IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.12268 of 2011 Syed Quiser Kamal Versus Bihar State Sunni Wakf Board & Anr. ---------------------------------- ORDER 02. 01.08.2011 (1) Heard the learned counsel for the petitioner. (2) The application under Article 227 of the Constitution of India was filed by the defendant- petitioner against the order dated 04.06.2011 passed by Execution Munsif, Gaya in Eviction Suit No.6 of 2006 whereby the learned Court below rejected the application filed by the petitioner for transferring the suit i.e. Eviction Suit No.6 of 2006 to the tribunal constituted under the Wakf Act, 1995. (3) The learned counsel for the petitioner submitted that since the suit property is a Wakf property, therefore, the suit should have been transferred to the tribunal for the decision of the suit as provided under Section 85(A) of the Wakf Act, 1995. (4) From perusal of the impugned order, it appears that learned Court below held that the Civil Court has the jurisdiction to decide the questions and controversy between the parties arising out of Bihar Building(Lease, Rent and Eviction Control) Act, 1982. (5) From perusal of the provision as contained in Section 83 of the Wakf Act, it appears that tribunals 2 were to be constituted for deciding and determination of any disputed question or other matter relating to a Wakf or Wakf property under the said Act. Here, it is admitted position that the suit property is Wakf property and the Wakf Board has filed the suit for eviction of the tenant petitioner from the suit premises on the ground of default. (6) In A.I.R. 2010 S.C. 2897(Ramesh Govindram(deceased by L.Rs.) vs. Sugra Humayun Mirza Wakf), the Apex Court has held at paragraph 6, 12, 21 and 22 as follows: “6. Even in case 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 (20, (2009) 4 SCC 299: (2009 IR SCW 2566), 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.” “12. From a conjoint reading of the provisions of Sections 6 and 7(supra) it is clear that the 3 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.” “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 are 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 4 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.” (7) In view of the above settled principles of law, in my opinion, the learned Court below has rightly rejected the application filed by the petitioner as the tribunal has got no jurisdiction to decide the dispute between the landlord and tenant filed by the landlord under Special Act i.e. B.B.C. Act. Therefore, in 5 supervisory jurisdiction under Article 227 of Constitution of India, the impugned order cannot be interfered with. (9) Accordingly, this application is dismissed. Saurabh/A.F.R. (Mungeshwar Sahoo,J.)