# RASHID WALI BEG v. FARID PINDARI & ORS

- **Citation:** [2021] 13 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2021-10-28
- **Case number:** Civil Appeal No. 6336 of 2021
- **Bench:** Hemant Gupta, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rashid-wali-beg-v-farid-pindari-ors-35244
- **Pages:** 48

## Headnote

Waqf Act, 1995 - ss.83, 85, as amended by Amendment Act
27 of 2013 - Suit for permanent injunction in respect of a waqf
property filed before civil court, if maintainable - Held: Words in
s.83(1) "any dispute, question or other matter relating to a waqf or
waqf property" cover any dispute, question or other matter relating
to a waqf property - Court cannot do violence to the express
language of the statute - s.83(1) even as it stood before the
amendment, provided for the determination by the Waqf Tribunal,
of any dispute, question or other matter relating to a waqf and a
waqf property - Therefore, 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 s.83(1) - Dichotomy created in some decisions of
Supreme Court, between the properties admitted to be waqf
properties and disputed to be so, is on account of the misapplication
of the two limited questions in ss.6(1) and 7(1) to the whole of the
Act including s.83 - In the present case, the property is admittedly
a waqf property - To allow the respondent-plaintiff to ignore the
Waqf Tribunal and to seek a decree of permanent and mandatory
injunction from a civil court, would be to ignore the mandate of
ss.83 and 85 - Approach of the High Court not in tune with the law
laid down by Supreme Court - Further, a question as to the nature
of the waqf and whether the plaintiff is a beneficiary of the waqf,
has also arisen in this case which question has necessarily to be
decided by the Tribunal and not the civil court - Trial court to return
the plaint to the plaintiff, for presentation to the jurisdictional Waqf
Tribunal - Judgment of High Court set aside - Code of Civil
Procedure, 1908 - Or.39, r.1 - Mussalman Waqf Validating Act,
1913 - Mussalman Waqf Act 1923 - Waqf Act 1954.
Waqf Act, 1995 - ss.85, 86, 89 and 90 - Bar of jurisdiction
u/s.85 - Held: The 1995 Act makes a specific reference to court/
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[2021] 13 S.C.R.
civil Court also in certain places - ss.86, 90 and 93 make specific
reference to "Court" - s.68(6) goes a step further by making a
reference to 'civil court' - A cumulative reading of ss.86, 89 and 90
shows that the bar of jurisdiction u/s.85 is not total and omnipotent
and there may be cases which could still be entertained by civil
courts.
Waqf Act, 1995 - ss.83, 85, as amended by Amendment Act
27 of 2013 - Held: Act 27 of 2013 did 2 things - First it expanded
the jurisdiction of Waqf Tribunal even to cover landlord-tenant
disputes and the rights and obligations of lessor and lessee -
Second, it enlarged the bar of jurisdiction, to cover even revenue
courts and other authorities.
Waqf Act, 1995 - ss.6(1), 7(1) - Held: By Act 27 of 2013 the
words, "any person interested" were substituted by the words, "any
person aggrieved", meaning thereby that even a non Muslim is
entitled to invoke the jurisdiction of the Tribunal - Due to the
substitution of the words "any person aggrieved", Act 27 of 2013
has deleted the Explanation u/s.6(1).
Waqf Act, 1995 - ss.83, 85 and 86 - Special provision u/s.86
- Held: Dehors the jurisdiction conferred upon the Tribunal
u/s.83(1) and dehors the bar of jurisdiction of the civil court, revenue
court and any other authority u/s.85, the 1995 Act contains a special
provision in s.86 for the appointment by the civil court, of a Receiver,
in certain cases - It is clear from s.86, that in suits or other
proceedings instituted by the Board falling u/clause (a) or those
instituted by the mutawalli falling u/clause (b) of s.86, the civil court
will have jurisdiction to appoint a receiver - As a corollary, the bar
u/s.85 will have no application to cases covered by s.86.
Waqf Act, 1995 - ss.83, 85, 86, 90 and 93 - Question of bar
of jurisdiction of the civil court - Determination of - Held: In view
of the language employed in ss.83 and 85, coupled with the referen

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[2021] 13 S.C.R.1
1
RASHID WALI BEG
v.
FARID PINDARI & ORS.
