Bengali Peer Dargah vs Usman Karim Mulla and Others

A.N. Venugopal Gowda, J—Challenge in this writ petition is to an order dated 28-7-2014 passed by the Karnataka Wakf Tribunal, Belgaum (for short, ''the Tribunal''), dismissing No. KWT.BIJ.SR. 3/2007. Brief facts necessary for deciding of this petition are that the petitioner filed in the Tribunal, the suit, registered as No. KWT.BIJ.SR. 3/2007, to pass a decree of perpetual injunction against respondent 1, from interfering with the peaceful possession and enjoyment of the property, being 6 acres 31 guntas of land, in R.S. No. 2 of Karadaga Village, Chikkodi Taluk, Belgaum District. Written statement was filed by respondent 1, contending that the suit is false, frivolous, vexatious and that the Tribunal has no jurisdiction to try the case, particularly, on account of the pendency of RSA Nos. 1091 and 1256 of 2005. The Tribunal having framed an issue with reference to the contention of defendant 1, that it has no jurisdiction to try the suit, has passed the impugned order.

Sri Sachin S. Magadum, learned Advocate, contended that the impugned order suffers from perversity, having been passed in ignorance of the record and the law. He submitted that the Tribunal has failed to take note of the undisputed fact, that O.S. No. 504 of 1989 was filed to pass a decree of declaration, that the agricultural land in Sy. Nos. 10, 10-A and 12 of Karadaga Village are the properties belonging to the plaintiff and for perpetual injunction and that the subject-matter of the instant suit, being all together different, i.e., 6 acres 31 guntas of land in Sy. No. 2 of Karadaga Village and thus, the subject-matters of the two cases being different, the dismissal of the suit is illegal. He contended that the Tribunal has failed to notice the factual ground and law laid down by the Apex Court in Haryana Wakf Board Vs. Mahesh Kumar, (2014) 1 AD 63 : AIR 2014 SC 501 : (2014) 1 RCR(Civil) 311 : (2013) 14 SCALE 199 : (2014) 3 SCJ 159 . Learned Counsel submitted that Section 7(5) of the Wakf Act, 1995 (for short, ''Act'') having no application and the impugned order being arbitrary, is liable to be quashed.

Sri M.G. Naganuri, learned Advocate, on the other hand, by inviting my attention to sub-section (5) of Section 7 of the Act, submitted that the Tribunal is justified in dismissing the suit, on account of the pendency of RSA Nos. 1091 and 1256 of 2005. He submitted that the decision in Harynaa Wakf Board''s case, applies and hence, no interference with the impugned order is called for.

Perused the writ record and considered the rival contentions. Point for consideration is, whether the Tribunal has committed illegality in dismissing the suit?

Wakf Act, 1995 has come into effect, from 1-1-1986. Section 6 relates to ''disputes regarding wakfs property'' and the same being relevant is extracted hereunder:

"6. Disputes regarding wakfs.--(1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia Wakf or Sunni Wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:

Provided 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.

Explanation.--For the purposes of this section and Section 7, the expression "any person interested therein", shall, in relation to any property specified as Wakf property in the list of wakfs published after the commencement of this Act, shall include also 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.

(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made there under.

(4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section (1)".

(emphasis supplied)

From the above provision, there is no ambiguity. The intention is that, after the Act came into force, no suit or other legal proceeding relating to Wakfs property, shall be instituted in any Court and shall have to be instituted in the Tribunal only.

Sub-section (5) of Section 7 lays down, that the coming into force of the Act, will not effect any pending suit or appeal. Section 7 relates to power of Tribunal to determine disputes regarding Wakfs and the same being relevant is extracted hereunder:

"7. Power of Tribunal to determine disputes regarding wakfs.--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

(b) in the case of the list of wakfs relating to any part of the State and published at anytime 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 a Civil Court in a suit instituted before such commencement, the Tribunal shall not reopen 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) The Chief Executive Officer shall not be made a party to any application under sub-section (1).

(4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

(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 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".

(emphasis supplied)

In exercise of the power under Section 83 of the Act, Wakf Tribunal was constituted. In view of sub-section (5) of Section 7, 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 Court under sub-section (1) of Section 6 i.e., in respect of the subject-matter of a suit instituted prior to the coming into force of the Act.

In O.S. No. 116 of 1987, renumbered as O.S. No. 504 of 1989, a decree for declaration was sought in respect of the properties bearing R.S. Nos. 10, 10-A and 12, situated within the limits of Karadaga Village, Chikodi Taluk. The suit having been decreed and in the appeal filed by the defendants, the decree having been modified, both parties have filed RSA Nos. 1091 and 1256 of 2005 and the same are pending.

The subject-matter of the suit, which has given rise to the impugned order, is Tomb of Bengali Peer Dargah, situated at R.S. No. 2 at Karadga Village, Chikodi Taluk in land measuring 6 acres 31 guntas. Undisputedly, the subject-matter of the above said two suits are different. Therefore, sub-section (5) of Section 7 of the Act has no application and the judgment and decree which may be passed in RSA Nos. 1091 and 1256 of 2005, will not non-suit the petitioner to the property, which is the subject-matter of the case bearing No. KWT.BIG.SR. 3/2007.

The Tribunal without examining the record of the case and by misreading of sub-section (5) of Section 7 and without noticing sub-sections (1) and (5) of Section 6 and also mechanically relying upon the decision in Haryana Wakf Board''s case, has passed the impugned order. In the said decision, Apex Court has held as follows:

"8. As per sub-section (1) of Section 7 of the Act, if a question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, it is the Tribunal which has to decide such a question and the decision of the Tribunal is made final. When such a question is covered under sub-section (1) of Section 7, then obviously the jurisdiction of the Civil Court stands excluded to decide such a question in view of specific bar contained in Section 85. It would be pertinent to mention that, as per sub-section (5) of Section 7, if a suit or proceeding is already pending in a Civil Court before the commencement of the Act in question, then such proceedings before the Civil Court would continue and the Tribunal would not have any jurisdiction.

On a conjoint reading of Sections 7 and 85, legal position is summed up as under:

(i) In respect of the questions/disputes mentioned in sub-section (1) of Section 7, exclusive jurisdiction vests with the Tribunal, having jurisdiction in relation to such property.

(ii) Decision of the Tribunal thereon is made final.

(iii) The jurisdiction of the Civil Court is barred in respect of any dispute/question or other matter relating to any wakf, wakf property for other matter, which is required by or under this Act, to be determined by a Tribunal.

(iv) There is however an exception made under Section 7(5) viz., those matters which are already pending before the Civil Court, even if the subject-matter is covered under sub-section (1) of Section 6, the Civil Court would not continue and the Tribunal shall have the jurisdiction to determine those matters".

There is non-application of mind and there is no focused consideration to the record of the case by the Tribunal. The relevant provisions have not been noticed. Thus, the impugned order being vitiated is liable to be quashed.

In the result, writ petition is allowed and the impugned order is quashed. Case is remitted to the Tribunal, to consider the matter afresh and in accordance with law.

Both parties shall appear before the Tribunal on 9-3-2015 and receive further orders.

No costs.