The Jammu & Kashmir High Court has clarified that civil courts retain jurisdiction to hear disputes related to waqf properties if no Waqf Tribunal has been constituted under the Waqf Act, 1995.

A revision petition was filed challenging the maintainability of a civil suit concerning waqf property.

A Bench of Justice Sanjay Dhar held that Section 85 of the Waqf Act, which bars the jurisdiction of civil courts in matters pertaining to waqf properties, cannot be invoked in the absence of a Waqf Tribunal established under Section 83 of the same Act.

The Court said, “The constitution of a Tribunal in terms of Section 83 of the Waqf Act is a pre-condition for invoking the provisions contained in Section 85 of the Waqf Act. If no Tribunal has been constituted, there would be no forum to determine a dispute or question relating to waqf property."

The Court added, "when we examine the scheme of the Waqf Act, particularly the provisions contained in Section 83 and 85 of the said Act in the light of the fact that the Tribunal under Section 83 of the Act has not been constituted as yet, it can be safely stated that a litigant agitating a dispute or question relating to any waqf property does not have any remedy, much less an efficacious remedy for redressal of his grievance. In these circumstances, the bar to the jurisdiction of the Civil Courts as contained in Section 85 of the Waqf Act would not come into play."

Advocate Ruaani Ahmad Baba appeared for the Petitioner.

Background

The petitioners had moved the High Court challenging the trial court's decision to entertain a civil suit concerning waqf property. They relied on Order 7 Rule 11 of the Civil Procedure Code (CPC) and sought rejection of the plaint on the ground that civil courts had no jurisdiction under the Waqf Act.

Findings

The Court found no illegality in the trial court’s decision. It held that in the absence of a Waqf Tribunal, the trial court was correct in assuming jurisdiction to entertain the suit.

The Court observed, “the trial court, while holding the suit against the petitioners maintainable and while declining their application under Order 7 Rule 11 of CPC, has not committed any illegality that would warrant interference.”

The High Court directed that if a Waqf Tribunal is constituted during the pendency of the suit, the matter shall be transferred to the Tribunal in accordance with the law.

The revision petition was dismissed, and any interim relief previously granted was vacated.

Cause Title: J&K Board For Muslim Specified Wakfs & Specified Wakf Property v. Soura Shopkeepers Welfare Association

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Jammu & Kashmir and Ladakh High CourtJustice Sanjay Dhar

Suchita Shukla

Assistant Editor

Suchita Shukla is an Assistant Editor at Verdictum, with a strong foundation in legal research and writing, she brings over 4.5 years of experience to the table, having honed her skills in the dynamic field of law. She covers Supreme Court and High Courts. She completed her BA-LLB (Hons.) 5-year course with specialisation in Intellectual Property rights from Galgotias University. Since 2019, apart from having worked at a legal publishing house she has also ventured into legal journalism.