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2008 DIGILAW 292 (GAU)

Aminul Islam v. Bijoya Prava Barua

2008-04-21

TINLIANTHANG VAIPHEI

body2008
JUDGMENT T. Vaiphei, J. 1. The question which falls for consideration in this revision is whether the Ld. District Judge, Shillong is correct in holding that the civil suit being T.S. 14(H) of 2005 filed by the respondents-plaintiffs, who are admittedly the tenants of a wakf property, for declaration, permanent injunction, etc. in respect of the portions of the wakf property occupied by then is riot barred by Section 85 of the Wakf Act, 1995 ("the Act" for short). The controversy arose on the following facts and circumstances. The original lessee of the suit property i.e. Ghulam Rahman Wakf Estate, namely, the late Kamal Kanta Barua died in the year 1966 whereupon the suit property devolved upon the father of the respondent No. 2 and husband of the respondent No. 1 as his legal heirs and again devolved upon the respondents jointly upon the death of late Kamal Kanta Barua. According to the respondents, the suit property occupied by them includes residential-cum-business accommodation, which they have been occupying with their family members for generations, and their accommodation was gutted by fire in the year 1974. With the full knowledge and consent of the defendant No. 3 (Deputy Commissioner, Shillong) the respondents are stated to have reconstructed the suit property at their own expenses, and have since then been paying rents to the petitioner-defendant No. 2. To cut short the narration, when the petitioner attempted forcibly evict the respondents from the suit property, the latter instituted the suit along with Miscellaneous Case No. 14(SH) of 2005, which was for ad-interim injunction. The petitioner not only contested the suit but also filed an application challenging the very maintainability of the suit contending that the suit was barred by Section 85 of the Act inasmuch as the dispute was one which arose out of wakf property, which could be decided only by the Tribunal constituted under the Act. After hearing the counsel for the petitioner, the Ld. Munsiff by the order dated 8.2.2007 dismissed the suit holding that the suit was barred by Section 85 of the Act. 2. Aggrieved by the dismissal of the suit, the respondents preferred R.R.A. No. 1 (H) of 2007 before the Ld. District Judge, Shillong, who by the impugned judgment and order allowed the appeal; set aside the order dated 8.2.2007 and remanded the suit to the trial Court for trial in accordance with law. 2. Aggrieved by the dismissal of the suit, the respondents preferred R.R.A. No. 1 (H) of 2007 before the Ld. District Judge, Shillong, who by the impugned judgment and order allowed the appeal; set aside the order dated 8.2.2007 and remanded the suit to the trial Court for trial in accordance with law. According to the Ld. District Judge, as the provisions of the Act are silent about the forum for determination of a tenancy dispute or right, there was no reason as to why the Civil Court could be barred from deciding a dispute between a tenant and a landlord or vice versa. The Ld. District Judge reasoned that when in terms of the decision of this Court in Sri Bihari Lal Agarwalla and Ann v. Tamizul Haque reported in (1988) 1 GLR 76, an eviction suit could be filed under the Rent Control Act before a Civil Court by a mutawalli as landlord, it would be illogical to hold that a tenant could not approach a Civil Court to protect his/her tenancy rights. This is how this revision came to be filed by the petitioner. Assailing the views taken by the Ld. District Judge, Mr. K. Khan, the learned Counsel for the revision-petitioner contends that the Act being a complete and self-contained code, any dispute or all kinds of disputes involving a wakf property shall necessarily have to be relegated to the forum specially constituted for the same by the Act, namely, the Tribunal constituted under Section 83 of the Act. According to the learned Counsel, the expression "any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal" appearing in Section 85 of the Act is all embracing and comprehensive so as to take within its sweep any dispute between a mutawalli and a tenant of a wakf property. It is the contention of the learned Counsel for the petitioner that the respondents in this case, who are admittedly tenants of a wakf property, are covered by the term "any person interested therein" referred to in Section 6 of the Act. So read, submits the learned Counsel, they are barred by Section85 from instituting the suit before the Ld. It is the contention of the learned Counsel for the petitioner that the respondents in this case, who are admittedly tenants of a wakf property, are covered by the term "any person interested therein" referred to in Section 6 of the Act. So read, submits the learned Counsel, they are barred by Section85 from instituting the suit before the Ld. Munsiff, and can only file an application before the Tribunal constituted under Section 83 for deciding the dispute concerning the tenancy rights raised by them. It is thus contended by the learned Counsel for the petitioner that the Ld. Munsiff was perfectly right in holding that he had no jurisdiction to entertain the suit and conversely, the Ld. District Judge grossly erred in law in upsetting the decision of the Ld. Munsiff, which is liable to be interfered with by this Court. Strong reliance is placed by the learned for the petitioner upon the following decisions: (i) Pookoya Haji v. Cheriyakoya 2003 (4) CCC 13 (Ker)(DB); (ii) Salam Khan v. Tamil Nadu Wakf Board, Chennai and Ors. 2005 (3) CCC 516 (ad)(DB), to buttress his submissions. 