Mohammad Juned Abdulhamid Shaikh vs Anjuman E Bazm E Rafik Trust ...

                                                                                   NEUTRAL CITATION




    C/CRA/53/2022                               CAV JUDGMENT DATED: 25/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CIVIL REVISION APPLICATION NO. 53 of 2022
                                    With
                CIVIL APPLICATION (DIRECTION) NO. 1 of 2023
               In R/CIVIL REVISION APPLICATION NO. 53 of 2022
                                    With
                R/CIVIL REVISION APPLICATION NO. 192 of 2022
                                    With
                R/CIVIL REVISION APPLICATION NO. 245 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ MOHAMMAD JUNED ABDULHAMID SHAIKH Versus ANJUMAN E BAZM E RAFIK TRUST THROUGH AUTHORISED MUTAWALLI AMIRUDDIN NASHRUDDIN SHAIKH ================================================================ Appearance:

MR NAUMAN S QURESHI(10669) for the Applicant(s) No. 1,2,3,4,5 MR SHAKEEL A QURESHI(1077) for the Applicant(s) No. 1,2,3,4,5 CHINTAN H DAVE(7193) for the Opponent(s) No. 4 MR PERCY KAVINA, SENIOR ADVOCATE WITH MR JINESH H KAPADIA(5601) for the Opponent(s) No. 2,3 MR MTM HAKIM WITH MR RIZVAN SHAIKH(7146) for the Opponent(s) No. 1 MR MANISH SHAH For GUJARAT STATE WAKF BOARD MR HARDIK PANDIT For Respondent no.7 (Civil Revision Application No.192 of 2022) ========================================================== Page 1 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 25/08/2023 CAV JUDGMENT

1.Heard learned advocate Mr.Shakeel A. Qureshi for the petitioners in Civil Revision Application No. 192 of 2022 and Civil Revision Application No.53 of 2022, learned Senior Advocate Mr.Percy Kavina with learned advocate Mr.Jinesh H. Kapadia for the petitioners in Civil Revision Application No.245 of 2022 and learned advocate Mr.M.T.M.Hakim with learned advocate Mr.Rizvan Shaikh for Anjuman-e-Bazm-e-Rafik Trust, learned advocate Mr.Manish Shah for the Gujarat State Waqf Board and learned advocate Mr.Hardik Pandit for the respondent No.7 in Civil Revision Application No.192 of 2022).

2.Civil Revision Application No. 53 of 2022 is Page 2 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined filed by the petitioners-original defendant nos. 3 to 7 in Waqf Suit No. 288 of 2021 against the respondent no.1 original plaintiff and respondent nos. 2 and 3 who are original defendant nos. 1 and 2 and respondent no.4 who is original defendant no.8.

3.Feeling aggrieved by the order dated 2.12.2021 passed below Exh.5 in Waqf Suit No. 288 of 2021, the petitioners preferred the Civil Revision Application No.53 of 2022.

4.Respondent no.1 - original plaintiff filed Waqf Suit No. 288 of 2021 before the Waqf Tribunal under section 83 of the Waqf Act, 1995 (For short "the Waqf Act") against the defendants for declaration, permanent injunction and to cancel the sale deeds executed by the original defendant nos. 1 and 2 in favour of original defendant nos. 3 to 7 Page 3 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined with regard to land admeasuring 4 acres 29 gunthas situated at Survey No.989, City Survey No.2/4937 at village Khambat, District Anand.

5.The Wakf Tribunal issued notice making it returnable on 02.12.2021 by summons dated 18.11.2021.

6.An application was filed on behalf of respondent nos. 3 and 4 on 2.12.2021 to grant the adjournment. The Tribunal granted the adjournment but at the same time passed an additional order below Exh.5 on submission made by respondent no.1-plaintiff to maintain status-quo with regard to the suit property and further restrained the defendants from executing the new sale deed.

7.This Court (Coram: Hon'ble Mr. Justice Umesh Trivedi) passed the following order on Page 4 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined 21.02.2022 as the order was passed by coram non judice:

"Heard Mr. Shakeel Qureshi, learned advocate for the applicants. According to him, the impugned order dated 02.12.2021 passed by the Gujarat State Waqf Tribunal, Gandhinagar, additional order passed below Exh.5 where Exh.5 application is still pending for hearing, which was heard on 14.02.2022 for some time and it was adjourned to 04.03.2022, is by a coram non judice, and therefore, the impugned order is without jurisdiction. Hence, NOTICE returnable on 21.03.2022. Further execution, operation and implementation of the impugned order is hereby stayed. Direct service is permitted."

8.It appears that during the pendency of Civil Revision Application No. 53 of 2022, original defendant nos. 5 and 6 in Waqf Suit No. 288 of 2021 preferred an application under section 9 of the Code of Civil Procedure, 1908 read with section 83 of the Waqf Act with a prayer to dismiss Waqf Suit No. 288 of 2021 before the Waqf Tribunal.

