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2020 DIGILAW 120 (CAL)

Harmeet Kaur v. Abeda Khatoon

2020-02-03

SABYASACHI BHATTACHARYYA

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JUDGMENT Sabyasachi Bhattacharyya, J. - The present challenge has been preferred by the first defendant in a suit for recovery of possession from the defendant nos. 1 and 2, for damages from the defendant nos. 1 and 2 for making extensive illegal construction in the suit premises without any plan sanctioned by the Kolkata Municipal Corporation, for permanent injunction restraining the defendant nos. 1 and 2 and their men, servants and agents from making further construction in the suit premises and from creating any third-party interest and for ancillary reliefs, before the Waqf Tribunal at Kolkata. 2. Learned counsel appearing for the petitioner submits that, by virtue of the impugned order, the tribunal partially rejected the application, filed by both the defendants under Order VII Rule 11 of the Code of Civil Procedure on the ground that the civil court, and not the waqf tribunal, had jurisdiction to decide the suit. Such rejection was allowed only against the defendant no. 2. 3. The first ground taken by the petitioner is that the impugned order is contradictory inasmuch as the plaint was rejected against the defendant no.2 on the ground that eviction was sought against the said defendant, whereas, in spite of a similar relief having been sought against the defendant no.1/petitioner as well, the plaint was refused to be rejected against the petitioner. 4. It is next argued, on the basis of a judgment reported at [Syed Masoon Ali vs. Abu Naim Siddique & Anr.,2018 SCCOnLineCal 8390] rendered by this court, that Section 83(1) of the Waqf Act does not vest jurisdiction in the waqf tribunal. The tribunal's jurisdiction is, inter alia, derived from Sections 6, 7 and 54 of the Waqf Act, 1995. 5. It was held in the said judgment, that the inclusion of disputes relating to eviction of a tenant in Section 83(1) of the Waqf Act, relates only to constitution of tribunals and cannot operate beyond the periphery of Sections 6 and 7 of the said Act, which do not include suits for eviction against the tenant. 6. In the said judgment, it was further laid down that the judgment reported at [ Faseela Ms case, (2014) 16 SCC 38 ] took a contrary view than that taken in Board of Wakf, West Bengal and another vs. Anis Fatma Begum and another, (2010) 14 SCC 588 . 6. In the said judgment, it was further laid down that the judgment reported at [ Faseela Ms case, (2014) 16 SCC 38 ] took a contrary view than that taken in Board of Wakf, West Bengal and another vs. Anis Fatma Begum and another, (2010) 14 SCC 588 . The earlier case of Ramesh Gobindram vs. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 was also relied on for the aforesaid propositions. 7. Learned counsel for the petitioner further relies on a judgment reported at [ Punjab Wakf Board vs. Sham Singh Harike, (2019) 4 SCC 698 ] for a similar proposition, that Section 83 of the Waqf Act relates to bar of jurisdiction of civil court and the relevant words therein are "any dispute, question or other matter relating to a wakf or wakf property", which is required by or under the Waqf Act to be determined by the tribunal. Thus, it was held, bar of jurisdiction of civil court is confined only to those matters which are required to be determined by the tribunal under the said Act. 8. By placing reliance on the said judgments, it is argued on behalf of the petitioner that the waqf tribunal ought to have rejected the plaint as a whole, since the conspectus of the suit did not fall within the periphery of the jurisdiction of the waqf tribunal, as primarily reflected in Sections 6 and 7 of the Waqf Act. 9. It is submitted on behalf of the plaintiff/opposite party no.1 that Section 3(aa) of the West Bengal Premises Tenancy Act, 1997 is not applicable to a public waqf. The present case, it is argued, pertains to a public waqf and as such, falls within the domain of the waqf tribunal. 10. Learned counsel for the opposite party no.1 relies on a judgment reported at [ Rashid Ali Molla vs. Board of Wakfs, (2019) 3 CalHN 268 (Cal)] , for the proposition that the tribunal had ample jurisdiction to take the consequential issue of eviction as well, not merely under Sections 52 or 54 of the Waqf Act but in the sense that such recovery was a fall-out of the negation of the petitioner's right pertaining to the nature of waqf. 11. 