This article is written by Harsh Gupta from the School of law, HILSR, Jamia Hamdard. This is an exhaustive article which deals with the maintainability issue if any dispute arises regarding the question of property whether wakf or not.
Table of Contents
Introduction
A dispute concerning whether a particular property is waqf property or not, or whether a certain wakf is a Shia waqf or Sunni waqf, can be referred to a tribunal by any person aggrieved by it. An action against the Survey Commissioner shall not be brought against him. There is one year of limitation after the publication of the list of wakf before an institution of suit may be brought. A tribunal’s decision in such cases is conclusive.
Dispute regarding Wakf property
It was observed by the Supreme Court in the case Faseela M v. Munnerul Islam Madrasa Committee and Others (1948) that Sections 6 and 7 of the Waqf Act, 1995, as amended by Act 27 of 2013, only allow the Wakf Tribunal to resolve disputes regarding wakf. This case involves the Wakf Tribunal before which respondents, appellants, set the argument that respondents are the landlord and appellants are tenants of the subject property. The subject property is described as wakf property. There was no dispute about the subject matter being waqf property, according to the appellant. In addition, he questioned the jurisdiction of the Wakf Tribunal in deciding the dispute between the parties.
The court was thus asked to decide whether or not the landlord’s eviction suit against the tenant relating to wakf property was triable by the Civil Court or fell under the exclusive jurisdiction of the Wakf Tribunal.
As referenced in Ramesh Gobind Ram (Dead) through L.Rs v. Sugra Humayun Mirza Wakf, (2010), the court considered Sections 6(1), 6(5), 7(1), 7(5), 83, 85, and few provisions of the Act and explained the jurisdiction of the Wakf Tribunal vis-a-vis Civil Court. Despite the fact that Sections 6 and 7 of the Act cover evictions against tenants of a Wakf property, the court held that a lawsuit for eviction must be brought in the Civil Court. The Supreme Court ruled that a suit for eviction against the tenant in relation to a wakf property must be brought in the Civil Court since such a suit is not covered by the dispute specified in Sections 6 and 7 of the Act.
In the case Lal Shah Baba Dargah Trust and Others v. Magnum Developers and Others (2015), the petitioner challenges the order passed by the single judge of the Bombay High Court, holding that the wakf suit brought by the petitioner before a member of the Wakf Tribunal was unmaintainable, and directing it to be returned and presented to the Civil Court for adjudication.
The plaintiff in the instant case is Lalshah Baba Dargah Trust, which filed suit before the one member Maharashtra Wakf Tribunal, Aurangabad, claiming the suit property is wakf land held by a trust, and asking for a perpetual injunction restraining the defendants from developing the suit plot, from raising higher construction, from creating third-party interests, from changing the character of suit properties as well as from handing over possession of the flat constructed therein. The tribunal also heard a separate application for a temporary injunction, which was partially granted, and an interim injunction was granted in those terms.
In response to the order passed by the tribunal granting the injunction, the defendants filed a civil revision before the High Court under Section 83(4) of the Wakf Act, 1995. Additionally, the defendant challenged the jurisdiction of the one member tribunal on the ground that the functioning of the Tribunal constituted under Section 83(4) of the 1995 Act ceased to have jurisdiction after the 1995 Act was amended by Wakf (Amendment) Act of 2013 which came into force from 1 January 2013 the suit before the one-man tribunal was commenced.
Having heard the parties, the High Court granted the civil revision application and set aside the order of the Tribunal that it was without jurisdiction. In the impugned order, however, the High Court did not interfere with the interim order.
The Supreme Court observed that the intent of the Parliament in substituting Section 83(4) is not that a tribunal disappears or ceases to exist until a three-member tribunal is established. The intention to introduce a new sub-section (4) in Section 83 is nothing other than to improve the Constitution of the tribunal, and the earlier subsection and the substituted subsection are complementary to each other. The Supreme Court held that the High Court committed a grave error of law in ruling that even without a new notification establishing a three-member tribunal, one another tribunal ceases to exist after the 2013 Amendment Act came into force. Further, the High Court erred in law by directing the Civil Court to decide the dispute in respect of wakf property.
