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Wakf Act
1995, Ss.
7, 6, 5 &
83( 2) - At
the time and
in the
process of
registration
of a
property as
Wakf
property, if
a dispute
arises as to
whether a
property is
Wakf or not
or whether a
Wakf is
Sunni Wakf
or Shia Wakf,
at that
juncture,
jurisdiction
is only of
Wakf Board -
If any party
is aggrieved
by decision
taken by
Board, it is
at that
point such
party gets a
right to
move Wakf
Tribunal
under S. 40
read with S.
83.
Summary:
The question
raised is
that in view
of mandate
under S.7,
Wakf
Tribunal
alone is
having
jurisdiction
to decide
the question
as to
whether a
property is
Wakf
property or
not and that
S.32 dealing
with powers
and
functions of
Board does
not
contemplate
any such
power on the
Board to
decide as to
whether the
property is
Wakf or not
and Tribunal
is the forum
to determine
any dispute,
question or
other matter
regarding
Wakf. Court
held that at
the time and
in the
process of
registration
of a
property as
Wakf
property, if
a dispute
arises as to
whether a
property is
Wakf or not
or whether a
Wakf is
Sunni Wakf
or Shia Wakf,
at that
juncture,
jurisdiction
is only of
Wakf Board
and if any
party is
aggrieved by
decision
taken by
board, it is
at that
point, such
party gets a
right to
move Wakf
Tribunal
under S.40
read with
S.83.
@page-KLT958#
Held
On a close
analysis of
the
provisions
under Chap.
II it is
fairly clear
that the
dispute that
is
contemplated
under
Chap.II
pertains to
the dispute
in respect
of a
property
appearing in
the list of
Wakf
property
published by
the Wakf
Board. Only
after
publication
of the list
under S.5,
any dispute
on a
question can
be raised.
The power
that is
vested on
the Tribunal
to determine
the issue
regarding
Wakf under
S.6 or S.7
is only in
respect of
the question
as to
whether a
particular
property
specified as
Wakf
property in
the list of
Wakfs is
Wakf
property or
not, or
whether it
is Shia Wakf
or Sunni
Wakf.
Therefore,
the
pre-condition
for invoking
the
jurisdiction
of the
Tribunal
under S.6 or
S.7 is
appearance
of a
property as
Wakf
property in
the list of
Wakfs
published by
the Wakf
Board under
S.5 of the
Act. The
Tribunal
under
S.83(2) is
empowered
and entitled
to determine
any dispute
or question
or any
matter
relating to
Wakf. No
doubt under
S.83 any
muthawalli
or a person
interested
in a Wakf or
any person
aggrieved by
an order
made under
the Act or
Rules is
entitled to
approach the
Tribunal for
the
determination
of any
dispute,
question or
other matter
relating to
the Wakf.
But S.6 as
well as S.7
specially
and
specifically
provide for
raising a
dispute
before the
Tribunal for
deciding a
question as
to whether
enlistment
of property
as Wakf
property is
correct or
not or
whether a
Wakf is
Sunni or
Shia.
Actually
there is no
much
difference
between the
procedure
under S.6 or
S.7. The
differentiating
factor is
only that
S.7 deals
exclusively
with post
1995 Wakf
Act
scenario. A
reading of
S.6 or S.7
with S.83
would show
that the
'question'
referred to
in S.83 in
the
background
of S.6 or
S.7 is a
question
only of a
dispute
regarding
enlistment
of a
property as
Wakf, or as
Sunni Wakf
or Shia Wakf.
The
expression
'any
dispute,
question or
other matter
relating to
the Wakf
appearing
under
S.83(2) has
to be given
a restricted
meaning in
its
application
as far as
the disputes
or questions
under Ss.6,
7 and 40.
Enlistment
of a
property
under S.5 as
Wakf and
decision on
registration
under
S.40(1) by
the Wakf
Board are
pre
conditions
for
invocation
of
jurisdiction
under S.6
and S.7 or
under
S.40(2),
read with
S.83(2) as
the case may
be. At the
time and in
the process
of
registration
of a
property as
Wakf
property, if
a dispute
arises as to
whether a
property is
Wakf or not
or whether a
Wakf is
Sunni Wakf
or Shia Wakf,
at that
juncture the
jurisdiction
is only of
the Wakf
Board and
the Board
has to take
a decision
as per the
prescribed
procedure.