(Civil Appeal No. 6336 of 2021)
OCTOBER 28, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Waqf Act, 1995 - ss.83, 85, as amended by Amendment Act
27 of 2013 - Suit for permanent injunction in respect of a waqf
property filed before civil court, if maintainable - Held: Words in
s.83(1) "any dispute, question or other matter relating to a waqf or
waqf property" cover any dispute, question or other matter relating
to a waqf property - Court cannot do violence to the express
language of the statute - s.83(1) even as it stood before the
amendment, provided for the determination by the Waqf Tribunal,
of any dispute, question or other matter relating to a waqf and a
waqf property - Therefore, 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 s.83(1) - Dichotomy created in some decisions of
Supreme Court, between the properties admitted to be waqf
properties and disputed to be so, is on account of the misapplication
of the two limited questions in ss.6(1) and 7(1) to the whole of the
Act including s.83 - In the present case, the property is admittedly
a waqf property - To allow the respondent-plaintiff to ignore the
Waqf Tribunal and to seek a decree of permanent and mandatory
injunction from a civil court, would be to ignore the mandate of
ss.83 and 85 - Approach of the High Court not in tune with the law
laid down by Supreme Court - Further, a question as to the nature
of the waqf and whether the plaintiff is a beneficiary of the waqf,
has also arisen in this case which question has necessarily to be
decided by the Tribunal and not the civil court - Trial court to return
the plaint to the plaintiff, for presentation to the jurisdictional Waqf
Tribunal - Judgment of High Court set aside - Code of Civil
Procedure, 1908 - Or.39, r.1 - Mussalman Waqf Validating Act,
1913 - Mussalman Waqf Act 1923 - Waqf Act 1954.
Waqf Act, 1995 - ss.85, 86, 89 and 90 - Bar of jurisdiction
u/s.85 - Held: The 1995 Act makes a specific reference to court/
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civil Court also in certain places - ss.86, 90 and 93 make specific
reference to "Court" - s.68(6) goes a step further by making a
reference to 'civil court' - A cumulative reading of ss.86, 89 and 90
shows that the bar of jurisdiction u/s.85 is not total and omnipotent
and there may be cases which could still be entertained by civil
courts.
Waqf Act, 1995 - ss.83, 85, as amended by Amendment Act
27 of 2013 - Held: Act 27 of 2013 did 2 things - First it expanded
the jurisdiction of Waqf Tribunal even to cover landlord-tenant
disputes and the rights and obligations of lessor and lessee -
Second, it enlarged the bar of jurisdiction, to cover even revenue
courts and other authorities.
Waqf Act, 1995 - ss.6(1), 7(1) - Held: By Act 27 of 2013 the
words, "any person interested" were substituted by the words, "any
person aggrieved", meaning thereby that even a non Muslim is
entitled to invoke the jurisdiction of the Tribunal - Due to the
substitution of the words "any person aggrieved", Act 27 of 2013
has deleted the Explanation u/s.6(1).
Waqf Act, 1995 - ss.83, 85 and 86 - Special provision u/s.86
- Held: Dehors the jurisdiction conferred upon the Tribunal
u/s.83(1) and dehors the bar of jurisdiction of the civil court, revenue
court and any other authority u/s.85, the 1995 Act contains a special
provision in s.86 for the appointment by the civil court, of a Receiver,
in certain cases - It is clear from s.86, that in suits or other
proceedings instituted by the Board falling u/clause (a) or those
instituted by the mutawalli falling u/clause (b) of s.86, the civil court
will have jurisdiction to appoint a receiver - As a corollary, the bar
u/s.85 will have no application to cases covered by s.86.
Waqf Act, 1995 - ss.83, 85, 86, 90 and 93 - Question of bar
of jurisdiction of the civil court - Determination of - Held: In view
of the language employed in ss.83 and 85, coupled with the reference
to civil courts in ss.86, 90 and 93, it appears that the question of
bar of jurisdiction of the civil court, has been left by the law makers
to the vagaries of judicial opinion and this has given rise to
conflicting decisions.
Waqf Act, 1995 - s.83 - Code of Civil Procedure, 1908 -
Or.39, r.1 - Held: s.83(5) makes it clear that the Waqf Tribunal
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shall be deemed to be a Civil Court and shall have the same powers
as may be exercised by a Civil Court under the CPC, while trying a
suit or executing a decree or order - The Tribunal will have power
to issue temporary injunctions u/Or. 39, r.1, CPC.
Waqf Act, 1995 - ss.6, 7 and 85 - Held: A conjoint reading
of ss.6, 7 and 85 would show that the bar of jurisdiction of civil
court contained in s.6(5) and s.7(2) is confined to Chapter-II, but
the bar of jurisdiction u/s.85 is all pervasive - Distinguishing
features enumerated.
Words & Phrases - "any dispute, question or other matter
relating to a waqf or waqf property" in s.83(1) - Discussed - Waqf
Act, 1995.
Allowing the appeal, the Court
HELD: 1.1 The words "eviction of tenant or determination
of rights and obligations of the lessor and the lessee of such property"
were inserted in sub-section (1) of Section 83, after the words
"waqf property", by Amendment Act 27 of 2013. Similarly, the
words, "civil court" were substituted by the words "civil court,
revenue court and other authority", in Section 85, by Amendment
Act 27 of 2013. Thus, Act 27 of 2013 did 2 things. First it expanded
the jurisdiction of Waqf Tribunal even to cover landlord-tenant
disputes and the rights and obligations of lessor and lessee.
