IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1017 of 2008 1. Md. Moinuddin, son of Nawab Shah alias Md. Nawab Ali, resident of Village Saharsa, Tola Gangjala, Pakritola, P.S. and District-Saharsa (Heirs of Defendant no. 3 = Appellant no. 1(a) ………………………………………… Petitioner Versus 1. MD.MUSTAFA. 2. Md. Suleman 3. Md. Karim 4. Md. Farookh Sons of Late Kamal Shah 5. Rokiya Khatoon, daughter of Late Kamal Shah. 6. Md. Samid 7. Md. Salim 8. Md. Halim Sons of Late Md. Karamat. 9. Md. Israil alias Mashuian 10. Md. Yusuf alias Phagu 11. Md. Ishaque alias Jago 12. Md. Taiyab alias Maulhi Sons of Late Md. Asho Shah. 13. Hasina Khatoon 14. Somni Khatoon Daughters of Late Md. Asho Shah. 15. Md. Mustafa, son of Late Kabir Sah. 16. Tinkauri Shah 17. Jamil Shah 18. Ismail Shah Sons of Late Saghir Shah 19. Md. Abbash 20. Md. Abdul Sattar Sons of Ilahi Shah 21. Bibi Saira Khatoon wife of Late Abdul Jabbar. 22. Md. Rais 23. Md. Rustam 24. Md. Budhan 25. Md. Hirba 26. Md. Sudna Sons of Late Abdul Jassar 27. Md. Lalu (minor) Minor under the guardianship of Bibi Saira Khatoon, mother and natural guardian with whom she has no adverse interest. 28. Bibi Kausar 29. Bibi Ghazala 30. Bibi Shahia Nos. 28 to 30 daughters of Late Abdul Jabbar. 31. Md. Amirul Sah, son of Late Sabmat Shah. All residents of village Saharsa, Tola Gangjala Fakir Tola, P.O. and P.S. and District Saharsa. …….Plaintiff—Respondent 1st Party) ……. O.P. 1st party 2 32. The State of Bihar, through the Collector, Saharsa. 33. The Chairman, Bihar State Sunni Wakf Board, Harding Road, Patna. (Defendant nos.1to 2=Respondents 2nd Party) ……………… Opposite Party – Second Party 34. Mostt. Mobina Khatoon, widow of Late Md. Nawab Shah Ali alias Md. Nawab Ali. 35. Md. Quasim 36. Md. Akram 37. Md. Kalam 38. Md. Asiam 39. Md. Saddam minor 40. Md. Salman minor 41. Md. Sultan minor 42. Md. Ashraf minor 43. Md. Akbar minor Sl. No. 35 to 43 all are sons of Late Md. Nawab Shah Ali alias Nawab Ali. Minors under the guardianship of Mostt. Mobina Khatoon mother and natural guardian with whom she has no adverse interest. 44. Nazima Khatoon 45. Sazima Khatoon 46. Guria Khatoon 47. Rajahan Khatoon 48. Rajina Khatoon All daughters of Late Md. Nawab Shah Ali alias Md. Nawab Ali. (Heirs of Defendant no.3=Appellants) Opposite Party – 3rd Party. Nos. 34 to 48 residents of Village Saharsa, Tola Gangjala Fakir Tola, Woard No.9, P.O., P.S. and District-Saharsa. Counsel for the Petitioner : Mr. Najmul Hoda, Advocate P R E S E N T HON’BLE JUSTICE MIHIR KUMAR JHA ----------- Mihir Kr. Jha, J. Heard Mr. Najmul Hoda, learned counsel for the petitioner. This civil revision application is directed against an order dated 2.5.2008 passed by the Addl. District Judge, F.T.C.VI, Saharsa in Title Appeal No. 3 65/2006, whereby and whereunder an interlocutory application filed by the defendant-appellant in Title Appeal No. 65/2006 for holding the appeal to be no longer maintainable before the civil court and its being transferred to Wakf Tribunal has been rejected. The undisputed facts are that the plaintiff-respondent-opposite party had filed Title Suit No. 4/1990 on 29.1.1990 for a declaration that the survey entry in the name of the defendant-appellant-petitioner in regard to the suit land was incorrect and hence inoperative and consequently a declaration be made with regard to title of the plaintiff- opposite party followed by a consequential relief for recovery of possession. The basis for such relief putforward by the plaintiff-opposite party was that the suit property was not a Wakf property and defendant no.3, the appellant- petitioner, was not its Mutwalli. It is not in dispute that the said Title Suit No. 4/1990 was heard alongwith another Title Suit No. 28/1996 pertaining to the same property and both of them were disposed of 4 by a common judgment dated 5.5.2000 passed by the Sub Judge IV, Saharsa decreeing the suit in favour of the plaintiff- opposite party. The further admitted facts are that against the said judgment and decree of the trial court dated 5.5.2000 the defendant- petitioner had filed an appeal, before this Court on 27.6.2000 being First Appeal No. 249/2000 and another First Appeal No. 247/2000 was filed against the aforesaid common judgment and decree passed in Title Suit No. 28/1996. These two first appeals were subsequently transferred by this Court to the District court in view of enhancement of pecuniary jurisdiction of the District Judge and thereafter the two appeals were numbered as Title Appeal No. 64/2006 and 65/2006. The appellant-petitioner