Saturday, 26 November 2016

Whether civil court can grant interim relief as per S 9 of arbitration in dispute related to wakf?

We, therefore, hold that Section 85 has not created an absolute bar
for the Civil Court for determination of a dispute of like nature as has
been agitated in the Section 9 application before the learned Court below.
We hold that the learned District Judge is competent to entertain an
application under Section 9 of the aforesaid Act of 1996.
Arbitration and Conciliation Act, 1996 has been enacted after the
Waqf Act, 1995. Therefore, while enacting the said Act of 1996
Legislature was quite aware of the consequences of the said Act and has
not intentionally kept any provision in the Act of 1996 creating any
exception to the jurisdiction of arbitration in respect of any matter arising
out of a valid agreement related to a waqf property. We, therefore, hold
that the learned Court below has got jurisdiction to entertain an
application under Section 9 of the said Act of 1996. Since the question ofjurisdiction and the bar created under Section 85 of the Waqf Act has
been taken as a specific objection in the written objection of the
respondent, the learned Court below ought to have dealt with the
question before rejection of the Section 9 application.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
 INDIRA BANERJEE
 SAHIDULLAH MUNSHI
F.M.A.T. No.195 of 2016
With
C.A.N.2132 of 2016
SAYED HASSAN ALI

V
MAHAMMED
SAHIDUL ISLAM

Judgment on : August 4, 2016.
Citation:AIR 2016 Cal 351

 This appeal has been filed by the appellant who was petitioner
before the learned Court below in Misc. Case No.422/15 (R-667/15). The
said Misc. Case arose out of an application under Section 9 of the
Arbitration and Conciliation Act, 1996, hereinafter to be referred as the
said Act of 1996, praying for interim relief by way of an order of
temporary injunction till the disposal of the suit against the respondent
from making addition or alterations and/or from changing the nature
and character of the suit property and from transferring and/or parting
with possession of the suit property described in the Schedule mentioned
in the said application under Section 9 of the said Act of 1996 and also
from creating any third party interest by making any clandestine deal. In
the said Misc. Case the respondents herein entered appearance and filed
written objection.
By the order impugned being Order No.3 dated 2nd January, 2016
the learned Court below, after a contested hearing, rejected the
appellant’s application under Section 9 of the said Act of 1996.
In the appeal the appellant has filed an application for injunction
and/or appropriate orders. The respondents entered appearance and
contested the matter. In course of hearing parties agreed for hearing and
disposal of the appeal along with the application for injunction.
Accordingly, the appeal and injunction application were taken uptogether for hearing. Parties agreed to file their respective written notes of
submissions and so filed by them have been taken on record.
In rejecting the appellant’s application under Section 9 of the
aforesaid Act of 1996 the learned Court below has held that the appellant
executed a Memorandum of Understanding, in short, MOU with the
respondent for construction of some buildings including a Mosque jointly
with the respondent and such MOU can be termed to be a Partnership
Deed where both of them as partners could share their profit and loss
equally. The respondent has admitted that the appellant spent some
money for construction of the Mosque. The respondent has, however,
denied the genuineness of some of the vouchers submitted by the
appellant in support of his claim for expenditure of more than
Rs.25,00,000/- (Rupees Twenty Five Lakh) only. Learned Court below
observed that the contentions raised by the appellant regarding violation
of the terms of the MOU and/or recession of the arbitration agreement
unilaterally, all these would be decided by an Arbitrator particularly
when it appeared that the respondent had already requested the
petitioner to submit accounts and statement of expenditure so that the
same could be settled and, therefore, the prayer of the appellant for
passing an order of injunction restraining the respondent from handing
over the property to the mutawalli would not be passed because such
order would directly affect the mutawalli of a waqf estate, who is not a
party in the Misc. Case. According to the learned Court below, no order of
injunction could be passed upon any third party nor can any such orderbe passed which may, ultimately, affect a third party. Learned Court
below held that the petitioner would at best claim for damages from the
respondent for his alleged violation of terms and conditions of the MOU
dated 7th December, 2013. Upon going through the written objection filed
by the respondent in the said Misc. Case pending before the learned
Court below it appears that among other grounds for rejection of the
appellant’s Section 9 application the respondent urged in paragraph 6
that the Board of Waqf is a necessary party to the proceeding and further
that the petition under Section 9 is not maintainable in view of the bar
created under Section 85 of the Waqf Act, 1995 and in continuation of
such statements in paragraph 16 of the said written objection it was
reiterated that the learned Court below had no jurisdiction to try the
proceeding.
