Waqf Tribunal Has Jurisdiction Even If Subject Property Is Admitted To Be A Waqf Property: Supreme Court

The Supreme Court has held that a Wakf Tribunal has jurisdiction to adjudicate a dispute even if a property is admitted to be a waqf property.

"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 comprising Justices Hemant Gupta and V. Ramasubramanian observed.

This judgment, to an extent, settles the conundrum that followed a 2010 judgment of the Supreme Court and the amendment of the Waqf Act in 2013.

In this case, the issue raised before the Apex Court was whether a suit for permanent injunction in respect of a waqf property is maintainable in a civil court or not?  The High Court, in the impugned judgment, had held that 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.

In its judgment, the Supreme Court has referred to various decisions including Ramesh Gobindram vs. Surgra Humayun Mirza Waqf (2010) 8 SCC 726. In Ramesh Gobindram, the Supreme Court was concerned with a case where the suits for eviction of tenants filed before the Waqf Tribunal were decreed. It was held that the Waqf Act, 1995 does not provide for any proceedings before the tribunal for determination of a dispute concerning the eviction of a tenant in occupation of Waqf property or the rights and obligations of the lessor and lessees of such property. The court held that a suit for eviction of tenants from what is admittedly a waqf property could be filed only before the civil court and not before the tribunal. Some of the later judgments took a view that if a property is admitted to be a waqf property, by both parties, the Waqf Tribunal would not have jurisdiction to adjudicate upon a dispute concerning the said property.

Referring to Ramesh Gobindram and many judgments that followed it, the Court noted that this conclusion led to an incongruity: If a property is admittedly a waqf property, the Tribunal would have no jurisdiction, though it would have jurisdiction to decide whether or not a property is a waqf property at all.

The Court observed that this distinction sought to be drawn on the basis of admission or denial about a property being a waqf property, was also capable of another mischievous result:

"Take for instance a case where a property is disputed to be a waqf property. Then as per the decision in Ramesh Gobindram, the Waqf Tribunal would have jurisdiction to decide the question whether it is a waqf property or not. Suppose the Tribunal reaches the conclusion that the disputed property is a waqf property, would the Tribunal then continue to have jurisdiction to grant relief or would it be denuded of the jurisdiction, merely because the property was found to be a waqf property ? This is a question for which no answer could be found if we adopt the restrictive interpretation."

The court also observed that the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7. It said:

31. A bare reading of Sections 6 and 7 extracted above, shows that the language employed therein appears to have deflected the attention  of many a court without exception. The reason why we say so, is this. A careful look at the scheme of the Act would show that the Act is divided into 9 chapters. Chapter ­II which contains Sections 4 to 8, is primarily concerned with the survey of waqfs4 . Sections 6 and 7 are incidental to the scheme of Chapter ­II alone, which is why they speak only about two questions namely, (i) whether a particular property specified as a waqf property in the list of waqfs is actually a waqf property or not; and (ii) whether a waqf specified in such list is a Shia waqf or Sunni waqf. While Section 4 contemplates a preliminary survey of all waqfs in the State, Section 5(2) speaks about publication of the list of waqfs (separately for Shia and Sunni) in the official gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only to the aforesaid two questions. In other words, the questions relevant for the purposes of Sections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7.

32. Sections 83 and 85, as well as Sections 86, 90 and 93, which use the word "court", are to be found in Chapter VIII of the Act. The heading given to Chapter VIII is "Judicial Proceedings". Therefore, for finding an answer to the question relating to the bar of jurisdiction under Section 85, it is not enough merely to refer to Section 6(5) or Section 7(2). The language of Section 85 is clearly in contrast to the language employed in Section 6(5) and Section 7(2).

33. A conjoint reading of Sections 6, 7 and 85 would show that the bar of jurisdiction of civil court contained in Section 6(5) and Section 7(2) is confined to Chapter ­II, but the bar of jurisdiction under Section 85 is all pervasive.

