w w w . L a w y e r S e r v i c e s . i n

S.N.M. Ubayadullah v/s Hazarath Serya/Shamiyan Saqqaf Thaikkal Thanjavur by its Senior Trustee Syed Moin Ahmed, Rep: by his Power Agent Syed Matheen Ahamed Saqqat Kondi Raja Palayam, Asar Thaikkal Thanjavur

    C.R.P(MD) No. 1387 of 2012
    Decided On, 28 June 2022
    At, Before the Madurai Bench of Madras High Court
    For the Petitioner: V. Raghavachari, V.R. Shanmuganathan, Advocates. For the Respondent: P. Sesubalan Raja, Advocate.

Judgment Text
(Prayer: Civil Revision Petition is filed under Section 83(9) of the Wafk Act, 1995, against the judgment and decree dated 04.04.2012 made in Wakf Original petition (W.O.P) No.3 of 2006 by the Principal Subordinate Judge, the Wakf Tribunal, Thanjavur.)

1. This revision is preferred by the respondent/tenant in W.O.P. 3/2006 on the file of the Waqf Tribunal (Principal Sub Court), Thanjavur, challenging the order of the Tribunal dated 04-04-2012 directing the petitioner/tenant to surrender vacant possession of the property on the ground of lack of inherent jurisdiction in the Tribunal to entertain the petition for eviction.

The Pleadings:

2.1 The petition:

* A plot measuring 162.5 ft x 102 ft, in T.Sy.65 of Tanjavur Town belonged to the respondent Thaikkal. It is a waqf registered with the Waqf Board. Ext.P-4 is the statutory proforma.

*On 20-08-1988 vide Ext.P-1, the aforesaid property was leased by it to the petitioner. The terms of the lease provided that the petitioner should put up a construction within one year from the date of the lease expending not more than Rs. 6.50 lakhs. The lease term was fixed at 40 years, and monthly rent payable was fixed for every ten years with an increase in rent in the subsequent ten years, such as Rs.2,000/- p.m. for the first ten years, Rs.2,400/- p.m. for the second ten years, Rs.2,800/- p.m. for the third ten years and Rs.3,500/- for the last ten years. Of the monthly rent payable, 50% is liable to be deducted towards cost of construction of the proposed building. This will leave a balance of Rs.8,000/- and it is to be adjusted as advance amount.

* The tenant however, did not put up any construction within one year as was agreed by him. Hence, on 20-12-2005 the respondent-lessor issued Ext.P-2 notice terminating the lease and required the tenant to deliver vacant possession. The tenant responded to it with his reply dated 27-01-2006 (marked Ext. P-3) in which he admitted to the breach of this term of the lease agreement.

Hence, the petition was laid for eviction of the tenant.

2.2. Disputing the respondent's right to seek eviction, in his counter the tenant raised the following contentions:

* That the property leased out to the tenant, the subject matter of the litigation is not a waqf property. Nowhere he has pleaded that it is a waqf property. The petitioner was to obtain necessary sanction from the Waqf Board for instituting the proceedings for eviction. Since the property is not waqf property, the Tribunal does not have any jurisdiction.

* Since the lease is for forty years, it is required to be registered, but in the instant case it was not registered. Secondly, if the respondent/lessor considered that the petitioner/tenant has breached the clause pertaining to the construction of the building then it ought to have terminated the lease within the period of three years from the date on which the breach had occasioned. The quit notice is not in accordance with the law. Indeed, the lessor has been receiving rent at Rs.750/- p.m without any objections.

An Ancillary Fact:

3. Before the Tribunal, the tenant had taken out an application in I.A.190 of 2008 challenging the jurisdiction of the Tribunal on the ground that the subject matter of the eviction proceedings is not a waqf property. This came to be dismissed by the Tribunal Vide its order dated 08-10-2010. This was challenged by the tenant before this Court in CRP(PD)(MD) 527 of 2011. Holding that the Waqf Tribunal had the jurisdiction to entertain the lis, this Court dismissed the CRP (PD)(MD) 527 of 2011 Vide its Order dated 08-06-2011. In particular, this court referred to the contention of the counsel of the lessor based on the allegation in the counter of the tenant raising a dispute as to the character of the property leased to him – whether it was a waqf property or not and proceeded to hold:

“5. Irrespective of the claim about the nature of the property whether the property is the wakf property or not, it has to be decided only by the Tribunal as the main Original Petition become part-heard. The Tribunal while dismissed the petition, in paragraph 3 observed that all the claims between the parties, the nature of the property could be decided in the main Original Petition and then only the Court could proceed with. The Tribunal has not negatived the petitioner's claims and it only observed that it would be decided at the time of final disposal....”

