* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 262-64/2005
Reserved on:26.10.2010
Decided on:.02.11.2010
MOHD. NAUMAN KHAN & ORS. ..... Appellants
Through: Mr.M.A.Niyazi, Mr.Manish Kumar,
Advs.
versus
ABDUL MOEED & ORS. ..... Respondents
Through: Mr. Ravinder Sethi, Sr.Adv. with
Mr.Simran Mehta, Mr.Puneet
Sharma, Advs.
CORAM:
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG,J
1. This appeal raises a substantial question of law as to whether the
Civil Courts have jurisdiction under Section 92 of the Code of Civil
Procedure (CPC) to direct framing of scheme with respect to a
management of the Wakf Property despite existence of the Wakf Board
and Wakf Tribunal in the State.
2. To appreciate the controversy, it would be appropriate to take
note of the prayer made by the appellant, who filed an application
under Section 92 of the CPC for grant of leave for instituting a suit
under Section 92 of the CPC against Mr.Abdul Moeed, Chief Mutawali,
Hamdard (Wakf) Lab, Mr. Hammad Ahmed, Senior Mutawali, Hamdard
(Wakf) Lab, Mr.Abdul Majid, s/o Mr.Abdul Moeed, Mutawali, Hamdard
(Wakf) Lab., Mr.Asad Moeed, S/o Mr.Abdul Moeed, Mutawali, Hamdard
(Wakf) Lab., Mr.Hamid Ahmed, s/o Mr.Hammad Ahmed, Mutawali,
Hamdard (Wakf) Lab, Delhi Wakf Board, through Executive Officer,
Delhi Wakf Board, Near Bachhon ka Ghar, Daryaganj, New Delhi-110
002.
3. In the application filed under Section 92 of the CPC besides
alleging various acts of mismanagement on the part of the respondents
FAO 262-64/2005 Page 1 of 17
No.1 to 5, it was pleaded that the entire facts and circumstances as
stated above clearly establish that respondents No.1 to 5 in blatant
breach of trust/wakf are acting detrimental to the interest of Wakf and
defeating the very purpose of the wakf for which it was created. The
mal-administration, malfeasance, malappliction of funds, siphoning of
funds by illegally selling the wakf properties warrants immediate and
urgent indulgence of this Court and appropriate directions of this Court
are deemed necessary for the proper administration of Hamdard (Wakf)
Lab. Therefore, directions of this Court in the nature of removal of
present mutawallis, appointment of new mutawallis, direction of
accounts and enquiries of Hamdard (Wakf) Lab regarding mal-
administration, malfeasance, misapplication and siphoning of funds
and wakf and appropriate directions to the Delhi Wakf Board for taking
all actions as per the provisions of the Wakf Act, 1995 (for short „the
Act‟) are also required in the facts and circumstances of the case.
Furthermore, a scheme is also necessary to be settled by this Court for
achieving the object and purpose of Hamdard (Wakf) Lab in the larger
interest of the public/beneficiaries/Trustees of the Hamdard (Wakf)
Lab.
4. With the aforesaid assertions, following prayers were made in the
application:
In the premises set out hereinabove, it is, prayed to
this Court that in the interest of justice, equity and
fair play, this Court may:-
(a) grant leave to the applicants to institute suit
under Section 92 CPC against the
abovementioned defendants for seeking the relief
as mentioned in para No.15 above.
(b) Pass any other or further order as this Hon‟ble
Court may deem fit and proper in the facts and
circumstances of the case.
5. The application was contested by the respondents by filing reply
who raised preliminary objections to the grant of leave by submitting
that the petition as framed is not maintainable in view of the fact that
the petitioners have alleged that Hamdard Dawakhana (Wakf) is a Wakf
within the meaning of Wakf Act, though this is not conceded/admitted
FAO 262-64/2005 Page 2 of 17
by the respondents. The petition as such is barred by Section 85 of the
Wakf Act, 1995.
