Syed Masoon Ali vs Abu Naim Siddique & Anr.

Sabyasachi Bhattacharyya, J.

The first defendant in a suit for eviction under the West Bengal Premises Tenancy Act, 1997 has preferred the present revisional application against

an order whereby the petitioner’s application under Order XIV Rule 2 of the Code of Civil Procedure was rejected. By virtue of the said petition,

the petitioner challenged the maintainability of the suit before a Civil Court. According to the petitioner, in view of the bar contemplated in the Waqf

Act, 1995, the suit ought to have been filed before the Waqf Tribunal.

Learned counsel for the petitioner places reliance on Section 108A of the Waqf Act, 1995 (hereinafter referred to as “the said Actâ€) and submits

that the provisions of the said Act have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being

in force. Next, learned counsel relies on Section 83(1) of the said Act, which relates to constitution of Tribunals, etc. Section 83(1) reads as follows:

“83. Constitution of Tribunals, etc. â€" (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it

may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of

rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.

Reliance is placed in particular on the phrase “eviction of a tenant or determination of rights and obligations of the lessor and the lesseeâ€, thereby

seeking to impress upon this Court that any eviction suit relating to a waqf property would lie before the Waqf Tribunal and not a Civil Court. Placing

Section 85 of the said Act, learned counsel argued that the jurisdiction of Civil Courts is specifically barred in respect of any dispute, question or other

matter relating to any waqf, waqf property or other matter which is required by or under the said Act to be determined by a Tribunal.

Next relying on Section 3(ee) of the said Act, learned counsel points out that “encroacherâ€, under the said Act, means any person or institution,

public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has

expired or has been terminated by the Mutawalli or the Board. Learned counsel then refers to Section 54 of the said Act, relating to removal of

encroachment from waqf property. It is submitted that the said section contains a complete mechanism for removal of encroachers, as defined in

Section 3(ee) of the said Act. Section 54 of the said Act reads as follows:

“54. Removal of encroachment from waqf property . â€" (1) Whenever the Chief Executive Officer considers whether on receiving any complaint

or on his own motion that there has been an encroachment on any land, building, space or other property which is waqf property and, which has been

registered as such under this Ac-t, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling

upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so

specified should not be made and shall also send a copy of such notice to the concerned mutawalli.

(2) The notice referred to in subsection (1) shall be served in such manner as may be prescribed.

(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be

prescribed, the Chief Executive Officer is satisfied that the property in question is waqf property and that there has been an encroachment on any

such waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession

of the land, building, space or other property encroached upon to the mutawalli of the waqf.

(4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction

directing that the waqf property shall be vacated by all persons who may be in oc-cupation thereof or any part thereof, and cause a copy of th-e order

to be affixed on the outer door or some other conspicuous part of the waqf property: Provided that the Tribunal may before making an order of

eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer.

(5) If any person refuses or fails to comply with the order of eviction within fortyfive days from the date of affixture of the order under subsection

(2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf

property.†On the strength of the aforesaid provisions, learned counsel for the petitioner submits that since the suit property is admittedly a waqf

estate, the suit ought to have been filed before the Waqf Tribunal and not a Civil Court.

Learned c-ounsel for the petitioner cites a judgment reported at (2010) 14 SCC 588 (Board of Wakf, West Bengal vs. Anis Fatma Begum and Anr.). It

was held in the said judgment inter alia that the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property.

Some relevant paragraphs of the said judgment are quoted below:

“P-ara 10: In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83

of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of

India.

Para 11: It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a special Tribunal for deciding disputes

relati-ng to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases 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.

Para 14: 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

matte-rs 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), t-hen any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

Para-15: Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it

has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence,

a fullfledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.