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9.The Waqf Tribunal by order dated 22.03.2022 dismissed the application Exh.20 filed by defendant nos. 5 and 6 and at the same time again passed an order to maintain status-quo with regard to the suit property so as to avoid further litigation.

10. Being aggrieved, defendant nos. 5 and 6 of the Waqf Suit No. 288 of 2021 filed Civil Revision Application No. 192 of 2022 challenging the order passed by the Waqf Tribunal dated 22.03.2022 below application Exh.20.

11. As the Waqf Board as well as the State Government were not made parties in the Civil Revision Application No. 192 of 2022 by the petitioners - original defendant nos. 5 and 6 in Waqf Suit No. 288 of 2021, Civil Application (For Joining Party) No. 1 of 2022 was preferred.

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12. This Court (Coram : Hon'ble Mr. Justice Umesh A. Trivedi) by order dated 06.04.2022 granted ad interim relief by staying the further proceedings of Waqf Suit No. 288 of 2021.

13. Thereafter, this Court (Coram : Hon'ble Mr. Justice Aniruddha P. Mayee) passed the following order on 24.06.2022:

"1. This Court on 06.04.2022 has passed the following order:

"The revision application is filed challenging the order passed below exhibit-20 questioning the jurisdiction of the Tribunal to entertain the Suit in the form which is pleaded.

After hearing the learned advocate for the applicants and learned advocate for caveator - respondent No.1 as also going through the relevant provisions including Sections 6, 7, 40 and 83, prima-facie, it appears that this revision application requires consideration.

Hence, NOTICE returnable on 30th Page 7 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined June, 2022. Mr. Rizvan Shaikh, learned advocate waives service of notice for and on behalf of caveator - respondent No.1.

By way of ad-interim relief, the proceedings before the Gujarat State Waqf Tribunal in W.A.Q.F. Suit No.288 of 2021 is hereby stayed till then.

Direct service is permitted."

2. Today, the matter has come up for further hearing.

3. All the parties to the present application submit that the order clause 2 of the impugned order dated 22.03.2022 granting order of status quo to be maintained by the parties in respect of suit properties is beyond the jurisdiction and could not have been passed in view of the order dated 21.02.2022 passed by this Court in Civil Revision Application No.53 of 2022. It is unanimously agreed between the parties that the said clause 2 can be quashed and set aside and only clause 1 needs to be adjudicated in the present Civil Revision Application.

4. In view of the submissions made by the learned advocates for the parties, the following order is passed:

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(i) Clause 2 of the order dated 22.03.2022 ordering of status quo to be maintained by the parties is quashed and set aside as being beyond jurisdiction.

(ii) The adjudication in the present Civil Revision Application is only limited to Clause 1 of the order whereby application under Exhibit 20 has been rejected by the learned Tribunal.

(iii) Ad interim relief in terms of order dated 06.04.2022 to continue till the further orders.

ORDER IN CIVIL APPLICATION In view of the order passed in the Civil Revision Application, the present Civil Application for joining party has become infructuous and no order required to be passed. Hence, the same is disposed of as having become infructuous."

14. Original defendant nos. 1 and 2 have also filed Civil Revision Application No. 245 of 2022 challenging the order dated 22.03.2022 passed by the Waqf Tribunal below application Exh.20.

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15. Thereafter Civil Application (For Direction) No.1 of 2023 in Civil Revision Application No. 53 of 2022 was filed by the respondent no.1 - original plaintiff with a prayer to direct the opponents-petitioners to maintain status-quo of the land in question which is the subject matter of Waqf Suit No. 288 of 2021.

16. With the consent of the parties, the matters were taken up for hearing and are being disposed of by this common judgment and order.

17. As per order dated 24.06.2022 quoted hereinabove, the adjudication in Civil Revision Application Nos. 192 of 2022 and 245 of 2022 is with regard to determining the issue as to whether the suit filed by the plaintiff - Anjuman E Bazm E Rafik Trust, Khambat, Waqf registered no. B/763-Kheda is Page 10 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined maintainable before the Waqf Tribunal under the provisions of the Waqf Act, 1995 or not.

18. It is the case of the petitioners that respondent no.1 - original plaintiff had applied for registration of Waqf on 28.04.1994 before the Charity Commissioner at Nadiad by filing requisite Form in which in Column 7(A) pertaining to the list of immovable properties, it is specifically stated as "No" which shows that there was no immovable property of the Waqf nor any ownership was with Waqf. Even in column no.7(B) in the list of valuation of immovable property, no details were given. In clause no.4 of the constitution of Waqf it is stated that "To help brothers and sisters of Muslim community, to help in the rejuvenation of masjid, dargah, idgah, graveyard, madressa and kadme rasul".

