The point for determination in this Civil Revision Petition is as to whether the Tribunal constituted by the State Government under Section 83(1) of the Wakf Act, 1995 can entertain a petition filed by the members of the Jamath seeking for an order of permanent injunction restraining the Civil Revision Petitioners from interfering with the management committee and grant temporary injunction on the similar line pending the said petition.
2. The Civil Revision Petitioners are the respondents 1 and 2 in W.O.P No. 2 of 2001 filed by the 1st respondent. The respondents 2 to 5 in the Civil Revision Petition are the respondents in the said W.O.P For convenience, the parties are referred to as in the Civil Revision Petition.
3. The 1st respondent filed the said W.O.P under Section 83(1) of the Wakf Act hereinafter called as “the Act” for a relief of permanent injuction against the revision petitioners from interfering with the management of the committee. The said petition was filed on the averments that the Keelakarai South Street Pallivasal Jamath is registered under the Tamil Nadu Wakf Board in G.S No. 138.Ramnad. The said Jamath is supervised and managed by 15 members elected in an election conducted by the election officer nominated by the Tamil Nadu Wakf Board. The members so elected will have a tenure of three years. As per the directions of the Tamil Nadu Wakf Board dated 22.1.2000 for conduct of election to the 15 members of the Jamath, election was held on 23.3.2000 in the presence of the election officer nominated by the Tamil Nadu Wakf Board. The said election was approved by the Tamil Nadu Wakf Board in its order dated 8.4.2000 Pursuant to the said election, the approved committee took over the management of the Jamath and is managing the same. The said committee is entitled to hold the office for a period of three years from 8.4.2000
4. While that being so, the 1st and 2nd petitioners claiming themselves to be the Secretary and President of the Jamath respectively issued a paper publication in “Daily Thanthi” on 26.12.2000 for conduct of the election to the managing committee on 16.1.2001 The said advertisement created an apprehension in the mind of members of the Jamath and public as if no managing committee is in existence for managing the affairs of the Wakf. Therefore, it became necessary for the 1st respondent to file the said petition seeking for a permanent injuction restraining the petitioners 1 and 2 from interfering with the functions of the managing committee over the Jamath. Since the petitioners 1 and 2 also advertised in the daily paper calling for election for the managing committee of the Jamath, the 1st respondent was also constrained to seek for temporary injunction in I.A No. 6 of 2000 restraining the petitioners 1 and 2 from conducting the election. The said petition was entertained by the Tribunal and by order dated 13.1.2001 allowed the said application thereby restraining the Civil Revision Petitioners from holding election. It is against the orders of the Tribunal entertaining W.O.P 2 of 2001 and allowing the I.A No. 6 of 2001, the present Civil Revision Petition has been filed.
5. Mr. T.R Mani, learned Senior Counsel appearing for the petitioners would challenge the very proceedings pending before the Tribunal as outside the scope of the powers vested in the Tribunal under Section 83 (1) of the Act. The learned Senior Counsel would challenge the proceedings mainly on the ground that the Tribunal would have no jurisdiction to entertain a petition with a relief of injunction under Section 83 of the Act since the Tribunal is only deemed to be a Civil Court and not a Civil Court as such, since the relief does not relate to the Wakf or Wakf property and the same relates to the management of the Wakf and election to managing committee of Jamath. Therefore, the learned Senior Counsel submitted that in the absence of jurisdiction for the Tribunal to entertain such a petition, the entire proceedings pending in W.O.P No. 2 of 2001 initiated by the 1st respondent are liable to be set aside and consequently the temporary injunction granted by the Tribunal in I.A No. 6 of 2001 is also liable to be set aside.
