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2013 DIGILAW 669 (HP)

Vinod Kumar v. H. P. Wakf Board

2013-07-17

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in these petitions, these were heard and are being disposed of by a common judgment. Both these petitions, i.e. CMPMO No. 532 of 2009 and CR No. 101 of 2009, are directed against the common judgment, dated 23.05.2009, passed by the learned Wakf Tribunal, District Kangra at Dharamshala, in Rent Petition No. 1/2009 (2002). 2. Key facts necessary for adjudication of these petitions are that the respondent-H.P. Wakf Board has filed an eviction petition against the petitioners-respondents/proforma respondents, namely, Shanti Devi, Prem Chand, Sansar Chand, Rohit Kumar, Sharad Chand, Vinod Kumar and Sonu Sharma on the grounds of arrears of rent w.e.f. April 1994 to 30.11.2002, subletting the portion of tenanted premises, converting the residential premises into a shop, change of user without the permission and consent of the respondent-H.P. Wakf Board, Shimla, impairing the value and utility of the demised premises by covering the corridor and raising construction without the permission of the respondent-H.P. Wakf Board, Shimla, premises bonafidely required for use and occupation charges and the premises were required for re-construction of the building, which was not possible without the building being vacated. 3. Learned Wakf Tribunal at Dharamshala, District Kangra, H.P. has ordered the eviction of the petitioners and proforma respondent on the ground of non-payment of rent, subletting, change of user from residential into a shop. 4. Petitioners-respondents, Shanti Devi, Prem Chand, Sansar Chand, Rohit Kumar and Sharad Chand have filed Civil Revision No. 101 of 2009. Only petitioner-respondent, Sh. Vinod Kumar has filed CMPMO No. 532 of 2009. Sonu Sharma has been arrayed as proforma respondent/respondent in both the petitions. However, in CMPMO No. 532 of 2009, the name of Sonu Sharma, respondent No. 7 was deleted vide order, dated 31.03.2010. 5. Mr. R.K. Sharma, learned Senior Advocate and Mr. Ramakant Sharma, Advocate have vehemently argued that the Wakf Tribunal has no jurisdiction to decide the matter. According to them, the learned Wakf Tribunal, District Kangra at Dharamshala has committed error in assuming jurisdiction and directing the eviction of their clients. In other words, their submission is that the eviction of their clients could be ordered only under The Himachal Pradesh Urban Rent Control Act, 1987. 6. Mr. Imran Khan, learned counsel for the respondent-H.P. Wakf Board, Shimla has supported the judgment, dated 23.05.2009. 7. In other words, their submission is that the eviction of their clients could be ordered only under The Himachal Pradesh Urban Rent Control Act, 1987. 6. Mr. Imran Khan, learned counsel for the respondent-H.P. Wakf Board, Shimla has supported the judgment, dated 23.05.2009. 7. I have heard the learned counsel for the parties and gone through the judgments and the records carefully. 8. The learned Wakf Tribunal, District Kangra at Dharamshala has specifically framed issue No. 7 as under: 7. Whether the Tribunal has no jurisdiction to try the petition? OPR This issue has been decided by the Wakf Tribunal, District Kangra at Dharamshala in favour of the Wakf Board. The issue raised in these petitions is no more res integra in view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court in Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 . The issue raised be-fore the Hon'ble Supreme Court was that whether or not the Wakf Tribunal can entertain and adjudicate upon a dispute regarding eviction of a tenant holding wakf property under the Wakf Board, would depend upon the scheme of the Wakf Act, 1995 and express or implied exclusion of the jurisdiction of the civil courts to entertain any such dispute and if the Act excludes the jurisdiction of the Civil Courts whether such exclusion is absolute and all pervasive or limited only to a particular class of disputes is also an incidental question that may have to be addressed before their Lordships. Their Lordships of the Hon'ble Supreme Court after going through the entire scheme of the Wakf Act, 1995 and Sections 6, 7, 33, 45, 47, 61, 62, 72 and 73, have laid down that the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. Their Lordships have further held that a suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the civil Court and not before the Tribunal. Their Lordships have held as under: 2. Their Lordships have further held that a suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the civil Court and not before the Tribunal. Their Lordships have held as under: 2. The question is whether the Wakf Tribunal constituted u/s 83 of the Wakf Act, 1995 was competent to entertain and adjudicate upon disputes regarding eviction of the appellants who are occupying different items of what are admittedly Wakf properties. The Wakf Tribunal before whom the suits for eviction of the tenants were filed answered the question regarding its jurisdiction in the affirmative and decreed the suit filed against the appellant. 3. Aggrieved by the said orders the appellants filed revision petitions before the High Court of Andhra Pradesh, inter alia, contending that the Tribunal was in error in assuming jurisdiction and directing their eviction. Dismissal of the Revision Petitions by the High Court has led to the filing of the present appeals as already noticed above. 