Suit For Permanent Injunction In Respect Of Waqf Property Maintainable Before Wakf Tribunal And Not Civil Court: Supreme Court

The Supreme Court held that a suit for permanent injunction in respect of a waqf property has to be filed before the Wakf Tribunal and not the Civil Court.

"To say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1)", the bench of Justices Hemant Gupta and V. Ramasubramanian observed.

The court also added that the Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 of the Code of Civil Procedure.

In this case, the Allahabad  High Court had held that a suit for a permanent injunction before a civil court is not barred by Section 85 of the Waqf Act, 1995. According to the High Court, since the dispute does not involve either a question as to the nature of the property or the question whether the suit schedule property is a waqf property or not and also since the suit is only for injunction, the Civil Court was not barred from entertaining the suit, under Section 85 of the Act. Therefore, the issue considered by the Apex Court in the appeal filed by the defendant was whether a suit for permanent injunction in respect of a waqf property is maintainable in a civil court or not.

The judgment authored by Justice Ramasubramanian refers to historical background of the Wakf Act and also the conflicting judgments of various benches on this issue. The bench noted that many courts were misled by the reference to two specific questions in Sections 6(1) and 7(1), to come to the conclusion that the bar of jurisdiction was confined only to disputes revolving around those two questions.

The court observed that the Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. The court made the following observations in paragraphs 52-54,

1. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and 54 lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words "any dispute, question or other matter relating to a waqf or waqf property" are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram was sought to be distinguished both in Anis Fatma Begum and Pritpal Singh and such distinction was taken note of in Akkode Jumayath Palli Paripalana Committee. Additionally, this Court in Kiran Devi, refused to apply the ratio of Ramesh Gobindram, on the ground that the suit was originally instituted before the Civil Court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram.
2. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have 55 jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).
3. In fact, Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the CPC, while trying a suit or executing a decree or order. This is why this Court held in Syed Mohideen and Another vs. Ramanathapura Peria Mogallam Jamath and Others that the Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 CPC.

4. Section 83(1) provides for the determination of any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property.

In the case on hand, the court noted that the property is admitted to be a waqf property.

"Therefore, to allow the plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be ignore the mandate of section 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property.", the court observed.

The court also observed that a question as to the nature of the waqf and whether the plaintiff is a beneficiary of the waqf, has also arisen in this case. This question has necessarily to be decided by the Tribunal and not the civil court, the bench said, while allowing the appeal.

Click here to Read/Download Judgment