High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

LPA No.210 of 2015, CR Nos.159 of 2003, 26 of 2005,

115 of 2012 & 134 of 2015, RFAs No.343 of 2008, 265 of

2011, CMPMO Nos.213, 284 and 285 of 2012

Reserved on : 27.10.2016

Pronounced on: November 16, 2016.

1. LPA No.210 of 2015

Mumtaz Ahmed ……….Appellant.

Versus

State of H.P. and others …….Respondents.

2. CR No.159 of 2003

Harjinder Singh ……….Petitioner.

Versus

Himachal Wakf Board and others …….Respondents.

3. CR No.26 of 2005

Punjab Wakf Board ……….Petitioner.

Versus

Harjinder Singh and others …….Respondents.

4. CR No.115 of 2012

Nanhe Khan ……….Petitioner.

Versus

H.P. Wakf Board and another …….Respondents.

5. CR No.134 of 2015

H.P. Waqf Board ……….Petitioner.

Versus

Khwaja Khallilula and another …….Respondents.

6. RFA No.343 of 2008

Kamla Mohini ……….Appellant.

Versus

Himachal Pradesh Wakf Board and another …….Respondents.

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7. RFA No.265 of 2011

Maulana Abdul Subhan Khan ……….Appellant.

Versus

Himachal Pradesh Wakf Board …….Respondent.

8. CMPMO No.213 of 2012

His Holiness The Dalai Lama & another ……….Petitioners.

Versus

H.P. Wakf Board …….Respondent.

9. CMPMO No.284 of 2012

Noor Mohammad & another ……….Petitioners.

Versus

H.P. Wakf Board …….Respondent.

10. CMPMO No.285 of 2012

Nayab and others ……….Petitioners.

Versus

H.P. Wakf Board …….Respondent.

Coram

The Hon’ble Mr.Justice Mansoor Ahmad Mir, Chief Justice. The Hon’ble Mr.Justice Sandeep Sharma, Judge.

Whether approved for reporting? Yes.

LPA No. 210 of 2015

For the appellant: Ms. Seem a K. Guleria, Advocate,

vice Ms. Anjana Khan, Advocate.

For the respondents: Mr. Anup Rattan & Mr. Romesh

Verma, Additional Advocate

Generals, and Mr. J.K. Verma,

Deputy Advocate General, for

respondent No. 1.

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Ms. Jyotsna Rewal Dua, Sr.

Advocate with Ms. Charu

Bhatnagar, Advocate, for

respondents No. 2 and 3.

CR No.159 of 2003

For the petitioner: Mr. Bhupender Gupta, Sr. Advocate with

Mr. Himanshu Sharma, Advocate.

For the Respondents: Mr. B.C. Negi, Senior Advocate, with

Mr. Pranay Pratap Singh, Advocate,

for respondent No. 1.

Mr. Ajit Jaswal, Advocate, for

respondents No. 3 and 4.

Nemo for other respondents.

CR No.26 of 2005

For the Petitioner: Ms.Jyotsna Rewal Dua, Sr. Advocate

with Ms. Charu Bhatnagar,

Advocate.

For the respondents: Mr. Bhupender Gupta, Sr. Advocate

with Mr. Himanshu Sharma,

Advocate, for respondent No.1.

Nemo for other respondents

CR No.115 of 2012

For the Petitioner: Mr. Bhup ender Gupta, Sr. Advocate

with Mr. Himanshu Sharma,

Advocate.

For the respondents: Ms. Seema Guleria, Advocate, vice

Ms. Anjana Khan, Advocate.

CR No.134 of 2015

For the Petitioner: Mr. B.C. Negi, Senior Advocate, with

Mr. Pranay Pratap Singh, Advocate.

For the respondents: Mr. Arvind Sharma, Advocate.

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RFA No.343 of 2008

For the appellant: Ms. Seema Guleria, Advocate, vice

Ms. Anjana Khan, Advocate.

