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Waqf Tribunals have a limited and special jurisdiction. They may adjudicate disputes only in respect of properties that are either notified in the statutory “list of auqaf” or registered as waqf under the Waqf Act, 1995.
In Habib Alladin & Ors. v. Mohammed Ahmed, the Supreme Court has held that Waqf Tribunals possess jurisdiction only over properties that are (i) notified in the “list of auqaf” under Sections 4 and 5 of the Waqf Act, 1995 (“Act”), or (ii) registered as waqf property in the Register of Auqaf maintained by the Waqf Boards under Section 37, as expanded by the 2013 amendment to Section 2(g).
This pronouncement has generated fresh uncertainty. Over the years, several decisions have developed waqf law on the premise of a special statutory forum, namely the Waqf Tribunals established across India. Most of the earlier decisions dealing with the Tribunal's jurisdiction in relation to religious properties have taken a broader view and have interpreted Section 83(1) of the Waqf Act, 1995 (now the UMEED Act) as encompassing all disputes pertaining to waqf properties.
In this backdrop, the question resurfaces: for a property to qualify as waqf within the meaning of the UMEED Act, 1995, must it necessarily be registered or notified? The apparent answer is in the negative, given that the definition of waqf has been modified only to the extent that the concept of “waqf by user” has been deleted. This, however, leads to a further and critical question: where should disputes concerning properties which are neither notified nor registered in the waqf register be adjudicated before the Civil Court or before the special forum, namely the Tribunal composed of three members, including a Chairman who is a District Judge?
The answer, it appears, must now be tested against the provisions as amended by Section 36 of the UMEED Act, 1995:
“Section 36(10): No suit, appeal or
other legal proceeding for the enforcement of any right on behalf
of any waqf which have not been registered in accordance with the
provisions of this Act, shall be instituted or commenced or heard,
tried or decided by any court after expiry of a period of six
months from the commencement of the Waqf (Amendment) Act,
2025:
Provided that an application may be entertained by the court in
respect of such suit, appeal or other legal proceedings after the
period of six months specified under this sub-section, if the
applicant satisfies the court that he has sufficient cause for not
making the application within such period.”
On one reading, this provision appears to open the door for unregistered waqfs even after the coming into force of the UMEED Act, 1995, by regulating the stage at which proceedings for
enforcement of rights on behalf of such unregistered waqfs may be entertained. At the same time, Section 3-B prescribes an outer limit of one year for registering and uploading details of waqf properties on the UMEED portal maintained by the Central Government.
The Facts in Habib Alladin
The dispute in Habib Alladin arose from an apartment building constructed on land owned by the appellants. The respondent alleged that a portion of the ground floor, though sanctioned for residential use, had been enclosed and used as a mosque since around 2008, and sought a perpetual injunction from the Waqf Tribunal to secure continued access for worshippers.
The owners/defendants filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of the plaint. They contended that there was no lawfully established mosque, that the sanctioned plan contained no such demarcation, and, crucially, that the premises were neither notified nor registered as waqf so as to attract the Tribunal's jurisdiction.
The Tribunal and the Telangana High Court nevertheless upheld the maintainability of the action, treating the case as one of “waqf by user” within the meaning of Section 3(r)(i) of the Act. On appeal, the Supreme Court revisited earlier conflicting authorities and reaffirmed the core principle in Ramesh Gobindram v. Sugra Humayun Mirza Wakf2, which had held that the Waqf Tribunal has no jurisdiction over eviction of tenants from admitted waqf properties, and that the exclusion of civil court jurisdiction under Section 85 is confined to matters which the Act expressly requires the Tribunal to decide.
At the same time, later decisions such as Anis Fatma Begum v. State of Uttar Pradesh3, Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji4, Punjab Wakf Board v. Pritpal Singh5, Rashid Wali Beg v. Farid Pindari6, and Mumtaz Yarud Dowla Wakf v. Badam Balakrishna Hotel Pvt. Ltd.7 have, in the authors' assessment, read Section 83 more expansively and, in certain passages, suggested that the 2013 amendment had eroded or removed the very basis of Ramesh Gobindram.
