Masjid-E-Hashmiya Wakf Institution vs The Regional Commissioner and Others

K.N. Phaneendra, J.

The present petition is preferred challenging the order passed by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga, in Unnumbered Original Suit 2013. The Tribunal has rejected the suit as not maintainable on the ground that it has no jurisdiction to deal with the matter.

The plaintiff who is the Masjid-E-Hashmiya Wakf Institution, represented by its Chairman filed a suit against the respondents herein for permanent injunction restraining them from interfering with the wakf property. The Tribunal relying upon the decision of the Supreme Court reported in SCCR 2011 PAGE 89 and also relying upon the decision of the Supreme Court reported in the case of Ramesh Gobind ram (Deceased by L.Rs.) v. Sugra Humayan Mirza Wakf has held that the Tribunal has no jurisdiction to entertain the suit as there is no dispute with regard to the wakf or wakf property. Further the Tribunal has observed that there is no declaration sought for declaring any property as wakf or wakf property and it is only dispute with respect to an unlawful interference by defendant Nos. 3 and 4. Therefore, ordinary Civil Courts are not excluded to entertain such suit. Making such observation, the Wakf Tribunal has dismissed the suit as not maintainable.

I have also carefully given my anxious deliberation so far as the aforesaid observation of the learned Judge is concerned. The Wakf Act, 1995 (for short ''the Act'') came into force empowering the Tribunal to deal with certain matters only. Of-course, there is bar under Section 85 of the Act excluding the jurisdiction of the Civil Courts to entertain some of the matters which are to be tried by the Wakf Tribunal. Section 85 of the Act reads as follows:

"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."

(Emphasis supplied)

On meticulous reading of the above said provision it is clear that the Civil Courts'' jurisdiction are excluded when the matter which is required by or under the Act to be determined by the Tribunal. For this purpose, the Court has to look into as to what is the empowerment entrusted to the Tribunal under this particular Act. This takes me to the provision under Section 7 of the Act, which defines the power of the Tribunal to determine the dispute regarding wakf which reads as follows:

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

(1) If, after the commencement oft this Act, any question arises, whether a particular property specified as wakf property in a list oft 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 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 a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question."

On careful perusal of the above said provision, it clearly disclose that after the commencement of the Wakf Act 1995, 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. Therefore, as rightly observed by the learned Judge that the empowerment under Section 7 of the Act cannot be extended so far as the interference by the 3rd party to the wakf property when no dispute arise for declaration whether the said property is wakf property or not, whether the said property is Shia wakf or a Sunni wakf etc, as enunciated under Section 7 of the Act. Therefore, I do not find any strong reasons to interfere with the order passed by the Wakf Tribunal.

However, the learned Judge has exceeded his limit in making observation with regard to the merits of the case. At paragraph-9 of its order, the learned Judge has not only dismissed the suit on maintainability but he has also made some observations regarding merits of the case which is as under:

"The Tahsildar, has reported that there is an encroachment to the extent of 807.60 Sq. Ft. by the Hasmiya Mosque on the road. The order passed by the Municipal Commissioner, City Municipal Council, Raichur prima facie shorn that it is the Hasmiya Mosque which has encroached public road to the extent of 807 sq. ft. This document indicates that the plaintiff has not approached the Tribunal with clean hands seeking discretionary relief. This document also makes it clear that there are no good grounds to take cognizance of the allegations made in the plaint against the defendants so as to proceed with the matter. Therefore, I am of the opinion that the suit filed by the plaintiff is not maintainable under law. Viewed thus, I answer this point in the negative."

When the Court is of the opinion that it has no jurisdiction to deal with the matter at all, in my opinion, the Court is debarred from expressing any of its opinion with regard to the merits of the case which affect or prejudice rights of either of the parties which has to be agitated before the competent Court and which has to be decided by the competent Court on facts and circumstances of each case. Therefore, in my opinion, the said portion of the observations made by the Tribunal on the merits of the case which is unwarranted requires to be expunged. Therefore, the said portion of the order is hereby expunged.

However, the petitioner is at liberty to approach the civil Court for its remedies. The Civil Court has to apply its independent judicious mind to find out the reality and prima facie rights of the parties in accordance with law.

In view of the above said finding, the petition is hereby dismissed.