2021 (4) TMI 1377 - SC - Indian Laws

Supreme Court overturns decision, restores wakf tribunal jurisdiction after parties initially accepted tribunal authority in property dispute

Kiran Devi Versus The Bihar State Sunni Wakf Board and Ors.

SC allowed appeal challenging HC order in wakf property dispute. HC erroneously held wakf tribunal lacked jurisdiction despite appellant initially ... Surrender of tenancy rights in favor of the Bihar State Sunni Wakf Board and the subsequent induction of a new tenant - power of karta to handover of vacant possession to the Plaintiff - joint family business or not - Karta of joint family business has got authority to surrender the joint family business or not - surrender of joint family business or premises of joint family business - estoppel against the statute. Jurisdiction to entertain the suit filed by the Plaintiff - HELD THAT:- It is not open to the Appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The Plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board and the Appellant who then filed an application for transfer of the suit to the Wakf Tribunal - The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where Plaintiff has invoked the jurisdiction of the Wakf Tribunal. The argument raised by the learned Counsel for the Appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence, it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the Plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the Appellant as well as by the Waqf Board - it is not open to the Appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the present case. Whether the order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court Under Article 226 of the Constitution of India as only a revision in terms of proviso to Sub-section (9) of Section 83 of the Act could be preferred? - HELD THAT:- The judgments referred to by the Appellant in Sadhana Lodh [2003 (1) TMI 701 - SUPREME COURT] and of Patna High Court in MD. WASIUR RAHMAN, HAJI MD. SAGHER VERSUS THE STATE OF BIHAR, THE D.C.L.R., SITAMARHI, THE CIRCLE OFFICER, THE EXECUTIVE OFFICER, THE DISTRICT AUQAF COMMITTEE, THE PRESIDING OFFICER, BIHAR, THE CHAIRMAN, BIHAR STATE SUNNI WAQF BOARD, THE CHIEF EXECUTIVE OFFICER, MD. NEYAZ AHMAD, [2018 (4) TMI 1982 - PATNA HIGH COURT] are not applicable to the facts of the present appeal. Sadhana Lodh is a judgment wherein an award of the Motor Accident Claim Tribunal was challenged by way of a Writ Petition. This Court held that the Writ Petition was not maintainable when an alternative remedy is provided under a statute Non-appreciation of facts in a petition Under Article 227 of the Constitution - HELD THAT:- A perusal of the proviso to Sub-section (9) of Section 83 of the Act shows that it confers power on the High Court to 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. In fact, the statutory provision is acceptance of the principle that the jurisdiction of the High Court Under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India and Ors. [1997 (3) TMI 90 - SUPREME COURT] - Judicial orders of the civil court are not amenable to writ jurisdiction Under Article 226 of the Constitution. When a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction Under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition Under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition - The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to Sub-section (9) of Section 83 of the Act does not act as the appellate court. Whether Shri Devendra Prasad Sinha was running the joint family business and/or whether the act of surrender of possession was that of a joint Hindu family business or only of surrender of tenancy; or that as a Karta, surrender of tenancy was for the benefit of the joint Hindu family? - HELD THAT:- The High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card un-less there is evidence that the funds of joint Hindu Family were invested in the business in the tenanted premises - the High Court has committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Business. There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise. Mere payment of rent by great grandfather or by the grandfather of the Plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis. Whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of tenancy is in fact for the benefit of the joint family? - HELD THAT:- The learned High Court found that the letter of surrender was not reliable or tenable. The executor of the surrender letter has admitted such surrender letter in the written statement and while appearing as a witness as DW-5 - Merely for the reason that signatures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the Plaintiff who is not a party to such transaction. It is one thing to say that the document is unreliable and another to say that the document does not bind the Plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family. The order of the High Court is set aside and that of the Wakf Tribunal is restored with no order as to costs - appeal allowed. Issues Involved:1. Jurisdiction of the Wakf Tribunal.2. Maintainability of the writ petition before the High Court under Article 226.3. Reappreciation of facts by the High Court under Article 227.4. Surrender of tenancy by the Karta of the joint Hindu family.5. Authority of the Karta to surrender tenancy without consent of other coparceners.Summary:Jurisdiction of the Wakf Tribunal:The appellant contended that the Wakf Tribunal had no jurisdiction to entertain the suit filed by the plaintiff, referencing the Supreme Court's decision in Ramesh Gobindram (2010) and the amendment by Central Act No. 27 of 2013. The Court held that the objection to the Tribunal's jurisdiction was not permissible as the order to transfer the suit to the Wakf Tribunal was passed at the instance of the appellant and the Wakf Board and had attained finality. The parties cannot approbate and reprobate in the same breath.Maintainability of the Writ Petition:The appellant argued that the order of the Wakf Tribunal could not be challenged by way of a writ petition under Article 226 of the Constitution, citing Sadhana Lodh (2003) and Md. Wasiur Rahman (2018). The Court found that the High Court's jurisdiction under Article 226/227 cannot be wholly excluded and that the High Court, in examining the correctness, legality, or propriety of the Tribunal's determination, was exercising jurisdiction under the Act. Therefore, the writ petition was maintainable.Reappreciation of Facts by the High Court:The appellant argued that the High Court could not reappreciate facts in a petition under Article 227. The Court held that the High Court's jurisdiction under Article 227 is distinct from jurisdiction under Article 226 and that the High Court could examine the correctness, legality, or propriety of the findings recorded by the Wakf Tribunal without acting as an appellate court.Surrender of Tenancy by the Karta:The appellant contended that the surrender of tenancy by defendant No. 1 was not of a joint Hindu family business but of the tenancy which had not been carried out for years. The Court found that the High Court erred in presuming that the tenancy was a joint family asset based on payment of rent and the existence of a ration card. The Court held that no presumption of joint Hindu family business arises from payment of rent or the existence of a ration card unless there is evidence that the business was carried out with joint family funds.Authority of the Karta to Surrender Tenancy:The Court held that even if Devendra Prasad Sinha was considered to be representing the joint Hindu family, the act of surrendering the tenancy was for the benefit of the joint family due to the cessation of hotel business activities. The surrender letter was held to be validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the joint family.Conclusion:The Supreme Court allowed the appeal, set aside the High Court's order, and restored the order of the Wakf Tribunal, concluding that the High Court had committed a basic error in law and fact.