For the respondents: Ms. Jyotsna Rewal Dua, Sr. Advocate

with Ms. Charu Bhatnagar, Advocate,

for respondent No.1.

Respondent No. 2 already ex parte.

RFA No.265 of 2011

For the appellant: Ms. Seema Guleria, Advocate, vice

Ms. Anjana Khan, Advocate.

For the respondents: Mr. B.C. Negi, Sr. Advocate with Mr.

Pranay Partap Singh, Advocate.

CMPMO No.213 of 2012

For the petitioner: Ms . Nishi Goel, Advocate.

For the respondent: Mr. B.C. Negi, Sr. Advocate with Mr.

Pranay Partap Singh, Advocate.

CMPMO Nos.284 & 285 of 2012

For the petitioners: Mr. Saty en Vaidya, Sr. Advocate with

Mr.

Vivek Sharma, Advocate.

For the respondents: Mr. B.C. Negi, Sr. Advocate with Mr.

Pranay Partap Singh, Advocate

Mansoor Ahmad Mir, C.J.

Common question – Whet her the instant cases are

maintainable in the present form - is involved in all these cases,

therefore, the same were clubbed and are taken up together.

2. Before the above question is determined, let us have a

brief glance of the facts of the each case as under.

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LPA No.210 of 2015

3. This appeal is direct ed against the judgment, dated

27

th

October, 2015, passed by a learned Single Judge of this Court,

in CWP No.3635 of 2015, titled Mumtaz Ahmad vs. State of H.P. and

others, whereby the writ petition filed by the petitioner (appellant

herein) came to be dismissed, (for short the impugned judgment).

4. The writ petitioner was appointed as Immam of

Boileauganj Mosque, submitted his resignation on 22.7.2003

reserving his right to continue as voluntary Immam and to keep

residential accommodation allotted to him, resignation was

accepted on 31

st

July, 2003.

5. Vide Annexure P-3 (resolution dated 5

th

February,

2007), it was resolved by the writ respondents to discontinue the

voluntary immamt of the writ petitioner and all facilities. The writ

petition filed representations, but of no avail.

6. Thereafter, on 22.6.2007, writ respondents filed a civil

suit before the Wakf Tribunal, Shimla for possession of the

accommodation provided to the wr it petitioner as well as for

occupation and recovery of use and occupation charges against

the petitioner, which was decreed. Writ petitioner filed Regular First

Appeal, being RFA No.484 of 2011, before this Court, which was

dismissed on 25

th

August, 2014.

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7. The writ petitioner file d the writ petition for quashing

Annexure P-3 i.e. resolution and for declaring entire proceedings

initiated on the basis of Annexure P-3 as null and void. The writ

petitioner also prayed that the respondents be directed to allow

the petitioner to continue with honorary Immamt with all facilities

provided to him.

8. The writ petition came to be dismissed vide the

impugned judgment, hence the instant appeal.

CR No.159 of 2003

9. This Civil Revision Pe tition has been filed by the

petitioner under Section 83 of Wakf Act, 1995 against the judgment

and decree passed by Wakf Tribunal, Kangra, Hamirpur, Kullu, Una,

Lahaul and Spiti, and Chamba at Dharamshala in Civil Suit No.2-

D/1/2002/(1994), dated 25.3.2003, whereby the suit of the

plaintiff/respondent herein was decreed.

10. Plaintiff-Punjab Wakf Board, (now Himachal Wakf

Board), filed a suit for possession and for demolition of the structure,

being owner of the suit property the description of which has been

given in the plaint. The Tribunal decreed the suit of the plaintiff

(respondent No.1 herein), sale deed dated 14.2.1984 and 23.1.1984

executed in favour of defendant No.1 (appellant herein) by the

mother of defendant No.2 were declared to be null and void and

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illegal. Accordingly, defendant No.1 was restrained from changing

the nature of the suit land. Hence the instant revision petition.

