AMINUL ISLAM Vs. BIJOYA PRAVA BARUA

JUDGEMENT

(1.) THE question which falls for consideration in this revision is whether the Ld. District Judge, Shillong is correct in holding that the civil suit being T. S. 14 (H) of 2005 filed by the respondents-plaintiffs, who are admittedly the tenants of a wakf property, for declaration, permanent injunction, etc. in respect of the portions of the wakf property occupied by then is not barred by Section 85 of the Wakf Act, 1995 ("the Act" for short ). The controversy arose on the following facts and circumstances. The original lessee of the suit property i. e. Ghulam Rahman Wakf Estate, namely, the late Kamal Kanta Barua died in the year 1966 whereupon the suit property devolved upon the father of the respondent No. 2 and husband of the respondent No. 1 as his legal heirs and again devolved upon the respondents jointly upon the death of late Kamal Kanta Barua. According to the respondents, the suit property occupied by them includes residential-cum-business accommodation, which they have been occupying with their family members for generations, and their accommodation was gutted by fire in the year 1974. With the full knowledge and consent of the defendant No. 3 (Deputy Commissioner, Shillong) the respondents are stated to have reconstructed the suit property at their own expenses, and have since then been paying rents to the petitioner-defendant No. 2. To cut short the narration, when the petitioner attempted to forcibly evict the respondents from the suit property, the latter instituted the suit along with Miscellaneous Case No. 14 (SH) of 2005, which was for ad-interim injunction. The petitioner not only contested the suit but also filed an application challenging the very maintainability of the suit contending that the suit was barred by Section 85 of the Act inasmuch as the dispute was one which arose out of wakf property, which could be decided only by the Tribunal constituted under the Act. After hearing the counsel for the petitioner, the Ld. Munsiff by the order dated 8. 2. 2007 dismissed the suit holding that the suit was barred by Section 85 of the Act.

(2.) AGGRIEVED by the dismissal of the suit, the respondents preferred R. F. A. No. 1 (H) of 2007 before the Ld. District Judge, Shillong, who by the impugned judgment and order allowed the appeal; set aside the order dated 8. 2. 2007 and remanded the suit to the trial Court for trial in accordance with law. According to the Ld. District Judge, as the provisions of the Act are silent about the forum for determination of a tenancy dispute or right, there was no reason as to why the Civil Court could be barred from deciding a dispute between a tenant and a landlord or vice versa. The Ld. District Judge reasoned that when in terms of the decision of this Court in Sri Bihari Lal Agarwalla and Anr. Vs. Tamizul Haque reported in (1988) 1 GLR 76, an eviction suit could be filed under the Rent Control Act before a Civil Court by a mutawalli as landlord, it would be illogical to hold that a tenant could not approach a Civil Court to protect his/her tenancy rights. This is how this revision came to be filed by the petitioner. Assailing the views taken by the Ld. District Judge, Mr. K. Khan, the learned counsel for the revision-petitioner contends that the Act being a complete and self-contained code, any dispute or all kinds of disputes involving a wakf property shall necessarily have to be relegated to the forum specially constituted for the same by the Act, namely, the Tribunal constituted under Section 83 of the Act. According to the learned counsel, the expression "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" appearing in Section 85 of the Act is all embracing and comprehensive so as to take within its sweep any dispute between a mutawalli and a tenant of a wakf property. It is the contention of the learned counsel for the petitioner that the respondents in this case, who are admittedly tenants of a wakf property, are covered by the term "any person interested therein" referred to in Section 6 of the Act. So read, submits the learned counsel, they are barred by Section 85 from instituting the suit before the Ld. Munsiff, and can only file an application before the Tribunal constituted under Section 83 for deciding the dispute concerning the tenancy rights raised by them. It is thus contended by the learned counsel for the petitioner that the Ld. Munsiff was perfectly right in holding that he had no jurisdiction to entertain the suit and conversely, the Ld. District Judge grossly erred in law in upsetting the decision of the Ld. Munsiff, which is liable to be interfered with by this Court. Strong reliance is placed by the learned for the petitioner upon the following decisions: (i) Pookoya Haji Vs. Cheriyakoya, 2003 (4) CCC 13 (Ker) (DB); (ii) Salam Khan Vs. Tamil Nadu Wakf Board, Chennai and Ors. , 2005 (3) CCC 516 (ad) (DB), to buttress his submissions.

(3.) ON the other hand, Mr. R. P. Sharma, the learned counsel for the respondents-plaintiffs, submits that the impugned judgment is perfectly in order and does not call for interference. He contends that the respondents are the tenants of the disputed wakf property, and cannot by any stretch of imagination be termed as persons interested in a wakf or wakf property or "any other persons aggrieved by an order made under the Act, or rules made thereunder". In other words, his contention is that the tenancy dispute raised by the respondents before the Ld. Munsiff is not a dispute, question or other matter relating to any wakf, wakf property or other matter which was required by or under the Act to be determined by the Tribunal. It is further contended by the learned counsel that exclusion of Civil Court's jurisdiction to decide a dispute cannot be readily inferred and that examination of the scheme of the Act unambiguously indicates that the Tribunal constituted under the Act has not been expressly or by necessary implication conferred the jurisdiction to decide any dispute beyond what are specifically mentioned therein, namely, whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia Wakf or Sunni Wakf. Thus, according to the learned counsel, the Tribunal constituted under the Act indisputably does not have any jurisdiction to decide a tenancy dispute between the petitioner and the respondents, and the only forum which can decide such dispute is obviously a Civil Court. It is thus the contention of the learned counsel that the respondents cannot come within the sweep of the term "any person interested therein" mentioned in Section 6 or 7 of the Act. In support of his contention, the learned counsel for the respondents takes me to the decision of the Apex Court in Abdul Rais Vs. M. P. Wakf Board, (2005) 1 SCC 741.