Second, the Amendment Act enlarged the bar of jurisdiction, to
cover even revenue courts and other authorities. Sub-section
(2) of Section 83 of the 1995 Act indicates the persons who are
entitled to invoke the jurisdiction of the Tribunal. They are, (i)
any mutawalli of the waqf; (ii) a person interested in the waqf; or
(iii) any other person aggrieved by any order made under the Act
or Rules or any order made there under. [Paras 17-20][20-F-H;
21-A-B]
1.2 Dehors the jurisdiction conferred upon the Tribunal
under Section 83(1) and dehors the bar of jurisdiction of the civil
court, revenue court and any other authority under Section 85,
the 1995 Act contains a special provision in Section 86 for the
appointment by the civil court, of a Receiver, in certain cases.
Section 86 thus recognises the right of the Board to institute or
commence any suit or other legal proceeding, (i) to set aside the
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sale of a waqf property in execution of a decree of civil court;
(ii) to set aside the transfer of any waqf property made by the
mutawalli, without the sanction of the Board or otherwise than
in accordance with the sanction of the Board; and (iii) to recover
and restore possession of such property to the mutawalli. Clause
(b) of Section 86 recognises a similar right for the mutawalli to
recover possession of waqf property, which has been transferred
by the previous mutawalli or any other person without the sanction
of the Board. It is therefore clear from Section 86, that in suits or
other proceedings instituted by the Board falling under clause
(a) or those instituted by the mutawalli falling under clause (b) of
Section 86, the civil court will have jurisdiction to appoint a
receiver. As a corollary, the bar under Section 85 will have no
application to cases covered by Section 86. Apart from the bar of
jurisdiction of civil courts under Section 85, the Act envisages
yet another bar under Section 88. Section 88 excludes the
jurisdiction of a civil court to entertain a challenge to any
notification or order or decision made, proceeding or action taken
by the Central Government or the State Government under the
Act. [Paras 21-24][21-C; 22-B-F]
1.3 Section 89 of the Waqf Act, 1995 contains a rule similar
to Section 80 CPC, in respect of suits instituted against the Board.
Section 90 which regulates the procedure for the issue of notice
of suits, refers both to courts and tribunals. Sub-section (1) of
Section 90 uses the words, "the court or Tribunal" and it refers
to suit or proceeding relating to title to or possession of a waqf
property or the right of the mutawalli or beneficiary. A cumulative
reading of Sections 86, 89 and 90 would show that the bar of
jurisdiction under Section 85 is not total and omnipotent and that
there may be cases which could still be entertained by civil courts.
In fact, Section 93 which prohibits the mutawalli from entering
into a compromise with the opposite party in any suit, also refers
to "court". [Paras 25-27][22-G-H; 23-E-F]
1.4 Section 83(2) specifically enables, (i) any mutawalli; (ii)
any person interested in a waqf; and (iii) any other person
aggrieved by an order made under the Act, to invoke the
jurisdiction of the Tribunal for the determination of any dispute,
question or other matter relating to the waqf. Section 83(2) does
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not make any reference to the Waqf Board. However, Section
94(1) enables the Board to apply to the Tribunal, for appropriate
orders, whenever a mutawalli fails to perform an act recognized
by Muslim Law as pious, religious and charitable. Under Section
61 of the 1954 Act, such an application can be made by the Board
only to the court, but now it can be made to the Tribunal under
Section 94(1). In view of the language employed in Sections 83
and 85, coupled with the reference to civil courts in Sections 86,
90 and 93, it appears that the question of bar of jurisdiction of the
civil court, has been left by the law makers to the vagaries of
judicial opinion and this has given rise to conflicting decisions.
[Paras 28, 29][23-H; 24-A-C]
1.5 The decision of this Court in Ramesh Gobindram is the
one, which, ironically, attempted to settle the controversy on hand,
but has produced conflicting results in the subsequent decisions.
A bare reading of Sections 6 and 7 as they stood when Ramesh
Gobindram was decided shows that the language employed
therein appears to have deflected the attention of many a court
without exception. 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 waqfs. Sections 6 and 7 are incidental to the scheme of ChapterII 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. 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
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merely to refer to Section 6(5) or Section 7(2). The language of
Section 85 is clearly in contrast to the language employed in
Section 6(5) and Section 7(2). [Paras 30-32][34-F-H; 35-A-D]
Ramesh Gobindram v. Surgra Humayun Mirza Waqf
(2010) 8 SCC 726 : [2010] 10 SCR 945 - distinguished.