thereafter on acquiring knowledge of a letter of this Court dated 24th July, 2007, issued on the administrative side to all the District and Sessions Judge of Bihar, communicating the decision of this Court to transfer cases relating to Wakf property in Wakf Tribunal had filed an interlocutory application on 5 27.3.2000 that both in terms of section 85 of the Wakf Act (hereinafter referred to as ‗the Act‘) as also aforementioned administrative circular of this Court dated 24th July, 2007 should transfer the records to the Wakf Tribunal. The prayer in the interlocutory application for transferring the appeal to the Wakf Tribunal was opposed by the plaintiff- respondent by taking a plea that as the suit was of the year 1990 and the appeal being continuation of the suit, the same could not have been transferred to the Tribunal as it admittedly came to be instituted before enforcement of the Act with effect from 1.1.1996. The court below, after considering the submissions as also the provisions of law, in the impugned order has held that section 7(5) of the Wakf Act would not apply to the two appeals and as such, the prayer for transfer of the appeal to the Wakf Tribunal was rejected. Mr. Najmul Hoda, learned counsel for the appellant-petitioner, has submitted that the court below by rejecting such 6 prayer has committed a jurisdictional error, inasmuch as he was not only bound to follow the mandate of law laid down under the Act for transferring the pending suit/appeal to the Wakf Tribunal but such order runs contrary to equally binding instruction issued by this Court on 24.7.2007. Expanding his submissions Mr. Hoda has also placed reliance on section 85A in the Act as amended by Wakf (Bihar Amendment) Act, 2006, which in his opinion would also cover the case of the appellant-petitioner for transfer of the appeal to the Wakf Tribunal. The facts being not in dispute, all that this Court has now to examine is as to whether any and every suit/appeal/ proceedings pending before a civil court as on 1.1.1996, the day on which the Act came into force, would automatically get transferred by the provisions of section 7(5) read with section 85 of the Act? It is not in dispute that the Act which received the assent of the President of India after its being passed by the Parliament came into force by virtue of a notification No. S.O. 1007(E) dated 27th 7 December, 1995 with effect from 1st January, 1996. Section 7 of the Act contained a provision laying down the power of Tribunal to determine the dispute regarding Wakf property. This would be clear from section 7 of the Act, the relevant portion thereof is quoted hereinbelow: ―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 the 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 8 (b) in the case of the list of wakfs relating 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 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) …………………………………………………………………………….. (4) ………………………………………………………………………………. (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 9 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 proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.‖ A bare perusal of the statutory provision with regard to the power of Tribunal under section 7, as quoted above, by itself would go to show that any dispute which came into existence after the commencement of the Act i.e. 1.1.1996 as to whether a particular property is a wakf property or not could be decided by the Wakf Tribunal alone to the exclusion of the powers of any court, tribunal or authority. The legislature in fact not only in section 7(1) of the Act but also in sub-section (2) thereof had made its intention clear that the power of Wakf Tribunal and the exclusion of the power of the court or authority or any Tribunal (not Wakf Tribunal) would be only in respect a dispute which came into existence after the commencement of the Act. 10 Sub-section (5) of section 7 of the Act, therefore, has to be read in the light of opening words of section 7(1) of the Act and accordingly, the jurisdiction of the Tribunal to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in a civil court would stand confined to the date of commencement of the Act. The submission of Mr. Hoda that since the appeal was instituted in the year 2000 before this court and got transferred and reinstituted before the District Court in the year 2006 would by itself make the provision of section 7(5) inapplicable because such appeal came to be filed after commencement of the Act has to be only