By Sri Y.SRINIVASA RAO, Principal Senior Civil Judge, Tirupati.——
TABLE OF CONTENTS
- Introduction
- The term ‘Jurisdiction’
- Jurisdictional fact
- Adjudicatory fact
- Maxim
- Preliminary Issue
- Civil Court jurisdiction – Principles
- Wakf – Jurisdiction
Introduction:-
Ubi jus, ibi remedium means where there is a right there is a remedy. (See also Pazhassi Raja Charitable Trust v. Union of India, (2010) 13 SCC 285; Sardar Associates v. Punjab & Sind Bank, (2009) 8 SCC 257; Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur, (2009) 5 SCC 162; Atma Linga Reddy v. Union of India, (2008) 7 SCC 788; Arunima Baruah v. Union of India, (2007) 6 SCC 120). The word “jurisdiction” has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act and therefore, in excess of its jurisdiction, Union of India v. Tarachand Gupta and Bros., (1971) 1 SCC 486.
Before discussing the meaning of ‘jurisdiction’, it is seminal to see the meaning of ‘Civil court’. The terms “tribunal”, “court” and the “civil court” have been used in CPC differently. All “courts” are “tribunals” but all “tribunals” are not “courts”. Similarly all “civil courts” are “courts” but all “courts” are not “civil courts.” Civil court is a body established by law for administration of justice. Different kinds of law exist constituting different kinds of courts. Which courts would come within the definition of the civil court has been laid down under CPC itself. Civil courts are constituted under statutes, like the Bengal, Agra and Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the civil courts are fixed in terms thereof. Jurisdiction to determine subject-matter of suit, however, emanates from Section 9 CPC. Civil courts contemplated under Section 9 CPC find mention in Sections 4 and 5 thereof. Some suits may lie before the Revenue Court, some suits may lie before the Presidency Small Cause Courts. CPC itself lays down that the Revenue Courts would not be courts subordinate to the High Court. The word “civil court” vis-à-vis a court must be construed having regard to the text and context of the statute, Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646.
The term ‘Jurisdiction‘:-
The expression “jurisdiction” or the power to determine is a verbal coat of many colours. In the case of a tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise, jurisdiction is a “legal shelter” — a power to bind despite a possible error in the decision, A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602: 1988 SCC (Cri) 372 — (Per Venkatachaliah, J.) .
Legal authority; extent of power; declaration of the law. Jurisdiction may be limited either locally, as that of a county court or personally, as where a court has a quorum or as to amount or as to the character of the questions to be determined. The word “jurisdiction” signifies the initial jurisdiction to take cognizance of a case. It refers to the stage at which proceedings are instituted in a court and not to the jurisdiction of the ordinary criminal court and the court-martial to decide the case on merits, Delhi Special Police Establishment v. S.K. Loraiya, (1972) 2 SCC 692: 1973 SCC (Cri) 1101.
The concept of jurisdiction of a court comprehends:
(i) pecuniary jurisdiction,
(ii) territorial jurisdiction and
(iii) jurisdiction of the subject-matter, Church of South India Trust Assn. v. Telugu Church Council, (1996) 2 SCC 520. 6. “Jurisdiction” means authority to decide, Ujjam Bai v. State of U.P., AIR 1962 SC 1621.
Inherent Power means the rule of inherent powers has its source in the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. An inherent power is not an omnibus for opening a Pandora’s box, that too for issues that are foreign to the main context. The invoking of the power has to be for a purpose that is connected to a proceeding and not for sprouting an altogether new issue. A power cannot exceed its own authority beyond its own creation. It is not that a person is remediless. On the contrary, the constitutional remedy of writs is available. Inherent powers can be exercised only to prevent the abuse of the process of the court and to secure the ends of justice, State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770: (2012) 4 SCC (Civ) 1034: AIR 2012 SC 364: 2012 Cri LJ 1001.
Jurisdiction means the authority or power to entertain, hear and decide a case and to do justice in the case and determine the controversy. In absence of jurisdiction the court has no power to hear and decide the matter and the order passed by it would be a nullity, Harpal Singh v. State of Punjab, (2007) 13 SCC 387: (2009) 1 SCC (Cri) 293.