1.6 A conjoint reading of Sections 6, 7 and 85 would show
that the bar of jurisdiction of civil court contained in Section 6(5)
and Section 7(2) is confined to Chapter-II, but the bar of
jurisdiction under Section 85 is all pervasive. This can be seen
from the following distinguishing features:-
(i) Section 6(5) bars the institution or commencement of a
suit or other legal proceeding in a court "in relation to any question
referred to in sub-section (1)". Sub-section (1) of Section 6
speaks only about two questions namely, whether a particular
property specified as a waqf property in the list of waqfs is a waqf
property or not and whether a waqf is Shia waqf or Sunni waqf;
(ii) Section 7(2) bars any court, tribunal or other authority
from staying any proceeding before the Waqf Tribunal, in respect
of a waqf, on the only ground of pendency of any suit, application
or appeal or other proceeding. Section 7(2) specifically relates
to the proceedings under Section 7 and not to any other
proceeding. This is clear by the use of the words, "no proceeding
under this Section". Section 7(1) again deals only with two questions
namely, whether a particular property specified as waqf property
in the list of waqfs is a waqf property or not and whether a
waqf specified in the list is a Shia waqf or Sunni waqf. Therefore,
the bar under Section 7(2) is also confined only to these two
questions, on account of the use of the words, "no proceeding
under this Section".
(iii) While Sections 6(1) and 7(1) speak only about two
questions which are germane to the matters covered by ChapterII of the Act alone, Section 85 speaks (i) about any dispute, question
or other matter relating to any waqf or waqf property and (ii) about
"other matter which is required by or under this Act to be determined
by a Tribunal".
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(iv) A major distinguishing feature between Sections 6(1)
and 7 (1) on the one hand and Section 83 on the other hand is
that the dispute, question or other matter referred to in Sections
6 and 7 are confined only to what is included in the list of waqfs
prepared under Section 4 and published under Section 5. The
words "specified ... in the list of waqfs" found in sections 6 (1)
and 7(1), are conspicuous by their absence in section 83 (1).
Therefore, it is clear that Sections 6 and 7 speak only about two
categories of cases, but Section 83 covers the entire gamut of possible
disputes in relation to any waqf or waqf property. [Para 33][35-DH; 36-A-D]
1.7 There are 2 limbs to Section 85. The words, "any
dispute, question or other matter relating to any waqf or waqf
property" used in the first limb of Section 85, provide a clear
indication that the Tribunal would have jurisdiction to adjudicate
upon any dispute and answer any question relating to a waqf or
waqf property, including the two questions mentioned in Sections
6(1) and 7(1). The words in the second limb of Section 85 namely,
"other matter which is required by or under this Act to be determined
by a Tribunal", seek to cover matters which have no relevance
to the two questions covered by Section 6(1) and 7(1).
Unfortunately, many courts were misled by the reference to two
specific questions in Sections 6(1) and 7(1), to come to the
conclusion that the bar of jurisdiction was confined only to disputes
revolving around those two questions. [Paras 34, 35][36-D-G]
1.8 The basis of the decision in Ramesh Gobindram was
removed through an amendment under Act 27 of 2013. Ramesh
Gobindram sought to address the question whether a Waqf
Tribunal was competent to entertain and adjudicate upon disputes
regarding eviction of persons in occupation of what are admittedly
waqf properties. Since this Court answered the question in the
negative, Section 83(1) was amended by Act 27 of 2013 to include
the words, "eviction of tenant or determination of rights and
obligations of the lessor and lessee of such property".
Simultaneously, sub-section (6) was inserted in Section 7 by Act
27 of 2013. This sub-section (6) of Section 7 states that the
Tribunal shall have the power of assessment of damages by
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unauthorized occupation of waqf property and to penalize such
unauthorized occupants for their illegal occupation of the waqf
property and to recover the damages as arrears of land revenue
through the Collector. Ideally, the provisions of sub-section (6)
should have found a place somewhere in Section 83, since what
is sought to be covered by sub-section (6) of Section 7 has no
correlation to the two questions about which Section 7(1) speaks.
But the reason why the Parliament thought fit to include something
in Section 7, which has no correlation to sub-section (1) of Section
7, is perhaps the fact that Ramesh Gobindram turned primarily
on the language of Sections 6 and 7. [Paras 36, 37][36-G-H; 37A-B, E]
1.9 The basis of Ramesh Gobindram now stands removed
through amendment Act 27 of 2013. In fact, when Ramesh
Gobindram was decided, Sections 6(1) and 7(1) enabled only three
categories of persons to approach the Waqf Tribunal for relief.
They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any
person interested therein. However, the explanation under
Section 6(1) clarified that the expression "any person interested
therein" shall include every person, who, though not interested
in the waqf, is interested in the property. But by Act 27 of 2013
the words, "any person interested" were substituted by the words,
"any person aggrieved", meaning thereby that even a non
Muslim is entitled to invoke the jurisdiction of the Tribunal.
Due to the substitution of the words "any person aggrieved",
Act 27 of 2013 has deleted the Explanation under 6(1). This
amendment has also addressed the concern expressed in Ramesh
Gobindram whether a non Muslim could be put to jeopardy by
the bar of jurisdiction, merely because the property is included
in the list of waqfs. The Explanation under sub-section (1) of
Section 6, as it stood at the time when Ramesh Gobindram was
decided, already took care of this contingency, but was omitted
to be brought to the notice of this court. [Para 38][37-F-H; 38-AB]
1.10 If the Waqf Act, 1995 had merely stopped with a
reference to the matters as listed as capable of being adjudicated
by the Tribunal, there would have been no scope for any confusion.