6. In support of the above submissions, the learned Senior Counsel would draw my attention to Section 83 (1) of the Act which gives the powers to the Tribunal for determination of any dispute, question or other matters relating to Wakf or Wakf property. Under Section 83 (5) of the Act, 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. The learned Senior Counsel submitted that in view of Section 83 (5), it is clear that the Tribunal shall be deemed to be a Civil Court while trying a suit or executing a decree or order thereby indicating that the Tribunal is not a Civil Court. The power to grant injunctiion vested with the Civil Court only under Order 39 of C.P.C and in the areas enumerated under Section 41 of the Specific Relief Act. When the provisions of Specific Relief Act are not made applicable to the Tribunals constituted under Section 83 (1) of the Act, the petition filed for a relief of permanent injunction shall be outside the scope of the powers of the Tribumal. Hence, the learned Senior Counsel submitted that the Tribunal ought not to have entertained the petition filed by the 1st respondent seeking for permanent injunction restraining the petitioners from interfering with the managing committee of the Jamath. The learned Senior Counsel would also submit that the powers and rights of the Tribunal are defined in enumerated items under the Act. Since the Tribunals are empowered to adopt their own procedural aspects as contained in the C.P.C, the Tribunal cannot have the substantive right conferred on the Civil Court under C.P.C like the one for grant of permanent injunction. In view of Section 83 (5), the Tribunal shall be deemed to be a Civil Court only and that too while trying a suit or executing a decree or order which would necessarily mean that the Tribunal is entitled to follow only the procedural aspects prescribed under the Civil Procedure Code while trying the suit or executing the decree or order and cannot have the substantive right to grant an order of permanent injunction or temporary injunction. The learned Senior Counsel would also rely upon Section 86 of the Act which specifically provided a power to the Court where any suit or other legal proceedings are instituted or commenced by or on behalf of the Board (i) to set aside the sale of any immovable property, which is Wakf property in executiion of a decree or order of a Civil Court; (ii) to set aside the transfer of any immovable property, which is Wakf property, made by the mutawalli thereof, whether for valuable consideration or not, without or otherwise than in accordance with the sanction of the Board; to recover possession of the property referred to in clause (1) or clause (b) or to restore possession of such property to the mutawalli of the concerned wakf; or where any such suit or other legal proceeding is instituted by mutawalli to recover possession of immovable property which is wakf property which has been transferred by a previous mutawalli, whether for valuable consideration or not, otherwise than in accordance with the sanction of the Board, and which is in the possession of the defendant, the Court may, on the application of the plaintiff, appoint a receiver of such property and direct such receiver to pay from time to time to the plaintiff, out of the income of the property, such amount as the Court may consider to be necessary for further prosecution of the suit. By relying upon the said provision, the learned Senior Counsel would submit that whenever the legislature contemplated for conferring specific powers either on the Tribunal or on the Board, they have done so as provided under Section 83(5) for the Tribunal to follow the Civil Procedure Code trying a suit or executing a decree or order for the Court to appoint a receiver under Section 86 of the Act when the above contingency arose. The learned Senior Counsel would also rely upon Section 94 of the Act where a mutawalli is under an obligation to perform any act which is recognised by Muslim Law as pious, religious or charitable and the mutawalli fails to perform such act, the Board may apply to the Tribunal for an order directing the mutawalli to pay to the Board or to any person authorised by the Board in this behalf the amount necessary for the performance of such act and where a mutawalli is under an obligation to discharge any other duties imposed on him under the wakf and the mutawalli wilfully fails to discharge such duties, the Board or any person interested in the wakf may make an application to Tribunal and the Tribunal may pass such order thereon as it thinks fit. Placing reliance on the above provisions, the learned Senior Counsel submitted that in the absence of any provision for the Tribunal either to entertain an application for permanent injunction or to grant temporary injunction restraining the third parties from conducting the election, the petition filed by the 1st respondent would fall outside the scope of the powers of the Tribunal and therefore the Tribunal ought not to have entertained the same and ought to have rejected the said application at