CR No.26 of 2005

11. This petition has been file d by the plaintiff under Section

83(9) of Wakf Act, 1995 against the judgment and decree passed

by Wakf Tribunal in Civil Suit No.2-D/1/2002/(1994), dated 25.3.2003,

(also subject matter of CR No.159 of 2003 supra), whereby the

plaintiff has challenged the impugned judgment on the sole ground

that the Tribunal has not granted the relief of possession by

demolishing the structure standing on the suit land.

CR No.115 of 2012

12. This Civil Revision Petition under Section 83(a) of Wakf

Act, 1995 is the outcome of the judgment and decree, dated

20.7.2012, passed by the Wakf Tribunal, Shimla in Civil Suit No.6-S/1

of 2008, whereby the suit of the plaintiff/petitioner herein was

dismissed, (for short, the impugned judgment).

13. It was averred by the Plai ntiff in the plaint that he had

been statutory tenant in possession of top floor alongwith attic in

Kutub Mosque Subzi Mandi, Shimla under defendant No.1 i.e. H.P.

Wakf Board, on rent and paying rent to the Wakf Board. Defendant

No.1/H.P. Wakf Board initiated eviction proceedings under Section

54 of the Wakf Act, 1955 against the plaintiff. It was further averred

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that the order dated 28.12.2007 passed by defendant No.1 was

wrong, illegal, void and not biding on the plaintiff. Thus, the suit

filed by the plaintiff (petitioner herein) for permanent injunction.

14. The Tribunal, vide the impugned judgment, dismissed

the suit of the plaintiff and held that the plaintiff was rank trespasser

and liable to be evicted.

CR No.134 of 2015

15. This Civil Revision Petiti on under Section 83(9) of Wakf

Act, 1995 is directed against the judgment and decree passed by

Wakf Tribunal, Shimla in Civil Suit No.19-S/1 of 2008, dated 19.3.2015,

whereby the suit of the plaintiff-H.P. Wakf Board has been dismissed,

(for short the impugned judgment).

16. The plaintiff-H.P. Wakf Bo ard filed a suit for declaration

to the effect that plaintiff-Board was owner of shops in Middle

Bazar Shimla, the description of which has been given in the plaint

itself, and also prayed that the revenue entries showing

defendants/respondents herein to be in possession of the suit

property be declared as null, void, illegal and inoperative.

17. The Tribunal, vide the impugned judgment, dismissed

the suit of the plaintiff, hence the present petition.

RFA No.343 of 2008

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18. The instant Regular First Appeal has been preferred

under Section 96 of the Code of Civil Procedure (for shot, CPC) by

defendant No.1 against the judgment and decree, dated 30

th

August, 2008, passed by Wakf Tribunal, Kangra at Dharamshala,

whereby suit of the plaintiff-Wakf Board was decreed, (for short, the

impugned judgment).

19. Plaintiff-Board filed a suit for permanent injunction

against the defendants, being the owner of the suit property as the

same was the property of the mosque. It was averred that the

entries reflecting defendant No.1 as owner in possession of the suit

land were wrong and illegal.

20. The suit was decreed by the Tribunal, vide the

impugned judgment, and the defendants were restrained from

raising construction over the suit land or changing nature thereof,

hence the present appeal.

RFA No.265 of 2011

21. This appeal under Section 96 of the CPC arises out of

the judgment and decree, dated 31

st

May, 2011, passed by the

Wakf Tribunal, Shimla, whereby the suit of the plaintiff-Wakf Board,

for possession and recovery, was decreed, the defendant was

ordered to be dispossessed from the suit property and the plaintiff-

Board was also held entitled for Rs.1,09,400/- as use and occupation

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charges, (for short, the impugned judgment). Feeling aggrieved,

the defendant has filed the instant appeal.

CMPMO No.213 of 2012

22. This petition has been fi led under Article 227 of the

Constitution of India read with Section 83(9) of the Wakf Act, 1995,

against judgment and decree da ted 31.12.2011, passed by the

Wakf Tribunal, Kangra at Dharamshala, vide which the suit of the

plaintiff/respondent herein was partly decreed inasmuch as the

decree for possession was granted, while relief of mandatory

injunction by way of demolition was declined.

