1. We are in these cases concerned with the Jurisdiction and powers of the Wakf Tribunals constituted in the State of Kerala by the Wakf Act, 1995. A learned single Judge of this Court, C.S. Rajan, J, in Pookoya Haji v. Cheriyakoya, (1999) 1 Ker LT 794 : (AIR 1999 Kerala 289) took the view that the Wakf Tribunal has been constituted by the Government under Section 83(1) of the Wakf Act, so as to decide any dispute, question or other matter relating to a Wakf or Wakf property. Learned Judge held under Section 83(2) of the Act any Mutawalli or any other person aggrieved by an order made under the Wakf Act or Rules may make an application to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. Judgment of the learned single Judge, C.S. Rajan, J. is appealed against in W.A. 2273/99. P.R. Raman, J. another learned Judge of this Court in Abdul Rahiman Musaliar v. Muhammed Sahib (2002) 3 Ker LT 742 : (AIR 2003 Kerala 84) while interpreting Sections 83 and 85 of Wakf Act took the view that only those matters which are required by or under the Wakf Act to be determined by a Tribunal, the bar under Section 85 would apply and for the rest of the matter civil Court's Jurisdiction is not ousted, In view of the apparent conflict between the two decisions referred to above these matters have been placed before us on a reference made by Padmanabhan. Nair, J.
2. Large number of cases are now pending before the Wakf Tribunals and also before the Civil Courts for determination with regard to the nature of the disputes to be resolved by the Tribunals or by the civil Courts. In fact a direction was given to the administrative side of the High Court as per O'.M. No. D3/B1/49951/97, dated 16-3-2001 to the District Judges of Manjeri, Kozhikode, Kalpetta, Thalassery and Kasaragod to take steps to transfer the cases under the provisions of the Wakf Act pending before their respective districts to the Wakf Tribunal, Kozhikode. It is, therefore, necessary to resolve the apparent conflict between the two decisions for the proper disposal of the cases pending before the civil Courts as well as before the Wakf Tribunals.
3. The Wakf Act, 1995 (Act 43 of 1995) was enacted by the Parliament and was brought into force throughout the country except the State of Jammu and Kashmir with effect from 1-1-1996. It repealed the Wakf Act, 1954 and the Wakf (Amendment) Act, 1984. One of the important changes made in the Wakf Act, 1995 was the constitution of the Wakf Tribunal for resolution of disputes relating to Wakf and Wakf property and such other matters which are required by the Act to be resolved by the Tribunal. Though an amendment was brought in to provide for Tribunal under the Wakf (Amendment) Act, 1984 the same was not enforced.
The entire scheme for resolution of Wakf litigations by Tribunals has been provided under Sections 83 to 95 of the Act.
4. We may before examining the scope of the judicial proceedings enumerated in Chapter VIII of the Act generally survey the scheme of the Act. The word "Wakf' has its origin in the Arabic Verb, Waqufa. Wakf Act, 1995 has given a statutory meaning to the word "Wakf under Section 3(r) of the Act which reads as follows :
"Wakf' means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes :
(i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) "grants", including mashrut-ul-Khidmat for any purpose recognised by the Muslim Law as pious, religious or charitable; and
(Hi) a Wakf-al-al-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;
and 'Wakf means any person making such dedication.
The definition clause has used the expressions "Wakf by user". A Wakf by user is one which is not expressly dedicated as Wakf but has been in long use as such, then by virtue of such long use such property is deemed to be Wakf by user. A Wakf normally requires express dedication, but if land has been used from time Immemorial for a religious purpose, then the land becomes a Wakf by user, although there is no evidence of an express dedication. Wakf-al-al-aulad refers to dedication of property as Wakf and for the welfare of Wakf s own family of his children or children of his children. A Wakf can be created by the execution of a Will which is called testamentary Wakf. A valid Wakf can be created only for a lawful object and it should be recognised by Muslim Law as pious, religious or charitable. There are three types of Wakf recognized as under :-- (i) Wakf by user, (ii) Wakf Mashrut-ul-Khidmat, and (iii) Wakf-al-al-aulad. For making a valid Wakf a person should be of sound mind and that he should be a major person. Therefore, neither a minor, nor a guardian on behalf of the minor can make a Wakf. The first essential condition for creating a valid Wakf is that the declaration of dedication should be made contemporaneously with the act of dedication and the person must divest himself of the ownership of the property. Physical delivery of the property is not essential, but such possession as is possible must be given. The three essential features of a valid Wakf are : (i) perpetuity, (ii) irrevocability, and (iii) inalienability. A Wakf can also be created through a testament containing the desire of the Wakf to take effect after his death. One of the most beautiful Wakfs in India is regarded as the Eighth wonder of the world, namely, Taj Mahal. A Wakf can also be created by a non Muslim. For creation of Wakf it is not necessary that the settler should be a Muslim.