6. The learned ADJ dismissed the application under Section 92 of
the CPC moved by the appellant by passing the impugned order dated
30.07.2005.
7. In the impugned order after taking note of Section 94 of the Act
read with Section 83(2) and Section 85 of the Act it was held that in
view of the special law available to deal with certain situations and
aspects for monitoring the maintenance of wakf property and the
management thereof, Civil Courts would have no jurisdiction to frame
scheme as prayed for which is the purpose of moving the application
under Section 92 of the CPC. It would be appropriate at this stage to
take note of the provisions contained under Section 94, 83(2) and 85 of
the Act which reads as under:-
“94. Power to make application to the Tribunal in case of
failure of mutawalli to discharge his duties.- (1) Where a
mutawalli is under an obligation to perform any act which is
recognised by Muslim law as pious, religious or charitable
and the mutawalli fails to perform such act, the Board may
apply to the Tribunal for an order directing the mutawalli to
pay to the Board or to any person authorised by the Board in
this behalf, the amount necessary for the performance of
such act.
(2) Where a mutawalli is under an obligation to discharge
any other duties imposed on him under the Wakf and the
mutawalli willfully fails to discharge such duties, the Board
or any person interested in the Wakf may make application
to the Tribunal and the Tribunal may pass such order
thereon as it thinks fit.”
8. Section 83(2) of the Act which is relevant is also reproduced
hereunder:
“83. Constitution of Tribunals, etc.,-
(1)……
(2) Any mutawalli person interested in a Wakf 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 Wakf.”
FAO 262-64/2005 Page 3 of 17
9. Section 85 of the Wakf Act which excludes the jurisdiction of the
Civil Court is also being reproduced hereunder:
“85. Bar of jurisdiction of Civil Courts.-No suit or other
legal proceeding shall lie in any Civil Court in respect of any
dispute, question or other matter relating to any Wakf, Wakf
property or other matter which is required by or under this
Act to be determined by a Tribunal.”
10. Learned counsel for the appellant submits that the impugned
order cannot be sustained in law for the reason that looking into the
scheme of the Act, the powers which are with the Civil Court under
Section 92 of CPC are not available to the Wakf Tribunal which is in
fact an appellate forum. Relying upon two judgments delivered by the
Supreme Court i.e. M.P.Wakf Board Vs. Subhan Shah (Dead) By Lrs. &
Ors. (2006) 10 SCC 696 and Ramesh Gobindram (Dead) Through LRs Vs.
Sugra Humayun Mirza Wakf 2010 STPL (Web) 679 Supreme Court, it was
pleaded that the aforesaid judgments have interpreted the issue with
regard to the applicability of the Civil law in situations where the Act
does not deal with the situations.
11. The respondents while relying upon their objections taken in the
reply to the applications under Section 92 with a view to support the
stand taken even before the ADJ have also relied upon the judgment
delivered by the Apex Court in M.P.Wakf Board Vs. Subhan Shah (Dead)
By Lrs. & Ors. (Supra). It would be relevant to take note of paragraphs
27, 28 and 29 of this judgment which explains the position:
“27. The Wakf Act is a self-contained code. Section 32 of the
1995 Act provides for powers and functions of the Board.
Sub-section (2) of Section 32 of the 1995 Act enumerates the
functions of the Board without prejudice to the generality of
the power contained in Sub-section (1) thereof. Clauses (d)
and (e) of Sub-section (2) of Section 32 of the 1995 Act reads
as under:
32.(2)(d) to settle schemes of management for a wakf:
Provided that no such settlement shall be made without
giving the parties affected an opportunity of being heard;
(e) to direct-
(i) the utilisation of the surplus income of a wakf consistent
with the objects of a wakf;
FAO 262-64/2005 Page 4 of 17
(ii) in what manner the income of a wakf, the object of which
are not evident from any written instrument, shall be
utilized;
(iii) in any case where any object of wakf has ceased to exist
or has become incapable of achievement, that so much of the
income of the wakf as was previously applied to that object
shall be applied to any other object, which shall be similar,
or nearly similar or to the original object or for the benefit of
the poor or for the purpose of promotion of knowledge and
learning in the Muslim community:
Provided that no direction shall be given under this clause
without giving the parties affected an opportunity of being
heard.