CMPMO No.284 of 2012

23. This petition has been filed under Section 83(9) of the

Wakf Act, 1995, read with Article 227 of the Constitution of India,

against the judgment and decree, dated 4.6.2012, passed by Wakf

Tribunal, Shimla, whereby petition under Section 7 read with 83(2) of

the Wakf Act, 1995, was dismissed, hence, the present petition by

the petitioners.

CMPMO No.285 of 2012

24. The present petition has been filed under Section 83(9) of the

Wakf Act, 1995, read with Article 227 of the Constitution of India,

against the order 4.6.2012, passed by Wakf Tribunal, Shimla,

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whereby petition under Section 7 read with 83(2) of the Wakf Act,

1995, was dismissed, (for short, the impugned judgment).

25. Thus, the question to be determined in the present

cases is – Whether Regular First Appeal or Civil Revision or petition

under Article 227 of the Constitution of India would lie against the

order passed by the Wakf Tribunal.

To answer the question framed hereinabove, relevant

provisions of the Wakf Act, 1995, (for shot, the Act), are to be

noticed.

26. In order to settle the disputes qua the Wakf properties,

the Act provides for establishment of Wakf Tribunals which have to

determine the disputes, as detailed in Sections 6 of the Act. It is apt

to reproduce Section 6 of the Act hereunder:

“6. Disputes regarding wakfs :- (1) If any question arises whether a

particular property specified as wakf property in the list of wakfs is

wakf property or not or whether a wakf specified in such list is a

Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or

any person interested therein may institute a suit in a Tribunal for

the decision of the question and the decision of the Tribunal in

respect of such matter shall be final :Provided that no such suit shall

be entertained by the Tribunal after the expiry of one year from the

date of the publication of the list of wakfs.

(2) Notwithstanding anything contained in sub-section (1), no

proceeding under this Act in respect of any wakf shall be stayed by

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reason only of the pendency of any such suit or of any appeal or

other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to any suit

under sub- section (1) and no suit, prosecution or other legal

proceeding shall lie against him in respect of anything which is in

good faith done or intended to be done in pursuance of this Act or

any rules made thereunder.

(4) The list of wakfs shall, unless it is modified in pursuance of a

decision or the Tribunal under sub-section (1), be final and

conclusive.

(5) On and from the commencement of this Act in a State, no suit

or other legal proceeding shall be instituted or commenced in a

court in that State in relation to any question referred to in sub-

section (1).”

27. Section 7 of the Act, reproduced below, deals with

the powers of the Wakf Tribunal:

“7. Power of Tribunal to determine disputes regarding wakfs :- (1) If,

after the commencement of this Act, any question arises, whether

a particular property specified as wakf property in a list of wakfs is

wakf property or not, or whether a wakf specified in such list is a

Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf,

or any person interested therein, may apply to the Tribunal having

jurisdiction in relation to such property, for the decision of the

question and the decision of the Tribunal thereon shall be final;

Provided that -(a) in the case of the list of wakfs relating to any part

of the State and published after the commencement of this Act no

such application shall be entertained after the expiry of one year

from the date of publication of the list of wakfs; and

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(b) in the case of the list of wakfs relating to any part of the State

and published at any time within a period of one year immediately

preceding the commencement of th is Act, such an application

may be entertained by Tribunal within the period of one year from

such commencement :Provided further that where any such

question has been heard and finally decided by a civil court in a

suit instituted before such commencement, the Tribunal shall not re-

open such question.

(2) Except where the Tribunal has no jurisdiction by reason of the

provisions of sub-section (5), no proceeding under this section in

respect of any wakf shall be stayed by any court, tribunal or other

authority by reason only of the pendency of any suit, application or

appeal or other proceeding ar ising out of any such suit,

application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to any

application under sub-section (1).

