Jammu & Kashmir High Court – Srinagar Bench
J&K Board For Muslim Spcified vs Soura Shopkeepers Welfar on 11 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 01.07.2025
Pronounced on: 11.07.2025
CR No.31/2024
CM No.7089/2024
CM No.7090/2024
J&K BOARD FOR MUSLIM SPCIFIED
WAKFS & SPECIFIED WAKF PROPERTY
... PETITIONER(S)
Through: - Mr. Ruaani Ahmad Baba, Advocate.
Vs.
SOURA SHOPKEEPERS WELFAR
ASSOCIATION ...RESPONDENT(S)
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioners, through the medium of present
revision petition, have challenged order dated 0211.2024
passed by learned Civil Judge Senior Division (Chief
Judicial Magistrate), Srinagar (hereinafter referred to as
“the trial court”), whereby the application under Order 7
Rule 11 of CPC filed by the petitioners/defendants has been
dismissed.
2) It seems that the respondent/plaintiff has filed a suit
for declaration and injunction against the petitioners/
defendants before the learned trial court. In the suit, the
CR No.31/2024 Page 1 of 12
plaintiff Association claimed that its members are tenants/
lessees/shopkeepers of the petitioners/defendants in
respect of various shops situated in Wakf Complex, Soura,
Srinagar. According to the members of the plaintiff
Association, the Wakf Complex, Soura, Srinagar, has been
constructed under the Self Finance Scheme and they have
deposited huge amount of money with the defendants for
the purpose of construction of the complex.
3) It has been submitted by the plaintiff Association that
in the year 2005, the shops/rooms were allotted to the
members of the Association and the rent in respect of the
same was fixed which was to be increased by 15% initially
after five years and subsequently after the expiry of three
financial years. It has been alleged that the defendants have
taken a decision on 21st July, 2022 for revision of rates of
rent with effect from 01.04.2018 by enhancing the rent by
120%.
4) The members of the plaintiff Association have sought
a declaration that the aforesaid decision be declared as
null and void with a mandatory injunction commanding the
defendants to accept the rent of the plaintiffs in accordance
with terms of the lease deed executed between the parties,
with a permanent injunction that the defendants should be
CR No.31/2024 Page 2 of 12
restrained from evicting the members of the plaintiff
Association from the demised shops/rooms.
5) It seems that the defendants/petitioners filed an
application under Order 7 Rule 11 of CPC before the learned
trial court seeking rejection of the plaint. It was contended
by the defendants in their application that in view of the
provisions contained in Section 85 of the Waqf Act, 1995,
jurisdiction of the Civil court to entertain a suit of the
present nature is expressly barred.
6) The aforesaid application was contested by the
plaintiff on the ground that no Tribunal under Waqf Act,
1995 has been constituted in the Union Territory of
Jammu and Kashmir and, as such, the statutory forum is
not available for the plaintiff to redress its grievance.
7) The learned trial court, after hearing the parties and
after analysing the pleadings, came to the conclusion that
even though there is a specific bar to file a suit before the
Civil Court in respect of the subject matter of the suit under
Section 85 of the Waqf Act, 1995, yet, because no Tribunal
under the Waqf Act has been constituted in the Union
Territory of J&K, as such, the plaintiff cannot be left
remediless and on this basis, the application of the
petitioners/defendants came to be dismissed and the suit
has been held to be maintainable.
CR No.31/2024 Page 3 of 12
8) The petitioners have challenged the impugned order
passed by the learned trial court on the grounds that there
is an express bar contained in Section 85 of the Waqf Act,
which precludes civil courts from entertaining any suit or
proceeding concerning Waqf properties. Therefore, there is
no scope for the civil courts to entertain suits in respect of
the Waqf properties under any circumstances whatsoever.
It has been contended that the maxim ‘ubi jus ibi remedium’
applies only to a case where there is no express bar to
jurisdiction of the civil court and merely because the Waqf
Tribunal has not been constituted, the bar to filing of a civil
suit as contained in Section 85 of the Waqf Act cannot be
negated.
9) Despite service, nobody appeared on behalf of the
respondent/plaintiff, as such, the case has been considered
in exparte.
10) I have heard learned counsel for the petitioner and
perused record of the case including the trial court record.
11) There is no dispute to the fact that the subject matter
of the suit pending before the learned trial court is waqf
property. The plaintiff, by way of the suit filed before the
learned trial court, is challenging the action of the
petitioners regarding enhancement of the rentals. The first
CR No.31/2024 Page 4 of 12
question that needs to be addressed is as to whether the
subject matter of the suit can be adjudicated upon by the
machinery provided under the Waqf Act. Section 83 of the
Waqf Act provides for constitution of Tribunals. Sub-section
(1) of Section 83, which is relevant to the context, is
reproduced as under:
“(1) The State Government shall, by
notification in the Official Gazette,
constitute as many Tribunals as it may
think fit, for the determination of any
dispute, question or other matter relating to
a waqf or waqf property, eviction of a tenant
or determination of rights and obligations
of the lessor and the lessee of such
property, under this Act and define the
local limits and jurisdiction of such
Tribunals.”