3. On the other hand, Mr. R.P. Sharma, the learned Counsel for the respondents-plaintiffs, submits that the impugned judgment is perfectly in order and does not call for interference. He contends that the respondents are the tenants of the disputed wakf property, and cannot by any stretch of imagination be termed as persons interested in a wakf or wakf property or "any other persons aggrieved by an order made under the Act, or rules made thereunder". In other words, his contention is that the tenancy dispute raised by the respondents before the Ld. Munsiff is not a dispute, question or other matter relating to any wakf, wakf property or other matter which was required by or under the Act to be determined by the Tribunal. In other words, his contention is that the tenancy dispute raised by the respondents before the Ld. Munsiff is not a dispute, question or other matter relating to any wakf, wakf property or other matter which was required by or under the Act to be determined by the Tribunal. It is further contended by the learned Counsel that exclusion of Civil Court's jurisdiction to decide a dispute cannot be readily inferred and that examination of the scheme of the Act unambiguously indicates that the Tribunal constituted under the Act has not been expressly or by necessary implication inferred the jurisdiction to decide any dispute beyond what are specifically mentioned therein, namely, whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia Wakf or Sunni Wakf. Thus, according to the learned Counsel, the Tribunal constituted under the Act indisputably does not have any jurisdiction to decide a tenancy dispute between the petitioner and the respondents, and the only forum which can decide such dispute is obviously a Civil Court. It is thus the contention of the learned Counsel that the respondents cannot come within the sweep of the term "any person interested therein" mentioned in Section 6 or 7 of the Act. In support of his contention, the learned Counsel for the respondents takes me to the decision of the Apex Court in Abdul Rais v. M.P. Wakf Board (2005) 1 SCC 741 . 4. Before entering into the controversy, it may not be out of place to make a brief survey of the relevant provisions of the Act. Chapter II provides for survey of Wakfs. Sections 4(1) and (2) of the Act deal with the appointment of Survey Commissioner of Wakfs and Additional or Assistant Survey Commissioners of Wakfs for the purpose of making survey of wakfs in the State. Section 4(3) says that the Survey Commissioner shall, after making such enquiry as he may consider necessary, submit his report, in respect of wakfs existing at the date of commencement of the Act in the State. The Commissioner is also empowered to get information regarding the number of Wakfs in the State showing Shia Wakfs and Sunni Wakfs separately, the nature and objects of each wakfs, etc. The Commissioner is also empowered to get information regarding the number of Wakfs in the State showing Shia Wakfs and Sunni Wakfs separately, the nature and objects of each wakfs, etc. Section 4(4) then provides that the Commissioner, while making such inquiry, shall have the same power as vested in a Civil Court for the purpose of summoning and examining any witness, requiring the discovery and production of any documents, requisitioning any public record from any Court or Office, issuing commissions for the examination of any witness or accounts, making any local inspection or local investigation and such other matters as may be prescribed. Under Section 5(1), it is again provided that on receipt of a report under Section 4(3), the State Government is to forward a copy of the same to the Board of Wakf or the common Wakf Board, as the case may be. Section 5(2) then enjoins the Board to examine the report so forwarded and then publish in the Official Gazette a list of Sunni Wakfs or Shia Wakfs in the State, whether in existence at the commencement of the Act or coming into existence thereafter, to which the report relates and containing such other particulars as may be prescribed. Then comes Section 6, which is likely to be crucial for our purpose and which says that if any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia Wakf or Sunni Wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. The proviso thereto stipulates 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. The proviso thereto stipulates 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. The Explanation indicates