Explanation.-For the purposes of this clause, the powers of
the Board shall be exercised-
(i) in the case of a Sunni wakf, by the Sunni members of the
Board only; and
(ii) in the case of a Shia wakf, by the Shia members of the
Board only:
Provided that where having regard to the number of the
Sunni or Shia members in the Board and other
circumstances, it appears to the Board that the power
should not be exercised by such members only, it may co-opt
such other Muslims being Sunnis or Shias, as the case may
be, as it thinks fit, to be temporary members of the Board for
exercising its powers under this clause;
28. The Tribunal had been constituted for the purposes
mentioned in Section 83 of the 1995 Act. It is an
adjudicatory body. Its decision is final and binding but then
it could not usurp the jurisdiction of the Board. Our
attention has not been drawn to any provision which
empowers the Tribunal to frame a scheme. In absence of any
power vested in the Tribunal, the Tribunal ought to have left
the said function to the Board which is statutorily
empowered therefore. Where a statute creates different
authorities to exercise their respective functions thereunder,
each of such authority must exercise the functions within
the four corners of the statute.
29. It is trite that when a procedure has been laid down
the authority must act strictly in terms thereof. [See Taylor
v. Taylor (1875) 1 Ch D 426″
12. Relying upon the aforesaid judgment, it is submitted on behalf of
the appellant that the wakf board constituted under the Wakf Act
though is eligible to frame the scheme but would not exclude the
FAO 262-64/2005 Page 5 of 17
jurisdiction of the Civil Court inasmuch as in the absence of the wakf
board refusing or not acting on the complaints, the remedy only would
be available to approach the Civil Court because even the Wakf
Tribunal will be not having jurisdiction to frame a scheme as prayed for
by the appellant.
13. Relying upon the other judgment delivered in the case of Ramesh
Gobindram (Dead) Through LRs Vs. Sugra Humayun Mirza Wakf (supra),
it is pleaded that in areas where the wakf tribunal does not have any
jurisdiction, the Civil Courts will have jurisdiction. The relevant
paragraphs relied upon by the respondents are reproduced hereunder:
“4. Wakfs and matters relating thereto were for a long time
governed by the Wakf Act, 1954. The need for a fresh
legislation on the subject was, however, felt because of the
deficiencies noticed in the working of the said earlier
enactment especially those governing the Wakf Boards, their
power of superintendence and control over the management
of individual wakfs. Repeated amendments to the 1954 Act,
having failed to provide effective answers to the questions
that kept arising for consideration, the Parliament had to
bring a comprehensive legislation in the form of Wakf Act
1995 for better administration of wakfs and matters
connected therewith or incidental thereto. Chapter I of the
1995 Act deals with Preliminaries like definitions, title,
extent and commencement and application of this Act.
Chapter II provides for preliminary survey of wakfs,
publication of list of wakfs, disputes regarding wakfs and
also the powers of the Tribunal to determine such disputes.
Chapter III deals with Central Wakf Council while Chapter IV
deals with establishment of Boards and their functions.
Chapter V, VI and VII regulate the registration of Wakfs and
maintenance of accounts thereof and the finances of the
Wakf Board. Chapter VIII, with which the controversy at
hand is more intimately connected deals with judicial
proceedings and, inter alia, provides for constitution of
tribunals and adjudication of disputes by them as well as
exclusion of jurisdiction of Civil Courts. Chapter IX is a
miscellaneous chapter that confers power on the Central
Government to regulate the secular activities of wakfs and
empowers the State Government to issue directions apart
from other provisions like establishment and reorganization
and establishment of boards.