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19. It was therefore, submitted by the petitioners that there were no immovable properties of the trust and the suit property was in the name of defendant nos. 1 and 2 i.e. petitioners of Civil Revision Application Nos. 53 and 245 of 2022. It is also the case of the petitioners that there is no reference regarding any acceptance or transfer of any immovable property in revenue records and therefore, the suit filed by Waqf is not maintainable before the Waqf Tribunal in view of section 83(1) and section 83(2) of the Waqf Act.

20. The petitioners have also contended that respondent no.1- original plaintiff has sated in paragraph no. 14 of the plaint that application dated 09.10.2021 for inclusion of the suit property as Wakf property was pending and the only reason for approaching the Tribunal is execution of the sale deed Page 12 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined dated 03.11.2021. It was therefore, contended that this fact clearly shows that the suit property was never mentioned in P.T.R. of the Charity Commissioner nor declared as Wakf property by Wakf Board. Merely because the contention is raised in the suit that such property was mistakenly left out would not make such property as Waqf property.

21. Reliance was placed by the petitioners on order dated 28.12.1989 passed by the Collector holding that the land in question was belonging to defendant nos. 1 and 2-

petitioners of Civil Revision Application No.192 of 2022.

22. However, the Waqf Tribunal by the impugned order dated 20.03.2022 after considering the submissions made and documentary evidence placed on record by both the sides came to the conclusion that the Page 13 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined suit is maintainable before the Tribunal. But at the same time, the Tribunal also passed the order of maintaining status-quo which is already set aside as being beyond the jurisdiction by order dated 24.06.2022 by the coordinate Bench as reproduced hereinabove.

23. Learned Senior Advocate Mr. Percy Kavina with learned advocate Mr. Jinesh H. Kapadia for the original defendant nos. 1 and 2 (petitioners of Civil Revision Application No.192 of 2022 and respondent nos. 2 and 3 of Civil Revision Application No. 53 of 2022 and Civil Revision Application No. 245 of 2022) submitted that Waqf Tribunal has no jurisdiction to entertain the suit of declaration, permanent injunction and for cancelling the sale deeds filed by the Waqf in view of provisions of section 40 of the Waqf Act. Referring to the provisions of section 40 of the Waqf Act, it was submitted Page 14 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined that Waqf Board is the first authority to decide as to whether a property is a Waqf property or not by collecting information regarding any property which the Board has reason to believe to be a Waqf property and if any question arises whether a particular property is a Waqf property or not after making such inquiry as it may deem fit, the Board has to decide such question. It was further submitted that the decision of the Board is subject to challenge before the Tribunal under section 83 of the Wakf Act.

23.1) Learned Senior Advocate Mr. Kavina therefore, submitted that Waqf Tribunal has no jurisdiction to try the suit filed by the plaintiff to declare that the suit property is a Waqf property in view of the scheme of the Waqf Act.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined 23.2) Learned Senior Advocate Mr.Kavina also referred to and relied upon the documents on record to point out that the plaintiff Waqf has never shown the suit property as Waqf property at any point of time. It was submitted that statement of witness dated 31.05.1967 recorded before the Mamlatdar in tenancy case on behalf of defendant no.1 Nawab Saheb cannot convert the personal property into Waqf property as at no point of time such property is registered as a trust property by the Charity Commissioner.

23.3) Learned Senior Advocate Mr. Kavina also referred to and relied upon sections 6 and 7 of the Waqf Act which provides for disputes relating to Auqaf and provides that if any question arises whether a particular property specified as wakf property in the list of Auqaf is wakf Page 16 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the Mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal 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.

23.4) It was submitted that the plaintiff trust/Waqf never filed any suit within one year from the list of publication of Auqaf as provided under section 5 after conducting preliminary survey of Auqaf as provided under section 4 of the ACt and therefore, the suit filed by the original plaintiff is not maintainable before the Tribunal under section 83 of the Waqf Act.

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24. Learned advocate Mr. Shakeel S. Qureshi appearing for other petitioners, i.e. original defendant nos. 3 to 7 in Waqf Suit No. 288 of 2021 who are the purchasers of the suit property, adopted the submissions of learned Senior Advocate Mr. Kavina and further submitted that the application Exh.20 ought to have been allowed by the Tribunal by holding that the suit filed by the plaintiff Waqf is not maintainable under section 83 of the Waqf Act as the suit property was never declared as Waqf property nor can it be said to be other matters relating to Waqf or Waqf property as per the provisions of section 83 of the Waqf Act.

25. Learned advocate Mr. Hardik Pandit for respondent no.7 in Civil Revision Application No. 192 of 2022 submitted that during the pedency of Waqf Suit No. 288 of 2021, Waqf Board vide its letter dated 25.11.2021 has Page 18 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined returned the application made by the plaintiff for change in P.T.R. stating that the plaintiff did not submit proof of revenue record or property card and therefore, the plaintiff could not have approached the Tribunal unless and until there is an order of Waqf Board under section 40 of the Waqf Act. It was also pointed out that the order of Deputy Collector dated 28.11.1988 as well as the order of Collector dated 28.12.1989 together with letter of Waqf Board dated 25.11.2021 makes it abundantly clear that the suit property belongs to defendant nos. 1 and 2 and the plaintiff Waqf has instituted a frivolous suit and in such circumstances, the Tribunal has no jurisdiction to hear the suit.

