Smt. Rahmatunissa is stated to have created a waqf for Shia Community more than 125 years ago. The waqf's property comprises of Imambara, Maszid and Shops situate in Village Abdullapur, District Meerut. Original Suit No. 346 of 1977 under Order I Rule 8 of Code of Civil Procedure was filed by the certain persons belonging to Sunni Community in the court of Munsif seeking a declaration that the waqf was a Sunni waqf. The suit was decreed in favour of plaintiff. First Appeal No. 166 of 1984 filed against the judgement and decree of the trial court was dismissed vide order dated 11th August, 1985. Hence the present second appeal no. 2066 of 1986. During the pendency of the appeal, a suit for injunction being original suit no. 157 of 1988 was filed by the Shia Central Board and others versus Allah Mehar and others, regarding the same waqf's property, contending that the waqf in question was not a Sunni Waqf but a Shia Waqf and that the judgment and decree passed in Original Suit No. 346 of 1977 is not binding upon the plaintiffs to the second suit as they were not party in the earlier suit proceedings. It was further contended that the defendants, on the strength of the judgement and decree passed in Original Suit No. 346 of 1977, were trying to take forceful possession over the Shia waqf's property and therefore, permanent injunction was being prayed for. An application was made under Section 10 of the Code of Civil Procedure for stay of the suit proceedings, till the decision of the Second Appeal No. 2066 of 1986 pending before this Court. The application was allowed by the Additional Munsif VIII. Consequently a revision was filed being Revision No. 220 of 1998. In between an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was moved in the said suit for temporary injunction which was rejected by the Munsif Meerut on 26th August, 1988. Misc. Appeal No. 233 of 1988 was filed by the plaintiff against the rejection of the temporary injunction application. Misc. Appeal No. 233 of 1988 and Revision No. 220 of 1988 were clubbed and decided under judgment and order dated 11th April, 1990 by the VIIth Additional District Judge, Meerut. The revision was dismissed and the appeal was allowed after recording that Shia Waqf Board was not party to Original Suit No. 346 of 1977, and therefore, principle of res judicata will not apply. Against the order of the Additional District Judge, the writ petition being Civil Misc. Writ Petition No. 18047 of 1990 has been filed. The second appeal No. 2066 of 1986 and the present writ petition no. 18047 of 1990 have been clubbed together.
It may be recorded that there is serious dispute between the parties in the fact of the case as to whether waqf is a Shia Waqf or a Sunni Waqf and linked with the aforesaid dispute, a serious issue, which has been canvassed before this Court is that the suits giving rise to the second appeal no. 2066 of 1986 and the writ petition no. 18047 of 1990 are not maintainable, as the same are barred by Section 75 of U.P. Waqfs Act, 1960 (hereinafter referred to as the 'Act, 1960') and the remedy lays by way of a reference under various Sections including Section 8 of Act, 1960.
In reply it is submitted that Section 8 of Act, 1960 (hereinafter referred to as the 'Act, 1960') is not an independent provision, it is linked with Section 6 of the Act, 1960, meaning thereby that the disputes/matters, which can be subject of reference to the Tribunal under Section 8(1) of the Act, 1960 are those, which are determined by the Commissioner, under Section 6 of the Act, 1960 out of several matters, which are mentioned in the said Section to be decided by the Commissioner. In respect of other matter, suit before the Civil Court is the proper remedy. Learned counsel for the petitioner has placed reliance a judgment of this Court in the case of Mukhtar Husain & others vs. Fattu & others reported in 1975 AWC 462. The relevant portion whereof is quoted herein below:
16. Looking to the said provisions, it will be noticed that there was no ambiguity or scope for dispute in respect of the said provisions. Section 5 (2) made it clear that the cause of action to bring a suit in a civil court of competent jurisdiction was dependent upon the determination by the Commissioner of Waqfs. Therefore, Section 5 in the Act of 1936 was dependent for its working on Section 4 where under the Commissioner of waqfs acted and gave his decision. The short point for consideration in the instant revision is whether the position as it subsisted under the Act of 1936 is still in subsistence or due to the change in the language of Section 8 of the new Act, the Law has undergone a change. It is not disputed that there is nothing in Section 8 itself which would show that its working is dependent upon Section 6 of the said Act. However, that cannot be held to be conclusive inasmuch as in accordance with the well known rules of interpretation, a provision of law has to be read in its context. Now, Section 8 occurs in the Chapter, which deals with the survey of waqfs. That undoubtedly supports the contention that this provision is not a self contained or independent provision but has a relationship or nexus with the survey of waqfs conducted by the Commissioner under Chapter I. Further, Section 8 is preceeded by Section 6 which lays down in its sub-Section (2) that the Commissioner of Waqfs shall, after making such enquiries as he may consider necessary, ascertain and determine the various details and particulars which are quoted in the various clauses of the said sub-section. The fact that Section 8 follows Section 6 lends a strong support to the contention that 'dispute' referred to in