5. Before we take up the core issue whether the jurisdiction
of Civil Court to entertain and adjudicate upon disputes
regarding eviction of wakf property stands excluded under
the Wakf Act we may briefly outline the approach that the
FAO 262-64/2005 Page 6 of 17
Courts have to adopt while dealing with such questions. The
well-settled rule in this regard is that the Civil Courts have
the jurisdiction to try all suits of civil nature except those
entertainment whereof is expressly or impliedly barred. The
jurisdiction of Civil Courts to try suits of civil nature is very
expansive. Any statue which excludes such jurisdiction is,
therefore, an exception to the general rule that all disputes
shall be triable by a Civil Court. Any such exception cannot
be readily inferred by the Courts. The Court would, lean in
favour of a construction that would uphold the retention of
jurisdiction of the Civil Courts and shift the onus of proof to
the party that asserts that Civil Court’s jurisdiction is
ousted.
6. Even in cases where the statute accords finality to the
orders passed by the Tribunals, the Court will have to see
whether the Tribunal has the power to grant the reliefs
which the Civil Courts would normally grant in suits filed
before them. If the answer is in negative exclusion of the
Civil Courts jurisdiction would not be ordinarily inferred. In
Rajasthan SRTC v. Bal Mukund Bairwa (2):(2009) 4 SCC
299, a three-Judge Bench of this Court observed:
There is a presumption that a civil court has jurisdiction.
Ouster of civil court’s jurisdiction is not to be readily
inferred. A person taking a plea contra must establish the
same. Even in a case where jurisdiction of a civil court is
sought to be barred under a statute, the civil court can
exercise its jurisdiction in respect of some matters
particularly when the statutory authority or tribunal acts
without jurisdiction.
7. ………
8. Let us now see whether the respondent-Wakf Board who
claims exclusion of jurisdiction of Civil Court has discharged
the onus that lay upon it. Section 6 of the Act which bears
direct relevance to that question may at this stage be
extracted:
Section 6. Disputes regarding wakfs.-
(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.
FAO 262-64/2005 Page 7 of 17
Explanation-For the purposes of this section and Section 7,
the expression “any person interested therein”, shall, in
relation to any property specified as wakf property in the list
of wakfs published after the commencement of this Act, shall
include also every person who, though not interested in the
wakf concerned, is interested in such property and to whom
a reasonable opportunity had been afforded to represent his
case by notice served on him in that behalf during the
course of the relevant inquiry under 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 of 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).
9. A plain reading of Sub-section (5) of Section 6 (supra)
would show that the Civil Court’s jurisdiction to entertain
any suit or other proceedings stands specifically excluded in
relation to any question referred to in Sub-section (1). The
exclusion it is evident from the language employed is not
absolute or all pervasive. It is limited to the adjudication of
the question (a) whether a particular property specified as
wakf property in the list of wakfs is or is not a wakf property,
and (b) 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 in the wakf is competent to institute a
suit in a Tribunal for a decision on the above question or
questions, which decision shall then be final provided that
no such suit can be entertained by the Tribunal after the
expiry of one year from the date of the publication of the list
of wakfs.
10. We may at this stage refer to Section 7 of the Act which
provides for the forum for determination of questions
referred to therein and arising after the commencement of
this Act. What is important is that the questions referred to
in Section 7(1) are the very same questions that are referred
to in Section 6(1) with the only difference that Section 7(1)
FAO 262-64/2005 Page 8 of 17
refer to the said questions arising after the commencement
of the Act. Section 7 is extracted below:
Section 7. Power of Tribunal to determine disputes regarding
wakfs.-
(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 a 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 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 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 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 Sub-section (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
FAO 262-64/2005 Page 9 of 17
proceeding or of any application for revision or review arising
out of such suit, proceeding or appeal, as the case may be.
11. Second proviso to Section 7(1) accords finality to the
judgments of the Civil Court in suits instituted before such
commencement. Sub-section (5) to Section 7 excludes from
the jurisdiction of the Tribunal any dispute which is the
subject matter of a suit in a Civil Court instituted before the
commencement of the Act.
