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Aliyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal Cheriyakoya And Others
Factual and Procedural Background
The opinion concerns the scope of jurisdiction and powers of Wakf Tribunals constituted in Kerala under the Wakf Act, 1995 (Act 43 of 1995). There was an apparent conflict between two earlier High Court decisions: Pookoya Haji v. Cheriyakoya (C.S. Rajan, J.) which took a broad view that the Tribunal constituted under Section 83(1) could decide any dispute relating to a Wakf or Wakf property; and Abdul Rahiman Musaliar v. Muhammed Sahib (P.R. Raman, J.) which held that the bar in Section 85 applied only to matters "required by or under the Act" to be determined by a Tribunal, leaving some matters to civil courts. Because of this conflict, the matters were placed before a larger bench by reference.
The Court noted a large number of cases pending both before Wakf Tribunals and civil courts about which forum should decide disputes relating to Wakf and Wakf property. Administrative directions had been issued to transfer Wakf-related cases to the Kozhikode Wakf Tribunal, prompting the need to resolve the conflicting judicial interpretations.
Specific proceedings considered in the opinion include W.A. No. 2273/99 (arising from O.P. No. 26419 of 1998), C.R.P. Nos. 3436/2001 and 182/2002 (arising from O.S. Nos. 71 of 1999 and 123 of 1997 concerning a U.P. School and related disputes), and C.R.P. No. 2315 of 2002 (a revision under Section 83(a) of the Wakf Act challenging an eviction decree in O.S. No. 153 of 2001). The Court addressed whether the Wakf Tribunal or civil courts have jurisdiction to resolve the highlighted disputes.
Legal Issues Presented
- Whether the Wakf Tribunal, constituted under Section 83(1) of the Wakf Act, 1995, has jurisdiction to determine "any dispute, question or other matter relating to a Wakf or Wakf property" (i.e., the proper scope of Section 83 read with Section 85).
- Whether Section 85's bar on civil court jurisdiction applies only to matters that are "required by or under this Act to be determined by a Tribunal" (the narrower view taken in Abdul Rahiman Musaliar) or whether it extends to all disputes "relating to" Wakf and Wakf property (the broader view).
- Whether disputes concerning management (e.g., constitution of managing committee, conduct of elections, rights of management) fall within the Tribunal's jurisdiction or remain within civil courts.
- Procedurally, how pending cases in civil courts and Wakf Tribunals should be allocated and whether civil courts should refer jurisdictional questions to Wakf Tribunals to avoid multiplicity of litigation.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pookoya Haji v. Cheriyakoya, (1999) 1 Ker LT 794; AIR 1999 Kerala 289 | Held the Wakf Tribunal constituted under Section 83(1) may decide any dispute, question or other matter relating to a Wakf or Wakf property (broad view). | The opinion identifies this decision as taking the broad view of Section 83/85 and as one side of the conflict which prompted the reference; it is discussed as a precedent consistent with the Court's ultimate conclusion that the Tribunal has wide jurisdiction. |
| Abdul Rahiman Musaliar v. Muhammed Sahib, (2002) 3 Ker LT 742; AIR 2003 Kerala 84 | Interpreted Sections 83 and 85 to mean only matters "required by or under the Act" are barred from civil courts; held management disputes did not fall within Tribunal powers and civil court jurisdiction remained. | The Court examined and rejected this narrower interpretation. The opinion expressly states it is unable to subscribe to the interpretation given in Musaliar's case and finds that decision placed undue emphasis on the second limb of Section 85. |
| Dhulabhai v. State of M.P., AIR 1969 SC 78 | Laid down principles for determining when a statute excludes jurisdiction of civil courts; including finality of tribunal orders and adequacy of tribunal remedies. | The Court relied on the principles from Dhulabhai to structure its analysis of whether Section 85 excludes civil court jurisdiction. The opinion quotes and applies the three relevant principles from Dhulabhai when assessing exclusion of civil jurisdiction. |
| A.M. Ali Akbar's case, AIR 2001 Madras 431 | Madras High Court held that the Wakf Tribunal had no power to determine constitution of managing committee or conduct of elections; injunction petitions by jamath members could not be entertained by the Tribunal. | The Court rejected the reasoning of the Madras High Court in Ali Akbar's case, stating it was unable to agree with that narrower approach to Tribunal powers. |
| T. Sivalingam v. A.P. Wakf Tribunal, (1999) 3 Andh LD 646 | Andhra Pradesh High Court held Section 83 confers jurisdiction on Tribunals to entertain disputes regarding Wakf property and that such suits are maintainable before the Tribunal (broad view). | The opinion cites this decision in support of the proposition that Section 83 and Section 85 should be read to give the Tribunal broad jurisdiction over Wakf property disputes; the decision is treated as consistent with the Court's conclusion. |
Court's Reasoning and Analysis
The Court's analysis proceeds in distinct steps based on the text of the Wakf Act, the scheme of the Act, and controlling principles about exclusion of civil court jurisdiction:
- Statutory framework and scheme: The Court surveyed the Wakf Act, 1995's structure—particularly Chapters and provisions creating the Wakf Tribunal (Sections 83–95), provisions empowering the Survey Commissioner, Wakf Boards, Chief Executive Officer and mutawallis, and specific sections (Sections 6, 7, 32(3), 54(4), 33(4), 38, 51, 52, 64, 67, 69, 73(3), 39(3) etc.) that confer jurisdiction on the Tribunal to entertain suits, appeals and applications. The Court emphasized that many provisions conferred specific powers on the Tribunal and attached finality to its decisions.
