As per case facts, the respondent contended that an area on the ground floor of an apartment complex, developed by the 1st appellant, was enclosed as a Mosque, and public ...
2026 INSC 90 Page 1 of 55
CA @ SLP (C) No.2937 of 2022
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. of 2026
(@Special Leave Petition (C) No.2937 of 2022)
Habib Alladin & Ors.
…Appellants
Versus
Mohammed Ahmed
...Respondent(s)
J U D G M E N T
K. VINOD CHANDRAN, J .
Leave granted.
2. The neat question arising in the above appeal as to the
reach and sweep of the jurisdiction of the Tribunal
constituted under the Wakf Act, 1995
1
, though short, has
been rendered complex by divergent opinions expressed
by coordinate benches of this Court.
3. On facts, for the present suffice it to notice that the 1
st
appellant herein was the owner of a land which was
developed by constructing an apartment complex through a
builder on the strength of a development agreement. The
1
for short, ‘Act of 1995’
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respondent herein contended that on the ground floor of the
building, meant for residential purpose, an area was
enclosed as a Mosque with the active participation of the
owner, constructed by the builder. The respondent claimed
that himself and other members of the public have been
offering prayers in the premises, more fully described in the
schedule to the plaint, which is now being obstructed by the
petitioners. The cause of action according to the respondent
arose when the ingress to the Mosque, established in the
year 2008, was obstructed in the year 2021. The plaintiff
sought for a perpetual injunction restraining the defendants
from causing any interference or hindrance to the plaintiff
and other Musallies from entering into the premises and
offering prayers.
4. The appellants filed an application under Order VII,
Rule 11 of the Code of Civil Procedure, 1908
2
specifically
contending that there is no such Mosque established or
continued in the residential complex. There is no
demarcation of such a Mosque in the sanctioned plan and in
any event, it is not a waqf under the Act of 1995; inclusion in
2
for short, ‘the CPC’
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the list notified or registration by the Waqf Board under that
Act being mandatory for the plaintiff to approach the
Tribunal. The confined jurisdiction conferred on the
Tribunal, by the Act of 1995, does not enable the prayer for
an injunction with respect to the property which has not
been conferred with the status of a wakf under that Act. An
Order VII Rule11 application having been rejected, the
defendants were before the High Court, which revision was
dismissed by the impugned order. The High Court found
that the averments in the plaint indicate a ‘waqf by user’
covered under the definition of waqf in Section 3(r)(i) of the
Act of 1995. The defendants are hence before this Court
canvassing their prayer for rejection of plaint.
5. Shri C. Aryama Sundaram learned Senior Counsel
appearing for the appellant argued that the prayer for
injunction simpliciter before the Tribunal is impermissible
in view of the fact that the scheduled premises has not been
established to be a Mosque or even a waqf. A declaration to
that status of a property, not included in the list notified
under Chapter II or registered under Chapter V of the Act of
1995 cannot be agitated before the Tribunal constituted
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under that Act. Section 6 and 7 of the Act of 1995 confers
jurisdiction on the Tribunal specifically with respect to a
question arising as to whether a particular property is a
waqf property or not or to be determined by the Tribunal, if
and only if such property is specified as a waqf property in a
‘list of Auqaf’ under Section 5. The same having not been
done, there is no question of even a declaration being
sought before the Tribunal, which prayer has to be
necessarily made before the Civil Court, without which
there cannot be a relief prayed for injunction simpliciter.
6. Reliance is placed on Madanuri Sri Rama Chandra
Murthy v. Syed Jalal
3 wherein, a dispute regarding non-
inclusion of certain property in the ‘list of auqaf’ notified
long back in the official gazette was found by the Tribunal to
be a manifestly vexatious and meritless suit in the sense of it
disclosing no right to sue; rejected under Order VII Rule 11.
Insofar as the claim of ‘waqf by user’, reliance was placed
on Faqir Mohamad Shah v. Qazi Fasihuddin Ansari
4, in
which it was held that, as a matter of law, a waqf normally
requires express dedication and in the event of the
3
(2017) 13 SCC 174
4
AIR 1956 SC 713
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contention being one of user for religious purpose, it should
be from time immemorial. In the present case, the plaint
itself asserts the Mosque to have been established only in
the year 2008, which assertion is also false. It is argued that
the decision in Rashid Wali Beg v. Farid Pindari
5 insofar as
it finds jurisdiction of the Tribunal having been conferred
under Section 83 of the Act requires reconsideration,
especially looking at the contrary stance taken in Ramesh
Gobindram v. Sugra Humayun Mirza Wakf
6, an earlier
decision of a coordinate bench.
7. Shri Niranjan Reddy learned Senior Counsel for the
respondent/plaintiff, at the outset, argues that there is no
case made out for rejection of a plaint under Order VII, Rule
11 of the CPC. The only question that arises is as to whether
a Gazette notification is necessary for the Tribunal to get
jurisdiction to deal with the question as to whether a
property is a waqf property or not. It is urged that the statute
provides for three measures by which the status of a waqf
can be conferred on a property. The first is by a survey
under Chapter II, in pursuance of which a ‘list of auqaf’ is
5
(2022) 4 SCC 414
6
(2010) 8 SCC 726
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prepared, which after consultation with the Board has to be
published, in pursuance to which the revenue authorities
are required to update the land records in accordance with
that list and reckon it when proceeding with a mutation of a
property, included in the list. The second measure in which
the status can be conferred is by a registration under
Chapter V by the Waqf Board, which can be done by an
application or even suo motu, after collection of information
regarding the subject property and issuing notice to
whomsoever is interested in the said property. The third
measure according to the learned Senior Counsel is under
Chapter VII, specifically under Section 83 of the Act where
the Tribunal has been conferred with the power to
determine any dispute, question or other matter relating to a
waqf or waqf property which takes within it the decision as
to whether a property is a waqf or not.
8. It is also pointed out that the survey as per Section 4(6)
is a decennial exercise which also has not been carried out
scrupulously. The auqaf so dedicated in the interregnum
between two surveys cannot be said to have no status of
waqf, the disputes regarding which cannot be adjudicated
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by the Tribunal. Emphasis is laid on Section 2 of the Act,
providing that the Act applies to all auqaf whether created
before or after the commencement of this Act, again read
with Section 2(r)(i) brings in, a waqf by user, which identical
issue arises in the subject case. Reference is also made to
Section 2(g) which was substituted by an amendment of
2013 bringing within the definition clause not only the list
published under Section 5(2) but also those contained in the
‘Register of Auqaf’ maintained by the Board under Section 37
of the Act. Ramesh Gobindram
6 has been distinguished in
W.B. Wakf Board v. Anis Fatma Begum
7
, which later
decision has been followed by Akkode Jumayath Palli
Paripalana Committee v. P.V. Ibrahim Haji
8 and Punjab
Wakf Board v. Pritpal Singh
9.