12. From a conjoint reading of the provisions of Sections 6
and 7 (supra) it is clear that the jurisdiction to determine
whether or not a property is a wakf property or whether a
wakf is a Shia wakf or a Sunni wakf rests entirely with the
Tribunal and no suit or other proceeding can be instituted or
commenced in a Civil Court in relation to any such question
after the commencement of the Act. What is noteworthy is
that under Section 6 read with Section 7 (supra) the
institution of the Civil Court is barred only in regard to
questions that are specifically enumerated therein. The bar
is not complete so as to extend to other questions that may
arise in relation to the wakf property.”
14. From the discussion held above, it is apparent that the Court
was, in fact, discussing the cases of eviction to be sought for in which
adequate provisions are not in existence in the Act and specific
provisions like Delhi Rent Control Act are in existence and which would
govern the field.
15. It would also be relevant to take note of para 21-23 of the
aforesaid judgment which reads as under:
“21. There is, in our view, nothing in Section 83 to suggest
that it pushes the exclusion of the jurisdiction of the Civil
Courts extends beyond what has been provided for in
Section 6(5), Section 7 and Section 85 of the Act. It simply
empowers the Government to constitute a Tribunal or
Tribunals for determination of any dispute, question of other
matter relating to a wakf or wakf property which does not
ipso facto mean that the jurisdiction of the Civil Courts
stands completely excluded by reasons of such
establishment. It is noteworthy that the expression “for the
determination of any dispute, question or other matter
relating to a wakf or wakf property” appearing in Section
83(1) also appears in Section 85 of the Act. Section 85 does
not, however, exclude the jurisdiction of the Civil Courts in
respect of any or every question or disputes only because the
same relates to a wakf or a wakf property. Section 85 in
terms provides that the jurisdiction of the Civil Court shall
stand excluded in relation to only such matters as areFAO 262-64/2005 Page 10 of 17
required by or under this Act to be determined by the
Tribunal. The crucial question that shall have to be
answered in every case where a plea regarding exclusion of
the jurisdiction of the Civil Court is raised is whether the
Tribunal is under the Act or the Rules required to deal with
the matter sought to be brought before a Civil Court. If it is
not, the jurisdiction of the Civil Court is not excluded. But if
the Tribunal is required to decide the matter the jurisdiction
of the Civil Court would stand excluded.
22. In the cases at hand the Act does not provide for any
proceedings before the Tribunal for determination of a
dispute concerning the eviction of a tenant in occupation of a
wakf property or the rights and obligations of the lessor and
the lessees of such property. A suit seeking eviction of the
tenants from what is admittedly wakf property could,
therefore, be filed only before the Civil Court and not before
the Tribunal. The contrary view expressed by the Tribunal
and the High Court of Andhra Pradesh is not, therefore,
legally sound. So also the view taken by the High Courts of
Rajasthan, Madhya Pradesh, Kerala and Punjab and
Haryana in the decisions referred to earlier do not declare
the law correctly and shall to the extent they run counter to
what we have said hereinabove stand overruled. The view
taken by the High Courts of Allahabad, Karnataka, Madras
and Bombay is, however, affirmed.
23. In the result these appeals succeed and are hereby
allowed. The impugned orders passed by the High Court and
those passed by the Wakf Tribunal shall stand set aside and
the suit filed by the respondent-Wakf Board for the eviction
of the appellants dismissed leaving the parties to bear their
own costs. We make it clear that this order shall not prevent
the Wakf Board from instituting, if so advised, appropriate
civil action before the competent Civil Court for redress in
accordance with law. No costs.”
16. Thus, it is clear that the exclusion of the jurisdiction of the Civil
Court does not extend beyond what has been provided for in Section
6(5), Section 7 and Section 85 of the Act inasmuch as these provisions
simply empower the Government to constitute a Tribunal or Tribunals
for determination of any dispute, question of other matters relating to
Wakf property which does not ipso facto mean that the jurisdiction of
the civil Court stands completely excluded by one of such
establishments.
