( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 120 OF 2008 Shri Rukhmai Education Prasarak Mandal, .. Appellant Nanded Versus Ahmed Hamidoddin Khalil and ors., .. Respondents Shri V.D. Salunke, Advocate for the appellant. Shri S.S. Kazi, Advocate for respondent No.2. Shri P.M. Shah, Sr. Advocate i/b. Shri S.P. Shah, Advocate for respondent Nos. 9A to 9F. CORAM : P.R. BORKAR,J. RESERVED ON : 08.10.2009 PRONOUNCED ON : 16.10.2009 O R D E R :- 1. This appeal from order is directed against the order passed by the Jt. Civil Judge, Senior Division, Nanded, in Special Civil Suit No. 233 of 2006, below Exh.1, on 08.10.2008, whereby the learned Civil Judge held that the ( 2 ) said Court had no jurisdiction to entertain the suit and, therefore, the plaint was returned to the plaintiff under Order VII Rule 10 of the Code of Civil Procedure for presentation before the Wakf Tribunal, Aurangabad. 2. Present appellant is an educational institution suing through its President for the following reliefs :- “(1) Suit for specific performance of contract of lease of Land Gut No. 120 adm. 9 H. 6 R. land revenue Rs.39.42 p.s. to the extent of 7 Acre 7 Guntha from road side out of Gut No.120 having four boundaries of land Gut No.120 to East – Village Boundary line of Fattejangpur, to West – Land Gut No. 129 to 132, to North – Land Gut No. 117 to 119, and village Kautha boundary, to South – Land Gut No. 121, situated at Asarjan, Tq. & Dist. Nanded to execute the registered lease deed for 99 years as per agreement of lease executed by defendant No.1 on 29 March, 1997 in favour of plaintiff for the consideration of Rs. 3,50,000/- (Rs. Three Lacs Fifty Thousand Only) by granting decree of specific performance of contract in favour of plaintiff and against the defendant no.1,2 and defendant No.8. (2) Declaration may kindly be granted that exchange deed executed by defendant No.1,3 to 9, 9-A to 9-F and consented by defendant No.2 in favour of each other pertaining to suit land Gut No.120 adm. 21 Acre 21 Gunthe i.e. 9 H 6 R. To the extent of plaintiffs right of lease agreement 7 acre 7 gunthe is not binding on plaintiff and it be declared null and void and ab-initio which is registered Sr.3442 before sub-registrar, Nanded dt. 28.06.2006. ( 3 ) (3) Perpetual injunction may kindly be issued restraining defendant No.9-A to 9-F from creating any third party interest or creating any type of alienation such as sale- mortgage etc. over land gut No.120 adm. 21 acre 21 gunthe. Land situated at Asarjan Tq. & Dist. Nanded by any mode to anybody perpetually by granting decree of perpetual injunction. (4) In alternative recovery of damages for breach of contract for Rs. 10,00,000/- (Rs. Ten Crores only) [sic] may kindly be granted from defendant No.1 to 7 and 9, 9-A to 9-F as behind the back of plaintiff in their collusion they have prepared the exchange deed with knowing to each other in existence of agreement of lease with plaintiff.” 3. Respondent No.1, who was original defendant No.1, was Mutawali of Dargah Hazrat Mira Makka Awaliya Gadipura, Nanded. Respondent Nos. 2 to 7 are members of managing body of said Wakf - Dargah Hazrat Mira Makka Awaliya Gadipura, Nanded. Respondent No.8 - original defendant No. 8, was District Wakf Officer, Vazirabad, Nanded. It is alleged that in the year 1997, appellant/institution was in need of land for their proposed school in the vicinity of village Asarjan. At that time respondent Nos. 1 and 2 met the appellant, gave proposal of suit land for purpose of school and agreed to give 7 acres 7 gunthas land out of Gat No. 120, which was in all 21 acres 21 gunthas, on certain terms and conditions. ( 4 ) Respondent No.1 before executing agreement of lease was constantly in touch through his members of family and son and received total amount of Rs. 1,12,303/- from time to time and in token thereof passed receipts. Finally, he agreed to execute lease deed in favour of the plaintiff on 29.04.1997 and accordingly executed an agreement of lease-deed on 29.04.1997 in presence of notary Mr. Siddiqui. It was agreed between the plaintiff and respondent Nos. 1 & 2 that sine there was certain dispute between respondent No.1 and respondent No.8 and other persons pertaining to succession; and in view of certain disputes pending before the Revenue Authority, Wakf Board and Court, it was agreed and decided between the plaintiff/appellant and respondent No.1 that the land to the extent of 7 acres 7 gunthas be given on lease of 99 years for consideration of Rs. 3,50,000/-, after completion of necessary procedure for execution of lease agreement by obtaining consent and permission