A B P HAJI Vs. P CHERIYAKOYA

JUDGEMENT

(1.) We are in these cases concerned with the jurisdiction and powers of the Wakf Tribunals constituted in the State of Kerala by the Wakf Act, 1995. A learned single Judge of this Court, C.S. Rajan, J. in Pookoya Haji v. Cheriyakoya, (1999) 1 Ker LT 794 : (AIR 1999 Kerala 289) took the view that the Wakf Tribunal has been constituted by the Government under Section 83(1) of the Wakf Act so as to decide any dispute, question or other matter relating to a Wakf or Wakf property. Learned Judge held under Section 83(2) of the Act any Mutawalli or any other person aggrieved by an order made under the Wakf Act or Rules may make an application to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. Judgment of the learned single Judge, C.S. Rajan, J. is appealed against in W.A. 2273/99. P.R. Raman, J. another learned Judge of this Court in Abdul Rahiman Musaliar v. Muhammed Sahib (2002) 3 Ker LT 742 : (AIR 2003 Kerala 84) while interpreting Sections 83 and 85 of Wakf Act took the view that only those matters which are required by or under the Wakf Act to be determined by a Tribunal, the bar under Section 85 would apply and for the rest of the matter civil Court's jurisdiction is not ousted. In view of the apparent conflict between the two decisions referred to above these matters have been placed before us on a reference made by Padmanabhan Nair, J.

(2.) Large number of cases are now pending before the Wakf Tribunals and also before the Civil Courts for determination with regard to the nature of the disputes to be resolved by the Tribunals or by the civil Courts. In fact a direction was given in the administrative side of the High Court as per O.M. No. D3/B1/49951/97, dated 16-3-2001 to the District Judges of Manjeri, Kozhikode, Kalpetta, Thalassery and Kasaragod to take steps to transfer the cases under the provisions of the Wakf Act pending before their respective districts to the Wakf Tribunal, Kozhikode. It is, therefore, necessary to resolve the apparent conflict between the two decisions for the proper disposal of the cases pending before the civil Courts as well as before the Wakf Tribunals.

(3.) The Wakf Act, 1995 (Act 43 of 1995) was enacted by the Parliament and was brought into force throughout the country except the State of Jammu and Kashmir with effect from 1-1-1996. It repealed the Wakf Act, 1954 and the Wakf (Amendment) Act, 1984. One of the important changes made in the Wakf Act, 1995 was the constitution of the Wakf Tribunal for resolution of disputes relating to Wakf and Wakf property and such other matters which are required by the Act to be resolved by the Tribunal. Though an amendment was brought in to provide for Tribunal under the Wakf (Amendment) Act, 1984 the same was not enforced. The entire scheme for resolution of Wakf litigations by Tribunals has been provided under Sections 83 to 95 of the Act.