that for the purpose 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 the 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. Section 6(4) declares that the list of wakfs shall, unless it is modified in pursuance of a decision of the Tribunal under Sub-section (1), shall be final and conclusive. Section6(5) says that on and from the commencement of the Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in Sub-section (1). Section 7, however, deals with the power of the Tribunal to determine disputes regarding wakfs existing after the commencement of the Act, which says that if, after the commencement of the Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final. The proviso (a) thereto, however, says that in the case of the list of wakfs relating to any part of the State and published after the commencement of the Act, no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs, while proviso (b) indicates that in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of the Act, such an application may be entertained by the Tribunal within the period of one year from such commencement. The second proviso thereto declares that where any such question has been heard and finally decided by a Civil Court in a suit instituted before such commencement, the Tribunal shall not re-open such question. Then, Sub-section (5) of Section 7further indicates that the list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under Sub-section (1), the list so modified, shall be final. Finally, Sub-section (5) of Section 7 provides that the Tribunal shall not have the jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under Sub-section (1) of Section 6, before the commencement of the Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. 5. Chapter-VIII deals with the provisions regarding judicial proceedings. Section 83(1) speaks of the constitution of Tribunals by the State Governments for determination of any dispute, question or other matter relating to a wakf or wakf property under the Act and their local limits and jurisdictions. Who can invoke the jurisdiction of the Tribunals so constituted is indicated in Sub-section (2), which reads thus: (2) Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in the Act or where no such time has been specified, within such times as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. 6. 6. Section 83(4) stipulates that every Tribunal shall consist of one person, who shall be member of the State Judicial Service holding a rank not below that of a District, Sessions or Civil Judge, Class I, whose appointment may be made either by name or by designation. In terms of Section 83(5), the Tribunal so constituted shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. However, the Tribunal may also follow such procedure as may be prescribed. Section 83(7) declares that the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court. As per Section 83(9), no appeal shall lie against any decision or order whether interim or otherwise given or made by the Tribunal, but the High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. Coming now to the meat of the matter, Section 85 deals with bar of jurisdiction of Civil Courts, which is in the following terms: 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, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. Section 85 thus stipulates that no suit or other legal proceedings shall lie in any Civil Court in a respect of any dispute, question or other matter relating to any wakf. Wakf property or other matter which is required by or under the Act to be determined by a Tribunal. Obviously, the tenancy dispute raised by the respondents in the civil suit does not relate to any wakf, wakf property or other matter, which is required by or under the Act to be determined by a Tribunal. Wakf property or other matter which is required by or under the Act to be determined by a Tribunal. Obviously, the tenancy dispute raised by the respondents in the civil suit does not relate to any wakf, wakf property or other matter, which is required by or under the Act to be determined by a Tribunal. The dispute which can be raised before, and can be, decided by the Tribunal is confined to the disputes referred to in Sections 6 and 7of the Act. As noted earlier, the question which can be raised before the Tribunal in terms of the aforesaid provisions are - (1) whether a particular property specified as wakf property in the list of wakfs so published under Section 5(2) is wakf property or not and (2) whether a wakf specified in such list is a Shia Wakf or Sunni Wakf. In the case at hand, the dispute brought to the Civil Court by the respondents is in no way connected with or is even remotely concerned with such a dispute. In other words, there is no dispute involving the status of the wakf or wakf property. The respondents are not disputing that the disputed land is a wakf property nor are they questioning that the disputed land is a Shia Wakf or Sunni Wakf. In my opinion, it is only when the disputes adumbrated in Sections6 or 7 are raised, the Board of Wakf