- Textual analysis of Section 85: The Court parsed Section 85 into two limbs. The first limb bars suits "in respect of any dispute, question or other matter relating to any Wakf, Wakf property" (emphasis on "relating to"). The second limb bars suits "in respect of any dispute, question or other matter which is required by or under this Act to be determined by a Tribunal" (emphasis on "required by").
- Interaction of Sections 83 and 85: Section 83 empowers the State Government to constitute Tribunals "for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under the Act." Section 84 requires expeditious proceedings and written decisions. The Court concluded that where the Act uses the phrase "relating to" (in Sections 83 and 84 and the first limb of Section 85), the Tribunal's jurisdiction is not limited to only those matters explicitly enumerated elsewhere in the Act; rather it extends to disputes that relate to Wakf or Wakf property.
- Application of Dhulabhai principles: The Court applied the Dhulabhai principles concerning when a statute excludes civil court jurisdiction. The Court noted: (a) finality of tribunal orders and adequacy of remedy are relevant to exclusion; (b) where there is an express bar, examination of the Act's scheme for adequacy of remedies is relevant but not decisive; and (c) exclusion is not readily inferred unless the stated conditions apply. Using these principles, the Court examined the Wakf Act's comprehensive remedial scheme and the finality attached to Tribunal decisions (Section 83(7), Section 83(9) powers of the High Court to call records), concluding the Act provides an adequate, exclusive machinery.
- Rejection of the narrower interpretation: The Court considered the reasoning in Abdul Rahiman Musaliar (which emphasized the second limb of Section 85 and limited Tribunal jurisdiction) and found it unduly narrow. The Court held that such a restrictive reading would thwart the legislative purpose of channeling Wakf disputes to the Tribunal and would considerably limit the Tribunal's jurisdiction. The Court therefore rejected the Musaliar approach.
- Treatment of management/election disputes and allied matters: The Court considered authorities such as the Madras decision in A.M. Ali Akbar and rejected its restrictive stance that managerial or election disputes fall outside Tribunal jurisdiction. It relied also on Andhra Pradesh authority (T. Sivalingam) and the statutory scheme to hold that management and other disputes "relating to" Wakf property are within the Tribunal's remit.
- Practical and procedural consequences: The Court stressed that the Act provides a single machinery for resolution of Wakf disputes and intended disputes to be resolved by the Tribunal to avoid multiplicity of litigation and protect the socio-economic importance of Wakf institutions. The Court observed that when a dispute concerning jurisdiction arises in a civil court, it would be proper for the civil court to refer the question to the Wakf Tribunal so as to prevent flooding of civil courts with Wakf matters.
Holding and Implications
Holding: The High Court held that the Wakf Tribunal has broad jurisdiction to determine "any dispute, question or other matter relating to a Wakf or Wakf property" under Section 83 read with Section 85 of the Wakf Act, 1995. The Court refused to adopt the narrower interpretation in Abdul Rahiman Musaliar and disagreed with the restrictive approach of the Madras decision in A.M. Ali Akbar's case.
Direct dispositions in the opinion:
- The writ appeal W.A. No. 2273/99 (arising out of O.P. No. 26419 of 1998) was dismissed — the Court found the dispute fell squarely within the Wakf Tribunal's jurisdiction and affirmed the single Judge's conclusion that the Tribunal has jurisdiction.