4.1 The Waqf Tribunal proceeded to try the main O.P. The Tribunal raised three issues in all, of which issues 1 and 2 are significant in the context of the arguments advanced in this case. They are:

1. Whether the suit property is a wakf property or not.

2. Whether this Tribunal has a jurisdiction to decide the issues involved in the suit.

4.2 Both sides adduced oral and documentary evidence. To issue No:1 on the character of the subject matter of dispute, the Tribunal relied on Ext.P-4 proforma and has held that the property is a waqf property. Turning to the second issue pertaining to the Tribunal invoking its jurisdiction, it relied on the allegation in the counter of the tenant wherein he questioned the character of the property as a waqf property and raised a dispute over it. On facts, it proceeded to allow the petition and ordered eviction.

5. Aggrieved by the said order, the tenant has approached this Court with this revision.

6.1 The counsel for the revision-petitioner's principal and perhaps the only contention is that the Tribunal has no jurisdiction to entertain the petition. His submissions are:

* In Abdulla Bin Ali & Others Vs Glappa & Others [(1985)2 SCC 54], Smt. Bismillah Vs janeshwar Prasad & Others [(199)1 SCC 207], Ramesh Chand Ardawatiya Vs Anil Panjwani [(2003) 7 SCC 350], it is held that the existence of the jurisdictional fact must be disclosed in the petition, and this would imply that the Tribunal had gone wrong in relying on the allegation raised in the counter of the tenant on the character of the property to rest its jurisdiction. When admittedly the suit filed before the Wakf Tribunal does not disclose a dispute whether the property leased to the revision petitioner is a waqf property or not, the Tribunal went wrong in creating a dispute based on the allegation in the counter.

* Prior to amendment to Sec.83(1) of the Waqf Act, 1995, Vide Central Act 27/2013, no dispute or issues involving the tenancy right of the waqf property can be decided by the Waqf Tribunal since it was not empowered to resolve it. It is only after the amendment to Sec.83(1), the Waqf Tribunal has been expressly authorised to take cognizance of tenancy disputes. What the Tribunal has done is that it has traveled beyond the allegations in the petition before it, and invoked its jurisdiction when it is not empowered to do it.

6.2 Per contra, the counsel for the respondent-waqf contended that the revision petitioner has not only denied that the property belonged to a public waqf and pleaded ouster of jurisdiction of the Tribunal, but had also taken out an application in I.A.190 of 2008 for achieving this objective, and when he was unsuccessful before the Tribunal, he chose to approach this Court in revision and invited an order of this Court, which now required the Waqf Tribunal to proceed with the trial, since the case at that point of time when this Court passed the order in the revision was partly heard by the Tribunal. Reference may be made to paragraph 3 above.

6.3 In response, the learned counsel for the revision petitioner would submit that so far as the order of this Court in CRP(PD)(MD) 527 of 2011 is concerned, this court had ultimately left the issue of jurisdiction open for the Tribunal to decide, but the Tribunal was in palpable error in exercising jurisdiction when the respondent did not raise any issue as to the character of the property.

7. Both sides placed reliance on several decisions of both the Hon'ble Supreme Court as well as some of the High Courts on the point of jurisdiction of the Waqf Tribunal, and they, to the extent needed, and considered as material by both the side for deciding this case will be discussed at a later stage of this order.

Of Discussion & Decision:

8. The core contention of the revision-petitioner/tenant is pivoted on a premise that the inherent jurisdiction of a tribunal can be tested only on the basis of the pleadings of the petitioner before the Tribunal and none other. He tried to fortify his submission by placing reliance on certain authorities of the Hon'ble Supreme Court. And, inasmuch as the dispute whether the property involved is a waqf property or not is decided on the basis of the denial in the counter-statement of the tenant and not exclusively on the basis of the allegations in the petition for eviction, the finding of the Tribunal exercising its jurisdiction is bad in law.

