Waqf No. 34-A, Ashiq Abbas Khan ... vs U.P. Sunni Central Board Of Waqfs, ...
2021 Latest Caselaw 11481 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 4
 

 
Case :- CIVIL REVISION No. - 45 of 2018
 

 
Revisionist :- Waqf No. 34-A, Ashiq Abbas Khan Thru. Khwaja Mohd. Salman
 
Opposite Party :- U.P. Sunni Central Board Of Waqfs, Lucknow And 5 Others
 
Counsel for Revisionist :- Yogesh Kesarwani,Dharmendra Kumar Bhatt,Yogesh Kesarwani
 
Counsel for Opposite Party :- Mohd. Shakeel
 

 
Hon'ble Rajan Roy,J.

Heard Shri Yogesh Kesarwani, learned counsel for revisionist, Mohd. Shakeel, learned counsel for respondents no. 2 to 6 and Shri Q.H. Rizvi, learned counsel for respondent no. 1.

This is a revision under Section 83(9) of the Waqf Act, 1995 by the Mutwalli of the Waqf challenging an order dated 20.06.2018 passed by the U.P. Waqf Tribunal, Lucknow in Execution Case No. 04 of 2001; Khawaja Raziuddin Vs. U.P. Sunni Central Waqf Board by which it has returned the records of the said execution case to the Civil Court for execution.

A Suit for specific performance of contract bearing R.S. No. 4 of 1981 was filed by the respondent in the civil court which was decreeed by the civil on 20.01.2001. Execution Case No. 4 of 2001 was filed for executing the aforesaid decree. As informed by Mohd. Shakeel, learned counsel the Board had challenged the said decree in Appeal which was rejected. Shri Yogesh Kesarwani, learned counsel for revisionist says that the revisionist- Mutwalli had challenged the judgment and decree in First Appeal which was dismissed on the ground of limiation. Thereafter, the matter was not taken any further either by the Board or by the revisionist- Mutwalli.

It is not out of place to mention that by an order dated 17.02.2018 the Court of Additional Civil Judge (Senior Division), Court No. 2, Lucknow had transferred the records of the Execution Case No. 04 of 2001 referred hereinabove to the U.P. Waqf Tribunal Lucknow on the ground that in view of the Administrative Order of the High Court issued through the Registrar General dated 13.04.2016 and thereafter an order dated 23.02.2017 issued by the District Judge on the Administrative side all matters pertaining to the Waqf are to be transferred to the Tribunal. However, while doing so the civil court did not notice not consider the provisions of the Waqf Act, 1995.

It is not out of place to mention that the respondents no. 2 to 6 or their predecessor in interest opposed the transfer of the records of the Execution Case No. 4 of 2001 from the civil court to the Waqf Tribunal as is recorded in the order dated 17.02.2018 and subsequently, another application was filed before the Waqf Tribunal that it does not have the power to execute the said decree, which has been allowed.

Now, the revisionist- Mutwalli, who was the defendant in the Suit and whose objections under Section 47 CPC filed before the Civil Court in Execution Case No. 04 of 2001, prior to its transfer to the Waqf Tribunal, have been rejected on 07.11.2008 against which a petition under Article 227 of the Constitution of India is pending before the High Court as informed by Sri Yogesh Kesarwani, learned counsel for revisionist and in which there is an interim order allegedly to the effect that any order in the execution proceedings shall abide by final decision in those proceedings under Article 227 of the Constitution of India, has challenged the aforesaid subsequent order of the Tribunal dated 20.06.2018 sending back the records to the civil court for execution.

On a perusal of the order impugned before this Court which is dated 20.06.2018 it is revealed that the Tribunal was persuaded to return back the records for execution by the civil court in view of the provisions of Section 38 CPC as also Section 83 of the Waqf Act, 1995.

Now, the question before this Court is as to whether the Judgement and Decree dated 20.01.2001 passed in Regular Suit No. 4 of 1981 is executable by the civil court or by the Waqf Tribunal. In this context it may be pointed out that the Suit was for specific performance of contract. It was alleged that the Central Sunni Waqf Board entered into a contract with the respondents no. 2 to 6 for sale of a property which was part of the Waqf in question, for various reasons, and as the Board did not perform its part of the contract, therefore, the Suit was filed for specific performance, which, as already stated, was decreed on 20.01.2001.

The Suit for specific performance was instituted by the predecessor in interest of respondents no. 2 to 6 in 1981. It is an admitted factual position that the objections of the revisionist- Mutwalli under Section 47 CPC before the civil court in Execution Case No. 04 of 2001 have already been rejected as noticed hereinabove subject of course to the proceedings under Article 277 of the Constitution of India which are said to be pending, if it is so.

According to Section 38 CPC a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. The Court also notices the provisions of Section 37 CPC explains the expression- 'Court which passed a decree' it reads as under:-

"37. Definition of Court which passed a decree. - The expression "Court which passed a decree," or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Explanation.-- The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit."

Now, the provisions of the Waqf Act, 1995 need to be considered. Judicial proceedings at the Tribunal are referred in Chapter VIII of the Waqf Act, 1995. Section 83 reads as under:-

"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 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 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;

(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.

(4)(A) 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.

(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."