26. Learned advocate Mr. Manish Shah for the Waqf Board submitted that as per the provisions of section 3(r) of the Waqf Act, Page 19 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined "Waqf" is defined and as the plaintiff has claimed the suit property to be Waqf property, Wakf Board is required to decide the same issue under section 40 of the Waqf Act and by letter dated 25.11.2021 the plaintiff Waqf is directed to complete the deficit requirement in order to decide as to whether the suit property is a Waqf property or not.

27. Learned advocate Mr. M.T.M. Hakim appearing for the original plaintiff - Waqf submitted that the plaintiff has already made an application before the Waqf Board to declare the suit property as Waqf property, however, the suit filed by the plaintiff is maintainable before the Waqf Tribunal as per the provisions of sections 83(1) and 83(2) of the Waqf Act as ample material is produced before the Tribunal to demonstrate that the suit property which is land adjacent to Page 20 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined 'Kadm-e-Rasul' which is admittedly a waqf property.

27.1) Learned advocate Mr. Hakim invited the attention of the Court to the admission on behalf of the defendants with regard to the structure of 'Kadm-e-Rasul' to be a waqf property. It was therefore, submitted that the matter relating to Waqf property being the land adjacent thereto is a Waqf or not can be decided by the Tribunal. It was submitted that defendant nos.1 and 2 i.e Nawab Mirza Mohammad Zafaralikhan Naz-

May Shani and Shazada Mirza Mohammad Razaali Khan have declared the entire property of Roza Mubarak as the religious property of all Muslims of CAMBAY.

27.2) Learned advocate Mr. Hakim referred to and relied upon letter dated 20.03.1972 written by Waliahad Saheb to the President, Page 21 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined Anjuman Bazma Rafique i.e. Waqf to utilise 'Kadme Rasul-eh Mubarik's Roza' for all Muslims of Cambay. It was submitted that therefore, the question as to whether the land adjacent to 'Kadme Rasul-eh Mubarik's Roza' is Waqf or not can be decided by the Tribunal in the suit filed by the original plaintiff Waqf.

27.3) In support of his submissions, learned advocate Mr. Hakim referred to and relied upon the following decisions:

i) The State Wakf Board, Madras represented by its Secretary v. Abdul Azeez Sahib and others rendered in LPA No.111 of 1965 on 30.03.1966 by the Division Bench of Madras High Court wherein the Madras High Court has interpreted the meaning of "relating to" or "in relation to" appearing in Section 57(1) of the Wakf Act, 1954 which requires notice Page 22 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined to be issued to the Wakf Board at the cost of the parties instituting the suit or the proceedings. The said Wakf Board made an application which was rejected on the ground of limitation but the Division Bench of the Madras High Court held such an application to be maintainable and not barred by limitation in view of the provisions of section 57(1) of the Wakf Act, 1954 containing the words "relating to" or "in relation to" which are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. It was further held that they are not words of restrictive content and ought not to be so construed. The State Wafk Board has every right to advance such an application and the Court will have the jurisdiction to hear and determine the application. The fact that second suit ripened into a decree which was confirmed in Page 23 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined first and second appeals make no essential difference. Madras High Court referred to and relied upon decisions in case of Compagnie Financiee Dae Pacifique v. Peruvian Guano Co.

reported in (1882-83) 11 Q.B.D. 55 and in case of Nital Charan v. Suresh Chandra reported in 66 C.W.N. 767.

After referring to above cases, it was held as under:

"In the light of these authorities we agree with the learned Judge in his view that the second suit and decree do come within the ambit of Sec. 57(1) of the Act XXIX of 1954.

That being the case, if the application is in time, the State Wakf Board (appellant) has every right to advance such an application and the Court will have jurisdiction to hear and determine the application. The question whether the application on the present facts is time-barred or not, is of course, another matter, but we might make it clear in the present context itself, that the fact that the second suit ripened into a decree which was confirmed in first and second appeals appears to us to make no essential difference.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined The consequences of our declaring the decree as void, in terms of Sec. 57(1) may be extremely inconvenient; it may even involve further complications and disturb a state of rights that has not been challenged since the year 1952. But this consequence of the situation of law cannot be shirked. So long as the law is clear, it is our duty to give effect to the intent and purport of the section of the law as it stands, irrespective of the impact or consequence of this finding on the rights of parties."

