- (1.) Smt. Rahmatunissa is stated to have created a waqf for Shia Community more than 125 years ago. The waqfs property comprises of Imambara, Maszid and Shops situate in Village Abdullapur, District Meerut. Original Suit No. 346 of 1977 under Order I Rule 8 of Code of Civil Procedure was filed by the certain persons belonging to Sunni Community in the Court of Munsif seeking a declaration that the waqf was a Sunni waqf. The suit was decreed in favour of Plaintiff. First Appeal No. 166 of 1984 filed against the Judgment and decree of the trial Court was dismissed vide order dated 11 th August, 1985. Hence the present second appeal No. 2066 of 1986. During the pendency of the appeal, a suit for injunction being original suit No. 157 of 1988 was filed by the Shia Central Board and others v. Allah Meharand others, regarding the same waqfs property, contending that the waqf in question was not a Sunni Waqf but a Shia Waqf and that the judgment and decree passed in Original Suit No. 346 of 1977 is not binding upon the Plaintiffs to the second suit as they were not party in the earlier suit proceedings. It was further contended that the Defendants, on the strength of the Judgment and decree passed in Original Suit No, 346 of 1977, were trying to take forceful possession over the Shia waqf s property and therefore, permanent injunction was being prayed for. An application was made under Section 10 of the Code of Civil Procedure for stay of the suit proceedings, till the decision of the Second Appeal No. 2066 of 1986 pending before this Court. The application was allowed by the Additional Munsif VIII. Consequently a revision was filed being Revision No. 220 of 1998. In between an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was moved in the said suit for temporary injunction which was rejected by the Munsif Meerut on 26th August, 1988. Misc. Appeal No. 233 of 1988 was filed by the Plaintiff against the rejection of the temporary injunction application. Misc. Appeal No. 233 of 1988 and Revision No. 220 of 1988 were clubbed and decided under judgment and order dated 11th April, 1990 by the Vllth Additional District Judge, Meerut. The revision was dismissed and the appeal was allowed after recording that Shia Waqf Board was not party to Original Suit No. 346 of 1977, and therefore, principle of res judicata will not apply. Against the order of the Additional District Judge, the writ petition being Civil Misc. Writ Petition No. 18047 of 1990 has been filed. The second appeal No. 2066 of 1986 and the present writ petition No. 18047 of 1990 have been clubbed together.
(2.) It may be recorded that there is serious dispute between the parties in the fact of the case as to whether waqf is a Shia Waqf or a Sunni Waqf and linked with the aforesaid dispute, a serious issue, which has been canvassed before this Court is that the suits giving rise to the second appeal No. 2066 of 1986 and the writ petition No. 18047 of 1990 are not maintainable, as the same are barred by Section 75 of U.P. Waqfs Act, 1960 (hereinafter referred to as the 'Act, 1960') and the remedy lays by way of a reference under various Sections including Section 8 of Act, 1960.
(3.) In reply it is submitted that Section 8 of Act, 1960 (hereinafter referred to as the 'Act, 1960') is not an independent provision, it is linked with Section 6 of the Act, 1960, meaning thereby that the disputes/matters, which can be subject of reference to the Tribunal under Section 8(1) of the Act, 1960 are those, which are determined by the Commissioner, under Section 6 of the Act, 1960 out of several matters, which are mentioned in the said Section to be decided by the Commissioner. In respect of other matter, suit before the Civil Court is the proper remedy. Earned Counsel for the Petitioner has placed reliance a judgment of this Court in the case of Mukhtar Husain and Ors. v. Fattu and Ors., 1975 AWC 462. The relevant portion whereof is quoted herein below: 16. Looking to the said provisions, it will be noticed that there was no ambiguity or scope for dispute in respect of the said provisions. Section 5(2) made it clear that the cause of action to bring a suit in a Civil Court of competent jurisdiction was dependent upon the determination by the Commissioner of Waqfs. Therefore, Section 5 in the Act of 1936 was dependent for its working on Section 4 where under the Commissioner of waqfs acted and gave his decision. The short point for consideration in the instant revision is whether the position as it subsisted under the Act of 1936 is still in subsistence or due to the change in the language of Section 8 of the new Act, the Law has undergone a change. It is not disputed that there is nothing in Section 8 itself which would show that its working is dependent upon Section 6 of the said Act. However, that cannot be held to be conclusive inasmuch as in accordance with the well known rules of interpretation, a provision of law has to be read in its context. Now, Section 8 occurs in the Chapter, which deals with the survey of waqfs. That undoubtedly supports the contention that this provision is not a self contained or independent provision but has a relationship or nexus with the survey of waqfs conducted by the Commissioner under Chapter I. Further, Section 8 is preceeded by Section 6 which lays down in its sub-Section (2) that the Commissioner of Waqfs shall, after making such enquiries as he may consider necessary, ascertain and determine the various details and particulars which are quoted in the various clauses of the said sub-section. The fact that Section 8 follows Section 6 lends a strong support to the contention that 'dispute' referred to in sub-Section (1) of Section 8 is a dispute which arises in consequence of the determination made by the Commissioner under Section 6(2) of the said Act. Lastly, the proviso to Section 8(1) again suggests