noted for its being rejected. The Scheme under the Act vesting jurisdiction in the Wakf Tribunal to decide a question relating to a particular property being wakf property or not in terms of section 7(5) of the Act can be made applicable only with effect from the date on which the Act came into force. Admittedly the suit was filed on 29.1.1990 by the plaintiff- opposite party by claiming 11 that the suit property was not a wakf property and therefore, when the suit was decreed in favour of the plaintiff-opposite party on 5.5.2000, the question as to whether the suit property was wakf property had already been made subject matter of a suit some six years earlier to the enforcement of the Act, which as noted above came into force with effect from 1.1.1996. Section 7(5) of the Act in fact lays down that the Tribunal shall have no jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in civil court before commencement of the Act and therefore, the second part thereof that the question is still the subject matter of any appeal from the decree passed before such commencement in any suit or proceeding has to be made referable to the date of institution of the suit. The submissions of Mr. Hoda that even if the Tribunal could have no jurisdiction to try the suit filed by the plaintiff- opposite party on the basis of its date of institution being 29.1.1990 and yet the Tribunal had the jurisdiction to hear the 12 appeal thereof because the suit was decree on 5.5.2000 on a date of which the Act had already come into force would make section 7(5) severable in two parts and would run counter to the scheme of the Act. This aspect of the matter in fact gets also clear from the provision of section 85 of the Act which lays down that no such 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 which is required by or under this Act to be determined by a Tribunal. The plain construction of section 85, therefore, would be that it is only after the commencement of the Act, the suit before the civil court would stand barred but at the same time the Wakf Tribunal will have no jurisdiction in respect of pending suits before the commencement of the Act. This Court in fact would find that there was also no contrary intention under section 112 of the Act, the repeal and saving clause under the Act and even though the Wakf Act, 1954 and Wakf Amendment Act, 1984 were sought to be repealed, since there was no 13 provision of a Tribunal in the aforesaid old Act for excluding the power of the civil court in terms of section 7 of the Act it must be held that the suit which was filed by the plaintiff- opposite party on 29.1.1990 or appeal arising out of such decree dated 5.5.2000 in the suit of the year 1990 was to be continued and disposed of by the civil court as per earlier provisions in the Act. The reliance placed by Mr. Hoda on the provision of section 85A of the Act, which came into force on 8th September, 2006 by virtue of the Wakf (Bihar Amendment) Act, 2006 (Bihar Act 27 of 2006) is also of no avail. Section 85A reads as follows: ―85A. Transfer of pending cases- (1) Any suit or other proceeding pending before any Court immediately before the date of constitution of a Tribunal under this Act and after the date of the commencement of the Act (Act 43 of 1995), the Cause of Action of which is based on such facts that if the Tribunal would have been constituted it would be within the jurisdiction of such Tribunal, shall be deemed to be transferred to such Tribunal on the date of 14 constitution of the Tribunal. (2) Where any suit or other proceeding is deemed to be transferred from any court to a Tribunal under sub-section (1)- (a) the court shall, as soon as may be, after such transfer, forward the record of such suit or other proceeding to the Tribunal. (b) the Tribunal may, on receipt of such record, proceed to deal with such suit or other proceeding, so far as may be, in the same manner as an application made under sub- section (2) of section 83 of this Act and from such stage which was reached before the said court or from prior stage or as fresh, as it may think just and proper.