12) From a perusal of the aforesaid provision, it is clear
that a Tribunal constituted by the State Government has
jurisdiction to determine any dispute, question or other
matter relating to a waqf or waqf property, eviction of a
tenant or determination of rights and obligations of the
lessor and the lessee of such property.
13) Admittedly, the plaintiff in the suit is challenging the
decision of the petitioners/defendants to enhance the rent
in respect of the demised property which is waqf property.
Therefore, the matter, which is sought to be adjudicated
upon before the trial court is cognizable by a Tribunal
constituted under Section 83 of the Waqf Act.
CR No.31/2024 Page 5 of 12
14) The other provision which is required to be taken note
of is Section 85 of the Waqf Act, 1995. The same reads as
under:
“85. Bar of jurisdiction of civil courts.–No suit or
other legal proceeding shall lie in any civil court,
revenue court and any other authority in respect of
any dispute, question or other matter relating to any
waqf, waqf property or other matter which is required
by or under this Act to be determined by a Tribunal.”
15) From a perusal of the aforesaid provision, it is clear
that the matters, which are required to be determined by
the Tribunal under the Waqf Act, cannot be gone into in a
civil suit by a civil court or by a revenue court or any other
authority. There is an express bar regarding jurisdiction of
the civil courts to entertain such kind of matters. In normal
circumstances, the suit filed by the respondent/ plaintiff
against the petitioners/defendants is barred in view of
express interdiction contained in Section 85 of the Waqf
Act. But the question that arises for determination is as to
whether, in the absence of a Tribunal for determination of
disputes cognizable by the Tribunal, the civil court can
entertain the suit of present nature.
16) Section 9 of the Code of Civil Procedure provides that
courts shall have jurisdiction to try all suits of civil nature
excepting the suits, the cognizance of which is either
expressly of impliedly barred. Thus, jurisdiction of a civil
CR No.31/2024 Page 6 of 12
court to entertain a suit of civil nature is wide and it is only
in cases where a suit is either expressly or impliedly barred
that a civil court would refuse to entertain a suit of civil
nature.
17) A Constitution Bench of the Supreme Court has, in
the case of Dhulabhai and others vs. State of Madhya
Pradesh and anr. AIR 1969 SC 78, after analysing the legal
position with regard to scope of the civil court to entertain
a suit in the light of Section 9 of the Civil Procedure Code,
laid down the following principles:
1) Where the statute gives a finality to the
orders of the special tribunals the Civil Courts’
jurisdiction must be held to be excluded if there
is adequate remedy to do what the Civil Courts
would normally do in a suit. Such provision,
however, does not exclude those cases where
the provisions of the particular Act have not
been complied with or the statutory tribunal
has not acted in conformity with the
fundamental principles of judicial procedure.
(2) Where there is an express bar of the
jurisdiction of the court, an examination of the
scheme of the particular Act to find the
adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court.
Where there is no express exclusion the
examination of the remedies and the scheme
of the particular Act to find out the intendment
becomes necessary and the result of the
inquiry may be decisive. In the latter case it is
necessary to see if the statute creates a special
right or a liability and provides for the
determination of the right or liability and further
lays down that all questions about the said
right and liability shall be determined by the
tribunals so constituted, and whether
remedies normally associated with actions in
CR No.31/2024 Page 7 of 12
Civil Courts are prescribed by the said statute
or not.
(3) Challenge to the provisions of the particular
Act as ultra vires cannot be brought before
Tribunals constituted under that Act. Even the
High Court cannot go into that question on a
revision or reference from the decision of the
Tribunals.
(4) When a provision is already declared
unconstitutional. or the constitutionality of any
provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for
refund if the claim is clearly within the time
prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
(5) Where the particular Act contains no
machinery for refund’ of tax collected in excess
of constitutional limits or illegally collected a
suit lies.
(6) Questions of the correctness of the
assessment apart from its constitutionality are
for. the decision of the authorities and a civil
suit does not lie if the orders of the authorities
are declared to be final or there is an express
prohibition in the particular Act. In either case
the scheme of the particular Act must be
examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil
Court is not readily to be inferred unless the
conditions above set down apply.
18) From a perusal of the aforesaid principles laid down
by the Supreme Court, particularly the principle mentioned
at para (2) above, it is clear that where there is an express
bar to jurisdiction of a court, an examination of the scheme
of the particular Act to find the adequacy or sufficiency of
the remedies provided is a relevant factor, though it may
not be decisive to sustain the jurisdiction of the Civil Court.