from the Maharashtra State Wakf Board. The details of amount paid from time to time were given and it is stated that in all amount of Rs. 1,42,303/- was paid to respondent No.1. It is further stated that as per the agreement, respondent No.1 sought permission through respondent No. 8 District Wakf ( 5 ) Officer to Maharashtra State Wakf Authority seeking sanction for alienation of land as entire litigation, in which respondent No.1 was involved, had ended before the revenue authorities by accepting the Munthakhan in the name of respondent No.1. It is also stated that respondent No.2 was authorized by the Government of Maharashtra as Mutawali to (through) respondent No.1 of Dargah Hazrat Mira Makka Awaliya Gadipura, Nanded (sic). However, in the application, instead of getting permission for transfer in favour of the plaintiff/appellant, permission was obtained for exchanging the land with land of defendant Nos. 9 to 9F and accordingly execution of exchange-deed took place on 28.06.2006. According to plaintiff/appellant, it was illegal and not binding to the extent of 7 acres 7 gunthas land in respect of which the agreement to lease had been executed. Respondent No.2 was son of respondent No.1 and also holder of power of attorney of respondent No.1. With above said averments and various prayers for specific performance of contract of lease; declaration that exchange deed dated 28.06.2006 is null and void and not binding on the plaintiff; for perpetual injunction; and in the alternative, damages of Rs. 10 crores are claimed. Valuation for jurisdiction and Court fees is ( 6 ) stated to be Rs. 3,50,000/-. 4. It is argued before me that it is not disputed that suit property was originally belonging to Dargah Hazrat Mira Makka Awaliya Gadipura, Nanded. It is a wakf. The learned advocate for the appellant Shri V.D. Salunke specifically stated that existence of Wakf or fact that the suit property being originally property of Wakf is not at all disputed by any of the parties. According to him, Section 85 of the Wakf Act, 1995, ought to have been read with Section 6 of the Wakf Act. It was wrongly held that the suit relates to Wakf or Wakf Property and as such the Court has no jurisdiction. It is the interpretation of Section 85 of the Wakf Act, 1995, which is the main issue before this Court. 5. As per learned advocate for the respondents, the suit relates to Wakf property, its exchange and various prayers made are clearly beyond the jurisdiction of the Civil Court. Both sides cited several authorities. Before I refer to various authorities cited by by both sides, I may consider various provisions of Wakf Act, 1995. Section 85 is as follows:- ( 7 ) “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.” . The learned advocate for the respondent has argued that no suit or other proceeding in respect of any dispute in question or other matter relating to wakf or wakf property can be entertained by Civil Court; whereas the learned advocate for the appellant wanted to argue that words “any dispute, question or other matter relating to any wakf, wakf property or other matter”, which is required by or under the Wakf Act to be determined by a tribunal are excluded from the ambit of Civil Court. So, question is whether the phrase “which is required by or under this Act to be determined by a tribunal” relates to only phrase “other matter” or it also refers to “any wakf, wakf property”. 6. So far as rules of interpretation are concerned, in the case of Smt. Laxmibai Narayan Satesa V/s. Dattatraya Tukaram Jarande, AIR 1983 BOMBAY 289, Division Bench of this ( 8 ) Court held that jurisdiction of Court must be determined only from averments in the plaint and not on the basis of defences in the written statement or on the basis of issues raised. 7. The rules of interpretation regarding exclusion of jurisdiction of Civil Court are summarized by the Supreme Court in the case of Dhulabhai etc. V/s. State of Madhya Pradesh and Anr., AIR 1969 S.C.78. Their Lordships in para 32 laid down rules as follows:- “32. ................ The result of this inquiry into the diverse views expressed in this Court may be stated as follows :- (1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. ( 9 ) Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express ( 10 ) prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.” 