5. Under the Wakf Act, 1995 as we have indicated considerable power has been given to various officers to deal with the Wakf property. Chapter II provides for survey of Wakfs. By virtue of Section 4(3) the Survey Commissioner shall, after making such enquiry as he may consider necessary, submit his report, in respect of Wakf existing at the date of the commencement of this Act in the State, Commissioner is also empowered to get information regarding the number of Wakfs in the State showing Shia Wakfs and Sunni Wakfs separately, the nature and objects of each Wakfs, the gross income of the property comprised in each Wakf; the amount of land revenue, cesses, rates and taxes payable in respect of each Wakf, the expenses incurred in the realization of the income and the pay or other remuneration of the Mutawalli of each Wakf; and such other particulars relating to each Wakf as may be prescribed. While making such enquiry the Commissioner has the same power as vested in a civil Court for the purpose of summoning and examining any witness, requiring the discovery and production of any document, requisitioning any public record from any Court or office, issuing commissions for the examination of any witness or accounts, making any local inspection, or local investigation and such other matters as may be prescribed. On receipt of a report from the Commissioner the State Government shall forward a copy of the same to the Board. The Board shall examine the report forwarded to it and publish in the Official Gazette a list of Sunni Wakfs or Shia Wakfs in the State. If any question arises whether a particular property specified as Wakf property in the list of Wakfs is Wakf property or not or whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf, the Board or the Mutawalli of the Wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. The Act further provides that the total cost of making a survey including the cost of publication of the list or lists of Wakfs shall be borne by all the Mutawalli of the Wakfs the net annual income whereof exceeds five hundred rupees, in proportion to the net annual income accruing in the State to such Wakfs, such proportion being assessed by the Survey Commissioner. Disputes and differences are on the rise on the question whether a particular wakf is a Sunni Wakf or Shia Wakf and matters relating to Wakf and Wakf property.
6. Learned Judge in Musaliar's case, AIR 2003 Kerala 84 held that only those matters which are required by or under the Act to be determined by a Tribunal, that the bar under Section 85 applies. Learned Judge held that the dispute in that case mainly centres around the right of management of the Wakf. Property in Musaliar's case was admittedly a Wakf property. But learned Judge took the view since the management of Wakf as such does not fall within the powers of the Tribunal dispute is not liable to be resolved by the Tribunal. Consequently learned Judge held civil Court has got jurisdiction. Learned Judge opined that the scheme of the Act would show that jurisdiction of the Civil Court is not completely ousted. Learned Judge also examined the question as to whether the words "determination of any dispute, question or other matter relating to the Wakf or Wakf property is so wide enough to take in a dispute relating to the management of the affairs of a Mosque or Wakf. The words "under this Act" according to the learned Judge qualifies the dispute to be adjudicated. Learned Judge also referred to Sections 6, 7, 32(3) and 54(4) which deal with matters where suits can be filed before the Tribunal. We are of the view if the reasoning of the learned Judge; is, upheld we will be restricting the jurisdiction of, the Tribunal considerably, thereby, narrowing the scope and ambit of Section 83 read with Section 85 and other related provisions. Apex Court in Dhulabhai v. State of M.P., AIR 1969 SC 78 laid down certain principles regarding the exclusion of jurisdiction of civil Court. Principles, laid down by the Apex Court, which are relevant to us is stated as follows :
(1) Where the statute gives a finality to the orders of the special tribunals the civil Courts Jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit, Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity With the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find but the intendment becomes necessary and the result of the inquiry may be decisive. In the latter Case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the, right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so, constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.