Emphasising that the scheduled property in Habib Alladin was neither included in the notified list of auqaf nor registered as waqf, the Supreme Court held that a bare suit for injunction of this nature lay outside the Tribunal's competence. On this footing, the Court set aside the orders of the Tribunal and the High Court, allowed the owners' application under Order VII Rule 11, and rejected the plaint, leaving open the substantive question whether the property is, in law, a waqf (including by user) to be determined before the appropriate forum in accordance with law.
In doing so, the judgment underscores that the Waqf Tribunal's jurisdiction is not all encompassing, that the statutory mechanisms of survey, notification, and registration operate as jurisdictional gateways, and that civil courts continue to retain jurisdiction over disputes concerning properties that have not yet entered the statutory waqf framework.
The Silence on “Waqf by User”
The Supreme Court has, notably, chosen not to engage with the broader issue of “waqf by user”, which was a principal point of contention in the legislative debates that led to the UMEED amendments to the Waqf Act. The question whether a property constitutes waqf by user has been developed and refined over time through a series of decisions of the Supreme Court of India; yet, the present judgment does not directly address this doctrinal strand.
More specifically, the judgment does not deal with the scenario in which a property, though neither notified nor registered, has been used as a religious property since time immemorial. In such a case, it remains uncertain whether the dispute ought to be adjudicated by the Civil Court or by the Waqf Tribunal as the designated special forum for waqf disputes.
The UMEED Act has deleted the concept of “waqf by user” from the definition of waqf in Section 3(r). Simultaneously, the UMEED Act, like the erstwhile Waqf Act, retains Section 83(5), which provides that the Tribunal shall be deemed to be a Civil Court for the purposes of the Act. This gives rise to a further conundrum: if a special Tribunal has been constituted to deal comprehensively with waqf disputes, what purpose is served by requiring parties first to approach the Civil Court for a declaration regarding waqf by user, and only thereafter to seek further relief before the Tribunal in light of the bar contained in Section 85? As the Tribunal is a specialised forum, a strong argument can be made that disputes concerning unregistered properties with a waqf character ought also to be adjudicated there.
Consequences of the Habib Alladin Approach
The view adopted in Habib Alladin necessarily implies that, for maintaining a suit or application before the Waqf Tribunal, the determinative test is whether the property is registered or notified as waqf. If it is not, the party would first have to approach the Civil Court for a declaration. Only after considerable time – and possibly after the matter has travelled through the appellate hierarchy up to the Supreme Court – could the party then approach the Waqf Tribunal for consequential relief, once the property is judicially recognised as waqf. This risks both loss of valuable time and a multiplicity of proceedings. It is for this reason that the approach in Rashid Wali Beg, which adopts a broader conception of Tribunal jurisdiction, appears to the authors to be more workable and coherent.
In the authors' perspective, may generate more uncertainty than clarity on the jurisdictional question. This uncertainty may, in turn, be strategically invoked by litigants to suit their own procedural advantage.
Going forward, it remains to be seen whether, in a regime where Waqf Tribunals have been specifically constituted to determine all matters under the waqf law and have been statutorily equated with Civil Courts for that limited purpose, parties seek to challenge this judgment by way of review or otherwise, with a view to restoring a broader and more cohesive understanding of Tribunal jurisdiction.
Footnotes
1. By Ishwar Ahuja, Partner and Ms. Nikita Lad, Associate. Comments from subject expert Mr. Najam E Deshmukh.
2. (2010) 8 SCC 726
3. (2010) 14 SCC 588
4. (2014) 16 SCC 65
5. 2013 SCC OnLine SC 1345
6. (2022) 4 SCC 414
7. 2023 INSC 949
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