9.1 The argument of the counsel for the revision petitioner is too apparently casuistic for this court to ignore the basic premise on jurisdiction. The basic premise is that the jurisdiction of a statutory tribunal is circumscribed by the statute creating it, and no tribunal shall exceed the jurisdictional boundaries so laid. The minor premise is that neither any party, nor any court can vest jurisdiction in a tribunal far in excess of what it has been vested with. It could now be derived that it is the duty of the tribunal to ensure that it has the jurisdiction to take cognizance of an issue for which it was approached by the litigants, since litigants cannot create jurisdiction which the statute does not vest in a tribunal.

9.2 Here in this case, the respondent/lessor has described the property as belonging to a 'thaikkal', or the burial place of a Mohammedan saint, which by its nature is public in character, and hence is a waqf that would fall within the administrative superintendence of the Wakf Board. But the tenant would contend that the property is not a wakf property. When once it is raised, the Tribunal would be required to decide it. Having raised a dispute, and having invited a decision adverse to him, it is too late in the day for the tenant to contend that the tribunal ought not to have considered his defence, and should have confined its probe only to the pleadings of the respondent-wakf. His conduct is similar to the one exhibited by the tenant in Abdulla Bin Ali case [(1985)2 SCC 54] which the tenant has relied on. In that case, when the wakf approached the Tribunal, the tenant would contend that only the civil court will have jurisdiction, and when the civil court was approached, the tenant would plead only the Tribunal had jurisdiction.

9.3 In deciding the issue on jurisdiction, it does not matter who raises it, but the Tribunal is required to be decide it. Could the Tribunal have avoided deciding the issue on its jurisdiction because the respondent had not raised in his original petition? Then it leaves an important limb of the plea of the revision-petitioner/tenant un-addressed and it would amount to rejection of processual fairness which the Courts owe the tenant. And no adjudicatory fora, which includes the courts, can afford to ignore, nor is expected to function. This Court does not intend to over stay on the issue than to refer to the decision of the Hon'ble Supreme Court in Haryana Wakf Board Vs Mahesh Kumar [(2014)16 SCC 45], to which reference would be made in the later part of this order. There the tenant had voluntarily walked into a trap of jurisdiction of the Tribunal, that he with his efforts had laid as in the present case. To compound his misery further, the tenant also approached this Court in CRP(PD)(MD) 527 of 2011, and this Court had directed the Tribunal to consider the issue. Here, he finds himself in a situation identical to the facts in Kiran Devi v. Bihar State Sunni Wakf Board [(2021) 15 SCC 15]. The initial strategy of the revision petitioner had terribly backfired, and the current strategy, born out of his desperation to seek a life-line in processual technicality, only managed to add to his misery.

On jurisdiction of the Wakf Tribunal:

10. Moving to the core issue on jurisdiction of the Tribunal, it was argued that before amendment to the Waqf Act, 1995 in 2013, the Tribunal had no jurisdiction to decide a dispute over the tenancy rights of a property of a public waqf, but it must be said that it was more a result of judicial interpretation of certain provisions of the Act and not otherwise. The Waqf Act as it originally stood prior to Act 27/2013 offered four provisions to understand the ambit of jurisdiction of the Wakf Tribunal: Sec.6, 7, 83 and 85. And, their interpretation often engaged the High Courts and the Hon'ble Supreme only to produce oscillating views. The oscillation of the interpretative ideas are sustained by a fascinating amalgam of interpretation of the statute and and an exploration of jurisdictional facts in every case where the issue on jurisdiction was raised. The evolution of this branch of law has been Court-centric as it was dictated solely by the judicial understanding of the aforesaid four provisions of the Act as determinative of the jurisdiction of the Wakf Tribunal. It is unfolded now:

* The law declared in Ramesh Gobindram (dead) through LRs. Vs Sugra Humayun Mirza [(2010)8 SCC 726] may be considered as the commencing point of the interpretative exercise, through there are couple of earlier authorities on the point. The question before the Supreme Court in Ramesh Gobindram was whether the Waqf Tribunal has the jurisdiction to entertain suits for eviction of tenants dispute. The High Courts of Andhra Pradesh, Kerala, Madhya Pradesh, and Rajasthan have taken a view that the suit for eviction of tenant before the Waqf Tribunal was maintainable, or in other words the Tribunal has jurisdiction to entertain them. The High Courts of Karnataka, Madras, Allahabad and Bombay have taken a contrary view, and have held that when the dispute is not regarding the nature of the property, that is to say whether the property is a waqf property or not, dispute over tenancy rights of waqf property is only a civil dispute which can be decided by a competent civil court.