8. Thus, an exclusion of jurisdiction of the Civil Court is not to be readily inferred unless other conditions are complied. No doubt, there is express bar of the jurisdiction and there is also adequate machinery provided under the Wakf Act by the establishment of Wakf Tribunal. Ultimately, we will have to consider whether the jurisdiction of the Wakf Tribunal relates to all disputes, question or other matters relating to any Wakf and Wakf property, or only those which are required by or under the Wakf Act to be determined by a tribunal. We will have to examine the provisions of the Wakf Act, particularly relating to Wakf Tribunal. 9. The case of I. Salam Khan V/s. The Tamil Nadu Wakf Board, AIR 2005 MADRAS, 241 is cited. In para 3 of the said case, it is observed that the Wakf Act, 1995 is a recent ( 11 ) parliamentary statute which has constituted a special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of petitions relating to Wakfs were being filed in the Courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters. In para 6 of the said case, it is observed as follows:- “6. Thus, the Wakf Tribunal can decide all disputes, 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.“ 10. Another case cited is Syed Inamul Haq Shah V/s. ( 12 ) State of Rajasthan and anr., AIR 2001 RAJASTHAN 19. Single Bench of Rajasthan High Court observed that the language of Section 85 of the Act uses the words “no suit or other legal proceeding shall lie” which will, therefore, depend on the meaning of the words “shall lie”. The phrase “an action will not lie” means that an action cannot be sustained, or that there is no ground upon which to found the action. In said case, as observed in para 11, the Court was more concerned with whether the provision is retrospective or prospective and whether pending suits were barred and it does not deal with the issue which is for our consideration. 11. In the case of Aliyathammada Beethathabiyyapura Pookoya Haji V/s. Pattakkal Cheriyakoya and Ors., AIR 2003 KERALA 366, the Division Bench overruled Single Bench ruling in Abdul Rahiman Musaliar V/s. Muhammad Sahib, AIR 2003 Kerala 84 and held that Tribunal has jurisdiction not only on matters specifically conferred on Tribunal by provisions of Act but also on matter relating to Wakf or Wakf property. The Single Bench in the case of Rahiman Musaliar (Supra) had taken view that a suit for permanent prohibitory injunction restraining defendants from interfering with the affairs of ( 13 ) Mutawali etc. by plaintiff claiming himself to be Mutawali is within jurisdiction of Civil Court. After referring to Section 85 of the Wakf Act, it is observed that only those matters which are required or under the Wakf Act to be determined by the Tribunal that the bar of Section 85 applies. The Division Bench overruled the view taken by the Single Bench and we find observations in para 12 to 14 as follows:- “12. 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 sweep 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. 13. The Wakf Act is complete code by itself and the intention of the legislature is not provided for better administration of Wakf and for matters connected therewith and incidental thereto. The Act has created the post of Chief Executive Officer to be appointed under Section 23(1) of the Act. Considerable statutory powers have been conferred on the Chief Executive Officer as well. Act has also constituted a Board by name Wakf Board ( 14 ) under Section 13 of the Act. Powers have also been conferred on the mutawalli. Section 83(2) of the Act empowers any mutawalli or person interested in a Wakf or any other person aggrieved by an order made under this Act or rules made thereunder may make an application within the time specified in the Act or where no such time has been specified, within such time as may be prescribed to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. Words “person interested” also defined in the Act under Section 3 (k) of the Act. 14. On going through the entire scheme of the Act and the provisions contained we are of the view the decision rendered by learned Judge in Abdul Rehiman Musaliar’s case (AIR 2003 Kerala 84) has given emphasis on the second limb of Section 83, that is what is required by the Wakf Act to be determined not on the first limb that is relating to the Wakf or Wakf property. The learned Judge has given a strict interpretation to Section 85 of the Act. We find ourselves unable to subscribe the interpretation given by the learned Judge in Musaliar’s case. The powers of the Wakf Tribunal are all pervasive and it could entertain appeals and applications and also could resolve all the disputes. Questions or other matters relating to Wakf. Wakf property and also matters conferred on the Tribunal or else the purpose and object of the constitution of the Tribunal would be defeated. It is so declared.” 