Interim Order 14

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 46 RC ARC 518/24
SMT SHAHEDA KHATOON Vs. NOUMAN AKHTAR
31.07.2026
Present: Sh. MU Rehman, Ld. counsel for the petitioner through VC.
None for the respondent.
1. Matter is fixed for orders on application u/s 1 DRC Act r/w Section 85
Waqf Act r/w Order 7 Rule 10-11 CPC filed on behalf of respondent.
2. By way of the present application, it is averred on behalf of respondent
that as per the petitioner’s own showing, the tenanted shop is a Waqf property
and as such, the present eviction petition is not maintainable by virtue of bar of
Section 85 of the Waqf Act.
Hence, the present petition is not maintainable.
3. In reply, it is contended on behalf of the petitioner that the application is
nothing but abuse of process of law and the sole motive behind the application is
to delay the proceedings. It is further averred that the petitioner had purchased
the said property from its erstwhile owner Sh. Akhlaq Ahmad vide sale deed
dated 06.06.2012 against lawful consideration. It is further submitted that the
contention of the respondent that the present court has no jurisdiction to entertain
the petition is liable to be rejected.
Hence, the present application is liable to be
dismissed with exemplary costs.
4. Arguments heard. Considered. Record perused.
5. The question of jurisdiction between the civil court and the Waqf Tribunal
in matters relating to Waqf property has undergone a gradual evolution through
judicial pronouncements. The earliest judgment in this regard is
Ramesh
Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (hereinafter
“Ramesh Gobindram”), wherein the Hon’ble Supreme Court held that the
jurisdiction of the Waqf Tribunal is circumscribed by the provisions of the Wakf
Act, 1995 and is confined to matters expressly entrusted to it. It was,
inter alia,
held that eviction of tenants from a Waqf property does not fall within the
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domain of the Tribunal and that such suits would be maintainable before the civil
court. The Hon’ble Supreme Court further clarified that the bar on the civil
courts’ jurisdiction operates primarily in respect of disputes contemplated under
Sections 6 and 7 of the Waqf Act, namely, disputes relating to the inclusion of
properties in the list of auqaf and their character as waqf properties.
6. Subsequently, in
Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414
(hereinafter “Rashid Wali Beg”), the Hon’ble Supreme Court revisited the issue
in the context of the amendments introduced by way of the 2013 Amendment
Act. The Hon’ble Supreme Court held that the 2013 Amendment Act had the
effect of removing the basis of the decision in
Ramesh Gobindram, particularly
by expanding the scope of Section 83(1) to expressly include disputes relating to
the eviction of tenants and the determination of rights and obligations of lessor
and lessee in respect of waqf property. On this interpretation, it was held that the
jurisdiction of the Waqf Tribunal extends to eviction disputes and that the bar
under Section 85 operates to exclude the jurisdiction of the civil courts in respect
thereof. The relevant extract from the said judgment is reproduced hereinafter:
….45. Interestingly, the basis of the decision in Ramesh
Gobindram was removed through an amendment under Act 27
of 2013. As we have stated elsewhere, Ramesh Gobindram
sought to address the question whether a Waqf Tribunal was
competent to entertain and adjudicate upon disputes regarding
eviction of persons in occupation of what are admittedly waqf
properties. Since this Court answered the question in the
negative, Section 83(1) was amended by Act 27 of 2013 to
include the words, “eviction of tenant or determination of
rights and obligations of the lessor and lessee of such
property”.”
“54. In sum and substance, the Act makes a reference, to 3
types of remedies, namely, that of a suit, application or appeal
before the Tribunal, in respect of the following matters:
54.6. Any question or dispute whether a property specified as
waqf property in the list of waqfs is a waqf property or not
[Section 6(1) & 7(1)].
54.7. A question or dispute whether a waqf specified in the
list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) &
7(1)].