*The Supreme Court has held that inasmuch as the Tribunal has not been vested with the authority to decide the dispute concerning eviction of tenants of waqf property, the civil court's jurisdiction will not be ousted, and added that the civil court's jurisdiction is ousted only as concerning matters falling within Sec.6, 7 of the Act, and also those matters which will go exclusively before the Tribunal under Sec.85.

* The ratio in Ramesh Gobindram was followed by the Supreme Court in Faseela M. Vs Munnerul Islam Madrasa Committee [(2014) 16 SCC 38]. But in W.B. Wakf Board Vs Anis Fatma Begum [(2010)14 SCC 588], the Supreme Court interpreted Sec.83 of the Act as having the wide connotation as it provided that “any dispute, question or other matter relating to a wakf or wakf property'' would mean all the issues relating to wakf property. It may however, be stated that Anis Fatma case the issue is not on tenancy dispute over the waqf property. Interestingly enough, in Anis Fatma case the Supreme Court did have an occasion to consider Ramesh Gobindram, but where the Court moved away from it was that while in Ramesh Gobindram it pivoted its ratio on the interpretation of Sec.85 whereas in Anis Fatma it was placed on Sec.83. Secondly, the Supreme Court distinguished the Anis Fatma case on the aspect of nature of the dispute involved therein, which as earlier pointed out, does not relate to the tenancy rights over waqf property.

* Yet another case on the issue of Wakf Tribunal's jurisdiction to take cognizance of a tenancy dispute of wakf property came to be decided in Haryana Wakf Board Vs Mahesh Kumar [(2014)16 SCC 45]. A civil suit was laid by the Wakf Board for eviction of a tenant before the civil court in which the tenant disputed the assertion of the plaintiff that the property in question was a wakf property. This suit came to be decreed but the first appellate court returned the plaint to be presented before the Wakf Tribunal since the case involved a dispute as to whether the property was a wakf property, which under Sec.7 of the Act, only the Tribunal can decide. When the matter reached the Supreme Court, it concurred with the said view and drew support for its decision from its own ratio in Bhanwar Lal Vs Rajasthan Board of Muslim Wakf [(2014)16 SCC 51], and few other judgments which the Supreme Court had earlier decided identically. This view was followed with approval by the Supreme Court in a subsequent decision in Punjab Wakf Board Vs Sham Singh Harike [(2019) 4 SCC 698].

11. Now, descends the judgement in Rashid Wali Beg Vs Farid Pindari & Others [(2022)4 SCC 414], where the Supreme Court was required to deal with the vexed question on the jurisdiction of the Wakf Tribunal yet again. There the matter arose from an action before a civil court over a dispute pertaining to, what even the defendant admits as the property of the waqf, but resisted the suit inter alia on the ground that the Wakf Tribunal alone has jurisdiction, contrary to the stance of the present revision-petitioner. Though this was accepted by the trial court and also by the first appellate court, the High Court reversed it on the solitary point that the dispute does not involve an issue on the character of the property and hence the Tribunal did not have jurisdiction. This issue reached the Supreme Court. The Supreme Court now found an opportunity to dive deep into the issue, identified the spots that led to division of jurisdiction as between the Tribunal and the civil court, and unified them by shifting the thrust hitherto given to Sec.6 and 7 and telescoping them into Sec.83 and Sec.85. This is made evident in paragraphs 43 upwards which read:

“43. It is seen that there are 2 limbs to Section 85. The words, “any dispute, question or other matter relating to any waqf or waqf property” used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a waqf or waqf property, including the two questions mentioned in Sections 6(1) and 7(1). The words in the second limb of Section 85, namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Sections 6(1) and 7(1).

44. Unfortunately, many courts were misled by the reference to two specific questions in Sections 6(1) and 7(1), to come to the conclusion that the bar of jurisdiction was confined only to disputes revolving around those two questions.

48. Since Ramesh Gobindram, focused mainly upon the two questions indicated in Sections 6(1) and 7(1) and reached a conclusion that the Tribunal would have no jurisdiction to adjudicate upon disputes concerning properties which are admittedly waqf properties, some of the decisions which followed Ramesh Gobindram took to the extreme view that if a property is admitted to be a waqf property, by both parties, the Waqf tribunal would not have jurisdiction to adjudicate upon a dispute concerning the said property. Such a conclusion led to an incongruity, namely, that the Tribunal would have jurisdiction to determine the larger question whether a property is a waqf property or not, but not smaller questions relating to what are admittedly waqf properties.

