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2018 DIGILAW 608 (CAL)

Nil Kamal Ghosh v. Ansar Ali Kazi

2018-08-27

BISWAJIT BASU

body2018
JUDGMENT : 1. The revisional application under Article 227 of the Constitution of India is at the instance of the defendant nos.1 and 2 in a suit for declaration and is directed against the order no.148 dated May 03, 2016 passed by the learned Civil Judge, Junior Division, 1st Court, Barasat in Title Suit No.178 of 1980. 2. The learned Trial Judge by the order impugned has allowed the application of the plaintiff to withdraw the suit, with liberty to file afresh with payment of costs of Rs.5,000/- to the defendants. 3. The learned advocate appearing on behalf of the petitioner submits that the suit is pending since 1980 and when it was reached at the verge of disposal the plaintiffs/ opposite parties filed the application for withdrawal of the said suit with a prayer for liberty to file the said suit afresh before the Waqf Tribunal. He further submits that the suit since was pending as on the date when the Waqf Act, 1995 came into force by virtue of Sub-Section(5) of Section 7 of the said Act the Tribunal has no jurisdiction over the said suit. He, therefore, submits that the learned Trial Judge should not have granted the plaintiffs/ opposite parties liberty to file the said suit afresh before the Tribunal. The said learned advocate to strengthen his argument places reliance on the decision of the Apex Court in the case of Board of Wakf, West Bengal and Anr. Vs. Anis Fatma Begum and Anr., reported in (2010) 14 Supreme Court Cases 588. 4. Learned advocate for the plaintiffs/ opposite parties vehemently contends that such liberty has been granted by the learned Trial Judge under Order 23 Rule 1 Sub-Rule 3 of the Code of Civil Procedure and grant of liberty to file a suit afresh which is allowed to be withdrawn, is in built in the said provision of the code. He, therefore, submits that there is no illegality in granting liberty to the plaintiffs to file the said suit afresh before the appropriate forum. 5. Heard learned advocate for the parties perused the materials on record. 6. Sub-Section (5) of Section 7 of the Waqf Act, 1995 puts a bar to the jurisdiction of the Tribunal to determine any matter which the subject matter of any suit or proceeding instituted or commenced in a Civil Court before the commencement of the said Act. 7. 5. Heard learned advocate for the parties perused the materials on record. 6. Sub-Section (5) of Section 7 of the Waqf Act, 1995 puts a bar to the jurisdiction of the Tribunal to determine any matter which the subject matter of any suit or proceeding instituted or commenced in a Civil Court before the commencement of the said Act. 7. The issue to be determined in the suit is the character of the suit property, therefore, the said issue squarely comes within the purview Section 6 of the said Act. The suit is pending since 1980 that is long prior to the commencement of the Waqf Act, 1995. 8. Sub-Section (1) of Section 6 of the Waqf Act, 1995 being relevant to the context are reproduced below: “6. Disputes regarding auquaf-(1) If any question arises whether a particular property specified as property in the list of auqaf is waqf property or not or whether a waqf specified in such list is a Shia or Sunni, the Board or the mutawalli of the waqf or 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 auqaf. Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in subsection (6) of section 4. (2)………………………………………………………... (3)………………………………………………………... (4)………………………………………………………... (5)………………………………………………………..” 9. Section 7 of the Waqf Act, 1995 being also relevant to the present context is quoted below: “7. Power of Tribunal to determine disputes regarding auqaf. -1. (2)………………………………………………………... (3)………………………………………………………... (4)………………………………………………………... (5)………………………………………………………..” 9. Section 7 of the Waqf Act, 1995 being also relevant to the present context is quoted below: “7. Power of Tribunal to determine disputes regarding auqaf. -1. If, after the commencement of this Act, any question or dispute arises, whether a particular property specified as waqf property in a list of auquaf is waqf property or not, or whether a waqf specified in such list is a Shia or a Sunni waqf, the Board or the mutawalli of the waqf, or any person aggrieved by the publication of the list of auqaf under Section 5 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 the case of the list of auqaf 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 auqaf; and (b) in the case of the list of quqaf relating 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 waqf 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 auqaf 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. (3) The Chief Executive Officer shall not be made a party to any application under Sub-Section (1). 4. The list of auqaf 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.” 6. The Tribunal shall have the powers of assessment of damages by unauthorized occupation of waqf property and to penalize such unauthorized occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence. It appears from paragraph 3 of the said application filed by the plaintiffs/ opposite parties that the plaintiffs have prayed for withdrawal of the said suit on the ground that the learned advocate for the plaintiffs has come across with the provisions of the Wakf Act and such provisions of the said Act put a bar to the jurisdiction of the Civil Court in adjudicating the issue involved in the suit and the same is required to be transferred before the Tribunal. Paragraph no.3 of the said application is quoted below: “That the Ld. Advocate has off late has come across that instant be hit by the said Wakf Act, 1995 and as such it is not triable by this Ld. Court and necessary suit is to be filed before the Ld. Wakf Tribunal at Kolkata which has the only jurisdiction according various legal interpretations by pronouncements by Hon’ble High Courts as well as Hon’ble Apex Court; Viz: AIR 2003 KERALA-84; (2011) 1 WBLR 308; (2014) WBLR (SC) 211; AIR 2001 RAJASTHAN 10. The copies of these decisions are filed herewith marked as annexure ‘A’, ‘B’, ‘C’ and ‘D’. Wakf Tribunal at Kolkata which has the only jurisdiction according various legal interpretations by pronouncements by Hon’ble High Courts as well as Hon’ble Apex Court; Viz: AIR 2003 KERALA-84; (2011) 1 WBLR 308; (2014) WBLR (SC) 211; AIR 2001 RAJASTHAN 10. The copies of these decisions are filed herewith marked as annexure ‘A’, ‘B’, ‘C’ and ‘D’. ” 10. The Apex Court in the case of Board of Wakf, West Bengal & Anr. (supra) in paragraph 16, by placing reliance in the case of Sardar Khan v. Syed Najmul Hasan (Seth), reported in (2007) 10 SCC 727 , has specifically held that the Wakf Act will not be applicable to suits/appeals/revisions/proceedings commenced prior to 01-01-1996 when the Wakf Act came into force. 11. Paragraph 16 of the said reported decision is reproduced below: “In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the Civil Court. However, in view of the decision of this Court in Sardar Khan vs. Sayed Najmul Hasan (Seth), the Wakf Act will not be applicable to suits/ appeals/ revisions/ proceedings commenced prior to 1-1-1996 when the Wakf Act came into force.” 12. Thus it is abundantly clear that the issue involved in the suit is regarding the character of the suit property which squarely comes within the connotation disputes regarding Waqf as contemplated under Section 6 of the Waqf Act, 1995. The said issue since was pending for determination before a competent Civil Court as on the date of commencement of the said Act. The Tribunal cannot have any jurisdiction over the subject matter of the suit. 13. In view of such position of the matter the learned Trial Judge should not have granted liberty to the plaintiffs to file the suit afresh before the appropriate forum which according to the plaintiffs is the Waqf Tribunal. The order impugned, therefore, modified to the extent that the liberty granted to the plaintiffs by the order impugned to withdraw the suit is affirmed but the liberty granted by the order impugned to file the said suit afresh is set aside. C.O. 1983 of 2016 is disposed of with the above observations. 14. There will be no order as to costs. 15. C.O. 1983 of 2016 is disposed of with the above observations. 14. There will be no order as to costs. 15. Urgent photostat certified copies of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.