Ratnzan Khan and Another vs Devendra Kumar and Another

Dipak Misra, J.

The respondent No. 1, Devendra Kumar, instituted civil suit No. 5-A/85 in the Court of 1st Civil Judge Class-II, Bhopal against the petitioners on the ground that he was in possession of the land which was let out to him by the Mutawalli Committee Aukaf-e-Amma Bhopal. A prayer was made in which said suit seeking permanent injunction restraining the petitioners from interfering in his possession. The petitioners filed the written statement disputing the allegations made against them and took a positive plea that they were in possession of the land and they had been residing in the said land since 1955 as sub-tenants of Sardar Amar Singh. It was also put forth that the petitioners were given a relief of Rs. 1000/- by the Collector, Bhopal on 22.5.84 as the whole house was burnt. A further stand was taken that they became direct tenants of Mutawalli Committee and Jameel Khan was paying rent to Mutawalli Committee The said suit was dismissed for default of appearance continued to remain in possession. After lapse of eight years the respondent No. 1 filed another civil suit No. 14-A/92 for possession in the Court of XII th Civil Judge, Class -II, Bhopal on the ground that the petitioners had taken forcible possession of the land in question on 23.4.84. As set forth summons of the suit were not served on the petitioners, but the Court proceeded ex parte. The said civil suit continued at Bhopal but later on it was transferred to the respondent No. 2 which proceeded ex parte against the petitioners without serving summons and rendered an ex parte decision on 19.11.1996 as contained in Annexure P-9.

According to the writ petitioners the civil suit was erroneously transferred to the respondent No. 2 when there was no dispute relating to denial of any title of the wakf and the suit was for possession of the land which was triable by the civil court. It is contended that the respondent No. 1 applied for execution of ex parte decree before the respondent No. 2 which was registered as 60/97. The respondent No. 2 should have kept in view the law laid down in the case of Subhan Shah through Lrs. Ramjan Khan and Others Vs. Madhya Pradesh Wakf Board and Others, . The executing court ordered for delivery of possession and eventually the possession was forcibly taken over and the petitioners were coerced to write a note of vacation of the house. It is put forth that the petitioners first time came to know about the degree in the year 1998 as they were kept in dark. It is also urged that the decision rendered by the respondent No. 2 is without jurisdiction, and a nullity because of Section 55 introduced by Wakf Act (29 of 1954). It is urged that the respondent No.2 lacked the jurisdiction to try the suit and, therefore, judgment passed by it is no nest in the eye of law. In this backdrop a prayer has been made for issue of a writ of certiorari for quashment of the ex parte decision as contained in Annexure P-9 and restoration of possession in favour of the petitioners.

A counter affidavit has been filed by the respondent No. 1 contending, inter alia, that the respondent No. 1 is a tenant of Mutawalli Committee, Aukaf Ammaya, Bhopal since 1974 and has occupied the premises admeasuring 48'' x63'' and running a school ''Montesary Public School which has been recognized by the Government. In the year 1984 the petitioners encroached upon the premises and they are rank trespassers. It is put forth that the order which has been challenged by the petitioners has already been executed and, therefore, the petitioners have no right to assail the same. The petitioners refused to receive the notices issued by the Civil Court and, therefore, the Civil Court proceeded ex parte. When the matter stood transferred to the Wakf Tribunal and the process-server approached the petitioners to serve the notice, the petitioners refused to receive the notice and under these circumstances, the tribunal proceeded ex parte and after complying with the provisions of law passed the judgment on 19.11.1996. Thereafter the same was sent for execution. It is highlighted that the learned civil Judge proceeded for execution keeping in view the order passed by the respondent No. 2. It is put forth that the petitioners had not approached this Court with clean hands inasmuch as though they had already filed an application under Order 9 Rule 13 of the CPC on 29.8.98 for setting aside the ex parte decree passed against them, have not mentioned the same in the writ petition. A copy of the said application has been brought on record an Annexure R-l. It is the stand in the return that the petitioners are tresspassers over the land and have no right whatsoever. It is submitted that the respondent No. 1 was directly given the said premises on rent. Certain receipts of the rent deposited by the respondent No. 1 have been brought on record. The rent receipts which have been produced by the petitioners have been disputed by the respondent No. 1 on the ground of erroneous interpretation placed on the said receipts inasmuch as the documents clearly show that no tenancy right was conferred by Mutawalli Committee on the petitioners. It is also urged that decision given by the respondent No. 2 is neither a nullity nor non est in the eye of law.

I have head Mr, A.S. Usmani, learned counsel for the petitioners and Mr. P.N. Dubey, learned Deputy Advocate Genera for the State.

It is urged by Mr. Usmani that the respondent No. 2 had no jurisdiction in view of the law laid down in the case of Subhan Shah (supra) and the provisions contained in Section 55 which have been inserted by virtue of amendment and hence, the order passed by the Wakf Tribunal is a nullity. To appreciate the aforesaid submission it is seemly to refer to Section 55 of the Wakf (MP Amendment) Act, 1994 which reads as under:

S. 55 Appointment, Powers and Jurisdiction of Tribunals - (1) The State Government shall by notification in the Official Gazette, constitute as many Tribunals, as it may thinks fit for the determination of any dispute, question or other matter relating to a Wakf or Wakfs property which such Tribunal is, or may be, required to determine under this Act, or any rule or order made thereunder and may, by the same or subsequent notification in the Official Gazette, define the local limits of area in relation to which each Tribunal appointed by it shall exercise jurisdiction under this Act.