sub-Section (1) of Section 8 is a dispute which arises in consequence of the determination made by the Commissioner under Section 6 (2) of the said Act. Lastly, the proviso to Section 8 (1) again suggests that the dispute has to come before the Tribunal only after the notification in the Official Gazette under Section 6 (4) of the said Act. In other words, the notification is the starting point of limitation and provides the cause of action for the reference to the Tribunal under Section 8. Learned counsel for the applicants contended that the proviso to Section 8(1) has limited application insofar as it lays down that whenever there is a notification under Section 6(4), then the dispute must be brought before the Tribunal with in one year from the date of the notification. However, the proviso, according to him, cannot be interpreted to lay down that whenever there has been no notification under Section 6(4), the dispute between the parties cannot be referred to the Tribunal under Section 8(1). In my opinion such a contention is not tenable in view of the totality of the circumstances in which the provisions of Section 8 have to be construed. I have already referred to the relevant circumstances in this connection and, in my opinion, the proviso to Section 8(1) not only lays down the rule of limitation but it, by implication, also provides that the cause of action for a reference to the Tribunal is provided by the notification under Section 6 (4) of the said Act.
17. It should be noticed that the Tribunal constituted under the U.P. Muslim Waqf Act is a Tribunal of a limited jurisdiction. It can entertain only such disputes or question or matter which under the said Act can be referred to it. Section 75 bars a Civil Court from entertaining any suit or other proceeding with respect to any dispute or question or matter which is required or permitted under the said Act to be referred to the Tribunal for adjudication. The award of the Tribunal has been made final and conclusive and binding upon the parties concerned and the same cannot be questioned in any court of law. No appeal lies against the said award though a revision is provided for under the proviso to Section 76. In this connection the following observations of the aforesaid decision of the Division Bench relied upon by the learned counsel for the opposite parties are material :---
"Under Section 4 of the Act provision is made for appointment of Commissioners and Additional or Assistant Commissioners of Waqfs for the purpose of survey of Waqfs properties and under Section 6 it is laid down that the Commissioner, after making such enquiries as he may consider necessary, must ascertain and determine various matters relating to each waqf. One of the matters to be determined is whether the waqf is one of those exempted from the application of the Act under Section 2. Two other matters which require determination are as to which particular properties are Waqf properties and whether the Waqf is a Shia Waqf or Sunni Waqf. This determination is to be reported to the Government by the Commissioner and is thereafter to be notified in the official Gazette. Section 8 of the Act lays down that on such notification being made if any dispute arises, whether a particular property is Waqf property or not or whether a Waqf is a Shia Waqf or Sunni Waqf the Board or the Mutwalli of the Waqf or any persons interested therein, can refer the dispute for adjudication to the Tribunal. It is significant to note that under Section 8 (1), the disputes that can be referred to the Tribunal are limited only to two questions one question is whether a particular property is Waqf property or not and the second question is whether a Waqf is a Shia Waqf or Sunni Waqf. The further question whether the Waqf is one to which under Section 2 the provisions of the Act do or do not apply, is not one about which, if a dispute arises, a reference can be made to the Tribunal. It thus appears that the determination made by the Commissioner under Section 6 that a particular waqf is one of those exempted from the application of the Act or not has not been made subject matter of a dispute to be referred and decided under Section 8. Apart from this point, under Section 6 a Commissioner is required to report on many other matters relating to each Waqf such as the nature and object of each Waqf, the gross income of the property comprised in each Waqf, the amount of revenue etc. payable and the expenses incurred in the realization of the income and the pay and other remuneration of the mutwalli of each Waqf. These are all matters which have to be determined but no dispute with regard to any such matter is referable under Section 8 to the Tribunal. The reference under Section 8 is confined to only two questions mentioned by us above. The intention of the legislature in these circumstances appears to be clear, that on these two matters the determination made by the Commissioner should have finality and not be open to challenge before any other court except by means of the reference to the Tribunal under Section 8 (1). This is clear from the provisions of Section 76 which lays down that the award of a Tribunal shall be final and conclusive and binding upon the parties concerned and the award shall have the force of decree and it shall neither be questioned nor appealed against in any court of law, subject of course to the provision that a revision is provided against an award to the High Court. On matters other than those referable under Section 8, the Legislature, by omitting to provide for a reference, indicated that no finality is to be attached to those matters determined under Section 6."
