Holding

The Wakf Act, 1995 does not apply to suits, appeals, revisions or other proceedings instituted before 1 January 1996; therefore, the Wakf Tribunal lacks jurisdiction and the matter must be decided by the civil court.

Summary

The Supreme Court examined whether the Wakf Act, 1995 barred civil courts from hearing a suit and its appeal that were filed before the Act came into force on 1 January 1996. The appellant Sardar Khan had filed a suit in 1976, which was dismissed in 1996, and the respondents appealed to the High Court, invoking Section 85 of the Act to claim that the civil court lost jurisdiction. The Court held that while Section 85 bars civil court jurisdiction for matters that should be decided by the Wakf Tribunal, Section 7(5) expressly excludes any suit, appeal, revision or proceeding that was instituted before the Act’s commencement. Consequently, the Wakf Tribunal had no jurisdiction over the pending suit and appeal, and the matter must be decided by the High Court under ordinary law. The Supreme Court set aside the High Court Single Judge’s order directing the parties to the Wakf Tribunal and remitted the appeal back to the High Court for disposal. The appeal was therefore disposed of.

Issues considered

Does Section 85 of the Wakf Act, 1995 bar civil courts from hearing suits and appeals pending before the Act’s commencement?
Does Section 7(5) of the Wakf Act, 1995 create an exception for pending suits, appeals, revisions, or applications instituted before 1 January 1996?
Whether the Wakf Tribunal has jurisdiction to decide the appeal arising from a suit filed prior to the Act’s commencement.

Legislation cited

Wakf Act, 1995s. 6, s. 7(5), s. 83, s. 85

Subjects

Wakf ActCivil court jurisdictionPending suitRetrospective applicationWakf TribunalSection 85Section 7(5)

Judgment

A SARDAR KHAN AND ORS.
1(

SYED NAJMUL HASAN (SETH) AND ORS.
f .

FEBRUARY 28, 2007

B [A.K. MATHUR AND TARUN CHATTERJEE, JJ.]

Wakf Act, 1995:

S. 7(5) read with ss. 6 and 85-Jurisdiction of civil court-Suit filed
C in civil court before coming into force of the Act-Judgment delivered by
trial court and appeal filed before High Court after coming into force of the
Act-Held, on a co1yoint reading of ss. 7(5) and 85, result would be that the
Act will not be applicable to the pending suits, proceedings, appeals or
revisions which have commenced prior to 1. 1.1996, i.e., coming into force of
D the Act-Tribunal will have no jurisdiction to decide the suit or the appeal
arising therefrom instituted or commenced in a civil court under sub-s. (/)
of s. 6 before the commencement of the Act-Matter remitted to High Court
for deciding the appeal in accordance with law.

Syed lnamul Haq Shah v. State of Rajasthan AIR (2001) Raj. 19,
E overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1107 of2007.

From the Judgment and Order dated 23.5.2005 of the High Court of
Judicature for Rajasthan at Jaipur Bench, Jaipur in S.B.C.F.R.A. No. 64/1996.
F
H.L. Tiku, Santosh Paul, Kavin Mohan, M.J. Paul, C.K. Sasi for the
Appellants.

Sushi! Kumar Jain, Puneet Jain, Christi Jain, H.D. Thanvi, Sarad Singhania,
Pratibha Jain for the Respondents.
G
The Order of the Court was delivered

I. Leave granted.

2. Heard learned counsel for the parties.
H 436
SARDAR KHAN v. SYED NAJMUL HASAN (SETH) 437

3. This appeal is directed against the order passed by learned Single A
Judge of the High Court of Rajasthan, Jaipur Bench, dated 23.5.2005 whereby
the learned Single Judge had set aside the judgment and decree passed by
the Addi. District & Session Judge-VI, Jaipur in Civil Suit No. 29/95 (271176)
dated 23.1.1996 and held that parties shall approach the Wakf Tribunal for
further relief in the matte~.
B
4. The brief facts which are necessary for the disposal of the Appeal
are that a suit being Civil Suit No. 29/95 (271/76) was filed by the Plaintiffs
(Respondents-herein) in the Court of Addi. District & Session Judge-VI,
~ J Jaipur, which was dismissed.