the outset. Under Section 51 of the Estates Abolition Act which is a parallel provision to Section 83 of the Act, a Division Bench of this Court in the judgment reported in Koil Kandadai Channamarutham Vedanthachariswamy and Four others v. Raja Sir Muthiah Chettiar & another (1955) 68 L.W 66 = 1955 (1) MLJ 229)” and yet another judgment reported in K.S Soosai Udayar and another v. A. Andiyappa Ambalam & others = (1958) 71 L.W 857 = (1959 (1) MLJ 195) have held that the power to issue injunction shall vest with only the civil Court. Similarly, the learned Senior Counsel would reply upon a judgment of this Court reported in T.N Krishnamoorthy v. Jagat Textiles rep. by its Partner Lalji Bhujpunia (1981) 94 L.W 1602 (1981 (1) MLJ 394) to point out the distinctions between a Civil Court and a Tribunal. The learned Senior Counsel contended that when the powers of the Civil Court and the Tribunal are demarcated separately under the Act, the Tribunal was not authorised to decide. Similarly, the learned Senior Counsel relied upon the judgments of this Court reported in Ramaswamy Raja and another v. Elappa Gounder (1960) 73 L.W 747 and “M.S Ramachandra Sastrigal v. Kuppuswami Vanniar (1961) 74 L.W 167 to contend that the powers of the officers under Cultivating Tenant Protection Act under Section 6-A and under Section 6-BB are restricted only with reference to the dispute arises under the Act and not for grant of injunction which would be exclusive jurisdiction of the Civil Court. The learned Senior Counsel would also draw my attention to a judgment of the Calcutta High Court reported in In Re: State Transport Authority & another (II (1992) CPJ 677)” arising under the Consumer Protection Act wherein it has been held that the forum is not a Civil Court. Likewise, the learned Senior Counsel would also rely upon a judgment reported in “2000 (3) CTC 552” which arose under the provisions of the Shops and Establishment Act to contend that the Civil Court and other Authorities are entirely different and the Authorities under the Act are governed by the powers conferred under the Act and not for grant of injunction. The learned Senior Counsel would also rely upon Sections 6(2), 7(2), 67(4), 69(3) and 70(1) and (2) to contend that the Tribunal was specifically excluded from granting interim stay in respect of special matters thereunder. The power to grant an order of injunction mush less an order of temporary injunction is not contemplated under any of the provisions of the Act by conferring such powers on Tribunal. Therefore, for all the reasons the learned counsel submitted that the Tribunal ought not to have entertained the W.O.P No. 2 of 2001.
7. In adverting to the above submissions, Mr. K. Yamunan's learned counsel for the respondents submitted that Section 83(1) of the Act does not relate to only a dispute relating to wakf but it relates to any dispute, question or other matter relating to wakf or wakf property. The learned counsel would further contend that the word “any dispute in the said section would mean that every or whatever dispute relating to wakf or wakf property. The learned counsel therefore submitted that the Tribunal has jurisdiction even to determine a dispute relating to grant of injunction relating to wakf. The learned counsel would also submit that under Section 83(5), the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by the Civil Court while trying a suit or executing a decree or order. The word used while trying a suit would include trying a suit for permanent injunction since such a suit would fall within the jurisdiction of the Tribunal under Section 83(1) of the Act. The learned counsel submitted that the Tribunal has got powers only to follow the procedures prescribed under the Civil Procedure Code is correct in as mush as Section 83(6) of the Act make the position clear wherein it has been stated that “notwithstanding anything contained in the Code of Civil Procedure, the Tribunal shall follow such procedure as may be prescribed.” The learned counsel therefore submitted that the power of the Tribunal is not limited to the provisions of the C.P.C but also to follow such procedure as may be prescribed. The learned counsel submitted that the submission that the powers of the Tribunal is restricted only in trying a suit or executing a decree or order in exercising the powers under the provisions of C.P.C is also not tenable in view of the specific provision of Section 83(8) where the execution of any decision of the Tribunal shall be made by Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure. Therefore, the powers of the Tribunal as contemplated under Section 83 (5) is restricted only to follow the procedure in trying a suit or execution of decree or order. By virtue of those provisions a Tribunal has got the powers as may be exercised by a Civil Court under C.P.C and the said provision shall not mean that the Tribunal shall not have the power to extertain a petition for permanent injunction as the substantive right for the Tribunal to entertain such petition is on the basis of Section 83 (1) of the Act.