17. Section 85 of the Act provides that the jurisdiction of the Civil
Court shall stand excluded in relation to only such matters and are
FAO 262-64/2005 Page 11 of 17
required by or under this Act to be determined by the Tribunal. The
crucial question which will have to be answered in every case would be
whether a plea regarding exclusion of jurisdiction of civil Court raised is
whether the Tribunal under the Act or Rules is required to deal with a
matter sought to be brought before the civil Court. If it is not, the
jurisdiction of the civil court is not excluded. If the Tribunal is deciding
the matter, the jurisdiction of the civil Court stands excluded.
18. Applying the aforesaid, principles to the facts of this case, it
becomes essential to take note of Section 94 (supra) of the Act. A
perusal of Section 94 of the Act as stated above goes to show that where
Mutawali is under an obligation to perform any act which is recognised
by Muslim law as pious, religious or charitable and if the mutawalis fail
to perform such act, the board may apply to the Tribunal for an order
directing mutawalli to pay to the Board or any person authorized by the
Board in this behalf the amount necessary for the performance of such
act and further if mutawalli willfully fails to discharge duties, the Board
or such person interested in the wakf may make an application to the
Tribunal and the Tribunal may pass such order thereon as it thinks fit.
19. Section 85 of the Act bars proceedings in any civil court in
respect of any dispute, question or that matter relating to any wakf,
wakf property or other matter which is required by or under this Act to
be determined by a Tribunal.
20. Section 63 and 64 of the Act deals with powers of appointment
and removal of mutawallis and which provides that the Board may
appoint any person as mutawalli for such period and on such
conditions as it may think fit and may also remove the mutawalli from
his office. Section 63 and 64 of the Act read as under:
“63. Power to appoint mutawallis in certain cases.-When
there is a vacancy in the office of the mutawalli of a Wakf
and there is no one to be appointed under the terms of the
deed of the Wakf, or where the right of any person to act as
mutawalli is disputed, the board may appoint any person to
act as mutawalli for such period and on such conditions as
it may think fit.
64. Removal of Mutawalli.- (1) Notwithstanding anything
contained in any other law or the deed of Wakf, the Board
may remove a mutawalli from his office if such mutawalli-
FAO 262-64/2005 Page 12 of 17
(a) has been convicted more than once of an offence
punishable under section 61; or
(b) has been convicted of any offence of criminal breach of
trust or any other offence involving moral turpitude, and
such conviction has not been reversed and he has not been
granted full pardon with respect to such offence; or
(c) is of unsound mind or is suffering from other mental or
physical defect or infirmity which would render him unfit to
perform the functions and discharge the duties of a
mutawalli; or
(d) is an undischarged insolvent; or
(e) is proved to be addicted to drinking liquor or other
spirituous preparations, or is addicted to the taking of any
narcotic drugs; or
(f) is employed as paid legal practitioner on behalf of, or
against, the Wakf; or
(g) has failed, without reasonable excuse, to maintain regular
accounts for two consecutive years or has failed to submit,
in two consecutive years, the yearly statement of accounts,
as required by sub-section (2) of section 46; or
(h) is interested, directly or indirectly, in a subsisting lease in
respect of any Wakf property, or in any contract made with,
or any work being done for, the Wakf or is in arrears in
respect of any sum due by him to such Wakf; or
(i) continuously neglects his duties or commits any
misfeasance , malfeasance, misapplication of funds or
breach of trust in relation to the Wakf or in respect of any
money or other Wakf property; or
(j) wilfully and persistently disobeys the lawful orders made
by the Central Government, State Government, Board under
any provision of this Act or rule or order made thereunder;
(k) misappropriates or fraudulently deals with the property of
the Wakf.
(2) The removal of a person from the office of the mutawalli
shall not affect his personal rights, if any, in respect of the
Wakf property either as a beneficiary or in any other
capacity or his right, if any, as a sajjadanashin.