4. Whether or not the Wakf Tribunal can entertain and adjudicate upon a dispute regarding eviction of a tenant holding wakf property under the Wakf Board, would depend upon the scheme of the Wakf Act, 1995 and express or implied exclusion of the jurisdiction of the Civil Courts to entertain any such dispute. If the Act excludes the jurisdiction of the Civil Courts whether such exclusion is absolute and all pervasive or limited only to a particular class of disputes is also an incidental question that may have to be addressed. There is a cleavage in the judicial opinion expressed on these questions by different High Courts in the country. 15. Let us now see whether the respondent-Wakf Board who claims exclusion of jurisdiction of Civil Court has discharged the onus that lay upon it, Section 6 of the Act which bears direct relevance to that question may at this stage be extracted: Section 6. 15. Let us now see whether the respondent-Wakf Board who claims exclusion of jurisdiction of Civil Court has discharged the onus that lay upon it, Section 6 of the Act which bears direct relevance to that question may at this stage be extracted: Section 6. Disputes regarding wakfs:- (1) 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: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the 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 u/s 4. (2) Notwithstanding anything contained in sub-section (1) no proceeding under this Act in respect of any wakf shall be stayed by reason, only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision of the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this 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). 16. (5) On and from the commencement of this 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). 16. A plain reading of sub-section (5) of Section 6 (supra) would show that the Civil Court's jurisdiction to entertain any suit or other proceedings stands specifically excluded in relation to any question referred to in subsection (1). The exclusion it is evident from the language employed is not absolute or all pervasive. It is limited to the adjudication of the question (a) whether a particular property specified as wakf property in the list of wakfs is or is not a wakf property, and (b) whether a wakf specified in such list is a Shia wakf or a Sunni wakf. The Board or the mutawalli of the wakf or any person interested in the wakf is competent to institute a suit in a Tribunal for a decision on the above question or questions, which decision shall then be final provided that no such suit can be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. 17. We may at this stage refer to Section 7 of the Act which provides for the forum for determination of questions referred to therein and arising after the commencement of this Act. What is important is that the questions referred to in Section 7(1) are the very same questions that are referred to in Section 6(1) with the only difference that Section 7(1) refer to the said questions arising after the commencement of the Act. 18. Section 7 is extracted below: Section 7. What is important is that the questions referred to in Section 7(1) are the very same questions that are referred to in Section 6(1) with the only difference that Section 7(1) refer to the said questions arising after the commencement of the Act. 18. Section 7 is extracted below: Section 7. Power of Tribunal to determine disputes regarding wakfs:- (1) If, after the commencement of this 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 the 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: Provided that- (a) in a case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement; Provided further 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. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any Court. Tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) 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 as so modified, shall be final. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) 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 as so modified, shall be final. (5) The Tribunal shall not have 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 this 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. 19. Second proviso to Section 7(1) accords finality to the judgments of the Civil Court in suits instituted before such commencement. Sub-section (5) to Section 7 excludes from the jurisdiction of the Tribunal any dispute which is the subject matter of a suit in a Civil Court instituted before the commencement of the Act. 20. From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that u/s 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property. 25. Whenever a question arises whether "any dispute, question or other matter" relating to "any wakf or wakf property or other matter" falls within the jurisdiction of a Civil Court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in Section 85 is in that sense much wider than that contained in Section 6(5) read with Section 7 of the Wakf Act. While the latter bars the jurisdiction of the Civil Court only in relation of questions specified in Sections 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the Civil Courts not only in relation to matters that specifically fall in Sections 6 and 7 but also other matters required to be determined by a Tribunal under the Act. There are a host of such matters in which the Tribunal exercises original or appellate jurisdiction. 