8. The learned counsel would also refer to Section 85 of the Act wherein it is provided that no suit or other legal proceedings 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. In view of the specific power of jurisdiction of Civil Court, the only remedy open to the 1st respondent is to approach the Tribunal for the relief of permanent injunction under Section 83 (1) of the Act. The learned counsel would also submit that in view of the provisions under Section 83 (1), (5) and Section 85, the Tribunal has got the implied power to entertain a suit for permanent injunction and also to grant temporary injunction which could be otherwise termed as a doctrine of implied power. The learned counsel would further submit that Section 86 of the Act is non obstante clause since the said power is conferred on the Court notwithstanding anything contained in the Code of Civil Procedure or in any other law for the time being in force. The learned counsel would submit that the said provision is an indication that all powers of the Civil Court are also available to the Tribunal. The learned counsel would contend that it is not correct to say that by virtue of Section 86, the powers of the Tribunal and Courts are separately demarcated. Under Section 86 an additional power has been conferred on the Civil Court when a contingency enumerated under Sestion 86 arises. On the other hand Section 83 gives exhaustive powers to the Tribunal to entertain an application arising any dispute, question or other matter relating to a Wakf or Wakf property. The learned counsel would further submit that the reference to Section 6 (2), 7 (2), 67(4), 69 (3) and 70 (1) & (2) restricting the Tribunal to grant any interim order of stay would indicate that the Tribunal has no power to grant stay only in those specific instances thereby indicating that in all other matters the Tribunal can grant interim orders. In so far as the submission of the learned counsel for the petitioner with reference to the judgments relied upon by the learned counsel for the petitioners under Estates Abolition Act, City Tenants Protection Act, Consumer Protection Act, Debt Recovery Act, etc., the learned counsel submitted that the judgments have been rendered only with reference to the powers conferred on the authorities constituted under the respective Act with reference to the areas of dispute which could be entertained by those authorities. The learned counsel would submit that those judgments may not be pressed into service on the facts and circumstances of the case and in view of Section 83(1),(5) and 85 of the Act which specifically empowers the Tribunal to entertain the petition even for a grant of permanent injunction. Therefore, the learned counsel submitted that those judgments are not applicable to a case under Wakf Act. Hence, the submissions on the jurisdiction of the Tribunal raised by the learned counsel for the petitioner are untenable and are liable to be rejected.
9. On facts, the learned counsel submitted that on the directions of the Tamil Nadu Wakf Board, an election was held to the managing committee of the Jamath on 23.3.2000 wherein 15 members were elected. The election of 15 members to the managing committee of the Jamath was approved by the Wakf Board on 8.4.2000 In disobedience to the said election and the approval, the petitioners claiming themselves to be the Secretary and President of the Jamath respectively advertised in Tamil daily “Daily Thanthi” on 26.12.2000 for holding of the election to the managing committee of the Jamath on 16.1.2001 When there is an elected managing committee as approved by the Tamil Nadu Wakf Board, and the attempt on the part of the petitioners to conduct a separate election, it became necessary for the 1st respondent to approach the tribunal with a relief of permanent injunction restraining the petitioners from interfering with the functioning of the managing committee of the Jamath. It also became necessary for the 1st respondent to seek for temporary injunction restraining the petitioners from conducting the election as notified in the Tamil daily. Unless such an interim order is granted, the petitioners would hold the election and by virtue of the said election if any other members are elected for the managing committee, a fresh dispute would arise as to the managing committee itself. Therefore only the Tribunal had granted the temporary injunction as prayed for by the petitioners in I.A No. 6/2001. The learned counsel therefore submitted that the Civil Revision Petition is unsustainable and is liable to be rejected.
10. I have heard in detail the submissions of the learned counsel on either side. Before, adverting to the rival contentions, it would be useful to refer to the relevant provisions of the Act relied upon by the respective counsel.
“Section 3: — In this Act, unless the context otherwise requiries: —
(q) “Tribunal”, in relation to any area, means the Tribunal constituted under sub-section (1) of Section 83, having jurisdiction in relation to that area;
(r) “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;
(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.
Section 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.
(2) Notwithstanding anything contained in sub-section (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.
Section 7: Power of Tribunal to determine disputes regarding wakfs: — (1) If, after the 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:
Provided that —
(a) in the case of the list of wakfs relating to any part of the State and punished 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 with in 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 subsection (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 appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.
Section 83: Constitution of Tribunals, etc: — (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 under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals;
(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.
(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).
Section 85: Bar of jurisdiction of Civil Courts: — No suit or other legal proceedings 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.
Section 94: Power to make application to the Tribunal in case of failure of mutawalli to discharge his duties:(1) where a mutawalli is under an obligation to perform any act which is recognised by Muslim law as pious, religious or charitable and the mutawalli fails to perform such act, the Board may apply to the Tribunal for an order directing the mutawalli to pay to the Board or to any person authorised by the Board in this behalf the amount necessary for the performance of such act.
(2) Where a mutawalli is under an obligation to discharge any other duties imposed on him under the Wakf and the mutawalli wilfully fails to discharge such duties, the Board or any person interested in the Wakf may make an application to the Tribunal and the Tribunal may pass such order thereon as it thinks fit.”