Para 16: We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she

is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the

correctness or otherwise of an order passed under the Act. No doubt Section 83(2) refers to the orders passed under the Act, but, in our opinion,

Sections 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the

jurisd-iction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In

our opinion, even if no order has been passed under the Act, the party can- approach th-e Wakf Tribunal for the determination of any dispute, question

or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83(1) and 84 indicates. -

Para 19: It is well settled that when there is a special law providing for a special forum, then recourse cannot be taken to the gener-al law vide Justice

G.P. Singhʹs Principles of Statutory Interpretation (9th Edn., 2004, pp 133134). Para21: In view of the above, we are of the opinion that since the

matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the Civil Court. Para 23: Learned counsel

for the respondent, however, relied on the decision of this Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf (2010) 8 SCALE 698 . In the

aforesaid decision it was held that eviction proceedings can only be decided by the Civil Court and not by the Wakf Trib-unal. Para24: The dispute in

the present case is not an eviction dispute. Hence, the aforesaid decision in Ramesh Gobindram’s case is distinguishable.â€​

The next judgment cited by the petitioner is reported at (2015) 1 WBLR (Cal) 455 (M/s Hooghly Building & Investment Co. Ltd. vs. Janab Syed

Asghar Hussain Ismail & Ors.). In the said case an eviction suit had been filed. In paragraph No. 9 of the judgment, a coordinate Bench of this Court

held:

“From the above as quoted it appears that the learned Judge has considered the provisions of Waqf Act, 1995 but has not elaborately dealt with the

provisions relevant for the purpose. If Sections 83 and 85 of the Act are taken into consideration as it was before amendment in 2013, it will appear

that a suit in respect of a waqf property is barred under Section 85 of the Waqf Act, 1995. Even if one is to confine within the averments of the plaint

then also it is apparent on the face of the plaint record that the suit property has been claimed to be a waqf property and if it is so then the Court is

under obligation to decide the question of maintainability of a suit before a Civil Court taking into consideration of the provisions of Section 85 of the

Waqf Act, 1995. Provisions of Section 83 of the said Act is also to be taken note of which says that Tribunals have been constituted for the purpose

of determination of any disputed question or other matter relating to not only waqf but also waqf property. The learned Judge has observed that in the

instant suit there is no dispute regarding waqf. Even that is assumed to be correct, it is not correct that the suit property is not a waqf property.

Therefore, the finding of the learned Judge that the suit is not barred under the provisions of Waqf Act, 1995 requires to be scrutinized further. The

said Waqf Act has been amended in 2013. The provisions of Section 83 of the said Act have undergone amendment. I have already quoted the

amended provisions of Section 83. Whether amended provision of Section 83 is applicable in this case is yet to be scrutinized. The amended provision,

however, clearly states that Waqf Tribunal constituted within the meaning of Section 83 will also decide question relating to eviction of tenant,

determination of rights and obligations of the lessor and the lessee of a waqf property. In the instant suit, these are the questions and cause of action

for the suit is based on those questions. If at all the provision of amended Act is applicable the learned Judge is also required to take note of the

amended provision of Section 83 of the Waqf Act.â€​ -

The petitioner cited another judgment reported at 2013 (4) CHN (Cal) 701. In the said case, a question arose as to whether the view of the Tribunal,

that an application under Section 83(2) of the said Act would be maintainable only when an order was passed by the Board which affects a party and

not against inaction of the Board to pass an order, was correct in the eye of law. Following Anis Fatma’s case referred to above, a coordinate

Bench of this Court held that, in view of paragraph No. 10 of the decision in Anis Fatma, there was no reason to relegate the petitioner to the writ

Court. Accordingly, the matter was sent back to the Wakf Tribunal for determination of the question raised, as to whether the matter related to a

wakf property.

The- next judgment referred to by the petitioner was an unreported decision in WP 1330 of 2015 (Khoja Sunnat Jamat and Anr. vs. Boa-rd of Waqf,

West Bengal and Ors.). There the Hon’ble Single Judge held in paragraph nos. 30 to 32 as follows:

“30. To the mind of this Bench, “determination of any dispute, question or other matter relating to a waqf or waqf property†used in

subsection (1) of section 83 as well as in section 84 as well as “an order made under this Act, or rules made thereunder†used in subsection (2)

of section 83 of the Act read with sections 65 and 51 thereof are wide and expansive to embrace the grievances raised by the petitioners in this writ

petition, which can legitimately be raised before the Waqf Tribunal for a decision by it. The decision to take over direct management of the property

(under section 65 of the Act) and the decision to develop the property followed by execution of a development agreement (ostensibly under section 51

of the Act) must be construed as included in “an order made under this Act†and, therefore, amenable to challenge before the Waqf Tribunal

which ha-s the powers exercisable by a civil court under the Civil Procedure Code to decide the lis.

