1 RA NO.8/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD REVIEW PETITION NO.8/2011 IN CIVIL REVISION APPLICATION NO.139/2005. 1) Pandurang s/o Rangnath Patil Age: 60 Yrs., occu. Agril. R/o Dhoki, Tq. And District Osmanabad. 2) Rajabhau s/o Uttareshwar Patil Age: 43 Yr., occu. Agril. r/o Dhoke, Tq. And Dist. Osmanabad. - PETITIONERS (orig.Resp.Nos.1 & 2)(orig.plaintiffs) VERSUS 1) The Maharashtra State Wakf Board through Chief Officer, Maharashtra State Wakf Board, Panchakki, Aurangabad. 2) The District Wakf Officer, Wakf Board, Osmanabad. 3) The State of Maharashtra, Through the Collector, Osmanabad. - RESPONDENTS ***** Mr.VD Salunke, Advocate for Applicant; Mr.MBW Khan, Advocate for Respondent No.1 Mr.PP More, AGP for State. ----- 2 RA NO.8/2011 CORAM : K.U.CHANDIWAL, J. DATE : 20th June, 2011. COURT'S ORDER: 1) Heard learned Counsel for the parties extensively. 2) Review petitioners seek to review/recall the order dated 24th November, 2010, whereby Civil Revision Application of Wakf Board is allowed and this Court has held that, - the civil proceedings, i.e. RCS No.156/2005, moved by the review petitioners, be transmitted to the Wakf Tribunal, for deciding the controversy between the parties. 3) Mr.Salunke, learned Counsel appearing for the review petitioners, submits that there is an error apparent in the order recorded by this Court, as this Court has not considered the revenue record, which illustrate effecting mutation in respect of 20 R. land in the year 1989 from Gut No.283, without there being any authority in the Talathi to incorporate/effect such mutation in the name of the Panch committee. He says, merely issuance of notice by the Wakf Board by itself would not mean the powers to be vested in the Wakf Board and taking away right of the land-holders/review 3 RA NO.8/2011 petitioners. The learned Counsel to stress his point about deciding jurisdiction, has placed reliance to the judgment of the Apex Court in AIR 2010 SC 2897 (Ramesh Gobindram (deceased by Lrs) Vs. Sugra Humayun Mirza Wakf), wherein, the Hon'ble Lordships have observed in paragraph 12, 15, 16, 18 and 21, about jurisdiction, the gist of such observation is as under, - "The exclusion of jurisdiction of Civil Court by either Ss 6, 7 or by Ss. 83, 85 of Act is not absolute. By Ss. 6 and 7 the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Sia wakf or a Sunni wakf is made to rest 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. Section 85 also bars the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute, question or matter relating to a wakf, wakf property or other matter which is required to be determined by Tribunal by Act. The words "which is required by or under this Act to be determined by Tribunal" holds th key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the Civil Court. Whenever a question arises whether "any wakf or wakf property or other matter" falls within the jurisdiction of a Civil Court the 4 RA NO.8/2011 answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question. Although exclusion of jurisdiction of Civil Court under S. 85 is wider than what is contained in Ss. 6 and 7 the exclusion of jurisdiction of Civil Courts even under it is limited only to matters that are required by the "Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred. The expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" also appears in S. 83(1) but there is, nothing in S. 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts beyond what has been provided for in S. 6(5), S. 7 and S. 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question or 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." 5 RA NO.8/2011 4) The Hon'ble Lordships have also observed, the Act does not provide for any proceeding before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of wakf property or the rights and obligations of the lessor and the lessee of such property. A suit seeking eviction of tenants from what is admittedly wakf property could, therefore,be filed only before the Civil Court and not before the Tribunal. 5) I quite see the present proceedings have no relevance to the facts referred herein above in the reported judgment of the Apex court. 6) Order 47 Rule 1 deals with review of the judgment and order. Clause 2(c) thereof provides that from discovery of a new and important matter or evidence, which after exercise of due diligence, was not within the knowledge of the petitioner or could not be produced; or on account of some mistake or error apparent on the face of the record; or for any other sufficient reason, the petitioner desires to obtain a review of the decree for the order made against him, is at liberty for application seeking such review. 7) Mr.Salunke submits that since there is an error apparent on the face of record, in this 6 RA NO.8/2011 court passing the order, review is maintainable. 8) This Court, while recording the order, which is questioned now, has considered a limine dismissal of writ petition of the review petitioners. In Writ Petition No.2351/1989, prayers were relating to setting aside the entries at Serial No.24 in respect of grave-yard, admeasuring 4 acres by issuing appropriate writ or direction. The relief in the said writ petition was also concerning the Government Gazette dated 17.3.1980 at serial no.24. 9) In the light of the Government Gazette referred above, relating to 4 acres of land, unless the same is tested before appropriate forum, declaration thereof cannot be sought in civil court. A scheme is formulated under the Wakf Act. Sections 6 and 7 thereof speak as to procedure and also the nature of wakf. The dispute regarding wakf property is necessarily to be entertained by the Wakf Tribunal established under the said Act. Whether the property is wakf or not, the wakf is squarely covered in terms of Sections 6 and 7 thereof. Since there was a declaration in terms of the Government Gazette of 1980, remedy available to the aggrieved review petitioner was certainly under Sections 6 and 7 of the Wakf Act to challenge the order of 7 RA NO.8/2011 competent authority and limitation was provided for the same. 10) However, I find that the remedy in respect of 21 R. land, concerning the mutation entry effected in 1989 for Gut No.283, primarily does not depict vesting of right in the panch committee and thereby giving a forum of Wakf Board/Tribunal. 11) In this scenario of the matter,the plaint in RCS No.156/2005, for which review is sought, would certainly lie before the competent forum of Wakf Tribunal to the extent of 4 acres of land in Gut No.282. However, the petitioners herein are at liberty to continue for remedies in competent civil court for land Gut No.283 to the extent of entry in respect of 21 R. land, shown as grave-yard in the name of the panch committee. 12) In the light of foregoing discussion, following order is passed in the review. (A) Prayers in RCS No.156/2005 to the extent of Gut No.282, totally admeasuring 3 hectares and 92 R., carving out 4 acres of the land, being the Government Notification/Gazette dated 17.3.1080 would lie before the Wakf Tribunal; 8 RA NO.8/2011 (B) So far as 21 R. land is concerned, marked as graveyard in the name of the panch committee, from land Gut No.283 vide mutation entry No. 179 effected on 20th January, 1990, and certified by revenue officers on 27.5.1990,it would be open to be addressed in the competent civil court or revenue court at the behest of the original plaintiff/Review petitioner. (C) In the above situation, Regular Civil Suit No.156 of 2005 pending on the file of learned Civil Judge, Senior Division, Osmanabd, would be maintainable and to be tried as per law to the extent as above.. (D) No costs. 13) Needless to add, on evaluation and appreciation of the documents, the point of jurisdiction concerning 21 R. of property of raised by the Wakf Board, shall be entertained by the Court concerned. ( K.U.CHANDIWAL ) JUDGE bdv/