11. The Tribunal as defined under Section 3(q) of the Act is constituted by the State Government by a Notification in the Official Gazette as contemplated under Section 83(1) of the Act. Under the said Section, the Tribunal has power for the determination of any dispute, question or other matter relating to wakf or wakf property under the Act. The definition of “wakfs” as stated in Section 3(r) is referrable to the permanent dedication by a person professing Islam, of any immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes such a dedication by a person professing Islam. It also includes grants and 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. The word “wakf has its origin in the Arabic Verb ‘Waqafa’ meaning thereby “to detain” or “to hold” or to tie-up’. The Islamic concept of the word ‘wakf’ assumed a very significant application to any property, movable or immovable, devoted in the name of Allah for religious, pious or charitable purpose and for the upliftment of the poorer Sections of the society. The person creating a wakf is called, “Wakif” as defined in Section 3(r) itself. Wakf deed means a deed or instrument by which a wakf is created and it includes subsequent deed by which any of the terms of the original dedication is varied. As per the author of the commentary on the Law of Wakf in India Dr. Ahmedullah Khan, the types of Wakf and the Essentials of a valid Wakf are as follows: —
“Types of Wakf: — Usually there are three types of Wakf recognised as under: —
(i) Wakf by user
(ii) Wakf Mushrut-ul-khidmat
(iii) Wakf-al-al-aulad
(i) Wakf by User: — Where any piece of land or portion of a building has been used permanently for any religious or pious purpose and the owner had no objection to it or has an intention to allow to continue such practice then such Wakif is called as Wakf by User, example Mosque, Madrasa, etc.
(ii) Wakf Mashrut-ul-khidmat is a Public Wakf where the Wakif has devoted the property for the general benefit of Muslim community and means a grant stipulated for rendering services.
(iii) Wakf-al-al-aulad is that unique feature of Islamic law where a property is made Wakf for the welfare of the Waki's own family or his childern or childern of his childern. It is called Wakf-al-al-aulad or Wakf for progeny.
Essentials of a Valid Wakf: — The first essential condition for creating valid Wakf is that the declaration of dedication should be made contemporaneously with the act of dedication. The Wakif 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 essentials of a valid Wakf are:
(i) Perpetuity
(ii) Irrevocability
(iii) Inalienability
Wakf should be a permanent dedication of property. Hence perpetual. A dedication being limited in time is not valid. Once a Wakf always a Wakf. Hence irrevocable. It cannot be transferred or disposed off. Hence inalienable.
Similarly a contigent Wakf is also not valid. For example, if the Wakf is made contingent on the death of a person without leaving any childern behind, is void.
12. The Act does not define the Wakf property. However, whatever property dedicated for the religious, pious and charitable purpose and for the upliftment of the poorer section of the society by a Wakif shall be construed a Wakf Property. On a reading of the definition of Wakf coupled eith types of Wakf, essentials of wakf, it is manifestly clear that the word wakf relates to the dedication of movable and immovable properties for religious, pious and charitable purpose and for the upliftment of poorer sections of the society by Wakf. As per Section 83(1) of the Act, the Tribunal constituted by the State Government under a Notification shall have the power for determination of any dispute, question or other matter relating to a Wakf or Wakf property under the Act which would necessarily mean and to be understood that the power of the Tribunal is demarcated and limited only in respect of a dispute, question or other matter relating to Wakf or Wakf propertry. The question to be considered and decided is as to whether a dispute relating to the managing committee could be called as dispute, question or other matter relating to Wakf or Wakf property. As per Section 85 of the Act, no suit or other legal proceedings 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 the Act to be determined by the Tribunal. The very fact that provision under Section 85 bars the jurisdiction of the Civil Court in respect of the disputes enumerated thereunder would indicate that the Tribunal would have the jurisdiction only in respect of the dispute, question and other matters relating to Wakf or Wakf property or other matter which are required by or under the Act to be determined by the Tribunal under the provisions of the Act and the said Section does not bar the jurisdiction of the Civil Court to entertain a suit for permanent injunction of the nature that has been made in the petition before the Tribunal by the 1st respondent. However, the submission of the learned counsel for the respondents is that by virtue of Section 83(1) of the Act, the Tribunal has got exhaustive powers to entertain any dispute, question or other matter relating to the Wakf or Wakf property including a dispute relating to the managing committee. It would be relevant to note that wherever the powers conferred on the Tribunal relating to disputes, question or other matters, specific exclusion of the powers of the Tribunal in granting stay is also enacted in various provisions of the Act especially when 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 