The expression “jurisdiction” does not mean the power to do or order the act impugned, but generally the authority of the judicial officer to act in the matter, Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 1651, 1653: (1965) 2 Cri LJ 686. The word “jurisdiction” implies the court or tribunal with judicial power to hear and determine a cause and such tribunal cannot exist except by authority of law. Jurisdiction always emanates directly and immediately from the law; it is a power which nobody on whom the law has not conferred it can exercise. In other words, “jurisdiction” has reference to the power of the court or tribunal over the subject-matter, over the res or property in contest and to the authority of the court to render the judgment or decree it assumes to make, CIT v. Pearl Mech. Engg. & Foundry Works (P) Ltd., (2004) 4 SCC 597. “The word ‘jurisdiction’ is a verbal coat of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, namely, the entitlement ‘to enter upon the enquiry in question’.” (Para 15), P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548: AIR 2002 SC 2445: (2002) 1 KLJ 665.
Jurisdictional fact:-
Jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority, Shrisht Dhawan v. Shaw Bros., (1992) 1 SCC 534, Para 19. A “jurisdictional fact” is one on the existence of which depends the jurisdiction of a court, tribunal or an authority. If the jurisdictional fact does not exist, the court or tribunal cannot act. If an inferior court or tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying principle is that by erroneously assuming existence of the jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not possess, Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58: (2009) 1 SCC (L&S) 706.
Adjudicatory Fact:—
An “adjudicatory fact” is a “fact in issue” and can be determined by a court, tribunal or authority on “merits”, on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish “jurisdictional fact” and “fact in issue” or “adjudicatory fact”, Carona Ltd. v. Parvathy Swaminathan & Sons, (2007) 8 SCC 559.
Maxim:-
Jurisdictio est potestas de publico introducta, cum necessitate juris dicendi:- Jurisdiction is a power introduced for the public good, on account of the necessity of dispensing justice. [10 Coke, 73a].
Preliminary Issue:—
In Ramrameshwari Devi and others v. Nirmala Devi and others, while dealing with Order 14, Rule 2, observed that sub-rule (2) of Order 14 refers to the discretion given to the court where the court may try an issue relating to the jurisdiction of the court or the bar to the suit created by any law for the time being in force as a preliminary issue. See also. Satti Paradesi Samadhi & Pillayar Temple …, (2015) 5 SCC 674.
The controversy pertaining to the provisions contained in Order 14 Rule 2 had come up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon[2] wherein it has been ruled thus: –
“Under O 14, r 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.” Be it stated, the aforesaid pronouncement was made before the amendment of the Code of Civil Procedure in 1976.
In Ramesh D. Desai and others v. Bipin Vadilal Mehta and others, while dealing with the issue of limitation, the Court opined that a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. The Court further proceeded to state that a plea of limitation is a mixed question of fact and law. On a plain consideration of the language employed in sub-rule (2) of Order 14 it can be stated with certitude that when an issue requires an inquiry into facts it cannot be tried as a preliminary issue. In the said judgment the Court opined as follows: –
“13. Sub-rule (2) of Order 14 Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon and it was held as under: (SCR p. 421) “Under Order 14 Rule 2, Code of Civil Procedure where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the court; not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.” Though there has been a slight amendment in the language of Order 14 Rule 2 CPC by the amending Act, 1976 but the principle enunciated in the abovequoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue.”
Or. 7 R. 11 vis-à-vis Or. 14 R. 2 : 7 R. 11 : 14 R. 2 – Distinction between.See. Madiraju Venkata Ramana Raju v. Peddired …, (2018) 14 SCC 1.
