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2017 DIGILAW 531 (CAL)

Abeda Khatoon v. Harmeet Kaur

2017-06-12

SANJIB BANERJEE

body2017
JUDGMENT : Sanjib Banerjee, J. The petitioner herein is the defendant in a civil suit and complains of the trial court dismissing an application for rejecting the plaint on the ground that the property covered by the suit was a wakf property. 2. In support of the petitioner's contention that the suit ought to be carried to a wakf tribunal, Section 85 of the Wakf Act, 1995 is cited. Such provision mandates that no suit or other legal proceedings 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 the Act to be determined by a tribunal. 3. The petitioner also refers to Section 83(5) of the Act by which a wakf tribunal is elevated to the status of a civil court. The petitioner relies on a decision reported at 2011 (1) WBLR (SC) 308. In the cited case, the opinion of this court on its original side was sought by way of originating summons and the question pertained to the character of the property. It was in such context that the Supreme Court opined that the matter ought to have been carried to the wakf tribunal and not to this court. Several paragraphs from the judgment have been placed to give the impression that any matter pertaining to wakf may be carried to a wakf tribunal and the jurisdiction of a civil court would be barred. However, a judgment has to be read not as an edict on stone but in the context of the facts pertaining thereto. In the reported case, a question as to the character of the property was raised in the originating summons when such a question could have been carried to a wakf tribunal under Section 7 of the Act of 1995. 4. The key issue is whether in Section 85 of the Act the words "it is required by or under this Act to be determined by a Tribunal" govern only the expression "other matter" or such words also govern the expression "any dispute, question or other matter relating to any wakf, wakf property". 5. 4. The key issue is whether in Section 85 of the Act the words "it is required by or under this Act to be determined by a Tribunal" govern only the expression "other matter" or such words also govern the expression "any dispute, question or other matter relating to any wakf, wakf property". 5. If a wider meaning was to be given to Section 85 of the Act, that would imply that no matter pertaining to any wakf can be carried to any civil court, whether it is for eviction or for the cancellation of any document or the like. However, it appears from Sections 6 and 7 of the Act that the power of the wakf tribunal is in respect of the matters that have been specifically referred to in Section 7 of the Act and may not extend to matters where the questions indicated in Section 7 of the Act may not be involved and a wakf estate or a wakf property may be incidentally the subject-matter of a civil suit. 6. It does not appear that the said Act of 1995 or the bar on civil courts in Section 85 thereof covers all situations involving any wakf or wakf property. 7. Indeed, the legal position is settled by the judgment reported at AIR 2014 SC 2064 and the legal position enunciated at paragraph 17 of the report. It is only such disputes as are specified in Sections 6 and 7 of the Act of 1995 that cannot be carried to a civil court and have to be taken to the wakf tribunal. However, merely because a wakf estate or a wakf property is the subject-matter of a civil suit or impleaded in a suit for specific performance or the like, would not mean that the civil court would have no authority to adjudicate the same by reason of Section 85 of the Act. 8. Section 85 of the Act does not create any bar to a civil court receiving or determining such suit in which matters pertaining to the disputes covered by Sections 6 and 7 of the Act are not involved. 8. Section 85 of the Act does not create any bar to a civil court receiving or determining such suit in which matters pertaining to the disputes covered by Sections 6 and 7 of the Act are not involved. The order impugned dated March 3, 2016 refers to several decisions before concluding that since the dispute in the suit pertains to the enforcement of a development agreement, it did not involve any of the questions under Sections 6 and 7 of the Act that could have been carried to a wakf tribunal. 9. The order impugned does not call for any interference. CO 1812 of 2017 is dismissed. 10. There will be no order as to costs.