Civil courts not barred in Wakf property disputes: HC

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

Justice Pankaj Jain said the Wakf Tribunal had exclusive jurisdiction under Section 7 of the Wakf Act to decide whether a property was Wakf or not, or whether a particular Wakf was 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 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 Wakf properties was followed. In cases where the legality of the inquiry conducted by the Survey Commissioner was questioned, the civil court had the power to determine whether due process was adhered to.

Addressing the significance of the survey process, Justice Jain said the Survey Commissioner, appointed by the state government, was under the Act tasked with identifying and reporting Wakf properties. The report prepared by the Commissioner had substantial legal consequences, as it could lead to the inclusion of properties in the list of Wakfs maintained by the government.

The revenue authorities, under the amended Act, were mandated to update land records based on the list. At the same time, he made it clear that the list was not conclusive evidence of a property being Wakf. 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 Wakf property, unless there was evidence of dedication or user. Citing Supreme Court and Privy Council precedents, the court said Wakf could be established either through permanent dedication for a religious or charitable purpose under Muslim law or through long-standing public use as Wakf property. The cessation of use did not alter the Wakf nature of a property once it had been legally established.