A recent case where Supreme Court held that suit for eviction is maintainable before Wakf tribunal
Observations
In the case of Telangana State Wakf Board v. Mohamed Muzafar (2015), the Supreme Court ruled that an eviction suit could be brought before a Wakf Tribunal if the tenant disputed that the property was a wakf. Consequently, the Wakf Tribunal is the only one that can decide whether a piece of property is wakf-owned.
Facts of the case
This case pertains to the Telangana State Wakf Board filing a suit with the Andhra Pradesh State Wakf Tribunal, Hyderabad, seeking eviction of the defendant from the property owned by the Wakf institution. In his written statement, the defendant, inter alia, asserted that the suit property was not a Wakf property. The Wakf Tribunal ruled that the suit schedule properties belong to the Wakf institution and ordered the defendant to vacate the suit schedule properties. According to the High Court, following its decision in Ramesh Gobindram v. Sugra Humayun Mirza Wakf (2010), the plaintiff cannot maintain the suit before the Wakf Tribunal and can avail of the remedy available according to law.
The Wakf Board argued in an appeal that in Board of Wakf, West Bengal and Another v. Anis Fatma Begum and Another (2010) and the case of Haryana Wakf Board v. Mahesh Kumar (2013), the court held that the determination of whether a property is Wakf property or not lies exclusively with the Wakf Tribunal after the passage of the Wakf Act.
As was argued in the case of Punjab Wakf Board v. Sham Singh Harike (2019), a bar to the Civil Court’s jurisdiction over the provisions of the Wakf Act exists when the question of whether a particular matter in the suit or proceeding must be decided by the tribunal under any provision of the Wakf Act, 1995, and if the answer is in the affirmative the court is barred from exercising jurisdiction.
Arguments raised
As well, the defendant relied on Faseela M v. Munnerul Islam Madrasa Committee to argue that even if the property is contested as not being a Wakf property and if it is a case seeking eviction of the tenant, the suit must be brought before the Civil Court and the Wakf Tribunal has no jurisdiction.
In addressing these opposing contentions, the bench comprising Justices Hemant Gupta and AS Bopanna noticed a judgment of three-judge bench in Kiran Devi v. Bihar State Sunni Wakf Board – “In the case at hand, the plaintiff filed the affidavit before the competent Civil Court, whereas the defendants, the Wakf Board, contended the matter should be decided by the Wakf Tribunal. After filing an application, they sought transfer of the case to the Wakf Tribunal, which the Civil Court ordered and the High Court also upheld in its review. The plaintiff, after successfully arguing his claim to the Wakf Tribunal, lost his writ petition, wherein the plaintiff prevailed. In that case, the board raised the contention that the tribunal lacked jurisdiction based on Ramesh Gobindram and the appeal before this court. Accordingly, this court held that the judgment of the Wakf Tribunal cannot be viewed as lacking jurisdiction in the circumstances of the case”, it noted.
Findings of the case
As a result, it was observed that the facts and circumstances in each case must be considered against the backdrop of the legal framework contained in the Wakf Act to determine jurisdiction. During this case, the Wakf Board terminated the tenancy of the defendant for the scheduled property after issuing a notice to the defendant. On the other hand, the defendant denied that the property in question belonged to the Wakf cult in his reply notice.
“Under the said circumstances, the instant case cannot be considered an admitted case of the property being Wakf property, because the respondent directly disputed it in his reply notice. Because of that, the appellants, who were of the impression that the first issue to be established was that the property in question was Wakf property, which could be considered by the Wakf Tribunal, had filed the suit before the Wakf Tribunal.”, the bench observed.
The decision of the court
It was noted that a similar defence was taken in the written statement as well. Accordingly, the issue had been referred to the Wakf Tribunal based on the defence raised by the respondent, and the Wakf Tribunal had rendered its ruling based on the evidence presented to it.
“As a result, the Wakf Tribunal has the authority to decide the question posed as an issue in this lawsuit. Furthermore, as noted earlier, the instant case developed on the basis of the evidence available, and the court concluded that the property in question is Wakf property and accordingly ruled”, the bench said while restoring the judgment of the tribunal.
Conclusion
In the recent case questioning the maintainability of filing a suit for eviction before the Wakf Tribunal was discussed and it was held that the Wakf Tribunal has the authority to decide the dispute regarding wakf property.
References
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