But unfortunately, the Act makes a specific reference to court/
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civil Court also in certain places. Sections 86, 90 and 93 make
specific reference to "Court". Section 68(6) goes a step further
by making a reference to 'civil court'. A combined reading of
Sections 68(6), 86, 90 and 93 goes to show that the bar of
jurisdiction under Section 85 does not apply at least to the matters
as enumerated, covered by Sections 68(6), 86 and 90. [Paras 44,
45][42-H; 43-A-B, D-E]
2.1 After admitting the property to be a waqf property, the
appellant herein (defendant no.1) filed an application under Order
VII, Rule 11 on the sole ground that a suit for injunction could be
filed only before the Waqf Tribunal. This application for rejection
of plaint was allowed by the Trial Court and the suit was dismissed.
The first appellate court confirmed the same but on a second
appeal, the High Court set aside the judgments of the Trial Court
and the first appellate court with a direction to the Civil Court to
proceed in accordance with law. The approach of the High Court
is not in tune with the law. The question as to whether the suit for
perpetual injunction is maintainable before the Waqf Tribunal or
not, is already answered in Akkode Jumayath Palli Paripalana
Committee. This Court, pointed out in the said decision that
Ramesh Gobindram was distinguished in Anis Fatma Begum, and
that therefore the Tribunal had jurisdiction to entertain a suit for
perpetual injunction. But unfortunately, this decision rendered
by this Court on 23.07.2013 does not appear to have been
brought to the notice of the High Court. [Paras 49, 50][44-F-G;
45-A-B]
Akkode Jumayath Palli Paripalana Committee v. P.V.
Ibrahim Haji and Ors. (2014) 16 SCC 65 : [2013] 7
SCR 1033 - relied on.
2.2 It is not as though there was no provision in the Waqf
Act conferring jurisdiction upon the Tribunal in respect of the
waqf property. The first part of Section 83 can be broken into two
limbs, the first concerning the determination of any dispute,
question or other matter relating to a waqf and the second,
concerning the determination of any dispute, question or other
matter relating to a waqf property. After Amendment Act 27 of
2013, even the eviction of a tenant or determination of the rights
and obligation of the lessor and lessee of such property, come
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within the purview of the Tribunal. Though the proceedings out
of which the present appeal arises, were instituted before the
Amendment Act, the words "any dispute, question or other matter
relating to a waqf or waqf property" are sufficient to cover any
dispute, question or other matter relating to a waqf property. The
court cannot do violence to the express language of the statute.
Section 83(1) even as it stood before the amendment, provided
for the determination by the Tribunal, of any dispute, question or
other matter (i) relating to a waqf; and (ii) relating to a waqf
property. Therefore 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). [Paras 52, 53][45-H; 46-A-C, E]
2.3 Section 83(5) of the Act makes it clear that 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 CPC,
while trying a suit or executing a decree or order. The Waqf
Tribunal will have power to issue temporary injunctions under
Order XXXIX, Rule 1 CPC. The dichotomy created in some
decisions of this court, between the properties which are admitted
to be waqf properties and properties which are disputed to be so,
is on account of the misapplication of the two limited questions in
Sections 6(1) and 7(1) to the whole of the Act including section
83. The prescription in Section 83 cannot be taken to have been
curtailed or circumscribed by Sections 6(1) and 7(1), to come to
the conclusion that the Tribunal will assume jurisdiction only when
a property is disputed to be a waqf property. [Paras 54, 55][46-FG; 47-C-E]
Syed Mohideen and Another v. Ramanathapura Peria
Mogallam Jamath and Others (2010) 13 SCC 62 :
[2010] 8 SCR 777 - relied on.
2.4 In the case on hand, the property is admitted to be a
waqf property. Therefore, to allow the plaintiff to ignore the Waqf
Tribunal and to seek a decree of permanent injunction and
mandatory injunction from a civil court, would be ignore the
mandate of section 83 and 85 which speak of any dispute, question
or other matter relating to a waqf or a waqf property. A question
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as to the nature of the waqf and whether the plaintiff is a beneficiary
of the waqf, has also arisen in this case. This question has
necessarily to be decided by the Tribunal and not the civil court.
The judgment and decree of the High Court are set aside. The
trial court shall return the plaint to the plaintiff, for presentation
to the jurisdictional Waqf Tribunal. [Paras 56, 57][47-E-F, G-H;
48-A]
Sayed Muhammed Mashur Kunhi Koyal Thangal v.