(3) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
We may examine the scope of Sections 83 and 85 and other related provisions, in the light of the above mentioned principles. Section 85, is extracted below for easy reference:
85. Bar of jurisdiction of Civil Courts :--No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matters relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal. Section 85 stipulates that no suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property. This is the first limb of Section 85. The second limb is that no suit or other legal proceedings shall lie in any civil Court in respect of any dispute, question or other matter which is required by or under this Act to be determined by a Tribunal. In the first limb of Section 85 we see the words "or other matters relating to" and in the 2nd limb of Section 85 also we find the words "or other matter which is required". In other words, in the first limb the emphasis is on the words "relating to" and in the second limb the emphasis is on the words "required by". The Wakf Act has conferred powers on the Tribunal to resolve various disputes by way of appeals and applications. Sections 6, 7, 32(3), 54(4) etc, confers powers on the Tribunal to entertain suits. Section 6 and Section 7 deals with disputes as to whether a particular property is a Wakf, whether it is a Shia Wakf or Sunni Wakf. Section 32(2)(d) enables the Wakf Board to settle schemes of management of a Wakf and if any person who is interested in the Wakf or affected by the settlement or direction may institute a suit before, the Tribunal Section 54 deals with removal of encroachment from the Wakf property. Any person aggrieved by the order passed by the Chief Executive Officer could institute a suit before the Tribunal.
7. We have pointed out that over and above the powers conferred on the Tribunal td entertain :suit, Act also envisages entertainment of appeals by the Tribunal. Section 33(4) enables the Tribunal to entertain appeals against the order of the Chief Executive Officer in cases where Mutawalli in performance of his executive or administrative duties has caused any loss or damage to any Wakf property. Under Section 38(6) the Board has been given the powers to suspend, remove or discharge the Executive Officer, in the event of which he could file an appeal before the Tribunal under Section 38(7) of the Act. Sections 51(5), 52(4), 64(4), 67, 69, 73(3) etc. have also conferred appellate powers on the Tribunal.
8. The Tribunal can also entertain applications. Section 39(3) empowers the Wakf Board to make an application to the Tribunal for recovery of possession of any building or other place which was being used for religious purposes or institution or for charity before the commencement of the Act, has ceased to be used for, that purpose. The second proviso to Section 51(2) also enables the Tribunal to entertain application concerning alienation of Wakf property.
9. The above mentioned and other provisions would indicate that considerable powers have been conferred on the Tribunal by entertaining such appeals, applications etc. to resolve various disputes relating to Wakf and Wakf property. Therefore when a dispute raised before the Wakf Tribunal or in a civil suit the Tribunal and Court have to examine whether those disputes fall within the jurisdiction of the Tribunal by way of suit, appeals or applications. If the Civil Court finds that it would fall within the Jurisdiction of the Tribunal it would leave it to the Tribunal to resolve those disputes. In other words, any dispute, question or other matters relating to Wakf or Wakf property under the Wakf Act as well as any dispute, question or other matters? required by or under the Wakf required to be resolved by the Tribunal those matters be left to the Tribunal and not to the civil Court. The Wakf Act envisages that both the disputes falling under both the limbs be determined by the Tribunal itself not by the civil Court. The constitution of Tribunals for resolution of disputes are common in the modern Judicial system. The very purpose and intend for setting up of Tribunal is to of provide an expert machinery for the resolution of disputes relating to institution of wakf or the provision of dedicating property movable or immovable or religious purposes and for the uplift of the poorer sections of the society have been a distinguishing feature of the socio, economic, structure of Islamic few. The doctrine of Wakf which is interwoven with the entire religious life and social economy of Muslims has laid down the foundations of one of the most important institutions of the community. Considering their number and resources, wakfs can become a strong instrument not only for the preservation of religious and charitable institutions, but also for educational and economic development of the community. The subject Wakf is relatable to entries No. 10 Trust and Trustees and No. 28 Charities, and Charitable, institutions, charitable and religions endowments and religious Institutions in the concurrent list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of Wakfs is therefore, the responsibility of both the Central and State Governments. Article 26 of the Constitution gives freedom to every religious denomination to establish and maintain its religious and charitable institutions subject to public order, morality and health. Dispute regarding Wakf and Wakf property will have far reaching consequences in the socio-economic structure of, the Muslim, Religion. Wakf Act, 1995 was enacted to provide for the better administration of Wakfs. Act pro-vides for setting up of Wakf Tribunal to consider the disputes pertaining to. Wakf. Section 6 of the Act specifically stipulates, that if any question arises whether a particular property specified as Wakf property in the list of Wakfs is Wakf proper or not or whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf, the Board, or the mutawalli of the Wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. Section 7 says that if after the commencement of the Wakf Act any question arises whether a particular property specified as Wakf property in a list of Wakf is Wakf property or not, or whether a Wakf