Judgment:
S.N. Kapoor, J.
(1) This petition is directed against dismissal of an application under Section 151 for granting injunction during pendency of an application under o. 39 r. CPC.
(2) Firstly, the brief factual matrix. According to the case of the petitioner D.D.A. officials visited the suit property on 7.3.89 and threatened to demolish and then again Dda officials came on 12.4.89 and threatened to demolish the same property bearing No. 3198/1, Ward No. Xv, Mohalla Sangtrashana, Paharganj, New Delhi. It is a wakf property and the plaintiff is lessee in respect of the land on Rs. 50.00 per month. Superstructure thereon belong the plaintiff/petitioner since 1947, as it .was purchased from Dr. Mahinder Singh. It is assessed to house tax in his name, and he has now a lease from Delhi Wakf Board also. D.D.A. has nothing to do with the property. In this context application for injunction has been moved.
(3) D.D.A. has delayed in Filing written statement and reply from 14.3.89 till 30.5.89. The petitioner moved an-application u/s. 151 Civil Procedure Code . for injunction restraining D.D.A; from demolishing the said property. Learned Trial Court instead of granting injunction has issued notice for 28.4.89. D.D.A. has not Filed any reply till then. Learned Trial Court has rejected the application on 28.4.89 mentioning therein that notification shows that the property is a religious property, the notification was not binding on D.D.A. and no suit could be filed in respect of wakf property by any person without permission of the Wakf Board u/s. 55 of the Act.
(4) Feeling aggrieved by the said order present revision petition has been Filed inter alias on the ground that the learned Trial Court has failed to exercise its jurisdiction, despite failure of the D.D.A. to file reply and written statement, and there being Gazette notification in his favor and the fact that if the property is demolished the plaintiff would suffer irreparable loss coupled with the fact that D.D.A. has no authority to demolish the property.
(5) I have heard the learned counsel for the parties, it appears that injunction application Filed by the petitioner has not been decided. It appears premature to say that matter has been 'finally' disposed of by the learned Trial Court.
(6) Section 27(2) of the Wakf Act, 1954 (herein-after referred to as 'the Act' for short) reads as under: '27. Decision if a property is wakf property: (1) .... (2) The decision of the Board on any questions under sub-section (1) shall unless revoked or modified by a Civil Court of competent jurisdiction, be final. 'Final against whom?', is the question required to be answered in this revision. View of the learned Trial Court that registration under Section 25 of the Act and consequential notification is not binding on strangers like D.D.A. finds support from Radha Kishan & Anr. v. State of Rajasthan & Ors., . Following observations in para 13 & 15 are relevant: 13. '......It is urged by the learned counsel for the petitioners that the Legislature has not used in Section 6(1) the words 'any person interested in a wakf and thereforee, this meaning should not be given to the words' any person interested therein'. This argument is not tenable because the words 'any person interested therein' appear soon after the words 'the Mutawalli of the wakf and thereforee the word 'therein' has been used to avoid repetition of the words 'in the wakf and not to extend the scope of the section to persons who fall outside the scope of the words 'person interested in a wakf. The purpose of section 6 is to confine the dispute between the Wakf Board, the mutawalli and a person. In other words, if there is a dispute whether a particular property is a wakf property or not, or whether a wakf is a Shia wakf or a Sunni wakf, then the Board or the mutawalli of the wakf or a person interested in the wakf as defined in section 3 may institute suit in a civil court of competent jurisdiction for the decision of the question. They can file such a suit within one year of the date of the publication of the list of wakfs and if no such suit is filed, the list would be final and conclusive between them. The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence over all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is if a person who is a non-muslim whether he be a Christian, a Hindu, A Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right; title and interest cannot be put in jeopardy simply because that property is included in the list published under sub-section (2) of section 5. The Legislature could not have meant that he should be driven to file a suit in a civil court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, sub-section (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in section 3 and to no other person.' 15. 'We have again .given serious consideration to this argument and in our view it is not correct. It has already been pointed out that section 27 appears in Chapter Iv which deals with registration of wakfs. It has also already been pointed out that according to section 25 every wakf created before or after the commencement of the Act must be registered at the office of the Board and that an application for registration must be made by the mutawalli giving particulars noted in the section. Section 26 enjoins upon the Board a duty to maintain a register of wakfs and to enter the particulars mentioned in that section. Section 27 has to be read in that-context and, so read, it would only mean that if the mutawalli fails to get any wakf registered, then the Board may suo moto collect information if it has reason to believe that a particular property is a wakf property. If it has reason to believe that a particular property in the hands of a mutawalli is a wakf property and he is wrongly denying it to be a wakf property, it may be registered as such. Similarly, if thee is a dispute as to whether a wakf is a Sunni wakf or a Shia wakf, it may decide that matter and register the wakf as a Sunni wakf or a Shia wakf as it considers proper. The decision of the Board under sub-section (2) would be final only between the Board and the mutawalli or a person interested in the wakf, if it is not revoked or modified by a civil court of competent jurisdiction. Section 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is a wakf property or not, if that challenge comes from a stranger, who is neither mutawalli nor a person interested in the wakf, but who be longs to another religious denomination and who claims a valid title and lawful possession over that property. To accept the respondents argument would .mean that the Board would be given the powers of the civil court to decide such disputes between itself and strangers and thus, to make the Board's decision final unless it is changed by a civil court of competent jurisdiction. If a dispute is raised by a non-muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a civil court.'
