--...., ................. nuan Wu." VF mmmmm rm-an cmm or KARNATAKA HIGH COURT or XARNATAKA man com'
my
.1.
nu ms area oomrr or x.mrurr.u¢A AT
DATED mxs ms 2!" DAY or ~ _
1-rm Horn: ma. Jtxsnés om 5
own. REVISIOH ~? $?I'1TI( )K
Between:
ST. GREGORIOUS OR'I'HO_JOX._
CATHEDRAL, ' . V V
N0.18,HOSUR"RQAD.v." 1 -
RICHMONDTOWK;
BANGALORE» 5::';ja'o1.0254~_
REP BY rrs H,r3N"'~rR.EAsUR_E-22.. ,
MR, MATHEW'-GHANDY'.-V ~ _ PETITIONER
M T' " Rwy Aiyappa. Adv. for
" ' _ 'id;-5. Associates, Advs.]
1. . . , AGA 11%;: ASGAR WAKF',
A WAKFREGISTERED WITH
'~ rrna. KARNA'FA"KA STATE BOARD
'OF WAKFS UNDER THE PROVISIONS
~. _ 'V .012' fI'HE 'wax? ACT, HAVING rrs
vv..Qv§«'_P'lCE}?%"AT NO. 15,
HOSIJE ROAD, RICHMOND TOWN,
BANGALORE -- 560 025,
"REP BY ITS comuxssxomsn
" .391. am. BADAMI.
's/o sm. AKBAR ALI BADAMI,
AGED ABOUT 52 YEARS,
RESIDHIG AT BANGALORE.
"E2. KARNATAKA STATE BOARD OF WAKFS,
A BODY CONS'I'I'I'U"I'ED UNDER THE
PROVISION OF' THE WAKF ACT, 1995,
HAVING ITS OFFICE AT DARUL
AUKHAAF, NO. 6,
CUNNIGI-{AM ROAD,
BANGALORE ~-- 560 052,
.53..»-.- ._..-- VIVV3 -_
' -W" ' ~vv-\tfe..w;v- nnnlvninnn ruun uuum Ur ISAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR1
-3-
plaintiff had sought for the relief of peI'mane13$,V_iI1;'jt:11ction
to restrain the first defendant in the
had owned the suit schedule prope1fty,fiis age-;n:s'i
from interfering with the of of "
Shia Muslims to reach
to the plaintiff to reach
which property the were to pass
through a_ in the suit
mduigloiiqieaey demam.
3. Theii b also sought for further relief of
restraintji order from putting up a gate
ofthe mssage and for incidental prayers
V 1 injunction.
ex parte ad interim order of injunction had
AA initially, an application flied by the first
' defendant to vary this order of temporary injunction
through an application under Order XXXIX Rule 4 of the
CodeofCivi1PI'ocedurecametobedismissedintern1sof
the impugned order dated 10.6.2005.
"""'-°-e u..-mu.-unm-u niun \.\JU!(I Ur ISAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT
.
.
I
.
.
.
,4-
5. It is aggrieved by this order, the
petition by the first defendant.
6. The first defendant had it
tribunal lacks it Wtl”V:1e suit,
particularly, as the qnestioii admittedly
belonged to the i was not a Wald’
property and: euit could not have
been is a tribunal which
nadttiie {to exclusively deal with the wakf
to Wald’ and not with other
pI’cp6¥'”55- =
‘ ., objection was that the subjwt
H ” suit did not come Within the scope of either
sn’he<.§eetions (I) or (2) of section 83 of the Act and
it * ii_therei'o1'e the tribunal cannot entertain the suit for
grannng any relief temporary or on regular basis.
8. The tribunal had formulated the question regarding
the maintainability as a preliminary point and having
a/
“‘” “”””l-A”{” “”‘””””‘*””” ‘”‘”=”* ‘vvvnl var Mmntaaaim mun count OF KARNATAKA H16!-I COURT OF KARNATAKA I-l|Gi~l COURX
E
i
-5-
answered this in favour of the plaintiff and the
fast defendant, had proceeded to
for ganting the relief soug,i1t~ for
confirmed the ad interim exlh 5
parte earlier.
