The Supreme Court on Wednesday held that the civil courts are not automatically divested of jurisdiction under Section 85 (bar of jurisdiction of civil courts) of the Waqf Act, 1995 [Habib Alladin vs Mohammad Ahmed].A Bench of Justices K Vinod Chandran and Sanjay Kumar opined that the jurisdiction of Waqf Tribunals under the Waqf Act, 1995 is confined to matters specifically conferred by the statute."There is hence no absolute and all-pervasive ouster of jurisdiction of the Civil Court even under Section 85 of the Act of 1995," the Court said..The Court added that the Section 83 of the Act is essentially an enabling provision for the constitution of tribunals and cannot be read as granting a general or omnibus power to decide all disputes relating to waqf.“Section 83 does not confer any jurisdiction on the Tribunal, either/or an omnibus consideration of any dispute, question or other matter related to waqf or of waqf property, nor with respect to eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property. It merely enables the constitution of the Tribunal,” the Court held..On the point of whether a property is waqf or not, the Court ruled that such question falls within the tribunal’s jurisdiction only when the property is specified in the ‘list of auqaf’ as contemplated under the Act.It explained that the applicability of the Act to all auqaf does not by itself determine jurisdiction."The definition of ‘waqf’ under Section 85, 3(r) and the applicability of the Act of 1995 on all auqaf (Section 2) does not also determine jurisdiction which, in resolution to disputes with respect to a property being a waqf or not is expressly conferred on the Tribunal, only with respect to those properties specified in the ‘list of Auqaf’," the Bench said.The Court further said that the power to remove encroachers is specifically conferred under Section 54(3) and (4) of the Act, exercisable at the instance of the Chief Executive Officer of the Waqf Board and not under Section 83..The Bench also opined that the 2013 amendment to the Act altered that position only to a limited extent.“The amendment Act of 2013 removes the sub-stratum of the decision in Ramesh Gobindram only to the extent of the absence found of the jurisdiction conferred on the Tribunal to remove encroachers and does not, in any other manner, interfere with the principle stated of the jurisdiction of the Tribunal under the Act of 1995,” the Court said..The Court was dealing with an appeal that arose from a suit seeking a permanent injunction to restrain interference with prayers in a space claimed to be a mosque, located on the ground floor of a residential apartment complex. The defendants moved an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the suit, contending that the premises was neither notified in the list of auqaf nor registered under the Act and, thus, the Waqf Tribunal lacked jurisdiction.The Tribunal, however, rejected the application. The High Court also declined to interfere, holding that the plaint disclosed a case of “waqf by user”..In the judgment delivered today, the top court held that since the property was neither specified in the list of auqaf under Chapter II nor registered under Chapter V, the tribunal had no jurisdiction to decide whether it was waqf property.“The injunction simpliciter sought for before the Tribunal does not fall within its jurisdiction and the plaint has to be rejected,” the Court held, setting aside the orders of the Tribunal and the High Court.It, thus, also rejected the suit filed before the tribunal, leaving the question of whether the property in question is a waqf open to be agitated in accordance with law..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.
