Delhi High Court
Waqf Allah Tala vs Nagar Panchayat, Lalkuan & ... on 1 May, 2014
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2152 of 2009 (M/S)
Waqf Allah Tala .....Petitioner
Versus
Nagar Panchayat, Lalkuan and another
..........Respondents
Present:
Mr. G.C. Kandpal, Advocate for the petitioner.
Mr. J.C. Belwal, Advocate for respondent no. 1.
Hon'ble Alok Singh, J (Oral).
Plaintiff/petitioner has filed present petition
assailing the order dated 23.8.2007, whereby learned
Trial Court was pleased to hold that in view of Section
6/7 read with Section 85 of the Waqf Act, 1995, Civil
Court has no jurisdiction to hear and decide the present
case.
Brief facts of the present case, inter alia, are that
plaintiff/petitioner filed O.S. No. 4 of 2004 in the Court of
Civil Judge (Jr. Division), Haldani seeking permanent
prohibitory injunction against the defendant/respondent,
herein, restraining the defendant/respondent, herein in
making any interference in the possession of the
plaintiff/waqf, over the suit property directly or
indirectly, by any means.
As per the contents of paragraph nos. 1, 2 and 3 of
the plaint, the then owner of the property Lala
Mohammad Banjara has created Waqf of his property.
After his death, property in question is being treated as
Waqf property, Uttar Pradesh Sunni Central Waqf Board
was pleased to register entire disputed property as Waqf
property at Sr. No. 648 in the list of waqf properties. It is
further stated that defendant is giving threat to encroach
upon the waqf property, therefore, defendant be
restrained in making any interference in the possession
of the plaintiff/waqf over the suit property by any means,
directly or indirectly.
Defendant/respondent, herein, filed written
statement stating therein that property in question is a
State property. It is further stated in paragraph no. 9 of
the written statement that defendant has no knowledge
as to whether property in question was ever registered as
a waqf property in the list prepared under the provisions
of Waqf Act. It is further stated that if property in
question is registered as a waqf property, same is wrongly
registered as a waqf property and entry in the list of waqf
properties is illegal and void.
Initially, learned Trial Court was pleased to pass ad
interim injunction in favour of the plaintiff/petitioner,
herein, however, on the pleadings of the parties, issue no.
3 was framed as to whether suit is maintainable before
the Civil Court.
Learned Trial Court, having placed reliance on
Section 7 read with Section 85 of the Waqf Act, 1995,
came to the conclusion that plaintiff ought to have
approached the Waqf Tribunal to establish its title,
therefore, suit was not maintainable before the Civil
Court. Thereafter, Revision arising therefrom was also
dismissed. Feeling Aggrieved, plaintiff/petitioner, herein,
has filed present petition.
I have heard Mr. G.C. Kandpal, learned counsel for
the plaintiff/petitioner and Mr. J.C. Belwal, learned
counsel appearing for Nagar Panchayat,
Lalkuan/respondent no. 1.
Sections 4, 5, 6 and 7 of the Waqf Act, 1995 are
being reproduced hereunder:
"4. Preliminary survey of wakf. - (1) The State
Government may, by notification in the Official Gazette,
appoint for the State a Survey Commissioner of Wakfs
and as many Additional or Assistant Survey
Commissioners of Wakfs as may be necessary for the
purpose of making a survey of wakfs existing in the State
at the date of the commencement of this Act.
[(IA) Every State Government shall maintain a list of
wakf referred to in sub-section (1) and the survey of wakf
shall be completed within a period of one year from the
date of commencement of the Wakf (Amendment) Act,
2013, in case such survey was not done before the
commencement of the Wakf (Amendment) Act, 2013;
Provided that where no Survey Commissioner of
Waqf has been appointed, a Survey Commissioner for
wakf shall be appointed within three months from the
date of such commencement.]
(2) All Additional and Assistant Survey Commissioners of
Wakfs shall perform their functions under this Act under
the general supervision and control of the Survey
Commissioner of Wakfs.
(3) The Survey Commissioner shall, after making such
inquiry as he may consider necessary, submit his report,
in respect of wakfs existing at the date of the
commencement of this Act in the State or any part
thereof, to the State Government containing the following
particulars, namely:
(a) the number of wakfs in the State showing the Shia
wakfs and Sunni wakfs separately;
(b) the nature and objects of each wakf;
(c) the gross income of the property comprised in each
wakf;
(d) the amount of land revenue, cesses, rates and
taxes payable in respect of each wakf;
(e) the expenses incurred in the realisation of the
income and the pay or other remuneration of the
mutawalli of each wakf; and
(f) such other particulars relating to each wakf as may
be prescribed.
(4) The Survey Commissioner shall, while making any
inquiry, have the same powers as are vested in a civil
court under the Code of Civil Procedure, 1908 (5 of 1908)
in respect of the following matters, namely:
(a) summoning and examining any witness;
(b) requiring the discovery and production of any
document;
(c) requisitioning any public record from any court or
office;
(d) issuing commissions for the examination of any
witness or accounts;
(e) making any local inspection or local investigation;
(f) such other matters as may be prescribed.
(5) If, during any such inquiry, any dispute arises as to
whether a particular wakf is a Shia wakf or Sunni wakf
and there are clear indications in the deed of wakf as to
its nature, the dispute shall be decided on the basis of
such deed.
(6) The State Government may, by notification in the
Official Gazette, direct the Survey Commissioner to make
a second or subsequent survey of wakf properties in the
State and the provisions of sub-sections (2), (3), (4) and
(5) shall apply to such survey as they apply to a survey
directed under sub-section (1):
Provided that no such second or subsequent
survey shall be made until the expiry of a period of
twenty years from the date on which the report in
relation to the immediately previous survey was
submitted under sub-section (3).
