Case: PUNJAB WAKF BOARD Vs. SHAM SINGH HARIKE

afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.63. We may also notice the provision of Section 6 of sub-section (5) as it existed when suit was filed by Punjab Wakf Board against Sham Singh Harike. Section 6 sub-section (5) provided as follows: 6(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).64. As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court. In this context, in the judgment in Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45 , this Court has laid down that the question as to whether the suit property is a Wakf property is a question which has to be decided by the Tribunal. In the above case plaint was returned by the Appellate Court under Order VII Rule 10 for presentation before the Tribunal which view was upheld by this Court. In paragraph 6 of the judgment following was laid down:“6....Deciding the question of maintainability and locus standi, in respect of which Issues 2 and 4 were framed, the first appellate court held that since the claim in the suit by the petitioner which is a Wakf Board, was on the basis that suit property was wakf property and since the respondent had denied it to be the wakf property, the question had arisen as to whether suit property is wakf property or not. Such a question, in the opinion of the learned Additional District Judge, could be decided only by the Tribunal constituted under the Wakf Act. The appeal court, therefore, returned the plaint to the petitioner under Order 7 Rule 10 CPC for presentation to the court of competent jurisdiction, namely, the Tribunal. The result was that the decree passed by the trial court was set aside and the plaint returned.”66. Civil Appeal No.92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board vs. Mahesh Kumar. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.67. One more question needs to be considered is as to whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5.68. The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.69. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]27. This Court noticed in the aforesaid judgment that there is a cleavage in the judicial opinion expressed on the question of jurisdiction of Wakf Tribunal by the different High Courts in the country. The view of the Andhra Pradesh High Court, Rajasthan High Court, Madhya Pradesh High Court, Kerala High Court and Punjab and Haryana High Court has been noticed where High Courts have taken the view that jurisdiction of the Wakf Tribunal is wide enough to entertain and adjudicate upon all kinds of disputes which relate to any Wakf Property. The contrary view of the High Court of Karnataka, High Courts of Madras, Allahabad and Bombay was also noticed.This Court noticing the provisions of Section 83 has observed that Section 83 does not deal with the exclusion of the jurisdiction of Civil Courts to entertain the civil suits generally or suit of any particular class or category. It interpreted Section 83 as a provision which does not exclude the jurisdiction of the Civil Court.46. In both the suits giving rise to these appeals the suits were filed much before the amendment of Section 83 by Act 27 of 2013. We, thus, in the present case has to interpret Section 83 as it existed prior to the above Amendment, 2013.Section 54(4) contemplates an appeal to the Tribunal by the mutawalli who is aggrieved by an order of removal. Sub-section (6) of Section 64 is again a power of the Tribunal to appoint a suitable person as receiver to manage the Wakf. On an application filed by the Board in an appeal challenging his removal order the Tribunal can appoint a receiver. These are provisions in the Act which refer to the Tribunal and refer to the subject matter which can be brought before the Tribunal by mutawalli or Board or any aggrieved person. The use of the wordunder Section 83(1) relates to the wordsthe determination of any dispute, question or other matter relating to a Wakf or Wakf. Section 83(1) provides for constitution of Tribunal. Other provisions of Section 83 deals with the procedure including bar of appeal against the order of the Tribunal except power of the High Court to revise the order of the Tribunal.52. Coming to Section 83 which relates to bar of jurisdiction of Civil Court, the relevant words aredispute, question or other matter relating to a wakf or wakfwhich is required by or under this Act to be determined by the Tribunal. Thus, bar of jurisdiction of Civil Court is confined only to those matters which are required to be determined by the Tribunal under this Act. Thus, Civil Court shall have jurisdiction to entertain suit and proceedings which are not required by or under the Act, 1995 to be determined. Thus, answering the question of jurisdiction, question has to be asked whether the issue raised in the suit or proceeding is required to be decided under the Act, 1995 by the Tribunal, under any provision or not. In the event, the answer is affirmative, the bar of jurisdiction of Civil Court shall operate.53. In the judgment in Ramesh Gobindram (supra) this Court after considering Sections 83 and 85 as noted above has explained the provisions. We now have to apply the proposition of the law as noted above in facts before us in both the appeals.In the above case the respondents were mortgagee of property which under Section 5 of 1954, Act was published for inclusion in the list of Wakfs. The writ petition was filed by the respondents challenging legality and validity of the proceedings taken which was allowed by the High Court. The High Court held that where a person claiming title is a stranger to the Wakf, the inclusion of such property in the list of Wakfs by the Board under sub-section (2) of Section 5 of the Act shall not be final and conclusive. This Court noticed the contention of the respondents who contended that they being non-Muslims they are outside the scope of sub-section (1) of Section 6 and they have no right to file the suit contemplated by that sub-section, therefore, the list of Wakfs published under sub-section (2) of Section 5 cannot be final and conclusive against them under sub-section (4) of Section 6.explanation to sub-section (1) of Section 6 makes it clear that any person interestedwho, though not interested in the Wakf concerned, is interested in such property. The above amendment of Section 6 sub-section (1) has made the interpretation of this Court in Board of Muslim Wakfs (supra) of Section 6 sub-section (1) inapplicable. Thus, the interpretation that the wordrefers to only Wakf has been consciously departed with and any person interested therein is a person who is interested in Wakf as well as in Wakf property both.The judgment of this Court in Punjab Wakf Board v. Gram Panchayat interpreting the explanation, thus, held that the notification issued under Section 5 would be binding not only on those interested in the Wakf but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under Section 4 preceding the notification under Section 5(2). The interpretation put by this Court in Punjab Wakf Board Vs. Gram Panchayat to the explanation added by Amendment Act, 1984 can equally be applied to interpretation of explanation to sub-section (1) of Section 6 of Act, 1995. Applying the above ratio to the interpretation of explanation of Section 6(1) of Act, 1995 following two conclusions can beAny person interested in the Wakf property which is specified as Wakf property in the list of Wakfs published under Section 5 can also raise the dispute regarding the Wakf property by instituting a suit in a Tribunal. Limitation for filing such suit by any person interested in the Wakf property is one year as per Section 6(1) proviso.(b) The finality of the Wakf property being included in the list of Wakfs published under Section 5(2) shall not be on a person to whom a reasonable opportunity had not been afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.We may also notice the provision of Section 6 of sub-section (5) as it existed when suit was filed by Punjab Wakf Board against Sham Singh Harike. Section 6 sub-section (5) provided as follows: 6(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).64. As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court.Civil Appeal No.92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board vs. Mahesh Kumar. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.67. One more question needs to be considered is as to whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5.68. The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.69. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court.