28. Section 85 of the Act clearly bars jurisdiction of the Civil Courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even u/s 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred 29. The High Courts of Andhra Pradesh, Rajasthan, Madhya Pradesh, Punjab and Haryana have in the decisions to which we have made reference in the earlier part of this judgment taken the view that the jurisdiction of the Civil Courts is barred in respect of disputes that concerns with any wakf or wakf property. The decisions rendered by these High Courts draw support for that conclusion from Section 83 of the Wakf Act, 1995. The language employed in Section 83 of the Act has been understood to be so wide as to include any dispute, question or other matter relating to a wakf or wakf property. The decisions rendered by these High Courts draw support for that conclusion from Section 83 of the Wakf Act, 1995. The language employed in Section 83 of the Act has been understood to be so wide as to include any dispute, question or other matter relating to a wakf or wakf property. Section 83 of the Act, however, does not deal with the exclusion of the jurisdiction of the Civil Courts to entertain civil suits generally or suit of any particular class or category. The exclusion of Civil Court's jurisdiction is dealt with by Section 6(5) and Section 85 of the Act. To interpret Section 83 as a provision that excludes the jurisdiction of the Civil Courts is not, therefore, legally correct, for that provision deals with constitution of Tribunals, the procedure which the Tribunals would follow and matters relating thereto. 32. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment. 33. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal. 34. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded. 35. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. 36. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed. 9. A similar view has been taken by the learned Single Judge of Allahabad High Court in Yashpal Lala Shiv Narain Vs. Allatala Tala Malik Waqf Ajakhan Mus, AIR 2006 All 115 as under: 169. As noted above, the present Suit is a Suit for eviction of the tenant [i.e., petitioner (defendant)] from the disputed shop after determination of the tenancy/lease. Such a Suit is not a Suit "in respect of any dispute, question or other matter relating to" any wakf or wakf property in the context in which the, said words have been used in Section 85 of the Wakf Act, 1995. 170. Further, analysis of various provisions of the Wakf Act, 1995, particularly, Sections 6, 7, 32, 33, 35, 40, 51, 52, 54, 64, 67, 69 and 83 thereof, shows that such a Suit for eviction of the tenant [i.e. petitioner (defendant)] after determination of the tenancy/lease is also not covered within the purview of the words "other matter which is required by or under this Act to be determined by a Tribunal. 171. 171. In the circumstances, I am of the opinion that the bar created by Section 85 of the Wakf Act, 1995 does not apply in the present case, which pertains to a Suit for eviction of the tenant from the disputed shop after determination of the tenancy/lease. As such, in my opinion, the submissions made by the learned Counsel for the petitioner (defendant) in this regard, cannot be accepted. In view of the aforesaid discussion, I am of the opinion that the present Writ Petition filed by the petitioner (defendant) lacks merit, and the same is liable to be dismissed. 10. In Abdul Kadar @ Babbu Vs. Masjid Juma Darwaja, (2009) 1 BomCR 498 the learned Single Judge of Bombay High Court has held that the Tribunal created under the Act are for the purpose of determining questions arising under the Wakf Act. The learned Single Judge has held as under: The provisions of S. 85 which provided for bar of jurisdiction of Civil Court use the words i.e., "any dispute, question or other matter relating to any wakf, wakf property or other matter". It is important to note that the dispute or questions triable by any Tribunal under Wakf Act must arise under Wakf Act and not otherwise and it must require decision under said Act. A dispute between landlord and tenants is not arising under Wakf Act and, therefore, is not cognizable either U/S. 7(1) or then U/S. 83(1) thereof. Wakf Act has been enacted for better administration and regulation of Wakfs and to have effective control over them. The Tribunals created thereunder are for the purpose of determining questions which arise under the Wakf Act. The dispute between landlord and tenants does not arise under Wakf Act at least in present facts. The recourse of Civil remedy by the respondent Wakf is, therefore, perfectly legal. There is no merit in the contention of the petitioners-tenants that suit for their eviction ought to have been filed by the Tribunal constituted u/S. 83(1) of the Wakf Act. 11. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court, the learned Wakf Tribunal has erred in exercising the jurisdiction in a dispute between the landlord and tenant. The matter was required to be adjudicated upon before the learned Rent Controller under the Himachal Pradesh Urban Rent Control Act, 1987. 11. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court, the learned Wakf Tribunal has erred in exercising the jurisdiction in a dispute between the landlord and tenant. The matter was required to be adjudicated upon before the learned Rent Controller under the Himachal Pradesh Urban Rent Control Act, 1987. Accordingly, in view of the observations and discussions made hereinabove, the CMPMO No. 532 of 2009 and Civil Revision No. 101 of 2009, are allowed. The judgment, dated 23.05.2009, passed by the learned Wakf Tribunal, District Kangra at Dharamshala, in Rent Petition No. 1/2009 (2002), is set aside. The pending applications, if any, also stands disposed of. No costs.