & another
vs. Anis Fatma Begum & another, (2010) 14 SCC 588, where suit
filed before the Tribunal was held to be maintainable and the judgment
of Ramesh Gobindram was distinguished.
12. Shri Khurshid has further relied on the judgment and Order of
this Court dated 13.09.2013 in C.A. No.8194 of 2013 (Punjab Wakf
Board vs. Pritpal Singh & Anr.) where a similar order passed by the
High Court holding that suit of Punjab Wakf Board is not maintainable
has been set aside. He submits that the present case is similar to the
judgment of this Court in Pritpal Singh. Shri Khurshid has relied on
other judgments which shall be referred to later.
13. Learned counsel for the respondent, Sham Singh Harike,
refuting the submission of the counsel of the appellant contends that the
judgment of this Court in Anis Fatma Begum (supra) does not overrule
Ramesh Gobindram. The case of respondent is that he is in possession
of property since 1967. In the year 1970 property was verified as Wakf
property without any notice to the Central Government. The respondent
has been opposing the move of appellant Board to seek mutation of its
title over the property before the Revenue Authority. Punjab Wakf Board
in the year 1970 got the suit land notified in the Wakf under the Wakf
Act, 1954 without serving any notice on the respondent. The title of the
appellant has been refuted by the respondent. The suit filed by the appellant
was not maintainable before the Civil Court, hence, application was filed
by the respondent under Order VII Rule 10 and 11 CPC for rejecting
the plaint.
14. It is submitted by the learned counsel for the respondent that
Sham Singh Harike and others have also filed a suit in the Court of Civil
Judge, Senior Division against the Union of India and others including
Punjab, Wakf Board seeking a declaration that suit land is not a Wakf
property nor Wakf Board has right and any interest nor forcibly it can
dispossess him.
15. Shri S.B. Upadhyay, learned senior counsel appearing for
Teja Singh submits that a suit has been filed by the respondent being Suit
No.265 of 1999 which has been decreed by the Civil Judge (Junior
Division) restraining the defendants from dispossessing the plaintiff
forcibly or illegally subject to payment of dues upto date against which
appeal filed by the Punjab Wakf Board was also dismissed on 09.04.2005.
Shri Upadhyay has heavily relied on Ramesh Gobindram case and he
PUNJAB WAKF BOARD v. SHAM SINGH HARIKE
[ASHOK BHUSHAN, J.]
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submits that in view of the judgment of Ramesh Gobindram, the suit
filed by the appellant was not maintainable and the plaint has rightly
been returned to be presented before the Civil Court.
16. We have considered the submissions of the parties and perused
the records.
17. The main issue which has arisen for consideration in these
appeals is as to whether suit filed by the appellant before the Wakf
Tribunal praying for decree of possession of suit property was
maintainable in Wakf Tribunal or would lie only in a Civil Court. Although,
the Wakf Tribunal has held that suit was maintainable before it, the High
Court has reversed the order of the Tribunal holding that the suit is not
maintainable before the Wakf Tribunal relying on the judgment of this
Court in Ramesh Gobindram. Before we notice the judgment of this
Court in Ramesh Gobindram and the judgments relied by the parties,
the statutory provisions pertaining to Wakf and Wakf property need to
be noted.
18. Before the enactment of Wakf Act, 1995 by the Parliament,
the Wakf Act, 1954 was in force. Many deficiencies in Wakf Act, 1954
were found which led to comprehensive amendments made by Wakf
Amendment Act, 1984 on the basis of recommendations of Wakf Inquiry
Committee. However, many provisions of 1984 (Amendment) Act could
not be enforced. Before we come to Act, 1995 it is relevant to notice the
statutory regime which was prevalent prior to Act, 1995. The Wakf
(Amendment) Bill, 1984 was moved with detail of Statement of Objects
and Reasons. Paragraph 3(vii) which is relevant for the present purpose
is as follows:
"3. The Bill seeks to make, inter alia, amendments to the
Wakf Act, 1954, in relation to the following matters, namely:-
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(vii) to provide for the appointment of Tribunals for the speedy
determination of the disputes, question or other matters relating
to wakfs; every such Tribunal is to consist of one person who
shall be a member of the State Judicial Service holding a rank
not below that of a District Judge or of a Civil Judge, First
Class;
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19. Section 55 of Wakf Act, 1954 (prior to 1984 Amendment)
was as follows:
"Section-55. Institution of suits under section 92 of the Code of
Civil Procedure, 1908.-
(1) A suit to obtain any of the reliefs mentioned in section 92 of
the Code of Civil Procedure, 1908, (5 of 1908.) relating to any
Wakf may, notwithstanding anything to the contrary contained
in that section, be instituted by the Board without obtaining the
consent referred to therein.
