RASHID WALI BEG versus FARID PINDARI & ORS.

Citation: [2021] 13 S.C.R. 1 · Decided: 28-10-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 10 · see the full citation network in Lexace

Judgment (excerpt)

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[2021] 13 S.C.R.1
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RASHID WALI BEG
v.
FARID PINDARI & ORS.
(Civil Appeal No. 6336 of 2021)
OCTOBER 28, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act
27 of 2013 – Suit for permanent injunction in respect of a waqf
property filed before civil court, if maintainable – Held: Words in
s.83(1) “any dispute, question or other matter relating to a waqf or
waqf property” cover any dispute, question or other matter relating
to a waqf property – Court cannot do violence to the express
language of the statute – s.83(1) even as it stood before the
amendment, provided for the determination by the Waqf Tribunal,
of any dispute, question or other matter relating to a waqf and a
waqf property – Therefore, to say that the Tribunal will have
jurisdiction only if the subject property is disputed to be a waqf
property and not if it is admitted to be a waqf property, is indigestible
in the teeth of s.83(1) – Dichotomy created in some decisions of
Supreme Court, between the properties admitted to be waqf
properties and disputed to be so, is on account of the misapplication
of the two limited questions in ss.6(1) and 7(1) to the whole of the
Act including s.83 – In the present case,  the  property  is  admittedly
a waqf property – To allow the respondent-plaintiff to ignore the
Waqf Tribunal and to seek a decree of permanent and mandatory
injunction from a civil court, would be to ignore the mandate of
ss.83 and 85 – Approach of the High Court not in tune with the law
laid down by Supreme Court – Further, a question as to the nature
of the waqf and whether the plaintiff is a beneficiary of the waqf,
has also arisen in this case which question has necessarily to be
decided by the Tribunal and not the civil court – Trial court to return
the plaint to the plaintiff, for presentation to the jurisdictional Waqf
Tribunal – Judgment of High Court set aside – Code of Civil
Procedure, 1908 – Or.39, r.1 – Mussalman Waqf Validating Act,
1913 – Mussalman Waqf Act 1923 – Waqf Act 1954.
Waqf Act, 1995 – ss.85, 86, 89 and 90 – Bar of jurisdiction
u/s.85 – Held: The 1995 Act makes a specific reference to court/
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SUPREME COURT REPORTS
[2021] 13 S.C.R.
civil Court also in certain places – ss.86, 90 and 93 make specific
reference to “Court” – s.68(6) goes a step further by making a
reference to ‘civil court’ – A cumulative reading of ss.86, 89 and 90
shows that the bar of jurisdiction u/s.85 is not total and omnipotent
and there may be cases which could still be entertained by civil
courts.
Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act
27 of 2013  – Held: Act 27 of 2013 did 2 things – First it expanded
the jurisdiction of Waqf Tribunal even to cover landlord-tenant
disputes and the rights and obligations of lessor and lessee –
Second, it enlarged the bar of jurisdiction, to cover even revenue
courts and other authorities.
Waqf Act, 1995 – ss.6(1), 7(1) – Held: By Act 27 of 2013 the
words, “any person interested” were substituted by the words, “any
person aggrieved”,  meaning  thereby  that  even  a  non  Muslim  is
entitled  to invoke the jurisdiction of the Tribunal – Due to the
substitution of the words “any person aggrieved”, Act 27 of 2013
has deleted the Explanation u/s.6(1).
Waqf Act, 1995 – ss.83, 85 and 86 – Special provision u/s.86
– Held: Dehors the jurisdiction conferred upon the Tribunal
u/s.83(1) and dehors the bar of jurisdiction of the civil court, revenue
court and any other authority u/s.85, the 1995 Act contains a special
provision in s.86 for the appointment by the civil court, of a Receiver,
in certain cases – It is clear from s.86, that in suits or other
proceedings instituted by the Board falling u/clause (a) or those
instituted by the mutawalli falling u/clause (b) of s.86, the civil court
will have jurisdiction to appoint a receiver – As a corollary, the bar
u/s.85 will have no application to cases covered by s.86.
Waqf Act, 1995 – ss.83, 85, 86, 90 and 93 –  Question of bar
of jurisdiction of the civil court – Determination of – Held: In view
of the language employed in ss.83 and 85, coupled with the reference
to civil courts in ss.86, 90 and 93, it appears that the question of
bar of jurisdiction of the civil court, has been left by the law makers
to the vagaries of judicial opinion and this has given rise to
conflicting decisions.
Waqf Act, 1995 – s.83 – Code of Civil Procedure, 1908 –
Or.39, r.1 – Held: s.83(5) makes it clear tha

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