Civil Court – Jurisdiction :- Section 9 of the Code of Civil Procedure, 1908 defines the jurisdiction of the civil courts. State of A.P. v. Pioneer Builders, (2006) 12 SCC 119 : AIR 2007 SC 113; Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551 : AIR 2007 SC 1247; Kailash v. Nanhku, (2005) 4 SCC 480 : AIR 2005 SC 2441; Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 : AIR 2003 SC 2588; N. Balaji v. Virendra Singh, (2004) 8 SCC 312; Chinnammal v. P. Arumugham, (1990) 1 SCC 513 : AIR 1990 SC 1828; CST v. Auriaya Chamber of Commerce, (1986) 3 SCC 50 : AIR 1986 SC 1556; Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46, 56 : AIR 1984 SC 1004; Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 : AIR 1978 SC 484; Babu Lal v. Hajari Lal Kishori Lal, (1982) 1 SCC 525 : AIR 1982 SC 818; Deena v. Union of India, (1983) 4 SCC 645 : AIR 1983 SC 1155; Jai Jai Ram Manohar Lal v. National Building Material Supply, (1969) 1 SCC 869 : AIR 1969 SC 1267. — State of A.P. v. Pioneer Builders, (2006) 12 SCC 119 : AIR 2007 SC 113; Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551 : AIR 2007 SC 1247; Kailash v. Nanhku, (2005) 4 SCC 480 : AIR 2005 SC 2441; Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 : AIR 2003 SC 2588; N. Balaji v. Virendra Singh, (2004) 8 SCC 312; Chinnammal v. P. Arumugham, (1990) 1 SCC 513 : AIR 1990 SC 1828; CST v. Auriaya Chamber of Commerce, (1986) 3 SCC 50 : AIR 1986 SC 1556; Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46, 56 : AIR 1984 SC 1004; Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 : AIR 1978 SC 484; Babu Lal v. Hajari Lal Kishori Lal, (1982) 1 SCC 525 : AIR 1982 SC 818; Deena v. Union of India, (1983) 4 SCC 645 : AIR 1983 SC 1155; Jai Jai Ram Manohar Lal v. National Building Material Supply, (1969) 1 SCC 869 : AIR 1969 SC 1267. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461; – Board of Muslim Wakfs v. Radha Kishan, (1979) 2 SCC 468 : AIR 1979 SC 289; CIT v. Ahmedbhai Umarbhai & Co., AIR 1950 SC 134 : 1950 SCR 335; Western India Theatres Ltd. v. Municipal Corpn., AIR 1959 SC 586. – Mohanlal Jain v. Sawai Man Singhji, AIR 1962 SC 73 : (1962) 1 SCR 702; Garikapati Veeraya v. N. Subbiah Choudhty, AIR 1957 SC 540 : 1957 SCR 488. – Mandvi Coop. Bank Ltd. v. Nimesh B. Thakore, (2010) 3 SCC 83; Arvind Kumar v. State of M.P., (2007) 12 SCC 681 : AIR 2007 SC 2674; Rajendra Kumar v. Kalyan, (2000) 8 SCC 99 : AIR 2000 SC 3335; Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636; Rattan Lal v. State of Punjab, AIR 1965 SC 444; Memon Abdul Karim Haji Tayab v. Custodian General, AIR 1964 SC 1256 : (1964) 6 SCR 837. – D. Boopalan v. Madras Metropolitan Water Supply and Severage Board, (2007) 12 SCC 569 : (2008) 2 SLJ 149. – Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24 : AIR 2001 SC 2472; Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : AIR 1994 SC 2623; State of Bombay v. Vishnu Ramchandra, AIR 1961 SC 307. – R.N. Jadi & Bros. v. Subhashchandra, (2007) 6 SCC 420 : AIR 2007 SC 2571; Sk. Salim Haji Abdul Khyumsab v. Kumar, (2006) 1 SCC 46 : AIR 2006 SC 396.
In Rajasthan SRTC v. Bal Mukund Bairwa, a three- Judge Bench of this Court observed “There is a presumption that a civil court has jurisdiction. Ouster of civil court’s jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.”
Principles:-
A party cannot confer jurisdiction on a tribunal, nor take away its jurisdiction by way of an objection. Where jurisdiction does not exist, no amount of consent, acquiescence or waiver can create it or confer it. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230 at p. 237 and Ledger v. Bull, (1887) ILR 9 All 191 at p. 203 (PC). This is particularly so in respect of inferior Courts as distinguished from the superior Courts. The law is also well settled that prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that theparticular matter is within the cognizance of the particular Court: (Halsbury’s Laws of England). Volume 9, page 349 cited with approval in Naresh v. State of Maharashtra, AIR 1967 SC 1 at p. 18.
In Halsbury’s Laws of England, Third Edition, Volume 11 page 59, the law on the jurisdiction of an inferior Tribunal is explained thus:—
“The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent (such as notice) or upon the existence of some particular fact. Such a fact is collateral to the actual matter which theinferior tribunal has to try, and the determination whether it exists or not is logically and temporally prior to the determination of the actual question which theinferior tribunal has to try. The inferior tribunal mustitself decide as to the collateral fact: when, at the inception of an inquiry by a tribunal of limited jurisdiction a challenge is made to its jurisdiction the tribunal has tomake up its mind whether it will act or not and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which thefurther exercise of their jurisdiction depends; but subject to that an inferior tribunal cannot by a wrong decision with regard to a collateral fact Rive itself a jurisdiction which it would not otherwise possess or deprive itself ofa jurisdiction which it otherwise would possess. If it purports to do so it may be restrained or compelled (as thecase may be) by an order of prohibition or mandamus, or its decision brought up by an order of certiorari and quashed.”