specified in such list is a Shia Wakf or a Sunni Wakf, the Board or the Mutawalli of the Wakf or any person interested therein may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final. Section 54 also empowers the Tribunal to resolve the disputes relating to encroachment on any land, building, space or other property which is Wakf property. These provisions and other provisions have conferred specific powers on the Tribunal for resolution of disputes and also attached finality to those decisions. In our view the above provisions specifically confer powers on the Tribunal which falls under both the limbs of Section 35 of the Act. Section 83 of the Act empowers State Government to constitute as many Tribunal's as it may think fit for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under the Act. Section 84 stipulated that whenever an application is made to Tribunal for the; determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter gives its decision in writing and furnish a copy of such decision to each of the parties to the dispute. The said statutory provision therefore necessitates expeditious disposal of the disputes of Wakf and Wakf property. Sections 83 and 84 would fall within the first limb of Section 85 as explained by us in the earlier part of the Judgment since both under Section 83 as well as under Section 84 the expression used is "relating to" mot "required by". The Tribunal has got power to resolve any dispute, question or any other matter 'relating to Wakf or' Wakf property once it is Constituted under Section 83 of the Act over and above what was required to be decided by it specifically by the Act. We have therefore no hesitation to state that the intention of the legislature is to see that all those disputes be resolved by the Tribunal, not only the specific matters conferred on the Tribunal by the Wakf Act but also any dispute and other matter relating to Wakf and Wakf property as well. The objects and reasons incorporating the Bill presented to the Legislature would show the object of the legislation is to provide better administration and supervision of Wakfs throughout the country. This would give an idea of the antecedent state of affairs.
10. Section 83(4) stipulates that every Tribunal shall consist of one person, who shall be member of the State Judicial Service holding a rank, not below that of a District Sessions or Civil Judge, Class I, and the appointment of every such petition may be made either by name or by designation. The Tribunal shall also be deemed to be a Civil Court and shall have the same powers as may be exercised by a, Civil Court under the Code of Civil Procedure 1908 while trying a suit, or Executing a decree or order. Section 83(7) stipulates that the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court. As per Section 83(9) no appeal shall lie against any decision or order whether interim or otherwise, given or made by the, Tribunal, provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality of propriety of such determination and may confirm, reverse on modify such determination on pass such other order as it may think fit.
11. Learned single Judge has made specific reference to the decision of the Madras High Court in A.M. Ali Akbar's case, AIR 2001 Madras 431. In that case the Madras High Court has taken the view that the Tribunal has no power to determine the dispute as to the constitution of Managing Committee or the conduct of election to the Managing Committee and that the petition for permanent injunction and temporary injunction filed by the members of Jamath cannot be entertained by the Tribunal. We are unable to agree with the reasoning of the learned Judge of the Madras High Court in Ali Akbar's case. Andhra Pradesh High Court in T. Sivalingam v. A.P. Wakf Tribunal (1999) 3 Andh LD 646 examined the scope of Sections 7 and 83 of the Act where suit was filed by the Wakf Board before the State Wakf Tribunal for eviction of the tenant from the Wakf property. Court held that the suit is maintainable before the Tribunal. It was held by the Court that Section 83 confers jurisdiction to the Tribunals to entertain any disputes with regard to Wakf property. So all disputes with regard to Wakf property, are triable by the Tribunal. It becomes more clear after reading Section 85 of the Act that this is the only interpretation which can be placed on Section 83 because Section 85 bars the jurisdiction of Civil Courts in respect of any dispute, question or other matter relating to any Wakf property.
12. We are therefore, of the considered view that the words any dispute, question or other matters relating to Wakf or Wakf property under Section 85 are wide enough to take in within its sweep not only matters which are specifically conferred on the Tribunal by the various provisions of the Act but also any dispute, question or any other matter relating to any Wakf or Wakf property since those powers have also been conferred on the Tribunal by the Wakf Act it self. On examining the scheme of the Act and various provisions we are of the view that the intention of the legislature is to resolve all disputes by one machinery and forum provided, in the Act itself, that is, the Wakf Tribunal and not by the civil Courts in the State.
13. The Wakf Act is complete code by itself and the intention of the legislature is not provide for better administration of Wakf and for matters connected therewith and incidental thereto. The Act has created the post of Chief Executive Officer to be appointed under Section 23(1) of the Act. Considerable statutory powers have been conferred on the Chief Executive Officer as well. Act has also constituted a Board by name Wakf Board under Section 13 of the Act. Powers have, also been conferred on the mutawalli, Section 83(2) of the Act empowers any mutawalli or person interested in a Wakf or any other person aggrieved by an order made under this Act or rules made thereunder may make an application within the time specified in the Act or where no such time has been specified, within such time as may be prescribed to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. Words "person interested" also defined in the Act under Section 3(k) of the Act.