(2) No suit to obtain any of the reliefs referred to in section 92
of the Code of Civil Procedure, 1908, relating to any Wakf shall
be instituted by any person or authority other than the Board
without the consent in writing of the Board and for the institution
of any such suit, it shall not be necessary to obtain the consent
referred to in that section, notwithstanding anything contained
therein:
Provided that nothing in this sub-section shall apply in relation
to any such suit against the Board."
20. Comprehensive amendments were made in Wakf Act, 1954.
Section 55 was substituted in the following manner:
"55. Appointment, powers and jurisdiction of tribunals.
(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 property which such Tribunal is, or may be, required
to determine under this Act or any rule or order made thereunder,
and may, by the same or subsequent notification in the Official
Gazette, define the local limits of the area in relation to which
each Tribunal appointed by it shall exercise jurisdiction under this
Act.
(2) Any mutawalli of a wakf, person interested in a wakf or any
other person aggrieved by any order made under this Act or any
rule or order 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.
PUNJAB WAKF BOARD v. SHAM SINGH HARIKE
[ASHOK BHUSHAN, J.]
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(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 interests of the wakf or any other person
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 and Sessions Judge or of a 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:
Provided that where any procedure, different from the prescribed
procedure, is specified by this Act, the Tribunal shall follow the
procedure specified by this Act.
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(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) 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 lie 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."
21. Section 55C was inserted relating to bar of jurisdiction of Civil
Court which was to the following effect:
"55-C. Bar of jurisdiction of civil courts in respect of
matters determined by Tribunal. -No suit or other legal
proceeding 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."
22. Chapter VIII of the Wakf Act, 1995 deals with Judicial
Proceedings. Sections 83 and 85 which are relevant for this case are as
follows:
"83. Constitution of Tribunals, etc.- (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 waqf or waqf
property under this Act and define the local limits and jurisdiction
of such Tribunals.
(2) Any mutawalli person interested in a waqf 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
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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 waqf.
(3) Where any application made under sub-section (1) relates
to any waqf 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
waqf 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 waqf or any other person
interested in the waqf or the waqf property to transfer such
application to any other Tribunal having jurisdiction for the
determination of the dispute, question or other matter relating to
such waqf or waqf 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 interest 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, while trying a suit, or
executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil
Procedure, 1908, the Tribunal shall follow such procedure as
may be prescribed.
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(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.
(9) No appeal shall lie 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.
85. Bar of jurisdiction of Civil Courts. -No suit or other
legal proceeding shall lie in any Civil Court in respect of any
dispute, question or other matter relating to any waqf, waqf
property or other matter which is required by or under this Act
to be determined by a Tribunal."
23. Reverting back to the facts in these appeals, in C.A.No.93 of
2019(Punjab Wakf Board vs. Teja Singh), in the suit filed by the Punjab
Wakf Board the plaintiff has claimed for the following reliefs:
"It is therefore, prayed that a decree for possession of property
measuring 29K-9M comprised in Khewat No.224, Khatauni
No.277, Khasra No.55, 56,57 as per the Jamabandi for the year
2000-2001 of Village Talwara, HB No.149, Tehsil Ludhana West,
District Ludhiana;
AND
For the grant of permanent injunction restraining the defendant,
his agents, attorneys, associates from interfering and changing
the nature of the property in any manner whatsoever, may kindly
be passed in favour of the plaintiff."
24. Plaintiff's case was that Teja Singh was let out the suit property,
till the year 1996-97, neither lease was renewed nor lessee handed over
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the possession. Teja Singh committed illegalities, the lease had been
cancelled on 05.12.1998 after legal notice. Thereafter, the suit has been
filed. Plaintiff had also stated that Teja Singh failed to get the lease
renewed, and a suit against the Board was filed where Civil Judge (Junior
Division) decreed the suit restraining the Board from evicting Teja Singh
forcibly or illegally. The case of Teja Singh in his written statement was
that defendant has not violated any terms and conditions of the allotment
order and rent deed, defendant is still ready to pay the rent, the lease has
not been terminated according to the provisions of the Wakf Act.
