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Wakf Act 1995, Ss.83
& 85 - Jurisdiction of the Tribunal
is wide enough to determine any
dispute or question or other matter
relating to the Wakf or Wakf
property.
The
words any dispute, question or other
matters relating to
Wakf
of
Wakf
property under S.85 are wide enough
to take in within its sweep not only
matters which are specifically
conferred on the Tribunal by the
various provisions of the Act but
also any dispute, question or any
other matter relating to any
Wakf
or
Wakf
property since those powers have
also been conferred on the Tribunal
by the
Wakf
Act itself. On examining the scheme
of the Act and various provisions we
are of the view that the intention
of the Legislature is to resolve all
disputes by one machinery and forum
provided in the Act itself, that is,
the
Wakf
Tribunal and not by the Civil Courts
in the State. (para. 12)
2002 (3) KLT
742
Overruled
1999 (1) KLT
794
Affirmed
AIR
2001 Mad.
431
Dissented from
1999 (3) ALD
646
Referred to
C.
Khalid, T.V. Kunhahammed,
T.H. Abdul Azeez, T.P.M. Ibrahim
Khan,
S.K. Balachandran & Anitha
Menon
For
Appellants
P.K. Aboobacker (Edathala), P.R.
Roshna,
T.V. Kunhahammed & A.A. Abul Hassan
For Respondents
JUDGMENT
K.S. Radhakrishnan, J.
We
are in these cases concerned with
the jurisdictio n and powers of the
Wakf
Tribunals constituted in the State
of Kerala by the
Wakf
Act, 1995. A learned single Judge
of this Court, C.S. Rajan, J. in
Pookoya Haji v. Cheriyakoya
(1999 (1) KLT 794) took the view
that the
Wakf
Tribunal has been constituted by the
Government under
@page-KLT33#
S.83(1) of the
Wakf
Act so as to decide any dispute,
question or other matter relating to
a
Wakf
or
Wakf
property. Learned Judge held under
S.83(2) of the Act any mutawalli
or any other person aggrieved by an
order made under the
Wakf
Act or Rules may make an application
to the Tribunal for the
determination of any dispute,
question or other matter relating to
the
Wakf.
Judgment of the learned single
Judge, C.S. Rajan, J. is appealed
against in W.A.2273/99. P.R. Raman,
J. another learned Judge of this
Court in Abdul Rahiman Musaliar
v. Muhammed Sahib (2002 (3) KLT
742) while interpreting Ss.83 and 85
of
Wakf
Act took the view that only those
matters which are required by or
under the
Wakf
Act to be determined by a Tribunal
the bar under S.85 would apply and
for the rest of the matter Civil
Court's jurisdiction is not ousted.
In view of the apparent conflict
between the two decisions referred
to above these matters have been
placed before us on a reference made
by Padmanabhan Nair, J.
2.
Large number of cases are now
pending before the
Wakf
Tribunals and also before the Civil
Courts for determination with regard
to the nature of the disputes to be
resolved by the Tribunals or by the
Civil Courts. In fact a direction
was given in the administrative side
of the High Court as per O.M.
No.D3/B1/49951/97 dated 16.3.2001 to
the District Judges of Manjeri,
Kozhikode, Kalpetta, Thalassery and
Kasaragod to take steps to transfer
the cases under the provisions of
the
Wakf
Act pending before their respective
districts to the
Wakf
Tribunal, Kozhikode. It is
therefore necessary to resolve the
apparent conflict between the two
decisions for the proper disposal of
the cases pending before the Civil
Courts as well as before the
Wakf
Tribunals.
3.
The
Wakf
Act, 1995 (Act 43 of 1995) was
enacted by the Parliament and was
brought into force throughout the
country except the State of Jammu &
Kashmir with effect from 1.1.1996.
It repealed the
Wakf
Act, 1954 and the
Wakf
(Amendment) Act, 1984. One of the
important changes made in the
Wakf
Act, 1995 was the Constitution of
the
Wakf
Tribunal for resolution of disputes
relating to
Wakf
and
Wakf
property and such other matters
which are required by the Act to be
resolved by the Tribunal. Though an
amendment was brought in to provide
for Tribunals under the
Wakf
(Amendment) Act, 1984 the same was
not enforced. The entire scheme for
resolution of
Wakf
litigations by Tribunals has been
provided under Ss.83 to 95 of the
Act.
4.
We may before examining the scope of
the judicial proceedings enumerated
in Chap.VIII of the Act generally
survey the scheme of the Act. The
word "Wakf"
has its origin in the Arabic Verb,
Waqafa.
