High Court has held that the civil court can entertain and try the dispute of Muslim Waqf Board in absence of Waqf Tribunal and dismissed the plea of board that civil court has no jurisdiction to entertain the case against the board.
The Board, through the medium of revision petition challenged order passed by Chief Judicial Magistrate, Srinagar whereby the application filed by the board has been dismissed. The shopkeepers-tenants of the board filed a suit against the board before the trial court for enhancement of rent.
Their contention is that in 2005, the shops/rooms were allotted to them and the rent in respect of the same was fixed which was to be increased by 15% initially after five years and subsequently after the expiry of three financial years. It has been alleged that the board has taken a decision on 21st July, 2022 for revision of rates of rent with effect from 01.04.2018 by enhancing the rent by 120 percent.
Before contesting the case on merits, the board raised an objection before the court below that in view of the provisions contained in Section 85 of the Waqf Act, 1995, jurisdiction of the Civil Court to entertain a suit of the present nature is expressly barred.
The trial court, after hearing the parties and after analysing the pleadings, came to the conclusion that even though there is a specific bar to file a suit before the Civil Court in respect of the subject matter of the suit under the Waqf Act, yet because no Tribunal under the Waqf Act has been constituted in the Union Territory of J&K, as such, the plaintiff cannot be left remediless and on this basis, the application of the petitioners/defendants came to be dismissed and the suit has been held to be maintainable.
The petitioner-Board challenged the order passed by the trial court on the grounds that there is an express bar contained in the Waqf Act, which precludes civil courts from entertaining any suit or proceeding concerning Waqf properties.
Justice Sanjay Dhar while dismissing the plea of board said the trial court, while holding the suit against the board maintainable and while declining their application has not committed any illegality or irregularity which would warrant interference from this court.
“Therefore, there is no ground or reason for this court to exercise its revisional jurisdiction in respect of the impugned order of the trial court. The petition lacks merit and is dismissed,” read the order of the High Court.
The court however, provided that if during the pendency of the suit, the Tribunal under the Waqf Act, is constituted by the Government of Union Territory of Jammu and Kashmir, the trial court shall transfer the suit to the Tribunal. Daily Excelsior