Badagara Jumayath Palli Dharas Committee (2004) 7
SCC 708 : 2004 (6) JT 556; Sardar Khan v. Syed
Najmul Hasan (2007) 10 SCC 727 : [2007] 3 SCR 436
- distinguished.
Board of Waqf v. Anis Fatma Begum (2010) 14 SCC
588 : [2010] 13 SCR 1063; Telangana State Waqf Board
v. Mohamed Muzafar (2021) SCC Online SC 537;
Haryana Waqf Board v. Mahesh Kumar (2014) 16 SCC
45 : [2013] 12 SCR 596 - relied on.
Punjab State Waqf Board v. Pritpal Singh (2013) SCC
Online SC 1345; Bhanwar Lal v. Rajasthan Board of
Muslim Waqf (2014) 16 SCC 51 : [2013] 9 SCR 721;
Faseela M v. Munnerul Islam Madrasa Committee
(2014) 16 SCC 38 : [2014] 4 SCR 613; Rajasthan Waqf
Board v. Devki Nandan Pathak (2017) 14 SCC 561;
Dharampal v. Punjab Waqf Board (2018) 11 SCC 449
: [2017] 8 SCR 316; Punjab Waqf Board v. Sham Singh
Harike (2019) 4 SCC 698 : [2019] 2 SCR 61; Kiran
Devi v.Bihar State Sunni Waqf Board (2021) SCC
Online SC 280; Abdul Jata Mohammed Ishak v.
Russomoy Dhur Choudhary 1894 (22) Calcutta (PC)
- referred to.
Case Law Reference
[2007] 3 SCR 436
distinguished
Para 30
[2010] 10 SCR 945
distinguished
Para 30
[2010] 13 SCR 1063
relied on
Para 30
[2013] 7 SCR 1033
relied on
Para 30
RASHID WALI BEG v. FARID PINDARI & ORS.
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[2021] 13 S.C.R.
[2013] 9 SCR 721
referred to
Para 30
[2013] 12 SCR 596
referred to
Para 30
[2014] 4 SCR 613
referred to
Para 30
[2017] 8 SCR 316
referred to
Para 30
[2019] 2 SCR 61
referred to
Para 30
[2010] 8 SCR 777
referred to
Para 54
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6336
of 2021.
From the Judgment and Order dated 16.12.2014 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Second Appeal
No.286 of 2014.
Pradeep Misra, Daleep Dhyani, Suraj Singh, Manoj Kumar
Sharma, Bhuwan Chandra, Advs. for the Appellant.
Pradeep Kant, Sr. Adv., Divyanshu Sahay, Anurag Kishore, Advs.
for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Aggrieved by the Judgment of the High Court of Judicature at
Allahabad, Lucknow Bench, holding that a suit for a permanent injunction
before a civil court is not barred by Section 85 of the Waqf Act, 1995
(for short "the Act"), the defendant has come up with the above appeal.
2. We have heard Mr. Pradeep Misra, learned counsel for the
appellant and Mr. Pradeep Kant, learned senior counsel for the first
respondent.
3. The first respondent herein filed a suit in R.S. No.137 of 2011
against the appellant herein as defendant No. 1 and impleading the
respondents 2 to 5 herein as defendants 2 to 5. The suit was for a
mandatory injunction directing the defendants to remove the
encroachment made by them and for a permanent injunction restraining
the defendants from interfering with the plaintiff's possession of a piece
of land situated at Mirzaganj, Pargana and Tehsil Malihabad, Lucknow.
The suit was filed in the Court of Civil Judge, Senior Division, Malihabad.
The case of the first respondent herein/plaintiff was that the suit property
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originally belonged to one Mirza Abid Ali Beg; that during his life time he
created a Waqf-al-Aulad; that during his life time, Mirza Abid Ali Beg
was the mutawalli; that after his life time, his elder daughter became the
mutawalli; that thereafter, the younger daughter Smt. Afzal Jahan Begum
became the mutawalli; that the said Afzal Jahan Begum was the
grandmother of the plaintiff; that the father of the plaintiff led a wayward
life, forcing the grandmother to deliver possession of the property to the
plaintiff, authorizing him to maintain the properties and utilize the income
thereof for the maintenance of the family; that after taking possession,
the plaintiff constructed shops on the land and let them out to tenants;
that after sometime, the grandmother of the plaintiff appointed the father
of the plaintiff as the mutawalli; that there were criminal proceedings
between the plaintiff and his father; that on 18.12.2010, the defendants
brought building materials and started digging foundation in the land behind
the shops, at the instigation of the father of the plaintiff; that though the
plaintiff gave a police complaint, they were indifferent, emboldening the
defendants to raise a boundary wall in a portion of the land and that,
therefore, the plaintiff was constrained to file a suit for mandatory and
perpetual injunction.