27.4) Learned advocate Mr. Hakim submitted that the aforesaid decision of Madras High Court is confirmed by the Apex Court in case of Amazon.Com NV Investment Holdings LLC v. Future Retail Limited and others reported in (2022) 1 Supreme Court Cases 209 as under:

"62. It is well settled that the expression "in relation to", which occurs in both Section 9(1) and Section 17(1), is an expression which is comprehensive in nature, having both a direct as well as an indirect significance. Thus, in Bandekar Brothers Pvt. Ltd. v. Prasad Vassudev Keni, 2020 SCC OnLine SC 707 this Court held:

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined "24. The words "in relation to" have been the subject matter of judicial discussion in many judgments. Suffice it to say that for the present, two such judgments need to be noticed. In State Wakf Board, Madras v. Abdul Azeez Sahib, AIR 1968 Mad. 79, the expression "relating to" contained in Section 57(1) of the Wakf Act, 1954 fell for consideration before the Madras High Court. The High Court held:

"8. We have no doubt whatever that the learned Judge, (Kailasam, J.), was correct in his view that even the second suit has to be interpreted as within the scope of the words employed in S. 57(1) namely, "In every suit or proceeding relating to title to Wakf property". There is ample judicial authority for the view that such words as "relating to" or "in relation to" are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context.

                    They   are   not    words    of
                    restrictive     content     and
                    ought    not     to    be    so
                    construed. The matter has
                    come    up     for     judicial

determination in more than one instance. The case in Compagnie Financiec Dae Page 26 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined Pacifique v. Peruvian Guano Co, is of great interest, on this particular aspect and the judgment of Brett, L.J., expounds the interpretation of O. 31, R. 12 of the Rules of the Supreme Court, 1875, in the context of the phrase "material to any matter in question in the action". Brett, L.J., observed that this could both be direct as well as indirect in consequences and according to the learned Judge the test was this (at page 63): "...a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry, which may have either of these consequences.""

25. Likewise, in Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale, (1995) 2 SCC 665, the expression "Suits and proceedings between a licensor and licensee...relating to the recovery of possession" under Section 41(1) of the Presidency Small Cause Courts Act, 1882 came up for consideration before this Court. The Court held:

"14. ...The words 'relating to' are of wide import and can take in their sweep any suit in which Page 27 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined the grievance is made that the defendant is threatening to illegally recover possession from the plaintiff-licensee.

Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant to forcibly recover such possession from the plaintiff, can clearly get covered by the wide sweep of the words "relating to recovery of possession" as employed by Section 41(1)."

* * * "16. It is, therefore, obvious that the phrase "relating to recovery of possession" as found in Section 41(1) of the Small Cause Courts Act is comprehensive in nature and takes in its sweep all types of suits and proceedings which are concerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possession from the licensee-plaintiff would squarely be covered by the wide sweep of the said phrase.

Consequently, in the light of the averments in the plaints under consideration and the prayers sought for therein, on the clear language of Section 41(1), the conclusion is inevitable that these suits Page 28 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined could lie within the exclusive jurisdiction of Small Cause Court, Bombay and the City Civil Court would have no jurisdiction to entertain such suits."

(63.) As a matter of fact, the judgment of this Court in Thyssen Stahlunion Gmbh v. Steel Authority of India Ltd., (1999) 9 SCC 334, set out Section 85 of the Arbitration Act in paragraph 2 as follows:

"2. This Section 85 of the new Act we reproduce at the outset: "85. Repeal and savings.-(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.

                   (2)      Notwithstanding                         such
                   repeal,-

(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;

(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed Page 29 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined respectively to have been made or issued under this Act."

64. The expression "in relation to" appears in Section 85(2)(a). The question which arose before the Court, and which was answered by the Court, was whether enforcement proceedings would be included within the ambit of Section 85(2)(a). Holding that they did, this Court opined:

"32. ...... We are, therefore, of the opinion that it would be the provisions of the old Act that would apply to the enforcement of the award in the case of Civil Appeal No. 6036 of 1998. Any other construction on Section 85(2)(a) would only lead to confusion and hardship. This construction put by us is consistent with the wording of Section 85(2)(a) using the terms "provision" and "in relation to arbitral proceedings" which would mean that once the arbitral proceedings commenced under the old Act it would be the old Act which would apply for enforcing the award as well."

65. This passage was referred to by this Court in BCCI v. Kochi Cricket (P) Ltd., (2018) 6 SCC 287, in paragraph 69, as follows:

"69. However, Shri Viswanathan strongly relied upon the observations made in para 32 in Page 30 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined Thyssen [Thyssen Stahlunion GmbH v. SAIL, (1999) 9 SCC 334] and the judgment in Hameed Joharan v. Abdul Salam [Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573]. It is no doubt true that para 32 in Thyssen [Thyssen Stahlunion GmbH v. SAIL, (1999) 9 SCC 334] does, at first blush, support Shri Viswanathan's stand. However, this was stated in the context of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression "in relation to arbitral proceedings", which took in the entire gamut, starting from the arbitral proceedings before the Arbitral Tribunal and ending up with enforcement of the award. It was also in the context of the structure of the 1940 Act being completely different from the structure of the 1996 Act, which repealed the 1940 Act. ......" Finally, however, this Court held that Section 36, as amended by the 2015 Amendment Act, should apply to Section 34 applications filed even before the commencement of the 2015 Amendment Act.