11. Learned counsel for the Board of Wakf, West Bengal, being the proforma opposite party no.2, adopts the argument of the opposite party no.1 and buttresses the same by submitting that the revisional application suffers from non-joinder of defendant no.2 in the suit, who is a necessary party. 12. It is further argued that one of the reliefs claimed in the suit, bearing Suit No. 19 of 2018, is for recovery of possession of a waqf property, as envisaged under Section 52 of the Waqf Act. 13. It is argued that, in a different suit filed before the civil court by the petitioner herein, bearing Title Suit No. 1171 of 2011, already a relief has been claimed, inter alia, for a decree of declaration that a purported letter dated February 24, 2011, for termination of the development agreement, issued by the first defendant therein (present plaintiff/opposite party no. 1) is bad in law and is not binding upon the plaintiff therein (present petitioner) and the same be delivered up and cancelled. 14. Moreover, it is argued, none of the grounds taken in the application under Order VII Rule 11 of the Code of Civil Procedure are tenable in the eye of law. 15. Learned counsel for the Board of Wakf cites the following judgments: (i) [Board of Waqf, West Bengal & Anr. vs. Fatma Begum & Anr.,2010 8 SCC 588] ; (ii) [ Ramesh Gobindram vs. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 ] ; (iii) [ Bhanwar Lal & Anr. vs. Rajasthan Board of Muslim Wakf & Ors., (2014) AIR SC 758] ; (iv) [ Rajasthan Wakf Board vs. Devki Nandan Pathak & Ors., (2017) 14 SCC 561 ] ; (v) Civil Appeal No. 8018 of 2015 [Haryana Wakf Board vs. Rajendra Kumar]. 16. Upon considering the submissions of the parties, it stares at the face that the waqf tribunal acted without jurisdiction in partially rejecting the plaint, which is deprecated by settled judicial opinion in India. 17. Moreover, since the recovery of possession claimed in the suit was against both the defendants, the tribunal passed an inherently contradictory judgment in rejecting the plaint against the defendant no.2 on such ground but retaining the plaint against the defendant no.1. 17. Moreover, since the recovery of possession claimed in the suit was against both the defendants, the tribunal passed an inherently contradictory judgment in rejecting the plaint against the defendant no.2 on such ground but retaining the plaint against the defendant no.1. The finding of the tribunal, that the defendant no.2 was a tenant, does not find support from the four corners of the plaint pleadings, which are the only pleadings to be seen in adjudicating an application under Order VII Rule 11 of the Code of Civil Procedure. 18. As far as the judgments cited by the petitioner are concerned, both of them are relevant to the context. Both the judgments, of the Supreme Court as well as this court, have dealt substantially with all the previous cases. The Supreme Court, in Punjab Wakf Board (supra), has come to the specific conclusion that Section 83 of the Waqf Act pertains to the bar of jurisdiction of civil court with regard to the matters which are required to be determined by the tribunal. 19. As such, Section 83 is circumscribed by the provisions of Sections 6, 7, 54 and other like provisions which empower the tribunal to decide certain issues. 20. In the present case, the scope of the suit revolves around the alleged cancellation of the development agreement entered into by the plaintiff with the defendant no.1. 21. If seen in proper perspective, both the substantive reliefs claimed in the suit, being recovery of possession and damages, arise from the assumption that the development agreement between the plaintiff and the defendant no.1 was duly terminated by the plaintiff/opposite party no.1. In the absence of a declaration seeking the validity of the said termination and the cancellation of the development agreement, no relief, as claimed in the suit before the tribunal, could be validly claimed. The reliefs actually claimed in the suit would at best be a consequence of the unilateral termination of the existing development agreement by the plaintiff/opposite party no. 1 being valid in the eye of law, which is a disputed question even as per the plaint, rendering the present suit ex facie bad in law in the absence of such a relief having been claimed. 22. 1 being valid in the eye of law, which is a disputed question even as per the plaint, rendering the present suit ex facie bad in law in the absence of such a relief having been claimed. 22. A declaration as to the validity of the termination of the development agreement and as to such development agreement being no longer binding on the plaintiff is thus a sine qua non for the present suit and thus has to be deemed as an implicit relief sought in the suit, from which the present revision arises. 