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2015 DIGILAW 1608 (PNJ)

ASHOK KUMAR v. PUNJAB WAKF BOARD

2015-09-02

AMIT RAWAL

body2015
JUDGMENT : Amit Rawal, J Challenge in the present petition is to the impugned judgment and decree dated 06.09.2004 passed by the Tribunal constituted under Section 83of the Wakf Act, 1995 (hereinafter referred to as the Act), whereby, suit for decree of possession and eviction of the petitioner-defendants from the property comprised of a graveyard in khasra No. 105 measuring 27 kanals 11 marlas, situated in village Mansoordeva, as per jamabandi for the year 1999-2000, has been decreed. 2. Mr. Sandeep Khunger, learned counsel appearing on behalf of the petitioner-defendants submits that he confines his prayer only to the limited extent that Tribunal did not have the jurisdiction to try and decide the suit, in view of the ratio decidendi culled out by the Hon'ble Supreme Court in Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 : (2010) 9 JT 206 : (2010) 8 SCC 726 : (2010) 10 SCR 945 : (2010) AIRSCW 5185. He further submits that as per plain and simple reading of provisions of Sections Nos. 6 and 7 of the Act, it is clear that the jurisdiction of Tribunal is to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf and not with regard to eviction of the un-authorised person, much less, lessee or tenant. 3. In support of his aforementioned contention, he relied upon paragraph 12 of the aforementioned judgment to contend that only the circumstances, adumbrated in the aforesaid judgment, the Tribunal would have jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf and for other dispute, civil Court will have or has jurisdiction and thus, prays that question of jurisdiction being legal can be raised at any point of time. 4. Mr. Jai Bhagwan, learned counsel appearing on behalf of the respondents submits that jurisdiction of the Tribunal would be only in respect of the case, whether the property of the plaintiff is wakf property or not disputed by the petitioner-defendants. As per paragraph 22 of the judgment cited (supra), reiterated by the Hon'ble Supreme Court in Faseela M. Vs. 4. Mr. Jai Bhagwan, learned counsel appearing on behalf of the respondents submits that jurisdiction of the Tribunal would be only in respect of the case, whether the property of the plaintiff is wakf property or not disputed by the petitioner-defendants. As per paragraph 22 of the judgment cited (supra), reiterated by the Hon'ble Supreme Court in Faseela M. Vs. Munnerul Islam Madrasa Committee and Another, AIR 2014 SC 2064 : (2014) AIRSCW 2503 : (2014) 7 JT 247 : (2014) 5 SCALE 531 the Civil Court would have only jurisdiction, if the relationship of landlord and tenant and lessor and lessee is admitted and not otherwise. Since the petitioner-defendants disputed ownership of the property of wakf and being graveyard, jurisdiction of the Tribunal has rightly been invoked and thus, prayed that there is no merit in the revision petition and same is liable to be dismissed. He further submits that no such objection had been taken in the written statement, therefore, the petitioners cannot be permitted to raise such objection for the first time in the present petition as there is no remedy of appeal in the Act against the judgment and decree rendered by the Tribunal constituted under Section 83 of the Wakf Act, 1995. 5. I have heard learned counsel for the parties and appraised the paper book. 6. It would be apt to reproduce Sections 6 and 7 of the Wakf Act, 1995:- "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 under Section 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)." "Section 7. (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)." "Section 7. Power of Tribunal to determine disputes regarding wakfs.- 13(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." 7. On going through the co-joint reading of the aforementioned Sections, irresistible conclusion which can be inferred, is that no suit or other proceeding would be instituted or commenced in a civil Court in relation to any such question whether particular property is wakf property or whether wakf is a Shia wakf or a Sunni wakf. In essence, in case, there is dispute with regard to jurisdiction of the Tribunal, it would be maintainable with regard to dispute for eviction of the tenant or lessee. There is no dispute with regard to ratio decidendi culled out in Ramesh Gobindram's case (supra) but the fact remains that there is no averment in the plaint that defendants at any point of time before filing of the suit disputed the ownership of the property as wakf, therefore, jurisdiction of the Tribunal had been invoked seeking declaration as to whether the property allegedly in dispute was a wakf or not. In the absence of such pleadings, respondent-plaintiff cannot be permitted to take the benefit of the stand taken in the written statement. Respondent-plaintiff has to prove the averments by culling out the provisions as per Order 6 Rule 2 of the C.P.C. In Ramesh Gobindram's case (supra) and Faseela M's case (supra), the Hon'ble Supreme Court had been consistent in holding that where dispute, as to whether the property is wakf or not, Tribunal would have jurisdiction. The instant case is not the one falling within the ratio decidendi culled out in the judgment cited supra. The instant case is not the one falling within the ratio decidendi culled out in the judgment cited supra. There are no pleading in the suit that defendant denied the ownership of property as wakf, i.e., by using expression "when the defendant called upon to vacate the premises, they denied the ownership of the plaintiff being wakf property" in the absence of any such assertion, Tribunal, in my view and as per the judgment cited supra, had no jurisdiction. 8. In view of the aforementioned, impugned judgment and decree dated 06.09.2004 is set aside. 9. Revision petition is allowed. 10. However, it is made clear that this order of mine shall not prevent the respondent-plaintiff to seek eviction of the petitioner by invoking the jurisdiction of the Civil Court, in accordance with law.