(66.) Coupled with this, the expression "any proceedings", occurring in Section 9(1) and Section 17(1), would also be an expression comprehensive enough to take in enforcement proceedings. The expression "any" has been construed by some of the judgments of this Court.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined Thus, in Shri Balaganesan Metals v. M.N. Shanmugham Chetty, (1987) 2 SCC 707, in context of Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, this Court held as follows: "18. In construing Section 10(3)(c) it is pertinent to note that the words used are "any tenant" and not "a tenant" who can be called upon to vacate the portion in his occupation. The word "any" has the following meaning:

"some; one of many; an indefinite number. One indiscriminately or whatever kind or quantity.

Word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject-matter of the statute.

It is often synonymous with 'either', 'every' or 'all'. Its generality may be restricted by the context;" (Black's Law Dictionary, 5th Ed.)

19. Unless the legislature had intended that both classes of tenants can be asked to vacate by the Rent Controller for providing the landlord additional accommodation, be it for residential or non-residential purposes, it would not have used the word "any" instead of using the letter "a" to denote a tenant."

67. Similarly, in Lucknow Development Authority v. M.K. Gupta, Page 32 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined (1994) 1 SCC 243, this Court, while construing the word "service" under the Consumer Protection Act, 1986, held as follows:

"4. What is the meaning of the word 'service'? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property. The answer to all this shall depend on understanding of the word 'service'. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends on the context in which it has been used in an enactment. Clause (o) of the definition section defines it as under:

"2(1)(o) 'service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other Page 33 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined information, but does not include the rendering of any service free of charge or under a contract of personal service;" It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means 'one or some or all'. In Black's Law Dictionary it is explained thus, "word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject-matter of the statute". The use of the word 'any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. ..."

68. In Union of India v. A.B. Shah, (1996) 8 SCC 540, this Court, while examining the purport of the expression "at any time" contained in one of the conditions set by the Director General of Coal Mines in exercise of his powers under the Coal Mines Regulations, 1957 read with the Mines Act, 1952, held as follows:

"12. If we look into Conditions 3 and 6 with the object and purpose of the Act in mind, it Page 34 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined has to be held that these conditions are not only relatable to what was required at the commencement of depillaring process, but the unstowing for the required length must exist always. The expression "at any time" finding place in Condition 6 has to mean, in the context in which it has been used, "at any point of time", the effect of which is that the required length must be maintained all the time. The accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word 'any' has a diversity of meaning and in Black's Law Dictionary it has been stated that this word may be employed to indicate 'all' or 'every', and its meaning will depend "upon the context and subject-matter of the statute". A reference to what has been stated in Stroud's Judicial Dictionary Vol. I, is revealing inasmuch as the import of the word 'any' has been explained from pp. 145 to 153 of the 4th Edn., a perusal of which shows it has different connotations depending primarily on the subject-matter of the statute and the context of its Page 35 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined use. A Bench of this Court in Lucknow Development Authority v. M.K. Gupta [(1994) 1 SCC 243], gave a very wide meaning to this word finding place in Section 2(o) of the Consumer Protection Act, 1986 defining 'service'. (See para 4)"

(69) Properly so read, the expressions "in relation to" and "any proceedings" would include the power to enforce orders that are made under Section 9(1), and are not limited to incidental powers to make interim orders, as was suggested by Mr. Viswanathan. Thus, if an order under Section 9(1) is flouted by any party, proceedings for enforcement of the same are available to the court making such orders under Section 9(1). These powers are, therefore, traceable directly to Section 9(1) of the Act - which then takes us to the Code of Civil Procedure. Thus, an order made under Order XXXIX Rule 2-A, in enforcement of an order made under Section 9, would also be referable to Section 9(1) of the Arbitration Act."

27.5) Reliance was placed on the decision in case of Board of Wakf, West Bengal and another v. Anis Fatma Begum and Another reported in (2010) 14 Supreme Court Cases 588 wherein dispute related to Waqf and the Apex Court held as under :

"10 Thus, the Wakf Tribunal can Page 36 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

(11.) Under Section 83 (5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.

(12.) We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness Page 37 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates."

27.6) Learned advocate Mr. Hakim submitted that similar issue came up before the Apex Court in case of Rajasthan Wakf Board v.

