Heard Shri Mohammad Tariq Saeed, learned counsel for the revisionists and Shri Ankit Srivastava learned counsel who has put in appearance on behalf of the private respondents.
The instant revision has been preferred under Section 83(9) of the Waqf Act, 1995 against the order dated 31.10.2019 passed by the Uttar Pradesh Waqf Tribunal, Lucknow in Case No.58 of 2019 whereby the plaint filed by the revisionists was returned for want of compliance of Section 89 of the Waqf Act, 1995.
The submission of the learned counsel for the revisionist is that the revisionist no.1 is a Waqf duly registered with the Waqf Board of which the revisionist no.2 is the duly appointed Mutawalli. The private respondents who have nothing to do with either the management of the Waqf or with the Waqf Property. However, with a view to harm the Waqf Property have executed certain agreement to sell to incumber the Waqf Property. Since the private respondents have no right either in the management of the Waqf or over the Waqf Property, hence a prayer was made seeking injunction that the private respondents be restrained from interfering in the peaceful possession and management of the Waqf Property or raising any illegal construction over the same.
The aforesaid petition was registered a Case No.58 of 2019 before Uttar Pradesh Waqf Tribunal and by means of order dated 31.10.2019 the same was returned for want of compliance of Section 89 Waqf Act, 1995.
The learned counsel for the revisionists submits that the impugned order is apparently against the spirit of Section 89 of the Waqf Act and in any case from the pleadings as well as the material on record, it was clear that the revisionists had not sought any relief against the Board, hence there was no question of either impleading the Board as a party or for issuing notice under Section 89 for the Waqf Act to the Board.
It is further submitted that the reliance placed by the Waqf Tribunal on a decision rendered by a Co-ordinate Bench of this Court in the case of Waqf Qabristan, Unnao Vs. U.P. Sunni Central Board of Waqfs, Lucknow & others, Civil Revision No.32 of 2019 decided on 11.03.2019 was misplaced as the facts of that case did not apply in the present case and as such the reliance upon the aforesaid decision has resulted in sheer miscarriage of justice.
Per contra Shri Ankit Srivastava submits that the order impugned has been passed by the Tribunal even without issuing notice to the private respondents and it is a matter between the revisionists and the Court. In case if the matter is entertained by the Tribunal and notices are issued to the respondents then he shall make his submission before the Tribunal, hence he reserved his right to make his submission.
Having heard the learned counsel for the parties and from the perusal of the record the issue before the Court is whether in the given circumstances, where the revisionists had filed case for injunction and declaration against private persons in such a case, whether the plaint could be returned for want of compliance of Section 89 of the Waqf Act.
In order to decide the aforesaid issue, certain brief facts leading up to the above revision is being noticed first.
The revisionists had preferred a suit for permanent injunction and declaration with the averments that the matter pertains to Waqf Qabristan Gadamar situate at Malkana Tehsil Sandila District Hardoi and the same was registered in the office of U.P. Shia Central Waqf Board vide registration No.I-2815, District Hardoi. It was also pleaded that the revisionist no.2 is the duly appointed Mutawalli and his name was duly recorded as Mutawalli in the register maintained under Section 37 of the Waqf Act, 1995. It was further pleaded that the detailes of the property which is the subject matter of the suit is duly shown in the register maintained under Section 37 of the Waqf Act as Waqf Property.
It was further pleaded that the defendants had nothing to do with the property in question but were creating hindrance in the peaceful possession and the management of the plaintiffs in respect of the Waqf Property by resorting to mischief and they executing on agreement to sell to encumber and create third party rights in respect of the Waqf Property.
In the aforesaid circumstances, it was prayed that a decree of injunction be granted in favour of the plaintiff-revisionists against the private respondents from restraining them to interfere in the peaceful possession, use and management of the Waqf Property.
Another relief prayed was that a decree of declaration be passed in favour of the plaintiff as the property mentioned in the register under Section 37 of the Waqf Act is a Waqf Property. For the sake of convenience the prayer for declaration is being reproduced for ready reference "That a decree for declaration may also be passed in favour of the plaintiff as the property mentioned in Register under Section 37 of the Waqf Act, 1995 is a Waqf Property."
It is in the aforesaid backdrop that the matter was placed before the Waqf Tribunal who after hearing the revisionit and noticing the provision of Sections 6, 7 and 89 of the Waqf Act held that since the revisionists have sought a declaration of the property as Waqf Property, therefore, the suit is covered by Sections 6 and 7 of the Waqf Act, thus the provision of Section 89 of the Waqf Act is attracted. Since no notice was given to the Waqf Board as provided under Section 89 of the Waqf Act nor the Board was made a party, consequently by the impugned order, the petition was returned to be presented after compliance of Section 89 of the Waqf Act.
