IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 889 of 2011 Date of decision: February 22, 2011 District Collector-cum-Deputy Commissioner, Jalandhar and another .. Petitioners Vs. Punjab Wakf Board and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the petitioners. A.N. Jindal, J This petition assails the order dated 16.10.2010 passed by the Additional District Judge- cum- Wakf Tribunal, Jalandhar, whereby the suit for declaration filed by the Punjab Wakf Board that it is the owner in possession of the demised premises and sought permanent injunction restraining the defendants No.1 to 3 (now petitioners No.1 and 2, herein referred as, 'the petitioner') from raising any type of construction or transferring the Wakf property in dispute, was decreed and the petitioners were further directed to hand over the vacant possession of the property in question to the respondent No.1 within a period of one month. The Wakf Board has claimed the demised premises to be its property and sought injunction against the petitioners. The said suit was contested wherein the petitioners took the preliminary objections, inter alia, that the suit is not maintainable; the property in dispute is not a property of the Wakf Board; it was never used for pious, religious or charitable purposes and it does not fall under the definition of “Wakf” as given in sub- clause 3 ® of the Wakf Act, 1995; jurisdiction of the Tribunal is barred as the suit land is village common land and vests with the Gram Panchayat; the respondent No.1 had no cause of action to file the suit as the application filed by Gram Panchayat before the District Development and Panchayat Officer-cum- Collector, Jalandhar under Section 11 (1) of the Punjab Village Common Lands (Regulation) Act, 1961 was decided in favour of the Gram Panchayat, therefore, the suit was liable to be dismissed. Civil Revision No. 889 of 2011 -2- *** The petitioner- defendant No.2 also filed separate written statement. From the pleadings of the parties, the following issues were framed :- 1. Whether Punjab Wakf Board is owner in possession of the suit property?OPP 2. Whether the defendants are liable to be restrained from alienating, constructing over the suit property?OPD 3. Whether in the alternative the plaintiff is entitled to possession of the suit property?OPP 4. Whether suit is not maintainable in the given form?OPD 5. Whether this court has no jurisdiction to try this suit?OPD 6. Whether the suit is bad for non-joinder and mis- joinder of necessary parties?OPD 7. Relief. After hearing both the parties, the Tribunal decreed the suit for declaration directing the petitioners to hand over the vacant possession of the suit property to the respondent No.1. Arguments heard. Record perused. Learned counsel for the petitioners, while opening the arguments, raised the preliminary objection that since the dispute having arisen in the case is, “whether the suit property is a Wakf property, therefore, the jurisdiction of the Tribunal is barred?” In this regard, learned counsel for the petitioners has tried to take shelter of the judgment delivered in case Ramesh Gobindram (dead) through L.Rs. vs. Sugra Humayun Mirza Wakf, 2010 (2) R.C.R. (Rent) 266 : 2010 (2) RAJ 171 “ 2010 AIAR (SC) 2897. Having gone through the judgment, the Apex Court while discussing the provisions of Sections 6, 7, 83 and 85 of the Wakf Act, 1995 has tried to define the area of jurisdiction of Civil Court as well as the Tribunal. The crux of the judgment is that where the property is definitely Civil Revision No. 889 of 2011 -3- *** Wakf property, then the Tribunal cannot adjudicate upon the eviction of the tenant(s) and it is the Civil Court who has to adjudicate such disputes, otherwise, the Tribunal has the jurisdiction to adjudicate the nature of the property. The relevant observations made by the Apex Court in Ramesh Gobindram's case (supra) are re-produced as under :- “20. It is clear from sub-section (1) above that the State Government is empowered to establish as many Tribunals as it may deem fit for the determination of any dispute, question or other matter relating to a wakf or wakf property under the Act and define the local limits of their jurisdiction. Sub-section (2) of Section 83 permits any mutawalli or other person interested in a wakf or any person aggrieved of an order made under the Act or the rules framed thereunder to approach the Tribunal for determination of any dispute, question or other matter relating to the wakf. What is important is that the Tribunal can be approached only if the person doing so is a mutawalli or a person interested in a wakf or aggrieved by an order made under the Act or the rules. The remaining provisions of Section 83 provide for the procedure that the Tribunal shall follow and the manner in which the decision of a Tribunal shall be executed. No appeal is, however, maintainable against any such order although the High Court may call for the records and decide about the correctness, legality or propriety of any determination made by the Tribunal. 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 Civil Revision No. 889 of 2011 -4- *** 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 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.” Civil Revision No. 889 of 2011 -5- *** In the instant case also, though the Punjab Wakf Board filed a suit claiming the property to be the wakf property but the defendants disputed the nature of the property, as such specific issue was framed to determine the nature of the property, therefore, in such situation, the jurisdiction of the Tribunal to decide the same cannot be excluded. Now coming to the merits of the case, it may be observed that lengthy discussions were made by the Tribunal while deciding issue Nos. 1 to 3 holding that the property is a wakf property and vests in Punjab Wakf Board. Though the name of the Red Cross Society is recorded in the latest revenue record, yet the same is without any basis. The Gram Panchayat of village Apra, who had no right over the property could not donate the same to the Red Cross Society. Khasra No.87 is shown as Gair Mumkin Kabristan and is shown as Makbuja Ahle Islam as per jamabandi for the year 1981-82. According to the notification dated 6.2.1971 (Ex.P1), such property should be treated as wakf property. The Gram Panchayat has failed to establish its title over the land in dispute by any cogent document of title, therefore, to my view the Tribunal was well within its jurisdiction to hold that the land vests in the Punjab Wakf Board. Resultantly, finding no merit in the petition, the same is dismissed in limine. February 22, 2011 (A.N. Jindal) deepak Judge