Civil courts can intervene in Waqf property disputes: Punjab and Haryana High Court

The Punjab and Haryana High Court has held that the jurisdiction of civil courts in Waqf property matters is not completely ousted and remains intact in cases where the validity of a survey or inquiry under the Waqf Act is challenged. The decision settles the long-standing debate over whether only Waqf Tribunals have the authority to decide on Waqf property disputes.

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Justice Pankaj Jain asserted that a Waqf tribunal had exclusive jurisdiction under Section 7 of the Waqf Act to decide whether a property is Waqf or not, and whether a particular Waqf is Shia or Sunni. But it did not have the authority to examine the validity of the survey process conducted under Section 4 of the Act. Justice Jain made it clear that the civil court had the jurisdiction to examine the matter where a challenge was raised against a notification issued under Section 5(2) of the Act on the grounds that the required survey was not conducted properly or in accordance with statutory requirements.

Elaborating, Justice Jain asserted that the exclusion of civil court jurisdiction was not to be readily inferred and applied only to matters that the tribunal was specifically empowered to decide. The tribunal lacked the authority to scrutinise whether the statutory procedure for survey and identification of Waqf properties was followed. In cases where the legality of the inquiry conducted by the Survey Commissioner was questioned, the civil court that had the power to determine whether due process was adhered to.

Addressing the significance of the survey process, Justice Jain asserted that the Survey Commissioner, appointed by the state government, was under the Waqf Act tasked with identifying and reporting Waqf properties. The report prepared by the Commissioner had substantial legal consequences, as it could lead to the inclusion of properties in the list of Waqfs maintained by the state government. Revenue authorities, under the amended Act, were mandated to update land records based on the list. Justice Jain, at the same time, made it clear that the list was not conclusive evidence of a property being Waqf. It merely carried a presumption of correctness, which was required to be backed by a proper inquiry.

Justice Jain added mere entry in revenue records describing a property as a graveyard or “kabristan” was not sufficient to establish it as Waqf property unless there was evidence of dedication or user. Citing the Supreme Court and Privy Council precedents, the court stated that Waqf could be established either through permanent dedication for a religious or charitable purpose under Muslim law or through long-standing public use as Waqf property. The cessation of use did not alter the Waqf nature of a property once it has been legally established.