First and foremost, it will be necessary to refer to Section 89 of the Waqf Act which reads as under:-
"89. Notice of suits by parties against Board- No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules make thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board , stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain statement that such notice has been so delivered or left"
From the perusal of the aforesaid section, it would indicate that it starts with a negative covenant in that no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or any other rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims.
Apparently, in the case at hand the Board is not a party, nor any relief has been claimed against the Board. It is settled law that for the purposes of considering the jurisdiction, it is the plaint averments alone which are relevant to determine whether the Court/Tribunal possesses jurisdiction to entertain the same. The plaint has to be taken and read in a meaningful manner as it is and not as it ought to be. It is not open for the Court or the Tribunal to assume facts and pass orders. Even Order 1 Rule 9 CPC provides that no suit can be dismissed for non joinder of necessary or proper party.
In the aforesaid backdrop, if the plaint filed by the revisionists before the Waqf Tribunal is perused, a copy of which has been brought on record as Annexure no.6, it would indicate that the revisionists had clearly stated that the property in question is a Waqf Property in paragraph-1 duly registered and entered in the register maintained by the Waqf Board.
The sole grievance of the plaintiff-revisionists was the private respondents were intermeddling with the property of the Waqf and in order to protect the same the revisionists had appeared before Board the District Magistrate who did not take notice and thus in the aforesaid circumstances, the suit came to be filed.
The plaint further indicates that apart from the relief of injunction, relief of declaration has been sought. The relief of declaration has been reproduced by this Court herein above to make it clear that as far as the declaration which is sought is not against the Board nor is it in respect of any act done by the Board by it in pursuance of the Waqf Act for the reason that the Board itself has registered and incorporated the said property as a property and there is no grievance of the revisionist against any such act of the Board nor there are any such pleadings in the plaint. From the entire reading of the plaint, there is no averment or relief which has been claimed against the Waqf Board amongst other as mentioned in the said Sections 6 and 7 respectively.
Sections 6 and 7 which has been relied upon by the Tribunal below relates to a different factual scenario where there is a dispute whether the property in question is Waqf Property or not or if it is a property which is in the list maintained by the Shia Waqf Board or the Sunni Waqf amongst other as mentioned in the said suites 6+7 respectively.
In the instant case, from the perusal of the plaint, it is clear that there is no such dispute which has been raised by the plaintiff-revisionists which may involve the Waqf Board. Even as indicated above, no relief has been sought against the Board.
At this stage, it will also be relevant to notice that the decision relied upon by the Tribunal in the case of Waqf Qabristan Unnao Vs. U.P. Sunni Central Board (supra) would indicate that the facts of the said case are totally different to the facts of the instant case. In the case referred above, there was a clear dispute between the revisionists and the Board since the Board was the opposite party in the said revision and in the ambit of pleadings a specific declaration was sought that the Qabristan situate suit in Tehsil Purwa District Unnao on Plot No.349-Ka be declared as Waqf.
It is in those circumstances, that this Court noticing the provision of Section 89 alongwith Sections 6 and 7 held that since the declaration has been sought to declare the property as Waqf and as the Board is a party, hence, the embargo of Section 89 was attracted, consequently it was held that without complying with the provisions of Section 89 of the Waqf Act, no suit could be filed.
Considering the ratio of the case of Waqf Qabristan, there is apparently no quarrel, however, the same is not applicable in the present case at hand since the facts of the instant revision are completely different; inasmuch as in the present case the suit property has already been declared as the Waqf Property and is maintained as such duly recorded in the register. It is for the said reason that neither any relief has been sought against the Board and merely by the incorporation of a relief for declaration without reading the entire plaint in a meaningful manner, the Tribunal has erred in blindly applying the ratio of the case of Waqf Qabristan to the present case which has resulted in an erroneous exercise of jurisdiction by the Tribunal.
In view of the aforesaid, this Court is of the firm view that the impugned order dated 31.10.2019 has been passed on a misconception of law and fact. Consequently, the same cannot be sustained and is liable to be set aside.
Accordingly, the revision is allowed. The impugned order dated 31.10.2019 is set aside. The plaint of Regular Suit No.58 of 2019 shall be placed on the board of the Tribunal. The parties shall appear before the Waqf Tribunal on 15.02.2021. The Tribunal will consider the matter afresh and proceed with the matter expeditiously in light of the observations made in this judgment.
In the facts and circumstances, there shall be no order as to cost.
Order Date :- 25.1.2021 ank