Only properties in ‘list of auqaf’ fall under Waqf tribunal, civil courts still have jurisdiction: Supreme Court

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

New Delhi: The Supreme Court on Wednesday held that there is no absolute and all-pervasive ouster of jurisdiction of the Civil Court even under Section 85 of the Waqf Act, 1995.

It declared that resolution to disputes with respect to a property being a waqf or not is expressly conferred on the Waqf Tribunal only with respect to those properties specified in the ‘list of Auqaf’.

A bench of Justices Sanjay Kumar and K Vinod Chandran said, ''Section 83 of Act cannot be considered as 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.''

Referring to Section 9 of the Code of Civil Procedure 1908, the bench said, even if the statute accords finality to the orders of the Tribunal, a court will have to see whether the Tribunal has the power to grant the reliefs, which the civil courts would normally grant and if the answer is in the negative, ordinarily there can be no inference of exclusion of the civil courts’ jurisdiction.

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

The bench thus said, 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 forum.

"The injunction simpliciter sought for before the Tribunal does not fall within its jurisdiction and the plaint has to be rejected,'' the bench said.

In its judgment authored by Justice Chandran, the court examined the reach and sweep of the jurisdiction of the Tribunal constituted under the Waqf Act, 1995.

The court allowed the appeal and set aside the judgments of the Tribunal ascertaining the jurisdiction and the High Court affirming it. The bench left the question of whether the scheduled property is a waqf or not open to be agitated in accordance with law.

After going through the provisions of the law, the bench said, "We 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.''

The court opined, 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.

The appellant was the owner of a land which was developed by constructing an apartment complex through a builder on the strength of a development agreement.

Respondent Mohammed Ahmed contended that on the ground floor of the building, meant for residential purpose, an area was enclosed as a mosque with the active participation of the owner, constructed by the builder.

The respondent claimed that he himself and other members of the public have been offering prayers in the premises, more fully described in the schedule to the plaint, which was now being obstructed by the petitioners.

The cause of action, the respondent claimed, arose when the ingress to the mosque, established in the year 2008, was obstructed in the year 2021.

The plaintiff, respondents herein, sought for a perpetual injunction restraining the defendants, appellant herein from causing any interference or hindrance to the plaintiff and other Musallies from entering into the premises and offering prayers.

The appellant claimed there was no such mosque established or continued in the residential complex. There was no demarcation of such a mosque in the sanctioned plan and in any event, it was not a waqf under the Act of 1995; inclusion in the list notified or registration by the Waqf Board under that Act being mandatory for the plaintiff to approach the Tribunal.

The Tribunal dismissed the appellant's plea. The High Court found that the averments in the plaint indicated a ‘waqf by user’ covered under the definition of waqf in Section 3(r)(i) of the Act of 1995.