or the mutawalli or any person interested therein can institute a suit before such Tribunal for the decision of those disputes. The expression "any person interested therein" cannot be read in isolation, and must be read in the context of the disputes referred to in the same section, which are to be adjudicated upon by such Tribunal, namely, (1) whether a particular property specified as wakf property in the list of wakfs published under Section 5(2) is wakf property or not and (2) whether a wakf property specified in the list published under Section 6(2) is a Shia Wakf or Sunni Wakf, which can be entertained and decided by the Tribunal constituted under the Act. This interpretation of mine is reinforced by the Explanation to Section 6(1), which declares that for the purpose of Sections 6 and 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 the Act, shall include 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 served on him in that behalf during the course of the relevant inquiry under Section 4.(Emphasis mine). The person to be interested in the wakf or wakf property, and can invoke the jurisdiction of the Tribunal must necessarily be one who should not only be interested in the property specified as wakf property in the list of wakfs published under Section 5(2) but should also be one to whom a reasonable opportunity had been afforded to represent his case by in the course of inquiry/survey under Section 4. The fact that the disputes which can be decided by the Tribunal are confined to the wakf property in the list of wakfs, namely, whether such listed property is a wakf property or not or whether the wakf so specified in such list is a Shia Wakf or Sunni Wakf, is confirmed by Sub-section (4) of Section 6 when it says that the list of wakfs shall, unless it is modified in pursuance of a decision of the Tribunal under sub-Section 1 (of Section 6), be final and conclusive. Any lingering doubt in that behalf is removed by Sub-section (5) of Section 6 wherein it is declared that on and from the commencement of the Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in Sub-section (1). It is a cardinal principle of interpretation of statute that to ascertain the meaning of a clause in a statute, the Court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. It is a cardinal principle of interpretation of statute that to ascertain the meaning of a clause in a statute, the Court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. Therefore, when this Court is called upon to decide as to whether the civil suit instituted by the respondents is barred by Section 85 of the Act, an endeavour shall be made by this Court to ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause in question with the other parts of the statute, and the setting in which the clause to be interpreted occurs. 7. The suit or other legal proceeding' which cannot be tried or entertained by Civil Courts under Section 85 are any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under the Act to be determined by a Tribunal. There is no difficulty in ascertaining a dispute or disputes relating to wakf or wakf property since these subjects relate to the disputes plainly covered by Section 6 and Section 7. It is with respect to "the other matter which is required by or under this Act to be determined by a Tribunal" that some difficulties, though no insurmountable, have arisen. As indicated earlier, under Section 83(2), any mutawalli, person interested in a wakf or any other person aggrieved by an order made under the Act, or rules made thereunder, may make an application within the time specified in the Act, or where no such time has been specified, within such time as, may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. In my judgment, a combined reading of Sections 6, 7, 83 and 85 of the Act plainly shows that the disputes which can be decided by the Tribunal constituted under Act must necessarily confine to (1), whether a particular property specified as wakf property in the list of wakf published under Section 5(2) is wakf property or not, (2) whether a wakf property specified in such list is a Shia Wakf or Sunni Wakf and (3) other matter which is required by or under the Act to be determined by the Tribunal, namely, the validity of any order made under the Act or the rules made thereunder. Secondly, the party who can move the Tribunal for its decision will be the Board of Wakf established under the Act or mutawalli of the wakf or any person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded otherwise to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4 or any person interested in the wakf including a beneficiary within the meaning of Section 3(a) (Emphasis mine). It is true that the Wakf Act, 1995 was enacted by the Parliament to deal with a large number of cases pending in Courts concerning disputes relating to wakfs and wakf properties and that the Tribunal constituted under the Act can decide all disputes, questions or other matters relating to a wakf or wakf property. However, having said that, it is equally true