However, on perusal of the order impugned we find that the learned
Court below has not dealt with such questions either about the
jurisdiction and/or about the bar under Section 85 of the Waqf Act, or
about the impleadment of the ‘Board’ as a necessary party in the
proceeding in question. It is profitable to quote the said objections in the
respective paragraphs of the written objection –
“2) That the said petition is not maintainable as the same is
barred under Section 85 of the Wakf Act, 1995.
6) That as the instant proceeding relates to wakf-e-lillah property,
the Board of Wakf, Government of West Bengal is necessary
party to this proceeding.16) … The Ld. Court has no jurisdiction to try the instant
proceeding. …”
In the above context, we shall first deal with the question of
maintainability of an application under Section 9 of the aforesaid Act of
1996 before the learned District Judge and the bar under Section 85 of
the Waqf Act, 1995. Section 85 of the Waqf Act, 1995 creates a bar of
jurisdiction of Civil Courts. The said provision is quoted below :
“85. Bar of jurisdiction of Civil Courts – No suit or other legal
proceeding shall lie in any [civil court, revenue court and any other
authority] in respect of any dispute, question or other matter relating
to any [waqf], [waqf] property or other matter which is required by or
under this Act to be determined by a Tribunal.”
The language of Section 85 is very clear. It says that any dispute,
question or other matter relating to any waqf or waqf property or other
matter which is required by or under the said Act to be determined
by a Tribunal within the meaning of Section 8 of the said Act, shall
not be decided by any Civil Court.
Section 83 has made provision for constitution of Tribunals. The
said provision is as follows :
“83. Constitution of Tribunals, etc. – [(1) The State Government
shall, by notification in the Official Gazette, constitute as may
Tribunals as it may think fit, for the determination of any dispute,question or other matter relating to a waqf or waqf property, eviction
of a tenant or determination of rights and obligations of the lessor
and the lessee of such property, under this Act and define the local
limits and jurisdiction of such Tribunals.]
(2) Any mutawalli person interested in a [waqf] or any other
person aggrieved by an order made under this Act, or rules made
thereunder, may make an application within the time specified in
this Act or where no such time has been specified, within such time
as may be prescribed, to the Tribunal for the determination of any
dispute, question or other matter relating to the [waqf].”
 Sub-Section (1) of Section 83 has, therefore, been created for
certain specified purpose, namely, determination of any dispute, question
or other matter relating to a waqf or waqf property and eviction of tenant
or determination of rights and obligations of the lessor and the lessee of
such property under the said Act. What kind of disputes are to be
decided by the Tribunal, have been specified in various provisions under
the Act and those apart, Tribunal is also required to hear out applications
at the instance of a mutawalli, person interested in a waqf or any other
person if they feel aggrieved by an order made under the said Act or
Rules made thereunder subject to limitation if prescribed by the Act
itself.
Few such instances where Act provides for specified proceeding are
as follows :(i) Sections 6 and 7 – Disputes regarding properties specified as
waqf property in the list of waqf published by the Board or
whether a waqf specified in the list is a ‘Shia’ waqf or ‘Sunni’
waqf. On going through the Sections it is evident that Section
6 prescribes for a suit whereas Section 7 prescribes for an
application before Tribunal. There is a distinctive feature
between Section 6 and Section 7. The distinction is notable.
