Being A Religious Place, 'Masjid' Falls Under 'Waqf' Definition, Only Waqf Tribunal Can Adjudicate Disputes Related To It: Rajasthan HC

A bench of Justice Birendra Kumar held thus while referring to Section 85 of the Waqf Act [Bar of jurisdiction of civil courts], which provides that no civil court, revenue court, or any other authority can hear any case or legal matter related to waqf or waqf property and that such issues have to be determined by a Waqf Tribunal established under the 1995 Act.

“It is not disputed that Masjid is a place used for religious purpose for praying Namaz etc., therefore, it comes within the definition of 'Waqf' and once the suit property is Waqf, any dispute in respect of the Waqf property is to be adjudicated by the Waqf Tribunal only and not by any other court including civil court in view of the bar under Section 85 of the Waqf Act,” the bench observed in its order.

The court was essentially dealing with a civil revision petition filed by two petitioners (original defendants) challenging an order of Civil Judge Phalodi, in which their prayer to reject the plaint (filed by original plaintiffs/respondents before the HC) under Order VII Rule 11 CPC was rejected.

The issue between the parties concerned the Madina Zama Masjid, which, it was claimed, was erected with the financial help of the Muslim society of the villagers, and the said villagers repaired and extended the Masjid from time to time.

While the Petitioners (original defendants) claimed that they had the rightful title over the mosque property, the original plaintiffs (respondents in the HC) moved a plaint before the civil court praying that the defendants be restrained by permanent injunction from disturbing the peaceful use of Muslim society as per their religious belief and to do religious rituals like namaz, etc.

The petitioners (original defendants) filed an application in the Civil Court under Order 7 Rule 11 CPC for rejection of the suit, contending that the waqf tribunal would address the dispute.

The petitioners (original defendants) contended that the grievance disclosed in the plaint was maintainable before the Waqf Tribunal and not before any other court in view of the bar of jurisdiction of the civil court contained under Section 85 of the Waqf Act.

The Civil Court, however, rejected the petitioner O7 R11 CPC plea, opining that the suit property was not entered in the Waqf register as Auqaf property; hence, it was not a Waqf Property and unless the property was a Waqf Property, the jurisdiction of the civil court was not barred.

Noting that the claim of the plaintiffs (respondents in HC) concerned permanent dedication of the immovable property for the construction of a Masjid for the purpose recognized by the Muslim Law as religious and included other items disclosed in the definition of Waqf under Section 3 (r) of the 1995 Act, the Court concluded that a Masjid would come under the definition of 'Waqf' and this will bar the jurisdiction of the civil court over any dispute related it.

Thus, allowing the civil revision plea, the bench noted that the plaint was fit to be rejected under Order VII Rule 11 (d) CPC and stressed that the trial court had wrongly exercised the jurisdiction vested in it. 

The court, however, gave liberty to the original plaintiffs to move to the Waqf Tribunal within four weeks. 

It may be noted that traditionally, Waqf refers to properties dedicated exclusively for religious or charitable purposes under Islamic law, and any other use or sale of the property is prohibited.

Waqf means that the ownership of the property is now taken away from the person making Waqf and transferred and detained by Allah. 'Waqif' is a person who creates a waqf for the beneficiary.

As Waqf properties are bestowed upon Allah, in the absence of a physically tangible entity, a 'mutawalli' is appointed by the waqif, or by a competent authority, to manage or administer a Waqf. Once designated as waqf, the ownership is transferred from the person making the waqf (waqif) to Allah, making it irrevocable. Read more about it here.

Last year in August, two bills, the Waqf (Amendment) Bill, 2024, and the Mussalman Wakf (Repeal) Bill, 2024, were introduced in the Lok Sabha to streamline the Waqf Board's work and ensure the efficient management of Waqf properties. The bill was referred to the Joint Committee of Parliament (JCP) for examination last year. 

The significant change that the Bill proposes is moving away with the concept of 'waqf by user' [clause (i) of Section 3(r) of the present 1995 Act]. In other words, the Bill states that only a person practising Islam for at least five years may declare a waqf. It clarifies that the person must own the property being declared a waqf. It removes waqf by the user, where properties could be deemed as waqf based solely on prolonged use for religious purposes.

Now, this proposed change would virtually remove the legal recognition of undocumented properties historically classified as waqf through usage. These may include mosques, graveyards and shrines, often managed informally by locals.

Advocate Roshan Lal appeared for the petitioners, and Advocate Moti Singh appeared for the respondents

Case title - Shakur Shah and another vs. Iliyas and others

Case citation : 2024 LiveLaw (Raj) 74

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