that the Tribunal being a creation of a statute, it can decide only those disputes, and grant those reliefs which the Parliament intended it to decide. In other words, the ambit, extent and scope of the Act shall have to be examined on the touchstone of the provisions of the Act. So examined, the Tribunal does not appear to have the jurisdiction to decide any dispute or question or other matter hot specifically provided for by or under the Act. On the other hand, an exclusion of jurisdiction of Civil Court to try a suit is not to be readily inferred. The law is now well-settled that where a Tribunal set up under a certain statute cannot grant a particular relief, the jurisdiction of the Civil Court to grant the relief is not barred. On the other hand, an exclusion of jurisdiction of Civil Court to try a suit is not to be readily inferred. The law is now well-settled that where a Tribunal set up under a certain statute cannot grant a particular relief, the jurisdiction of the Civil Court to grant the relief is not barred. Jurisdiction of the Civil Court to deal with civil cases can be excluded by the Legislature by special Acts to deal with special subject matters; but the statutory provision must expressly provide for such exclusion, or must necessarily and inevitably lead to that inference. One test is whether the special statute which excludes such jurisdiction has used clear and unambiguous words indicating that intention; another test is: Does the said statute provide for an adequate and satisfactory alternative remedy to a party that maybe aggrieved by the relevant order under its material provisions? [See State of Andhra Pradesh v.Manjeti Laxmi Kantha Rao [2000] 2 SCR 937. 8. It is against the backdrop of the aforesaid legal principles that I propose to examine as to whether Title Suit No. 14(H) of 2005 instituted by the respondents before the Ld. Munsiff, Shillong, can be held to be barred by Section 85 of the Act. Aperusal of the plaint filed by the respondents, which is at Annexure-A-1 to the revision petition plainly shows that the respondents never disputed that the suit property was a wakf property and that the reliefs claimed by them are basically to declare them to be the lawful tenants under the petitioner, and are thus legally entitled to possess the suit property for their residential accommodation and run their respective businesses thereon without interference from the petitioner, or, any person or persons, acting under its direction, a decree for permanent injunction to restrain the petitioner and any office bearer of the petitioner and all other person or persons under its direction not to interfere with their business and the shop rooms, etc. It is the common ground of the rival parties that the respondents are the tenants of the wakf property occupied by them. The respondents cannot by any stretch of imagination be held to be Board of the Wakf or mutawallis or beneficiaries of wakf. As indicated by me earlier, the respondents cannot come within the sweep of the expression "any person interested therein". The respondents cannot by any stretch of imagination be held to be Board of the Wakf or mutawallis or beneficiaries of wakf. As indicated by me earlier, the respondents cannot come within the sweep of the expression "any person interested therein". Nor can the dispute raised by them in the suit possibly be termed as a dispute concerning whether a particular property specified as wakf property in the list of wakf is wakf property or not or whether a wakf specified in such list is a Shia Wakf or Sunni Wakf. The respondents are also not in any manner aggrieved by any order made under the Act or the rules made thereunder. They are only aggrieved by the threat of eviction being carried out against them by the petitioner in respect of the suit property and of the threatened demolition of the building occupied by them. Thus, the suit instituted by the respondents is not one directed against any order passed under the provisions of the Act or the rules made thereunder either. In this view of the matter, it can be safely said that the Tribunal constituted under the Act is not competent to entertain the subject matter of the suit instituted by the respondents and that the Tribunal has no power to grant the relief of declaration of the tenancy rights of the respondents over the disputed property or of the relief of permanent injunction in respect thereof. In the view that I have taken, I hold that the Ld. District Judge does not improperly exercise his jurisdiction in deciding that the Ld. Munsiff has the jurisdiction to entertain the suit instituted by the respondents. 9. The result of the foregoing discussion 'is that there is no merit in this revision petition, which is hereby dismissed, However, on the peculiar facts and circumstances of the case, the parties are directed to bear their respective costs. The Ld. Munsiff shall now proceed with the suit and expeditiously dispose of the same in Accordance with law. Consequently, the interim order dated 10.9.2007 also Stands vacated. Petition dismissed.