(3) No action shall be taken by the Board under sub-section
(1), unless it has held an inquiry into the matter in a
prescribed manner and the decision has been taken by a
majority of not less than two-thirds of the members of the
Board.
(4) A mutawalli who is aggrieved by an order passed
under any of the clauses (c) to (j) of sub-section (1), may
within one month from the date of the receipt by him of
the order, appeal against the order to the Tribunal and
the decision of the Tribunal on such appeal shall be final.
(5) Where any inquiry under sub-section (3) is proposed, or
commenced, against any mutawalli, the Board may, if it is of
FAO 262-64/2005 Page 13 of 17
opinion that it is necessary so to do in the interest of the
Wakf, by an order suspend such mutawalli until the
conclusion of the inquiry:
Provided that no suspension for a period exceeding ten days
shall be made except after giving the mutawalli a reasonable
opportunity of being heard against the proposed action.
(6) Where any appeal is filed by the mutawalli to the Tribunal
under sub-section (4), the Board may make an application to
the Tribunal for the appointment of a receiver to manage the
Wakf pending the decision of the appeal, and where such an
application is made, the Tribunal shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5
of 1908), appoint a suitable person as receiver to manage the
Wakf and direct the receiver so appointed to ensure that the
customary or religious rights of the mutawalli and of the
Wakf are safeguarded.
(7) Where a mutawalli has been removed from his office
under sub-section (1), the Board may, by order, direct the
mutawalli to deliver possession of the Wakf property to the
Board or any officer duly authorised in this behalf or to any
person or committee appointed to act as the mutawalli of the
Wakf property.
(8) A mutawalli of a Wakf removed from his office under this
section shall not be eligible for reappointment as a mutawalli
of that Wakf for a period of five years from the date of such
removal.”
21. Section 65 of the Act reads as under:
“65. Assumption of direct management of certain Wakfs
by the Board.- (1) Where no suitable person is available for
appointment as a mutawalli of a Wakf, or where the Board is
satisfied, for reasons to be recorded by it in writing, that the
filling up of the vacancy in the office of a mutawalli is
prejudicial to the interests of the Wakf, the Board may, by
notification in the Official Gazette, assume direct
management of the Wakf for such period or periods, not
exceeding five years in the aggregate, as may be specified in
the notification.”
22. It would also be relevant to take note of the Sections 66 and 67 of
the Act which read as under:
“66. Powers of appointment and removal of mutawalli
when to be exercised by the State Government.-
Whenever a deed of Wakf or any decree or order of a Court of
any scheme of management of any Wakf provides that a
Court or any authority other than a Board may appoint or
FAO 262-64/2005 Page 14 of 17
remove a mutawalli or settle or modify such scheme of
management or otherwise exercise superintendence over the
Wakf, then notwithstanding anything contained in such deed
of Wakf, decree, order or scheme, such powers aforesaid
shall be exercisable by the State Government:
Provided that where a Board has been established, the State
Government shall consult the Board before exercising such
powers.
67. Supervision and supersession of committee of
Management.- (1) Whenever the supervision or management
of a Wakf is vested in any committee appointed by the Wakf,
then, notwithstanding anything contained in this Act, such
committee shall continue to function until it is superseded
by the Board or until the expiry of its term as may be
specified by the Wakf, whichever is earlier:
Provided that such committee shall function under the
direction, control and supervision of the Board and abide by
such directions as the Board may issue from time to time:
Provided further that if the Board is satisfied that any
scheme for the management of a Wakf by a committee is
inconsistent with any provision of this Act or of any rule
made thereunder or with the directions of the Wakif, it may,
at any time, modify the scheme in such manner as may be
necessary to bring it in conformity with the directions of the
Wakif or of the provisions of this Act and the rules made
thereunder.”
23. Section 69 of the Act reads as under:
“69. Power of Board to frame scheme for administration
of Wakf.-(1) Whenever the Board is satisfied, whether on its
own motion or on the application of not less than five
persons interested in any Wakf, that it is necessary or
desirable to frame a scheme for the proper administration of
the Wakf , after consultation with the mutawalli or the
applicant, in the prescribed manner.