(2) Any Mutawalli of a Wakf, person interested in a Wakf or any other person aggrieved by any order under this Act or any rule or order 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 Wakf.

(3) Where any application made under sub-section (2) relates to any Wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction of the mutawali or anyone of the mutawallis of the Wakf actually and voluntarily resides, carriages on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:

Provided that the State Government may if it is of the opinion that it is expedient in the interest of the Wakf or any other person interested in the Wakf or the Wakf property, to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Wakf or Wakf property, transfer such application to any other Tribunal having jurisdiction, and on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interest of justice to deal with the application afresh.

(4) Every Tribunal shall consist of one person who shall be a member of the State Judicial Service holding a rank, not below that of a District and Sessions Judge or of a Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.

(5) The Tribunal shall 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.

(6) Notwithstanding anything contained in the CPC 1908 (No. 5 of 1908), the Tribunal shall follow such procedure as may be prescribed :

Provided that where any procedure, different from the prescribed procedure, is specified by this Act the Tribunal shall follow the procedure specified in this Act.

(7) 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.

(8) Execution of any decision of the Tribunal shall be made by the Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (No. 5 of 1908).

(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that High Court may, on its own motion or on the application of the Board or any person aggrieved, call for an 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, reverse or modify such determination or pass such other order as it may think fit.

Section 55-G provides for transfer of pending cases. It reads as under:

55-G. Transfer of pending cases. (1) Every suit or other proceeding pending before any court or other authorities immediately before the date of constitution of the Tribunal under this Act being a suit or proceeding the cause of action, whereon it is based, is such that it would have been, if it had arisen after such constitution, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal:

Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before the High Court.

(2) Where any suit or other proceeding stands transferred from any court or other authority to the Tribunal under Sub-section (1)

(a) The Court or authority shall as soon as may be after such transfer forward the records of such suit or other proceeding to the Tribunal; and

(b) The Tribunal may, on receipt of such records proceed to deal with such suit or other proceeding in such manner as the Tribunal may deem fit.

In the case of Subhan Shah (supra) learned single Judge referred to objects and reasons incorporated with the bill and thereafter taking note of the decisions rendered in the cases of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, , the The Central Bank of India Vs. Their Workmen, and State of West Bengal Vs. Union of India, AIR 1963 SC 241 and Sections 6-A and 55-C to 55-G came to hold as under:

In other words, in my opinion, the validity of orders made under the provisions of the Act or any rule or order made thereunder can be challenged by aggrieved persons before the Tribunal for determination of the dispute relating to Wakf. However, the Mutawalli of a Wakf, or persons interested in a Wakf are competent u/s 55(2) of the Act confers discretion to aggrieved person to file an application to the Tribunal only in case he is aggrieved by any order made under this Act or any rule or order made thereunder. However, any Mutawalli of a Wakf and person interested in a Wakf can file application to the Tribunal for determination of any disputed question or other matters relating to the Wakf. Even in case of persons aggrieved, he can file an application to the Tribunal only in case the order passed under the Act, rule or order made thereunder is in relation to the Wakf Property. In my opinion, in case the power of the Tribunal is confined for determination of only those disputes which are required to be determined under the specific provision of the Act, Rule or Order, it will lead to rendering the provision of Section 55(2) of the Act superfluous. Legislature does not waste words and I do not have any compelling reason to adopt a course of interpretation to render the provisions of Sec. 55(2) of the Act, superfluous. As I have held earlier both operate in the different field.

Learned counsels for the plaintiffs have further submitted that relief sought for by them in the Civil Court cannot be adjucated by the Tribunal and in that view of the matter even if the Tribunal has got power u/s. 55(1) and (2) of the Act the suits and the proceedings cannot be transferred. In the submission of the learned counsels when the Tribunal is not competent to grant relief sought for in the Civil Court the necessary corollary of the same, in their submission, shall be that the Tribunal shall have no power. The whole premises on which the learned counsels have proceeded is unfounded and they totally ignore the provisions of Section 55(5), of the Act as amended. u/s 55(5) of the Act the Tribunal is deemed to be a Civil Court and has the same power as that of a Civil Court under the Code of Civil Procedure, while trying the suit or executing the decree or order. In view of the aforesaid specific provisions, I do not have slightest hesitation in holding that the relief which can be granted by the Civil Court can also be granted by the Tribunal.

