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Synopsis

The Supreme Court has said that the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal with any issue pertaining to administration, including the appointment of Mutawalli whose job is managing the Waqf properties.

A bench of Justices M M Sundresh and S V N Bhatti set aside the Kerala High Court's October 29, 2018 order, which held that only the Waqf Tribunal not the Waqf Board has the jurisdiction to decide the issue of Mutawalliship.

In a dispute before the Waqf Board, both the parties claimed their respective rights to Mutawalliship and Sheikhship. By an elaborate order the Waqf Board held in favour of the appellant declaring him as a Mutawalli. 

Being aggrieved, respondents filed an application by invoking Section 83 of the Waqf Act, 1995 before the Waqf Tribunal, which, after affording opportunities to both the sides, inter alia, held that there was no perversity in the decision rendered by the Waqf Board.

A plea was also taken by the respondents before both the Waqf Board and the Waqf Tribunal, on the question of jurisdiction. It was contended by the respondents that it is the Waqf Tribunal that has the original jurisdiction to decide the issue pertaining to Mutawalliship and, therefore, the Waqf Board did not have the jurisdiction. 

On a revision being filed, the high court set aside the judgment and decree of the Waqf Tribunal inter alia holding that the Waqf Board did not have the jurisdiction and, therefore, the matter hd to be decided afresh only by the Waqf Tribunal. 

Dealing with the appeal, the bench said, "We are inclined to hold that the HC's order cannot be sustained in the eyes of law as the Waqf Board has rightly exercised the jurisdiction in exercise of power conferred under Section 32(2)(g) read with the definition under Section 3(i) which defines a ‘Mutawalli’."

Having perused Section 83 subSections (5) and (7) of the Act which deals with the powers of the Tribunal, the bench said that the Waqf Tribunal is deemed to be a civil court having the same powers that can be exercised by the civil court under the Code of Civil Procedure, 1908. 

"In other words, a dispute can be tried like a suit by the Waqf Tribunal. Under sub-section (7) of Section 83 of the Waqf Act, the decision of the Tribunal shall be final and binding upon the parties and it shall have force of a decree made by a civil court," the bench said.

Referring to the word ‘competent authority’ as mentioned in the definition clause contained in Section 3(i), the court said that this made the position further clear that it was the Waqf Board which had the jurisdiction and not the Waqf Tribunal. 

"After all, the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal with any issue pertaining to administration. The power of superintendence cannot be confined to routine affairs of a Waqf but it includes a situation where a dispute arises while managing the property and that would certainly include a right of a person to be a Mutawalli after all, it is the Mutawalli who does the job of administering and managing the Waqf," the bench said.

The court, therefore, held that the high court's order cannot be sustained in relegating the matter to an adjudicating authority by treating it as a competent authority, which is none other than the Waqf Board.

In the case, since the high court did not go into the merits of the case, the bench remitted the matter back to the high court to decide the revision on merits, in accordance with law except the issue of jurisdiction as decided by the top court in this appeal.

The court also asked the high court to expedite the hearing and make an endeavour to dispose it of as early as possible in view of the fact that the revision was of the year 2015 and the dispute was pending from the year 1987 onwards.

Allowing the appeal, the bench left all issues open for the high court to decide.