9. Civil revision—-4.’_’.f;’etit:loI:gV admitted. The
respondents had “‘l’he plaintifl — Wald’
and uof”Wakfs which was the
second are represented by Sri.
“learned oounsel.
10_ . _, matter been set down for hearing, I have
Ms. Aiyappa, learned counsel for the
Sri. Prabhuling K Navadgi, learned counsel
therespondents.
2 V» 11.’ The contention of learned counsel for the petitioner
that the tribunal lacked jurisdiction to entertain a suit
‘ of the present nature; that the property admittedly
belonged to the first defendant; that the plaj11tifl’ if at all
had only a right of easement which is also not disputed;
V
WU”! IMF I\I'”\iW”\il’\I\f’I l’II\5r3\.J-JlJKi,_.l.;f “l.’fiI”,’!,”” rib?’ ‘-‘JQK _ _
A’ ._: 3 UP KAKNAIAKA HIUH K.-‘JUN! K)!’ KAKNAIAKA HIUH QUUKI WI’ KI’\KE’lI’\i.F\I\.H l’NL’fl’I LUUKI
(4)
,3-
shall deal with the appliomion
stage which was ‘reached
been so transferned,
Tribunal is of opirzionwthat :’t_ is
in the interests ofjaastioestcira deal
application afresh.
Every ”
person, who beu a the
below that:e”of ct or Civfl
Judge, Ciass of
every either by
deemed to be a civil?
the same powers as
~ edwby a civil court under
~ Procedure, 1908 (5 of
a suit, or executing Ct
anything contained in
.._the Code” ””’ ” of Civil Procedure 1903 (5 of
“$908), the Tfibunal shall follow such
an
(3)
dectston ofthe Tnbunalshall befinal
and binding upon the parties to the
applioationanditshallhavetheforceof
adeaeenladebyacxtwilcmut
The execution of any deasion of the
Tribunalshallbemadebytheciviloaurt
to whtchsuch decision is set for execution
inacoordanoewiththeprovisionsofthe
CodeofCivilProcedure, 1908(5of1908).
,v_.. …………….. .-mm Wu… w Mmnmm men COURT es xAmAm<A Haewceum es KARNAEAKA masseuse
-9-
(9) No appeal shall tie against any
or order whether interim or
given or made by the V
Provided that a
Hoard or any canfivret
and examine records relrm*3ag_:’to any
dispute, er other
the its’e£.*–‘..as” to the
other buts-r asj may think fit. ‘
and go before the tribumal
the jurisdiction of civil courts is
ousted 85 of the Act are such matters
eiqtlieiflyienumezated in sub-sections (1) and (2)
1 of the Act.