‖ From the scheme of things it would be clear that since the Tribunal was constituted by the State of Bihar much after enforcement of the Act and only in the year 2006, the legislature in order to give jurisdiction to the Tribunal to decide all such questions which came to be instituted by way of suit on or after 1.1.2006 or appeals arising out of such suit which were instituted on or after 1.1.2006 had made a provision for transfer of pending cases 15 before the civil court. Section 85A, therefore, by itself does not create any further jurisdiction in the Wakf Tribunal beyond what was provided under section 7 of the Act. Much emphasized reliance of Mr. Hoda on the administrative circular of this Court dated 24.7.2007 is also wholly misplaced, inasmuch as by the said circular all that the Registrar General of this Court had communicated to all the District and Sessions Judges of Bihar that the request of the Secretary of Minority Welfare Department, Government of Bihar, for transferring cases relating to Wakf property to the Wakf Tribunal had been accepted. This request in fact of the Secretary of the Minority Welfare Department was only in respect of such suits or appeals which were or could be tried and decided by the Tribunal in terms of section 7 of the Act. The said Administrative instruction of this Court dated 24.7.2007 issued by the Registrar General of this Court infact reads as follows: 16 ―To All the Distt. & Sessions Judges of Bihar. 24th July, 2007 Sir, I am directed to say that the Court have been pleased to resolve to accept the request made by the Secretary, Minority Welfare Department, Government of Bihar, directing the Subordinate Courts of the State to transfer cases relating to Wakf property to the Wakf Tribunal. I am, therefore, to request you to take necessary action in this regard accordingly, under intimation to the Court. Yours faithfully Sd/- M.Singh Registrar General.‖ The aforesaid instruction on the administrative side by this Court also does not say that the District and Sessions Judges of Bihar were to transfer all the suits and/or appeal or other cases relating to the Wakf property to the Wakf Tribunal in an indiscriminate manner without looking into the jurisdiction of the Tribunal. The said order of the High Court on the administrative side at best was only issued 17 by way of guidance to ensure that such pending cases which in terms of section 7 of the Act would no longer be continued before the civil court were to be transferred in terms of section 85A (Bihar Amendment) of the Act. As a matter of fact this Court has only analyzed the scheme under sections 7, 85, 85A of the Act and has gone into the scope of the administrative circular dated 24.7.2007 to clarify the position of applicability of section 7 of the Act in this State. The law otherwise has been already settled by the Apex Court in the case of Sardar Khan & ors. vs. Syed Najmul Hasan (Seth) & ors., reported in AIR 2007 S.C. 1447, wherein the Apex Court after examining the scheme of the Act had held that- ―the Tribunal shall not have jurisdiction to determine any matter which is subject matter of any suit or proceeding instituted or commenced in a civil court before commencement of the Act and if any suit has been instituted in any civil court prior to coming into force of the Wakf Act, 1995, then the Tribunal will have no 18 jurisdiction to decide such matter and to continue and conclude as if Act has not come into force.‖ The aforementioned ratio laid down by the Apex Court in the case of Sardar Khan (supra) being the law of land could not have been distinguished, as was however sought to be done by Mr. Hoda, learned counsel for the petitioner, on the ground of date of institution of the appeal being 27.6.2000 because in that case also the suit was filed on 19.12.1976 and the judgment was delivered on 23.1.1996 and an appeal was filed on 1.3.1996 and yet the Apex Court having held that the suit was pending since 19.12.1976 i.e. prior to commencement of the Act i.e. 1.1.1996 had held that the Tribunal will have no jurisdiction to decide the suit or appeal arising from that suit. The law, therefore, either with respect to the suit or appeal in respect of the Act stands settled in the judgment of Sardar Khan (supra) wherein the pronouncement of law in this respect is as follows: ―On a conjoint reading of sub- section (5) of section 7 and section 85, the result would be 19 that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1.1.1996 i.e. coming into force of the Wakf Act, 1995.‖ This Court, therefore, following the ratio of the Apex Court in the case of Sardar Khan (supra) must hold that the view taken by the court below in the impugned order does not suffer from any error and consequently this civil revision application being devoid of any merit must be and is hereby dismissed. There shall be, however, no order as to costs. (Mihir Kumar Jha,J.) Patna High Court Dt.the9th Sept. 2009 A.F.R./Surendra