“The constitution of a Tribunal in terms of Section 83 of the Waqf Act is a pre-condition for invoking the provisions contained in Section 85 of the Waqf Act. If no Tribunal has been constituted, there would be no forum to determine a dispute or question relating to waqf property.” ~ HC
In a judgment clarifying the limits of Civil Court jurisdiction under the Waqf Act, the High Court of Jammu & Kashmir and Ladakh has held that in the absence of a duly constituted Waqf Tribunal under Section 83 of the Waqf Act, 1995, civil courts retain jurisdiction to adjudicate waqf-related disputes. The ruling came in the context of a revision petition filed by the J&K Waqf Board, challenging the maintainability of a civil suit concerning a rent hike dispute at a Waqf owned commercial complex in Srinagar.
The matter arose from a suit instituted by the Soura Shopkeepers Welfare Association, whose members occupy shops in the Waqf Complex, Soura, as tenants under lease agreements. The plaintiff association sought declaratory and injunctive relief against a 120% retrospective rent increase imposed by the Board. The tenants contended that the revision was contrary to the terms of their lease deeds.
The Board, as defendant, moved an application under Order 7 Rule 11 CPC before the trial court, asserting that Section 85 of the Waqf Act imposes an express bar on civil court jurisdiction in all matters pertaining to waqf property. The application was dismissed by the Civil Judge (Senior Division), Srinagar, leading to the present revision petition before the High Court.
Justice Sanjay Dhar observed while upholding the Trial Court’s view, “when we examine the scheme of the Waqf Act, particularly the provisions contained in Section 83 and 85 of the said Act in the light of the fact that the Tribunal under Section 83 of the Act has not been constituted as yet, it can be safely stated that a litigant agitating a dispute or question relating to any waqf property does not have any remedy, much less an efficacious remedy for redressal of his grievance. In these circumstances, the bar to the jurisdiction of the Civil Courts as contained in Section 85 of the Waqf Act would not come into play”.
The Court placed reliance on the settled principle in Dhulabhai and Ors. vs. State of Madhya Pradesh and Anr., which permits civil court jurisdiction where the statutory tribunal either does not exist or fails to provide an effective remedy.
The Court distinguished the precedents relied upon by the petitioners, observing that the decision in Inhabitants of Nowpora v. CEO, Auqaf was rendered in the context of the erstwhile J&K Wakf Act, 2004, at a time when a duly constituted Waqf Tribunal was in existence. As such, the bar on civil jurisdiction was correctly invoked in that case. Likewise, the judgment in Traders Association Ziyarat Baba Reshi v. UT of J&K was held to be inapposite, as it pertained to the maintainability of a writ petition under Article 226, rather than the ouster of jurisdiction under Section 85 of the Waqf Act.
In dismissing the revision petition, the Court held that the trial court had committed no legal infirmity in declining to reject the plaint. “it cannot be stated that the learned trial court, while holding the suit against the petitioners/defendants maintainable and while declining their application under Order 7 Rule 11 of CPC, has committed any illegality or that it has acted with material irregularity which would warrant interference from this Court ”, the Court stated.
However, the Court clarified that if a Waqf Tribunal is constituted during the pendency of the suit, the trial court shall transfer the matter to that forum in accordance with law.
Case Title: J&K Board for Muslim Spcified Wakfs & Specified Wakf Property vs. Soura Shopkeepers Welfar Association
Case No.: CR No.31/2024
Coram: Justice Sanjay Dhar
Advocate for Petitioner: Adv. Ruaani Ahmad Baba
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