The learned single Judge while dealing with the transfer of a case to the Tribunal u/s 55-G has expressed the view as under:

By the Wakf (Amendment) Act, 1984 (Centra] Act 69 of 1984) amendments were brought about in the Wakf Act, 1954. According to S. (2) of the Act 69 of 1984, the same was to come into force on such date as the Central Government may by a notification in the official gazette appoint but such notification has not been issued and as such amendment brought about by Amending Act 69 of 1984 has not yet been enforced. It appears that thereafter the Wakf (Madhya Pradesh Amendment) Act, 1998 (Act 1 of 1995) was enacted. By Section 5 of Wakf (Madhya Pradesh Amendment) Act, 1994 (Act No. 1 of 1995), Section 6-A of the Principal Act was substituted which inter alia provides for determination of disputes regarding Wakf. By Section 6 of Act of 1995, Section 55 of the Principal Act has been substituted which provides for appointment, power and jurisdiction of Tribunal. By Section 7 of MP Act 1 of 1995 Sections 55-A to 55-G in the Principal Act, were incorporated and in the present case, I am concerned with Section 55-C of the Act, which provides for Bar of jurisdiction of Civil Courts in respect of matters required to be determined by Tribunal and Section 55-G which provides for transfer of pending cases.

It is further worthnoting that in the case of Subhan Shah (supra) the learned single Judge while dealing with the transfer of case to the Tribunal u/s 55-G has held as under:

The relief sought for in the present suit is for grant of permanent injunction restraining the defendants or their agents from dismantling the roof of the shop or cause any damage to it. Plaintiff is the tenant in the Wakf property and there is no dispute about the same. The plaintiff is also not aggrieved by any order passed under the provisions of the Act or Rules or order made thereunder but is dismantling the roof of the shop. The Tribunal not competent to hear such dispute and as such the relief sought for by the plaintiff cannot be granted by the Tribunal. Thus, the impugned decision to transfer the suit to the Tribunal cannot be said to be illegal.

In paragraph 34 while dealing with another civil revision which pertained to suit for permanent injunction restraining the defendants from demolishing the shop the Bench expressed thus:

In this case also the relief sought for is for permanent injunction restraining the defendants from demolishing the shop. Again this case also, it is admitted position that plaintiff is a tenant of the shop which is a Wakf property. Plaintiff is neither Mutawalli or person interested in the Wakf and cannot come within the expression "person aggrieved by any order made under the Act or any rule or order made thereunder" and in that view of the matter he cannot file an application before the Tribunal for grant of relief sought for in the civil suit. Consequently, the Tribunal shall have no jurisdiction to grant this relief. In that view of the matter, I am of the opinion that the learned Judge was right in not transferring the suit to the Tribunal.

In view of the aforesaid statutory provisions and law laid down in the case of Subhan Shah (supra) it is clear that the order passed by the Wakf Tribunal was passed in total lack of jurisdiction inasmuch as it is admitted position of the respondent No. 1 that he was a tenant of Mutawalli Committee and sought eviction of the petitioners.

There is distinction between the lack of inherent jurisdiction and Sack of territorial jurisdiction or pecuniary jurisdiction. The first one relates to jurisdiction and the subject matter. If the Tribunal or the Court has no jurisdiction over the subject matter, it goes to the very root of the matter as it Jacks jurisdiction to decide the lis. It is a case of inherent lack of jurisdiction and a decree passed in the said proceeding can be struck down as a nullity on the ground that the Court or the Tribunal which passed a decree/order/ judgment was lacking in legal jurisdiction.

Submission of Mr. Usmani, learned counsel for the petitioners that the respondent No. 1 had claimed himself as a tenant of Mutawalli Committee and had sought eviction of the petitioners and the matter stood transferred to the Tribunal u/s 55-G and the Tribunal passed the order, as per ratio laid down in the case of Subhan Shah (supra) the Tribunal has no jurisdiction to adjucate.

In view of the aforesaid, the Civil Court could have passed an order of transfer u/s 55-G of the Act and the Tribunal should not have dealt with the matter as it did not have the jurisdiction over the subject matter. The same tantamounts to lack of inherent jurisdiction. That being the position the order passed by the Tribunal has to be declared as null and void. The execution of the order would not make an order, which is a nullity, a potent one or effective one. It is ab initio void and it remains so.

The next aspect that emerges for consideration is that once the order passed has been declared as null and void what would be sequitur in the obtaining factual matrix. True it is the order has been given effect to in the execution proceeding. There should not be a direction to restore back the possession in praesenti as the possession has already been taken over long back. But, a necessary but, there has to be an adjudication on merits as regards the rights of the parties. Parties claim to be tenants. The rival rights are to be adjudicated. The said fights are adjudgeable in the Civil Court. Therefore, it is thought condign after declaring the order of the Tribunal as nullity, the proceeding of the Civil Court should be reopened and it shall proceed as per law. If eventually the suit is dismissed on the basis of the plea advanced by the defendant there should be restitution of the possession. To expedite, it is directed that the parties shall appear before the learned trial Judge in the civil suit No. 14-A/92 at Bhopal on 5th September, 2006 on which date the learned trial Judge shall fix a date and thereafter proceed to dispose of the suit within a period of four months therefrom.

Consequently, the order passed by the Tribunal vide Annexure P-9 is quashed and the writ petition is allowed. Matter is remitted to the Civil Court for fresh adjudication as indicated hereinbefore. There shall be no order as to costs.