If any party
is aggrieved
by the
decision
taken by the
Board, it is
at that
point such
party gets a
right to
move the
Wakf
Tribunal
under S.40
read with
S.83. Thus
the function
of
registration
of a
property as
Wakf
property,
being that
of the Board
and since it
is the duty
of the Board
in the
process to
decide a
question as
to whether a
property is
Wakf or not,
it is for
the Board to
consider and
decide the
questio n at
the first
instance.
The Tribunal
can be
called upon
only to
adjudicate
on and after
the decision
taken by the
Board on the
disputed
question.
(paras. 5, 6
& 7)
2003 (3) KLT
32; 2007 (3)
KLT 800; AIR
1965 SC 304;
AIR 1979 SC
404; AIR
2003 SC 942
& (1855) 6
M.I.A.
134
Referred to
P.K. Suresh
Kumar, P.P.
Basheer &
K.P. Sudheer
For
Petitioners
@page-KLT959#
T.P. Kelu
Nambiar (Sr.
Advocate),
R. Ramadas,
A.A. Abul
Hassan,
Vinod
Ravindranath,
P.A. Abdul
Jabbar & T.
Krishnan
Unni
For
Respondents
ORDER
Kurian
Joseph, J.
Give unto
God what
belongs to
Him and
leave man to
enjoy what
belongs to
him. If this
balance is
tilted,
peace on
earth is
disturbed.
Once a Wakf
is duly
created, the
property
belongs to
God and the
enjoyment is
to be
restricted
to the
dedicated
purposes.
There being
a
restriction
on enjoyment
of property,
progeny is
tempted or
prompted to
probe as to
whether
there is a
valid Wakf
at all.
Which is the
forum to
first look
into the
matter is
the crucial
question
arising for
consideration
in this
case.
2. The
petitioners
are
respondents
2, 5 and 8
in A.S.
No.10/2001
on the file
of the Wakf
Tribunal,
Kozhikode.
The matter
was pursued
before the
Tribunal by
respondents
1 and 2
aggrieved by
the
suo motu
steps of the
Board to
register 17
cents of
property in
Re-survey
No.230/2 in
Kozhikode
district,
which is
popularly
known as
Mampram
Makkam. The
suit was
initially
dismissed by
the Tribunal
holding that
respondents
1 and 2 are
no t
entitled to
maintain an
appeal
before the
Tribunal
against the
decision
taken by the
Wakf Board
to register
Mampram
Makkam as
Wakf
property.
The matter
was taken up
before this
court in
C.R.P.
No.672/2002
and O.P.
No.17924/2002.
This Court
disposed of
the civil
revision
petition and
the Writ
Petition by
common order
dated
29-8-2002
holding that
the finding
of the
Tribunal
that the
revision
petitioner
is not
competent to
file an
appeal
before the
Wakf
Tribunal is
not correct
in view of
S.83 of the
Wakf Act.
Therefore,
this court
held that
“….. it is
only just
and proper
to set aside
the judgment
of the Wakf
Tribunal and
remand the
case to the
lower court
for fresh
consideration”.
It was also
observed
that
“admittedly,
before
taking a
decision in
respect of
Mampram
Makkam, no
notice was
issued
either to
the
petitioner
in C.R.P.
No.672 of
2002 or to
the
petitioner
in O.P.
No.17924 of
2002. So the
Wakf Board
was not
justified in
suo motu
registering
Mampram
Makkam as
Wakf without
giving
notice to
the
interested
parties and
without
complying
the
procedure
provided in
the Wakf
Act.”
Therefore,
in the Writ
Petition
this court
issued a
direction to
the Wakf
Tribunal
“...... to
consider A.S.
No.10 of
2001 on
merit after
giving an
opportunity
to the
parties in
the C.R.P.
and in the
O.P. to
substantiate
their case”.
3. The
Tribunal,
after an
elaborate
discussion
of the facts
and
evidence,
came to the
conclusion
that the
Wakf Board
has not
properly
exercised
its
jurisdiction
in the
matter of
registration.