In K.S. Venkataraman v. State of Madras, AIR 1968 SC 1089 Subba Rao, J., (as he then was), whilst expressing majority view on be half of the Supreme Court, observed that an authority created by a statute cannot question vires of that statute or any of the provisions thereof where under it functions. It must act under the Act and not outside. This view was reiterated in Beharilal Shyam Sundar v. Sales Tax Officer, (1966) 60 ITR 260 (SC).
The well-settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil court’s jurisdiction is ousted.
If the Code of Civil Procedure, 1908 is silent regarding a particular matter; the court should decide the matter on the principles of equity, justice and good conscience. – See. Brij Narain Singh v. Adya Prasad. AIR 2008 SC 1553; see also Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51 : AIR 2005 SC 2392; South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648 : AIR 2003 SC 4482; Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : AIR 2003 SC 674; M.L. Subbaraya Setty v. M.L. Nagappa Setty, (2002) 4 SCC 743 : AIR 2002 SC 2066.
A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. Rules of procedure are intended to be a handmaid to the administration of justice.
Exclusion of civil court’s jurisdiction cannot be readily inferred. Such exclusion must either be explicitly expressed or clearly implied. See. Dewaji v. Ganpatlal, AIR 1969 SC 560; Sree Kandregula Srinivasa Jagannath Rao Pantulu Bahadur Garu v. State of A.P., (1969) 3 SCC 71.
Civil court can always entertain and decide the suit where fraud has been practised upon the court – S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1. See also.Dalip Singh v. State of U.P – (2010) 1 SCC (Civ) 324.
Point of jurisdiction of the civil court in the matter of refund of tax collected – Dhulabhai v. State of M.P., AIR 1969 SC 78.
Point of jurisdiction in the matter of Land Acquisition: – Comunidade of Bambolin v. Manguesh Betu Kankonkar, (2001) 2 Mah L J 160. ( Where the land of a real owner has been acquired, and possession of which was with another person, in such case, suit for title and ownership will have to be filed in civil court). (In case of the notice of acquisition is not properly served, Civil court has jurisdiction to decide the matter).
Distinction between DRT and a Civil Court:- Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646. See also. Indian Bank v. ABS Marine Products, (2006) 5 SCC 72. ()
Whether Civil Court has got jurisdiction at all in Industrial matters – Premier Automobiles Limited v. Kamalakar Shantharam Wadke, AIR 1975 S.C. 2238. It was held that if the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court. Curiously enough, in Rajasthan Road Transport Corporation Case reported in “1995 (II) LLJ 728, it was held that the justification of a strike or lockout or lay off can be worked out only through the machinery provided under the Industrial Disputes Act and therefore the Jurisdiction of the Civil Court is completely taken way.
Jurisdiction of ‘Commercial Courts‘ – See. Law Commission of India in its 253rd Report made specific recommendation to incorporate the ‘Case Management Hearing’ technique in the Commercial Courts Act. In Ramrameshwari Devi v. Nirmala Devi”, (2011) 8 SCC 249, the Supreme Court in Ramrameshwari Devi‘s case suggested several measures to eradicate delay in disposal of civil cases. it was held that ‘At the time of filing of the plaint, the trial Court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the Courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same [can] be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed ‘. See also. The Arbitration and Conciliation (Amendment) Act, 2015 S. 12(5)s. See also. Union of India v. Singh Builders Syndicate, (2009) 4 SCC 523.
Admnistrative Tribunals – Jurisdiction: under Article 323, 4(1) , the Parliament enacted the Administrative Tribunals Act, 1985. Article 323A(1) speaks for adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to the Public Service and posts in respect of the affairs of the Union or of any State, Local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the government and for matters connected therewith or incidental thereto. See also. the Administrative Tribunals (Amendment) Act, 1986. See also. Sections. 14(1), 15(1), 16. Sections 14(1) and 15(1) deal respectively with jurisdiction, power and authority of the CAT and SAT. Further, section 16 confers jurisdiction, power and authority of SAT on JAT. – See also. S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124, Durga Shankar Mehta v. Thakur Haghurai Singh, AIR 1954 SC 520, A.C. Companies v. P.N. Sharma, AIR 1965 SC 1595, and Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 188.