It has to be remembered that the jurisdiction of a writ Court under Article 226 is an extraordinary jurisdiction, which should be exercised sparingly

and in fit cases where the party aggrieved has no other remedy available to him. If the general laws of the country or a special law, which is regarded

as a selfcontained code, provide a remedy that is efficacious and supposedly speedy, it would require a party aggrieved to allege and succeed in his

contention that his fundamental right has been breached or that he has been proceeded against in violation of principles of natural justice or that the

authority deciding his fate had absolutely no jurisdiction to do so or that it has acted under a statute which is ultra vires, to enable the Court exercise its

jurisdiction under Article 226 and issue appropriate writ/order/direction ameliorating his grievance. On facts and in the circumstances of the present

case, none of these exceptions appear to be fulfilled.

In such view of the matter, the preliminary objection to the entertainability of the writ petition is upheld though for reasons different from the one

raised by Mr. Razzack. The petitioners are relegated to the Waqf Tribunal for having a decision on their grievances, in accordance with law, if so

advised.â€​ However, in paragraph no. 21 of the said judgment, it was held as follows:

“21. There is no reason to hold to the contrary on this writ petition. Each case has to be judged on the basis of its own peculiar facts. It is not the

law that whenever a writ petition is presented concerning a waqf or a waqf property, the High Court must invariably relegate the aggrieved party to

the Waqf Tribunal. Depending upon facts and circumstances of the case, subject matter of challenge and the nature of relief claimed, it would always

be within the discretionary jurisdiction of the High Court whether to entertain a writ petition concerning a waqf or a waqf property or not. The decision

in Anis Fatma (supra) cannot be decisive in all cases where issues are raised pertaining to a waqf or a waqf property.â€​

On the other hand, learned counsel for the plaintiff/opposite party No. 1 submitted that the judgment of Anis Fatma was considered in a subsequent

decision reported at (2014) 16 SCC 38 (Faseela M vs. Munnerul Islam Madrasa Committee and Another). In such judgment, it was categorically held

that a suit for eviction against the tenant relating to a waqf property was exclusively triable by the Civil Court, as such suit is not covered by the

disputes specified in Sections 6 and 7 of the 1995 Act. Some relevant paragraphs of the said judgment are quoted below:

“8. The question, for determination in these appeals, is as to whether the suit for eviction by the landlord against the tenant relating to wakf

property is triable by the civil court or the suit lies within the exclusive jurisdiction of the Wakf Tribunal.

For determination of the above question, besides Sections 6 and 7, the two other provisions which deserve to be noticed are Sections 83 and 85 of

the Act. These provisions read:

“83.Constitution of Tribunals, etc.â€"(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may

think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property, eviction of a tenant or determination of

rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.

(2) Any mutawalli person interested in a w-akf 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 this 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.

(3) Where any application made under subsection (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or

more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of

the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal

aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other

matter:

Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or

the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter

relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which

the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has

been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.

(4) Every Tribunal shall consist ofâ€

(a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who

shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;

-

(c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name

or by designation.

(4A) The terms and conditions of appointment including the salaries and allowances payable to Chairman and other members other than persons

appointed as ex officio members shall be such as may be prescribed.

(5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil

Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be

prescribed.

(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil

court.

(8) The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the

provisions of the Code of Civil Procedure, 1908 (5 of 1908).

(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records

relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness,

legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.

85.Bar of jurisdiction of civil courts.â€"No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority 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.â€​- -

In Ramesh Gobindram v. Sugra Humayun Mirza Wakf [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC

(Civ) 553] this Court considered Sections 6(1), 6(5), 7(1), 7(5), 83, 85 and few other provisions of the Act and explained the jurisdiction of the Wakf

Tribunal vis à vis the civil court. As regards the suit for eviction against the tenant(s) of wakf property, the Court held that such suit is triable by the

civil court as it is not covered by Sections 6 and 7 of the Act.