Wakf
Act, 1995 has given a statutory
meaning to the word "Wakf"
under S.3(r) of the Act which reads
as follows:
"Wakf"
means the permanent dedication by a
person professing Islam, of any
movable or immovable property for
any purpose recognised by the Muslim
Law as pious, religious or
charitable and includes:
(i)
a
Wakf
by user but such
Wakf
shall not cease to be a
Wakf
by reason only of the user having
ceased irrespective of the period of
such cesser;
@page-KLT34#
(ii) "grants", including
mashrut-ul-khidmat for any
purpose recognised by the Muslim Law
as pious, religious or charitable;
and
(iii)
a
Wakf-al-al-aulad
to the extent to which the property
is dedicated for any purpose
recognised by Muslim law as pious,
religious or charitable;
and 'Wakf'
means any person making such
dedication.
The
definition clause has used the
expressions "Wakf
by user". A
Wakf
by user is one which is not
expressly dedicated as
Wakf
but has been in long use as such,
then by virtue of such long use such
property is deemed to be
Wakf
by user. A
Wakf
normally requires express
dedication, but if land has been
used from time immemorial for a
religious purpose, then the land
becomes a
Wakf
by user, although there is no
evidence of an express dedication.
Wakf-al-al-aulad
refers to dedication of property
as
Wakf
and for the welfare of
Wakf's
own family or his children or
children of his children. A
Wakf
can be created by the execution of a
will which is called testamen tary
Wakf.
A valid
Wakf
can be created only for a lawful
object and it should be recognised
by Muslim law as pious, religious or
charitable. There are three types
of
Wakf
recognised as under:- (i)
Wakf
by user, (ii)
Wakf
Mashrut-ul-Khidmat and (iii)
Wakf-al-al-aulad.
For making a valid
Wakf
a person should be of sound mind and
that he should be a major person.
Therefore, neither a minor, nor a
guardian on behalf of the minor can
make a
Wakf.
The first essential condition for
creating a valid
Wakf
is that the declaration of
dedication should be made
contemporaneously with the act of
dedication and the person must
divest himself of the ownership of
the property. Physical delivery of
the property is not essential, but
such possession as is possible must
be given. The three essential
features of a valid
Wakf
are: (i) perpetuity, (ii)
irrevocability and (iii)
inalienability. A
Wakf
can also be created through a
testament containing the desire of
the
Wakf
to take effect after his death. One
of the most beautiful Wakfs in India
is regarded as the Eighth wonder of
the world, namely, Taj Mahal. A
Wakf
can also be created by a non-muslim.
For creation of
Wakf
it is not necessary that the settler
should be a Muslim.
5.
Under the
Wakf
Act, 1995 as we have indicated
considerable power has been given to
various officers to deal with the
Wakf
property. Chap.II provides for
survey of Wakfs. By virtue of
S.4(3) the Survey Commissioner
shall, after making such enquiry as
he may consider necessary, submit
his report, in respect of Wakfs
existing at the date of the
commencement of this Act in the
State. Commissioner is also
empowered to get information
regarding the number of Wakfs in the
State showing Shia Wakfs and Sunni
Wakfs separately, the nature and
objects of each Wakfs, the gross
income of the property comprised in
each
Wakf;
the amount of land revenue, cesses,
rates and taxes payable in respect
of each
Wakf,
the expenses incurred in the
realisation of the income and the
pay or other remuneration of the
mutawalli of each
Wakf;
and such other particulars relating
to each
Wakf
as may be prescribed. While making
such enquiry the Commissioner has
the same power as vested in a Civil
Court for the purpose
@page-KLT35#
of
summoning and examining any
witness, requiring the discovery and
production of any document;
requisitioning any public record
from any Court or office; issuing
commissions for the examination of
any witness or accounts; making any
local inspection or local
investigation and such other matters
as may be prescribed. On receipt of
a report from the Commissioner the
State Government shall forward a
copy of the same to the Board. The
Board shall examine the report
forwarded to it and publish in the
Official Gazette a list of Sunni
Wakfs or Shia Wakfs in the State. 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 lis t 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. The
Act further provides that the total
cost of making a survey including
the cost of publication of the list
or lists of Wakfs shall be borne by
all the mutawalli of the Wakfs the
net annual income whereof exceeds
five hundred rupees, in proportion
to the net annual income accruing in
the State to such Wakfs, such
proportion being assessed by the
Survey Commissioner. Disputes and
differences are on the rise on the
question whether a particular
Wakf
is a Sunni
Wakf
or Shia
Wakf
and matters relating to
Wakf
and
Wakf
property.
6.
Learned Judge in Musaliar's
case held that only those matters
which are required by or under the
Act to be determined by a Tribunal,
that the bar under S.85 applies.
Learned Judge held that the dispute
in that case mainly centres around
the right of management of the
Wakf.
Property in Musaliar's case
was admittedly a
Wakf
property. But learned Judge took
the view since the management of
Wakf
as such does not fall within the
powers of the Tribunal dispute is
not liable to be resolved by the
Tribunal. Consequently learned
Judge held Civil Court has got
jurisdiction. Learned Judge opined
that the scheme of the Act would
show that jurisdiction of the Civil
Court is not completely ousted.
