Civil Courts Not Automatically Divested Of Jurisdiction Under Waqf Act: SC

New Delhi: The Supreme Court on Wednesday held that Waqf tribunals have jurisdiction only over properties notified in the “list of auqaf” or registered under the Waqf Act and the civil courts are not automatically divested of jurisdiction under Section 85 of the Waqf Act, 1995.

Section 85 of the Act bars jurisdiction of civil courts to entertain any suit or proceedings in connection with the orders passed by or proceedings that may be commenced before the tribunal.

A bench comprising justices Sanjay Kumar and K Vinod Chandran said we cannot find Section 83 (of the Act) to be a provision conferring jurisdiction on the tribunal with respect to matters in addition to which already jurisdiction has been conferred under the other provisions of the Act.

“Section 83 has a nominal heading of ‘Constitution of the Tribunal etc’. and it enables the state government by notification in the official gazette to constitute as many tribunals as it may think fit for the determination of disputes, questions or other matters relating to a waqf or waqf property under this Act. The last three words have not been omitted in the amendment, as we found in paragraph 10, which we will deal with more elaborately when considering the ambit and scope of Section 83”, said the bench.

The bench made the observation while setting aside a judgment of the Telangana High Court pertaining to a property unregistered under the Waqf Act.

The bench, while dealing with an appeal filed by Habib Alladin and others, found the property was neither specified in the ‘list of auqaf’ as published in Chapter II nor registered under Chapter V.

The bench said looking at the facts of the present case, a bare reading of the plaint would indicate that neither is the property specified in the ‘list of auqaf’ as published in Chapter II nor registered under Chapter V and hence the decision as to whether the property is a waqf property or not cannot be decided by the tribunal since the property is not one specified in the ‘list of auqaf’, which is the mandatory requirement under Section 6(1) and Section 7(1) of the Waqf Act of 1995 to approach the tribunal.

The bench said it will not consider the issue as to whether the property can be deemed to be a ‘waqf by user’ since the question is still at large.

“The injunction simpliciter sought before the tribunal does not fall within its jurisdiction and the plaint has to be rejected, which we do, allowing the application of the defendant under Order VII, Rule 11. The order of the tribunal, ascertaining jurisdiction and that of the High Court, affirming it are set aside”, said the bench.

The bench said 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 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’”, it said.

The bench said it cannot but also notice that the tribunal, though conferred with the jurisdiction to remove encroachers, the power could be invoked only by the Chief Executive Officer of the Board as per Section 54(3) & (4), either suo motu or on a complaint. “If the power to move directly before the tribunal was available under section 83, even prior to the amendment of 2013, there was no reason to confer jurisdiction under Section 54 and much less reason to provide specifically for removal of encroachment”, it said.