- For C.R.P. Nos. 3436/2001 and 182/2002 (disputes relating to a U.P. School and associated Wakf matters), the Court held it is for the Wakf Tribunal to decide whether the dispute relates to Wakf property; the Tribunal's determination on jurisdiction will govern rather than the civil court's view. The Court observed that civil courts should refer such jurisdictional questions to the Tribunal to prevent multiplicity of litigation.
- C.R.P. No. 2315 of 2002 (a revision under Section 83(a) challenging an eviction decree) was dismissed — the Court held the Tribunal was justified in concluding it had jurisdiction over a dispute regarding Wakf property and found no illegality or impropriety warranting interference under Section 83.
Broader implications:
- The Court's ruling gives the Wakf Tribunal wide reach; matters that "relate to" Wakf or Wakf property are to be determined by the Tribunal, not civil courts. This interpretation gives effect to the legislative purpose of creating a single specialized forum for Wakf disputes.
- Decisions of the Tribunal are final and binding on parties (subject to the supervisory jurisdiction of the High Court under Section 83(9) to call and examine records), and civil courts should refrain from entertaining suits that fall within the Tribunal's jurisdiction.
- The Court emphasized the need to avoid a multiplicity of proceedings by directing that civil courts refer disputes about jurisdiction to the Wakf Tribunal and that the Tribunal's view should be the guiding factor when the issue under Section 83 read with Section 85 arises.
- The opinion expressly declines to follow a narrow construction that would preserve substantial concurrent civil court jurisdiction over Wakf matters; it affirms the legislative scheme favoring Tribunal adjudication.
Order accordingly.
Radhakrishnan, J.:— We are in these cases concerned with the jurisdiction 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 Ker LT 794: (AIR 1999 Kerala 289) took the view that the Wakf Tribunal has been constituted by the Government under Section 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 Section 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 Ker LT 742: (AIR 2003 Kerala 84) while interpreting Sections 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 Section 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 and 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 Tribunal 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 Sections 83 to 95 of the Act.
4. We may before examining the scope of the judicial proceedings enumerated in Chapter VIII of the Act generally survey the scheme of the Act. The word “Wakf” has its origin in the Arabic Verb, Waqufa. Wakf Act, 1995 has given a statutory meaning to the word “Wakf” under Section 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;
(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 of his children or children of his children. A Wakf can be created by the execution of a Will which is called testamentary 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 recognized 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 settlor 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. Chapter II provides for survey of Wakfs. By virtue of Section 4(3) the Survey Commissioner shall, after making such enquiry as he may consider necessary, submit his report, in respect of Wakf 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 realization 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 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 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. 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, AIR 2003 Kerala 84 held that only those matters which are required by or under the Act to be determined by a Tribunal, that the bar under Section 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 Sections 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 Section 83 read with Section 85 and other related provisions. Apex Court in Dhulabhai v. State of M.P, AIR 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 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 of 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 Sections 83 and 85 and other related provisions in the light of the above mentioned principles. Section 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.
Section 85 stipulates 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. This is the first limb of Section 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 Section 85 we see the words “or other matters relating to” and in the 2nd limb of Section 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. Sections 6, 7, 32(3), 54(4) etc. confers powers on the Tribunal to entertain suits. Section 6 and Section 7 deals with disputes as to whether a particular property is a Wakf, whether it is a Shia Wakf or Sunni Wakf. Section 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 Section 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.