Section 6 indicates that any person can challenge a list of
waqf within a period of one year by instituting a suit in a
Tribunal whether the property is a waqf property or not or
whether the property is ‘Shia’ waqf or ‘Sunni’ waqf. The list of
auqaf referred to in Section 6 indicates for a list of auqaf not
only for the one published for the first time after enactment
of the 1995 Act, but includes a list of auqaf even existing
prior to the commencement of the Act of 1995 and a suit is
maintainable in Tribunal to challenge only those lists but for
the second or subsequent list of auqaf only application has
been prescribed under Second Proviso to Section 6 of the Act,
as added by way of amendment under Act 27 of 2013. List of
auqaf referred to in Section 7 relates to a list published
under Section 5 of the Waqf Act, 1995. Since the action
proposed to be challenged under Section 7 is an action in
pursuance of the provisions of the Act itself, provision has
been made to challenge the same by way of an application to
the Tribunal and nowhere else and not by anyother proceeding. In an identical situation in one place, i.e.,
in Section 6 the Act says about filing of a suit before the
Tribunal whereas in case of Section 7 the Legislature has
consciously made the provision for filing of an application.
Thing is more clarified by the Second Proviso under Section 6
which prohibits filing of suit before the Tribunal in respect of
properties notified in second or subsequent survey pursuant
to provisions contained in Sub-Section (6) of Section 4. It has
also created a bar under Sub-Section (5) of Section 7 that
Tribunal shall not have any jurisdiction to determine any
matter which is the subject-matter of any suit or proceeding
instituted or commenced under Wakf Act, 1954 in a Civil
Court under Sub-Section (1) of Section 6 before the
commencement of the Waqf Act or which is the subjectmatter
of any appeal from the decree passed before such
commencement in any such suit or proceeding or of any
application for decision or review within such suit,
proceeding or appeal, as the case may be.
(ii) Section 32(3) – Suit in a Tribunal to set aside the settlement
of any scheme of management framed by or directions issued
by the Board by any person interested in the wakf or affected
by such settlement or direction. Here again a suit has been
prescribed. Therefore, no such suit would be maintainable by
Civil Court.(iii) Section 33(4) – Appeal to the Tribunal by a mutawalli or
other person aggrieved by an order of the Chief Executive
Officer for recovery of any amount or property.
(iv) Section 35. Application to the Tribunal by the Chief
Executive Officer for conditional attachment of the property
of the mutawalli or any other person against whom an order
for payment is made.
(v) Section 38(7) – An appeal to the Tribunal by any Executive
Officer or a member of his staff who is aggrieved by any order
of removal or dismissal made against him.
(vi) Section 39(3) – An application to the Tribunal by the Board
for recovery of possession of any building or place which was
being used for any religious purpose or instruction or for
charity and which has ceased to be used for that purpose.
(vii) Section 40(2) – Appeal to the Tribunal against the decision of
the Board on the question whether a particular property is
wakf property or not or whether a wakf is a Sunni wakf or a
Shia wakf.
(viii) Section 40(4) – Appeal to the Tribunal against the order of
the Board calling upon any trust or society to register any
property under this Act.
(ix) Section 48(2) – Application to the Tribunal against the order
of the Board for recovery of any amount from the mutawalli
or any person on the basis of the auditor’s report.(x) Section 51 – Since nothing has been prescribed under this
Section, a person aggrieved by the recommendation for
development of wakf property can take recourse to Section
83(2) of the Waqf Act, 1995 against the decision of the Board.
However, so far the 3rd Proviso relating to acquisition of wakf
property general law remedy may be available.
(xi) Section 51(5) – Appeal to the Tribunal by the mutawalli or
any other person having any interest in the wakf against the
order of the Board in respect of utilization or investment of
the amount realized by sale, exchange, or mortgage of wakf
property.
(xii) Section 52(4) – An appeal to the Tribunal by any person
aggrieved by the order of the Collector for recovery of
immovable property improperly alienated on the requisition
sent by the Board.
(xiii) Section 54 – Against final order of the Tribunal remedy will
lie before the High Court under Section 83(9) of the Waqf Act,
1995.
(xiv) Section 64(4) – An appeal to the Tribunal by a mutawalli who
is aggrieved by the order of the Board for his removal under
section 64(1)(c) to (j).
(xv) Section 67(4) – An appeal to the Tribunal by any person
aggrieved by the order of the Board superseding the
committee of management.(xvi) Section 67(6) – Proviso (2) An appeal to the Tribunal by a
Member of the committee of management who is aggrieved by
an order of the Board for his removal.
(xvii) Section 69(3) – Proviso (1) An appeal to the Tribunal by any
person aggrieved by an order of the Board framing a scheme
for the administration of a wakf.