18. In my opinion, the aforesaid observations are clear on the point that Section 8 is not an independent provision but is linked up with Section 6 of the said Act. In other words, the disputes which can be referred to the Tribunal under Section 8 (1) are to be determined by the Commissioner under Section 6 out of several matters which are mentioned in the said section to be decided by the Commissioner."
The aforesaid contention is opposed by the learned counsel for the respondents and it is stated that the power conferred under Section 8 of the Act, 1960 is an independent power in the matter of disputes pertaining to waqf and its property and the purpose is to provide a substitute to the Civil Court, inasmuch as Section 75 of the Act, 1960 puts an embargo on suits being filed before the Civil Court or other proceedings with respect to any dispute or question or mater which is required or permitted under the said Act to be referred to a Tribunal for adjudication.
Learned counsel for the respondents therefore, submits that the judgment of the Single Judge in the case of Mukhtar Husain (Supra) does not lay down correct law.
For the purposes of appreciating the contention so raised on behalf of the petitioner, it would be worthwhile to reproduce Sections 6, 8, 28, 29, 33, 70, 71, 72 , 74, 75 and 76 of Act, 1960, which read as follows:
"6. Survey of wakfs.----(1) The Commissioner shall apportion the work of survey of waqfs between himself and the Additional and Assistant Commissioners in such manner as he may think proper, and shall generally supervise and control their work.
(2) The Commissioner of Wakfs shall, after making such inquiries as he may consider necessary, ascertain and determine-----
(a) the number of all wakfs in the area showing the Shia wakfs and Sunni wakfs separately ;
(b) the nature and objects of each wakf ;
(c) the gross income of the property comprised in each wakf ;
(d) the amount of revenue, cesses, rates, taxes and surcharge payable to the Government or the local authority in respect of each wakf property ;
(e) expenses incurred in the realization of the income and the pay or other remuneration of the mutawalli of each wakf ;
(f) (omitted by U.P. Act 28 of 1971.)
(g) such other particulars relating to each wakf as may be prescribed :
Provided that where there is a dispute as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the recitals of the deed of wakf as to the sect to which it pertains, such dispute shall be decided on the basis of such recitals.
(3) The Commissioner shall, while making any inquiry have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely-----
(a) summoning and examining any witness ;
(b) requiring the discovery and production of any document ;
(c) requisitioning any public record from any court or office ;
(d) issuing commissions for the examination of accounts and witnesses ;
(e) making any local inspection or local investigation ;
(f) any other matter which may be prescribed by the State Government.
(4) The Commissioner, the Additional Commissioner of Wakfs or Assistant Commissioner of Wakfs shall submit his report of enquiry, containing the particulars mentioned in sub-section (2) above, to each of the Boards and the State Government and the State Government shall, as soon as possible, notify in the Official Gazette the wakfs relating to particular sect, to which, according to such report, the provisions of this Act apply.
8. (1) If any dispute arises whether a particular property in wakf property or not or whether a wakf is a Shia wakf or Sunni wakf, the board concerned or the mutawalli of the wakf or any person interested therein, may, in accordance with the provisions of this Act, refer the dispute for adjudication to the Tribunal :
Provided that no such dispute shall be entertained by a Tribunal after the expiry of one year from the date of the publication of the list of wakfs under sub-section (4) of Section 6.
