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2002 DIGILAW 177 (CAL)

Kobra Begum v. Amjad Ali Mirza

2002-03-14

Bhaskar Bhattacharya

body2002
Judgment Bhaskar Bhattacharya, J. This revisional application is at the instance of a defendant in a suit for declaration and injunction and is directed against order dated December 11, 2001 passed by the learned Civil Judge, Senior Division, 6th Court, Alipore in Title Suit No. 71 of 2001 thereby overruling the objection of the petitioner that the civil court had no jurisdiction to entertain the suit. 2. The opposite party No.1 filed a suit being Title Suit No. 71 of 2001 in the Court of learned Civil Judge, Senior Division, 6th Court, Alipore thereby claiming the following reliefs:- "a) A declaration that the suit properties are not Wakf properties. b) A declaration that no Wakf was created by virtue of a deed dated 31st July, 1926, between the Secretary of State for India in Council and Nawab A.F.M. Abdur Rahman Khan Bahadur and others. c) A Decree for a declaration that the resolution dated 14th October, 1999, and 15th February, 2000, adopted by the Board of Wakfs, is void and not binding upon the plaintiff and the suit properties. d) A Decree for a declaration that none of the defendants has acquired any interest over any of the suit property. e) Permanent Injunction." 3. After entering appearance in the suit the present petitioner raised objection that in view of the provisions contained in section 85 of the Wakf Act, 1995, the suit was not entertainable by a civil court and the appropriate remedy of the opposite party lay by approaching the tribunal constituted under the said Act. 4. By the order impugned herein, the learned trial Judge has turned down such objection and has held that because of the decision of Ansari, J while disposing of a writ application under Article 226 of the Constitution of India being W.P. No. 6662(W) of 2000 the civil court got jurisdiction to entertain such suit. 5. Being dissatisfied, the petitioner has come up with the instant revisional application. 6. Mr. Sarkar the learned counsel appearing on behalf of the petitioner has seriously disputed the aforesaid findings of the learned trial Judge and has contended that any observation made in a previous writ application between parties cannot confer jurisdiction upon a civil court to entertain a dispute if a statute specifically bars jurisdiction of civil court to entertain such a dispute. According to Mr. According to Mr. Sarkar, section 85 of the Wakf Act clearly excludes jurisdiction of the civil court and as such the learned trial Judge acted illegally and with material irregularity in paying no heed to the objection raised by the petitioner. 7. Mr. Banerjee the learned counsel appearing on behalf of the opposite party on the other hand supported the order impugned and has made twofold submissions before this court. 8. First, Mr. Banerjee contends that the previous decision of Ansari, J while disposing of a writ application by which a liberty was given to his client to file a suit in terms of section 46(A) of the old Wakf Act is binding upon the parties and as such the learned trial Judge rightly passed the order impugned. 9. Secondly, Mr. Banerjee contends that even if it is assumed that the dispute involved in the suit is covered under section 85 of the Wakf Act, 1995 and a Tribunal has also been constituted under the present Act, but the said Tribunal is not functioning and as such so long the Tribunal does not start functioning, the civil court will have jurisdiction to entertain the dispute. According to Mr. Banerjee, otherwise the plaintiff will be left with no remedy. 10. Before I proceed to consider the respective submissions of the learned counsel for the parties it will be profitable to refer to some undisputed facts of the present case. 11. By an order dated November 6, 1990 the Commissioner of Wakf, West Bengal decided to enrol a property being Premises No. B12, Garden Reach Road, Calcutta which is the subject matter of the present suit as Wakf under section 44 read with section 46(A) of the Bengal Wakf Act, 1934. Being dissatisfied, the plaintiff/opposite party No.1 preferred a revisional application under Article 227 of the Constitution of India being C.O. No. 3761 of 1990 which was ultimately disposed of by D.P. Sarkar-II, J on March 10, 1997 thereby setting aside the order passed by the Commissioner of Wakf and sending the matter back to the Board of Wakf for fresh decision on the question raised before Commissioner of Wakf according to law after complying with the formalities required under sections 44 and 46(A) of the Wakf Act, 1934. Pursuant to such direction the Board passed following orders:- "The matter is taken up for hearing when the Hon'ble members heard both the parties. During hearing it transpired that the property concerned along with the lmmambara are being used by the local Muslim for a long time for their religious purpose. The respondents argued that the property is a Trust property but not a Wakf property. But from the documents such as indenture dt.31-07-1926 and also verbal submission of the parties the Hon'ble Board members are convinced that the following properties are Wakf properties and as such the same is to be declared accordingly i.e. as Wakf properties. Schedule of Wakf properties Dist. P.S. Premises No. Kh. No. Plot No. Area 24-Pgns Garden B-12, Garden 3 1,5,6, 5 bighas (south) Reach Reach Road 7&8 11 Cottah In total Now Cal. Calcutta 4 11, 12, 13, 14, 15, 16 & 17." 12. Being dissatisfied with the aforesaid order passed by the Board the petitioner moved a writ application under Article 226 of the Constitution of India before this Court at a point of time when no Tribunal was constituted under the new Act. In view of such fact this court by order dated April 4, 2000 entertained such writ application and passed the following interim order :- "In view of inaction on the part of the State of West Bengal, no Tribunal having been constituted, the petitioner cannot be deprived of his right to challenge the order of the Board. Thus, let there be an order of stay of operation of the order impugned herein until further order. In the meantime, if any Tribunal is constituted by the State of West Bengal the respondents are at liberty to apply for modification of this internal order. Until further order, the petitioner is restrained from transferring, alienating or encumbering the property in any way without the leave of the Court." 