9. Another Coordinate Bench in Rashid Wali Beg
5 found
the sub-stratum of Ramesh Gobindram
6 to have been
removed by the Amendment Act 27 of 2013. It was
categorically held that though Sections 6 and 7 speak of only
two categories of cases, Section 83 covers the entire gamut
7
(2010) 14 SCC 588
8
(2014) 16 SCC 65
9
2013 SCC OnLine SC 1345
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of possible disputes in relation to any waqf or waqf property
and the Civil Court’s jurisdiction with regard to “other
matters which is required by or under this Act to be
determined by a Tribunal” has also been ousted by Section
85. Rashid Wali Beg
5, hence requires no reconsideration; it
pithily states and declares the law. Insofar as the principles
governing a Mosque and ‘waqf by user’ reliance is placed
on Syed Mohd. Salie Labbai v. Mohd. Hanifa
10
and M.
Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das
11
.
10. Before we look at the plaint which is produced as
Annexure P-9, we have to understand the law as delineated
by this Court in the various decisions starting from Ramesh
Gobindram
6, which came in the year 2010, before the
amendment of 2013. Ramesh Gobindram
6 was a case in
which three appeals arising from the orders of the High
Court, raised a common question whether the Tribunal
constituted under Section 83 of the Act of 1995 was
competent to entertain and adjudicate upon disputes
regarding eviction of tenants occupying property which are
admittedly waqf properties. It was found on an examination
10
(1976) 4 SCC 780
11
(2020) 1 SCC 1
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of the various provisions that neither Sections 6 and 7 nor
the other provisions confer on the Tribunal the power to
deal with eviction of tenants.
11. Anis Fatma Begum
7, Pritpal Singh
9, P.V. Ibrahim
Haji
8 and Mumtaz Yarud Dowla Wakf v. Badam
Balakrishna Hotel Pvt. Ltd.
12 distinguished the decision in
Ramesh Gobindram
6 and found the subject issues arising in
all the three cases capable of determination by the Tribunal.
At the same time, Haryana Wakf Board v. Mahesh Kumar
13
,
Bhanwar Lal v. Rajasthan Board of Muslim Wakf
14
and
Punjab Wakf Board v. Sham Singh Harike
15
followed
Ramesh Gobindram
6. Sham Singh Harike
15 in fact found the
divergent opinion in Anis Fatma Begum
7, P.V. Ibrahim
Haji
8 and Pritpal Singh
9 to be wholly unwarranted. It was
categorically found that despite Anis Fatma Begum
7 having
only distinguished the decision in Ramesh Gobindram
6, its
ratio as available from para 10 of the judgment sounds
substantially different from Ramesh Gobindram
6 meaning
thereby that a divergent view was taken. Anis Fatma
12
2023 INSC 949
13
(2014) 16 SCC 45
14
(2014) 16 SCC 51
15
(2019) 4 SCC 698
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Begum
7 categorically held that the “Wakf Tribunal can
decide all disputes, questions or other matters relating to a
wakf or wakf property” as indicated from the words
employed in Section 83(1) of the Act of 1995. On a bare
perusal of the citation, it is evident that Ramesh
Gobindram
6 was the first in point of time, a decision of a
two-Judge Bench, the other decisions referred are of
coordinate benches, which have taken a divergent view.
This would not accord with the principles laid down in the
decision of the Constitution Bench in National Insurance
Co. Ltd. v. Pranay Sethi
16
. To understand the ratio
decidendi of each of the aforesaid decisions, we have to
necessarily look at the principles culled out, and the
application of law made to the facts germane to the
individual decisions.
12. Ramesh Gobindram
6 as we noticed dealt with eviction
of tenants from admitted waqf properties. We have to notice
at the outset that the amendment of 2013 conferred powers
for removal of encroachers from waqf properties, on the
Tribunal, bringing in a definition of an ‘encroacher’ which
16
(2017) 16 SCC 680
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also included tenants, lessees and licensees whose rights
had either expired or had been terminated by the Mutawalli
or Board. True, the declaration with respect to the Tribunal
not having powers to evict tenants stands offset by the
amendment made, which removed the sub-stratum of the
reasoning regarding that dispute, in the said decision.
However, the larger principle of the ouster of jurisdiction of
civil courts being confined to the precise power conferred
under the statute, according to us, survives the amendment
and is not extinguished by reason of the particular
amendment. We are of the opinion that the principle laid
down that, the Tribunal is only clothed with the powers
under Sections 6 and 7, to resolve disputes and questions
arising with respect to whether a property is wakf property
or not; survives the amendment, as confined to those
properties included in the ‘list of auqaf’, defined in Section
2(g). The definition clause by the amendment of 2013 was
expanded to bring within it, those properties registered by
the Board and entered in the register maintained under
Section 37, in addition to properties entered in the list under
Section 5(2). Only such disputes or questions as to the status
Page 12 of 55
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of such properties in the ‘list of auqaf’ can be agitated before
the Tribunal, especially since finality is conferred and
conclusiveness provided, only to the decision of the
Tribunal [Section 6(1)]. Finality is conferred on the list, only
if it is not modified by the Tribunal [Section 6(4)]; meaning
thereby that the list and the register are subject to
modification by the Tribunal.
13. Ramesh Gobindram
6 noticed the divergence of
opinion with respect to the specific issue of eviction of
tenants, as coming forth from the decisions of the various
High Courts. It opened with the trite law that even if the
statute accords finality to the orders of the Tribunal, a Court
will have to see whether the Tribunal has the power to grant
the reliefs, which the Civil Courts would normally grant and
if the answer is in the negative, ordinarily there can be no
inference of exclusion of the Civil Courts’ jurisdiction.
Reliance was placed on Rajasthan SRTC v. Bal Mukund
Bairwa (2)
17
, a three-Judge Bench decision which reiterated
the presumption of a Civil Court being conferred with
jurisdiction, unless there is an express ouster made by the
17
(2009) 4 SCC 299
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statute, which cannot be readily inferred and has to be
confined to such matters on which power is conferred on the
Tribunal, by express words employed. Sections 6, 7 and 85
were extracted, it was categorically held so in paragraphs
25 to 28:
“25. 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) read with Section 7 of the
Wakf Act. While the latter bars the jurisdiction of the
civil court only in relation to 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. There are a host of such matters in
which the Tribunal exercises original or appellate
jurisdiction.
26. To illustrate the point, we may usefully refer to
some of the provisions of the Act where the bar
contained in the said section would get attracted.
Section 33 of the Act deals with the power of
inspection by a Chief Executive Officer or person
authorised by him. In the event of any failure or
negligence on the part of a mutawalli in the
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performance of his duties leading to any loss or
damage, the Chief Executive Officer can with the prior
approval of the Board pass an order for the recovery
of the amount or property which has been
misappropriated, misapplied or fraudulently retained.
Sub-section (4) of Section 33 then entitles the
aggrieved person to file an appeal to the Tribunal and
empowers the Tribunal to deal with and adjudicate
upon the validity of the orders passed by the Chief
Executive Officer. Similarly, under Section 35 the
Tribunal may direct the mutawalli or any other person
concerned to furnish security or direct conditional
attachment of the whole or any portion of the property
so specified.