(xviii) Section 73(3) – An appeal to the Tribunal by any Bank or
other person who is ordered by the Chief Executive Officer to
make any payment out of any amount standing to the credit
of any wakf.
(xix) Section 83(2) – An application to the Tribunal by any
mutawalli or person interested in a wakf or any other person
aggrieved by any order made under this Act or rules made
thereunder.
(xx) Section 94(1) – Application to the Tribunal for an order
directing the mutawalli to pay to the Board or to any person
authorized by the Board the amount necessary for purpose of
any act which the mutawalli fails to perform.
We find that besides the aforesaid specified provisions, Tribunal
cannot invoke jurisdiction at all. Tribunal is a creature of Statute and it
has to act within the periphery of the provisions of the Act. It is the
cardinal principle of law that authority must act according to the
requirement of Statute. As held by this Court in the case of Purna
Chowdhury – Vs. – Jadavpur University & Ors. reported in 2003(4)CHN 612, if Statute requires a thing to be done in a particular manner, it
is to be done in that manner only or else not at all.
On a reading from Section 83 and Section 85 we, however, find that
Act bars only those suits or matters which are specifically to be
determined only by the Tribunal and no other Court but, so far the other
matters required other than what to be decided under Sections 83 and 85
the Act cannot have an extended area. Thus in those field Civil Court’s
Jurisdiction under Section 9 of the Code of Civil Procedure cannot be
curtailed.
We further notice that Waqf Act, 1995 itself has prescribed for at
least two suits which are to be instituted before the Civil Court. SubSection
(6) of Section 68 of the Waqf Act, 1995 provides for filing of a suit
in a competent Civil Court by any person aggrieved by any order made
under Section 68 for the purpose of establishing that he has right, title
and interest in the properties specified in the order which might have
been passed by any Magistrate under Sub-Section (2) of Section 68.
Similarly, Section 86, is a Section provided in the Act immediately after
Section 85, which creates a bar of jurisdiction of Civil Court, provides for
filing of a suit before Civil Court by a party no other than the Board of
Waqf itself. Such Civil Suit can be instituted by the Board of Auqaf to set
aside, sell of any immovable property, which is Waqf property, in
execution of a decree or order of a Civil Court and in other cases as
referred to under Sub-Section (a) of Section 86. Sub-Section (b)of Section 86 refers to filing of a suit by a mutawalli to recover possession
of immovable property, which is waqf property and which has been
transferred by a previous mutawalli or by any other person, whether for
valuable consideration or not, without otherwise than in accordance with
the sanction of the Board, and which is in possession of the defendant.
Legislature is very wise in making such provision and has made a
provision for appointment of receiver in such a suit. Such a provision has
been made keeping in mind that Tribunal may not be equipped with such
mechanism to appoint receiver or other expertized personnel. Therefore,
suit in a Civil Court at times is required to be filed.
We, therefore, hold that Section 85 has not created an absolute bar
for the Civil Court for determination of a dispute of like nature as has
been agitated in the Section 9 application before the learned Court below.
We hold that the learned District Judge is competent to entertain an
application under Section 9 of the aforesaid Act of 1996.
Arbitration and Conciliation Act, 1996 has been enacted after the
Waqf Act, 1995. Therefore, while enacting the said Act of 1996
Legislature was quite aware of the consequences of the said Act and has
not intentionally kept any provision in the Act of 1996 creating any
exception to the jurisdiction of arbitration in respect of any matter arising
out of a valid agreement related to a waqf property. We, therefore, hold
that the learned Court below has got jurisdiction to entertain an
application under Section 9 of the said Act of 1996. Since the question ofjurisdiction and the bar created under Section 85 of the Waqf Act has
been taken as a specific objection in the written objection of the
respondent, the learned Court below ought to have dealt with the
question before rejection of the Section 9 application.
So far the objection of the respondent in the written objection
before the learned Court below that Waqf Board is a necessary party and
in his absence the proceeding under Section 9 was not maintainable, has
also not been dealt with by the learned Court below. This is a very prime
question with regard to the fate of an arbitration proceeding in a case like
this where it relates to a waqf property which is enrolled with the Board
of Waqfs, West Bengal.