13. Ultimately, the said writ application came up for hearing before Ansari, J when His Lordship dismissed the writ application, inter alia, with the following observations:- "By virtue of section 46A, the decision under section 46 would be final unless revoked or modified by a competent court. Thus, petitioner has an efficacious alternative remedy of instituting a civil suit for modification or revocation of the order passed under section 44 of the Act. Thus, petitioner has an efficacious alternative remedy of instituting a civil suit for modification or revocation of the order passed under section 44 of the Act. The petitioner should be relegated to availing of the said remedy. This is for the reason that the order impugned in the instant writ application has been passed, as noticed supra, pursuant to an order of D.P. Sarkar-II, J. whereby directions were issued to consider the matter in accordance with the sections 44 and 46A of the old Act and, therefore, the petitioner can avail of the said remedy provided for under section 46A of the Act. Be it placed on record that this Court has not gone into merits of the main controversy and all questions are left open. The writ application is accordingly dismissed with liberty, however, to the petitioner to avail of the remedy of Civil Suit as provided under section 46A of the Act and if so advised." 14. Pursuant to the liberty given by His Lordship the opposite party No.1 filed a suit being Title Suit No. 239 of 2001 before the learned Civil Judge, Junior Division, 5th Court, Alipore and subsequently filed an application for permission to withdraw the said suit with liberty to file a fresh suit. The learned Munsif by order dated September 14, 2001 rejected such application thereby permitting the opposite party No.1 to withdraw the suit without any liberty to sue afresh. The said order was accepted and thereafter the opposite party No. 1 has filed the instant suit claiming the reliefs mentioned earlier. 15. The first question that falls for determination in this revisional application is whether the liberty granted by Ansari, J while dismissing a writ application filed by the opposite party conferred jurisdiction upon the learned trial Judge to entertain the suit filed by the opposite party. 16. From the prayers made in the suit it is apparent that the suit is clearly barred under section 85 of the Wakf Act, 1995 and the appropriate remedy of the petitioner lies by filing proceedings before the Tribunal constituted under the Act. There is no dispute that by a notification dated June 27, 2000, Sk. Abdul Motalef, a member of West Bengal Higher Judicial Service, has been appointed as Presiding Officer of the said Tribunal. There is no dispute that by a notification dated June 27, 2000, Sk. Abdul Motalef, a member of West Bengal Higher Judicial Service, has been appointed as Presiding Officer of the said Tribunal. The question is whether instead of approaching the Tribunal, the opposite party could file a regular suit for declaration and injunction before a Civil Court. In my view, the observation of Ansari, J while dismissing the writ application filed by the opposite party cannot bestow jurisdiction upon a civil court to entertain the suit which is otherwise barred. Since the said writ application filed by the opposite party was dismissed granting no relief to the opposite party, the petitioner who was a respondent therein had no occasion to dispute the correctness of the aforesaid observation made by Ansari, J by preferring any appeal against such order. Therefore, the decision of Ansari, J cannot bind the petitioner by virtue of the principles analogous to res judicata. Moreover, a question relating to jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of a court. If by an erroneous interpretation of the statute a court holds that it has no jurisdiction, the question would not operate as resjudicata. Similarly, if by an erroneous decision, the court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise, because, if those decisions are considered as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the court in derogation of the rule declared by the legislature. (See Mathum Prosad Sarjoo Jaiswal and Ors. vs. Dosssibai N.B. Jeejeebhoy, reported in AIR 1971 SC 2355 ). 17. Therefore, the observation of Ansari, J holding that the opposite party had appropriate remedy in civil court cannot stand in the way of the present petitioner and the petitioner is free to point out before the civil court that such forum has no jurisdiction to entertain a suit of this nature. If the civil court lacks inherent jurisdiction to entertain a dispute as a consequence of specific bar created by any statute, any order passed by such court shall be void. 18. There is another obstacle in the path of the opposite party. If the civil court lacks inherent jurisdiction to entertain a dispute as a consequence of specific bar created by any statute, any order passed by such court shall be void. 18. There is another obstacle in the path of the opposite party. Even pursuant to the leave granted by Ansari, J, the opposite party filed a suit and subsequently although the liberty to withdraw the suit was refused, the suit was allowed to be dismissed. Therefore, a fresh suit on the selfsame cause of action is not maintainable owing to the dismissal of the earlier suit for default. Thus, I am not at all impressed by the first contention of Mr. Banerjee. 19. As regards the second contention of Mr. Banerjee, in my opinion, the same is equally devoid of any substance. The provisions contained in the Wakf Act, 1995 are clear and unambiguous. After the coming into operation of the said Act, a suit of the present nature is not entertainable by a civil court. Since the suit has been instituted after the coming into operation of the Wakf Act, 1995 I am not going into the question whether the said Act is retrospective in operation or not. But the fact remains that at present such dispute must be raised before the Tribunal constituted under the Act. If for any reason the Tribunal is not functioning properly, the remedy of the opposite party lies by moving appropriate forum enforcing due function of the Tribunal. But such non-functioning cannot confer jurisdiction upon a civil court which is otherwise' barred. 20. I thus find that the learned trial court acted illegally and with material irregularity in holding that it had jurisdiction to entertain the suit by dint of the observation of Ansari, J. I thus set aside the order impugned and hold that the suit filed by the opposite party No.1 is not maintainable before the learned trial Judge. I make it clear that I have not gone into the merit and only because of the bar created under section 85 of the Act, I have set aside the order impugned. The suit is thus dismissed on the aforesaid ground alone. 21. In the facts and circumstances there will be however no order as to costs. I make it clear that I have not gone into the merit and only because of the bar created under section 85 of the Act, I have set aside the order impugned. The suit is thus dismissed on the aforesaid ground alone. 21. In the facts and circumstances there will be however no order as to costs. As prayed for, let xerox certified copy of this order be given to the parties within one week from the date of making of such application. Appeal dismissed.