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54.8. Challenge to the settlement of a scheme for
management of the waqf or any direction issued in relation to
such management [Section 32(3)].
54.9. Challenge to an order for restitution/restoration of the
property of the waqf or an order for payment to the waqf of
any amount misappropriated or fraudulently retained by the
mutawalli [Section 33(4)].
54.10. Conditional attachment of the property of a mutawalli
or any other person [Section 35(1)]…
...54.17. Any dispute, question or other matter relating to a
waqf [Section 83(1)].
1. Any dispute, question or other matter relating to a waqf
property [Section 83(1)].
2. Eviction of a tenant or determination of the rights and
obligations of lessor and lessee of waqf property [Section 83(1)
after its amendment under Act 27 of 2013]
3. Whenever a mutawalli fails to perform an act or duty which
he is liable to perform [Section 94].
(Emphasis added)
7. Therefore, the position of law, as laid down in
Rashid Wali Beg, was that
in terms of Section 83 of the Waqf Act, the jurisdiction of determination of any
dispute in relation to a Waqf property lies with the Waqf Tribunal. Further, it was
clarified that Section 85 of the Waqf Act ousts the jurisdiction of any other court
or authority in respect of any dispute relating to a Waqf property, as the same is
required to be determined by a Waqf Tribunal. Lastly, it was clarified
that the amendment to Section 83(1) of the Waqf Act in 2013 enables the Waqf
Tribunal to determine any dispute relating to the eviction of a tenant in a Waqf
property or the rights of a lessor and lessee of such property.
8. However, the subsequent recent decision of the Hon’ble Supreme Court
in
Habib Alladin v. Mohammed Ahmed, 2026 INSC 90, (hereinafter “Habib
Alladin”) has re-examined the scope and effect of the 2013 amendment. The said
decision has further discussed which judgment, between
Ramesh Gobindram and
Rashid Wali Beg, holds the field today. After discussing the aforesaid judgments,
the Hon’ble Supreme Court has held that the 2013 amendment does not result in
a wholesale expansion of the Tribunal’s jurisdiction and that the principle laid
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down in
Ramesh Gobindram, namely that exclusion of the jurisdiction of the
civil court must be founded on express statutory provision or necessary
implication, continues to hold the field. It has been emphasized that Section 83 is
not a blanket conferment of jurisdiction with respect to eviction matters, and that
the Tribunal can exercise jurisdiction only in respect of matters which the Waqf
Act requires to be determined by it (for example, eviction of encroachers). The
relevant extract from the said judgment is reproduced hereinafter:
….12. Ramesh Gobindram as we noticed dealt with eviction of
tenants from admitted waqf properties. We have to notice at the
outset that the amendment of 2013 conferred powers for
removal of encroachers from waqf properties, on the Tribunal,
bringing in a definition of an ‘encroacher’ which also included
tenants, lessees and licensees whose rights had either expired or
had been terminated by the Mutawalli or Board.
True, the declaration with respect to the Tribunal not having
powers to evict tenants stands offset by the amendment made,
which removed the sub-stratum of the reasoning regarding that
dispute, in the said decision. However, the larger principle of
the ouster of jurisdiction of civil courts being confined to the
precise power conferred under the statute, according to us,
survives the amendment and is not extinguished by reason of
the particular amendment. We are of the opinion that the
principle laid down that, the Tribunal is only clothed with the
powers under Sections 6 and 7, to resolve disputes and
questions arising with respect to whether a property is wakf
property or not; survives the amendment, as confined to those
properties included in the ‘list of auqaf’, defined in Section
2(g)...