(2) The Commissioner, Additional Commissioner of Wakfs and Assistant Commissioner of Wakfs shall not be made a party to any proceedings under sub-section (1).
28. Savings.----A wakf registered before the commencement of this Act under the U.P. Muslim Wakfs Act, 1936 (U.P. Act XIII of 1936), shall be deemed to have been registered under the provisions of this Act.
29. Registration.----(1) Every other wakf, whether subject to this Act or not and whether crated before or after the commencement of this Act, shall be registered at the office of the Board of the sect to which the wakf belongs.
(2) Application for registration shall be made by the mutawalli within three months of his entering into possession of the wakf property :
Provided that such applications may be made by the wakf or his descendants or a beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs.
(3) The application for registration shall be made in such form and manner and at such place as the Board may prescribed and shall contain the following particulars, as far as possible-----
(a) a description of the wakf properties sufficient for the identification thereof ;
(b) the gross annual income from such properties ;
(c) the amount of land revenue, cesses, and rates and taxes annually payable in respect of the wakf properties ;
(d) an estimate of the expenses annually incurred in the realization of the income of the wakf properties ;
(e) the amount set apart under the wakf for---
(7) On receipt of an application for registration, the Board may, before the registration of the wakf, make such inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particular therein, and, when the application is made by any person other than the person administering the wakf property, the Board shall, before registering the wakf, give notice of the application to the person administering the wakf property and shall, after affording him a reasonable opportunity of being heard, pass such orders as it may deem fit.
(8) Any person aggrieved by an order of the Board under sub-section (7) may, by application within 90 days from the date of that order, refer the dispute to the Tribunal which shall give its decision thereon.
33. Decision if a property is wakf property.-----(1) The Board may collect or cause to be collected information regarding any property which it has reason to believe to be a wakf property and if any question arises whether a particular property is wakf property or not, it may, after making such inquiry as it may deem fit, decide the question.
(2) Any person aggrieved by the decision of the Board under sub-section (1) may by application within 90 days from the date of such decision refer the dispute to the Tribunal which shall give its decision thereon.
70. Constitution of Tribunals.-----(1) The State Government may, by notification in the Official Gazette, constitute as many Tribunals as may be necessary for the purposes of this Act. Each Tribunal shall have jurisdiction over such areas in the State as may be specified.
(2) A Tribunal shall consist of one person only, who shall be a judicial officer of the State Government, not below the rank of a Civil Judge, and who may be appointed as such either by name or by official designation.
71. Reference of disputes etc., to Tribunals.---Any dispute, question or matter, which may under this Act be referred to a Tribunal, shall be referred to a Tribunal having jurisdiction over the area in which the property to which such dispute, question or matter relates is situate or if such property is situate in areas under the jurisdiction of more than one Tribunal, then to any of them, and the Tribunal of competent jurisdiction shall adjudicate upon such dispute, question or matter in accordance with the provisions of this Act:
Provided that no proceedings under this Act in respect of any wakf shall be stayed or suspended merely by reason of the pendency of any such dispute, question or matter before a Tribunal.
72. Procedure before Tribunals.--(1) Subject to the provisions of this Act, and any rule that may be made in this behalf, a Tribunal shall follow the same procedure as is provided in the Code of Civil Procedure, 1908 (Act V of 1908), in regard to suits.
(2) The provisions of the Indian Evidence Act, 1872 (Act I of 1872), shall be deemed to apply in all respects to the adjudication of disputes by a Tribunal.
73. Awards by Tribunal.----(1) When a dispute has been referred to a Tribunal for adjudication, it shall hold its proceedings expeditiously and shall, as soon as practicable on the conclusion thereof, give its award in writing under its signature.
(2) A Tribunal may, either of its own motion or on the application of any party to the dispute, correct any clerical or arithmetical mistake in the award, or error arising therein from any accidental slip or omission.