Effect of 2013 Amendment

The 2013 Amendment of Waqf Act inter alia amended three provisions relevant to the controversy. 

Section 83 was amended to insert sub-section (l): "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;"

In Section 85, for the words "civil court", the words "civil court, revenue court and any other authority" was substituted.

In section 6 (1), for the words "any person interested therein", the words "any person aggrieved" was substituted.

The court observed that the basis of Ramesh Gobindram now stands removed through this amendment.

In fact, when Ramesh Gobindram was decided, Sections 6(1) and 7(1) enabled only three categories of persons to approach the Waqf Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any person interested therein. However, the explanation under Section 6(1) clarified that the expression "any person interested therein" shall include every person, who, though not interested in the waqf, is interested in the property. But by Act 27 of 2013 the words, "any person interested" were substituted by the words, "any person aggrieved", meaning thereby that even a non Muslim is entitled to 40 invoke the jurisdiction of the Tribunal. Due to the substitution of the words "any person aggrieved", Act 27 of 2013 has deleted the Explanation under 6(1). This amendment has also addressed the concern expressed in Ramesh Gobindram (in para 21 of the SCC report) whether a non Muslim could be put to jeopardy by the bar of jurisdiction, merely because the property is included in the list of waqfs. We must point out at this stage that the Explanation under sub­ section (1) of Section 6, as it stood at the time when Ramesh Gobindram was decided, already took care of this contingency, but was omitted to be brought to the notice of this court

Matters To Be Adjudicated By Waqf Tribunals

The court therefore concluded that 3 types of remedies, namely that of a suit, application or appeal can be filed before the Tribunal, in respect of the following matters:

(i) 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)];

(ii) 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)];

(iii) Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)];

(iv) 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)];

(v) Conditional attachment of the property of a mutawalli or any other person [Section 35(1)];

(vi) Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)];

(vii) 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)];

(viii) Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)];

(ix) Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)];

(x) Challenge to an order for delivery of possession of property issued by the Collector [Section 52(4)];

(xi) Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property (Section 54(3)];

(xii) Challenge to the removal of mutawalli from office [Section 64(4)];

(xiii) Challenge to an order superseding the Committee of Management [Section67(4)];

(xiv) Challenge to the removal of a member of the Committee of Management [Section 67(6)];

(xv) 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)];

(xvi) 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)];

(xvii) any dispute, question or other matter relating to a waqf {section 83(1)}

(xviii) any dispute, question or other matter relating to a waqf property {section 83(1)}

(xix) 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 }

(xx) Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].

No Bar Of Jurisdiction Of Civil Court In A Few Matters

The court added that the combined reading of Sections 68(6), 86, 90 and 93 goes to show that the bar of jurisdiction under Section 85 does not apply at least to the following matters, covered by Sections 68(6), 86 and 90 :

(i) Whenever a District Magistrate passes an order directing the removed mutawalli or removed members of a Committee of Management to deliver possession of the records, accounts and properties of the waqf, to the successor or successor Committee of Management, any person claiming that he has right, title and interest in the properties specified in the order so passed by the Magistrate can approach a civil court;

(ii) The Board itself may approach a civil court either to set aside the sale in execution of a decree of civil court, of an immovable property which is a waqf property, or to set aside the transfer of any immovable property made by the mutawalli without the sanction of the Board or to recover possession of the property so sold or transferred, as the case may be;

(iii) The mutawalli is also empowered to approach the civil court to recover possession of any immovable property which is a waqf property, but which had been transferred by the previous mutawalli without the sanction of the Board (this is implicit in Section 86);

(iv) A waqf property can be brought to sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, but such a proceeding will be void if no notice thereof is given to the Board [this is implicit in Sections 90(2) & (3)].

"Thus the Act itself has created some confusion, leaving the rest to the courts to compound the conundrum. Sadly, the Amendment Act 27 of 2013 also did not address the problem fully.", the bench remarked.

Click here to Read/Download Judgment