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2023 DIGILAW 1196 (CAL)

Mumtaz Begum v. Masjid Amir Ali Chobdar

2023-07-20

SHAMPA SARKAR

body2023
JUDGMENT : 1. The revisional application has been filed challenging an order dated February 3, 2020, passed by the learned Civil Judge (Junior Division), 5th Court at Alipore in Ejectment Suit No. 7295 of 2011. The learned court rejected the application challenging the maintainability of the suit which was filed by the petitioners at the stage of arguments. 2. The learned advocate for the petitioners submits that Section 83(1) of the Waqf Act, 1995 (hereinafter referred to as the said Act) clearly empowered the waqf tribunal to decide the issues with regard to eviction of a tenant and determination of the rights and obligations of the lessors and the lessees in respect of a waqf property. It is further submitted that Section 83(2) had empowered the mutawalli of a waqf property to approach the tribunal for any relief relating to a waqf. 3. According to Mr. Banerjee, learned advocate for the petitioners, a conjoint reading of Sub-Sections (1) and (2) of Section 83 would indicate that all matters relating to a waqf property would be determined by the waqf tribunal. Pointing out to the questions for determination in Sub-Section (1) Mr. Banerjee submits that even prior to the amendment in 2013, ‘disputes’, ‘questions’ or ‘other matters’ relating to a waqf property or a waqf, were amenable to the jurisdiction of the tribunal. Further Mr. Banerjee referred to the provisions of Section 85 of the said Act in support of his contention that the jurisdiction of the civil court, was barred. 4. According to Mr. Banerjee, the expression ‘other matters’ would include within its ambit a dispute between the mutawalli and the tenant, giving rise to a suit for eviction of a tenant from a waqf property. 5. Mr. Banerjee submits that under Sub-Section (2) of Section 83, the fact that the mutawalli was entitled to approach the tribunal in relation to any issue in relation to the ‘waqf’, meant that the mutawalli was empowered to even approach the tribunal for reliefs against a tenant and to seek recovery of possession of the tenanted property. Hence, the order impugned must be set aside as the learned court proceeded without jurisdiction by entertaining the suit. 6. Reliance has been placed on the decision of the Hon’ble Apex Court in the matter of Rashid Wali Beg vs. Farid Pindari & ors, reported in (2022) 4 SCC 414 . Hence, the order impugned must be set aside as the learned court proceeded without jurisdiction by entertaining the suit. 6. Reliance has been placed on the decision of the Hon’ble Apex Court in the matter of Rashid Wali Beg vs. Farid Pindari & ors, reported in (2022) 4 SCC 414 . Specific reference has been made to paragraphs 58 to 69 of the said judgment. 7. Mr. Banerjee submits that the Hon’ble Apex Court while deciding the question whether a suit for perpetual injunction was maintainable before the tribunal, answered the same in Akkode Jumayath Palli Paripalana Committee versus Ibrahim Haji reported in (2014) 16 SCC 65 . The decision rendered in Ramesh Gobindram versus Sugra Humayun Mirza Waqf reported in (2010) 8 SCC 726 was distinguished in the decision of W.B. Waqf Board versus Anis Fatma Begum reported in (2010) 14 SCC 588 . The Apex Court held that the waqf tribunal had the jurisdiction to entertain a suit for perpetual injunction. The Hon’ble Apex Court differed with the view in Ramesh Gobindram (supra). It was held that those disputes which were not specifically provided in the Waqf Act, would be amenable to the jurisdiction of the Waqf Tribunal as provided in Section 83(1) of the said Act. Finally, paragraph 65 was relied upon by Mr. Banerjee in support of his contention that even a suit for eviction, although not specifically mentioned to be under the jurisdiction of the Waqf Tribunal before the amendment, should be read into the provisions of the statute and the ratio of the decision in Punjab Waqf Board versus Sham Singh Harike reported in (2019) 4 SCC 698 would apply. 8. Therefore, according to Mr. Banerjee, the decision of the learned civil court, inter alia, holding that, apart from questions relating to waqf property, the other issues may not be tried by the tribunal, cannot be accepted in view of the specific observations of the Hon’ble Apex Court at paragraph 65 of the judgment in Rashid Wali Beg (supra). 9. It is further submitted that the decision of this court in the matter of Syed Masoon Ali vs. Abu Naim Siddique and anr. reported in (2019) 2 CHN 48, was no longer good law in view of the decision in Rashid Wali Beg (supra). 10. Mr. 9. It is further submitted that the decision of this court in the matter of Syed Masoon Ali vs. Abu Naim Siddique and anr. reported in (2019) 2 CHN 48, was no longer good law in view of the decision in Rashid Wali Beg (supra). 10. Mr. Sengupta, learned advocate appearing on behalf of the plaintiffs/opposite parties submits that the civil suit is a pre-amendment suit. The said civil suit was filed sometime in 2011. The suit was for eviction. According to Mr. Sengupta, the very fact the matters relating to ‘eviction of a tenant’ and ‘determination of the rights and liabilities of the lessors and lessees’ was brought within the purview of Section 83(1) of the Waqf Act, after the 2013 amendment, indicates that the provision of law prior to such amendment did not cover disputes with regard to eviction of tenant and rights and liabilities of a lessor and lessee. The legislature did not act in redundance. The legislature consciously brought eviction of tenant within the purview of the jurisdiction of the Waqf Tribunal by an amendment in 2013, as the same was absent earlier. 11. Mr. Sengupta, relies on a decision of the Hon’ble Apex Court in the matter of Faseela M. versus Munnerul Islam Madrasa committee and Another reported in (2014) 16 Supreme Court Cases 18 and submits that the said decision was noted with approval in Rashid Wali Beg (supra) and the Hon’ble Apex Court did not disagree with the decision, insofar as, the ratio of the same was concerned. The ratio was that an eviction suit would lie before the civil court. The court was considering in that case a pre amendment suit filed sometime in 2010. 