5. Aggrieved by the aforesaid Judgment dismissing the suit, an appeal C
was filed by the Plaintiffs (Respondents-herein) before the High Court taking
the plea that by virtue of Section 85 of The Wakf Act, 1995 (hereinafter
referred to as "The Act"), the Civil Court ceased to have any jurisdiction in
the matter, and therefore, the judgment and decree passed by the Addi.
District Judge, Jaipur was without jurisdiction. D
6. In this connection the learned Single Judge, relying upon a decision
of the learned Single Judge of the same High Court in the case of Syed fnamul
JA Hag Shah v. State of Rajasthan, reported in AIR (2001) Rajasthan 19, allowed
the appeal and set aside the order of the Addi. District Judge, Jaipur and
directed the parties to appear before Wakf Tribunal. E
7. Aggrieved against this order, the Defendants (Appellants-herein)
have come in appeal by way of special leave petition.

8. Learned counsel for the Appellants has invited our attention to sub-
section (5) of Section 7 and submitted that the attention of the learned Singie F
Judge was not invited to sub-section (5) of Section 7 of The Wakf Act, 1995.
It was submitted that learned Single Judge decided the matter on the basis
of Section 85 of the Act de hors sub-section (5) of Section 7 of the Act.
Section 85 of the Act reads as under:

"85. Bar of jurisdiction of Civil Courts.- No suit or other legal G
proceeding shall lie in any Civil Court in respect of any dispute,
question or other matter relating to any wakf, wakf property or other
....,. matter which is required by or under this Act to be determined by a
Tribunal."
H
438 SUPREME COURT REPORTS [2007] 3 S.C.R.

A Learned counsel further submitted that the learned Single Judge has wrongly
relied upon the judgment in Syed lnamul Hag Shah's case (supra) and set ) _..
aside the judgment and decree passed by the Addi. District Judge, Jaipur,
because in this case also learned Single Judge did not consider sub-section

B
(5) of Section 7 and decided the matter solely on the basis of Section 85 of
the Act. Hence, the impugned decision given by learned Single Judge is not
correct and not in accordance with Section 7(5) read with Section 85 of the
-
Act.

9. Learned counsel for the Respondents has supported the aforesaid
judgment.
c I0. It is relevant to mention here that the Wakf Act, 1995 came into force
with effect from I. I. 1996. Section 6 of the Wakf Act, 1995 relates to the
dispute regarding wakfs property. Section 6 of the Act reads as under:

"6. Disputes regarding wakfs-(1) If any question arises whether a
particular property specified as wakf property in the list of wakfs is
D
wakf property or not or 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 Tribunal for the
decision of the question and the decision of the Tribunal in respect "-
of such mattt:r shall be final:
E
Provided that no such suit shall be entertained by the Tribunal after
the expiry of one year from the date of the publication of the list of
wakfs.

Explanation.·· For the purposes of this section and section 7, the
F expression "any person interested therein", shall, in relation to any
property specified as wakf property in the list of wakfs published after
the commenc:ement of this Act, shall include also every person who,
though not interested in the wakf concerned, is interested in such
....
property and to whom a reasonable opportunity had been afforded to
represent his case by notice served on him in that behalf during the
G course of the relevant inquiry under section 4.

(2) Notwithstanding anything contained in sub-section (I), no
proceeding under this Act in respect of any wakf shall be stayed by
reason only of the pendency of any such suit or of any appeal or
other proceeding arising out of such suit.
H
SARDAR KHAN v. SYED NAJMUL HASAN (SETH) 439
(3) The Survey Commissioner shall not be made a party to any suit A
under sub-section ( 1) and no suit, prosecution or other legal proceeding
shall lie against him in respect of anything which is in good faith done
or intended to be done in pursuance of this Act or any rules made
thereunder.

(4) The list of wakfs shall, unless it is modified in pursuance of a B
decision or the Tribunal under sub-section ( 1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or
- I. other legal proceeding the shall be instituted or commenced in a Court
in that State in relation to any question referred to in sub-section(l)."
c
From a perusal of the afore-quoted Section there is no ambiguity that the
intention was that from 1.1.1996 no suit or other legal proceeding~ relating to
the wakf property shall be instituted in any Civil Court.

11. At the same time sub-section (5) of Section 7 also lays down that
it will not effect any pending suit or appeal. Section 7 States the powers of D
the Tribunal to determine disputes regarding wakfs. Section 7 of the Act reads
as under:-

"7. Power of Tribunal to determine dispute regarding wakfs.- (I) If,
after the commencement of this Act, any question arises, whether a
particular property specified as wakf property in a list of wakfs in wakf E
property or not, or whether a wakf specified in such list is a Shia wakf
or a Sunni wakf, the Board or the mutawalli of the wakf, or any person
interested therein, may apply to the Tribunal having jurisdiction in
relation to such property, for the decision of the question and the
decision of the Tribunal thereon shall be final:
F
Provided that-

(a) in the case of the list ofwakfs relating to any part of the State and
published after the commencement of this Act no such application
shall be entertained after the expiry of one year from the date of
publication of the list of wakfs; and G
(b) in the case of the list of wakfs realting to any part of the state and
published at any time within a period of one year immdiately preceding
the commencement of this Act, such an application may be entertained
by Tribunal within the period of one year from such commencement: H
440 SUPREME COURT REPORTS [2007) 3 S.C.R.