(3) A copy of the award and whenever a correction is made in the award as aforesaid a copy of the order shall be handed over to each of the parties to the dispute, or if any party is not present before the Tribunal at the time of the award or order, as the case may be, a copy of it shall be sent by registered post tot he address of such party.
74. Power of Tribunals.-----The Tribunal shall be deemed to be a civil court and shall have the same powers as are vested in such a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit or executing a decree or order.
75. Bar to suits in matters to be decided by Tribunals.---No person shall institute any suit or other proceedings in any civil court with respect to any dispute or question or matter which is required or permitted under this Act to be referred to a Tribunal for adjudication.
76. Award not appealable.---The award of a Tribunal shall be final and conclusive and binding upon the parties concerned and the award shall have the force of decree and it shall neither be questioned nor appealed against in any court of law :
Provided that the High Court may, in its discretion, at any time suo motu or on the application of the Board or of any person aggrieved, call for and examine the record of any case for the purposes of satisfying itself as to the correctness, legality or property of any award made under this Act, and pass such orders as it deems fit."
From simple reading of the aforesaid Section 6(4) of Act, 1960, this Court finds that it is only on notification in the Official Gazette of a particular waqf that the provisions of Act, 1960 become applicable. Meaning thereby that unless and until the waqf is notified in the Official Gazette under Section 6(4) of Act, 1960, the provisions of Act, 1960 are not applicable to it. In respect of waqf notified under Section 6 (4) of Act, 1960.
All disputes pertaining to the property of such waqf/ the sect to which the waqf belongs, must necessarily be referred to the Tribunal under Section-8 of Act, 1960.
Section 6 of Act, 1960 deals with the waqfs which were not registered and notified as such upto the date of enforcement of the Act, 1960. It is in respect of such waqfs, that the Commissioner has to conduct enquiry and on notification in the Official Gazette under Section 6 (4) of Act, 1960 that Section 8 comes into play and provides that a dispute as to whether the waqf's property is Shia Waqf or Sunni Waqf has to be adjudicated by the Tribunal. Such reference can be made by the Board, Mutawalli or any person interested therein.
So far as the waqfs, which were registered prior to the date of commencement of Act, 1960, are concerned, the same were declared to be duly registered under Section 28 of Act, 1960. In respect of other waqfs created prior or after commencement of the Act, 1960, Section 29 of Act, 1960 provides that such registration is mandatory and for the purpose an application has to be filed and an enquiry is to be conducted by the Board constituted under Sections 11 and 12 of Act, 1960. Thereafter on the waqfs being registered by the Board, if any dispute arises, then a party has a right to approach the Tribunal under Section 29 (8) of Act, 1960. Similarly Section 33 of Act, 1960 provides for dispute being raised qua a property being that of a waqf before the Board and any person aggrieved by such decision has a right to approach the Tribunal under Section 33 (2) of Act, 1960.
Thus, the waqfs stand divided into three categories under the Act, 1960 (a) the waqfs, which were registered prior to the enforcement of Act, 1960 under U.P. Muslim Wakfs Act, 1936 (hereinafter referred to as the 'Act, 1936') (Reference Section 28 of Act, 1960), (b) the waqfs, which were existing on the date and qua which the Commissioners were directed to make an inspection under Section 6 of Act, 1960 culminating in a notification by the State Government under Section 6 (4) of Act, 1960 and (c) the waqfs, which are to be registered by the Board under Section 29 (7) of Act, 1960.
It will be seen that in respect of all the aforesaid categories of waqfs, all disputes pertaining to the property of the waqf as well as the dispute as to whether the waqf is a Shia Waqf or Sunni Waqf, has to be agitated before the Tribunal. Sections 8, 29 (8) and Section 33 of Act, 1960 deal with the situation in that regard.
Section-70 of Act, 1960 provides for the constitution of the Tribunals. Section 71 of Act, 1960 lays down the disputes or matters, which are under the Act, 1960 are required to be decided by the Tribunal, being referred to the Tribunal having jurisdiction over the area in which the property of dispute is situate. The Tribunal shall adjudicate upon such dispute in accordance with the provisions of the Act, 1960. Provisions of Code of Civil Procedure have been applied to the proceedings before the Tribunal vide Section 72 of Act, 1960. The award of the Tribunal has been made final and cannot be subjected to challenge by way of suit or proceedings in any Civil Court. Section 74 of Act, 1960 declares the Tribunal to be Civil Court vested with the powers under the Code of Civil Procedure. Section 75 of Act, 1960 bars suits in matters to be decided by the Tribunals. Section 76 of Act, 1960 provides that award of the Tribunal cannot be subjected to challenge by way of appeal in any Court of law except before the High Court by way of revision under proviso to Section 76 of Act, 1960.