7. We have pointed out that over and above the powers conferred on the Tribunal to entertain suit, Act also envisages entertainment of appeals by the Tribunal. Section 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 Section 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 Section 38(7) of the Act. Sections 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. Section 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 Section 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 conferred on the Tribunal by entertaining such appeals, applications etc. to resolve various disputes relating to Wakf and Wakf property. Therefore when a dispute raised before the Wakf Tribunal or in a civil suit the Tribunal and Court have to examine whether those disputes fall within the jurisdiction of the Tribunal by way of suit, appeals or applications. If the civil Court finds that it would fall within the jurisdiction of the Tribunal it would leave it to the Tribunal to resolve those disputes, other words, any dispute, question or other matters relating to Wakf or Wakf property under the Wakf Act as well as any dispute, question or other matters required by or under the Wakf required to be resolved by the Tribunal those matters be left to the Tribunal and not to the civil Court. The Wakf Act envisages that both the disputes falling under both the limbs be determined by the Tribunal itself not by the civil Court. The constitution of Tribunals for resolution of disputes are common in the modern judicial system. The very purpose and intend for setting up of Tribunal is to provide an expert machinery for the resolution of disputes relating to institution of wakf or the provision, of dedicating property, movable or immovable or religious purposes and for the uplift of the poorer sections of the society have been a distinguishing feature of the socio economic structure of Islamic law. The doctrine of Wakf which is interwoven with the entire religious life and social economy of Muslims has laid down the foundations of one of the most important institutions of the community. Considering their number and resources, wakfs can become a strong instrument not only for the preservation of religious, and charitable institutions but also for educational and economic development of the community. The subject Wakf is re-latable to entries No. 10 Trust and Trustees and No. 28 Charities and Charitable institutions, charitable and religious endowments and religious institutions in the con-current list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of Wakfs is therefore, the responsibility of both the Central and State Governments. Article 26 of the Constitution gives freedom to every religious denomination to establish and maintain its religious and charitable institutions subject to public order, morality and health. Dispute regarding Wakf and Wakf property will have far reaching consequences in the socio-economic structure of the Muslim Religion. Wakf Act, 1995 was enacted to provide for the better administration of Wakfs. Act provides for setting up of Wakf Tribunal to consider the disputes pertaining to Wakf. Section 6 of the Act specifically stipulates that 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. Section 7 says that if after the commencement of the Wakf Act any question arises whether a particular property specified as Wakf prdperty in a list of Wakf 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. Section 54 also empowers the Tribunal to resolve the disputes relating to encroachment on any land, building, space or other property which is Wakf property. These provisions and other provisions have conferred specific powers on the Tribunal for resolution of disputes and also attached finality to those decisions. In our view the above provisions specifically confer bowers on the Tribunal which falls under both the limbs of Section 85 of the Act. Section 83 of the Act empowers State Government to 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 the Act. Section 84 stipulates that whenever an application is made to Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter gives its decision in writing and furnish a copy of such decision to each of the parties to the dispute. The said statutory provision therefore necessitates expeditious disposal of the disputes of Wakf and Wakf property. Sections 83 and 84 would fall within the first limb of Section 85 as explained by us in the earlier part of the judgment since both under Section 83 as well as under Section 84 the expression used is “relating to” not “required by”. The Tribunal has got power to resolve any dispute, question or any other matter relating to Wakf or Wakf property once it is constituted under Section 83 of the Act over and above what was required to be decided by it specifically by the Act. We have therefore no hesitation to state that the intention of the legislature is to see that all those disputes be resolved by the Tribunal, not only the specific matters conferred on the Tribunal by the Wakf Act but also any dispute and other matter relating to Wakf and Wakf property as well. The objects and reasons incorporating the Bill presented to the Legislature would show the object of the legislation is to provide better administration and supervision of Wakfs throughout the country. This would give an idea of the antecedent state of affairs.
10. Section 83(4) stipulates that every Tribunal shall consist of one person, who shall be member of the State Judicial Service holding a rank, not below that of a District Sessions or Civil Judge, Class I, and the appointment of every such petition may be made either by name or by designation. The Tribunal shall also 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 while trying a suit, or executing a decree or order. Section 83(7) stipulates that the decision of the Tribunal shall be filial and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court. As per Section 83(9) no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal, provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality of propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.
11. Learned single Judge Has made specific reference to the decision of the Madras High Court in A.M Ali Akbar's case, AIR 2001 Madras 431. In that case the Madras High Court has taken the view that the Tribunal has no power to determine the dispute as to the constitution of Managing Committee or the conduct of election to the Managing Committee and that the petition for permanent injunction and temporary injunction filed by the members of Jamath cannot be entertained by the Tribunal. We are unable to agree with the reasoning of the learned Judge of the Madras High Court in Ali Akbar's case. Andhra Pradesh High Court in T. Sivalingam v. A.P Wakf Tribunal (1999) 3 Andh LD 646 examined the scope of Sections 7 and 83 of the Act where suit was filed by the Wakf Board before the State Wakf Tribunal for eviction of the tenant from the Wakf property. Court held that the suit is maintainable before the Tribunal. It was held by the Court that Section 83 confers jurisdiction to the Tribunals to entertain any disputes with regard to Wakf property. So all disputes with regard to Wakf property, are triable by the Tribunal. It becomes more clear after reading Section 85 of the Act that this is the only interpretation which can be placed on Section 83 because Section 85 bars the jurisdiction of Civil Courts in respect of any dispute, question or other matter relating to any Wakf property.
12. We are therefore, of the considered view that the words any dispute, question or other matters relating to Wakf or Wakf property under Section 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.
