Sunil Kumar vs Punjab Wakf Board on 23 March, 2010

Punjab-Haryana High Court Punjab-Haryana High Court Sunil Kumar vs Punjab Wakf Board on 23 March, 2010 Civil Revision No. 2612 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2612 of 2009 Date of Decision : March 23, 2010 Sunil Kumar ... Petitioner versus Punjab Wakf Board ... Respondent Present: Mr. Aman Bahri, Advocate for the petitioner Mr. Tarun Lehl, Advocate for the respondent L. N. Mittal, J. (Oral) Defendant Sunil Kumar has filed the instant revision petition under Article 227 of the Constitution of India read with section 83 of the Wakf Act, 1995 (in short, the Act) challenging judgment and decree dated 9.4.2009, Annexure P/7 passed by learned Wakf Tribunal, Amritsar (constituted under the Act). Respondent Punjab Wakf Board filed suit against the defendant for possession of demised property by ejectment of defendant and for recovery of Rs 2160/- as arrears of rent. The plaintiff-respondent alleged that the defendant took the suit property i.e. roof of a shop on rent from the plaintiff with effect from 1.1.1984 as allotted vide order dated 21.4.1984. Rate of rent was Rs 30/- per month. Tenancy of the defendant was terminated by serving notice. Tenancy also stood terminated by efflux of time. The defendant failed to vacate the property and also failed to pay rent Civil Revision No. 2612 of 2009 -2- for 36 months preceding the filing of the suit. The defendant also made alterations and additions in the shop. The defendant contested the suit. The defendant admitted that he had taken the roof of the shop on rent from the plaintiff. However, it was denied that the tenancy was for 11 months. The defendant alleged that tenancy was extended from time to time. The plaintiff has been accepting rent also. When the plaintiff stopped accepting rent, the defendant deposited the same with the court. Various other pleas were also raised. Learned Wakf Tribunal vide impugned judgment and decree dated 9.4.2009 decreed the suit of plaintiff for possession of the disputed property by ejectment of defendant therefrom and also for recovery of arrears of rent @ Rs 30/- per month with effect from 1.4.2003 till delivery of possession to the plaintiff. Feeling aggrieved, the defendant has preferred the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that Wakf Tribunal had no jurisdiction to try the suit for ejectment or recovery of rent because the defendant admitted that the suit property is Wakf property. It was contended that jurisdiction of civil court is barred under section 85 of the Act to determine wakf nature of a property and only Wakf Tribunal under the Act has jurisdiction to determine the said question but neither Wakf Tribunal has jurisdiction to try suit for possession or recovery of rent nor jurisdiction of civil court is barred to try such a suit. Reliance in support of this contention has been placed on a judgment of this Court in the case of Shamsher Singh @ Sher Singh versus Bahi Mohemmed and Civil Revision No. 2612 of 2009 -3Indian Kanoon - http://indiankanoon.org/doc/1554051/ 1