Sub-section (5) of Section 83 of Waqf Act, 1995 says that 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, while trying a suit, or executing a decree or order. The nature and scope of this provision is with regard to conferring the status of a deemed civil court upon the Tribunal for certain purposes i.e. for trial of a suit or executing of a decree or order and essential and substantially it is a provision deeming it to be a civil court for certain purposes. As regards execution of the decisions of the Tribunal a separate provision is contained in Sub-section (8) of Section 83 of the Act, 1995 which says that 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. Sub-section 8 of Section 83 of the Waqf Act, 1995 leaves no doubt that the Tribunal does not itself have any power to execute any decision taken by it and is required to send the same for execution in accordance with the provisions of the Code of Civil Procedure to the civil court. If Sub-section 5 of Section 83 of the Act, 1995 is read, understood and applied as conferring powers upon the Tribunal to executive any decree or order passed by it, then, it would render Sub-section (8) superfluous and otiose. On the other hand if Sub-section (8) of Section 83 of the Waqf Act, 1995 is read and understood as it is on a simple and bare reading of it, then, it will not render Sub-section (5) of Section 83 of the Waqf Act, 1995 otiose for the reason, as already stated that, Sub-section (5) essentially deals with the issue of Tribunal being treated as deemed civil court for certain purposes and it can not be understood and applied as a provision vesting powers of execution upon the Tribunal unless it is provided elsewhere in the Act. Therefore, what Sub-section (5) of Section 83 means is that if the Tribunal otherwise has powers to execute a decree or order, then, it will be deemed to be a civil court for the said purpose also. However, if it does not have the power to execute its decision, which is to be treated as a decree under Sub-section (7) of Section 83 of the Waqf Act, 1995, then, Sub-section (5) of Section 83 of the Act, 1995 can not be pressed into the service to confer such power of execution upon the Tribunal.

Rules known as the U.P. Waqf Tribunal Rules, 2017 have been framed under Section 109 of the Waqf Act, 1995, but, the said Rules do not help the casue of the revisionist, as, they only provide for payment of Court fee on an application for exectuion as prescribed by the Court Fees Act, 1870 which obvisouly has to be sent to the civil court for execution as already discussed.

As regards the provisions of Section 37 and the explanation of the term 'Court which passed a decree' as contained in Clause- (b) thereof which says that where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit, as, the Waqf Tribunal does not have the jurisdiction in the first place to execute such decree or decision, therefore, this provision does not make any difference to the legal or factual position in this case. If the Tribunal had the jurisdiction to execute the decree, then, of course this provisions would have relevance.

Shri Yogesh Kesarwani, learned counsel for revisionist could not point out any such provision under which the Waqf Tribunal had the power to execute a decree passed by the civil court.

Based on a conjoint and harmonious reading and interpretation of the aforesaid provisions, this Court concludes that the Tribunal does not have the power to execute its decisions and has to send the same to the civil court for execution in accordance with the provisions of the Code of Civil Procedure.

Now, having said so, this Court is of the opinion that the order passed by the civil court on 17.02.2018 transferring the records of the execution case no. 04 of 2001 to the U.P. Waqf Tribunal merely on the basis of the orders of the Registrar General and the District Judge on the Administrative side which were general orders and not specifically with regard to execution of any decree without any application of judicial mind, was incorrect and unsustainable. Generally speaking no doubt after coming into force of the Waqf Act, 1995 all matters where there is a dispute relating to Waqf have to be transferred to the Waqf Tribunal for adjudication, but, in a case where the decree has been passed and execution is going on before the civil court, the question to be considered was as to whether the Tribunal has power to execute such decree which as stated hereinabove it does not have, but, this aspect of the matter was not considered. No doubt the order dated 17.02.2018 was not challenged by the respondents herein but then the question involved herein is one of the jurisdiction and merely because it was not, it can not confer jurisdiction upon the Tribunal to execute the decree dated 20.01.2001. In this view of the matter we hold that the Tribunal was justified and correct in transferring the records of Execution Case No. 4 of 1981 back to the civil court for execution by its order dated 20.06.2018, which does not suffer from any error.

Whether the civil court had jurisdiction to pass the decree dated 20.01.2001 or not was raised an objection by the revisionist-Mutawalli under Section 47 CPC before the civil court when the decree was being executed by it and the same has already been rejected, against which a petition under Article 227 of the Constitution of India is pending, therefore, subject to whatever orders have been passed in those proceedings under Article 227 of the Constitution of India or which may be passed hereinafter, this Court is of the opinion that there is no jurisdictional error whatsoever in the order dated 20.06.2018 passed by the Waqf Tribunal, as, it is the civil court which passed the decree which has the jurisdiction to execute it.

The Court asked the learned counsel as to what is the practice for the parties in the Waqf Tribunal whether the decisions taken by it are executed by it or sent to the civil court learned counsel very fairly informed the Court that they are sent to the civil court for execution but also sated that the civil court does not execute the same for some reason. The Court has now cleared the legal position, therefore, hopefully this will be adhered.

Seciton 37 will not come in the way of exectuion of decisons taken by the Waqf Tribunal which has the force of decree of a civil court under Sub-section (7) of Section 83 in view of the specific stipulation contained in Section 83(8) of the Act, 1995 which has been discussed hereinabove and the civil court will be obliged to execute such decisions of the Waqf Tribunal, if they are sent for execution.

The revision is, accordingly, dismissed.

Order Date :- 15.12.2021

R.K.P.