Wakf:—
Wakf means taking out something out of one’s ownership and passing it on to God’s ownership dedicating its usufruct — without regard to indigence or affluence, perpetually and with the intention of obtaining Divine pleasure — for persons and individuals or for institutions or mosques and graveyards or for other charitable purposes, Faqruddin v. Tajuddin, (2008) 8 SCC 12. Wakfs means tying up of property in ownership of God the Almighty and devotion of profits thereof for benefit of human beings whereafter right of wakif is extinguished and ownership is transferred to the Almighty. Even a non-Muslim can create a wakf for any purpose which is religious under Mohammedan Law. However, object of wakf must be lawful according to religious creed of the maker as well, Ramjas Foundation v. Union of India, (2010) 14 SCC 38: (2011) 4 SCC (Civ) 889. According to Mohammedan jurists, the term “wakf” literally means dedication or permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman law as religious, pious or charitable, Mohd. Khasim v. Mohd. Dastagir, (2006) 13 SCC 497. Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable, Section 2(1), Mussalman Wakf Validating Act, 1913.
Interpretation of Section 7 read with Section 85 of the Wakf Act, 1995:-
As per sub-section (1) of Section 7 of the Act, if a question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, it is the Tribunal which has to decide such a question and the decision of the Tribunal is made final. When such a question is covered under sub-section (1) of Section 7, then obviously the jurisdiction of the civil court stands excluded to decide such a question in view of specific bar contained in Section 85. It would be pertinent to mention that, as per sub-section (5) of Section 7, if a suit or proceeding is already pending in a civil court before the commencement of the Act in question, then such proceedings before the civil court would continue and the Tribunal would not have any jurisdiction.
On a conjoint reading of Section 7 and Section 85,the legal position is summed up as under:
In respect of the questions/disputes mentioned in sub-section (1) of Section 7, exclusive jurisdiction vests with the Tribunal, having jurisdiction in relation to such property.
Decision of the Tribunal thereon is made final.
The jurisdiction of the civil court is barred in respect of any dispute/question or other matter relating to any wakf, wakf property for other matter, which is required by or under this Act, to be determined by a Tribunal.
There is, however, an exception made under Section 7(5) viz. those matters which are already pending before the civil court, even if the subject-matter is covered under sub-section (1) of Section 6, the civil court would continue and the Tribunal shall not have the jurisdiction to determine those matters. See. Haryana Wakf Board v. Mahesh Kumar, (2014) 16 SCC 45; Bhanwar Lal v. Rajasthan Board of Muslim Wakf Bhanwar Lal v. Rajasthan Board of Muslim Wakf, 2014 16 SCC 51; namely, Sardar Khan v. Syed Najmul HasanSardar Khan v. Syed Najmul Hasan, 2007 10 SCC 727, Ramesh Gobindram (Dead) Through Lrs. v. Sugra Humayun Mirza Wakf. Ramesh Gobindram (Dead) Through Lrs. v. Sugra Humayun Mirza Wakf.. This view has been reaffirmed in Akkode Jumayath Palli Paripalana Committee v. P.V Ibrahim Haji Akkode Jumayath Palli Paripalana Committee v. P.V Ibrahim Haji, 2014 16 SCC 65.
Sardar Khan and Ors. vs. Syed Nazmul Hasan (Seth) and Ors.; 2007 (4) Scale 81; 2007 (10) SCC 727– In that case Civil Suit was filed by the plaintiffs (Respondents in the Supreme Court) in the year 1976 in the Court of Additional District Judge, Jaipur which was dismissed. The plaintiffs filed the appeal before the High Court taking the plea that by virtue of Section 85 of the Act, the Civil Court failed to have any jurisdiction in the matter and, therefore, judgment and decree passed by the learned Additional District Judge was without jurisdiction. This appeal was allowed accepting the contention of the Respondents. Challenging the order of the High Court, the appellants had filed the Special Leave Petition in which leave was granted and the appeal was heard by this Court. The Court took into consideration the provisions of Sections 6, 7 and 85 of the Act and concluded that the said Act will not be applicable to the pending suits or proceedings or appeals or revisions which had commenced prior to 1.1.1996 as provided in sub-section (5) of Section 7 of the Act and allowed the appeal holding that Civil Court will continue to have the jurisdiction in respect of the cases filed before coming into force Wakf Act, 1995. See also. Bhanwar Lal v. Rajasthan Board of Muslim, (2014) 16 SCC 51
In the case of Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr. (2010) 14 SCC 588. The subject matter of the dispute in that case related to the demarcation of the wakf property in two distinctive parts, one for wakf-al-al-aulad and the remaining portion for pious and religious purposes. The demarcation was challenged on the ground that it was not in consonance with the provisions of the Wakf Deed. The Court held that it is the Tribunal constituted under Section 83 of the Act which will have exclusive jurisdiction to deal with these questions in as much as these questions pertained to determination of disputes relating to wakf property and the jurisdiction of Civil Court was ousted.