Writ Petition No.4801 of 2008

5th January, 2009

Petitioner Counsel: Shri. P. A. MARKANDEYWAR
Respondent Counsel: Shri. H. M. S. ATHAR

Cases Cited:
Mahboob Khan Vs. Mohd. Khaja, 2005(2) CCC 449 (AP) [Para 3,9,11]
A.P. Wakf Board, Hyderabad Vs. S. Syed Ali Mulla, AIR 1985 AP 127 [Para 8]
Biharilal Agarwalla Vs. Tamizul Haque, AIR 1988 Gau. 1 [Para 12]

JUDGMENT

JUDGMENT :- By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioners - tenants challenge the judgment and decree dated 27.8.2008 delivered by District Judge - 9, Nagpur, in Regular Civil Appeal No.170 of 2007, dismissing the same. The present respondent - Wakq filed Civil Suit No.601 of 2004 in December, 2004 for recovery of arrears of rent, mesne profit and for possession under Sections 15 and 16(g)(i) of Maharashtra Rent Control Act, 1999, before Second Additional Judge, Small Causes Court, Nagpur, and the same came to be decreed on 27.2.2007.

2. Considering the nature of controversy, I have heard Shri. P. A. Markandeywar with Shri. P. M. Shrawane, learned counsel for the petitioners - tenants and Shri. Athar, learned counsel for the respondent.

3. Shri. Markandeywar, learned counsel for the petitioners has urged that the suit ought to have been filed by all Trustees in view of provisions of Sections 46, 47 and 48 of the Indian Trust Act. He further states that in view of provisions of Section 85 of the Wakf Act, 1995, the jurisdiction of any Civil Court including Small Causes Court in respect of any dispute in relation to Wakf property is barred and the suit ought to have been filed before the Tribunal. In support of his contentions, he has relied upon the judgment of the Andhra Pradesh High Court in the case of Mahboob Khan Vs. Mohd. Khaja & Ors., reported at 2005(2) CCC 449 (AP), and some other judgments.

4. Shri. Athar, learned counsel in reply has stated that the Trustees had passed a resolution which authorized the Secretary of the Trust to institute the suit and said institution or resolution of authorization was never challenged. He further relies upon the provisions of Section 6 read with Section 7 of the Wakf Act to contend that only disputes of nature specified therein are exempted from cognizance of Civil Court. In the alternative, he argues that as the present matter pertains to dispute between landlord and tenants, provisions of the Maharashtra Rent Control Act, 1999, must be read as special law and hence the suit as filed before the Small Causes Court, must be held to be maintainable. He, therefore, prays for dismissal of suit.

5. The perusal of judgment of appellate Court dated 27.8.2008 clearly reveals that the appellate Court has in para 9 of its judgment while deciding issue No.1 has found that whenever there is authorization in favour of the Secretary to institute suit, all trustees need not be joined. The resolution at Exh.25 is also looked into and it is noticed that resolution is validly proved and it was never challenged. There was no challenge to authority of Secretary to institute such suit. This finding is not demonstrated to be either erroneous or perverse.

6. The contention about bar of jurisdiction of Civil Court because of application of Wakf Act is considered in para 10 and it has been observed that as litigation is between landlord and tenants, the provisions of Wakf Act are not applicable.

7. Before me, Shri. Athar, learned counsel has pointed out that the respondent - Trust came to be registered as Wakf under the provisions of Wakf Act, 1995 on 1.2.2008. He has produced the Certificate having Sr. No.2141 and MSBW/REG/NGP/2008 dated 16.04.2008 issued by Chief Executive Officer of Maharashtra State Board of Wakfs at Aurangabad, mentioning the same. It also mentions that Wakf was earlier registered under Bombay Public Trust Act, 1950. It is, therefore, obvious that the wakf was not registered when the suit came to be filed.

8. However, the registration of wakf as such is not relevant for considering the question of bar. The provisions of Section 2 of Wakf Act clearly show that the Act applies to all wakfs whether created before, or after the commencement of the Act. In the case of A.P. Wakf Board, Hyderabad Vs. S. Syed Ali Mulla, reported at AIR 1985 AP 127, the Hon'ble Division Bench of Andhra Pradesh High Court has held that the Act applies irrespective of fact whether Wakf is registered under the Act or not. The provisions of Section being clear, it is apparent that reliance by Shri. Athar, learned counsel on registration of respondent - Trust as Wakf with effect from 1.2.2008 is not relevant for finding out whether the Civil Court has jurisdiction or no jurisdiction in view of other provisions contained in the Act.

9. Mahboob Khan Vs. Mohd. Khaja & Ors. (supra), is the judgment of the learned Single Judge of Andhra Pradesh High Court. After noticing provisions of Sections 6 and 7 and then Section 83 of Wakf Act, it has been held that Section 83 grants jurisdiction to Tribunals to entertain any dispute with regard to Wakf property. The said section with Section 85 has been construed to mean that there is no bar for Tribunals created under Wakf Act to entertain the other suits relating to Wakf. In paras 9, 11, 12 and 17, the judgments of Andhra Pradesh High Court, Kerala High Court, Madras High Court and the Hon'ble Apex court, which support the view that jurisdiction of such Tribunal is restricted to questions contemplated in Section 6(1) and Section 7(1) are mentioned. In paras 18 & 19, the judgments of Andhra Pradesh High Court taking other view and holding that in view of provisions of Section 83 which give jurisdiction to Tribunals to entertain any dispute with regard to Wakf property, the Civil Court will not have jurisdiction, are cited. Ultimately, in para 24, the learned Single Judge of the Hon'ble Andhra Pradesh High Court has observed that Wakf Act is special enactment and brought into existence to have effective adjudication of the matters in relation thereto. The Act vested Tribunal with powers of Civil Court for all practical purposes and, therefore, the Tribunal has jurisdiction to entertain the suit for perpetual injunction. As there is special forum created for adjudication of disputes relating to Wakf properties, cognizance of those disputes by the Civil court will lead to multiplicity of litigation and defeat the purpose of establishing the special Tribunals. It has also been observed that merely because Section 6 and Section 7 specifically mention the questions whether a particular property is wakf property or whether a person is entitled to be a Mutawalli of wakf, whether wakf is Shia or Sunni wakf, are to be decided under the Wakf Act, these sections do not dilute the sweep of Section 83 or Section 85 thereof. Therefore, the orders of Courts below returning the plaint to petitioners before it on the ground that Civil Court has no jurisdiction have been upheld. The suit was seeking an injunction against defendants in relation to use of burial ground. The trial Court had dismissed the suit not only on the ground of jurisdiction but also on merits. The appellate Court considered the point whether the suit property was wakf property or not and whether dispute was covered by Section 83 read with Section 6 thereof. It came to conclusion that Civil court lacked jurisdiction to entertain the suit for perpetual injunctions.