25. Coming to C.A.No.92 0f 2019 (Punjab Wakf Board vs. Sham
Singh Harike), the case of the plaintiff in the suit was that the suit land
was let out to Sham Singh with his wife, Kuldip Kaur in the year 1972
for cultivation. Defendant deposited rent for some period and after that
he acted against the interests of the Board and started a false litigation.
The property was let out to the defendant for agricultural purposes having
no right to raise construction over the property. Details of different
litigations initiated by the defendant were given in the plaint. Defendant
initiated various proceedings for allotment of the land from the Revenue
Authority which were all dismissed. The property has been mutated in
the name of Wakf Board. In the written statement filed by the defendant,
Sham Singh, the title of Wakf Board itself was disputed, and it was
pleaded that the suit is not maintainable and liable to be dismissed. Until
and unless the suit property is declared to be that of the plaintiff no suit
is maintainable. Mutation in the name of the plaintiff does not confer any
title. Thus, in both the suits filed by the appellant, the maintainability of
the suit in the Wakf Tribunal was questioned. In the written statement
filed by Sham Singh the title of the appellant to the suit property was
questioned and challenged.
26. Now, we need to notice the judgment of this Court in Ramesh
Gobindram(supra) on which the High Court as well as learned counsel
for the respondent have placed heavy reliance. In the above case, the
Andhra Pradesh Wakf Tribunal has passed an order of eviction against
the appellant. Revision Petition filed before the Andhra Pradesh High
Court was dismissed against which the appeal was filed. The issue
involved in that case has been noticed in paragraph 2 of the judgment
which is to the following effect:
"2. The question is: whether the Wakf Tribunal constituted under
Section 83 of the Wakf Act, 1995 was competent to entertain and
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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."
27. This Court noticed in the aforesaid judgment that there is a
cleavage in the judicial opinion expressed on the question of jurisdiction
of Wakf Tribunal by the different High Courts in the country. The view
of the Andhra Pradesh High Court, Rajasthan High Court, Madhya
Pradesh High Court, Kerala High Court and Punjab and Haryana High
Court has been noticed where High Courts have taken the view that
jurisdiction of the Wakf Tribunal is wide enough to entertain and adjudicate
upon all kinds of disputes which relate to any Wakf Property. The contrary
view of the High Court of Karnataka, High Courts of Madras, Allahabad
and Bombay was also noticed. This Court proceeded to examine the
scheme of Wakf Act, 1995. After noticing the scheme of Sections 6, 7,
25 and other provisions with respect to Section 85 of the Act, following
was stated by this Court in paragraphs 24 and 28:
"24. ............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 a 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.
28. 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 the 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 the
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."
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28. This Court noticing the provisions of Section 83 has observed
that Section 83 does not deal with the exclusion of the jurisdiction of
Civil Courts to entertain the civil suits generally or suit of any particular
class or category. It interpreted Section 83 as a provision which does not
exclude the jurisdiction of the Civil Court. Following was stated in
paragraph 29:
"29. ...........................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 the 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."
29. On an interpretation of Section 83 following has been laid
down by this Court in paragraphs 31, 32 and 33:
"31. It is clear from sub-section (1) of Section 83 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
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.
32. There is, in our view, nothing in Section 83 to suggest that it
pushes the exclusion of the jurisdiction of the civil courts extends
(sic) beyond what has been provided for in Section 6(5), Section
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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.
33. 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."
30. The ultimate conclusion by this Court has been recorded in
paragraphs 34 and 35 which are as follows:
"34. 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 decide
the matter the jurisdiction of the civil court would stand excluded.
35. 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."
31. The crux of the judgment as noticed in paragraph 34 is that
"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
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whether the Tribunal is under the Act or the Rules required to deal with
the matter sought to be brought".
32. After the judgment of this Court in Ramesh Gobindram,
there are several two-Judge judgments of this Court either following
Ramesh Gobindram's judgment or distinguishing the same on one or
other reasons. This Court in Bhanwar Lal and another vs. Rajasthan
Board of Muslim Wakf and others, (2014) 16 SCC 51, elaborately
noticed the judgment of Ramesh Gobindram's case.