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Judgment
Sudhanshu Dhulia, J
Petitioner is allegedly an encroacher in the property of Waqf Board. He is challenging the recovery citation dated 01.10.2019 passed by the respondent no.2. The petitioner though denies the title of the Waqf Board on the said property but as for himself his status is only that of an unauthorized occupant.
Apart from the petitioner, such recovery proceedings were also initiated against many other persons, allegedly occupying the Waqf property. Such persons including the present petitioner, filed a writ petitions before this Court, which were initially allowed vide order dated 18.11.2015 and the recovery citations were quashed. Against the order dated 18.11.2015, the respondent no.3 preferred the review petition before the learned Single Judge of this Court, where the learned Single Judge in its order dated 26.02.2016 observed as under:-
"8. Learned counsel for the review applicant has brought the provision of Section 83 of Wakf Act, 1995 to the notice of this Court, which is as follows:-
"[(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 waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals].
[2] Any, mutawalli, person interested in a [waqf] or any other person aggrieved by any order made under this Act, or rules made thereunder, may make an application within the time specified in this 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 [waqf].
It is, therefore, the submission of learned counsel for review applicant that the petitioners ought to have approached Wakf Tribunal for redressal of their grievances.
In the case of "Board of Wakf, West Bengal & another vs. Anis Fatma Begum & another (2010)," the following was observed by the Hon'ble Apex Court:-
i) The dispute in the present case relates to a wakf. In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Art. 226 of the Constitution of India. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts.
Hence, a Special Tribunal has been constituted for deciding such matters.
ii) Section 83(1) of the Wakf Act, 1995 states:
"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."
iii) Section 84 of the Act states:
"84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision .- Whenever an application is made to a 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 give its decision in writing and furnish a copy of such decision to each of the parties to the dispute."
iv) Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words "any dispute, question or other matters relating to a wakf or wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal. The word "wakf" has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.
v) Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the civil court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2- A of the Code of Civil Procedure, 1908 to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a wakf or wakf property.
vi) We may further clarify that the party can approach the Wakf Tribunal even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83(2) referes to the orders passed under the Act, but, in our opinion, Section 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed 11 under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a wakf or wakf property, as the plain language of Sections 83(1) and 84 indicates.
vii) We may clarify that under the proviso to Section 83(9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision makes it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a wakf or wakf property should first approach the Tribunal before approaching the High Court.
Learned counsel for the petitioners admits the above propositions of law and submits that the petitioners are amenable to the jurisdiction of Wakf Tribunal but the impugned recovery citation should remain in suspension till the matter is finally decided by the Wakf Tribunal. The innocuous prayer of learned counsel for the petitioners is worth accepting.
All the aforementioned review applications are accordingly allowed.
The orders sought to be reviewed are modified to the extent that the petitioners shall get their dispute adjudicated by the Wakf Tribunal concerned and in the meanwhile, Show Cause Notices given to the petitioners under Section 33 of the Wakf Act, 1995 shall be kept in abeyance.
It is hoped and expected that the Wakf Tribunal shall make an endeavor to decide the dispute between the parties at an earliest without granting unnecessary adjournments to either side."
Aggrieved by the order dated 26.02.2016, respondent no.3 preferred special appeals before the Division Bench of this Court. The Division Bench of this Court disposed of the special appeals giving liberty to the petitioners, which included the present petitioner to approach the Waqf Tribunal.
In other words, the petitioners were given an opportunity to go to the Waqf Tribunal. Some of the persons approached the Waqf Tribunal in pursuance of the liberty granted by the Division Bench of this Court but the petitioner has not avail this remedy.
Now again recovery proceedings have been initiated against the petitioner. Aggrieved the petitioner has filed the present writ petition before this Court.
Since the petitioner did not avail the remedy before the Waqf Tribunal, no interference is liable to be made by this Court. The writ petition is, however, disposed of with a direction to the petitioner to avail the remedy before the Waqf Tribunal within a period of one week from today.