Waqf Tribunal Has Jurisdiction To Try Every Suit Pertaining To Either Waqf Or Its Property Irrespective Of Relief Claimed Unless Barred By Statute: Calcutta HC
|The Calcutta High Court observed that the Tribunal has jurisdiction to try every suit pertaining to either a Waqf or Waqf property irrespective to the nature of relief claimed, unless barred by the statute.
The Court observed thus in an application preferred against the order of the Waqf Tribunal in a suit by which it allowed the application filed under Order VII Rule 11 of the Civil Procedure Code (CPC), seeking rejection of plaint.
A Single Bench of Justice Ajoy Kumar Mukherjee held, “Waqf Tribunal is constituted for the determination of any dispute question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligation of the lessor and lessee and after the Amendment of 2013, there cannot be any doubt that the Waqf Tribunal has jurisdiction to entertain all such matters as provided under the amended section 83 of the Act and in view of the judgment passed by Apex Court in Mumtaz yarud Dowla waqf case (supra) Tribunal has jurisdiction to try every suit pertaining to either a waqf or waqf property irrespective to the nature of relief claimed unless barred by the statute.”
The Bench added that when there is a special forum created for speedy adjudication of the disputes relating to waqf properties, entertaining those disputes by the civil courts, despite ouster of jurisdiction, under Section 85 of the Waqf Act, 1995 leads to multiplicity of litigation, leading to failure of the object of establishing the special Tribunals.
Advocate Nauroz Rahber appeared for the petitioner while Advocates K.K. Pathak and Sk. Md. Galib appeared for the opposite parties.
Factual Background -
The petitioner/plaintiff’s case was that the suit property was a Waqf property duly registered with the Waqf Board, West Bengal and the father of the defendant was a monthly tenant in respect of the land which was part and parcel of the said waqf estate. After the death of his father, the defendant occupied the said premises. It was the plaintiff’s further case that the defendant in violation of the waqf laws, made major additional alternation, changing the nature and character of the estate and converted the property for his own unlawful commercial use. It was further alleged that the defendant had sublet a major portion of the estate in favour of unauthorised occupants.
Resultantly, the plaintiff served a notice upon the defendant, terminating the tenancy and demanded khas possession of the property from him. Despite service of notice, the defendant allegedly failed to act in terms of the same and for which the plaintiff filed a suit for eviction. During pendency of the suit, the defendant filed an application under Order VII Rule 11 of CPC, contending that the suit was not maintainable as it was barred under Section 3AA of the West Bengal Premises Tenancy Act, 1997 and also under Sections 6 and 7, read with Section 83 of Waqf Act. The Tribunal allowed the prayer of the defendant and rejected the plaint, holding that the same was not maintainable. Being aggrieved, the plaintiff approached the High Court.
The High Court in view of the facts and circumstances of the case noted, “Mr. Pathak heavily relied upon the judgment of Ramesh Govindram Case (supra) but a three judges bench of the Apex Court in Kiran Devi Vs. Bihar State Sunni waqf Board and others reported in (2021) 15 SCC 15 has held that ratio laid down in Ramesh Govindram cannot be used as a magic wand to toss the proceedings relating to a Waqf property from one to another. Accordingly I do not find any substance in the submission of Mr. Pathak that since Act of 1997 is special statue and enacted by the state legislature, so every dispute between land lord and tenant within the limits of Kolkata Municipal Corporation and municipal areas, the forum of law is the civil courts, having jurisdiction over the suit property.”
The Court said that it is no more res integra that the dispute relating to recovery of possession from a tenant/encroacher is maintainable before the Waqf Tribunal in view of Section 83(1) of the 1995 Act. It added that in the case, the suit before the Tribunal is not a suit for eviction simpliciter, but a suit coupled with prayer for declaration of the property as waqf property and also for recovery of damages and as such the suit not only covered under section 6(1) but also covered under newly inserted provision under section 7(6) of the amendment act of 2013.
“By section 7(6) of the Amendment Act of 1995 the Tribunal is also now conferred with the power to assess damages and to recover it as arrears of land revenue through collector. … In this context Mr. Galib, learned counsel appearing on behalf of the Board of waqf rightly pointed out that the plaintiff cannot be asked to approach first to the Tribunal to get the property declared as waqf property, then after such declaration, to approach before the Civil Court for eviction of the tenant and thereafter to ask plaintiff to go again to the Tribunal for the recovery of the damages”, it also observed.
Furthermore, the Court noted that when by Amendment Act of 2013, the parliament inserted the words “eviction of tenant” in section 83(1), then the intention of the legislature was manifestedly clear that the legislature intended to confer such power to the Waqf Tribunal and hence, the rejection of the plaint by the Tribunal on the ground that the suit is barred by law, was perverse and contrary to the provisions of the Waqf Act.
Accordingly, the High Court allowed the application, set aside the impugned order, and directed the Tribunal to make every endeavour for expeditious disposal of the suit following the spirit laid down in Section 84 of Waqf Act.
Cause Title- Anis Fatma Begum v. Debasish Ghosh & Ors.
Appearance:
Petitioner: Advocates Nauroz Rahber and Adnan Ahmed.
Opposite Parties: Advocates K.K. Pathak, Sk. Md. Galib, Souvik Majhi, and Abu Siddique Mallick.