It was noted
that the
affected
parties had
not been
given an
opportunity
to place
their
contentions
before the
Board as to
whether the
disputed
property is
Wakf or not
and hence
the
suo motu
registration
without such
an
opportunity
was illegal
and
consequently
remitted the
matter to
the Board
for fresh
consideration,
4. The main
contention
of the
petitioners
is that in
view of the
mandate
under S.7 of
the Wakf
Act, 1995,
the Wakf
Tribunal
alone is
having
jurisdiction
to decide
the
@page-KLT960#
question as
to whether a
property is
Wakf
property or
not. It is
also
contended
that S.32 of
the Act
dealing with
the powers
and
functions of
the Board
does not
contemplate
any such
power on the
Board to
decide as to
whether the
property is
Wakf or not.
Under S.83
of the Act,
the Tribunal
is the forum
to determine
any dispute,
question or
other matter
regarding
the Wakf, it
is
contended.
Reliance is
placed on
two bench
decisions of
this Court
in (1)
Pookoya Haji
v.
Cheriyakoya
(2003 (3)
KLT 32) and
(2)
Madeena
Masjid v.
Kerala Jama
Ath Islami
Hind
(2007 (3)
KLT 800)
wherein it
has been
held that
“The words
any dispute,
question or
other
matters
relating to
Wakf or 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 bee n
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.” The
impugned
order is
defended by
the
respondents
contending
that if any
question
arises as to
whether a
property is
Wakf
property or
not at the
time of
registration,
the
jurisdiction
is that of
the Board
alone to
decide the
question
after
issuing
notice to
all the
parties
concerned.
Since the
Board
exercised
such power
without
hearing the
affected
parties, the
decision is
bad in law
and the
Tribunal is
hence
justified in
remitting
the matter
to the Board
to take a
decision in
accordance
with the
procedure
contemplated
under S.40
of the Act.
5. In order
to
appreciate
the rival
contentions
and for
proper
resolution
of the
dispute
arising in
this case it
is necessary
to refer to
the relevant
statutory
provisions.
Chapter II
of the Wakf
Act, 1995
comprising
of Ss.4 to 8
deals with
Survey of
Wakfs. S.4
provides for
preliminary
survey of
Wakfs, S.5
deals with
publication
of list of
Wakfs by the
Wakf Board,
S.6 deals
with
settlement
of disputes
regarding
Wakfs, S.7
deals with
the power of
Tribunal to
determine
disputes
regarding
Wakfs and
S.8 deals
with the
recovery of
costs of
survey.
Sub-s.(3) of
S.4 to the
extent
relevant
reads as
follows:-
4(3) The
Survey
Commissioner
shall, after
making such
inquiry 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
or any part
thereof, to
the State
Government..........”
The Act came
into effect
on 22nd
November,
1995, S.5
reads as
follows:-
“5.
Publication
of list of
Wakfs:-
(1) On
receipt of a
report under
sub-s.(3) of
S.4, the
State
Government
shall
forward a
copy of the
same to the
Board.
(2) The
Board shall
examine the
report
forwarded to
it under
sub-s. (1)
and publish
in the
Official
Gazette a
list of
Sunni Wakfs
or Shia
Wakfs in the
State,
whether
@page-KLT961#
in existence
at the
commencement
of this Act
or coming
into
existence
thereafter,
to which the
report
relates, and
containing
such other
particulars
as may be
prescribed.”
S.6 reads as
follows:-
“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 S.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 S.4.
(2)
Notwithstanding
anything
contained in
sub-s. (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-s.(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
thereunder.
(4) The
list of
Wakfs shall,
unless it is
modified in
pursuance of
a decision
or the
Tribunal
under
sub-s.(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-s.(1).”
S.7 to the
extent
relevant
reads as
follows:-
“7. Power of
Tribunal to
determine
disputes
regarding
Wakfs:-
(1) If,
after t he
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.
@page-KLT962#
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
reopen such
question.
(2) Except
where the
Tribunal has
no
jurisdiction
by reason of
the
provisions
of
sub-s.(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 ap peal
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-s.(1).
(4) The
List of
Wakfs
and where
any such
list is
modified
in pursuance
of a
decision of
the Tribunal
under
sub-s.(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-s.(1) of
S.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.”