under Section 6(1) of the Act. When such a suit is filed it has been indicated that notwithstanding anything contained in the Code of Civil Procedure under the Act in respect of any Wakf shall be stayed by pendency of any such suit or in appeal arising out of such suit. Similarly, under Section 7(1) of the Act, if, after the commencement of the 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. In such event, by the reason of the provisions of subsection 5 of Section 7, no proceedings under the Section in respect of any Wakf shall be stayed by any Tribunal or other Authority or reason pending of any suit or appeal arising out of such suit, appeal or other proceedings. A reading of the above provisions would indicate that wherever the legislature intended to specifically indicate that the Tribunal or the Court as the case may be, shall not grant stay of the Board's proceedings, it has been provided so under the provisions of the Act. The Wakf Act is a complete Code by itself. The Tribunal is constituted under the Act by the State Government under Notification. The powers of the Tribunal are restricted only to the disputes specifically referred in Section 83(1) of the Act to be adjudicated. Under Section 83(1) of the Act, the Tribunal is empowered to determine the dispute, question or other matters relating to Wakf or Wakf property and not in respect of an application for permanent injunction as has been filed by the 1st respondent in W.O.P No. 2/2001. In this context, the words “or other matter which is required by or under the Act to be determined by the Tribunal” shall be referrable only to Sections 6, 7, 67(4), 70(1) & (2) and Section 94. None of the provisions of the Act either expressly or impliedly empowers the Tribunal to entertain, adjudicate upon and decide a petition for permanent injunction. Section 85 of the Act also does not specifically bar the jurisdiction of Civil Court to entertain a suit for injunction. Section 94 of the Act also empowers the Tribunal to issue direction to mutawalli to pay to the Board or to any person authorised by the Board the amount necessary for the performance of such act where mutawalli who is under an obligation to perform any act which is recognised by Muslim law as pious, religious or charitable and the mutawalli fails to perform such act. Therefore, the submissions of the learned counsel for the respondents that the word used “any dispute” shall also mean a dispute relating to the managing committee of the Jamath and the word “any” used in section 83(1) of the Act shall mean every and whatever the dispute relating to a wakf and the said word “Wakf” does relate to the managing committee cannot be accepted. It is also to be noted that the power to order injunction shall vest with the Civil Court by virtue of Sections 39 and 41 of the Specific Relief Act. However, the learned counsel for the respondents contended that the Tribunal had inherent power to grant temporary injunction while entertaining an application for permanent injuncion. I am not inclined to accept the said submission of the learned counsel since in the absence of any specific power under the Act, the Tribunal would have no jurisdiction to entertain a petition for grant of permanent injunction, as the power of the Tribunal to adjudicate upon the dispute is specifically enumerated under the Act. In the light of the provisions of the Act and in the absence of any power for the Tribunal to determine the dispute as to the constitution of managing committee or the conduct of election to the managing committee, the petitions for permanent injunction and temporary injunction filed by the respondents are not entertainable by the Tribunal. In the judgment reported in Koil Kandadai Channamarutham Vedanthachariswami and four others v. Raja Sir Muthiah Chetti and another (1955) 68 L.W 166 = (1955 (I) MLJ 229)”, a Division Bench of this Court while considering the powers of the Tribunal constituted under the Madras Estates (Abolition and Conversion with Ryotwari (Act 1948 in entertaining an application for cross objection has held that in the absence of any provision under the Act attracting the entire procedure laid down in the Civil Procedure Code including the right to file objections does not arise and the right of the aggrieved person is restricted to an appeal under Section 51. The judgment of the Calcutta High Court reported in In Re: State Transport Authority & another (II (1992) CPJ 677)”, it has been held as follows: —
“Next comes the question of passing ad interim order by a Tribunal. It is well settled, that unless a Tribunal, set up under a Special Statute is vested with such power under the statute itself, it cannot pass such an order, nor can a Tribunal exercise the inherent power as prescribed under the Code of Civil Procedure, if such a Tribunal is not a Court. So far as the Consumer Protection Act, 1986 is concerned, the procedure to be adopted by a District Forum on receipt of a complaint, is laid down in Section 13 of the said Act and Sub section (4) of the said Section 13 states that for the purpose of the said section, the Forum shall enjoy the same powers as are vested in a Civil Court under the Code of Civil Procedure, while trying a suit, in respect of the following matters,
(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object produceable as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed, and same powers have been vested with the State Commission also as per the provisions of Section 18 of the Act.