Sunil Kumar vs Punjab Wakf Board on 23 March, 2010

others, 2009(4) RCR (Civil) 646 and also a judgment of Allahabad High Court in the case of Yashpal Lal Shiv Narain versus Allatala Tala Malik Waqf Ajakhan Mus. ,2006(2) RCR (Civil) 712. On the other hand, learned counsel for the respondent contended that section 85 of the Act is worded very widely and it bars jurisdiction of civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under the Act to be determined by Tribunal. Learned counsel for the respondent also referred to section 83(1) of the Act which provides for constitution of Wakf Tribunals for determination of any dispute, question or other matter relating to wakf or wakf property under the Act. It was contended that not only the wakf nature of any property is required to be determined by the Wakf Tribunal under the Act but also any dispute, question or other matter relating to wakf property is required to be adjudicated upon by the Wakf Tribunal under section 83 of the Act and jurisdiction of civil court to adjudicate upon the same is barred by section 85 of the Act. In support of this contention, learned counsel for the respondent has relied on a Division Bench judgment of Kerala High Court in the case of Pookoya Haji versus Cheriyakoya, 2003(4) RCR (Civil) 474, a judgment of Division Bench of Andhra Pradesh High Court in the case of M. Bikshapathi versus Government of Andhra Pradesh, 2003(1) RCR (Civil) 212, a judgment of Division Bench of Madhya Pradesh High Court in the case of Wakf Imambara Imlipura, Khandwa versus Smt. Khursheeda Bi & Ors, AIR 2009 (M.P.) 238 and three judgments of this Court in the cases of Gurdial Singh and others versus Punjab Wakf Board, 2006(4) RCR (Civil) 289; Civil Revision No. 5570 of 2007, titled Civil Revision No. 2612 of 2009 -4- Balwinder Singh versus Haryana Wakf Board, decided on 22.12.2009 and Civil Revision No. 887 of 2007, titled Haryana Wakf Board versus Shabrati Khan and others, decided on 25.9.2009. I have carefully considered the rival contentions and perused the judgments cited at the bar. In so far judgment of this Court in the case of Shamsher Singh @ Sher Singh (supra) relied by learned counsel for the petitioner is concerned, in the said judgment the issue involved has not been discussed in detail and even reference to section 83 of the Act has not been made in the said judgment. Judgment of Allahabad High Court in the case of Yashpal Lala (supra) relied upon by learned counsel for the petitioner has been discussed and distinguished in the judgment of this Court in the case of Balwinder Singh (supra). Section 83(1) and section 85 of the Act are reproduced hereinunder:"83 Constitution of Tribunals, etc. - (1) The State Government shall, by notification in the official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. 85. Bar of jurisdiction of Civil Courts.- 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 or other matter which is required by or under this Act to be determined by a Tribunal." A combined reading of the aforesaid provisions leaves no room for doubt that any dispute, question or other matter relating to a wakf property is required to be adjudicated upon by the Wakf Tribunal under the Civil Revision No. 2612 of 2009 -5- Act in view of section 83 of the Act and jurisdiction of civil court to adjudicate upon any such question is barred by section 85 of the Act. Expression 'any dispute, question or other matter relating to a wakf or wakf property' used in section 83(1) as well as in section 85 of the Act makes it amply clear that the Wakf Tribunal is required to adjudicate upon not only the question of a property being wakf property but also any other dispute, question or other matter relating to a wakf property. Legislature in its wisdom has used language of very wide amplitude in section 83(1) as well as section 85 of the Act and the intention of the Legislature is very clear and unambiguous that all matters relating to Wakf property should be determined by the Wakf Tribunal under the Act and not by the civil court. The weight of precedent is also against the petitioner because there are Division Bench judgments of three High Courts against the contention raised on behalf of the petitioner. There are also three judgments by three different Single Benches of this
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Sunil Kumar vs Punjab Wakf Board on 23 March, 2010

Court taking the same view that Wakf Tribunal only has jurisdiction to try a suit for ejectment and jurisdiction of civil courts to try such suit is barred. The same view was also taken by me in Civil Revision No. 2700 of 2008, titled as Sham Singh versus Punjab Wakf Board and others, decided on 16.3.2010. In view of the aforesaid discussion, I find no merit in the aforesaid contention of learned counsel for the petitioner. I find that Wakf Tribunal had jurisdiction to try the suit under section 83 of the Act and jurisdiction of civil court to try the same is barred by section 85 of the Act. Learned counsel for the petitioner also pointed out that in fact even the respondent had initially filed the suit in civil court which was sent by civil court to Wakf Tribunal under the Act and again the Wakf Tribunal Civil Revision No. 2612 of 2009 -6- sent the suit to the civil court but the civil court again sent suit to the Wakf Tribunal. However, this circumstance has no bearing in view of above mentioned conclusion that only Wakf Tribunal has jurisdiction to try the suit and that jurisdiction of civil court to try the suit is barred. Learned counsel for the petitioner also contended that the respondent had sought ejectment of the plaintiff on the grounds of non payment of arrears of rent and additions and alterations allegedly made by the petitioner but the said grounds are not substantiated. The contention cannot be accepted because irrespective of said grounds, the defendant is liable to ejectment from the suit property because his tenancy was terminated by serving valid notice. It may, however, be noticed that the Tribunal has found that the petitioner was in arrears of rent since April, 2003 although the suit was filed in November, 2003. However, that is not a ground for ejectment in a civil suit, although the same may be ground for ejectment under Rent Act. In the instant case, since the defendant's tenancy was terminated, the plaintiff became entitled to seek possession of the demised property by ejectment of the defendant. For the reasons recorded hereinabove, I find no illegality in the impugned judgment of the Wakf Tribunal. The instant revision petition is without any merit and is accordingly dismissed. ( L. N. Mittal ) March 23, 2010 Judge 'tiwana'

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