12. Having heard the learned advocates for the respective parties, this Court finds that the suit is of 2011. The suit is for eviction of a trespasser. At the relevant point of time ‘disputes’, ‘questions’ and ‘other matters’ relating to waqf and waqf property were amenable to the jurisdiction of Waqf Tribunal. By a subsequent amendment, matters relating to eviction of tenants were also brought within the purview of Section 83(1). Thus, the contention of Mr. The suit is for eviction of a trespasser. At the relevant point of time ‘disputes’, ‘questions’ and ‘other matters’ relating to waqf and waqf property were amenable to the jurisdiction of Waqf Tribunal. By a subsequent amendment, matters relating to eviction of tenants were also brought within the purview of Section 83(1). Thus, the contention of Mr. Banerjee that the expression ‘other matters’ would include within its ambit, eviction of a tenant, is not accepted for the simple reason that the amendment in 2013 was incorporated to extend the jurisdiction of the tribunal to matters relating to ‘eviction’ and suits determining the rights and liabilities of lessors and lessees. Such amendment would indicate that these two subject matters were not within the purview of the jurisdiction of the Waqf Tribunal, prior to amendment in 2013. The next contention of Mr. Banerjee is also not accepted, inasmuch as, the right of the mutawalli to approach the Waqf Tribunal in case of any issue relating to the ‘waqf’, was also incorporated in 2013, by way of an amendment in 2013. The decision in Rashid Wali Beg (supra) was rendered with regard to suits for a decree of permanent injunction and mandatory injunction. In the said decision, the Hon’ble Apex Court held that even in case of pre-amendment suits, ‘disputes’, ‘questions’ and ‘other matters’ would include a dispute with regard the encroachment of a waqf property, giving rise to reliefs for permanent injunction and mandatory injunction. The contention of the parties before the Hon’ble Apex Court was that any dispute which did not raise a question as to whether a property was a waqf property or not, would not be amenable to the jurisdiction of the waqf tribunal. Such contention was rejected by the Hon’ble Supreme Court. The Hon’ble Apex Court found the proposition to be ‘indigestible’. 13. According to the Hon’ble Apex Court, the relief for permanent injunction and mandatory injunction arose out of a dispute with regard to enjoyment of a waqf property and/or disturbance created to enjoyment of a waqf property. Thus, the said dispute which touched the very subject matter, that is the waqf property, was amenable to the jurisdiction of the waqf tribunal, even prior to the amendment of 2013. Paragraph 64 is quoted below:- “64. Thus, the said dispute which touched the very subject matter, that is the waqf property, was amenable to the jurisdiction of the waqf tribunal, even prior to the amendment of 2013. Paragraph 64 is quoted below:- “64. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, the lessor and lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words “any dispute, question or other matter relating to a waqf or waqf property” are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram was sought to be distinguished bot in Anis Fatma Begum and Prripal Singh and such distinction was taken not of in Akkode Jumayath Palli Paripalana Committee. Additionally, this Court in Kiran Devi, refused to apply the ratio of Ramesh Gobindram, on the ground that the suit was originally instituted before the civil court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram.” 14. The Hon’ble Apex Court was alive to the fact that Section 83 had two limbs prior to amendment. That is, there must be a contentious issue with regard to any dispute, question or other matter relating to a waqf or waqf property and secondly determination of such ‘dispute’, ‘question’ or ‘other matter’ relating to waqf. Thus, the Hon’ble Apex Court held that a dispute over a waqf property with regard to encroachment was a dispute covered under the unamended provision of Section 83. In the same paragraph, Their Lordships went on to hold that after the Amendment Act 27 of 2013, even the eviction of a tenant or the determination of the rights and obligations of the lessor and lessee of such property, came within the purview of the tribunal. 15. In the same paragraph, Their Lordships went on to hold that after the Amendment Act 27 of 2013, even the eviction of a tenant or the determination of the rights and obligations of the lessor and lessee of such property, came within the purview of the tribunal. 15. In my opinion, the expression “after amendment even eviction of a tenant was brought within the purview of the Waqf Tribunal means” that before 2013 this issue was not within the purview of the Waqf Tribunal. 16. This point was also elaborated in Faseela M. (supra). The plaint in a pre-amendment suit was returned by the waqf tribunal to be presented before the civil court, thereafter the order was recalled. The Hon’ble Apex Court had held that the suit was for eviction against a tenant relating to a waqf property and was exclusively triable by the civil court as the suit was not covered by the dispute specified in Sections 6 and 7 of the Act. The order recalling the earlier order was set aside. The Hon’ble Apex Court was referring to a pre-amendment suit. 17. Moreover, the amendment is prospective in the nature as the Act did not provide for retrospective effect of the amendment. This suit is for eviction of a trespasser, prior to the 2013 amendment. The same shall be tried by the learned Civil Court. 18. The decision in Syed Masoon Ali (supra) is not discussed here, as the decision was passed with regard to eviction of a premises tenant. The contention of the petitioner with regard to the non-applicability of the said judgment in view of the decision in Rashid Wali Beg (supra), is not answered. 19. Under such circumstances, the order impugned does not call for any interference. All issues raised by the defendant before the learned court below, shall be decided on merits and the suit should be disposed of expeditiously. 20. Accordingly, the revisional application is dismissed. 21. There shall be no order as to costs. 22. Parties are to act on the server copy of this order.