Devki Nandan Pathak and others reported in (2017) 14 Supreme Court Cases 561 with regard to property called "Kauria Wali Masjid" situated in Town Hindaun, Tehsil Hindaun Barpara District Karauli, Rajasthan. Respondent no.5 in the suit Page 38 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined filed before the Tribunal was claiming to be the owner of the land situated adjacent to "Kauri Wali" Masjid" property measuring 37ft x 34 ft which was sold to respondent nos.1 to 4 by sale deed and such sale gave rise to disputes between Wakf Board and the other respondents. The Wakf filed a suit against the respondents and the Wakf Board before the Rajasthan Wakf Tribunal claiming that the suit land was Wakf property and respondent no.5 who was an individual and unconnected with the affairs of the Wakf has no right title or interest to sell the suit land to anyone. In this context, the Apex Court held as under :

"8.) Respondent Nos.1 to 5 filed the written statement and denied the claim set up by respondent No.6 in the plaint. According to them, the suit land was neither the Wakf property and nor a part of any Wakf property. It was alleged that respondent No.5 being the owner of the suit land had every right to sell the suit land to respondent Nos.1 to 4 and which he did by executing the sale deed. It was also alleged that the Tribunal has no Page 39 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined jurisdiction to try the suit and the remedy of the plaintiff is to file civil suit before the Civil Court for claiming appropriate reliefs. The Tribunal, on the basis of the pleadings, framed the following issues for adjudication:

"1. Whether the plaintiff is entitled to file the case?

2. Whether the property in suit is the part of Masjid Kauria Wali?

3. Whether this Board has no jurisdiction to entertain this case?

                    4.   Whether         the     case        is       time
                    barred?

5. To what relief the plaintiff is entitled?"

25) In other words, we are of the view that the Tribunal does have jurisdiction to decide the question arising in the suit filed by respondent No.6 and, therefore, the Tribunal rightly tried the suit on merits. The reasons are not far to seek.

26) In the first place, the main question involved in the suit was whether the suit land is a Wakf property or not. Plaintiff says that it is a Wakf property whereas the defendants say that it is not the Wakf property but it is their self property. This question, in our opinion, can be decided only by the Tribunal and not by the Civil Court as has been decided by this Court consistently in Ramesh Gobindram vs. Sugra Hamayun Mirza Waqf, (2010) 8 SCC 726 and Bhanwar Lal & Anr.

Vs. Rajasthan Board of Muslim Wakf & Ors., (2014) 16 SCC 51). Second, once the property is declared to be a Wakf Page 40 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act. One cannot dispute that the matters falling under Sections 51 and 52 of the Act are also required to be decided by the Tribunal and hence jurisdiction of the Civil Court to decide such matters is also barred by virtue of provisions contained in Section 85 of the Act."

27.7) Learned advocate Mr. Hakim referred to and relied upon the decision of Apex Court in case of Rashid Wali Bed v. Farid Pindari and others reported in 2021 SCC OnLine SC 1003 wherein the Hon'ble Supreme Court has considered the Amendment Act 27 of 2013 to hold that express language of the statute in section 83(1) even as it stood before the amendment provided for the determination by the Tribunal of any dispute, question or other matter (i) relating to a waqf and (ii) relating to a waqf property and therefore, to say that Page 41 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, was not approved and ultimately it was held that the tenants of Wakf property can approach the Tribunal under section 83(1) of the Act.

28. In order to consider as to whether the suit filed by the plaintiff respondent no.1 is maintainable before the Tribunal under section 83 of the Wakf Act, it would be necessary to refer to various relevant provisions of the Wakf Act which reads as under:

"(3)(r) "waqf" means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;

(iii) "grants", including mashrat- ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and "waqif" means any person making such dedication.

6. Disputes regarding (auqaf) (1) If any question arises whether a particular property specified as '[waqf] property in the list of '[auqaf] is '[waqf] property or not or whether a '[waqf] specified in such list is a Shia '[waqf] or Sunni [waqf], the Board or the mutawalli of the [waqf] or [any person aggrieved] 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:

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined 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 sub-section (6) of section 4.

(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any [waqf] shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

(4) The list of '[auqaf] shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court Page 44 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined in that State in relation to any question referred to in sub-section (1).

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 '[auqaf] is [waqf] property or not, or whether a '[waqf] specified in such list is a Shia [waqf] or a Sunni [waqf], the Board or the mutawalli of the [waqf], or 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 [auqaf] relating to any part of the State and published at any time within a period of one year immediately preceding the Page 45 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined 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 proceedings.

(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 Page 46 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined 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 unauthorised occupation of waqf property and to penalise such unauthorised 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.]

40. Decision if a property is '[waqf] property.-(1) The Board may itself collect information regarding any property which it has reason to believe to be [waqf] property and if any question arises whether a particular property is [waqf] property or not or whether a '[waqf] is a Sunni waqf] or a Shia [waqf] it may, after making such inquiry as it may deem fit, decide the question.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined (2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.

(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is waqf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is [waqf] property, call upon the trust or society, as the case may be, either to register such property under this Act as [waqf] property or show cause why such property should not be so registered:

Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.

(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal."

