Waqf Tribunal Can't Entertain Pending Property Suits If Instituted Prior To Commencement Of Waqf Act: MP High Court

Madhya Pradesh High Court has recently held that the Waqf Tribunal does not have the jurisdiction to decide cases pending before civil courts regarding the nature of ownership of the disputed property, instituted before the commencement of the Waqf (M.P. Amendment) Act, 1994.

The single judge bench of Justice Sanjay Dwivedi held as below:

“…in view of Subsection (5) of Section 7, the Act will not be applicable to the pending suit or proceeding or appeal or revision which have commenced prior to 01.01.1996 i.e. coming into force of Waqf Act, 1995….”

The Waqf (M.P. Amendment) Act, 1994 (Act No. 1 of 1995) came into force in 1996. Section 7(5) of the said Act states that the Tribunal will not have jurisdiction with regard to pending proceedings prior to the commencement of the Act on subject matters covered by Section 6(1).

However, the court found that the subject matter of the suit was the same as those specified in Section 6(1), i.e., whether the property was Waqf Property or not. The court, therefore, inferred that the Tribunal could not have decided the transferred suit because the Waqf Act, 1995, was not applicable in the said 'pending' proceeding.

The court, in the civil revision, framed the moot point to be answered as the extent of tribunal's jurisdiction given the ambit of Sections 7(5) r/w 85 of Waqf Act, 1995 and the pendency of the said suit before the civil court, which was subsequently transferred to the Tribunal.

“….There is no scintilla of doubt for this Court to say that the subject matter of the suit falls within the purview of Subsection (1) of Section 6 and in a pending proceeding, in which, the said issue was involved, the record could not have been transferred to the Tribunal as the Tribunal had no jurisdiction to determine the issue in the pending suit”, the bench sitting at Jabalpur observed.

The court further clarified that the reliance of the Tribunal on Section 85 of the Waqf Act regarding its own jurisdiction was misplaced. Though it's true that Section 85 imposes a specific bar on the jurisdiction of civil courts in matters pertaining to Waqf property, it's only fully applicable only to those disputes arising after the implication of the Waqf Act, 1995, the court remarked.

“… It is also not in dispute that the Tribunal itself has observed that the basic dispute involved in the suit was whether the suit property related to waqf or not but the Tribunal has not considered the impact of Subsection (5) of Section 7 of Waqf Act, 1995”, the court added.

Background

In the civil revision, the applicants-defendants challenged the order passed by the State Waqf Tribunal, Bhopal, in 2003. In 1993, the respondent Waqf board had instituted a case against the applicants before the Additional District Judge, Bhopal. The reliefs sought included the declaration of a piece of land as Qabristan, which was allegedly Waqf property, and for its possession. The suit filed by the Board also intended to restrain the applicants from carrying out any construction activity on the disputed land and obtaining compensation for illegal occupation.

According to the Board, the disputed property was donated by the erstwhile ruler of Bhopal and earmarked as Muslim burial grounds. The Qabristan was Maufi land taken care of by Fakirs, as mentioned in the old revenue records; it was averred by the respondents in the original suit.

During the pendency of the suit before the Additional District Judge, the Waqf (M.P. Amendment) Act, 1994, came into force. According to Section 6 of the Amendment, Section 55G was inserted into the Waqf Act, 1954. Section 55G stated that proceedings before any court or authority will be transferred to the Waqf Tribunal for adjudication. Consequentlly, the civil suit before the District Court also got transferred to Waqf Tribunal, Bhopal. Before the Tribunal, the defendants argued that the suit wouldn't be maintainable in the light of Sections 6 & 7 of the Waqf Act and Section 82 of the M.P. Cooperative Societies Act, 1960.

The counsel for the applicants placed reliance on Sardar Khan & Ors v. Syed Najmul Hasan (Seth) & Ors. (2007) 10 SCC 727, which held that the provisions of the Waqf Act, 1995, will not be applicable to the pending proceedings or suits that have commenced prior to it coming into force on 1.1.1996.

The Board's counsel argued that the subject matter of the suit would not be covered under the exception given in Section 6(1), and hence, the transfer of proceedings was lawful, and Section 7 of the Act is squarely applicable to the case at hand.

The court concluded that the decision in Sardar Khan & Ors. would be applicable in the current case and allowed the civil revision preferred by the applicants on the point of jurisdiction.

Counsel for the Applicants: Advocates R.K. Sanghi, Siddharth Kumar Sharma, Ashish Giri

Counsel for Respondent No.1: Adv. Utkarsh Agrawal

Case Title: Smt. Rubab Bai & Ors v. Madhya Pradesh Wakf Board & Ors.

Case No: Civil Revision No.840/2003

Citation: 2024 LiveLaw (MP) 136

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