On a close
analysis of
the
provisions
under
Chap.II it
is fairly
clear that
the dispute
that is
contemplated
under
Chap.II
pertains to
the dispute
in respect
of a
property
appearing in
the list of
Wakf
property
published by
the Wakf
Board. Only
after
publication
of the list
under S.5,
any dispute
on a
question can
be raised.
The power
that is
vested on
the Tribunal
to determine
the issue
regarding
Wakf under
S.6 or S.7
is only in
respect of
the question
as to
whether a
particular
property
specified as
Wakf
property in
the list of
Wakfs is
Wakf
property or
not, or
whether it
is Shia Wakf
or Sunni
Wakf.
Therefore,
the
pre-condition
for invoking
the
jurisdiction
of the
Tribunal
under S.6 or
S.7 is
appearance
of a
property as
Wakf
property in
the list of
Wakfs
published by
the Wakf
Board under
S.5 of the
Act.
6. The
Tribunal
under
S.83(2) is
empowered
and entitled
to determine
any dispute
or question
or any
matter
relating to
Wakf.
S.83(2)
reads as
follows:-
@page-KLT963#
“83(2).
Any
mutawalli or
person
interested
in a Wakf 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.”
But the
crucial
issue is
what is the
disputed
question in
this case.
No doubt
under S.83
any
muthawalli
or a person
interested
in a Wakf or
any person
aggrieved by
an order
made under
the Act or
Rules is
entitled to
approach the
Tribunal for
the
determination
of any
dispute,
question or
other matter
relating to
the Wakf as
held by this
Court in
Pookoya
Haji's
case (supra)
and followed
in
Madeena
Masjid's
case
(supra). But
S.6 as well
as S.7
specially
and
specifically
provide for
raising a
dispute
before the
Tribunal for
deciding a
question as
to whether
enlistment
of property
as Wakf
property is
correct or
not or
whether a
Wakf is
Sunni or
Shia.
Actually
there is no
much
difference
between the
procedure
under S.6 or
S.7. The
differentiating
factor is
only that
S.7 deals
exclusively
with post
1995 Wakf
Act
scenario. A
reading of
S.6 or S.7
with S.83
would show
that the
'question'
referred to
in S.83 in
the
background
of S.6 or
S.7 is a
question
only of a
dispute
regarding
enlistment
of a
property as
Wakf, or as
Sunni Wakf
or Shia
Wakf.
7. S.32,
dealing with
the powers
and
functions of
the Board
provides
that
“Subject to
any rules
that may be
made under
this Act,
the general
superintendence
of all Wakfs
in a State
shall vest
in the Board
established
for the
State; and
it shall be
the duty of
the Board so
to exercise
its powers
under this
Act as to
ensure that
the Wakfs
under its
superintendence
are properly
maintained,
controlled
and
administered
and the
income
thereof is
duly applied
to the
objects and
for the
purposes for
which such
Wakfs were
created or
intended”.
Under
S.32(2)(n)
and (o) the
Board is
empowered,
“32(2)(n) to
investigate
and
determine
the nature
and extent
of Wakf and
Wakf
property,
and to
cause,
whenever
necessary, a
survey of
such Wakf
property;
(o)
generally do
all such
acts as may
be necessary
for the
control,
maintenance
and
administration
of Wakfs.”
Chap.V of
the Act
comprising
of Ss.36 to
43 deals
with
registration
of Wakfs.
Under S.36
every Wakf
shall be
registered
at the
office of
the Wakf
Board, and
if not penal
sanction is
contemplated.
Power is
also
conferred on
the Board
for taking
suo motu
action. S.40
deals with
decision by
the Wakf
Board as to
whether a
property is
Wakf
property or
not. The
Section
reads as f
ollows:-
40. Decision
if a
property is
Wakf
property:--
(1)
The Board
may itself
collect
information
regarding
any property
which it has
reason to
believe to
be Wakf
property and
if any
question
arises
whether a
particular
property is
Wakf
property or
not or
whether a
Wakf is a
Sunni Wakf
or a Shia
Wakf, it
may, after
making such
inquiry as
it may deem
fit, decide
the
question.
