Validity of entry in waqf properties list determines jurisdiction of Civil Court.

Alok Singh, J.

Plaintiff/petitioner has filed present petition assailing the order dated 23.8.2007, whereby learned Trial Court was pleased to hold that in view of Section 6/7 read with Section 85 of the Waqf Act, 1995, Civil Court has no jurisdiction to hear and decide the present case.

2. Brief facts of the present case, inter alia, are that plaintiff/petitioner filed O.S. No. 4 of 2004 in the Court of Civil Judge (Jr. Division), Haldani seeking permanent prohibitory injunction against the defendant/respondent, herein, restraining the defendant/respondent, herein in making any interference in the possession of the plaintiff/waqf, over the suit property directly or indirectly, by any means.

3. As per the contents of paragraph nos. 1, 2 and 3 of the plaint, the then owner of the property Lala Mohammad Banjara has created Waqf of his property. After his death, property in question is being treated as Waqf property, Uttar Pradesh Sunni Central Waqf Board was pleased to register entire disputed property as Waqf property at Sr. No. 648 in the list of waqf properties. It is further stated that defendant is giving threat to encroach upon the waqf property, therefore, defendant be restrained in making any interference in the possession of the plaintiff/waqf over the suit property by any means, directly or indirectly.

4. Defendant/respondent, herein, filed written statement stating therein that property in question is a State property. It is further stated in paragraph no. 9 of the written statement that defendant has no knowledge as to whether property in question was ever registered as a waqf property in the list prepared under the provisions of Waqf Act. It is further stated that if property in question is registered as a waqf property, same is wrongly registered as a waqf property and entry in the list of waqf properties is illegal and void.

5. Initially, learned Trial Court was pleased to pass ad interim injunction in favour of the plaintiff/petitioner, herein, however, on the pleadings of the parties, issue no. 3 was framed as to whether suit is maintainable before the Civil Court.

6. Learned Trial Court, having placed reliance on Section 7 read with Section 85 of the Waqf Act, 1995, came to the conclusion that plaintiff ought to have approached the Waqf Tribunal to establish its title, therefore, suit was not maintainable before the Civil Court. Thereafter, Revision arising therefrom was also dismissed. Feeling Aggrieved, plaintiff/petitioner, herein, has filed present petition.

7. I have heard Mr. G.C. Kandpal, learned counsel for the plaintiff/petitioner and Mr. J.C. Belwal, learned counsel appearing for Nagar Panchayat, Lalkuan/respondent no. 1.

8. Sections 4, 5, 6 and 7 of the Waqf Act, 1995 are being reproduced hereunder:

“4. Preliminary survey of wakf. - (1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Wakfs and as many Additional or Assistant Survey Commissioners of Wakfs as may be necessary for the purpose of making a survey of wakfs existing in the State at the date of the commencement of this Act.

[(IA) Every State Government shall maintain a list of wakf referred to in sub-section (1) and the survey of wakf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013;

Provided that where no Survey Commissioner of Waqf has been appointed, a Survey Commissioner for wakf shall be appointed within three months from the date of such commencement.]

(2) All Additional and Assistant Survey Commissioners of Wakfs shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of Wakfs.

(3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of wakfs existing at the date of the commencement of this Act in the St