Mumtaz Begum & Ors vs Masjid Amir Ali Chobdar
2023 Latest Caselaw 4386 Cal

20.07.2023 Court No.19 Item no.19 CP C.O. No. 1714 of 2023

Mumtaz Begum & ors.

Vs.

Masjid Amir Ali Chobdar

Mr. Debanik Banerjee Mr. Steven S. Biswas ...for the Petitioners.

Mr. Nilay Sengupta Mr. Srijit Banerjee

.....for the opposite party.

The revisional application has been filed

challenging an order dated February 3, 2020, passed

by the learned Civil Judge (Junior Division), 5th

Court at Alipore in Ejectment Suit No. 7295 of 2011.

The learned court rejected the application

challenging the maintainability of the suit which was

filed by the petitioners at the stage of arguments.

The learned advocate for the petitioners

submits that Section 83(1) of the Waqf Act, 1995

(hereinafter referred to as the said Act) clearly

empowered the waqf tribunal to decide the issues

with regard to eviction of a tenant and determination

of the rights and obligations of the lessors and the

lessees in respect of a waqf property. It is further

submitted that Section 83(2) had empowered the

mutawalli of a waqf property to approach the

tribunal for any relief relating to a waqf.

According to Mr. Banerjee, learned advocate for

the petitioners, a conjoint reading of Sub-Sections (1)

and (2) of Section 83 would indicate that all matters

relating to a waqf property would be determined by

the waqf tribunal. Pointing out to the questions for

determination in Sub-Section (1) Mr. Banerjee

submits that even prior to the amendment in 2013,

'disputes', 'questions' or 'other matters' relating to a

waqf property or a waqf, were amenable to the

jurisdiction of the tribunal. Further Mr. Banerjee

referred to the provisions of Section 85 of the said

Act in support of his contention that the jurisdiction

of the civil court, was barred.

According to Mr. Banerjee, the expression

'other matters' would include within its ambit a

dispute between the mutawalli and the tenant, giving

rise to a suit for eviction of a tenant from a waqf

property.

Mr. Banerjee submits that under Sub-Section

(2) of Section 83, the fact that the mutawalli was

entitled to approach the tribunal in relation to any

issue in relation to the 'waqf', meant that the

mutawalli was empowered to even approach the

tribunal for reliefs against a tenant and to seek

recovery of possession of the tenanted property.

Hence, the order impugned must be set aside as the

learned court proceeded without jurisdiction by

entertaining the suit.

Reliance has been placed on the decision of the

Hon'ble Apex Court in the matter of Rashid Wali Beg

vs. Farid Pindari & ors, reported in (2022) 4 SCC

414. Specific reference has been made to paragraphs

58 to 69 of the said judgment.

Mr. Banerjee submits that the Hon'ble Apex

Court while deciding the question whether a suit for

perpetual injunction was maintainable before the

tribunal, answered the same in Akkode Jumayath

Palli Paripalana Committee versus Ibrahim Haji

reported in (2014) 16 SCC 65. The decision

rendered in Ramesh Gobindram versus Sugra

Humayun Mirza Waqf reported in (2010) 8 SCC

726 was distinguished in the decision of W.B. Waqf

Board versus Anis Fatma Begum reported in

(2010) 14 SCC 588. The Apex Court held that the

waqf tribunal had the jurisdiction to entertain a suit

for perpetual injunction. The Hon'ble Apex Court

differed with the view in Ramesh Gobindram (supra).

It was held that those disputes which were not

specifically provided in the Waqf Act, would be

amenable to the jurisdiction of the Waqf Tribunal as

provided in Section 83(1) of the said Act. Finally,

paragraph 65 was relied upon by Mr. Banerjee in

support of his contention that even a suit for

eviction, although not specifically mentioned to be

under the jurisdiction of the Waqf Tribunal before the

amendment, should be read into the provisions of the

statute and the ratio of the decision in Punjab Waqf

Board versus Sham Singh Harike reported in

(2019) 4 SCC 698 would apply.

Therefore, according to Mr. Banerjee, the

decision of the learned civil court, inter alia, holding

that, apart from questions relating to waqf property,

the other issues may not be tried by the tribunal,

cannot be accepted in view of the specific

observations of the Hon'ble Apex Court at paragraph

65 of the judgment in Rashid Wali Beg (supra).

It is further submitted that the decision of this

court in the matter of Syed Masoon Ali vs. Abu

Naim Siddique and anr. reported in (2019) 2 CHN

48, was no longer good law in view of the decision in

Rashid Wali Beg (supra).

Mr. Sengupta, learned advocate appearing on

behalf of the plaintiffs/opposite parties submits that

the civil suit is a pre-amendment suit. The said civil

suit was filed sometime in 2011. The suit was for

eviction. According to Mr. Sengupta, the very fact the

matters relating to 'eviction of a tenant' and

'determination of the rights and liabilities of the

lessors and lessees' was brought within the purview

of Section 83(1) of the Waqf Act, after the 2013

amendment, indicates that the provision of law prior

to such amendment did not cover disputes with

regard to eviction of tenant and rights and liabilities

of a lessor and lessee. The legislature did not act in

redundance. The legislature consciously brought

eviction of tenant within the purview of the

jurisdiction of the Waqf Tribunal by an amendment

in 2013, as the same was absent earlier.