27. Section 47 of the Act requires the accounts of the
wakfs to be audited whereas Section 48 empowers the
Board to examine the audit report, and to call for an
explanation of any person in regard to any matter and
pass such orders as it may think fit including an order
for recovery of the amount certified by the auditor
under Section 47(2) of the Act. The mutawalli or any
other person aggrieved by any such direction has the
right to appeal to the Tribunal under Section 48.
Similar provisions giving powers to the Wakf Board to
pass orders in respect of matters stipulated therein
are found in Sections 51, 54, 61, 64, 67, 72 and 73 of
the Act. Suffice it to say that there are a host of
questions and matters that have to be determined by
the Tribunal under the Act, in relation to the wakf or
wakf property or other matters.
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.
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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.”
[underlining by us for emphasis]
14. It was hence found that a reading of Section 6 and 7
makes it clear that the jurisdiction, to determine whether or
not a property is a waqf property, or whether a waqf is a
Shia waqf or a Sunni waqf, inheres in the Tribunal only if the
particular property is specified as waqf property in the ‘list
of auqaf’. The bar of jurisdiction under Section 85 is much
wider than that in Section 6(5) since there are various
provisions under the Act of 1995 which confers power on the
Tribunal, the jurisdiction to consider which is ousted from
the Civil Court; some of these provisions illustrated in
paragraphs 26 to 28 above.
15. What is more important for our purpose is the
interpretation of Section 83 in Ramesh Gobindram
6
, which
according to us survives the amendment of 2013. Section 83
has been given an expansive interpretation, an all-inclusive
definition by the later decisions, taking a divergent view.
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We extract herewith paragraphs 31 & 32 again from
Ramesh Gobindram
6: -
“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 7 and Section 85
of the Act. It simply empowers the Government to
constitute a Tribunal or Tribunals for determination of
any dispute, question or 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 reason of such
establishment.”
[underlining by us for emphasis]
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16. Section 85, but for the cosmetic change of having
corrected the spelling of the word ‘waqf’ from ‘wakf’ and
substitution of ‘Civil Court, Revenue Court and any other
authority’ for the words ‘Civil Court’ is substantially and
verbatim the same as it existed prior to the amendment of
2013. Section 83 likewise, effectively has incorporated the
aspect of eviction of a tenant or determination of the rights
and obligations of the lessor and lessee of such property;
the conferment of such power being under Section 54 (3) &
(4), enabling the Chief Executive Officer to move the
Tribunal either on complaint received or suo motu. Both
these provisions, in our definite opinion, falls for no fresh
interpretation, even after the Amendment of 2013.
Ramesh Gobindram
6 followed:
17. Bhanwar Lal
14 dealt with a suit instituted by the Waqf
Board in the year 1980 for possession of a property as well
as for rendition of accounts claiming it to be a waqf
property. After evidence was led, at the final stage, the
Board itself raised a contention under Section 85 of the Act
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that the suit would be triable by the Tribunal and not the
Civil Court as per the Act of 1995. This Court in the cited
case referred to Ramesh Gobindram
6 with approval and
found so in paragraph 23 to 24 extracted herein below:
23. The exclusion of the jurisdiction of the civil courts
to adjudicate upon disputes whether a particular
property specified in the wakf list is or is not a wakf
property or whether a wakf specified in the list is a
Shia wakf or a Sunni wakf is clear and presents no
difficulty whatsoever. The difficulty, however, arises
on account of the fact that apart from Section 6(5)
which bars the jurisdiction of the civil courts to
determine matters referred to in Section 6(1), Section
85 of the Act also bars the jurisdiction of the civil
courts to entertain any legal proceedings in respect of
any dispute, question or matter relating to a wakf
property.
24. Section 85 of the Act reads:
“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 wakf, wakf
property or other matter which is required
by or under this Act to be determined by a
Tribunal.”
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
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all disputes concerning the wakf or wakf property
stand excluded from the jurisdiction of the civil court.”
[underlining by us for emphasis]
18. The principle that the jurisdiction of the Tribunal
constituted under Section 83 and the ouster of jurisdiction of
the Civil Court provided under Section 85 would only be
applicable to those matters specified under Sections 6 and 7
as also the specific conferment of jurisdiction contained
elsewhere in the Act, and the ouster of jurisdiction is not
absolute or all pervasive, were reiterated. It was found that,
after the Act of 1995 some of the reliefs sought for, like
rendition of accounts and removal of trustees would be
within the jurisdiction of the Tribunal. But therein, the civil
suit having been filed before the commencement of the Act,
was possible of continuance before the Civil Court under
Section 7(5) based on the exception to ouster of jurisdiction
provided in the Act for suits initiated prior to the Act of 1995,
was the finding.
19. In Mahesh Kumar
13, the suit was filed by the Waqf
Board before the Civil Court, seeking possession of a
property given on rent to a third party, whose widow in turn
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executed a long-term lease in favour of the defendant and
handed over possession. The property was duly notified
under Section 5(2) of the Wakf Act, 1954. The decree passed
by the Civil Court was reversed by the Appellate Court
finding that the question as to whether the suit scheduled
property is waqf property or not could be decided only by
the Tribunal constituted under the Act of 1995 and directed
the plaint to be returned under Order VII Rule 10 of the CPC
to be presented before the Court of competent jurisdiction,
which order was affirmed by the High Court. Therein the
Waqf Board, as found by the Trial Court, clearly and
cogently led consistent evidence and proved its title over
the land in question, which was also specified in the ‘list of
waqfs’, in which event, the jurisdiction was with the Tribunal.
It was held so in paragraph 11:
11. As per sub-section (1) of Section 7 of the Act, if a
question arises, whether a particular property
specified as wakf property in a list of wakfs is wakf
property or not, it is the Tribunal which has to decide
such a question and the decision of the Tribunal is
made final. When such a question is covered under
sub-section (1) of Section 7, then obviously the
jurisdiction of the civil court stands excluded to
decide such a question in view of specific bar
contained in Section 85. It would be pertinent to
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mention that, as per sub-section (5) of Section 7, if a
suit or proceeding is already pending in a civil court
before the commencement of the Act in question, then
such proceedings before the civil court would
continue and the Tribunal would not have any
jurisdiction.
[underlining by us for emphasis]
20. In Sham Singh Harike
15, there were two appeals, both
filed by the Punjab Waqf Board. The suit filed against Sham
Singh Harike before the Civil Court was transferred to the
Waqf Tribunal after its constitution. The suit was filed for
grant of permanent injunction restraining the respondent
from raising any construction and changing the agricultural
land into a residential property, which land was asserted to
have been leased out to Sham Singh Harike. The defendant
had initiated litigation against the interest of the Board
which was decided in favour of the Board. In the subject suit,
the defendant raised a question as to whether the property
was a waqf property or not and contended that the
jurisdiction to entertain the suit was before the Civil Court.