However, in a case where exclusion is pleaded as a matter
CR No.31/2024 Page 8 of 12
of necessary implication, such consideration is very
important and the same would become decisive. From this
it can be deduced that even in a case where there is an
express bar for exercising jurisdiction by the Civil Courts,
the consideration as to the scheme of the statute in
question and the adequacy and or sufficiency of the remedy
provided for it is permissible in law.
19) Coming to the facts of the present case, it is not in
dispute that there is an express bar to the jurisdiction of
the Civil Court to entertain a suit relating to a matter which
can be adjudicated by a Tribunal constituted under Section
83 of the Waqf Act. Section 85 of the Waqf Act contains an
express bar to the jurisdiction of the Civil Court in such
cases. It is not in dispute that the Government of Union
Territory of Jammu and Kashmir has not constituted any
Tribunal in terms of Section 83 of the Waqf Act. The bar to
jurisdiction of the Civil Court under Section 85 of the Act
would come into play if a matter or a dispute relating to
waqf property which is required to be determined by the
Tribunal is brought before it. So, the constitution of a
Tribunal in terms of Section 83 of the Waqf Act is a pre-
condition for invoking the provisions contained in Section
85 of Waqf Act. If no Tribunal has been constituted under
Section 83 of the Act, there would be no forum to determine
CR No.31/2024 Page 9 of 12
a dispute or question relating to waqf property or any other
matter required to be determined by the Tribunal.
20) Thus, when we examine the scheme of the Waqf Act,
particularly the provisions contained in Section 83 and 85
of the said Act in the light of the fact that the Tribunal under
Section 83 of the Act has not been constituted as yet, it can
be safely stated that a litigant agitating a dispute or
question relating to any waqf property does not have any
remedy, much less an efficacious remedy for redressal of
his grievance. In these circumstances, the bar to the
jurisdiction of the Civil Courts as contained in Section 85
of the Waqf Act would not come into play.
21) Learned counsel for the petitioners has contended
that this Court has, in the case of Inhabitants of Nowpora
and others vs. Chief Executive Officer and others, 2007
(1) JKJ 346, held that in case of a dispute, to which Waqf
Act applies, the Civil Court lacks jurisdiction to try the suit.
Reliance has also been placed upon a judgment of this
Court in the case of Traders Association Ziyarat Baba
Reshi Tangmar vs. UT of J&K & Others (WP(C)
No.2361/2022 decided on 29.02.2024.
22) So far as the judgment in Inhabitants of Nowpora &
Ors‘s case (supra) is concerned, the same was delivered
CR No.31/2024 Page 10 of 12
when the provisions of the Jammu and Kashmir Specified
Wakafs and Specified Wakaf Properties (Management and
Regulation) Act, 2004, were in operation and at the relevant
time, the Tribunal under the said Act was functional.
Therefore, the ratio laid down in the said case would not be
attracted to the facts of the present case.
23) So far as the judgment in Traders Association
Ziyarat Baba Reshi‘s case (supra) is concerned, in the said
case, this Court has decided the question about the
maintainability of a writ petition against the Board of Auqaf.
The Court, after observing that functions of the Board of
Auqaf entering into lease agreements with private
individuals in respect of the waqf properties is more of a
commercial/contractual nature rather than a public
function, held that the Board of Auqaf does not fall within
the definition of the term ‘State’ contained in Article 12 of
the Constitution of India, hence not amenable to writ
jurisdiction of the High Court in such matters. The question
whether a Civil Court would have jurisdiction to entertain
a dispute cognizable by a Tribunal even in a case where the
Tribunal has not been constituted was not an issue for
determination before this Court in the aforesaid case.
Therefore, the ratio laid down in the said case would also
not be applicable to the facts of the present case.
CR No.31/2024 Page 11 of 12
24) For what has been discussed hereinbefore, it cannot
be stated that the learned trial court, while holding the suit
against the petitioners/defendants maintainable and while
declining their application under Order 7 Rule 11 of CPC,
has committed any illegality or that it has acted with
material irregularity which would warrant interference from
this Court. Therefore, there is no ground or reason for this
Court to exercise its revisional jurisdiction in respect of the
impugned order.
25) For the foregoing reasons, the petition lacks merit and
is dismissed accordingly along with connected CM(s).
Interim direction, if any, shall stand vacated.
26) It is, however, provided that if during the pendency of
the suit, the Tribunal under Section 83 of the Waqf Act,
1995, is constituted by the Government of Union Territory
of Jammu and Kashmir, the learned trial court shall
transfer the suit to the said Tribunal.
(Sanjay Dhar)
Judge
Srinagar,
11.07.2025
“Bhat Altaf-Secy”
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document CR No.31/2024 Page 12 of 12
11.07.2025 02:51
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