Mr. Sengupta, relies on a decision of the

Hon'ble Apex Court in the matter of Faseela M.

versus Munnerul Islam Madrasa committee and

Another reported in (2014) 16 Supreme Court

Cases 18 and submits that the said decision was

noted with approval in Rashid Wali Beg (supra) and

the Hon'ble Apex Court did not disagree with the

decision, insofar as, the ratio of the same was

concerned. The ratio was that an eviction suit would

lie before the civil court. The court was considering in

that case a pre amendment suit filed sometime in

2010.

Having heard the learned advocates for the

respective parties, this Court finds that the suit is of

2011. The suit is for eviction of a trespasser. At the

relevant point of time 'disputes', 'questions' and

'other matters' relating to waqf and waqf property

were amenable to the jurisdiction of Waqf Tribunal.

By a subsequent amendment, matters relating to

eviction of tenants were also brought within the

purview of Section 83(1). Thus, the contention of Mr.

Banerjee that the expression 'other matters' would

include within its ambit, eviction of a tenant, is not

accepted for the simple reason that the amendment

in 2013 was incorporated to extend the jurisdiction

of the tribunal to matters relating to 'eviction' and

suits determining the rights and liabilities of lessors

and lessees. Such amendment would indicate that

these two subject matters were not within the

purview of the jurisdiction of the Waqf Tribunal, prior

to amendment in 2013. The next contention of Mr.

Banerjee is also not accepted, inasmuch as, the right

of the mutawalli to approach the Waqf Tribunal in

case of any issue relating to the 'waqf', was also

incorporated in 2013, by way of an amendment in

2013. The decision in Rashid Wali Beg (supra) was

rendered with regard to suits for a decree of

permanent injunction and mandatory injunction. In

the said decision, the Hon'ble Apex Court held that

even in case of pre-amendment suits, 'disputes',

'questions' and 'other matters' would include a

dispute with regard the encroachment of a waqf

property, giving rise to reliefs for permanent

injunction and mandatory injunction. The contention

of the parties before the Hon'ble Apex Court was that

any dispute which did not raise a question as to

whether a property was a waqf property or not, would

not be amenable to the jurisdiction of the waqf

tribunal. Such contention was rejected by the

Hon'ble Supreme Court. The Hon'ble Apex Court

found the proposition to be 'indigestible'.

According to the Hon'ble Apex Court, the relief

for permanent injunction and mandatory injunction

arose out of a dispute with regard to enjoyment of a

waqf property and/or disturbance created to

enjoyment of a waqf property. Thus, the said dispute

which touched the very subject matter, that is the

waqf property, was amenable to the jurisdiction of

the waqf tribunal, even prior to the amendment of

2013. Paragraph 64 is quoted below:-

"64. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, the lessor and lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words "any dispute, question or other matter relating to a waqf or waqf property" are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram was sought to be distinguished bot in Anis Fatma Begum and Prripal Singh and such distinction was taken not of in Akkode Jumayath Palli Paripalana Committee. Additionally, this Court in Kiran Devi, refused to apply the ratio of Ramesh Gobindram, on the ground that the suit was originally

instituted before the civil court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram."

The Hon'ble Apex Court was alive to the fact

that Section 83 had two limbs prior to amendment.

That is, there must be a contentious issue with

regard to any dispute, question or other matter

relating to a waqf or waqf property and secondly

determination of such 'dispute', 'question' or 'other

matter' relating to waqf. Thus, the Hon'ble Apex

Court held that a dispute over a waqf property with

regard to encroachment was a dispute covered under

the unamended provision of Section 83. In the same

paragraph, Their Lordships went on to hold that after

the Amendment Act 27 of 2013, even the eviction of a

tenant or the determination of the rights and

obligations of the lessor and lessee of such property,

came within the purview of the tribunal.

In my opinion, the expression "after

amendment even eviction of a tenant was brought

within the purview of the Waqf Tribunal means" that

before 2013 this issue was not within the purview of

the Waqf Tribunal.

This point was also elaborated in Faseela M.

(supra). The plaint in a pre-amendment suit was

returned by the waqf tribunal to be presented before

the civil court, thereafter the order was recalled. The

Hon'ble Apex Court had held that the suit was for

eviction against a tenant relating to a waqf property

and was exclusively triable by the civil court as the

suit was not covered by the dispute specified in

Sections 6 and 7 of the Act. The order recalling the

earlier order was set aside. The Hon'ble Apex Court

was referring to a pre-amendment suit.

Moreover, the amendment is prospective in the

nature as the Act did not provide for retrospective

effect of the amendment. This suit is for eviction of a

trespasser, prior to the 2013 amendment. The same

shall be tried by the learned Civil Court.

The decision in Syed Masoon Ali (supra) is

not discussed here, as the decision was passed with

regard to eviction of a premises tenant. The

contention of the petitioner with regard to the non-

applicability of the said judgment in view of the

decision in Rashid Wali Beg (supra), is not answered.

Under such circumstances, the order

impugned does not call for any interference. All

issues raised by the defendant before the learned

court below, shall be decided on merits and the suit

should be disposed of expeditiously.

Accordingly, the revisional application is

dismissed.

There shall be no order as to costs.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)