C.R. No. 32 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 32 of 2009 (O&M)
Date of decision: January 7, 2009
Surinder Singh
.. Petitioner
v.
Punjab Wakf Board and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Shailendra Jain, Advocate for the petitioner.
..
Rajesh Bindal J.
Challenge in the present petition is to the order dated 8.11.2007
(Annexure P.5), passed by learned Civil Judge (Senior Division), Kurukshetra,
whereby the plaint filed by the petitioner-plaintiff was rejected under Order 7 Rule
11 of the Code of Civil Procedure on the ground that the dispute being relating to
Wakf property, the appropriate remedy was to file a petition before the Tribunal
constituted under the Wakf Act, 1995 (for short, `the Act’).
Briefly, the facts are that the plaintiff along with Harbans Kaur and
Lamber Singh filed a suit for mandatory injunction that they are owners of the
land comprised in Khewat No. 2466, Khatoni No. 2814, Khasra No. 216/2/3(2-0),
Khewat No. 2467, Khasra No. 216/2/2(3-3), Khewat No. 2470, Khasra No.
216/2/1(4-16), situated at Darra Kalan, Thanesar, District Kurukshetra. They are in
possession of the suit property for the last more than two decades where they had
constructed a petrol pump, service station and houses. In execution of the warrant
of possession issued by the Court, boundary wall of the premises of the petitioner-
plaintiff was demolished and the petitioner was sought to be dispossessed forcibly
from the land owned by him. On an application filed by the respondent-Wakf
Board under Order 7 Rule 11 of the Code of Civil Procedure, the plaint was
rejected in terms of the provisions of Section 83 and 85 of the Act.
C.R. No. 32 of 2009 [2]
Challenging the order, learned counsel for the petitioner submitted
that admitted position on record was that there is no dispute as regards the
ownership of the petitioner of the property, as was enumerated by him in the
plaint. The only dispute, which was sought to be projected by the Wakf Board, was
that the disputed land comprised of Khasra No.216/3 which is in fact a Wakf
property. The submission is that such a dispute will not be covered under Section
83 of the Act on account of which the jurisdiction of the Civil Court will be
barred. All what the petitioner claimed was merely injunction from the court
because only the property was to be demarcated. Explaining the delay in filing the
petition, it was submitted that as per the advice received by the petitioner, he filed
a petition before the Tribunal under the Act and the same was rejected only on
15.12.2008 and it was thereafter that as per the advice received, the petitioner is
impugning the earlier order passed by the Civil Court, whereby his plaint was
rejected on account of lack of jurisdiction. Accordingly, there was no delay as such
in approaching the Court.
Having heard learned counsel for the petitioner, I do not find any
merit in the submissions made. The undisputed facts on record are that the earlier
suit filed by the petitioner was dismissed by the trial court vide order dated
8.11.2007 on an application filed by the Wakf Board under Order 7 Rule 11 of the
Code of Civil Procedure, holding that the Civil Court did not have the jurisdiction
in terms of Sections 83 and 85 of the Act. After rejection of the plaint, the
petitioner filed a petition before the Tribunal constituted under the Act, which was
dismissed on 15.12.2008 for the reason that the petitioner had not issued
mandatory notice under Section 89 of the Act to the Wakf Board before filing the
suit. The contention of learned counsel for the petitioner that the relief claimed by
the petitioner was only injunction, where merely demarcation of property was
required and the same will not fall within the ambit of jurisdiction vested in the
Tribunal constituted under Section 83 of the Act is totally misconceived. Relevant
parts of Sections 83 and 85 of the Act are extracted below:
“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 wakf or wakf property under
this Act and define the local limits and jurisdiction under this Act of
each of such Tribunals.
(2) Any mutawalli, person interested in a wakf or any other person
aggrieved by an order made under this Act, or rules made thereunder,
C.R. No. 32 of 2009 [3]
may make an application within the time specified in this Act or
where no such time has been specified, within such time as maybe
prescribed, to the Tribunal for the determination of any dispute,
question or other matter relating to the wakf.
(3) Where any application made under sub-section (1) relates to any
wakf 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 wakf actually and
voluntarily resides, carries on business or personally works for gain,
and, where any such 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:
xx xx xx
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.
A perusal of the provisions of Section 83 of the Act, as reproduced
above, clearly shows that the Tribunals have been constituted for determination of
`any dispute, question or other matter relating to wakf property’. The contention
that it is only the dispute regarding ownership of the property which can be
decided by the Tribunal has no legs to stand. A perusal of the language of the
section shows that the jurisdiction vested with the Tribunal constituted under the
Act is quite wide, i.e., to decide any dispute, question or matter relating to a wakf
property. In the present case, as per the admitted facts on record, though the
petitioner claimed that he is in possession of the property owned by him as is
narrated in the plaint. However, the stand of the Wakf Board is that in fact, the
disputed land forms part of khasra No. 216/3, which is a wakf property, meaning
thereby the dispute regarding wakf property is also involved in the present case,
which can only be gone into by the Tribunal constituted under the Act.
A similar issue was considered by a Division Bench of Kerala High
Court in Aliyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal
Cheriyakoya and others, AIR 2003 Kerala 366. Relevant passage therefrom is
extracted below:
C.R. No. 32 of 2009 [4]
“We are therefore, of the considered view that the words any
dispute, question or other matters relating to Wakf or Wakf property
under Section 85 are wide enough to take in within its weep not only
matters which are specifically conferred on the Tribunal by the
various provisions of the Act but also any dispute, question or any
other matter relating to any Wakf or Wakf property since those
powers have also been conferred on the Tribunal by the Wakf Act
itself. On examining the scheme of the Act and various provisions
we are of the view that the intention of the legislature is to resolve
all disputes by one machinery and forum provided in the Act itself,
that, is the Wakf Tribunal and not by the civil Courts in the State.”
A Division Bench of Madras High Court in I. Salam Khan v. The
Tamil Nadu Wakf Board rep. By its Chairman and others, 2005-1-L.W. 676 had
the occasion to consider the issue regarding the jurisdiction of the Tribunal
constituted under the Act, whereby it was opined that the words used in Section 83
are of wide connotation. Relevant passage is extracted below:
“Thus, the Wakf Tribunal can decide all dsputes, 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. It is not proper for this Court to straight
away entertain writ petitions relating to a Wakf or Wakf property
when there is a special Tribunal constituted for this purpose.”
Still further, even the conduct of the petitioner itself shows that he is
not entitled to invoke the jurisdiction of this Court at this stage. The plaint having
been rejected by the Civil Court vide order dated 8.11.2007 and thereafter the
petitioner having already approached the Tribunal for the relief available to him,
which was rejected on account of non-compliance of pre-requisite of issuance of
notice, the petitioner cannot be permitted to turn around again and approach this
Court seeking a relief that the suit should be tried by the Civil Court only.
C.R. No. 32 of 2009 [5]
For the reasons mentioned above, I do not find any merit in the
present revision petition. Accordingly, the same is dismissed.
(Rajesh Bindal)
Judge
7.1.2009
mk
(Refer to Reporter)