The High Court relying on the judgment of Ramesh
Gobindram
6 allowed the revision against the order of the
Waqf Tribunal and also found that the petitioner being a
Page 22 of 55
CA @ SLP (C) No.2937 of 2022
non-Muslim, the Waqf Tribunal has no jurisdiction in the
matter. This Court, in appeal, found that when the question
raised is of a waqf property being a waqf or not, the
jurisdiction was with the Tribunal and Ramesh Gobindram
6
would not be applicable. This Court relied on Mahesh
Kumar
13, which in similar circumstance, directed; in an
appeal from a suit in which such dispute was raised, the
plaint to be returned for transfer to the Tribunal. It was also
found that the limitation under Section 6(1) of raising such
dispute within one year of the list being published applies to
any person interested in the waqf and the limitation would
apply only if a reasonable opportunity had been accorded
to the interested person so as to put forth his case, by notice
served and heard on that behalf, during the course of the
relevant inquiry under Section 4. Obviously, that was a case
in which the property was included in the list after the
survey.
21. The other appeal dealt with in Sham Singh Harike
15
was a suit filed by the Waqf Board against one Teja Singh
who was admittedly a lessee of the property belonging to
the plaintiff Board. Teja Singh had also filed a suit for
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CA @ SLP (C) No.2937 of 2022
injunction, which was decreed by the Civil Court restraining
the respondent from forcible and illegal eviction other than
under due course of law. The defendant’s case was that
despite his readiness to pay the rent, it was not accepted.
The suit filed by the Waqf Board was one for possession of
the leasehold property and seeking permanent injunction
restraining the respondent from interfering in and changing
the nature of the property. The suit filed by the Waqf Board
before the Tribunal was found to be incompetent relying on
Ramesh Gobindram
6 since it was one for possession of a
leased out property which would have to be preceded by
eviction of the tenant, the power to adjudicate which cause
was not available to the Tribunal at that point of time as has
been held in Ramesh Gobindram
6. The plaint was directed
to be presented before the appropriate Court.
22. Faseela M. v. Munnerul Islam Madrasa
Committee
18, was concerned with a suit for eviction filed
before the Waqf Tribunal by the Madrasa Committee
against the appellant. The appellant who was the defendant
denied that the subject property was waqf property and
18
(2014) 16 SCC 38
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challenged the jurisdiction of the Waqf Tribunal to
determine the dispute. The decision in Ramesh
Gobindram
6
was noted with approval and the interpretation
of Section 6, 7, 83 and 85 to explain the jurisdiction of the
Waqf Tribunal vis-a-vis the Civil Court was affirmed. The
contention taken by the appellant that Bhanwar Lal
14
took a
different view, was negatived. After looking at both the
decisions, it was held that Bhanwar Lal
14
follows Ramesh
Gobindram
6
and it is not in any manner inconsistent or
contrary to the view taken in Ramesh Gobindram
6
despite
Bhanwar Lal
14
having also referred to Anis Fatma Begum
7.
Ramesh Gobindram
6 distinguished/differed from:
23. Anis Fatma Begum
7 distinguished Ramesh
Gobindram
6 noticing that it dealt with eviction proceedings
which alone was declared as falling within the jurisdiction of
the Civil Court but more importantly, it looked at Section 83
(1) of the Waqf Act, 1995 (hereinafter referred to as the Act
of 1995) and held so in paragraph 10 as under: -
10. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a wakf or wakf
property. The words “any dispute, question or other
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matters relating to a wakf or wakf property” are, in
our opinion, words of very wide connotation. Any
dispute, question or other matters whatsoever and in
whatever manner which arises relating to a wakf or
wakf property can be decided by the Wakf Tribunal.
The word “wakf” has been defined in Section 3(r) of
the Wakf Act, 1995 and hence once the property is
found to be a wakf property as defined in Section 3(r),
then any dispute, question or other matter relating to
it should be agitated before the Wakf Tribunal.
24. In Pritpal Singh
9, the Waqf Board filed a suit before
the Tribunal for possession as also for mesne profits which
was decreed. The High Court set aside the same, finding no
jurisdiction on the Tribunal to entertain a suit for ejectment
which was reversed by this Court finding that the subject
suit was not one for eviction but for recovery of possession
and mesne profits. The short order does not disclose the
facts and does not deal with the provisions of the Act, which
do not confer on it the sheen of a binding precedent since
precedents sub silentio, without arguments addressed and
reasoning supplied is of no import [Municipal Corporation
of Delhi v. Gurnam Kaur
19]. As has been held by a
Constitution Bench in State of Orissa v. Sudhansu Sekhar
19
(1989) 1 SCC 101
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Misra and Others
20 a decision is a precedent and is binding
for what it explicitly decides, and every observation made
or what logically follows, is not the ratio of the decision.
25. P.V. Ibrahim Haji
8 was a case in which the plaintiff
was a Society registered under the Societies Registration
Act, 1860 formed for the management and administration of
the waqf property, including a mosque situated therein. An
injunction suit was filed by the plaintiff before the Civil
Court, which was transferred to the Tribunal, which decreed
the suit. The High Court, relying on Ramesh Gobindram
6
set aside the judgment and decree passed by the Tribunal
and directed the plaintiff to take back the plaint for
presenting it before the appropriate Civil Court. A Division
Bench of this Court found Ramesh Gobindram
6 to be not
applicable since that decision was solely concerned with the
dispute regarding eviction of tenants from the admitted
waqf properties. This Court relied on Anis Fatma Begum
7
which distinguished Ramesh Gobindram
6 while holding
that the dispute arising for consideration in P.V. Ibrahim
Haji
8 was with respect to management and peaceful
20
AIR 1968 SC 468
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possession and enjoyment of the mosque and other
properties which relates to the waqf on the expansive
interpretation given to Section 83.
26. Telangana State Wakf Board v. Mohamed Muzafar
21
was a case in which the Waqf Board approached the Waqf
Tribunal seeking to evict a tenant and also remove the
encroachment the tenant had made on the Waqf property,
which was registered and later renotified making an
amendment to the extent of the land from 667.8 sq.yard to
998.66 sq.yard. The respondent tenant who had defaulted
the rent and also had allegedly encroached upon a certain
additional extent, raised a dispute that the property was not
a waqf property. The Tribunal decreed the suit directing
vacation of the suit scheduled properties, which was
reversed by the High Court referring to Ramesh
Gobindram
6
finding the suit to be not maintainable before
the Tribunal. Ramesh Gobindram
6 was applied since the
property in the subject case was admittedly waqf property
and the relief was only for eviction of tenant, which at that
point was not permissible to be agitated before the
21
(2021) 9 SCC 179
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Tribunal. This Court, however, on facts noticed that the
amended notification referred to a larger extent, in which
context the dispute was raised as to whether the property
was a waqf property or not, despite the entire extent having
been notified, i.e.: being specified in the ‘list of Auqaf’. The
encroachment alleged was of 40 sq.yard, the removal of
which could not be agitated before the Tribunal unless it is
found to be a waqf property. This Court held that the very
observations made by the High Court indicate that there
was a dispute with respect to the extent of the property
included in the notification in which event the dispute had to
be agitated before the Tribunal despite no legal remedy
having been availed by the respondent within the time
frame as provided by Section 6 of the Act.