A Provided further that where any such question has been heard
and finally decided by a Civil Court in a suit instituted before such } ~
commencement, the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reason of the
provisions of sub-section (5), no proceeding under this section in
B respect of any wakf shall be stayed by any Court, Tribunal or other
authority by reason only of the pendency of any suit, application or
appeal or other proceeding arising out of any such suit, application,
appeal or other proceeding.
)·
(3) the Chief Executive Officer shall not be made a party to any
c application under sub-section (I).

(4) The list of wakfs and where any such list is modified in pursuance
of a decision of the Tribunal under sub-section (I), the list as so
modified, shall be final.

D (5) The Tribunal shall not have jurisdiction to determine any matter
which is the subject-matter of any suit or proceeding instituted or
commenced in a Civil Court under sub-section (I) of Section 6, before
the commencement of this Act or which is the subject-matter of any
appeal from the decree passed before such commencement in any
such suit or proceeding or of any application for revision or review
E arising out of such suit, proceeding or appeal, as the case may be.

12. In exercise of power under Section 83 of the Act, the wakfTribunal
was constituted on 23.2.1997. By virtue of sub-section (5) of Section 7, it
clearly transpires that the Tribunal shall not have jurisdiction to determine
any matter which is the subject-matter of any suit or proceeding instituted or
F commenced in a Civil Court under sub-section (I) of Section 6, before the
commencement of this Act, i.e., if any suit has been instituted in any Civil
Court prior to coming into force of The Wakf Act, 1995, then the Tribunal will •• "
have no jurisdiction to decide such matter and it will be continued and
concluded as if Act has not come into force.
G
13. Now coming to the facts of the present case, it is an admitted fact
that suit was filed on 19.12.1976 before Addi. District Judge, Jaipur and
arguments were heard and judgment was received on 16.12.1995 and the ,-
judgment was delivered on 23.12.1996 against which the appeal was filed
before the High Court on 1.3.1996. Therefore, from these facts it is clear that
H the suit was pending since 19.12.1976, i.e., prior to the commencement of the
SARDAR KHAN v. SYED NAJMUL HASAN (SETH) 441

Act, i.e., 1.1.1996. Therefore, by virtue of sub-section (5) of Section 7, the A
;,_ \ Tribunal will have no jurisdiction to decide the suit or the appeal arising from
that suit. In the present case, the appeal which was filed by the Respondents
(herein) arises out of the Judgment and decree passed by the Addi. Distict
Judge, Jaipur on 23.1.1996 in a suit filed on 19.12.1976. Therefore, the appeal
which was filed before the High Court against the judgment and decree
passed on 23.1.1996 by the Addi. District Judge, Jaipur, will not be governed B
by this Act. By sub-section (5) of Section 7, a special provision has been
made that on pending suit or proceeding or appeal or review or revision, the
Act will not be applicable. In the case of Syed Jnamul Hag Shah (supra), the
- J
learned Single Judge only considered the effect of Section 85 but did not
examine the effect of sub-section (5) of Section 7 and, on the basis of section c
85, it was held that all the proceedings which were pending before the Civil
Court, the Civil Court will have no jurisdiction. With great respect, perhaps
the attention of the learned Single Judge was not drawn to sub-section (5)
of Section 7 which specifically provides an exception that this will not be
applicable to the pending suits, appeals and revisions. It has purpose behind
it that when Act was made prospective, how can it operate retrospectively, D
therefore, all pending matters were taken out from purview of this Act.

)'-. 14. On a conjoint reading of sub-section (5) of Section 7 and Section
85, the result would be that the Act will not be applicable to the pending suits
or proceedings or appeals or revisions which have commenced prior to 1.1.1996,
E
i.e., coming into force of the Wakf Act, 1995. Therefore, the view taken by
the learned Single Judge was not correct in the case of Syed Jnamul Hag
Shah (supra). Hence, in view of the above discussion, we are of the view that
the learned Single Judge has gone wrong in relying on the decision rendered
by the Single Judge in the case of Syed Jnamul Hag Shah (supra).
Consequently, the impugned order passed by the learned Single Judge is set F
aside and the matter is remitted back to the High Court for deciding the appeal
• 'i in accordance with law, expeditiously .

15. The appeal stands disposed of accordingly.

16. There will be no order as to costs. G
R.P. Appeal disposed of.