Wakf; Sardar Khan Vs. Syed Najmul Hasan (Seth) [28-02-2007] SC

On a conjoint reading of sub-section (5) of Section 7 and Section 85, the result would be that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1.1.1996, i.e., coming into force of the Wakf Act, 1995.

AIR 2007 SC 1447 : 2007 (3) SCR 436 : 2007 (10) SCC 727 : 2007 (4) SCALE 81

IN THE SUPREME COURT OF INDIA

A.K. Mathur, Tarun Chatterjee JJ.

Appeal (civil) 1107 of 2007

PETITIONER: Sardar Khan and Ors.

RESPONDENT: Syed Najmul Hasan (Seth) and Ors.

DATE OF JUDGMENT: 28/02/2007

JUDGMENT

1. Leave granted.

2. Heard learned counsel for the parties.

3. This appeal is directed against the order passed by learned Single Judge of the High Court of Rajasthan, Jaipur Bench, dated 23.5.2005 whereby the learned Single Judge had set aside the judgment and decree passed by the Addl. District & Session Judge-VI, Jaipur in Civil Suit No. 29/95 (271/76) dated 23.1.1996 and held that parties shall approach the Wakf Tribunal for further relief in the matter.

4. The brief facts which are necessary for the disposal of the Appeal are that a suit being Civil Suit No. 29/95 (271/76) was filed by the Plaintiffs (Respondents-herein) in the Court of Addl. District & Session Judge-VI, Jaipur, which was dismissed.

5. Aggrieved by the aforesaid Judgment dismissing the suit, an appeal was filed by the Plaintiffs (Respondents-herein) before the High Court taking the plea that by virtue of

Section 85 of The Wakf Act, 1995

(hereinafter referred to as “The Act”), the Civil Court ceased to have any jurisdiction in the matter, and therefore, the judgment and decree passed by the Addl. District Judge, Jaipur was without jurisdiction.

6. In this connection the learned Single Judge, relying upon a decision of the learned Single Judge of the same High Court in the case of

Syed Inamul Hag Shah v. State of Rajasthan, reported in AIR (2001) Rajasthan 19

allowed the appeal and set aside the order of the Addl. District Judge, Jaipur and directed the parties to appear before Wakf Tribunal.

7. Aggrieved against this order, the Defendants (Appellants-herein) have come in appeal by way of special leave petition.

8. Learned counsel for the Appellants has invited our attention to sub- section (5) of Section 7and submitted that the attention of the learned Single Judge was not invited to sub-section (5) ofSection 7 of The Wakf Act, 1995. It was submitted that learned Single Judge decided the matter on the basis of Section 85 of the Act de hors sub-section (5) of Section 7 of the Act. Section 85 of the Act reads as under:

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.”

Learned counsel further submitted that the learned Single Judge has wrongly relied upon the judgment in Syed Inamul Hag Shah’s case (supra) and set aside the judgment and decree passed by the Addl. District Judge, Jaipur, because in this case also learned Single Judge did not consider sub-section (5) of Section 7 and decided the matter solely on the basis of Section 85 of the Act. Hence, the impugned decision given by learned Single Judge is not correct and not in accordance with Section 7(5) read with Section 85 of the Act.

9. Learned counsel for the Respondents has supported the aforesaid judgment.

10. It is relevant to mention here that the Wakf Act, 1995 came into force with effect from 1.1.1996. Section 6 of the Wakf Act, 1995 relates to the dispute regarding wakfs property. Section 6 of the Act reads as under:

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 section 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 section 4.

(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.

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (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-section (1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding the shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section(1).”

From a perusal of the afore-quoted Section there is no ambiguity that the intention was that from 1.1.1996 no suit or other legal proceedings relating to the wakf property shall be instituted in any Civil Court.

11. At the same time sub-section (5) of Section 7 also lays down that it will not effect any pending suit or appeal. Section 7 States the powers of the Tribunal to determine disputes regarding wakfs.Section 7 of the Act reads as under:-