4. After entering appearance in the suit, the appellant herein who
was the first defendant, filed a written statement admitting the existence
of the waqf and waqf property. Thereafter, he took out an application
under Order VII, Rule 11 CPC for rejection of plaint, on the simple
ground that the Civil Court has no jurisdiction to try a suit relating to
what is admittedly a waqf property. The said application was allowed by
the Civil Judge, Senior Division, Malihabad and the suit was dismissed.
5. Challenging the aforesaid judgment, the first respondent herein/
plaintiff filed a regular appeal under Section 96 CPC, but the first Appellate
Court dismissed the appeal.
6. However, the second appeal filed by the first respondent-plaintiff
was allowed by the High Court on the short ground that since 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. It is against
the said judgment of the High court that the first defendant in the suit
has come up with the above appeal.
RASHID WALI BEG v. FARID PINDARI & ORS.
[V. RAMASUBRAMANIAN, J.]
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7. Therefore, the only question that arises for our consideration in
this appeal is as to whether a suit for permanent injunction in respect of
a waqf property is maintainable in a civil court or not.
8. The question of jurisdiction of civil courts to adjudicate upon
disputes, for the determination of which special tribunals are constituted
under special statutes, has been a vexed question which has turned,
over a period of time, into a seesaw battle. This is especially so particularly
in respect of waqfs. But there is a historical background to this.
1913 Act
9. The earliest enactment to come up, relating to waqfs, was the
Mussalman Waqf Validating Act, 1913 (6 of 1913). This Act recognised
the right of muslims to make settlement of properties by way of waqf in
favour of their families, children and descendents. This Act declared
that no waqf shall be deemed as invalid merely because it postponed the
religious and charitable benefit confirmed therein, until the extinction of
the family of the founder. The reason why this Act was legislated, was
to overcome the decision of the Privy Council in Abdul Jata Mohammed
Ishak vs. Russomoy Dhur Choudhary1, which declared as invalid, a
waqf created for the benefit of the family, though coupled with a gift to
charity on the failure of the line of descendents. This Validating Act of
1913 was given retrospective application by Act 32 of 1930.
1923 Act
10. Then came the Mussalman Waqf Act 1923, which can be
called the precursor of Waqf Legislation, dealing with the creation,
maintenance and administration of waqf and waqf property. This Act
required the mutawalli of every waqf to furnish to the Court within whose
jurisdiction the waqf property was situate, a statement of particulars.
The Act also mandated the mutawalli of every waqf to furnish a full and
true statement of accounts to the Court, after it is audited. The Court
was empowered under this Act to hold an inquiry to ascertain: (i) Whether
the waqf exists (ii) Whether any property is a waqf property and (iii)
Who is the mutawalli of the waqf. The 1923 Act contemplated the creation
of a Register of waqfs and the Court was conferred with the power to
record entries in the said Register. The 1923 Act contained a provision
in Section 6N, empowering the Court to authorise any one or more of
the members of the waqf committee to institute or defend any Suit or
1 [1894 (22) Calcutta (PC)]
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proceeding for the protection or recovery of waqf property or for the
application of a waqf property in any public charitable or religious purpose.
This power of the Court under Section 6N, was notwithstanding anything
contained in Section 92 of CPC.
11. Thus the 1923 Act specifically provided a role for the civil
court in the matter of recognition and registration of waqfs, protection of
waqf properties and the oversight of the management of the waqfs. In
fact, the court had enormous powers under the 1923 Act, including the
power to order a special audit.
1954 Act
12. After India attained Independence, the Parliament enacted
the Waqf Act 1954, with the professed object of providing for better
administration and supervision of waqfs. The statements of Objects and
Reasons of the 1954 Act, recorded that the 1923 Act was not of much
practical value and that therefore the provincial governments of Bombay,
Bengal and the United Provinces introduced amendments respectively
in 1934, 1935 and 1936 to the 1923 Act.
13. Sections 6, 27, 36A, 43, 55, 56, 57, 60 and 61 of the 1954 Act
recognised the Civil Court as the forum for the resolution of various
disputes relating to waqfs and waqf properties as could be seen from
the following :-
(i) Section 6 enabled the Board or mutawalli or any person
interested to institute a suit in a Civil Court of competent Jurisdiction,
wherever any question arose as to (A) Whether a particular property
specified in the list published under Section 5 is a waqf property or (B)
Whether the waqf is a Shia waqf or a Sunni waqf.
(ii) Though Section 27(1) of the Act, authorised the waqf Board
also to decide the question whether a particular property is a waqf
property or not, the decision of the Board on the question, was made
subject to jurisdiction of the Civil Court as seen from Section 27(2).
(iii) Section 36-A (1) provided for the remedy of a requisition by
the waqf Board to the Collector, whenever any immovable property of a
waqf was transferred without the previous sanction of the Board. The
Collector was empowered under this provision to pass an order directing
the person in possession of the said property, to deliver it to the Board.
The order so passed by the Collector was appealable to the District
Court under Section 36A (4).
RASHID WALI BEG v. FARID PINDARI & ORS.