that the dispute has to come before the Tribunal only after the notification in the Official Gazette under Section 6(4) of the said Act. In other words, the notification is the starting point of limitation and provides the cause of action for the reference to the Tribunal under Section 8. Earned Counsel for the applicants contended that the proviso to Section 8(1) has limited application insofar as it lays down that whenever there is a notification under Section 6(4), then the dispute must be brought before the Tribunal with in one year from the date of the notification. However, the proviso, according to him, cannot be interpreted to lay down that whenever there has been no notification under Section 6(4), the dispute between the parties cannot be referred to the Tribunal under Section 8(1). In my opinion such a contention is not tenable in view of the totality of the circumstances in which the provisions of Section 8 have to be construed. I have already referred to the relevant circumstances in this connection and, in my opinion, the proviso to Section 8(1) not only lays down the rule of limitation but it, by implication, also provides that the cause of action for a reference to the Tribunal is provided by the notification under Section 6 (4) of the said Act. 17. It should be noticed that the Tribunal constituted underthe U.P. Muslim Waqf Act is a Tribunal of a limited jurisdiction. It can entertain only such disputes or question or matter which under the said Act can be referred to it. Section 75 bars a Civil Court from entertaining any suit or other proceeding with respect to any dispute or question or matter which is required or permitted under the said Act to be referred to the Tribunal for adjudication. The award of the Tribunal has been made final and conclusive and binding upon the parties concerned and the same cannot be questioned in any Court of law. No appeal lies against the said award though a revision is provided for under the proviso to Section 76. In this connection the following observations of the aforesaid decision of the Division Bench relied upon by the earned Counsel for the opposite parties are material: Under Section 4 of the Act provision is made for appointment of Commissioners and Additional or Assistant Commissioners of Waqfs for the purpose of survey of Waqfs properties and under Section 6 it is laid down that the Commissioner, after making such enquiries as he may consider necessary, must ascertain and determine various matters relating to each waqf. One of the matters to be determined is whether the waqf is one of those exempted from the application of the Act under Section 2. Two other matters which require determination are as to which particular properties are Waqf properties and whether the Waqf is a Shia Waqf or Sunni Waqf. This determination is to be reported to the Government by the Commissioner and is thereafter to be notified in the official Gazette. Section 8 of the Act lays down that on such notification being made if any dispute arises, whether a particular property is Waqf property or not or whether a Waqf is a Shia Waqf or Sunni Waqf the Board or the Mutwalli of the Waqf or any persons interested therein, can refer the dispute for adjudication to the Tribunal. It is significant to note that under Section 8(1), the disputes that can be referred to the Tribunal are limited only to two questions one question is whether a particular property is Waqf property or not and the second question is whether a Waqf is a Shia Waqf or Sunni Waqf. The further question whether the Waqf is one to which under Section 2 the provisions of the Act do or do not apply, is not one about which, if a dispute arises, a reference can be made to the Tribunal. It thus appears that the determination made by the Commissioner under Section 6 that a particular waqf is one of those exempted from the application of the Act or not has not been made subject-matter of a dispute to be referred and decided under Section 8. Apart from this point, under Section 6 a Commissioner is required to report on many other matters relating to each Waqf such as the nature and object of each Waqf, the gross income of the property comprised in each Waqf, the amount of revenue etc. payable and the expenses incurred in the realization of the income and the pay and other remuneration of the mutwalli of each Waqf. These are all matters which have to be determined but no dispute with regard to any such matter is referable under Section 8 to the Tribunal. The reference under Section 8 is confined to only two questions mentioned by us above. The intention of the legislature in these circumstances appears to be clear, that on these two matters the determination made by the Commissioner should have finality and not be open to challenge before any other Court except by means of the reference to the Tribunal under Section 8(1). This is clear from the provisions of Section 76 which lays down that the award of a Tribunal shall be final and conclusive and binding upon the parties concerned and the award shall have the force of decree and it shall neither be questioned nor appealed against in any Court of law, subject of course to the provision that a revision is provided against an award to the High Court. On matters other than those referable under Section 8, the Legislature, by omitting to provide for a reference, indicated that no finality is to be attached to those matters determined under Section 6. 18. In my opinion, the aforesaid observations are clear on the point that Section 8 is not an independent provision but is linked up with Section 6 of the said Act. In other words, the disputes which can be referred to the Tribunal under Section 8(1) are to be determined by the Commissioner under Section 6 out of several matters which are mentioned in the said section to be decided by the Commissioner.;