Gujarat High Court
Mohammad Juned Abdulhamid Shaikh vs Anjuman E Bazm E Rafik Trust ... on 25 August, 2023
Bench: Bhargav D. Karia
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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
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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 ?
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MOHAMMAD JUNED ABDULHAMID SHAIKH
Versus
ANJUMAN E BAZM E RAFIK TRUST THROUGH AUTHORISED
MUTAWALLI AMIRUDDIN NASHRUDDIN SHAIKH
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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
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)
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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
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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
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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
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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
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
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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
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
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
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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
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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
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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
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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.
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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
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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
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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,
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"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
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'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,
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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
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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
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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.
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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:
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"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
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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
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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
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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
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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
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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.
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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,
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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;
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(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:
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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
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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
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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
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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.
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(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."
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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
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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;
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(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.
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(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"
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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
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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
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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.
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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.
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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.
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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