14. On going through the entire scheme of the Act and the provisions contained we are of the view the decision rendered by learned Judge in Abdul Rahiman Musaliar's case (AIR 2003 Kerala 84) has given emphasis on the second limb of Section 83, that is what is required by the Wakf Act to be determined not on the first limb that is relating to Wakf or Wakf property. The learned Judge has given a strict interpretation to Section 85 of the Act. We find ourselves unable to subscribe the interpretation given by the learned Judge in Musaliar's case. The powers of the Wakf Tribunal are all pervasive and it could entertain appeals and applications and also could resolve all the disputes, question or other matters relating to Wakf, Wakf property and also matters conferred on the Tribunal or else the purpose and object of the constitution of the Tribunal would be defeated. It is so declared.
15. We may therefore dispose of all the cases in the light of the above mentioned principles laid down by us. W.A. No. 2273 of 1999 arises out of O.P. No. 26419 of 1998. Writ petition was filed by the first defendant in O.S. No. 1 of 1998 of the Wakf Tribunal (District Judge, Kavaratti) declaring that the Wakf Tribunal has no jurisdiction to entertain the suit and for a direction to pass orders on Ext. P4 preliminary objection and whether it has got jurisdiction to resolve the dispute. Learned single Judge of this Court dismissed the original petition holding that the Tribunal has got jurisdiction to resolve the dispute. In that suit plaintiff has sought for a declaration that members of pattakkal family alone are entitled to hold office Muthavalli under the custom and tradition and a declaration that first plaintiff was duly chosen Muthavalli as the next. We are of the view dispute falls squarely within the jurisdiction of the Wakf Tribunal and consequently we find no reason to interfere with the judgment of the learned, single judge. The writ appeal would stand dismissed.
C. R. P. Nos. 3436/2001 and 182/2002 C. R. P. No. 3436 of 2001 arises out of an order passed in O. S. No. 71 of 1999 on the file of the Subordinate Judge's Court. Thalassery. C.R.P. No. 182 of 2002 arises out of an order passed in O. S. No. 123 of 1997 of the same Court. In both the cases issue centres round a U.P. School. O. S. Nos. 71 of 1999 and 123 of 1997 were ordered to be jointly tried. C. R. P. Nos. 3436 of 2001 and 182 of 2002 were fried by the plaintiff in O. S. No. 71 of 1999 who is the defendant in O.S. No. 123 of 1997. He filed the suit for permanent prohibitory injunction restraining the defendants and their men and associates from trespassing into and obstructing or disturbing the proper functioning of the plaint schedule property. Plaintiff is the Manager of the school and later became the Muthavalli and managing the affairs of Cheruvancherry Juma Ath. Parties have agreed before the civil Court that the disputes have to be resolved by the Wakf Tribunal, but the plaintiff is now taking a different stand stating that the Wakf Tribunal has no jurisdiction. We are of the view it is for the Wakf Tribunal to decide as to whether the dispute relates to wakf property. The decision rendered by the Wakf Tribunal manned by a District Judge as to the jurisdiction would govern the issue and not that of a civil Court in case of dispute whether it would fall under Section 83 read with Section 85 arises for consideration, We may hasten to add the decision rendered by the Wakf Tribunal on; the question as to whether dispute falls under Section 83 (1) read with Section 85 would be the guiding factor not by civil Courts. If such a dispute is raised it would be proper for the civil Court to refer the matter to the Wakf Tribunal and in case the Wakf Tribunal to determine its jurisdiction or else the civil Courts would be flooded with cases.
C.R.P. No. 2315 of 2002
This revision petition is filed under Section 83 (a) of the Wakf Act against the judgment in O.S. No. 153 of 2001 granting a decree for eviction on the ground of arrears of rent. Contention was raised that the suit was not maintainable. Plaintiff produced Exts. A1 to A6. A5 is the Wakf Board registration: certificate showing registration in respect of the property. The Tribunal held that it has got jurisdiction and granted a decree to the plaintiff to evict the defendant from the Schedule property. We are of the view Tribunal is justified in taking the view that it has got jurisdiction since, the dispute is regarding a wakf property. In such circumstances we find no illegality, irregularity or impropriety in the order passed by the Tribunal to be interfered with under Section 83 of the Act. The revision petition would stand dismissed.