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined

83. Constitution of Tribunals, etc.-

[(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.] (2) Any mutawalli or person interested in a [waqf] or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the [waqf].

(3) Where any application made under sub-section (1) relates to any [waqf] property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the [waqf] actually and voluntarily resides, carries on business or personally works for gain, and, where any such Page 49 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:

Provided that the State Government may, if it is of opinion that it is expedient in the interest of the [waqf] or any other person interested in the waqf] or the '[waqf] property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such waqf] or [waqf] property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred, shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.

[(4) Every Tribunal shall consist of-

(a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman;

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member, and the appointment of every such person shall be made either by name or by designation.] (4A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed.] (5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.

(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined (8) The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."

29. On plain reading of section 3 of the definition of 'Waqf' which means the permanent dedication by any person of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable which includes a waqf by user, etc. and definition of "grants"

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined would include the properties which are being used for benefit of Muslims of Cambay in facts of the case since 1960 onwards.

30. In facts of the present case, whether the property is a waqf property or not has to be determined. Therefore, the question would arise whether Waqf Board under section 40 of the Act has jurisdiction to take such a decision or the declaration is required to be made by the Tribunal by entertaining the suit filed by the Waqf-plaintiff.

31. Section 40 of the Waqf Act empowers the Waqf Board to collect information regarding any property which it has reason to believe to be waqf property and after making an inquiry to decide as to whether a particular property is a Waqf property or not.

Therefore, at first blush it would appear that it is only the Wakf Board which can take Page 53 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined a decision as to whether the property is a Wakf property or not and such decision would be subject to revision before the Waqf Tribunal under section 83 of the Waqf Act.

But in the facts of the present case, it is not in dispute that the plaintiff is a waqf and whether the suit property which is a land adjacent to waqf property is a waqf property or not can be raised before the Tribunal as it pertains to any disputed question or other matters "relating to" the Waqf property.

32. The Division Bench of Madras High Court in case of The State Wakf Board, Madras represented by its Secretary (supra), as well as the Apex Court in case of Amazon.Com NV Investment Holdings LLC (supra) has examined the words "relating to" or "in relation to"

in detail as enumerated hereinabove and therefore, the decision of the Apex Court in case of Rajasthan Wakf Board (surpa) would Page 54 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023 NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined squarely apply as held by the Apex Court that question when the plaintiff says the suit property is Waqf property whereas defendant says that it is not a Waqf property but it is a self property can be decided only by the Tribunal and not by the Civil Court as has been decided by the Apex Court consistently in case of Ramesh Gobindram (Dead) Through Lrs. v. Sugra Humayun Mirza Wakf reported in (2010) 8 Supreme Court Cases 726 and in case of Bhanwar Lal and another v.Rajasthan Board of Muslim Wakf and others reported in (2014) 16 Supreme Court Cases 51. Therefore, it is only the Tribunal which can decide the issue as to whether the suit property is a Waqf property and as such the Tribunal has rightly held that the suit filed by the plaintiff-waqf would be maintainable before the Tribunal only by rejecting application Exh.20 filed by the defendant nos. 5 and 6 in Waqf Suit No. 288/2021.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined

33. With regard to the issue as to grant of injunction during the pendency of the suit is wide open before the Tribunal as the application Exh.5 is still pending to be heard on merits.

34. Therefore, issue as to grant of interim relief is kept open and the Tribunal is required to decide the same by giving an opportunity of hearing to both the sides.

35. In view of foregoing reasons, all the Civil Revision Applications are dismissed.

Interim relief granted vide order dated 06.04.2022 is vacated and the Tribunal is directed to hear application Exh.5 in Waqf Suit No. 288 of 2021 at the earliest preferably within three months from the date of receipt of this order by giving an opportunity of hearing to all the parties.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined Rule is discharged.

36. It is clarified that the Tribunal shall not be influenced by any observations made by this Court while deciding either the application Exh.5 or suit being Waqf Suit No. 288 of 2021.

(BHARGAV D. KARIA, J) At this stage, learned advocate Mr. Shakeel Qureshi for the petitioners in Civil Revision Application Nos.53 and 192 of 2022 and learned advocate Mr. Jinesh H. Kapadia for the petitioners in Civil Revision Application No.245 of 2022 submitted that Waqf Tribunal is not functioning for want of members at present and, therefore, pray to continue the stay granted by this Court vide order dated 06.04.2022 with regard to further proceedings of Waqf Suit No. 288 of 2021.

NEUTRAL CITATION C/CRA/53/2022 CAV JUDGMENT DATED: 25/08/2023 undefined Considering the above submissions, direction given in paragraph no.35 of the order is modified. Civil Revision Applications are ordered to be dismissed. Interim order dated 06.04.2022 granting further stay of the proceedings of Waqf Suit No. 288 of 2021 is ordered to be continued for further eight weeks from today.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 58 of 58 Downloaded on : Sun Sep 17 02:30:08 IST 2023