12. Another case cited is Yashpal Lala Shiv Narain V/s. Allatala Tala Malik Waqf Ajakhan Mus, AIR 2006 Allahabad 115. That was a matter between the tenants and Mutawalli regarding determination of tenancy. The suit was for eviction of ( 15 ) tenants. The suit was not disputing the title to a Wakf property or regarding right of Mutawalli or beneficiary. So, it was a suit under the Rent Control Act and it was held that Section 90 (1) of the Wakf Act, 1995, is not applicable and notice to Wakf Board was not necessary. It is held that suit for eviction after determination of tenancy is not a suit “in respect of any dispute, question or other matter relating to” any wakf or wakf property in context in which said words have been used in Section 85 of the Wakf Act. It is also not covered within purview of words “other matter which is required by or under this Act to be determined by Tribunal”. 13. When specifically asked if there is ruling of this Court on the interpretation of Section 85 of the Wakf Act, the advocate for respondent No.2 brought to my notice the order dated 05.03.2003 in C.R.A. No. 75 of 2001. However, the facts of the case involved cannot be ascertained from the order. It is observed that the Civil Judge held that the suit was not tenable in the Civil Court because the suit property is Wakf property. It was also argued before this Court that on 04.12.1999 when the order was passed by the Civil Court, Wakf Tribunal was not in existence but since it ( 16 ) was in existence when order was passed by this Court, it is held that no illegality was committed. But, there is no discussion of Section 85 of the Wakf Act. 14. Another case is Abdul Kadar @ Babbu Tailor Ismail and Ors., V/s. Masjid Juma Darwaja, 2009 (1) Bom.C.R.498. There was dispute between landlord and tenant. Suit for eviction and recovery of arrears of rent was filed. It is held by the Single Bench of this Court that the suit did not arise out of Wakf Act. The dispute was not cognizable under Section 7(1) or under Section 83(1) of the Wakf Act. It is observed that it is important to note that the dispute or questions triable by Tribunal under Wakf Act must arise under Wakf Act and not otherwise and it must require decision under said Act. A dispute between landlord and tenants is not arising under Wakf Act and, therefore, is not cognizable either under Section 7 (1) or then under Section 83 (1) thereof. In para 13 of the case it is further observed that the Tribunals created under Wakf Act are for the purpose of determining questions which arise under the Wakf Act. 15. Before we draw any conclusion, we may refer to ( 17 ) Scheme of the Wakf Act. . As per Statement of Objects and Reasons of the Wakf Act, 1995, which came into force on 22nd November, 1995, original was the Wakf Act, 1954 and establishment of Wakf Boards was superintendence and control over management of individual Wakfs. The Act was amended in 1959, 1964 and 1969. Comprehensive amendments were carried out by Wakf (Amendment) Act, 1984, which were based largely on the recommendations of the Wakf Inquiry Committee set up in December, 1970 to enquire into administration of wakfs at all levels and in response to a demand made in Parliament by the Members during a discussion on the Wakf (Amendment) Bill, 1969. One of the criticism was that the Wakf Commissioner had been given overriding powers and the Wakf Board had been made subordinate to him. The other criticisms were that the Amendment Act, 1984, is a gross interference by the State and the Central Government in the day to day management and administration of the wakfs by the Trustees and Mutawallis of wakfs. So, new Wakf law carried out certain features. Thus, under the new Act, Chief Executive Officer who was earlier designated as Wakf Commissioner, would be subordinate to Wakf ( 18 ) Board. The Act intended to put certain restrictions on the power of Mutawalli in the interest of better management of wakf properties. An important provision in the proposed Bill relates to setting up of Wakf Tribunals to consider questions and disputes pertaining to Wakfs. In the disputes relating to Wakf, there were instances of misuse of wakf properties either with or without connivance of the Mutawallis. So, it was proposed to incorporate in the Bill a provision so that the alienation of wakf properties will not be easy. With these and other Statements of Objects and Reasons, the Wakf Act, 1995 was enacted. 16. As per Chapter II, a preliminary survey of Wakf was to be carried by Survey Commissioner of Wakf and his sub- ordinates. As laid down in Section 4, on receipt of report the State Government was to publish a list