.’ V_ of learned counsel for the petitioner
AA on the premise that it is only when the subject
V _ is wakf property and the disputes relate to the
h éwald’ or property claimed as a wakf property that the
Tribunal gets jurisdiction and the seeps of the subject
matter which can go before the tribunal in terms of
it stetmta W: mm
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him in respect of anything which is
good faith done or intended to be donegm. -. t
pursuance ofthts Act or any rules ”
(4) The list of walqf unless’-serif… is
modgfied in pursuance of a’d_ec;’s1bn orthe 2 V’
(5) On and from .fl’E.E,_’ of
Act in a State, arjofiuer legal
proceeding shall’ or
commenced in=21’*cou.z1 in
relatiqn”‘:q1′–ang; question’ to in
dispute:
* (1)9: of this Act,
‘V any arises, whether a particular
specfed as wakfpmperty in a
V. «qfn-*ak_:fs is walg”-property or not, or
Cl wakfspecfiied in such list is a
wakfora Sunni wakj} the Board or
mutawalli ofthe wakj; or any person
interested therein, may apply to the
Tribunal having jurisdiction in relation to
suchpmperty,forthedecisionQfthe
question and the decision ofthe Tribunal
thereon shall befinal:
au-nut:-*\|.r”\I\.r1 nuwn uuunl ur RHKNRIRKA HIGH COURT OF KARNATAKA HEGH COURT OF KARNATAKA HIGH COURT”
Provided that –
– -UV-yuan’: V’
(at) in the case of the list of walcfs
relatingtoanypartofthestateand
published cfier the commencement
I ofthisActnosuch applicationshall
I be entertained after the expiry of
V
wu-
Mllllfil vr nnnnnannn fllvn MVUKI ,5-Ir nnluvnlnnn nnan HQJUIH Ur IEHKNAIRRA till.-RI i.sUUK¥ U!’ IKAKNAIA ‘” ‘ ‘ ‘
KR l”!I(.’.1tI”E LUUKT Q? KARNATAKA H¥GH’COURfi
-13-
one year from the EV’
publication ofthe list ofwfifs; Y
(13) in the Case Of the
relating to any pa.rt’of’_tPce’;§:xte”an;1
published at} any a, j
Peflbd of one 93′?
preceding __the ” jof”
this Act, arc ‘ may
be by rm-tuna:
Provided where any
bye civil court in a
V _ ” ” ‘ ‘ez,¢i’t’-(ff; , _ before such
” ¥:,__ the Tribunal shall
Tribunal has no
A * reason of the provisions of
” (5), no proceeding under thfi
sezrtionyén respect of any walg’ shall be
.. by any court, tribunal or other
by reason only of the pendency
‘A ” ‘foVf5~any suit, application or appeal or other
5 fl-orooeedr’ng arising out of any such suit,
application, appeal orotherprooeeding.
(3) The chief Executive omoer shall not be
madeapartytoany applioationunder
(1}
(4) Thelfst ofwalgk andwhere anyswchlist
ismodtjfiedinpursuanceoj’adea’sionof
thefiibunalundersub-sectitm (1), thelist
assomod1;fied,$ha£lbefinaI.
va/
……..,………… ulnar: Wu… us” nnxmmaltn men COURT or KARNATAKA. HIGH COURT o:= KARNAYAKA i-HG!-i COURT
-15..
or other property encroached upon A4
mutawalli of the wakf ” _ . .___j
and if so understood, dispute” . ate”
concerning a right of easemet*;t__ olfthe a A
property admittedly
cannot be constzwgede as.=ii” scope of
either sub-sections 83 of the Act and
therefore civil court which
has the £1 dispute of such nature if
oneiiléot and as such the tribunal
snougictnot’ have the suit.
In learned counsel for the petitioner has
on the following two single Bench
% * .titv:isiotés–3_oi’>.tt1e Madras High Court.
I. V¥”.!\\T.Vt.”ALA.l\fI as. P. LAKSHAVATSALU CHETHAR
L’ » fepozted in AIR 2001 moans 257
‘MALI Amaze AND woman as. zmemsxzanar
sozmar smear JAMAITI Maw PA.Rl’.PALA.NA
Cflfififi AND OHERS’ reported in AIR 2001
MADRAS 431.
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16. While the first decision is relied eeiltend
that even on the pleadings, no case. ..
contend that there was a disj2.ute_-Ainfiveiéietence”iwitjieiiiwasi-.A I
required to be taken eitfierebefeifeii’ the
tribunal as the defendantiei iizad not only
admitted the right of the plaintifi’
but also hadeinv’ in the Written
statemeigt in preventing the
of easement over the
appiveachi the defendants. In this regard,
Jipetitioner —- first defendant has
tile ettentiozi of the court to parephwl 1 of the
‘ ;V’V61’Ifitt£;4l’IiSg'{$’1’;t3II1eI1t which reads as under:
“1-Ii; Re: Plaint para 10: This Dejkndant has
,_vnez2e*ratanypointoftf:neobstr1¢ctedtI1euseQf
,. ‘t_hefightofwayasaHeged.ThisDefendant£s
‘=puttingupagateattheEastemer:dofthe
passagvewhichliesfaczirxgthel-IasurR_oczdc:sa
matterofprotectionofitspmpertyandto
preventthepassagewayfiombeingusedasa
plaoetoparkvehicIes.1hepe1son.swhouse
theAshurkhanaarefreetoenterthegateand
proceedtotheAsfu4rkhana. AR m
theoentraryaredenieciThedec1’eeinO..S. No.