27. Kiran Devi v. Bihar State Sunni Wakf Board and
Others
22 dealt with a dispute between two tenants, again, in
an admitted Waqf property, wherein the Waqf Board was
impleaded as the landlord. The plaintiff, who approached
the Civil Court, was the descendant of the earlier tenant who
claimed that the surrender of tenancy made by his
22
(2021) 15 SCC 15
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predecessor-in-interest cannot be justified since the hotel
run in the tenanted premises was a Joint Hindu Family
business. The Waqf Board asserted that the tenancy was
surrendered and later another person, the appellant before
the Supreme Court, had been inducted as tenant in the very
same property. While the matter was pending before the
Civil Court the appellant and the Waqf Board who were the
defendants filed an application for transfer of the case to the
Waqf Tribunal, which was permitted. The Tribunal rejected
the suit but later the High Court reversed it and found the
surrender of tenancy to be not proper. Before the Supreme
Court, the subsequent tenant, the appellant, raised a
contention that the Tribunal did not have jurisdiction, which
was rejected on the sole ground that it was the appellant
along with the Waqf Board who sought for transfer of the suit
to the Tribunal, which cannot be later resiled from, by
contesting the very jurisdiction of the Tribunal, they invited
and acquiesced to voluntarily, which, if permitted would
result in the party being permitted to approbate and
reprobate.
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28. First of all, we observe that Anis Fatma Begum
7 was in
clear conflict with the interpretation of Section 83 in Ramesh
Gobindram
6. It was divergently opposite to the conclusion
in Ramesh Gobindram
6 that a plain reading of Section 83
does not suggest that it pushes the jurisdiction of the Civil
Court beyond what has been provided in Section 6(1) & (5),
Section 7 and Section 85 of the Act. Then, we notice that the
wider jurisdiction found to have been conferred under
Section 83(1) was after noticing the words, “any dispute,
question or other matters relating to a Wakf or Wakf property"
which words in fact were followed by the words “under this
Act”, which has a definite meaning, available before and
after the amendment. Hence, as held in Pranay Sethi
16, if a
divergent view had to be taken, necessarily the Coordinate
Bench in Anis Fatma Begum
7, ought to have referred the
matter to a Larger Bench, following which the dictum in the
earlier Division Bench survives.
29. Pertinently, the facts as coming out in Anis Fatma
Begum
7 did not require such a finding on Section 83. Even
otherwise, the subject matter of the said case brings it within
the ambit of the jurisdiction of the Tribunal as conferred by
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the Act of 1995. The question raised therein was with respect
to a wakf which was “enrolled under the appropriate laws,
then prevailing as a Wakf estate” (sic-para 3). The aforesaid
property was partitioned by metes and bounds, keeping
25% for religious and charitable purposes and 75% for the
benefit of the descendants of the family of the Wakifa; which
benefit was expressly provided in the dedication, a
registered Deed of Wakf dated 22.09.1936. The question
raised was with respect to the correctness and validity of the
demarcation and if it is found correct, whether the Act of
1995 applies to the property earmarked for Wakf-al-al-
Aulad. The order challenged before this Court was of the
Division Bench of the High Court answering both questions
in the negative, while the learned Single Judge answered
the first question in the negative and the second question in
the affirmative. The plea raised before this Court was that
the jurisdiction was with the Wakf Tribunal under the Act of
1995 which was agreed to by the Division Bench of this
Court, setting aside the order of the High Court and leaving
liberty to the parties to approach the High Court, if they so
desired. Since there was a dedication by a registered deed
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and it was also enrolled under the appropriate laws and
registered as a waqf estate, the matter would squarely fall
under Section 6(1) or 7(1) of the Act of 1995, since the
question was of excluding 75% of the property from the
purposes of the waqf. A wider interpretation of Section 83,
in conflict with the earlier interpretation of a coordinate
bench, according to us, with due respect, was not
warranted.
30. We are conscious of the fact that the dispute in both
the above cited cases arose before the amendment of 2013
and when the suit was filed before the High Court, the
definition clause read as “‘list of Wakfs’ means the list of
Wakfs published under sub-section (2) of Section 5”. But even
before the amendment of 2013, as argued by the learned
Senior Counsel for the respondent, there were two methods
by which a waqf gets recognised under the Act, subject to
any modification by the Tribunal constituted under the Act.
The first, by a published list pursuant to a survey, after
consultation with the Board under Chapter II, specifically by
Section 5 (2) and the other by registration under Chapter V,
more precisely under Section 37. The amendment of 2013
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substituted the definition under Section 3 (g), including
within its ambit both the list published under Section 5(2)
and that contained in the register of Auqaf maintained under
Section 37.
31. It is trite that an Amendment will be retrospective only
if expressly provided for and at times, when it follows by
necessary implication. In Garikapati Veeraya v. N. Subbiah
Choudhry
23, a Constitution Bench of this Court reaffirmed
the principle that a vested right can be taken away by a
subsequent enactment which by express words or
necessary intendment makes it retrospective. Dayawati v.
Inderjit
24 held that the relief granted by an Act prohibiting
future interest, is applicable to appeals pending from
decrees passed, looking at the necessary intendment. The
principles culled out in Hitendra Vishnu Thakur v. State of
Maharashtra
25, in para 26 is extracted hereunder:
“26. The Designated Court has held that the
amendment would operate retrospectively and would
apply to the pending cases in which investigation was
not complete on the date on which the Amendment
Act came into force and the challan had not till then
been filed in the court. From the law settled by this
23
1957 SCC OnLine SC 28
24
1966 SCC OnLine SC 44
25
(1994) 4 SCC 602
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Court in various cases the illustrative though not
exhaustive principles which emerge with regard to the
ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is
presumed to be prospective in operation
unless made retrospective, either expressly
or by necessary intendment, whereas a
statute which merely affects procedure,
unless such a construction is textually
impossible, is presumed to be retrospective
in its application, should not be given an
extended meaning and should be strictly
confined to its clearly defined limits.
(ii) Law relating to forum and limitation is
procedural in nature, whereas law relating to
right of action and right of appeal even
though remedial is substantive in nature.
(iii) Every litigant has a vested right in
substantive law but no such right exists in
procedural law.
(iv) A procedural statute should not generally
speaking be applied retrospectively where
the result would be to create new disabilities
or obligations or to impose new duties in
respect of transactions already
accomplished.
(v) A statute which not only changes the
procedure but also creates new rights and
liabilities shall be construed to be
prospective in operation, unless otherwise
provided, either expressly or by necessary
implication.”
32. The amendment in 2013 providing an expanded
definition of ‘list of Auqaf’ was procedural in nature since it
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merely enabled the disputes with respect to whether a
property entered in the register maintained under Section
37, is a waqf property or not, also to be resolved by the
Waqf Tribunal, as were similar disputes pertaining to those
included in the list under Section 5(2) enabled to be
resolved by the Tribunal. The right of action remained as
such but the forum in which the issue had to be agitated was
specified to be the Tribunal under the Act of 1995.