(7) Consequently, registration of property is certainly not binding on D.D.A. 'would it affect merits of the case?' 'Not much' should be the answer for it would remain a prima facie evidence at least that it is wakf property. One should not ignore Section 55F which provides 'Bar to the discharge of the validity of any Notification. It reads as ' under: 55F. Bar to the challenge of the validity of. any notification, etc. - Save as otherwise expressly provided in this Act, no notification or order or decision made, proceeding or action taken, by the Central Government or the State Government under this Act or any rule made there under shall be questioned in any civil court.
(8) However, as regards plea of non-serving of notice under Section 55. It reads as under: 55. Appointment, powers and jurisdiction of Tribunals. -(1) The State Government shall, by notification in the Official Ggazette, constitute as many Tribunals as it may think fit for the determination of any dispute, question or other matter relating to a wakf or wakf property which such Tribunal is or may be, required to determine under this Act or any rule or order made thereunder, and may, by the same or subsequent notification in the Official Gazette, define the local limits of the area in relation to which each Tribunal appointed by it shall exercise jurisdiction under this Act. (2) Any mutawalli of a wakf, person interested in a wakf or any other person aggrieved by any order made under this Act or any rule or order made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. (3) Where any application made under sub-section (l) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli any one of the mutawalli of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter: Provided that the State Government may, if it is of opinion that it is expedient in the interests of the wakf or any other person interested in the wakf or the wakf property, to transfer such application to any other .Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shah deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh. (4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District and Sessions Judge or of a Civil Judge, Class 1, and the appointment of every such person may be made either by name or by designation. (5) .The Tribunal shall be deemed to be a civil court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. (6) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Tribunal shall follow such procedure as may beprescribed: Provided that where any procedure, different from the prescribed procedure, is specified by this Act, the Tribunal shall follow the procedure specified by this Act, (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court. (8) Execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908. (9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think Fit. It appears that notice is required to be served under Section 56 by parties .against the Board and Section 57 by the court entertaining any suit relating to wakf property. These sections read as under:56. 'Notice of suits by parties against the Board. -No suit shall be instituted against the Board is respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, staling the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.' 57. 'Notice of suits, etc., by court. -(1) In every suit or proceeding relating to title to, or possession of, wakf property for the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding. (2) Whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates of taxes due to the Government or any local authority, notice shall be given to the Board by the court, collector or other person under whose order the sale is notified.- (3) In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding; applies to the court in this behalf. (4) In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.
(9) It is apparent that Section 56 is not applicable for plaintiff/petitioner does not claim any relief against the Wakf Board.
(10) Notice under Section 57(1) is required to be sent by Court in view of its language and the fact that suit relate to title since plaintiff claims as lessee lease in possession of wakf property. In this case even otherwise it appears desirable that Wakf Board should have been made party specially in view of the intention of the Legislature expressed in Section 59 of the Act which reads as under: 59. Board to be made a party to a suit or proceeding regarding a wakf on its application. 'In any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person, the Wakf Commissioner may appear and plead as a party to the suit or proceeding.
(11) Several questions arise in such matters which have not been argued before the learned Trial Court. Since application under 0.39 r. I is still pending, I do not feel it would be proper to interfere except to a very limited extent that the learned Trial Court is directed to dispose of the application under Order 39 r. I Civil Procedure Code after issuing notice to the Wakf Board under Section 57(1) within three months and the premises should pot be demolished for the time being till then. The applicants shall file all documents including copies of the sale deed, inspection- report of M.C.D. for house tax purpose along with sanction plan if any. D.D.A. is also directed to effectively represent their case by filing written statement and reply, if not filed, explaining their authority and reason to demolish the same, and documents like notice, site plan of unauthorised construction. It is made clear that no observation made herein above shall blur the vision of learned Civil Judge in disposing of the application in three months.
(12) Revision petition is disposed of accordingly with above observations.
(13) A copy of this order be sent to the learned Civil Judge concerned through learned District Judge for information and compliance and another copy shall be sent to Vice Chairman, D.D.A. to ensure their effective representation.