Court No. - 39
Case :- MATTERS UNDER ARTICLE 227 No. - 936 of 2019
Petitioner :- Waqf Khuda Band Tala Mausuma Waqf Alal Aulad Sheikh Merajuddin Va Haji Rajab Ali
Respondent :- Learned Judge, Small Cause Court, Saharanpur And 6 Others
Counsel for Petitioner :- Abhay Pratap Singh,Diptiman Singh
Counsel for Respondent :- Nasir Hussain
Hon'ble B. Amit Sthalekar,J.
Heard Sri Diptiman Singh assisted by Sri Abhay Pratap Singh, learned counsel for the petitioner and Sri Akhilesh Kumar Pandey holding brief of Sri Nasir Hussain, learned counsel for the respondents.
The petitioner in the writ petition is seeking quashing of the order dated 04.09.2018 passed by the Judge, Small Cause Court, Saharanpur in SC Case No.54 of 1999 (Waqf Khuda Band Tala Vs. Smt. Noor Bano & Others).
It is stated that a suit for eviction of the respondent-tenant was filed by the petitioner-plaintiff in 1999 but in the meantime the Waqf Act, 1995 (hereinafter referred to Act, 1995) was promulgated and Section 85 thereof provided that no suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any waqf, waqf property. Section 85 of the Act, 1995 was interpreted by this Court in Mohammad Mukhtar Ahmad Vs. Ghulam Abdul Qadir Alvi reported in 2014 (9) ADJ 193 to mean that no suit would henceforth lie after the promulgation of the Act, 1995 but that would not effect the suit which had already been filed prior to coming into force of the Act, 1995.
The amendment in Section 85 of the Act, 1995 was introduced by the Amendment Act 27 of 2013 to include the word "civil court, revenue court and any other authority" in Section 85.
The judgement in the case of Mohammad Mukhtar Ahmad (supra) has been followed by a learned Single Judge of this Court in Smt. Kubra Khatoon and Others Vs. Allahtala Malik Waqf Masoom Hasan, Amroha reported in 2017 (7) ADJ 665.
There is another aspect of the matter. The question is whether a case relating to eviction from the waqf property would fall within the meaning of 'disputes' as contemplated in Section 6 of the Act, 1995. This question is no longer res-integra having been settled by the Supreme Court in (2010) 8 SCC 726 (Ramesh Gobindram (dead) through L.R.S. Vs. Sugra Humayun Mirza Wakf). Paragraph 35 of the said judgment reads as under:
"35. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal."
Learned counsel for the respondents could not dispute the settled legal proposition.
In this view of the matter, the impugned order dated 04.09.2018 is quashed.
The writ petition is allowed.
A direction is issued to the respondent no.1, Judge, Small Cause Court, Saharanpur to decide the SC Case No.54 of 1999 (Waqf Khuda Band Tala Vs. Smt. Noor Bano & Others) in accordance with law expeditiously preferably within one year from the date of receipt of a certified copy of this order.
Order Date :- 22.2.2019 N Tiwari