REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPEALLATE JURISDICTION

CIVIL APPEAL NO. 5297 of 2004

Board of Wakf, West Bengal .. Appellant (s)

-versus-

Anis Fatma Begum & Anr. ..                Respondent (s)

J U D G M E N T

Markandey Katju, J.

1. This  appeal  has  been  filed  against  the  impugned  judgment  of  the  

Division Bench of the Calcutta High Court dated 02.5.2003 in A.P.O.T. No.  

775 of 2002.

2. Heard learned counsel for the parties and perused the record.

3. The facts of this case have been stated in the impugned judgment and  

hence we are not repeating the same here, except where necessary.

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4. The dispute pertains to the Wakf estate of Shahzadi Begum which was  

created  by  a  Registered  Deed  of  Wakf  dated  22.09.1936  by  one  late  

Shahzadi Begum.  By the said Wakf Deed the Wakf was created with the  

object  of  dedicating  the  property  being  Premises  No.  33,  Shakespeare  

Sarani, (formerly Theatre Road), Calcutta-700 017, partly for the benefit of  

the Wakifa, her family and descendants and partly for pious and religious  

purposes.  In order to give effect to the object of the Wakf, the property had  

been  demarcated  and/or  divided  into  two portions  having  75% share  for  

Wakf-al-al-aulad and 25% share for pious and religious purposes.  The Wakf  

had been enrolled under the appropriate laws then prevailing, and registered  

as a Wakf Estate.  The aforesaid property has been partitioned by metes and  

bounds by keeping 75% thereof for the benefit  of the descendants of the  

family of the Wakifa in terms of the Wakf Deed and the remaining 25% for  

a religious and charitable purposes.

5. Suit No. 488 of 1999 was filed in Original Summons jurisdiction for  

answers to be given for the following two questions:

• Whether the demarcation of the Wakf property being Premises  No. 33, Shakespeare Sarani, Calcutta – 700 017, made as above  in  dividing the  said  property in  two distinctive  parts,  one for  Wakf-al-al-aulad  and  the  remaining  portion  for  pious  and  religious purposes, is correct and has been made in consonance  with the provisions of the Wakf Deed ?

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• Whether the Wakf Act, 1995 is applicable for the portion of the  said property divided and earmarked for Wakf-al-al-aulad ?

6. By the order dated 30.02.2000 the Learned Single Judge answered the  

first question in the negative and the second question in the affirmative.

7. However, in appeal, the Division Bench by the impugned judgment  

has answered both the questions in the negative.  Hence, this appeal.

8. It  was  submitted  by  Dr.  Rajeev  Dhawan,  learned  Senior  Counsel  

appearing for the appellant, that only the Wakf Tribunal has jurisdiction in  

the matter under the Wakf Act, 1995 and hence the Suit filed in the High  

Court was without jurisdiction.  We agree.

9. The dispute in the present case relates to a Wakf.   

10. 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 Article 226 of the Constitution of India.   

11. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary  

statute  which  has  constituted  a  special  Tribunal  for  deciding  disputes  

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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.  

12. Section 83 (1) of the Wakf Act, 1995 states,  

“83.  Constitution  of  Tribunals,  etc.  –  (1)   The  State  Government  shall,  by  notification  if  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 or such  Tribunals.”

13. 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”.

14. 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  

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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.   

15. 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 2A of the Code of Civil  

Procedure  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.

16. 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) refers to the orders passed under the Act, but, in our opinion, Sections  

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83 (1) and 84 of the Act are independent provisions, and they do not require  

an order to be passed 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.   

17. 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 make 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.   

19. It  is  well-settled  that  when  there  is  a  special  law  providing  for  a  

special forum, then recourse cannot be taken to the general law vide Justice  

G.P. Singh’s  Principles of Statutory Interpretation (9th Edn. 2004, pp 133-

134).

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20. In  Chief Engineer, Hydel Project & Ors  vs.  Ravinder Nath & Ors.  

(2008) 2 SCC 350, this  Court  held that  when the matter  fell  in the  area  

covered  by  the  Industrial  Disputes  Act,  the  Civil  Court  would  have  no  

jurisdiction.  In the above decision the Court has referred to several earlier  

decisions on this point.

21. In view of the above, we are of the opinion that since the matter fell  

under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction  

in the matter, and not the Civil Court.   

22. However,  in view of the decision of this Court in  Sardar Khan vs.  

Syed Najmul Hasan (Seth) & Ors. AIR 2007 SC 1447, the Wakf Act will not  

be  applicable  to  suits/appeals/revisions/proceedings  commenced  prior  to  

1.1.1996 when the Wakf Act came into force.

23. Learned counsel for the respondent, however, relied on the decision of  

this Court in Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8  

SCALE 698.  In the aforesaid decision it was held that eviction proceedings  

can only be decided by the Civil Court and not by the Wakf Tribunal.

24. The dispute in the present case is not an eviction dispute.  Hence,  

the aforesaid decision in Ramesh Gobindram’s case is distinguishable.   

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25. For  the  reasons  mentioned  above,  the  impugned  judgment  of  the  

Calcutta High Court cannot be sustained and it is hereby set aside.  We hold  

that only the Wakf Tribunal has jurisdiction in the matter and the parties can  

approach  the  Wakf  Tribunal,  if  so  advised.   The  appeal  stands  allowed.  

There shall be no order as to costs.           

…………………………..J. (Markandey Katju)

………………………….J. (Gyan Sudha Misra)

New Delhi; 23 November, 2010

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