33. An amendment by way of substitution does not
invariably result in a retrospective application. In the Act of
1995, originally the definition of ‘list of Waqfs’ included only
that notified under Section5(2), which later was substituted,
including also the register maintained under Section 37;
which was in rectification of an anomaly, applicable from the
inception of the Act. In Zile Singh v. State of Haryana
26, a
three-Judge Bench while reaffirming that retrospectivity is
not to be presumed and the presumption is to the contrary,
held it was open for the legislature to enact laws having
retrospective operation, by express enactment or by
26
(2004) 8 SCC 1
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necessary implication from the language employed. It was
held so, in paragraphs 15, 17 and 19:
“15. Though retrospectivity is not to be presumed and
rather there is presumption against retrospectivity,
according to Craies (Statute Law, 7th Edn.), it is open
for the legislature to enact laws having retrospective
operation. This can be achieved by express enactment
or by necessary implication from the language
employed. If it is a necessary implication from the
language employed that the legislature intended a
particular section to have a retrospective operation,
the courts will give it such an operation. In the
absence of a retrospective operation having been
expressly given, the courts may be called upon to
construe the provisions and answer the question
whether the legislature had sufficiently expressed that
intention giving the statute retrospectivity. Four factors
are suggested as relevant: (i) general scope and
purview of the statute; (ii) the remedy sought to be
applied; (iii) the former state of the law; and (iv) what
it was the legislature contemplated. (p. 388) The rule
against retrospectivity does not extend to protect from
the effect of a repeal, a privilege which did not
amount to accrued right.”
xxx xxx xxx
“17. Maxwell states in his work on Interpretation of
Statutes (12th Edn.) that the rule against retrospective
operation is a presumption only, and as such it “may
be overcome, not only by express words in the Act but
also by circumstances sufficiently strong to displace
it” (p. 225). If the dominant intention of the legislature
can be clearly and doubtlessly spelt out, the inhibition
contained in the rule against perpetuity becomes of
doubtful applicability as the “inhibition of the rule” is
a matter of degree which would “vary secundum
materiam” (p. 226). Sometimes, where the sense of
the statute demands it or where there has been an
obvious mistake in drafting, a court will be prepared
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to substitute another word or phrase for that which
actually appears in the text of the Act.”
xxx xxx xxx
“19. The Constitution Bench in Shyam Sunder v. Ram
Kumar, [(2001) 8 SCC 24] has held:
“Ordinarily when an enactment declares the
previous law, it requires to be given
retroactive effect. The function of a
declaratory statute is to supply an omission
or to explain a previous statute and when
such an Act is passed, it comes into effect
when the previous enactment was passed.
The legislative power to enact law includes
the power to declare what was the previous
law and when such a declaratory Act is
passed, invariably it has been held to be
retrospective. Mere absence of use of the
word ‘declaration’ in an Act explaining what
was the law before may not appear to be a
declaratory Act but if the court finds an Act as
declaratory or explanatory, it has to be
construed as retrospective.”
34. In Zile Singh
26 the amendment which came up for
interpretation was an exception to a disqualification,
brought in, on 05.04.1994. The amendment was made to the
Municipality Act bringing in a disqualification for being
elected or continued as a member of the Municipality. The
disqualification was to visit persons having more than two
children, which also provided an exemption to those who
had more than two living children: ‘on or after the expiry of
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one year of the commencement of the Act’. The exemption
brought in anomalous consequences verging on absurdity
since a person who has a third child after the
commencement of the amendment would be disqualified,
but the disqualification ceases to operate after the expiry of
a year. That was not the intention and noticing the anomaly a
substitution was made in October changing the word ‘after’
to ‘upto’. Zile Singh
26 who had the fourth child in August,
2004, when disqualified, argued that there can be no
retrospective amendment given to the Act. This Court found
that the substitution was intended to remove an anomaly and
by necessary implication, it had retrospective effect from
the date the disqualification was first brought into the
statute.
35. The legislative measure of substitution having been
employed in the amendment of Section 3(g) we are of the
opinion that it was clarificatory in nature and applies to the
Act from its inception. Anis Fatma Begum
7, did not have the
benefit of perusing the amendment of 2013 since it was
rendered in the year 2010 much before the amendment.
However, the fact that the subject property had been
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enrolled under the appropriate laws and registered as a
wakf estate, ought to have persuaded the Division Bench to
find jurisdiction on the Tribunal under the Waqf Act to
decide upon the demarcation of that waqf property,
excluding 75% from the ambit of a waqf, to be squarely with
the Tribunal as per the power conferred under the statute.
36. Hence, this Court in Anis Fatma Begum
7 even without
looking at Section 83 could have found jurisdiction on the
Tribunal for the subject matter dealt with and if it was
otherwise, ought to have noticed the declaration of law with
respect to Section 83 in Ramesh Gobindram
6 and referred it
for consideration before a Larger Bench. On the same
principle, we would have been persuaded to refer the
matter, but for the fact that we have the benefit of the
Amendment of 2013 which substituted the definition of ‘list
of Waqfs’ with the new definition of ‘list of Auqaf’,
additionally including those registered under the Act of
1995, which we find to be clarificatory based on Zile
Singh
26.
37. More importantly, we cannot find Section 83 to be a
provision conferring jurisdiction on the Tribunal with
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respect to matters in addition to which already jurisdiction
has been conferred under the other provisions of the Act, as
already noticed in Ramesh Gobindram
6. Section 83 has a
nominal heading of ‘Constitution of the Tribunal etc’. and it
enables the State Government by notification in the official
gazette to constitute as many Tribunals as it may think fit for
the determination of disputes, questions or other matters
relating to a waqf or waqf property under this Act. The last
three words have not been omitted in the amendment, as we
found in paragraph 10, which we will deal with more
elaborately when considering the ambit and scope of
Section 83.
38. In Sham Singh Harike
15 a Coordinate Bench re-
affirming the principle in Ramesh Gobindram
6, while
noticing the divergent opinion in Pritpal Singh
9 and P.V.
Ibrahim Haji
8, clearly found that though the two Judge
Bench decision in Ramesh Gobindram
6 was distinguished
in Anis Fatma Begam
7, in fact, a substantially different note
was struck in the later decision on an interpretation of
Section 83 quite contrary to the interpretation given in
Ramesh Gobindram
6. Reference was made to two decisions
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of this Court again by Coordinate Benches which followed
Ramesh Gobindram
6; Mahesh Kumar
13 and Bhanwar Lal
14.
39. The gamut of decisions referred to above, or most of
them were considered in Rashid Wali Beg
5 which held,
again, that the amendment made by Act 27 of 2013 removed
the basis of the decision in Ramesh Gobindram
6; which,
with all the respect at our command, we are unable to
subscribe to. Rashid Wali Beg
5 was a case in which the
defendant in a suit, challenged the judgment of the High
Court, which held that a permanent injunction prayer before
a Civil Court is not barred by Section 85 of the Act of 1995.
The plaintiff filed the suit on the contention that the
predecessor-in-interest of the property had created a Waqf-
al-al-aulad and the Mutawalli was appointed by way of
succession from the descendants, which position came to be
occupied by him; in usurpation of his father’s right, as
entrusted to him by the grandmother due to the wayward
life of the father. The defendants at the instigation of the
father of the plaintiff was alleged to have encroached into
the property and attempted constructions thereon. The
defendant who was the appellant before the Supreme Court,
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filed a written statement admitting the existence of the waqf.