@page-KLT964#
(2) The
decision of
the Board on
a question
under
sub-s.(1)
shall,
unless
revoked or
modified by
the Tribunal,
be final.
(3) Where
the Board
has any
reason to
believe that
any property
of any trust
or society
registered
in pursuance
of the
Indian
Trusts Act,
1882 (2 of
1882) or
under the
Societies
Registration
Act, 1860
(21 of 1860)
or under any
other Act,
is Wakf
property,
the Board
may
notwithstanding
anything
contained in
such Act,
hold an
inquiry in
regard to
such
property and
if after
such inquiry
the Board is
satisfied
that such
property is
Wakf
property,
call upon
the Trust or
society, as
the case may
be, either
to register
such
property
under this
Act as Wakf
property or
show cause
why such
property
should not
be so
registered.
Provided
that in all
such cases,
notice of
the action
proposed to
be taken
under this
sub-section
shall be
given to the
authority by
whom the
Trust or
society had
been
registered.
(4) The
Board shall,
after duly
considering
such cause
as may be
shown in
pursuance of
notice
issued under
sub-s.(3),
pass such
orders as it
may think
fit and the
order so
made by the
Board, shall
be final,
unless it
is revoked
or modified
by a
Tribunal”.
The
provision is
very clear
under S. 40
that in the
process of
registration
of a Wakf
property, if
any question
arises as to
whether a
particular
property is
Wakf
property or
not or
whether a
Wakf is a
Sunni Wakf
or a Shia
Wakf, it is
for the
Board to
decide the
question and
the decision
taken by the
Board is
subject to
scrutiny
only by the
Tribunal and
if not
interfered
by the
Tribunal the
decision is
final. Just
as the
Tribunal
getting
jurisdiction
under S.6 or
S.7 of the
Act to
decide a
question as
to whether a
property is
Wakf or not
only after
the same is
listed under
S.5, under
S.40 the
Tribunal
gets the
jurisdiction
to decide as
to whether a
property is
Wakf or not
only after
the Board
duly takes a
decision as
to whether
such
property is
to be
registered
or not. It
is that
decision
which is
liable to be
subjected to
scrutiny by
the Tribunal
under S.40
read with
S.83(2). The
expression
'any
dispute,
question or
other matter
relating to
the Wakf
appearing
under
S.83(2) has
to be given
a restricted
meaning in
its
application
as far as
the disputes
or questions
under Ss.6,
7 and 40.
Enlistment
of a
property
under S.5 as
Wakf and
decision on
registration
under
S.40(1) by
the Wakf
Board are
pre-conditions
for
invocation
of
jurisdiction
under S.6
and S.7 or
under
S.40(2),
read with
S.83(2) as
the case may
be. As held
by the Privy
Council in
Nusserwanjee
Pestonjee v.
Meer My
noodeen Khan
Wullud Meer
Sudroodeen
Khan
Bahadoor
((1855) 6
Moore's
Indian
Appeals
134), which
has been
followed and
settled by
the Supreme
Court as the
correct
legal
position, in
Kothamasu
Kanakarathamma
v. State of
Andhra
Pradesh
(AIR 1965 SC
304),
Md.Hasnuddin
v. State of
Maharashtra
(AIR 1979 SC
404) and in
Sharda
Devi v.
State of
Bihar
(AIR 2003 SC
942)
“wherever
jurisdiction
is given by
a Statute
and such
jurisdiction
is only
given upon
certain
specified
terms
contained
therein, it
is a
universal
principle
that those
terms should
be complied
@page-KLT965#
with, in
order to
create and
raise the
jurisdiction,
and if they
are not
complied
with, the
jurisdiction
does not
arise.” Here
the question
is whether
there is a
proper
registration
after due
inquiry and
to what
extent such
a decision
by the Board
has affected
the status
of Mambram
Makkam. As
rightly
contended by
the learned
counsel for
the
respondents,
this Court
in the
common order
in C.R.P.
No.672/2002
and O.P.
No.17924/2002
has observed
that no
notice had
been issued
to the
parties
while the
Board
registering
the property
as Wakf
property.
What is the
impact of
such
registration
without
notice to
the parties
is a matter
directed by
this court
in the said
order to be
considered
by the
Tribunal. It
may be noted
that the
Tribunal at
the first
instance had
not
considered
the merits
of the
matter. It
considered
only the
maintainability.