Thus, it will be seen that issue as to whether a particular waqf is a Shia Waqf or Sunni Waqf has to be examined by the Tribunal and therefore, the suit including the suit for direction and also a suit for injunction restraining the other parties from interfering in the properties of the registered waqf because it is a waqf of the other Sect is barred by Section 75 of Act, 1960. Such dispute has to be examined by the Tribunal at the first instance. As a matter of fact, Tribunal has been made a substitute for the Civil Court in the matters which are required under the Act, 1960 to be examined by the Tribunal.
In the facts of the present case, the scope of disputes which can be agitated and examined by the Tribunal are therefore, not restricted only to the matters decided under Section 6 of the Act, 1960.
Reference may be had to the Division Bench judgements of the Lucknow Bench of this Court in the case of Waqf Dargah Shah Modh. & others vs. U.P. Sunni Central Board of Waqf Lucknow & others, reported in 2003 (52) ALR 57, wherein in the matters relating to waqf or waqf property, parties were relegated to the remedy before the Tribunal. It may be clarified that the judgement pertains to a dispute arising under the Waqf Act, 1995. Similarly, reference may be had to the Division Bench Judgment of this Court in the case of Najma Khatoon vs. U.P. Sunni Central Board of Waqf & others reported in 2003 (21) LCD 266. In paragraph-8 it has been held as follows:
"In our opinion all matters relating to waqf or waqf property are now to go before the Tribunal as the Parliament in its wisdom has constituted the Waqf Tribunal as an alternative remedy in this connection and has laid down detailed provisions about it in Chapter VIII of the Act. It is settled law that where alternative remedy is available ordinarily a writ petition should not be entertained."
This Court finds that intention of the legislature is to provide an alternative forum for adjudication of disputes in the matter of waqfs being of a particular muslim sect or of other, before Tribunal constituted for the purpose as referred in Sections 8, 29 and 33 of Act,1960 and it is with this intention that a bar under Section 75 of the Act, 1960 has been imposed qua entertaining of disputes by the Civil Court in the matters pertaining to waqf and its property. The award of the Tribunal has been made final under Section 76 of Act, 1960 and cannot be questioned except by way of Revision before the Hon'ble High Court.
The Court has difficulty to agree with the legal propositions laid down in the case of Mukhtar Husain (Supra) specifically in paragraph-18 of the said judgment, wherein it has been recorded that the dispute, which can be referred to the Tribunal under Section 8 (1) of Act, 1960 are the one, which must be determined by the Commissioner under Section 6 out of several matters, which are mentioned in the said Section to be decided by the Commissioner at the first instance. In my opinion, the power of the Tribunal is not restricted to the issues which are determined by the Commissioner under Section 6 of Act, 1960.
This Court is, therefore, of the view that following questions of law need be examined by a Larger Bench to be Constituted by the Hon'ble The Chief Justice for the purpose:
"(a) Whether for proceedings being initiated under Section 8 of the Act, 1960, it is necessary that there must be a determination by the Commissioner under Section 6 of Act, 1960 out of several matters which are mentioned in the said Section to be decided by the Commissioner or not?
(b) Whether the law laid down by the Hon'ble Single Judge in the case of Mukhtar Husain (Supra), specifically paragraph-18 is the correct law or not?"
Let the records of the present writ petition and the second appeal be placed before the Hon'ble The Chief Justice for constitution of a Larger Bench to decide the aforesaid question.
Since the appeal is of the year 1986 and the writ petition is of the year 1990, it is desirable that the Larger Bench may hear the matter at the earliest, so that the controversy may be brought to an end.
(Arun Tandon, J.) Order Date :- 28.01.2011 Sushil/-