(4) The list of wakfs and where any such list is modified in pursuance

of a decision of the Tribunal under sub-section (1), the list as so

modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matter

which is the subject-matter of any suit or proceeding instituted or

commenced in a civil court under sub-section (1) of section 6 ,

before the commencement of this Act or which is the subject-

matter of any appeal from the decree passed before such

commencement in any such suit or proceeding or of any

application for revision or review arising out of such suit,

proceeding or appeal, as the case may be.”

28. Thus, Sections 6 and 7 of the Act provides for

determination of certain disputes regarding wakf properties

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only by the Wakf Tribunal. But the question arises that after

determining the dispute by the Tribunal, what remedy is

available to the aggrieved party.

29. Before the establishment of the Wakf Tribunal,

District Judge was hearing the cases and determining the

disputes under the Act. After amendment in the Act, under

Section 83 of the Act, Tribunals are constituted having three

members i.e. District Judge as Chairman, one person from the

State Civil Services of the rank of Additional District Magistrate

and one person having knowledge of Muslim Law and

jurisprudence, as members. It is apt to reproduce Section 83 of

the Act hereunder

“83. Constitution of Tribunals, etc :- (1) The State Government

shall, by notification in the Official Gazette, constitute as

many Tribunals as it may think fit, for the determination of any

dispute, question or other matter relating to a wakf or wakf

property under this Act and define the local limits and

jurisdiction under this Act of each of such Tribunals.

(2) Any rnutawalli person interested in a wakf or any other

person aggrieved by an order made under this Act, or rules

made thereunder, may make an application within the time

specified in this Act or where no such time has been

specified, within such time as may be prescribed, to the

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Tribunal for the determination of any dispute, question or

other matter relating to the wakf.

(3) Where any application made under sub-section (1) relates

to any wakf property which falls within the territorial limits of

the jurisdiction of two or more Tribunals, such application may

be made to the Tribunal within the local limits of whose

jurisdiction the rnutawalli or any one of the mutawallis of the

wakf actually and voluntarily resides, carries on business or

personally works for gain, and, where any such application is

made to the Tribunal aforesaid, the other Tribunal or Tribunals

having jurisdiction shall not entertain any applica- tion for the

determination of such dispute, question or other matter

:Provided that the State Government may, if it is of opinion

that it is expedient in the interest of the wakf or any other

person interested in the wakf or the wakf property to transfer

such application to any other Tribunal having jurisdiction for

the determination of the dispute, question or other matter

relating to such wakf or wa kf property, transfer such

application to any other Tribunal having jurisdiction, and, on

such transfer, the Tribunal to which the application is so

transferred shall deal with the application from the stage

which was reached before the Tribunal from which the

application has been so transferred, except where the

Tribunal is of opinion that it is necessary in the interests of

justice to deal with the application afresh.

(4) Every Tribunal shall consist of –

(a) one person, who shall be a member of the State

Judicial Service holding a rank, not below that of a

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District, Sessions or Civil Judge, Class I, who shall be the

Chairman;

(b) one person, who shall be an officer from the State

Civil Services equivalent in rank to that of the Additional

District Magistrate, Member;

(c) one person having knowledge of Muslim law and

jurisprudence, Member,

and the appointment of every such person may be

made either by name or by designation.”

(5) The Tribunal shall be deemed to be a civil court and shall have

the same powers as may be exercised by a civil court under Code

of Civil Procedure, 1908 , while trying a suit, or executing a decree

or order.

(6) Notwithstanding anything contained in Code of Civil Procedure,

1908 , the Tribunal shall follow such procedure as may be

prescribed.

(7) The decision of the Tribunal shall be final and binding upon the

parties to the application and it shall have the force of a decree

made by a civil court.

(8) The execution of any decision of the Tribunal shall be made by

the civil court to which such decision is sent for execution in

accordance with the provisions of Code of Civil Procedure, 1908 .

(9) No appeal shall lie against any decision or order whether interim

or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the

application of the Board or any person aggrieved, call for and

examine the records relating to any dispute, question or other

matter which has been determined by the Tribunal for the purpose

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of satisfying itself as to the correctness, legality or propriety of such

determination and may confirm, reverse or modify such

determination or pass such other order as it may think fit.”