Later, the defendant took out an application under Order VII
Rule 11 for rejection of the plaint on the sole ground of the
Civil Court having no jurisdiction. The Civil Court accepted
the prayer and rejected the suit, and the First Appellate
Court dismissed the appeal. The High Court reversed the
finding of the Courts below on the short ground that the
nature of the property was not a question involved in the
case and hence, the simpliciter injunction sought for would
be maintainable before the Civil Court. This Court tabulated
the various provisions and the reliefs which could be sought
for before a Tribunal and culled out the aspects on which
proceedings could be initiated before the Tribunal
constituted under the Wakf Act of 1995 in paragraphs 54
which we extract hereunder: -
“54. In sum and substance, the Act makes a reference,
to 3 types of remedies, namely, that of a suit,
application or appeal before the Tribunal, in respect
of the following matters:
54.1. Any question or dispute whether a
property specified as waqf property in the
list of waqfs is a waqf property or not
[Sections 6(1) & 7(1)].
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54.2. A question or dispute whether a waqf
specified in the list of waqfs is a Shia Waqf or
Sunni Waqf [Sections 6(1) & 7(1)].
54.3. Challenge to the settlement of a
scheme for management of the waqf or any
direction issued in relation to such
management [Section 32(3)].
54.4. Challenge to an order for
restitution/restoration of the property of the
waqf or an order for payment to the waqf of
any amount misappropriated or fraudulently
retained by the mutawalli [Section 33(4)].
54.5. Conditional attachment of the property
of a mutawalli or any other person [Section
35(1)].
54.6. Challenge to the removal or dismissal
of an Executive Officer or member of the staff
[Section 38(7)].
54.7. Application by the Board, seeking an
order for recovery of possession of a
property earlier used for religious purpose
but later ceased to be used as such [Section
39(3)].
54.8. Challenge to a direction issued by the
Board to any Trust or Society to get it
registered [Section 40(4)].
54.9. Challenge to an order for recovery of
money from the mutawalli, as certified by the
Auditor [Section 48(2)].
54.10. Challenge to an order for delivery of
possession of a property issued by the
Collector [Section 52(4)].
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54.11. Application by the Chief Executive
Officer for the removal of encroachment and
for delivery of possession of a waqf property
[Section 54(3)].
54.12. Challenge to the removal of mutawalli
from office [Section 64(4)].
54.13. Challenge to an order superseding
the Committee of Management [Section
67(4)].
54.14. Challenge to the removal of a member
of the Committee of Management [Section
67(6)].
54.15. Challenge to any scheme framed by
the Board for the administration of waqf,
containing a provision for the removal of the
mutawalli and the appointment of the person
next in hereditary succession [Section 69(3)].
54.16. Challenge to an order for recovery of
contribution payable by the waqf to the
Board, from out of the monies lying in a bank
[Section 73(3)].
54.17. Any dispute, question or other matter
relating to a waqf [Section 83(1)].
54.18. Any dispute, question or other matter
relating to a waqf property [Section 83(1)].
54.19. Eviction of a tenant or determination
of the rights and obligations of lessor and
lessee of waqf property [Section 83(1) after
its amendment under Act 27 of 2013].
54.20. Whenever a mutawalli fails to perform
an act or duty which he is liable to perform
[Section 94].”
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40. We have absolutely no doubt with respect to
paragraphs 54.1 to 54.16 and 54.20; which we respectfully
concur with. The expansion of the jurisdiction based on
Section 83 as has been laid down in paragraphs 54.17 to
54.19, according to us is contrary to the principles culled out
in Ramesh Gobindram
6 and quite divergent from the
interpretation of Section 83 coming out in Ramesh
Gobindram
6.
41. This Court, no doubt, in Rashid Wali Beg
5 looked at
the various decisions which followed Ramesh Gobindram
6
and took a contrary view, holding that the very basis of the
decision was removed by Act 27 of 2013. It was held that
Section 83(1) even as it stood before the amendment
provided for determination by the Tribunal, any dispute,
question or other matter, (i) relating to waqf and (ii) relating
to a waqf property. Thus, holding that Section 83 has two
limbs conferring jurisdiction on the Tribunal to decide
questions arising with respect to (i) the waqf and (ii) the
waqf property. To get over the divergence of opinion the
decision in Kiran Devi
22 was relied on, a three-Judge Bench
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decision to find that definitely if the Waqf Tribunal did not
have jurisdiction to decide the question, the Court would not
have held so in Kiran Devi
22.
42. We are unable to agree. In Kiran Devi
22 the plaintiff
had approached the Civil Court against the possession of a
tenanted premises by one of the defendants, on such
demise being made by the Waqf Board itself, of an admitted
waqf property. Therein the dispute was between the
tenants, one of whom was supported by the Waqf Board. The
defendant tenant and the Waqf Board, sailing together,
requested for a transfer of the proceedings to the Tribunal
and later, before this Court a contention was raised that the
Tribunal did not have jurisdiction. True, the three-Judge
Bench despite referring to Ramesh Gobindram
6 found that
the defendants having requested for a transfer to the
Tribunal, could not later challenge the jurisdiction
especially when the matter had attained finality before the
Tribunal and there was no such contention raised, even
before the High Court. The High Court reversed the order of
the Trial Court only on the ground that the surrender of
tenancy was not proper. The above measure employed by a
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three-Judge Bench cannot be said to have overruled
Ramesh Gobindram
6. As was explicitly stated by the three
Judge bench, the decision turned on the principle that a
party to a litigation cannot approbate and reprobate and this
was a measure adopted to avoid multiplicity of litigation.
43. Quite similar is the context in Mumtaz Yarud Dowla
Wakf
12
wherein Rashid Wali Beg
5 was reaffirmed by another
two-Judge Bench. Therein also the proceedings for eviction
were commenced long prior to the amendment of 2013,
before the Tribunal which was never attempted to be
challenged on the ground of lack of absence of jurisdiction.
The defendants, despite a decree passed on 13.11.2002,
continued to occupy the property in which circumstance the
waqf filed an execution petition in 2014. Still later, after four
years, a plea was raised on jurisdiction relying on Faseela
M
18 and Ramesh Gobindram
6 which was rightly rejected by
this Court. In fact, in Mumtaz Yarud Dowla Wakf
12
, the
contention could have been rejected based on the dictum in
Kiran Devi
22 and not necessarily raising a doubt on Ramesh
Gobindram
6. In fact, if the suit for eviction though instituted
without jurisdiction before the Tribunal, at the point of time
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this Court ruled on it, the jurisdiction for removal of
encroachment was squarely on the Tribunal, by virtue of the
Amendment Act 27 of 2013. No purpose would have been
served by a remand, and the litigation would have merely
prolonged.
44. Ramesh Gobindram
6 as we noticed, was the first in
the line of the decisions cited hereinabove wherein the
question arose as to whether an eviction of a tenant can be
sought for before the Tribunal constituted under Act of 1995.