[V. RAMASUBRAMANIAN, J.]
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(iv) Section 43(5) of the 1954 Act made the order of the Waqf
Board removing the mutawalli and directing him to deliver possession of
the waqf property, deemed to be a decree of the Civil Court, executable
by the Civil Court, as if it was a decree passed by it.
(v) Section 55 enabled the Waqf Board to institute a suit to obtain
any of the reliefs mentioned in Section 92, CPC relating to any waqf,
without obtaining the consent referred to in Section 92, CPC. Section 56
contained a provision similar to Section 80 of CPC and Section 57 laid
down the procedure to be followed by the Civil Court, in every suit or
proceeding relating to title to waqf property or the right of a mutawalli or
any sale of waqf property in execution of a decree of Civil Court.
(vi) Section 60 imposed a bar on the rights of the parties to a suit,
to enter into a compromise without the sanction of the Board. The Waqf
Board was empowered by Section 61 to make an application to the
Court in case of failure of mutawalli to discharge his duties.
Waqf Inquiry Committee and 1984 Amendment Act
14. The 1954 Act, went through some amendments in 1959, 1964
and in 1969. But by and large, the working of the Waqf Boards was
found to be unsatisfactory and hence with a view to tone up the
administration of waqfs, the Central Government constituted a committee
known as Waqf Inquiry Committee. The Committee made a large number
of recommendations and its Report, after consultation with all stake
holders, led to comprehensive amendments to the Act, under the Waqf
(Amendment) Act, 1984. One of the important amendments made by
this Amendment Act, was the substitution of the existing Section 55 of
the principal Act with a new provision. The newly substituted Section
55(1) provided for the constitution of special tribunals for the determination
of any dispute, question or other matter relating to a waqf or waqf
property. But the right to invoke the jurisdiction of the Waqf Tribunal
was made available under Section 55(2) of the Act, only to, (i) any
mutawalli of the waqf; (ii) a person interested in the waqf; or (iii) any
other person aggrieved by any order made under the Act or Rule or any
order made there under. Section 55(5) declared that the Tribunal shall
be deemed to be a civil court, having the same powers as may be
exercised by a civil court under the CPC, while trying a suit or executing
a decree. However, the Tribunal was given the freedom to follow its
own procedure as may be prescribed, notwithstanding anything contained
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in the CPC. Though the decision of the Tribunal was declared to be final
under sub section (7) of Section 55, and though no appeal would lie
against a decision of the Tribunal by virtue of sub-section (9), the High
Court was conferred a power of revision under the proviso to sub-section
(9) of Section 55.
15. Section 55C barred the jurisdiction of 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 the Act to be determined
by a Tribunal. But at the same time, Section 55D contained a provision
enabling the court to appoint a Receiver under certain circumstances.
Section 55D reads as follows:-
"55D. Notwithstanding anything contained in the Code of Civil
Procedure, 1908, or in any other law for the time being in force,
where any suit or other legal proceeding is instituted or
commenced-
(a)
by or on behalf of a Board -
(i) to set aside the sale of any immovable property, which
is waqf property, in execution of a decree or order of a
civil court;
(ii) to set aside the transfer of any immovable property,
which is waqf property, made by the mutawalli thereof,
whether for valuable consideration or note, without, or
otherwise than in accordance with, the sanction of the
Board;
(iii) to recover possession of the property referred to in
clause(a) or clause (b) or to restore possession of such
property to the mutawalli of the concerned waqf; or
(b)
by a mutawalli to recover possession of immovable
property, which is waqf property, which has been
transferred by a previous mutawalli, whether for valuable
consideration or not, without or otherwise than in
accordance with, the sanction of the Board and which
is in the possession of the defendants, the court may, on
the application of the plaintiff, appoint a receiver of such
property and direct such receiver to pay from time to
time to the plaintiff, out of the income of the property,
RASHID WALI BEG v. FARID PINDARI & ORS.
[V. RAMASUBRAMANIAN, J.]
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such amount as the court may consider to be necessary
for further prosecution of the suit.
The Waqf Act, 1995
16. But it appears that the Amendment Act of 1984 came under
severe criticism and hence only two provisions of the 1984 Act came to
be enforced because of strong opposition from the community2.
Therefore, a comprehensive bill on waqf matters incorporating the
features of the 1954 Act and such provisions of the 1984 Act in respect
of which there was near consensus, was introduced. This became the
Waqf Act, 1995. This Act provided for the setting up of waqf tribunals to
consider questions and disputes pertaining to waqfs. An important feature
of the 1995 Act is that it was made applicable to the whole of India
except the State of Jammu and Kashmir, though the Waqf Act, 1954
was not applicable to Uttar Pradesh, West Bengal, parts of Gujarat,
parts of Maharashtra and some of the North Eastern states3.
16. Sections 83 and section 85 of the Waqf Act, 1995 (as they
originally stood before amendment in 2013) read as follows:-
"83.