30. Sub Section 9 of Section 83 of the Act provides that

no appeal shall lie against any decision or order whether

interim or otherwise, passed by the Tribunal established under

the Act. Still, it is astonishing that Writ Petitions and Regular First

Appeals are being preferred by the aggrieved parties before

this Court challenging the decisions rendered by the Tribunals

constituted under the Act. It is also not understandable how

such appeals or writ petitions are being entertained once

there is specific bar in terms of Section 83(9) of the Act that no

appeal will lie against the order of the Tribunal. We were told

that it is a practice in this Court and the decisions have been

made and such decisions have attained finality.

31. We may make it clear that we are not giving

findings viz. a viz. those judgments which have attained finality.

It is also made clear that this judgment is prospective in nature

and will not, in any way, have retrospective effect.

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32. In terms of proviso to Sub Section (9) of Section 83

of the Act, any person aggrieved by the orders of the Tribunals

can invoke the revisional jurisdiction of the High Court. Thus,

remedy is provided to the aggrieved person by way of filing

revision petition and not by the medium of appeal.

The Act contains the mechanism for filing revision

petition, thus, providing efficacious alternative remedy to the

aggrieved party, rendering the writ petition not maintainable

against the orders passed by the Tribunal. This view has been

taken by this Court in case titled as M/s Indian Technomac

Company Ltd. versus State of H.P. & others, being CWP No.4779

of 2014, decided on 4

th

August, 2014, and restated in plethora

of judgments.

In a similar case, the High Court of Andhra Pradesh

in case titled as Mohd. Abdul Kareem And Anr. vs. Andhra

Pradesh State Wakf Board, 2004(2) ALD 345, held that the

jurisdiction of the High Court in disputes pertaining to Wakfs

can be invoked by way of filing revision petition and not by

the medium of a writ petition. It is apt to reproduce

paragraph 13 of the said decision hereunder:

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“13. As seen from the above, the jurisdiction of the High Court

in disputes relating to Wakfs can be invoked only when an

aggrieved party files a revision petition under Sub-section (9)

of Section 83 of the Act and a writ. petition would not be

maintainable. In view of the binding precedents, this Court is

not inclined to go into the merits of the contentions on other

two questions raised by the learned Counsel for respective

parties. These are left open to be decided at an appropriate

stage in appropriate proceedings.”

33. In view of the above discussion, the question supra

is answered accordingly.

34. Next question, which arises for determination is

whether a suit for eviction and recovery of use and

occupation charges against a person, who, admittedly, is a

tenant, will lie before the Wakf Tribunal or before the Civil

Court.

35. This point was neither raised before us by any of the

parties nor arguments were addressed. However, we may

observe that Sections 6 and 7 of the Act, reproduced above,

nowhere encompasses the disputes relating to eviction of a

tenant occupying the wakf property. Therefore, such disputes

are triable by the civil court and not by the Tribunal

established under the Act.

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36. Our this view is fortified by the judgment rendered

by the Apex Court in Faseela M. vs. Munnerul Islam Madrasa

Committee and another, 2014 AIR SCW 2503, wherein it was

held by their Lordships that suit for eviction from wakf property

is triable by a civil court and not by the Wakf Tribunal since the

Act does not provide determination of dispute of eviction by

the Tribunal. It is apt to reproduce paragraphs 12 to 17 of the

said judgment hereunder:

“12. The Court in para 35, page 738 held as follows:

“35. In the cases at hand the Act does not provide for any

proceedings before the Tribunal for determination of a

dispute concerning the eviction of a tenant in occupation

of a wakf property or the rights and obligations of the lessor

and the lessees of such property. A suit seeking eviction of

the tenants from what is admittedly wakf property could,

therefore, be filed only before the civil court and not before

the Tribunal.”

13. Mr. Renjith Marar, learned Counsel for Respondent No. 1,

submits that in a subsequent decision in Bhanwar Lal and Anr. v.