10. Section 6 of Wakf Act has heading "Disputes regarding Wakfs", its sub-section (1) stipulates that if any question arises whether a particular property specified as Wakf property or not or whether a wakf specified in such list is a Shia or Sunni Wakf, then the Board or Mutawalli of Wakf or any person interested therein, 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. Section 7 has got heading "Power of Tribunal to determine disputes regarding wakfs". Section 7(1) states that if any question arises whether a particular property specified as Wakf property in a list of Wakfs is a wakf property or not or whether a Wakf specified in such list is a Shia wakf or Sunni Wakf, the Board or Mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question. Sub-section (5) of Section 6 states that after commencement of Wakf Act, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section (1). Similarly, Section 7(5) states that 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 Wakf Act. Section 85 which prescribes Bar of jurisdiction of Civil Courts, states that no suit or other legal proceeding 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 this Act to be determined by a Tribunal. It is, therefore, apparent that this concluding part of Section 85 bars jurisdiction of Civil Court in relation to matters which are required by or under Wakf Act to be determined by a Tribunal. Section 6(1) and Section 7(1) mention such questions and those are whether particular property specified as wakf property in the list of wakf is wakf property or not and then whether wakf specified in such list is Shia Wakf or Sunni Wakf. Thus, Section 6 contemplates only these two disputes as disputes regarding wakf and Section 7(1) gives power to Tribunal to determine these two questions as disputes. Section 6(5) specifically states that no suit or other legal proceeding shall be instituted in relation to these two questions once the Wakf Act comes into force.

11. The learned Single Judge of Andhra Pradesh High Court in the judgment in Mahboob Khan Vs. Mohd. Khaja & Ors. (supra) has, however, found that earlier Division Bench of Andhra Pradesh High Court has taken a view that Section 83(1) has the effect of widening the jurisdiction of Tribunal. Section 83 deals with constitution of Tribunals etc. and it mentions that the State Government shall, by notification in Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under Wakf Act. The said power given to Government to constitute Tribunal for the purpose as mentioned above, has been interpreted to mean that any dispute, question or other matter relating to a Wakf or Wakf property can be adjudicated upon by the Tribunal. In other words, language of Section 6(1) has thus been enlarged to encompass within it such other determination. Similarly, language of Section 7(1) giving powers of Tribunal is again widened to confer upon Tribunal the power to determine the other questions as mentioned in Section 83(1). Thus, Section 83(1) has been read as independent provision conferring jurisdiction upon Tribunal to decide any dispute, question or other matter relating to a wakf or wakf property. The provisions of Section 85 which provided for bar of jurisdiction of Civil Court which again uses these words i.e. "any dispute, question or other matter relating to any wakf, wakf property or other matter", are relied upon in support. In the present matter, it is not necessary for me to consider the effect of Section 6(5) and Section 85 or then purpose of Section 83 in the scheme of Wakf Act. It is important to note that the dispute or questions triable by Tribunal under Wakf Act must arise under Wakf Act and not otherwise and it must require decision under said Act. A dispute between landlord and tenants is not arising under Wakf Act and, therefore, is not cognizable either under Section 7(1) or then under Section 83(1) thereof.

12. The suit filed by the respondent, as already mentioned above, is under the provisions of Maharashtra Rent Control Act, 1999. In Biharilal Agarwalla Vs. Tamizul Haque, reported at AIR 1988 Gau. 1, the learned Single Judge of that High Court has considered the provisions of Wakf Act (29 of 1954) and provisions of Assam Urban Areas Rent Control Act. In para 16, it has been held that Wakf Act being concerned with the question of better administration and supervision of Wakfs has to be regarded as general statute dealing with wakfs. The provisions of the Assam Rent Control Act have been regarded as specially dealing with the relationship of landlord and tenant and the rights of a landlord relating to filing of a suit for eviction of a tenant. The Hon'ble Gauhati High Court, therefore, held that Rent Control Act is a special statute on the issue before it and it was also a later statute on the subject. This position holds good even in case before me.

13. As already mentioned abive, Wakf Act has been enacted for better administration and regulation of Wakfs and to have effective control over them. The Tribunals created thereunder are for the purposes of determining questions which arise under the Wakf Act. The dispute between landlord and tenants does not arise under Wakf Act at least in present facts. The recourse to Civil remedy by the respondent Wakf is, therefore, perfectly legal. There is no merit in the contention of the petitioners - tenants that suit for their eviction ought to have been filed before Tribunal constituted under Section 83(1) of the Wakf Act.

14. In view of this discussion, I do not find any merit in the writ petition. The same is, accordingly, dismissed. However, in the circumstances of the case, there shall be no order as to costs.

Petition dismissed.