13. The Wakf Act is complete code by itself and the intention of the legislature is not provide for better administration of Wakf and for matters connected therewith and incidental thereto. The Act has created the post of Chief Executive Officer to be appointed under Section 23(1) of the Act. Considerable statutory powers have been conferred on the Chief Executive Officer as well. Act has also constituted a Board by name Wakf Board under Section 13 of the Act. Powers have also been conferred on the mutawalli. Section 83(2) of the Act empowers 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 the 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. Words “person interested” also defined in the Act under Section 3(k) of the Act.
14. On going through the entire scheme of the Act and the provisions contained we are of the view the decision rendered by learned Judge in Abdul Rahiman Musaliar's case (AIR 2003 Kerala 84) has given emphasis on the second limb of Section 83, that is what is required by the Wakf Act to be determined not on the first limb that is relating to Wakf or Wakf property. The learned Judge has given a strict interpretation to Section 85 of the Act. We find ourselves unable to subscribe the interpretation given by the learned Judge in Musaliar's case. The powers of the Wakf Tribunal are all perversive and it could entertain appeals and applications and also could resolve all the disputes, questions or other matters relating to Wakf, Wakf property and also matters conferred on the Tribunal or else the purpose and object of the constitution of the Tribunal would be defeated. It is so declared.
15. We may therefore dispose of all the cases in the light of the above mentioned principles laid down by us. W.A No. 2273 of 1999 arises out of O.P No. 26419 of 1998. Writ petition was filed by the first defendant in O.S No. 1 of 1998 of the Wakf Tribunal (District Judge, Kavaratti) declaring that the Wakf Tribunal has no jurisdiction to entertain the suit and for a direction to pass orders on Ext. P4 preliminary objection and whether it has got jurisdiction to resolve the dispute. Learned single Judge of this Court dismissed the original petition holding that the Tribunal has got jurisdiction to resolve the dispute. In that suit plaintiff has sought for a declaration that members of pattakkal family alone are entitled to hold office Muthavalli under the custom and tradition and a declaration that first plaintiff was duly chosen Muthavalli as the next. We are of the view dispute falls squarely within the jurisdiction of the Wakf Tribunal and consequently we find no reason to interfere with the judgment of the learned single judge. The writ appeal would stand dismissed.
C.R.P Nos 3436/2001 and 182/2002
C.R.P No. 3436 of 2001 arises out of an order passed in O.S No. 71 of 1999 on the file of the Subordinate Judge's Court. Thalassery C.R.P No. 182 of 2002 arises out of an order passed in O.S No. 123 of 1997 of the same Court. In both the cases issue centres round a U.P School. O.S Nos. 71 of 1999 and 123 of 1997 were ordered to be jointly tried. C.R.P Nos. 3436 of 2001 and 182 of 2002 were filed by the plaintiff in O.S No. 71 of 1999 who is the defendant in O.S No. 123 of 1997. He filed the suit for permanent prohibitory injunction restraining the defendants and their men and associates from trespassing into and obstructing or disturbing the proper functioning of the plaint schedule property. Plaintiff is the Manager of the school and later became the Muthavalli and managing the affairs of Cheruvancherry Juma Ath. Parties have agreed before the civil Court that the disputes have to be resolved by the Wakf Tribunal, but the plaintiff is now taking a different stand stating that the Wakf Tribunal has no jurisdiction. We are of the view it is for the Wakf Tribunal to decide as to whether the dispute relates to wakf property. The decision rendered by the Wakf Tribunal manned by a District Judge as to the jurisdiction would govern the issue and not that of a civil Court in case of dispute whether it would fall under Section 83 read with Section 85 arises for consideration. We may hasten to add the decision rendered by the Wakf Tribunal on the question as to whether dispute falls under Section 83(1) read with Section 85 would be the guiding factor not by civil Court. If such a dispute is raised it would be proper for the civil Court to refer the matter to the Wakf Tribunal and in case the Wakf Tribunal to determine its jurisdiction or else the civil Courts would be flooded with cases.
C.R.P No. 2315 of 2002
This revision petition is filed under Section 83(a) of the Wakf Act against the judgment in O.S No. 153 of 2001 granting a decree for eviction on the ground of arrears of rent. Contention was raised that the suit was not maintainable. Plaintiff produced Exts. A1 to A6. A5 is the Wakf Board registration certificate showing registration in respect of the property. The Tribunal held that it has got jurisdiction and granted a decree to the plaintiff to evict the defendant from the schedule property. We are of the view Tribunal is justified in taking the view that it has got jurisdiction since the dispute is regarding a wakf property. In such circumstances we find no illegality, irregularity or impropriety in the order passed by the Tribunal to be interfered with under Section 83 of the Act. The revision petition would stand dismissed.
Order accordingly.
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