From the aforesaid provisions it is thus quite clear, that neither a District Forum nor the State Commission has been vested with any power under the Consumer Protection Act, 1986, to grant and/or pass any ad-interim order, not any of those Tribunals is a Civil Court so as to be deemed as such to enjoy the inherent powers as embodied in the Code of Civil Procedure. Those Tribunals have been vested with only some limited powers of a Civil Court as specifically stated in Sections 13 and 18 of the said Act and as such, the said Tribunals cannot travel beyond their such limited powers. Hence, the interim orders passed both by the President, Calcutta District Forum and the Chairman, State Commission, are wholly without jurisdiction.”
13. In the judgment reported in “M.S Ramachandra Sastrical v. Kuppuswami Vanniar (1961) 74 L.W 167 a Division Bench of this Court while considering the power of Revenue Court in granting injunction has held that a Revenue Court has no jurisdiction injunction to grant an order of injunctiion in the absence of specific power under the Act. In the judgment reported in “Ramaswami Rajah v. Ellappa Gounder (1960) 73 L.W 747 = (1960 (II) MLJ 26),” it has been held thus: —
“An injunction which is a preventive remedy, is granted by Courts under the specific provisions of the Civil Procedure Code. There is no inherent power in any Tribunal to grant an injunction unless the jurisdiction to grant it is expressly conferred by statute and such a power cannot be assumed by implication…….. Hence a Revenue Divisional Officer would have no jurisdiction to grant an injunction restraining a landlord from entering his property. The tenant has always got his remedy in such cases to approach the Civil Courts for relief by way of injunction.”
14. In the judgment reported in Ramaswamy Rajah and another v. Ellappa Gounder (1960) 73 L.W 747 it has been held thus: —
“An injunction is a specific relief and the jurisdiction to grant it should conferred by statute. Now the question in the present case is whether the Revenue Court acting under Act XXV of 1955 will have power to grant an injunction. The Civil Procedure Code does not wholly apply to that Court. It has therefore to be seen whether, on the terms of the provisions contained in Act XXV of 1955, such a power exists in that Court. It is needless to point out that a power to grant an injunction cannot be assumed to exist by any implication of law. The reason that ordinarily it is the Civil Court that will have the jurisdiction to grant an injunction. When a statutory Tribunal ousts the jurisdiction of the Civil Court in regard to certain matters, it has got to be seen whether the powers of the Civil Court in regard to injunction etc., have been abrogated and those powers have been expressly conferred on the Special Tribunal.”
15. In view of my above findings, I am unable to accept the contention of the learned counsel for the respondents that the grant of interim injunction by the Tribunal is to do complete and full justice also. The Tribunal would have such powers to do complete and full justice provided it had jurisdiction to entertain an application for permanent injunction. In the absence of such power and in view of the fact that the very petition for injunction itself is not maintainable, I am unable to agree with the above submission of the learned counsel for the respondents to justify the grant of temporary injunction in favour of the 1st respondent.
16. For all the above reason, I do hold that the Tribunal constituted under Section 83(1) of the Act, 1995 shall have no jursidiction to entertain a petition seeking for permanent injunction restraining the petitioners herein from interfering in their management of the Jamath and consequently granting temporary injunction restraining the revision petitioners from holding the election is also unsustainable. Hence, the Civil Revision Petition is allowed and the proceeding in W.O.P No. 2/2001 pending on the file of the Wakf Tribunal/Subordinate Judge, Ramanathpuram is quashed and consequently the interim order of temporary injunction granted by the learned Wakf Tribunal/Subordinate Judge, Ramanathpuram in I.A No. 6/2001 dated 13.1.2001 is also set aside. However, in the facts and circumstances of the case, there will be no order as to costs. Consequently, C.M.P No. 2339 of 2001 is closed.
RR/VCS.