...49. We hence respectfully affirm the principle of jurisdiction
conferred on the Tribunal under the Waqf Act, 1995 and the
ouster of jurisdiction of the Civil Court under Section 85 of the
said Act to be, as considered and declared in Ramesh
Gobindram. There could be instances where Ramesh
Gobindram can be distinguished insofar as the eviction of
encroachers, which jurisdiction has now been specifically
conferred on the Tribunal by the amendment Act of 2013. The
amendment Act of 2013 removes the sub-stratum of the
decision in Ramesh Gobindram only to the extent of the
absence found, of the jurisdiction conferred on the Tribunal to
remove encroachers and does not, in any other manner,
interfere with the principle stated of the jurisdiction of the
Tribunal under the Act of 1995 and the jurisdiction of the Civil
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Court having been ousted only to the extent of the specific
power conferred on the Tribunal by and under the Act.
50. Now, looking at the facts of the present case, a bare reading
of the plaint would indicate that neither is the property
specified in the ‘list of auqaf’ as published in Chapter II nor
registered under Chapter V and hence the decision as to
whether the property is a waqf property or not cannot be
decided by the Tribunal since the property is not one specified
in the ‘list of auqaf’, which is the mandatory requirement under
Section 6(1) and Section 7(1) of the Waqf Act of 1995 to
approach the Tribunal.
9. In reconciling the aforesaid authorities, it emerges that while the effect of
the 2013 amendment, as noticed in
Rashid Wali Beg, cannot be ignored, the
extent of such expansion is not unqualified, and is confined to matters arising
within the statutory framework of the Waqf Act. Specifically, it has been clarified
in
Habib Alladin that it has been erroneously held in paragraph No. 54.19 of
Rashid Wali Beg that the Tribunal is vested with the exclusive powers in relation
to eviction of tenants. Accordingly,
Habib Alladin clarifies that
Ramesh
Gobindram holds the field as far as the jurisdiction of the civil courts is
concerned in relation to eviction matters pertaining to Waqf properties.
10. However, it has been contended that even if the judgment of
Rashid Wali
Beg has been watered down by
Habib Alladin, the question as to whether a
property is a Waqf property is still required to be specifically decided by the
Tribunal. The said issue was also clarified in
Habib Alladin, wherein it was held
that the said issue is required to be decided by the Tribunal only in relation to the
properties which are recognised as Waqf properties under the Waqf Act, namely:
(iii) those included in the list of auqaf prepared under
Section 5; or
(iv) duly registered in the register of auqaf in terms of
Section 37.
11. It has been clarified in
Habib Alladin that only the aforesaid properties
would fall within the domain of the Tribunal. Conversely, in respect of properties
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not so recognized within the statutory scheme, the jurisdiction of the civil court
cannot be said to be ousted merely on the basis of an assertion of waqf character.
12. In the present matter, the respondent has submitted that the petitioner is not
the landlord of the property as the property is a Waqf Ul Aulad property. The
petitioner has disputed the contentions of the respondent stating that respondents
have taken contradictory stands in the application for leave to defend and the
present application. The petitioner has denied that the property in question is a
Waqf Property. Therefore, the character of the property as a Waqf property is in
dispute. Further, in any case, as noted above, only those properties are required
to be adjudicated upon by the Waqf Tribunal which are mentioned in the list of
auqaf prepared under Section 5, or which are duly registered in the register of
auqaf in terms of Section 37. However, the respondent has not filed any
document/ material to show that the existing Waqf is mentioned in the list of
auqaf or is registered with the Delhi Waqf Board in terms of Section 37.
13. Accordingly, in light of the aforesaid discussion, the jurisdiction of the
Civil Court/ Rent Tribunal is not ousted in the present matter and the present
petition is not barred u/s 85 of the Waqf Act.
14.
In view of the aforesaid discussion, the present application u/s 1 DRC Act
r/w Section 85 Waqf Act r/w Order 7 Rule 10-11 CPC filed on behalf of
respondent is dismissed being devoid of merits.
15.
However, it is clarified that nothing expressed herein shall tantamount to
final opinion on the merits of the case.
Put up for arguments on application for leave to defend on 02.09.2026.
(Gaurav Goyal)
ARC-1, Central, THC
31.07.2026
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