1I38of1987infactenurestothebenefitofthe
Plaintfi’IHowever§”thePla1’nti_fl”does notwant
” “‘”‘” ‘ “”‘” ‘ “”””””l’A”‘,- “”””‘”‘”””H*\H “FUN I-UUKI Ur KARNA¥AKA HIGH COURT OF KARNATAKA HEGH COURT OF KARNATAKA HIGH COURV
-19-
passage and the pathway ABCD suit
schedule, the plaintiff will not be in a en’3;oy,or
make use of its own pmpertyend
the exercise of the right of »wm§1d ”
denial of a property the” ‘and; such
it should be taken. ‘that _esllT1’sas’ a dispute
relating to a wakf matter is squarely
I within the julgsdicedrl oonstituted for
the ‘Act and the tribunal has
«:E%1?IteI”tam” l 1ihe’ma”lter.
20. ‘I12. by learned counsel for the
respondents in the suit that the object of the Act
a special tribunal to deal with all disputes
~. properties is not only to ensure that all
siioh’–lidisgoutes involving 3 Walt!’ and wakf properties are
l’ ” msoleed by a common specialized forum, but also for
expedient disposal of the cases and resolution of
the disputes; that a jurisdiction of this nature conferred
exclusively on the tribunal cannot be in any Way whittled
down by giving a limited meaning to the word ‘wakf’
_g1_
taken by the Iearned single Judge of the High
Court in ALI AKBAR’: case supra, tile
submission made on behalf of__th.e_
therefore urges for dismissal it
23. I have bestowed to the
rival submissions . ._ the” i j’ L’ A perused the
records and the relevant for the
purpose 0;’ extracted in the
24. state the Wakf Act, 1995 is a
created a special tribunal in
tCE’331SA of the Act for resokution of disputes
. ” and management of the wakf
I The main object is to ensure that all
Adisptttesi to wakf and Wakf properties are within
.. ?fl_’1e.’domain of the tribunal and to that extent the
‘ jurisdiction of the civil court is ousted under section 85 of
the Act.
-uwuwaa Ir! In-IrIm.uva”su7″II\l-I lllfiflll l\l1H.I’lQ3oP\I\l1 !1I\$rI HUUKI K3.”
25. The ouster of jurisdiction under section 85 is with
reference to the provisions of section 83 of the Act i.e., the 92/,
{……… V. nu-Ii\IIr|Irl|\r\ a man \.\J1..n\’:tA _».ag_:– Tu-\lS.lV.l-U!-\I\..H nusfl KJJUKI Ur IKAKNAIAKA HIGH COURT OF KARNAIAKA HIGH COURT OF KARNATAKA HEGH COURT
-33-
jurisdiction of the civil court is ousted only in _.sa~~as the
matters which are brought within the
tribunal and not a general ouster.’
subject matter is within’ the .:Vl:’on(1)”” J
or sub–section(2) of sectio1i:3’3»of of l the
Act is not attI’aCtCd’.~_ In tfriethe question
that is to be V’i;l1vg%;~”(_1ispute relating to
violation 9; is sought to be
suit brought before the
scope of section 83 of
the = V
As’ by learned counsel for the
‘ V:V’pet1t.io13e1r;”‘the scope of the disputes with regard to the
. ” should be understood in the context of the
fitovisions, particularly, sections 6, 7, 32(3) and
2 * V5″-=l.(3)”of the Act. A reading’ of these provisions indicate
that the stress is always on the property belonging to the
waktf as already notified and contained in the list of Wald’
properties or a wakf property which was asserted and
used as a wakf property hitherto.
