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CASE NO.: Appeal (civil)  1 of 2005

PETITIONER: Abdul Rais and Ors.

RESPONDENT: Madhya Pradesh Wakf Board and Ors.

DATE OF JUDGMENT: 03/01/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T  

(Arising out of S.L.P. (Civil) No. 19794/2003)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellants call in question legality of the judgment rendered by  a learned Single Judge of the Madhya Pradesh High Court, Indore Bench,  holding that the petition filed by the appellants before the Madhya  Pradesh State Wakf Tribunal, Bhopal (in short the ’Tribunal’) was  barred by time.  

       Factual position sans unnecessary details is as follows:

       On 27.12.1996, appellants filed an application before the  Tribunal seeking a declaration that the suit property specified in  official gazette (Wakf List) dated 13.9.1985 is in fact not a wakf  property, but the said property exclusively belongs to the appellants.  In essence, they sought for a declaration that they were ’Bhumiswami’  of the suit property which consisted of agricultural lands.  Hence, the  declaration is bad in law and not binding. The Madhya Pradesh Wakf  Board (in short ’the Wakf Board’) resisted the claim made, taking the  stand that the applicants had no title. In any event, the application  was hopelessly barred by time. It was their stand that the suit was not  filed within one year from the date of publication in the official  gazette as contemplated under Section 6 of the Wakf Act, 1954 (in short  the ’Act’) which was in force at the relevant time.  Subsequently, the  Wakf Act, 1995 has been enacted. The Tribunal allowed the application  over-ruling the objections raised by the Wakf Board and held that the  application was within time and the applicants had proved their title  on facts and consequentially were entitled to the declaration as sought  for. It was, therefore, held that the declaration made in the official  gazette to the effect that the suit property was wakf property is bad  and the applicants were the ’Bhumiswami’ of the suit land.  

       Questioning correctness of the order the Wakf Board filed a  revision in terms of proviso to Section 83(a) of the Wakf Act, 1995. At  the time of hearing revision application none was present on behalf of  the Wakf Board. Learned Single Judge held that limitation to file a  suit to seek declaration as to whether a particular property was Wakf’s  property or not is one year and it begins from the date of publication

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of the list of wakf’s properties. Reference was made to Section 6 of  the Act in this context. The said judgment is the subject matter of  challenge in this appeal.

       In support of the appeal, learned counsel for the appellants  submitted that the High Court has fallen into grave error by holding  that the application made by the appellants before the Tribunal was  barred by time, as Section 6 had no application to the facts of the  present case. The learned Single Judge found as a matter of fact that  no notice was given to the appellants before the promulgation of the  notification. As soon as the appellants came to know of the  notification, they filed an application before the Tribunal. In any  event, when the application was based on title, Section 6 had no  application.  

       In response, learned counsel for the Wakf Board supported the  judgment of the High Court and submitted that the position in law is  very clear and Section 6 of the Act has clear application.     

Chapter II of the Act refers to the preliminary survey of Wakfs  and Section 5 deals with the publication of the list of Wakfs. Section  5 reads as follows:  "5. Publication of list of wakfs: - (1) On receipt of  a report under sub-section (3) of Section 4, the  State Government shall forward a copy of the same to  the Board.  (2) The Board shall examine the report forwarded to  it under sub-section (1) and publish, in the Official  Gazette, a list of wakfs in the State, or as the case  may be, the part of the State, whether in existence  at the commencement of this Act or coming into  existence thereafter to which the report relates, and  containing such particulars as may be prescribed."  

Section 6 deals with disputes regarding wakfs. Sub-section (1) of  Section 6 reads as follows:  "6. Disputes regarding wakfs. - (1) If any question  arises whether a particular property specified as  wakf property in a list of wakfs published under sub- section (2) of Section 5 is wakf property or not,  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 civil court of competent jurisdiction for the  decision of the question and the decision of the  civil court in respect of such matter shall be final  :"  

No doubt as contended by the Wakf Board, the first proviso to  sub-section (1) of Section 6 as extracted below requires that a civil  suit shall be filed within one year from the date of the publication of  the notification issued under sub-section (2) of Section 5.   The first proviso to sub-section (1) of Section 6 reads as  follows:  "Provided that no such suit shall be entertained by  the civil court after the expiry of one year from the  date of the publication of the list of wakfs under  sub-section (2) of Section 5:"  

       The operative words in sub-section (1) of Section 6 of the Act  are "the Board or the Mutawalli of the Wakf or any person interested  therein". As observed by this Court in Punjab Wakf Board v. Gram  Panchayat @ Gram Sabha (2000 (2) SCC 121) the requirement to file a  civil suit within one year of the notification under the Act as  mentioned in the first proviso to Section 6 (1) of the Act is in

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connection with any dispute between the Wakf Board on the one hand and  the mutawalli of the wakf on the other or any person interested  therein. The expression "therein" was interpreted by this Court in  Sayyed Ali v. A.P. Wakf Board (1998 (2) SCC 642). It was held that the  expression "therein" means "interested" in the wakf as distinct from  interested in the property i.e. a third party. In fact, in paragraph 33  of Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors. (1979 (2)  SCC 468), a three-Judge Bench of this Court observed as follows:

       "33- The answer to these questions must turn on  the true meaning and construction of the word  ’therein’ in the expression ’any person interested  therein’ appearing in sub-section (1) of Section 6.  In order to understand the meaning of the word  ’therein’ in our view, it is necessary to refer to  the preceding words ’the Board or the Mutawalli of  the wakf’. The word ’therein’ must necessarily refer  to the ’wakf’ which immediately precedes it. It  cannot refer to the ’wakf property’. Sub-section (1)  of Section 6 enumerates the persons who can file  suits and also the questions in respect of which such  suits can be filed. In enumerating the persons who  are empowered to file suits under this provision,  only the Board, the mutawalli of the wakf, and ’any  person interested therein’ thereby necessarily  meaning any person interested in the wakf, are  listed. It should be borne in mind that the Act deals  with wakfs, its institutions and its properties. It  would, therefore, be logical and reasonable to infer  that its provisions empower only those who are  interested in the wakfs, to institute suits."    

       For coming to the aforesaid conclusion this Court relied on an  earlier decision in Siraj-ul-Haq Khan v. Sunni Central Board of Wakf  U.P. (AIR 1959 SC 198).

       The position in law as indicated by this Court in the aforesaid  cases does not appear to have been kept in view by the High Court. The  effect of the relief sought for in the suit and the effect of the  decisions of this Court referred to above were required to be kept in  view. As noted above, none was present on behalf of the Wakf Board at  the time of hearing of the revision application by the High Court.  

In the aforesaid background, we think it appropriate to remit the  matter to the High Court for a fresh consideration keeping in view the  decisions in Punjab Wakf Board’s case (supra), Radha Kishan’s case  (supra) and Siraj-ul-Khan’s case (supra) and the factual position as  indicated and the reliefs sought for in the suit. We make it clear that  we have not expressed any opinion on the merits of the case.  

       The appeal is disposed of accordingly with no order as to costs.