The finding
regarding
the
maintainability
alone was
the subject
matter of
the Writ
Petition and
revision
petition
before this
court
leading to
the common
order
referred to
above and
that is why
this court
directed the
Tribunal to
take a
decision
after giving
an
opportunity
to the
parties in
the civil
revision
petition and
the Original
Petition. It
was in that
background
only, the
Wakf
Tribunal
framed the
following
issues:-
“1.
Whether the
respondent/Wakf
Board has
conducted a
fair and
proper
enquiry as
per law in
deciding the
question as
to whether
the Makkam
property is
to be
registered
as a wakf?
2.
Whether the
decision of
the
respondent
board is
liable to be
interfered
with?”
On issue
No.1, after
an elaborate
discussion
on the
evidence and
facts, the
Tribunal
rightly
found that
the Board
has not gone
into the
relevant
aspects with
notice to
the parties
and that the
affected
parties had
not got an
opportunity
before the
Board to
place their
contentions
while the
Board
registering
the property
as Wakf
property. At
the time and
in the
process of
registration
of a
property as
Wakf
property, if
a dispute
arises as to
whether a
property is
Wakf or not
or whether a
Wakf is
Sunni Wakf
or Shia Wakf,
at that
juncture the
jurisdiction
is only of
the Wakf
Board and
the Board
has to take
a decision
as per the
prescribed
procedure.
If any party
is aggrieved
by the
decision
taken by the
Board, it is
at that
point such
party gets a
right to
move the
Wakf
Tribunal
under S.40
read with
S.83. It
will be
profitable
in this
context to
refer to the
decision of
the Supreme
Court in
M.P. Wakf
Board v.
Subhan Shah
(2006 (4)
KLT SN 80
(C.No.111)
SC = (2006)
10 SC 696),
where it has
been held as
follows:-
“The Wakf
Act is a
self-contained
code. S.32
of the 1995
Act provides
for powers
and
functions of
the Board.
S.32(2) of
the 1995 Act
enumerates
the
functions of
the Board
without
prejudice to
the
generality
of the power
contained in
S.32(1)
thereof.
The
Tribunal was
constituted
for the
purposes
mentioned in
S.83 of the
1995 Act. It
is an
adjudicatory
body. Its
decision is
final and
binding but
then it
could not
usurp the
jurisdiction
of the
Board. There
is no
provision
which
empowers the
Tribunal to
frame a
scheme. In
the absence
of any such
power vested
in the
Tribunal,
the Tribunal
ought to
have left
the said
function to
the Board
which is
statutorily
empowered
therefor.
Where a
statute
creates
@page-KLT966#
different
authorities
to exercise
their
respective
functions
thereunder,
each of such
authority
must
exercise the
functions
within the
four corners
of the
statute.
When a
procedure
has been
laid down
the
authority
must act
strictly in
terms
thereof.''
Thus the
function of
registration
of a
property as
Wakf
property,
being that
of the Board
and since it
is the duty
of the Board
in the
process to
decide a
question as
to whether a
property is
Wakf or not,
it is for
the Board to
consider and
decide the
question at
the first
instance.
The Tribunal
can be
called upon
only to
adjudicate
on and after
the decision
taken by the
Board on the
disputed
question.
Petitioners
submit that
the present
Chairman of
the Wakf
Board is an
interested
party. But
the decision
is that of
the Board.
The learned
Standing
Counsel for
the Board
submits that
in the
proceedings
and
deliberations
of the Wakf
Board,
interested
members
always
abstain.
Therefore,
there is no
basis for
any
apprehension.
The Tribunal
is hence
right in
remitting
the matter
to the Wakf
Board to
first decide
on proper
inquiry and
with notice
also to all
the affected
parties as
to whether
the disputed
property is
Wakf
property or
not. The
parties are
free to take
all
available
contentions
before the
Board since
they are
also to be
issued
notice. If
they are
aggrieved by
the decision
of the
Board, it
will be open
to them to
invoke the
jurisdiction
of the
Tribunal.
Thus there
is no merit
in the civil
revision
petition. It
is
accordingly
dismissed. |