ECOURT OF IKARNAIAIKA I-IIUI1 l…’UUKI Ur IKAKNHIHIKH ruun uuulu
VI’ BMKIVHIHRH r’llu’l’I uvulu vr MNNEWMIHRM irlnan uwuns vr’nnn:1nunnn Mug”
.5 ‘rV’-“He
-23..
2’7. In the present case, the property in “the
main property is admittedly the
defendants and because of esm,ssNgvaag;
learned counsel for the Vxespondents te’ ‘the
dispute Within the scope of fine
in aid the also part of
a pmperty right in ‘an? and seeks to
draw of ‘immovable
propergyi’ 3(26) of the General
claizses ‘
_ See’iio_i1 General Clauses Act, 1897 reads
*
v_.{.9.6)..– ‘ ‘immovabie property’ shall include land,
‘ benefitstoarise out afland, and things
attached to the earth, or pennanently
fastened to anything attached to the
earth,’
29. Even on an examination of section 3(26) of the
General Clauses Act, 1897 , it does not necessarily indicate
that a right of easement can be brought Within the
E
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N” ‘uvufi. “”§ “”””””””” “””” ‘*”‘-W W mmamm user: COURT or KARNATAKA HIGH COURT or KARNATAKA HIGH comm
-25-
disputes relating to the ownership of the _ as to
whether it belongs to Wald’ or otherwise.
30. Though Sri. Navadgi, the
respondents — plaintiff would
provision as it occurs in — 83 of
the Act would msisss A qtiestion or other
Inatters relating to taken before the
tribunal? ,1 cannot be accepted
as for the petitioner,
it tn’ ejusdem genens in the context of
the 6, 7, 32 and 54 of the Act. The
wakf property and as is sought to be
e in terms of sections 6, 7, 32 and 54 of the Act
H ” to understancl the scope of the words
to a Wald’ or Wakf property and the rig’ ht
it ~ otia fiutawalli or other interested person of a wakf or any
other person aggrieved by an order made under this Act to
take such dispute relating to the wakf before the Tribunal,
the present is not a situation involving any order passed
by any person functioning under the authority of the W
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-35-
While, it is even difficult to say that the piaiI1tii’f real
cause of action to bring a suit before the trfbunjallhciior
court in terms of the prayer soughtp fofi
appears the defendants had J
by the foilowers of the
not be examined ill” epfletition’-Aasyil am of the
view that a dispute of action as
was pleaded covered by section
33 of the lacked jurisdiction
to the brought before it.
31. Section xS3.”‘ is a provision which seeks to
out the jurisdiction of the civil court and
‘ jurisdiction in favour of the tribunal. While
” provision of this nature, there is no scope
for enlarging the meaning and understanding of the words
” seeks to ouster the jurisdiction of the civil court as
any provision ousting the jurisdiction of the civil court
should be strictly construed and cannot be unduly
enlarged and unless the subject matter is squarely
covered within the limited jurisdiction sought to be carved
i/
IQURT OF KAKNATAKA HIGH COURT QITKAIKNATAISA HIGH Luulu Ur hnnlwnannn nzwn Mvu
…27..
out, it cannot be taken to be within the juI’isdic1r.:ioI_ 1 ~of the
special tribunal either by the process of or
through a logical process. A
32. In the circumstanoee,
allowed. The impugned 2 on
IA No.5 in os or one Presiding
Officer, Kamanaka iflongaiore Division,
Bangaxoge, in os No.6 of 2005
itself tthe Wald’ tribunal did not
havethe jufieyiiofiohovverxnertain the suit.
33; » It plaintiff —– respondents to work out
if are afiected, in terms of any other
% ‘provision erlaw.
Tudgé
-5%!’