Bombay High Court
Abdul Kadar @ Babbu Tailor vs Masjid Juma Darwaja on 5 January, 2009
Bench: B. P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 4801 OF 2008
1. Abdul Kadar @ Babbu Tailor
s/o Ismail, aged 70 years,
occupation - Tailor, r/o
Joharipura, Nagpur.
2. Mrs. Shayada Khatun,
w/o Mohd. Shakoor,
aged 40 years,
r/o Joharipura, Nagpur.
3. Mohd. Javed s/o Mohd. Shakoor,
aged 24 years, occupation -
Business, r/o Joharipura,
Nagpur.
4. Parvin Bano Najim,
aged 28 years,
r/o Omnagar, Mankapur,
Nagpur.
5. Shamim Bano d/o Mohd. Nisar,
aged 26 years, Adarsh Nagar,
Nagpur. ... PETITIONERS
Versus
Masjid Juma Darwaja,
a registered Public Trust through
its Secretary, Manzoor Mohammad
s/o Zahoor Mohammad, aged 61
years, occupation - Service,
r/o Bajariya, Nagpur. ... RESPONDENT
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2
Shri P.A. Markandeywar, Advocate for the petitioners.
Shri H.M.S. Athar, Advocate for respondent.
.....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : DECEMBER 18, 2008.
DATE OF PRONOUNCING THE JUDGMENT: JANUARY 05, 2009.
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.
JUDGE
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*GS.