Rajasthan Board of Muslim Wakf and Ors., 2013 11 SCALE 210, this

Court has taken a different view. According to him, Section 85 of

the Act leaves no manner of doubt that the Waqf Tribunal has

jurisdiction to decide the suit for eviction. It is so because one of the

questions for determination is whether the suit property is waqf

property or not.

14. The Court in Bhanwar Lal & Anr V/S Rajasthan Board Of Muslim

Wakf & Ors, 2013 11 SCALE 210 considered the decision in at quite

some length. Besides Ramesh Gobindram (Dead) Through LRs V/S

Sugra Humayun Mirza Wakf, 2010 8 SCC 726, the Court in Bhanwar

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Lal & Anr V/S Rajasthan Board Of Muslim Wakf & Ors, 2013 11 SCALE

210 also considered two other decisions, one, Board of Wakf, West

Bengal and Anr. v. Anis Fatma Begum and Anr., 2010 14 SCC 588

and two, Sardar Khan and Ors. v. Syed Najmul Hasan (Seth) and

Ors., 2007 10 SCC 727. In Anis Board of Wakf, West Bengal and Anr.

v. Anis Fatma Begum and Anr., 2010 14 SCC 588, this Court had

held that the Waqf Tribunal constituted Under Section 83 of the Act

will have exclusive jurisdiction to deal with the questions relating to

demarcation of the waqf property.

15. Pertinently, the Court in Bhanwar Lal & Anr V/S Rajasthan Board

Of Muslim Wakf & Ors, 2013 11 SCALE 210 held that the suit for

cancellation of sale deed was triable by the civil court.

16. Bhanwar Lal & Anr V/S Rajasthan Board Of Muslim Wakf & Ors,

2013 11 SCALE 210 follows the line of reasoning in Ramesh

Gobindram (Dead) Through LRs V/S Sugra Humayun Mirza Wakf,

2010 8 SCC 726, The decision of this Court in BHANWAR LAL & ANR

V/S RAJASTHAN BOARD OF MUSLIM WAKF & ORS, 2013 11 SCALE 210

is not in any manner inconsistent or contrary to the view taken by

this Court in Ramesh Gobindram (Dead) Through Lrs V/S Sugra

Humayun Mirza Wakf, 2010 8 SCC 726, . We fully concur with the

view of this Court in Ramesh Gobindram : (2010) 8 SCC 726,

particularly with regard to construction put by it upon Sections 83

and 85 of the Act. In Ramesh Gobindram (Dead) Through LRs V/S

Sugra Humayun Mirza Wakf, 2010 8 SCC 726, the Court said:

“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 of other

matter relating to a wakf or wakf property which does not

ipso facto mean that the jurisdiction of the civil courts stands

completely excluded by reasons of such establishment.

33. It is noteworthy that the expression "for the determination

of any dispute, question or other matter relating to a wakf or

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wakf property" appearing in Section 83(1) also appears in

Section 85 of the Act. Section 85 does not, however,

exclude the jurisdiction of the civil courts in respect of any or

every question or disputes only because the same relates to

a wakf or a wakf property. Section 85 in terms provides that

the jurisdiction of the civil court shall stand excluded in

relation to only such matters as are required by or under this

Act to be determined by the Tribunal.”

34. The crucial question that shall have to be answered in

every case where a plea regarding exclusion of the

jurisdiction of the civil court is raised is whether the Tribunal is

under the Act or the Rules required to deal with the matter

sought to be brought before a civil court. If it is not, the

jurisdiction of the civil court is not excluded. But if the Tribunal

is required to decide the matter the jurisdiction of the Civil

Court would stand excluded.”

17. The matter before us is wholly and squarely covered by Ramesh

Gobindram (Dead) Through LRs V/S Sugra Humayun Mirza Wakf,

2010 8 SCC 726, . The suit for eviction against the tenant relating to

a waqf property is exclusive triable by the civil court as such suit is

not covered by the disputes specified in Sections 6 and 7 of the

Act.”