The Court in Ramesh Gobindram case [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] held as

follows: (SCC p. 738, para 35)

“35. In the cases at hand, the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction

of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the

tenants from what is admittedly wakf property could, therefore, be filed only before the civil court and not before the Tribunal.â€​

Mr Renjith Marar, learned counsel for Respondent 1, submits that in a subsequent decision in Bhanwar Lal v. Rajasthan Board of Muslim Wakf

[Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51] , this Court has taken a different view. According to him, Section 85 of the

Act leaves no manner of doubt that the Wakf Tribunal has jurisdiction to decide the suit for eviction. It is so because one of questions for

determination is whether the suit property is wakf property or not.

The Court in Bhanwar Lal [Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51] considered the decision in Ramesh Gobindram

[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] at quite some length. Besides Ramesh Gobindram

[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] , the Court in Bhanwar Lal [Bhanwar Lal v.

Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51] also considered two other decisions, one, W.B. Wakf Board v. Anis Fatma Begum [W.B.

Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC (Civ) 773] and two, Sardar Khan v. Syed Nazmul Hasan [Sardar Khan v.

Syed Nazmul Hasan, (2007) 10 SCC 727] . In Anis Fatma Begum [W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC

(Civ) 773] , this Court had held that the Wakf Tribunal constituted under Section 83 of the Act will have exclusive jurisdiction to deal with the

questions relating to demarcation of the wakf property.

Pertinently, the Court in Bhanwar Lal [Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51] held that the suit for cancellation of

sale deed was triable by the civil court.

Bhanwar Lal [Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51] follows the line of reasoning in Ramesh Gobindram [Ramesh

Gobindramv. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] . The decision of this Court in Bhanwar Lal [Bhanwar Lal v.

Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51] is not in any manner in-consistent or contrary to the view taken by this Court in Ramesh

Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] . We fully concur with the view of this

Court in Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] , particularly with

regard to construction put by it upon Sections 83 and 85 of the Act. In Ramesh Gobindram[Ramesh Gobindram v. Sugra Humayun Mirza Wakf,

(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] the Court said: (SCC p. 738, paras 3234)

“32. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the civil courts extends (sic) beyond

what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or

Tribunals for determination of any dispute, question of 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.

It is noteworthy that the expression ‘for the determination of any dispute, question or other matter relating to a wakf or wakf property’

appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the civil courts in respect of

any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the

civil court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal.

The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil court is raised is

whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a civil court. If it is not, the jurisdiction

of the civil court is not excluded. But if the Tribunal is required to decide the matter jurisdiction of the civil court would stand excluded.â€​

The matter before us is wholly and squarely covered by Ramesh Gobindram[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC

726 : (2010) 3 SCC (Civ) 553] . The suit for eviction against the tenant relating to a wakf property is exclusively triable by the civil court as such suit is

not covered by the disputes specified in Sections 6 and 7 of the Act.â€​

The next judgment cited on behalf of the opposite party is reported at 2016 (3) CLJ (Cal) 63. Relying on the said judgment, the opposite party no. 1

argues that ultimately the jurisdiction of a Waqf Tribunal is referable to Sections 6 and 7 of the said Act. As such, according to the learned counsel for

the opposite party, the judgment of Faseela M holds the field and eviction suits, even in respect of waqf properties, fall within the domain of Civil

Courts and not the Waqf Tribunal.

Upon hearing the rival contention of the parties, it appears that undisputedly in the present case, the suit property was a waqf property and the suit

was filed under the provisions of the West Bengal Premises Tenancy Act, 1997 for eviction of a tenant. A perusal of Section 54 of the Waqf Act,

1995 shows that a mechanism has been provided for removal of encroachers in respect of a waqf property. The term “encroacher†has been

defined in Section 3(ee) of the said Act. As per such definition, a person whose tenancy, lease or licence has expired or has been terminated by

Mutawalli or the Board, are included in the definition.