As we have earlier noticed with extracts from the decision,
Ramesh Gobindram
6 considered exhaustively as to what is
the jurisdiction conferred on the Tribunal constituted under
the Act of 1995. It found that the decision on the question
raised as to whether a property is a waqf property or not
would be under Section 6(1) and 7(1) of the Act, confined to
properties specified in the list; which list includes the list
under Section 5(2) and those in the register maintained
under Section 37. Section 6 (5) though provided for an
ouster of jurisdiction insofar as the matters referred to in
sub-section (1); it was found to be confined to such
questions since there were other issues that could be raised
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before the Tribunal constituted under the Act, a few of which
were illustrated in paragraphs 26 and 27, which we have
extracted hereinabove. A more elaborate reference to the
various powers is found in Rashid Wali Beg
5 as available in
paragraphs 54.1 to 54.16 and 54.20. Section 85 was found to
have brought a wider ouster of jurisdiction of Civil Court,
due to the conferment of jurisdiction on the Tribunal by the
other provisions noticed hereinabove. It was categorically
held in paragraph 32 of Ramesh Gobindram
6 that Section
83 does not push the exclusion of the jurisdiction of the Civil
Court beyond what has been provided in Section 6, Section
7 and Section 85 of the Act; holding thereby unequivocally
that Section 83 does not by itself confer any jurisdiction on
the Tribunal and even according to us, it merely enables the
constitution of the Tribunal by the State.
45. Rashid Wali Beg
5 not only found that Section 83
conferred an expansive power on the Tribunal to decide
every question/dispute arising with respect to a waqf or
waqf property; but also held that such jurisdiction was
available even before the amendment and especially so
after the amendment. In the teeth of the above finding, we
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have to notice Section 83(1) before the amendment and after
the amendment:
Before the amendment of 2013
“Section 83(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 or wakf property under this Act and define the
local limits and jurisdiction under this Act of each of
such Tribunals.”
After the amendment of 2013
“Section 83(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, eviction of a tenant or
determination of rights and obligations of the lessor
and the lessee of such property, under this Act and
define the local limits and jurisdiction of such
Tribunals”
[underlining by us to emphasize the incorporation by
amendment]
46. We cannot but notice that the decisions of this Court in
Pritpal Singh
9 and Rashid Wali Beg
5 specifically dealing
with Section 83(1) extracted only the words “for the
determination of any dispute, question or other matter
relating to a wakf or wakf property” and omitted the words
“under this Act”. The wakf or wakf properties should thus be
having a status under the Act which is possible only by
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inclusion in the ‘list of auqaf’ which as of now includes a list
published after a survey under Chapter II or a registration
made under Chapter V. After the amendment, the words
“eviction of a tenant or determination of rights or obligations
of a lessor and the lessee of such property” was brought in
between the words “wakf or wakf properties” and “under the
Act”. This was only an abundant clarification of the powers
conferred on the Tribunal, especially that of eviction of
encroachments, which power according to us was not
conferred under Section 83. It is Section 54 that confers the
Tribunal with the power to dislodge encroachers, brought in
by the Amendment Act of 2013. The amendment also
incorporated a definition clause (ee), for encroachment,
under Section 3, which meant unauthorized occupation of a
waqf property including such occupation after the expiry or
termination of a tenancy, lease or license. The specific
power conferred on the Tribunal thus was under Section
54(3) & (4) and not under Section 83(1).
47. Section 85 remained as such after the amendment of
2013 only bringing in cosmetic changes as we noticed
hereinabove. Section 83 does not confer any jurisdiction on
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the Tribunal, either/or an omnibus consideration of any
dispute, question or other matter related to waqf or of waqf
property, nor with respect to eviction of a tenant or
determination of the rights and obligations of lessor and
lessee of waqf property. It merely enables the constitution of
the Tribunal and the mere recital of what the Tribunal could
do, is not an expansive conferment of power especially
considering the fact that the statute confers such powers
under specific provisions, yet again Section 85 restricts the
ouster of jurisdiction of the Civil Court, Revenue Court or
any other authority to those aspects which are required by
or under that Act to be determined by the Tribunal. There is
hence no absolute and all-pervasive ouster of jurisdiction of
the Civil Court even under Section 85 of the Act of 1995. The
definition of ‘waqf’ under Section 85, 3(r) and the
applicability of the Act of 1995 on all auqaf (Section 2) does
not also determine jurisdiction which, in resolution to
disputes with respect to a property being a waqf or not is
expressly conferred on the Tribunal, only with respect to
those properties specified in the ‘list of Auqaf’. This is the
statutory imprimatur which cannot be deviated from by
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Courts of law, especially when the statute could have
provided merely for all disputes with respect to auqaf to be
determined by the Tribunal; which it did not.
48. We cannot but also notice that the Tribunal, though
conferred with the jurisdiction to remove encroachers, the
power could be invoked only by the Chief Executive Officer
of the Board as per Section 54(3) & (4), either suo motu or on
a complaint. If the power to move directly before the
Tribunal was available under section 83, even prior to the
amendment of 2013, there was no reason to confer
jurisdiction under Section 54 and much less reason to
provide specifically for removal of encroachment.
49. We hence respectfully affirm the principle of
jurisdiction conferred on the Tribunal under the Waqf Act,
1995 and the ouster of jurisdiction of the Civil Court under
Section 85 of the said Act to be, as considered and declared
in Ramesh Gobindram
6. There could be instances where
Ramesh Gobindram
6 can be distinguished insofar as the
eviction of encroachers, which jurisdiction has now been
specifically conferred on the Tribunal by the amendment
Act of 2013. The amendment Act of 2013 removes the
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sub-stratum of the decision in Ramesh Gobindram
6 only to
the extent of the absence found, of the jurisdiction conferred
on the Tribunal to remove encroachers and does not, in any
other manner, interfere with the principle stated of the
jurisdiction of the Tribunal under the Act of 1995 and the
jurisdiction of the Civil Court having been ousted only to the
extent of the specific power conferred on the Tribunal by
and under the Act.
50. Now, looking at the facts of the present case, a bare
reading of the plaint would indicate that neither is the
property specified in the ‘list of auqaf’ as published in
Chapter II nor registered under Chapter V and hence the
decision as to whether the property is a waqf property or
not cannot be decided by the Tribunal since the property is
not one specified in the ‘list of auqaf’, which is the
mandatory requirement under Section 6(1) and Section 7(1)
of the Waqf Act of 1995 to approach the Tribunal. We will
not consider the issue as to whether the property can be
deemed to be a ‘waqf by user’ since the question is still at
large. The injunction simpliciter sought for before the
Tribunal does not fall within its jurisdiction and the plaint
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has to be rejected, which we do, allowing the application of
the defendant under Order VII, Rule 11. The order of the
Tribunal, ascertaining jurisdiction and that of the High
Court, affirming it are set aside.
51. The Appeal is allowed, rejecting the suit filed before
the Tribunal, leaving the question of whether the scheduled
property is a waqf or not open to be agitated in accordance
with law.
52. Pending applications, if any, shall stand disposed of.
………….……………………. J.
(SANJAY KUMAR)
………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
JANUARY 28, 2026.
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