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2006 DIGILAW 1254 (RAJ)

Rajasthan Board of Muslim Wakf v. Om Prakash Boob

2006-04-20

BHAGABATI PRASAD BANERJEE

body2006
Judgment Bhagwati Prasad, J.-Heard 2. The present revision petition is filed by the petitioner against the order of Additional Civil Judge (Senior Division), Jodhpur dated 111.2001. By the order impugned, the trial Court has disposed of an application filed by the petitioner under Order 7 Rule 11,CPC. The grievance raised by the petitioner in the application was to the effect that the suit pertains to wakf property and in terms of Section 6 of theWakf Act, 1995 (hereinafter referred to as the Act of 1995), all disputes regarding wakf are required to be brought before the Tribunal constituted under the Wakf Act and the civil Court has no jurisdiction to adjudicate the same. 3. Learned Counsel for the petitioner assailing the order submitted that Section 85 of the Act of 1995 bars the jurisdiction of a civil Court. Section 85 of the Act of 1995 is reproduced hereinbelow for ready reference:- “85. Bar of jurisdiction of civil Courts.-No suit or other legal proceeding shall lie in any civil Court in respect of any dispute, question or other matter relating to any wakf , property or other matter which is required by or under this Act to be determined by a Tribunal.” 4. Supporting his argument, learned Counsel for the petitioner relied upon the case decided by this Court in the matter of Sayed Inamul Haq Shah vs. State of Rajasthan & Ors., reported in 2000 (4) WLC (Raj.) 528. In this case, the Court has held that in relation to the un-disputed matters which are cognizable by the Tribunal, the Tribunal alone has the jurisdiction. The Court held as under:- “6. It was not disputed before me that the subject matter of the suit was cognizable by a Tribunal established under the Act and no suit on the same cause of action could have been filed after the coming into force of the Act.” 5. The Court held as under:- “6. It was not disputed before me that the subject matter of the suit was cognizable by a Tribunal established under the Act and no suit on the same cause of action could have been filed after the coming into force of the Act.” 5. The petitioner has also relied on a case decided by Kerala High Court in the mater of Pookoya Haji vs. Cheriyakoya, reported in 2003 (4) CCC 19 (Ker.) wherein, the Court held as under:-“We are, therefore, of the considered view that the words any dispute, question or other matters relating to Wakf or Wakf property under Section 85 are wide enough to take within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act itself . On examining the scheme of the Act and various provisions, we are of the view that the intention of the Legislature is to resolve all disputed by one machinery and forum provided in the Act itself , that is, the Wakf Tribunal and not by the civil Courts in the State.” 6. Per contra, learned Counsel for the plaintiff submitted that the argument of the petitioner is mis-conceived. The law as stood in relation to The Wakf Act, 1954 (hereinafter referred to as the Act of 1954) was to the effect that any person interested could institute a suit within one year of the passing of the Act. But thereafter, the persons not interested in the wakf were not bound by the provisions of the Act of 1954. 7. Learned Counsel for the plaintiff/non-petitioner has urged that person interested as delineated in the Act of 1954 was interpreted by this Court in the matter of Radha Kishan & Ors. vs. State of Rajasthan & Ors., reported in AIR 1967 (Raj.) Page 1. The Judgment of Rajasthan High Court was approved by the Honble Supreme Court by the Judgment reported in AIR 1979 SC 269. 8. With the change in law, the disputes regarding the Wakf and their disposal are delineated in Section 6 of the Act of 1995. Section 6 of the Act of 1995 is reproduced hereinbelow for ready reference:- “6. The Judgment of Rajasthan High Court was approved by the Honble Supreme Court by the Judgment reported in AIR 1979 SC 269. 8. With the change in law, the disputes regarding the Wakf and their disposal are delineated in Section 6 of the Act of 1995. Section 6 of the Act of 1995 is reproduced hereinbelow for ready reference:- “6. Disputes regarding wakfs:- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakfs property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf , the Board or the mutawali of the wakf or any person interested therein may institute a suit in the Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final; Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of publication of the list of wakfs. Explanation -For the purposes of this section and Section 7, the expression “any person interested therein” shall. In relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4. .(2) Notwithstanding.................. .(3) .................................. .(4) .................................. .(5) .................................. 9. The law regarding wakf have undergone a change. According to learned Counsel, change in law has not affected the rights of the plaintiff . According to the learned Counsel. The suit can be instituted in the Tribunal only by a person interested. As per explanation attached to Section 6 of the Act of 1995, such person shall be construed in relation to the any property specified as wakf property in the list of wakfs published after the commencement of this Act i.e., after 1995. The dispute in the suit is not in relation to a list which was published after commencement of Act of 1995. In fact, after enactment of 1995, there had been no list published. The dispute in the suit is not in relation to a list which was published after commencement of Act of 1995. In fact, after enactment of 1995, there had been no list published. Therefore, there is no question of the plaintiff being covered by the definition of any person interested who can institute a suit under Section 6 of the Act of 1995 before the Tribunal. In that view of the matter, the bar as contained in Section 85 would not be attracted. The definition of “person interested contained in Section 3(k) of the Act of 1995 as expounded by the explanation attached to Section 6 of the Act of 1995 would, therefore, be ineffective. Section 3(k) of the Act of 1995 is reproduced hereinbelow for ready reference:- “3(k) “person interested in a wakf” means any person who is entitled to receive any pecuniary or other benefit from the wakf and includes- .(i) Any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyeard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf ; .(ii) the wakf and any descendant of the wakf and the mutawali.” 10. A consideration of the definition will show that the plaintiff is not covered by the definition. It is only by way of explanation attached to Section 6 of the Act of 1995 that this argument is raised which is not valid. 11. I have considered the rival submissions and have given my thoughtful consideration. As far as the law prior to 1995 is concerned in relation to the person interested, it has been clearly stated by the authoritative pronouncements of Honble Supreme Court in the matter reported in AIR 1979 SC 269. Therefore, under the Old Act, the rights of the plaintiff were not affected for maintaining the suit. 12. What would be the effect of new law which has come into operation in 1995 is to be seen. Section 85 of the Act of 1995 creates a bar of the civil Courts jurisdiction but that is in relation to those persons who are interested in wakf . The person interested would be one as defined in Section 3(k) of the Act of 1995. Section 85 of the Act of 1995 creates a bar of the civil Courts jurisdiction but that is in relation to those persons who are interested in wakf . The person interested would be one as defined in Section 3(k) of the Act of 1995. A bare reading of the definition demonstrates that the plaintiff cannot be treated to be a person interested in terms of the definition. 13. The applicant has tried to create a bar for the plaintiff in view of the explanation contained in Section 6 of the Act of 1995. The bar which can be enforced against a person in view of the explanation is that if the person is interested in relation to any property specified as wakf property in the list of wakf published after commencement of this Act. This is not the case of anybody that no list has been published after the commencement of the Act of 1995. Therefore, the expression “any person interested” as mentioned in explanation to Section 6 of the Act of 1995 cannot be applied to the petitioner. Further provision in the explanation is in relation to every such person who though not interested in such property, to whom a reasonable opportunity has been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4 of the Act of 1995 after giving notice to the plaintiff . No such enquiry after notice is alleged in the application under Order 7 Rule 11, CPC. Thus, in none of the clauses of explanation, the case of the plaintiff can be covered. Therefore, the order passed by the trial Court is not liable to be interfered. That being the position, the order of dismissal of the application under Order 7 Rule 11, CPC is not liable to be interfered as it is considered to be in accordance with law. The revision petition having no force is hereby dismissed.