49. Normally while interpreting a clause relating to bar of jurisdiction of civil courts in statutory enactments, this Court would tend to think, depending upon the language employed, that larger questions could still be decided by civil courts, while smaller questions are to be decided by the special fora constituted under the Act. But in the case of Waqfs Act,1995, the reverse has happened, with the courts ruling that if a property is admittedly a waqf property, the Tribunal would have no jurisdiction, though it would have jurisdiction to decide whether or not a property is a waqf property at all.

50. The distinction sought to be drawn on the basis of admission or denial about a property being a waqf property, was also capable of another mischievous result. Take for instance a case where a property is disputed to be a waqf property. Then as per the decision in Ramesh Gobindram, the Waqf Tribunal would have jurisdiction to decide the question whether it is a waqf property or not. Suppose the Tribunal reaches the conclusion that the disputed property is a waqf property, would the Tribunal then continue to have jurisdiction to grant relief or would it be denuded of the jurisdiction, merely because the property was found to be a waqf property? This is a question for which no answer could be found if we adopt the restrictive interpretation. This is why the subsequent decisions of this Court found an easy way out by distinguishing Ramesh Gobindram.”

65. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute,question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).

67. We must also point out at his stage that all the 14 decisions which we have tabulated in para 35 above, except the one at Sl. No. 13, namely, Kiran Devi v. Bihar State Sunni Wakf Board (2021) 15 SCC 15: 2021 SCC OnLine SC 280, are decisions of two-Member Benches. Kiran Devi was a decision of a three-Member Bench of this Court. In Kiran Devi, an objection to the maintainability of the proceeding before the Waqf Tribunal was raised on the basis of the decision in Ramesh Gobindram. But this Court refused to accept it on the ground that once the order of transfer of the suit from the civil court to the Waqf Tribunal had attained finality, the question of jurisdiction cannot be raised. If Waqf Tribunal had no jurisdiction at all, this Court could not have held in Kiran Devi that the order of transfer already passed cannot be undone by accepting this plea. The decision of the three- Member Bench in Kiran Devi is significant in the sense that it recognised the fact that Ramesh Gobindram cannot be used as a magic wand to toss the proceedings relating to a waqf property from one forum to another.

68. The dichotomy created in some decisions of this Court, between the properties which are admitted to be waqf properties and properties which are disputed to be so, is on account of the misapplication of the two limited questions in Sections 6(1) and 7(1) to the whole of the Act including Section 83. At the cost of repetition we should point out that Section 83(1) provides for the determination of any dispute, q

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uestion or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property. 69. In the case on hand, the property is admitted to be a waqf property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be to ignore the mandate of Sections 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property. There is also one more issue. In the written statement, Defendant 1 has admitted the existence of the waqf and also admitted that the father of the plaintiff by name Riyaz Ahmad is the mutawalli. But the claim of the plaintiff that he is the beneficiary of the waqf has been denied. Therefore, a question as to the nature of the waqf and whether the plaintiff is a beneficiary of the waqf, has also arisen in this case. This question has necessarily to be decided by the Tribunal and not the civil court. 12. The Rashid Wali Beg effect is all about unifying what was hither to be considered as the two domains of jurisdiction by telescoping the jurisdiction under Section 6 and 7 into Section 83 and 85 and thus obliterated the jurisdictional cleavage interpretatively brought into the understanding of the jurisdiction of the Wakf Tribunal prior to the 2013 amendment of the Waqf Act, 1995. It has thus quietened a decade old oscillation of interpretative ideas on jurisdiction of the Tribunal, and replacing the resultant uncertainties with more definite and candid understanding. Now, the Courts are no more need to dissect the facts to discover a difference for distinguishing a two tyre jurisdiction for resolving one dispute, which the earlier interpretations have managed to create. 13. Turning to this case, the writing is on the wall for the revision petitioner and he now faces the inevitable, on two grounds: (a) The pivotal argument of the petitioner is taken care of by the Rashid Wali Beg effect; and (b) that the revision petitioner approached this Court and invited an order a la the facts in Kiran Devi case [(2021) 15 SCC 15] 14. In the result, this revision is dismissed. Accordingly, the judgment and decree dated 04.04.2012 made in Wakf Original petition (W.O.P) No.3 of 2006 by the Principal Subordinate Judge, the Wakf Tribunal, Thanjavur, is confirmed. No costs.