37. Thus, it is held that the suit for eviction against the

tenant in regard to wakf property is triable by the Civil Court.

38. In view of the above findings, let us take the instant

cases one by one and settle whether they are maintainable in

the present form or not.

RFA Nos.343 of 2008 & 265 of 2011

39. These regular first appeals have been filed by the

appellants against the impugned judgments passed by the

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Wakf Tribunal. Since we have held above that no appeal

against the orders of the Wakf Tribunal will lie, therefore, these

appeals merit to be dismissed and the same are dismissed

accordingly. However, the aggrieved party may seek

appropriate remedy, if any, available in terms of the Act. It is

made clear that in case any party resort to appropriate

proceedings, the time spent in pursuing these appeals is to be

excluded while computing the period of limitation.

LPA No.210 of 2015:

40. This appeal has been filed by the appellant/writ

petitioner against the impugned judgment passed by the

learned Single Judge, whereby the writ petition filed by the

petitioner came to be dismissed. It is worthwhile to record

herein that earlier the Wakf Board had filed a civil suit, which

came to be decreed. Feeling aggrieved, the writ petitioner

filed RFA No.484 of 2011, which was dismissed by this court vide

judgment dated 10

th

September, 2014. Thereafter, the writ

petitioner filed the writ petition giving rise to the instant

appeal. In fact, the writ petition was filed for the same relief,

which already stands determined by the Wakf Tribunal and

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upheld by this Court in regular first appeal supra. As we have

held above, though regular first appeal against the order of

the Tribunal was not maintainable, however, since the

judgment rendered by this Court has attained finality,

therefore, we are not going into the said question.

41. Thus, the writ petition on the same cause of action

was not maintainable and therefore, the learned Single Judge

has rightly held that the writ petition was not maintainable. It is

apt to reproduce paragraphs No.13 and 16 of the impugned

judgment hereunder:

“13. Be that as it may, the power of this Court to exercise

extraordinary jurisdiction under Article 226 of the Constitution

is to ensure that rule of law prevails and not to issue directions

or writ to perpetuate illegality or to act in disregard to the

settled decisions, statutory provisions, regulations and policy

decisions etc. and in such situation, this Court can only

sympathize with the plight of such students who for no fault of

their own are being dislodged. Here, it shall be apt to

reproduce the following pa ssage from the judgment

delivered by the Hon’ble Supreme Court in K.S. Bhoir vs. State

of Maharashtra and others, AIR 2002 SC 444 wherein it was

held as under:

“11 ......... In such a situation one can sympathise with the

plight of such students who for no fault of their own were to be

dislodged. However, the compassion and sympathy has no role to

play where a rule of law is required to be enforced.....”

14. …………….. ………………… …………..

15. ……………….. ………………. …………….

16. Even this argument is not available with the petitioner for

the simple reason that the findings in this regard on the

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aforesaid issues have already been returned against him in

RFA No. 484 of 2011 as is evident from the perusal of para 14

of the judgment (quoted supra) and the same have

admittedly attained finality.”

42. Having said so, the instant appeal merits dismissal

and the same is dismissed as such.

CMPMOs No.213, 284 and 285 of 2012

43. These petitions have be en filed by the petitioner(s)

under Section 83(9) of the Act. The Registry has wrongly

treated these petitions as having been filed under Article 227

of the Constitution of India and has wrongly diarized them as

CMPMO, rather they should have been diarized as Civil

Revisions. The Registry is directed to diarize these petitions as

Civil Revisions.

CR Nos.159 of 2003, 26 of 2005, 115 of 2012 and 134 of 2015

44. Keeping in view the discussion made hereinabove,

these revision petitions and the revision petitions, after diarizing

the CMPMOs supra as Civil Revisions, be listed for hearing

before the Division Bench on 01.12.2016.

(Mansoor Ahmad Mir)

Chief Justice.

November 16, 2016. (Sandeep Sharma)

(Tilak) Judge

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