[Provided further that the waqf properties already
notified shall not be reviewed in subsequent survey
except where the status of such property has been
changed in accordance with the provisions of any law.]
* * *
5. Publication of list of wakf /1) On receipt of a
report under sub-section (3) of section 4, the State
Government shall forward a copy of the same to the
Board.
(2) The Board shall examine the report forwarded to it
under sub-section (1) and publish in the Official Gazette a
list of Sunni wakfs or Shia wakfs in the State, whether in
existence at the commencement of this Act or coming into
existence thereafter, to which the report relates, and
containing such other particulars as may be prescribed.
[(3) The revenue authorities shall -
(i) include the list of wakf referred to in sub-section (2),
while updating the land records; and
(ii) take into consideration the list of wakf referred to in
sub-section (2), while deciding mutation in the land
records.]
[(4) The State Government shall maintain a record of the
lists published under sub-section (2) from time to time.
* * *
6. Disputes regarding wakf : (1) If any question arises
whether a particular property specified as wakf property
in the list of wakfs is wakf 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 for
the decision of the question 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 wakfs.
[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 wakf
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 wakfs 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 in that State in relation to any
question referred to in sub-section (1).
* * *
7. Power of Tribunal to determine disputes
regarding wakf : (1) If, after the commencement of this
Act, any question arises, whether a particular property
specified as wakf property in a list of wakfs is wakf
property or not, or whether a wakf specified in such list is
a Shia wakf or a Sunni wakf, the Board or the 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 and the decision
of the Tribunal thereon shall be final:
Provided that
(a) in the case of the list of wakfs 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 wakfs; and
(b) in the case of the list of wakfs relating to any
part of the State and published at any time within a
period of one year immediately preceding the
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 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 wakf 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 proceeding.
(3) The Chief Executive Officer shall not be made a party
to any application under subsection (1).
(4) The list of wakfs 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 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 unauthorized occupation of waqf property and to
penalize such authorized 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 for each such offence.]
Having perused Sections 4, 5, 6 and 7 of the Waqf
Act, 1995, I have absolutely no hesitation to hold that the
State Government may, by notification in the Official
Gazette, appoint for the State a Survey Commissioner
and as many Additional or Assistant Survey
Commissioners as may be necessary for the purpose of
making a survey of the waqf, as the Government may
deem fit. State Government shall maintain a list of a waqf
referred to in sub-section (1) of Section 4 and survey of
waqf shall be completed within a period of one year from
the date of commencement of the Wakf (Amendment) Act,
2013. As per sub-section (6) of Section 4, the State
Government may, by notification in the Official Gazette,
direct the Survey Commissioner to make a second or
subsequent survey of waqf properties in the State and no
such second or subsequent survey shall be made until
the expiry of a period of ten years from the date on which
the report in relation to the immediately previous survey
was submitted under sub-section (3) of Section 4. Waqf
properties already notified shall not be reviewed again in
subsequent survey except where the status of such
property has been changed in accordance with the
provisions of any law. As per Section 5 of the Act, the
report of the Survey Commissioner prepared under sub-
section (3) of Section 4 shall be forwarded by the State
Government to the Waqf Board and Waqf Board after
examining the same shall forward it to the Government
within a period of six months for publication in the
Official Gazette and thereafter list of waqf property shall
be prepared and published in the official gazette.
As per Sections 6 & 7 of the Waqf Act, Board or
mutawalli or any person aggrieved from the entry in the
list about the status/nature of the waqf may approach
Waqf Tribunal for the decision of the question. In other
words, he who challenges the entry in the list of
properties of the waqf, shall have to approach Waqf
Tribunal. Such suit may be preferred before the Tribunal
within one year from the date of publication of the list of
properties of waqf. However, no suit shall be instituted
before the Tribunal in respect of the said property as
notified in second or subsequent survey pursuant to the
provision contained in sub-section (6) of Section 4.
In the present case, plaintiff in so many words in
paragraph nos. 1, 2 and 3 of the plaint is stating that the
property in question is a waqf property and, after due
enquiry/survey, is entered as a waqf property in the list
of the properties of the waqf at Sr. No. 648.
On the other hand, the defendant, in paragraph no.
9 of the written statement, first of all saying that he had
no knowledge about the registration of the property in
question as a waqf property in the list of properties of
waqf. However, he further stated that if such an entry is
standing in the list of waqf property, same is illegal.
In the case in hand, plaintiff has filed suit for
permanent prohibitory injunction placing reliance on the
list of waqf properties. Plaintiff is not challenging the
entry made in the list of waqf properties rather defendant
is challenging the entry made in the list of waqf property.
Therefore, the defendant, if so advised, may approach the
Waqf Tribunal for redressal of the grievances.
In my considered opinion, although in a case for
permanent prohibitory injunction, question of title is
involved, however, in the present case, title of the plaintiff
is prima facie proved in view of the entry made in the list
of waqf properties and list of waqf property has not been
held invalid by the Tribunal. Therefore, plaintiff may
succeed in the event of proving his possession over the
property in dispute. Defendant, if so advised, may
challenge the entries of the list of the waqf properties
before the Waqf Tribunal and thereafter possession may
be exchanged as per the direction of the competent court.
In view of the discussions made hereinabove, in my
considered opinion, finding of the learned Trial Court
that suit was not maintainable before the Civil Court
does not sustain in the eyes of law. Therefore, present
petition is allowed. Impugned order is set aside. Issue No.
3 is answered in favour of the plaintiff against the
defendant. Parties are directed to appear before the Trial
Court on 15.5.2014 for further orders. Trial Court is
requested to explore every possibility to decide the suit at
its own merit in accordance with law, preferably within
six months from 15.5.2014.
(Alok Singh, J.)
1.5.2014
Avneet
