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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Wakf Act, 1995

Saturday, December 25, 2010
Wakf Act, 1995

Wakf Act, 1995 — Section 85 — Exclusion of the jurisdiction of the Civil Court — Held, the crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court — If it is not, the jurisdiction of the Civil Court is not excluded — But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 85 — Jurisdiction of the Civil Courts — Held, Section 85 does not exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 83 — Held, Section 83 simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 6(5), 85 and 83 — Exclusion of Civil Courts jurisdiction — Held, is dealt with by Section 6(5) and Section 85 of the Act — To interpret Section 83 as a provision that excludes the jurisdiction of the Civil Courts is not, therefore, legally correct, for that provision deals with constitution of Tribunals, the procedure which the Tribunals would follow and matters relating thereto.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 85 — The exclusion of jurisdiction of Civil Courts under Section 85 is not absolute — It is limited only to matters that are required by the Act to be determined by a Tribunal — So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 85 and Section 6(5) r/w Section 7 — The bar of jurisdiction contained in Section 85 is much wider than that contained in Section 6(5) read with Section 7 of the Wakf Act — While the latter bars the jurisdiction of the Civil Court only in relation of questions specified in Sections 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the Civil Courts not only in relation to matters that specifically fall in Sections 6 and 7 but also other matters required to be determined by a Tribunal under the Act.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 85 — Whenever a question arises whether “any dispute, question or other matter” relating to “any wakf or wakf property or other matter” falls within the jurisdiction of a Civil Court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act — If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. 

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 6 and 7 — Under Section 6 read with Section 7, the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein — The bar is not complete so as to extend to other questions that may arise in relation to the wakf property.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 6 and 7 — Jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 6(5) — The exclusion of the jurisdiction of the Civil Courts under Section 6(5), held, is not absolute or all pervasive — Section 6(5) only bars the jurisdiction of the Civil Courts to determine matters referred to in Section 6(1) of the Wakf Act, 1995.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 83 and 85 — A suit seeking eviction of a tenant holding wakf property can be filed only before the Civil Court and not before the Tribunal.

 
Monday, December 06, 2010
Wakf Act, 1995

Wakf Act, 1995 — Applicability of — Wakf Act will not be applicable to suits/appeals/revisions/proceedings commenced prior to 1.1.1996 when the Wakf Act came into force — Sardar Khan vs. Syed Najmul Hasan (Seth) & Ors. AIR 2007 SC 1447 relied.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 83(9), Proviso — Constitution of India, 1950, Article 226 — Party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 83(1) and 84 — Even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 83(1), 83(2) and 84 — Jurisdiction of the Wakf Tribunal — Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act — No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal — Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 83 — Constitution of India, 1950, Article 226 — All matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 3(r) readwith Sections 83 and 84 — Once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 83 and 84 — Jurisdiction of Wakf Tribunal — The Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property — The words “any dispute, question or other matters relating to a Wakf or Wakf property” are, in our opinion, words of very wide connotation — Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal.

 
Wakf Act, 1995

Wakf Act, 1995 — Section 83(5) — Civil Procedure Code, 1908, Order 39 Rules 1, 2 and 2A — Power to grant temporary injunctions — Under Section 83 (5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions — Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.

 
Wakf Act, 1995

Wakf Act, 1995 — Sections 83(1) and 84 — The party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved.

 
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