23. Thus, it has to be deemed that those declaratory reliefs are the plinth of the suit, although not prayed for in so many words in the suit. 24. Such declaratory reliefs fall within the exclusive domain of a civil court and do not find place in Sections 6, 7, 54 or any of the similar provisions of the Waqf Act, which empower the tribunal to decide over certain issues. 25. As regards the judgment cited by the opposite party no.1, it is evident from the ratio of paragraph nos. 68 to 72 thereof, that Section 83 of the Waqf Act envisages the determination of any dispute, question or other matter relating to a waqf or waqf property and any allied question. A conjoint reading of the said section with Sections 6 and 7 of the Act, in that case, conferred the tribunal with jurisdiction to take up the principal reliefs claimed in the suit. It is evident from the aforesaid paragraphs that the principal relief actually sought in the said suit was a negation of the petitioners' rights pertaining to the nature of the waqf, which falls within the purview of Sections 6 and 7 of the Waqf Act. It was held that the actual relief (a) claimed therein was an incidental relief and the principal reliefs, pertaining to the nature of the waqf, fell within the jurisdiction of the tribunal. 26. It was held that the actual relief (a) claimed therein was an incidental relief and the principal reliefs, pertaining to the nature of the waqf, fell within the jurisdiction of the tribunal. 26. In the present case, however, the parties admit that the property is a waqf property and there is no question raised at all regarding the enrolment of the property as a waqf estate or as to the nature of the waqf, on a plain and meaningful reading of the plaint, which is the established test for deciding applications under Order VII Rule 11 of the Code of Civil Procedure, thereby taking the suit outside the purview of Sections 6 and 7 as well as any other section in the Waqf Act which empower the tribunal to take up the matters. 27. As far as the judgments cited by the Board of Wakf are concerned, the cases of Anis Fatma Begum, Ramesh Gobindram and Bhanwar Lal (supra) were all considered in the judgment of Punjab Wakf Board (supra), which is the latest judgment cited on the field. As far as the judgment reported at cited by the Board of Wakf, (2017) 14 SCC 561 the question as to whether the property was waqf or not was involved in the said case and as such, it was justified for the Supreme Court to hold that the matter fell within the jurisdiction of the waqf tribunal. In Haryana Wakf Board (supra), no ratio of law was laid down but the matter was merely remanded upon certain prima facie observations. Hence, the said judgments cannot operate as ratio decidendi in the present context. 28. In such view of the matter, Suit No. 19 of 2018, filed by the plaintiff/opposite party no.1 before the waqf tribunal, falls totally within the domain of the civil court and does not satisfy any of the provisions empowering the waqf tribunal, under the Waqf Act, to decide the matter. Hence, the bar envisaged in Section 83 of the Waqf Act is not applicable at all to the said suit, since the same does not relate to any power or authority exercisable by the waqf tribunal. 29. As regards the objection of non-joinder of the defendant no. Hence, the bar envisaged in Section 83 of the Waqf Act is not applicable at all to the said suit, since the same does not relate to any power or authority exercisable by the waqf tribunal. 29. As regards the objection of non-joinder of the defendant no. 2 to the present application under Article 227 of the Constitution, the same is devoid of merit since, in view of the plaint having already been rejected against the defendant no. 2, which portion of the impugned order has not been challenged by any of the parties, the said defendant is no longer a necessary party to the suit, and consequentially the present proceeding. 30. In the light of the above discussions, the trial court acted without jurisdiction in partially refusing the defendants' prayer for rejection of the plaint as far as the defendant no.1/petitioner was concerned. 31. Accordingly. C.O. No.2970 of 2019 is allowed on contest, thereby modifying the impugned order to the effect that the entire plaint of Suit No.19 of 2018, pending before the Waqf Tribunal at Kolkata, West Bengal, is rejected, since the waqf tribunal has no jurisdiction to entertain or decide the suit. 32. There will be no order as to costs. 33. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.