Learned Judge also examined the
question as to whether the words
'determination of any dispute,
question or other matter relating to
the
Wakf
or
Wakf
property' is so wide enough to take
in a dispute relating to the
management of the affairs of a
Mosque or
Wakf.
The words "under this Act" according
to the learned Judge qualifies the
dispute to be adjudicated. Learned
Judge also referred to Ss.6, 7,
32(3) and 54(4) which deal with
matters where suits can be filed
before the Tribunal. We are of the
view if the reasoning of the learned
Judge is upheld we will be
restricting the jurisdiction of the
Tribunal considerably, thereby
narrowing the scope and ambit of
S.83 read with S.85 and other
related provisions. Apex Court in
Dhulabhai v. State of M.P.
(1969 SC 78) laid down certain
principles regarding the exclusion
of jurisdiction of Civil Court.
Principles laid down by the Apex
Court, which are relevant to us is
stated as follows:
(1) Where the statute gives a
finality to the orders of the
special tribunals the Civil Courts'
jurisdiction must be held to be
excluded if there is adequate remedy
to do what the Civil
@page-KLT36#
Court would normally do in a suit.
Such provision, however, does not
exclude those cases where the
provisions of the particular Act
have not been complied with or the
statutory tribunal has not acted in
conformity with the fundamental
principles of judicial procedure.
(2)
Where there is an express bar of the
jurisdiction of the Court an
examination o f the scheme of the
particular Act to find the adequacy
or the sufficiency of the remedies
provided may be relevant but is not
decisive to sustain the jurisdiction
of the Civil Court. Where there is
no express exclusion the examination
of the remedies and the scheme of
the particular Act to find out the
intendment becomes necessary and the
result of the inquiry may be
decisive. In the latter case it is
necessary to see if the statute
creates a special right or a
liability and provides for the
determination of the right or
liability and further lays down that
all questions about the said right
and liability shall be determined by
the tribunals so constituted, and
whether remedies normally associated
with actions in Civil Courts are
prescribed by the said statute or
not.
(3) An exclusion of jurisdiction of
the Civil Court is not readily to be
inferred unless the conditions above
set down apply.
We
may examine the scope of Ss.83 and
85 and other related provisions in
the light of the above mentioned
principles. S.85 is extracted below
for easy reference:
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.
S.85
stipulates that no suit or other
legal proceedings shall lie in any
Civil Court in respect of any
dispute, question or other matt er
relating to any
Wakf,
Wakf
property. This is the first limb of
S.85. The second limb is that no
suit or other legal proceedings
shall lie in any Civil Court in
respect of any dispute, question or
other matter which is required by or
under this Act to be determined by a
Tribunal. In the first limb of S.85
we see the words "or other matters
relating to" and in the 2nd limb of
S.85 also we find the words "or
other matter which is required". In
other words, in the first limb the
emphasis is on the words "relating
to" and in the second limb the
emphasis is on the words "required
by". The
Wakf
Act has conferred powers on the
Tribunal to resolve various disputes
by way of appeals and applications.
Ss.6, 7, 32(3), 54(4) etc. confers
powers on the Tribunal to entertain
suits. Ss.6 and 7 deals with
disputes as to whether a particular
property is a
Wakf,
whether it is a Shia
Wakf
or Sunni
Wakf.
S.32(2)(d) enables the
Wakf
Board to settle schemes of
management of a
Wakf
and if any person who is interested
in the
Wakf
or affected by the settlement or
direction may institute a suit
before the Tribunal S.54 deals with
removal of encroachment from the
Wakf
property. Any person aggrieved by
the order passed by the Chief
Executive Officer could institute a
suit before the Tribunal.
@page-KLT37#
7.
We have pointed out that over and
above the powers conferred on the
Tribunal to entertain in suit Act
also envisages entertainment of
appeals by the Tribunal. S.33(4)
enables the Tribunal to entertain
appeals against the order of the
Chief Executive Officer in cases
where Mutawalli in performance of
his executive or administrative
duties has caused any loss or damage
to any
Wakf
property. Under S.38(6) the Board
has been given the powers to
suspend, remove or discharge the
Executive Officer, in the event of
which he could file an appeal before
the Tribunal under S.38(7) of the
Act. Ss.51(5), 52(4), 64(4), 67,
69, 73(3) etc. have also conferred
appellate powers on the Tribunal.
8.
The Tribunal can also entertain
applications. S.39(3) empowers the
Wakf
Board to make an application to the
Tribunal for recovery of possession
of any building or other place which
was being used for religious
purposes or institution or for
charity before the commencement of
the Act, has ceased to be used for
that purpose. The second proviso to
S.51(2) also enables the Tribunal to
entertain application concerning
alienation of
Wakf
property.
9.
The above
mentioned and other provisions would
indicate that considerable powers
have been |
