WAQF ACT, 1995 – Ss. 6, 7, 83 & 85 – Jurisdiction of Waqf Tribunal – Scope and extent – Whether Tribunal can adjudicate every dispute relating to waqf or waqf property – Necessity of inclusion in “List of Auqaf” or registration under Act – Ouster of Civil Court jurisdiction – Interpretation of S.83 – “under this Act” – Waqf by user – Suit for injunction simpliciter before Tribunal – Maintainability – CODE OF CIVIL PROCEDURE, 1908 – O.VII R.11.
Respondent instituted suit before Waqf Tribunal seeking perpetual injunction restraining defendants from obstructing offering of prayers in premises situated in residential apartment complex contending that portion of ground floor had become Mosque and waqf by user since year 2008 – Defendants disputed existence of Mosque and contended property neither notified in “List of Auqaf” under Section 5 nor registered under Section 37 of Waqf Act – Application under Order VII Rule 11 CPC filed contending Tribunal lacked jurisdiction was rejected by Tribunal and High Court – Whether Tribunal possessed jurisdiction to entertain suit.
Held : Jurisdiction of Waqf Tribunal constituted under Section 83 Waqf Act is not plenary or all-encompassing. Ouster of Civil Court jurisdiction under Section 85 is confined only to matters expressly or necessarily required by Act to be determined by Tribunal. Civil Court jurisdiction cannot be excluded by implication beyond precise statutory conferment.
Sections 6 and 7 confer jurisdiction upon Tribunal to determine whether particular property is waqf property or whether waqf is Sunni or Shia only when such property is included in “List of Auqaf” under Section 5 or register maintained under Section 37. Amendment of 2013 expanding definition of “List of Auqaf” to include registered waqfs under Section 37 is clarificatory and retrospective in operation.
Section 83 is merely enabling provision authorising constitution of Tribunal for adjudication of disputes “under this Act”. Words “under this Act” are crucial and restrict jurisdiction of Tribunal only to disputes for which substantive provisions of Act confer adjudicatory power. Section 83 by itself does not create independent or expansive jurisdiction over every dispute relating to waqf or waqf property.
Interpretation adopted in Ramesh Gobindram v. Sugra Humayun Mirza Wakf correctly lays down law that exclusion of Civil Court jurisdiction is confined to matters specifically entrusted to Tribunal under Act. Contrary expansive interpretation adopted in W.B. Wakf Board v. Anis Fatma Begum and followed in subsequent decisions does not correctly interpret Section 83.
Tribunal can decide disputes whether property is waqf property only where property already has statutory status under Act through inclusion in notified list or registration. Mere assertion of “waqf by user” without such statutory recognition does not automatically confer jurisdiction upon Tribunal.
In present case, plaint itself disclosed that alleged Mosque came into existence only in year 2008 and there was no averment that subject property was included in notified “List of Auqaf” or registered under Section 37. Therefore, dispute regarding existence and status of alleged waqf property was beyond jurisdiction of Tribunal.
Suit for injunction simpliciter before Waqf Tribunal without prior determination or statutory recognition of property as waqf property was not maintainable. Plaint deserved rejection under Order VII Rule 11 CPC for want of jurisdiction.
Ramesh Gobindram v. Sugra Humayun Mirza Wakf, affirmed;
Rashid Wali Beg v. Farid Pindari, explained and disagreed with on interpretation of Section 83;
W.B. Wakf Board v. Anis Fatma Begum, held not correctly interpreting Section 83;
Punjab Wakf Board v. Sham Singh Harike; Bhanwar Lal v. Rajasthan Board of Muslim Wakf; Faseela M. v. Munnerul Islam Madrasa Committee, relied on.
(Paras 12 to 18, 28 to 46)
ANALYSIS OF FACTS AND LAW
Supreme Court undertook exhaustive reconsideration of conflicting precedents regarding jurisdiction of Waqf Tribunal under Sections 83 and 85 of Waqf Act, 1995.
Core controversy before Court was:
whether Section 83 itself confers broad plenary jurisdiction upon Waqf Tribunal to adjudicate every dispute relating to waqf or waqf property.
Court traced judicial conflict beginning from:
-
Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
which adopted restrictive interpretation,
and later decisions like: - W.B. Wakf Board v. Anis Fatma Begum,
-
Rashid Wali Beg v. Farid Pindari,
which interpreted Section 83 expansively.
Supreme Court reaffirmed foundational principle that:
- exclusion of Civil Court jurisdiction cannot be readily inferred,
- and statutory tribunals possess only specifically conferred jurisdiction.
Court closely analysed language of Sections 6, 7, 83 and 85 and held:
- Sections 6 and 7 specifically empower Tribunal to decide disputes regarding whether property is waqf property only if property is included in statutory “List of Auqaf” or registered under Act;
- Section 85 bars Civil Court jurisdiction only regarding matters “required by or under this Act” to be determined by Tribunal.
Most significant aspect of judgment was reinterpretation of Section 83.
Court emphasised that earlier expansive decisions omitted crucial words:
“under this Act”
occurring in Section 83(1).
According to Supreme Court:
- Section 83 merely provides machinery for constitution of Tribunal;
- it does not itself create substantive jurisdiction;
- substantive jurisdiction must independently arise from other provisions of Act.
Court therefore held that Section 83 cannot be treated as omnibus source of jurisdiction covering all disputes remotely connected with waqf property.
On facts, Court found:
- alleged Mosque was claimed to have come into existence only in 2008,
- no notification under Section 5 existed,
- no registration under Section 37 existed,
- and therefore property lacked statutory recognition as waqf property under Act.
Consequently, Tribunal lacked jurisdiction even to entertain injunction suit based merely on assertion of “waqf by user.”
Supreme Court also clarified that 2013 amendment expanding definition of “List of Auqaf” to include registered waqfs under Section 37 was clarificatory and retrospective. However, even after amendment, Tribunal jurisdiction remains confined to properties having statutory status under Act.
Accordingly, plaint was liable to rejection under Order VII Rule 11 CPC.
RATIO
Jurisdiction of Waqf Tribunal under Sections 83 and 85 of Waqf Act is not plenary but confined only to disputes specifically required by Act to be determined by Tribunal. Section 83 is merely enabling provision for constitution of Tribunal and does not itself confer substantive adjudicatory jurisdiction. Tribunal can determine disputes regarding whether property is waqf property only where such property is included in “List of Auqaf” under Section 5 or registered under Section 37. Mere assertion of “waqf by user” without statutory recognition under Act does not confer jurisdiction upon Waqf Tribunal, and in such cases Civil Court jurisdiction is not barred.
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