The main legal point established in the judgment is the interpretation of the powers and limitations of the Waqf Tribunal under the Waqf Act, 1995, and the entitlement of male lineal descendants to mutwalliship as per the provisions of the Waqf Deed.

JUDGMENT :

1. The present challenge has been directed against an order passed by the Waqf Tribunal, whereby the application filed by the present petitioners under Order XXII Rule 3 of the Code of Civil Procedure for being substituted as heirs and legal representatives of the mutwalli in the proceeding pending before the tribunal, on the death of the erstwhile mutwalli, was rejected.

2. Learned counsel appearing for the petitioners submits that it was well within the jurisdiction of the tribunal to invoke powers, both under Order XXII Rule 3 as well as Order XXII Rule 10 of the Code of Civil Procedure, for the purpose of allowing such application, thereby permitting the petitioners to continue the proceedings in place of the deceased mutwalli.

3. Learned counsel appearing for the petitioners places specific reliance on sub-sections (5) and (6) of Section 83 of the Waqf Act, 1995 (for short “the 1995 Act”) as well as Rule 27 of the Waqf Rules, 2001 to highlight such contention. It is further argued that, as per the Tailtnama itself, it was the will of the waqif for the mutwalliship to devolve, on the demise of the mutwalli, on the waqif’s male descendants. As such, despite having ample power in law, the tribunal refused to exercise jurisdiction vested in it by law in rejecting the petitioners’ application, thereby causing abuse of the process of law.

4. Learned counsel appearing for the Board of Auqaf indicates that permitting the revisionist-petitioners to be substituted would tantamount to reversal of a resolution passed by the Board of Waqf, which is under challenge in the main proceeding before the tribunal itself.

5. That apart, it is contended that it was beyond the scope of the tribunal’s powers to permit all heirs of the erstwhile mutwalli to continue the prosecution of the proceeding, after the demise of such mutwalli.

6. Learned counsel appearing for the opposite party nos. 4 to 7 contends, also by placing reliance on sub-sections (5) and (6), along with sub-section (2) of Section 83 of the 1995 Act, that the tribunal has the powers as conferred under the Code of Civil Procedure, only while trying a suit, or executing a decree or order and not while adjudicating a proceeding under Section 83 of the 1995 Act.

7. That apart, the specific power of appointment of mutwalli is vested in the Board of Waqf as per the 1995 Act itself and it was beyond the jurisdiction of the tribunal to do so.

8. By placing reliance on the judgment of Ramesh Gobindram (Dead) Through LRs. Vs. Sugra Humayun Mirza Wakf, reported at (2010) 8 SCC 726, it is contended that disputes covered by special statutes, as for example, eviction suits under local Rent Control Laws, were excluded from the purview of cases where the tribunal could exercise jurisdiction under the aegis of the 1995 Act.

9. It is further contended that the Supreme Court specifically held in the said report that the tribunal cannot function as a civil court, although certain powers under the Code of Civil Procedure have been vested in the tribunal.

10. By placing reliance on Kalabharati Advertising vs. Hemant Vimalnath Narichania and others, reported at (2010) 9 SCC 437, learned counsel lays stress on the proposition that, in the absence of any specific provision for review, the tribunal rightly decided that it does not have such power, since there is no provision in the 1995 Act conferring such power of review on the tribunal.

11. By placing reliance on a co-ordinate Bench judgment of this court, reported at (2019) 5 CHN 439 [Rajdeep Laha and others vs. State of West Bengal and others], learned counsel further contends that the authority of the tribunals is restricted to the parameters of the specific provisions conferring authority upon them in the 1995 Act and cannot exceed the scope of such provisions.

12. By handing over a copy of the Tailtnama, learned counsel appearing for the opposite party nos. 4 to 7 argues that the said Tailtnama specifically reflected the waqif’s intention