The Madhya Pradesh High Court recently held that amendment made to Section 83 and Section 85 of the Waqf Act related to change in forum is a procedural law and hence, it would apply retrospectively.

While relying on the decision of Rashid Wali Beg Vs. Farid Pindari and Others [(2022) 4 SCC 414], a Single Judge Bench of Justice Gurpal Singh Ahluwalia observed that “law laid down by the Supreme Court in the case of Rashid Wali Beg coupled with the fact that the change of forum is a procedural law, this Court is of the considered opinion that after the amendment in Sections 83 and 85 of the Waqf Act, the Civil Court lost its jurisdiction to entertain the Civil Suits concerning Waqf property.”

Senior Advocate Atul Anand Awasthy appeared for the Appellants, whereas Advocate Mukhtar Ahmad appeared for the Respondents.

In a nutshell, a second appeal has been filed before the High Court against the suit for eviction from waqf property, which was an undisputed fact. The substantial issue of law that was raised before the High Court was that amendment made to Section 83 and Section 85 of the Waqf Act for change in forum, is a procedural law and hence, would apply retrospectively. Thus, the suit for eviction should be heard by the Waqf Tribunal and the Civil Court has lost its jurisdiction.

After considering the submissions, the Bench analyzed Section 83 and Section 85 of the Waqf Act and referred to the decision of Rashid Wali Beg, wherein it was held that, “In the case on hand, the property is admitted to be a waqf property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be to ignore the mandate of Sections 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property.”

Therefore, while setting aside the decree passed by the District Judge which had arisen out of decree passed by the Civil Judge, the Bench directed the Trial Court to return the plaint to the plaintiff for representation to the Waqf Tribunal having jurisdiction.

While allowing the appeal, the High Court also directed the Waqf Tribunal to proceed from the stage of framing of issued and to dispose the suit within a period of six months.

Cause Title: Rakesh Kesharwani and Ors. v. Imam Bada Shahedaan Karbala Through Mutwali Shafique

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Madhya Pradesh High CourtJustice Gurpal Singh Ahluwalia

Pankaj Bajpai