However, in the present case, the suit was instituted under the provisions of the West Bengal Premises Tenancy Act, 1997. Unlike a lessee under the

Transfer of Property Act, the tenancy of a premises tenant, governed by the Act of 1997, is not terminated merely upon expiry of lease and/or a

notice to quit being issued and received by the landlord and tenant respectively. A premises tenancy under the 1997 Act is terminated only upon an

eviction decree being passed against the tenant on any of the grounds stipulated in Section 6 of the Act of 1997, and not upon service of a quit notice.

Hence, the present petitioner could not be termed as a person whose tenancy has expired or has been terminated. As a result, the present petitioner

does not come within the purview of Section 3(ee), and consequently of Section 54, of the said Act.

As such, no mechanism has been provided in the said Act for eviction of a premises tenant governed by the West Bengal Premises Tenancy Act,

1997. Moreover, as settled in Faseela M’s case, endorsing the view in Ramesh Gobindram [(2010) 8 SCC 726], that suits for eviction against

tenant of waqf property are triable by a Civil Court, as those are not covered by Sections 6 and 7 of the said Act. It was further held that the said Act

does not provide for any proceedings before the Waqf Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a

waqf property. As such, a suit seeking eviction of tenant from an admittedly waqf property could be filed only before a Civil Court and not before the

Tribunal.

As to the language of Section 83(10) of the said Act having included disputes relating to eviction of a tenant, it was held in the said judgment that the

said section relates only to constitution of tribunals and cannot operate beyond the periphery of Sections 6 and 7 of the said Act, which do not include

suits for eviction against tenants.

Even paragraph Nos. 23 and 24 of Anis Fatma’s judgment go on to show that the facts in the said case were distinct from Ramesh

Gobindram’s case on the count that Ramesh Gobindram had held that eviction proceedings could only be decided by the Civil Court and in Anis

Fatma’s case, the disputes did not relate to eviction. In view of such specific distinction having been taken into account, it is evident that even in

Anis Fatma, the Hon’ble Supreme Court held that only Civil Court would have determination to decide eviction proceedings and not Waqf

Tribunal.

With regard to the judgment reported at (2015) 1 WBLR (Cal) 455, it is found with utmost respect that the Hon’ble Single Judge did not consider

the judgment reported at (2014) 16 SCC 38 (Faseela M’s case), which took a contrary view upon consideration of Anis Fatma’s case. In fact,

Fatma’s judgment was delivered after the 2013 amendment of the Waqf Act, 1995, which was the basis of the judgment of the Hon’ble Single

Judge in (2015) 1 WBLR (Cal) 455. As such, with all humility and utmost respect, it is to be concluded that the judgment reported at (2015) 1 WBLR

(Cal) 455, being in conflict with that reported at (2014) 16 SCC 38 (Faseela M’s case), is par incuriam.

As to the unreported judgment of Khoja Sunnat Jamat, it was clearly held in paragraph No. 21 of the same that each case had to be judged on the

basis of its own peculiar facts and that it was not the law that whenever a writ petition is presented concerning a waqf or waqf property, the High

Court must invariably relegate the aggrieved party to the Waqf Tribunal. In such context, it was held that the provisions of Section 83, read with

Sections 65 and 51 of the said Act, were wide and expansive enough to embrace the grievances raised by the petitioners in the said writ petition,

which could legitimately be raised before the Waqf Tribunal. In such view of the matter, the dispute was relegated to the Waqf Tribunal. As such, the

said judgment does not help the present petitioner in any manner, not being a precedent on the ratio decidendi currently under consideration.

In view of the above discussions, the Court below was perfectly justified in holding that the suit in question was very much maintainable before the

Civil Court and ought not to be relegated to the Waqf Tribunal for being decided. Accordingly, the rejection of the petitioner’s application under

Order XIV Rule 2 of the Code of Civil Procedure was well within the jurisdiction of the Court below and accordingly, ought not to be interfered with.

In the circumstances, C.O. No. 4620 of 2016 is dismissed on contest without, however, any order as to costs.