(2) A scheme framed under sub-section (1) may provide for
the removal of the mutawalli of the Wakf holding office as
such immediately before the date on which the scheme
comes into force:
Provided that where any such scheme provides for the
removal of any hereditary mutawalli, the scheme shall also
provide for the appointment of the person next in hereditary
succession to the mutawalli so removed, as one of the
members of the committee appointed for the proper
administration of the wakf.
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(3) Every order made under sub-section (2) shall be
published in the prescribed manner, and, on such
publication shall be final and binding on the mutawalli, and
all persons interested in the Wakf:
Provided that any person aggrieved by an order made under
this section may, within sixty days from the date of the
order, prefer an appeal to the Tribunal and after hearing
such appeal, the Tribunal may confirm, reverse or modify the
order:
Provided further that the Tribunal shall have no power to
stay the operation of the order made under this section.
(4) The Board may, at any time by an order, whether made
before or after the scheme has come into force, cancel or
modify the scheme.
(5) Pending the framing of the scheme for the proper
administration of the Wakf, the Board may appoint a
suitable person to perform all or any of the functions of the
mutawalli thereof and to exercise the powers, and perform
the duties, of such mutawalli.”
24. In view of the aforesaid, it is apparent that the Act provides for a
scheme to deal with the management of a wakf property, to appoint a
mutawalli as well as to remove the same. A committee can also be
appointed subject to directions of the Central Government and in case
where there is a need to remove the mutawalli, it can be done by the
Board in exercise of the powers vested under Section 64 of the Act. The
Court can also direct the management of certain wakf as provided for
under Section 65. Further Section 69 of the Act empowers the Boards
to frame scheme for administration of wakf.
25. If these actions are not taken by the Board when required, one
can approach the Wakf Tribunal for seeking a direction to the Board to
do the needful. In fact, as per Section 86 of the Act, Wakf Tribunal can
even appoint a receiver of a wakf property. Section 89 and 90 of the Act
also makes the presence of the Board in every litigation necessary. In
view of Section 94, the Board or any other person interested in the wakf
may make an application to the Tribunal for passing appropriate
orders. Moreover, there is also an appellate authority prescribed under
Section 95.
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26. Taking all these facts into consideration, it is apparent that the
Wakf Act provides for a complete solution to the issues raised by the
appellant. To take care of his grievance, he can initially approach the
Wakf Board and if the Board does not act in accordance with law then
he can always assail the order of the Board before the Wakf Tribunal
and even thereafter can appeal before the appellate authority if need
arises.
27. Considering the specific provisions made under the Act as
discussed above, which may take care of all the issues raised by the
appellant in relation to the management of the wakf properties and even
to take an action against the mutawallis who are not performing their
functions in accordance with law, it cannot be said that it is necessary
for a civil court to intervene under Section 92 of the CPC with the
jurisdiction of the civil Court in relation to those matters where the
wakf board or the Tribunal is competent to deal with, the Civil Courts
will have the jurisdiction. It may be observed here that in view of the
scheme of the Act, the appellant is certainly entitled to approach the
Wakf Bord for the grievance which he has raised under Section 92 of
the CPC. It is expected that the Wakf Board will take necessary steps
and if they are not taking, the appellant can certainly approach the
Wakf Tribunal. However, the question of approaching the civil court
under Section 92 of the CPC does not arise.
28. Accordingly, the appeal filed by the appellant is of no
consequence and the same deserves dismissal.
29. Consequently, the appeal filed by the appellant is dismissed.
30. No costs.
C.M.12814/2005
Interim orders, if any, are vacated and the application is disposed
of.
C.Ms.14557/2005 & 3094/2006
The applications are disposed of as having become infructous.
MOOL CHAND GARG,J
NOVEMBER 02, 2010/’anb’
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