According to the provisions of Section 2 of the Waqf Act, 1995, the
said Act applies to all Auqaf whether created before or after the
commencement of the said Act. Some provisions have been made in the
Waqf Act, 1995 with regard to the initiation of proceedings in respect of
waqf property and service of notice upon the Board. Sections 89, 90 and
92 of the said Act are important for the present case. Those Sections are
quoted below :
“89. Notice of suits by parties against Board. – No suit shall be
instituted against the Board in respect of any act purporting to be
done by it in pursuance of this Act or of any rules made thereunder,
until the expiration of two months next after notice in writing has
been delivered to, or left at, the office of the Board, stating the causeof action, the name, description and place of residence of the plaintiff
and the relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.
90. Notice of suits, etc., by courts. – (1) In every suit or
proceeding relating to a title to or possession of a [waqf] property or
the right of a mutawalli or beneficiary, the court or Tribunal shall
issue notice to the Board at the cost of the party instituting such suit
or proceeding.
(2) Whenever any [waqf] property is notified for sale in
execution of a decree of a civil court or for the recovery of any
revenue, cess, rates of tax due to the Government or any local
authority, notice shall be given to the Board by the court, Collector or
other person under whose order the sale is notified.
(3) In the absence of a notice under sub-section (1), any decree
or order passed in the suit or proceeding shall be declared void, if
the Board, within [six months] of its coming to know of such suit or
proceeding, applies to the court in this behalf.
(4) In the absence of a notice under sub-section (2), the sale
shall be declared void, if the Board, within one month of its coming to
know of the sale, applies in this behalf to the court or other authority
under whose order the sale was held.
92. Board to be party to suit or proceeding. – In any suit or
proceeding in respect of a [waqf] or any [waqf] property the Board
may appear and plead as a party to the suit or proceeding.”Section 89 is a provision in pari materia with that of Section 80 of
the Civil Procedure Code which requires two months’ prior notice to the
Board or at its office before institution of any suit against the Board.
Section 90(1) is of immense importance in the instant case. It says that in
every suit or proceeding relating to title to or possession of waqf property
or the right of a mutawalli or beneficiary the Court or Tribunal shall issue
notice to the Board at the cost of the party instituting such suit or
proceeding. Sub-Section (3) of Section 90 says that in absence of a notice
under Sub-Section (1), any decree or order passed in a particular suit or
proceeding shall be declared void, if the Board, within six months of its
coming to know of such suit or proceeding, applies to the Court in that
behalf. It, therefore, appears that it is a mandatory provision under the
Waqf Act, 1995 which requires at least a notice to the Board of Waqf after
institution of the proceeding, if no notice had been served prior to the
institution of the said proceeding. Section 92 of the Waqf Act, 1995 also
envisages that in any suit or proceeding in respect of waqf or waqf
property the Board may appear and plead as a party to the suit or
proceeding. Therefore, on a combined reading of Sections 90 and 92 it
appears that Board is a necessary party in a suit or proceeding. If the
Board is not made party in a proceeding the minimum requirement is
that either the Court or the Tribunal shall issue notice to the Board at
the cost of the plaintiff, instituting suit or petitioner, initiating
proceeding.In the present case, however, no notice has been served upon the
Waqf Board which vitiates the proceeding altogether. Learned Court
below ought to have taken note of such non-compliance of the statutory
requirement. Without going into the merits of the case made out by the
appellant in his Section 9 application, we hold that the proceeding
initiated by the appellant cannot continue without first having issued a
notice upon the Board and the learned Court below has failed to exercise
a jurisdiction vested in it under the law by not issuing notice upon the
Board knowing fully well that the dispute relates to the waqf property. We
have no other option but to remit the case back to the learned Court
below for a fresh decision. We set aside the order impugned and direct
the learned District Judge to issue a notice upon the Board of Waqfs
within a period of 30 days from the date of receipt of a certified copy of
our order and to dispose of the application under Section 9 within sixty
days thereafter.
The appeal and all connected applications stand disposed of.
Urgent Photostat certified copy of this judgment, if applied for, be
delivered to the learned counsel for the parties, upon compliance of all
usual formalities.
I agree.
 (Indira Banerjee, J.)
 (Sahidullah Munshi, J.) 
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