Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar held that a civil suit challenging the enhancement of rent in respect of Waqf property is maintainable in the absence of a duly constituted Waqf Tribunal under Section 83 of the Waqf Act, 1995. The Court dismissed the revision petition seeking rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure, holding that in the absence of a statutory forum, the civil court could exercise jurisdiction to ensure the plaintiff is not left without remedy.

The petitioner, a statutory Waqf Board constituted under the Waqf Act, 1995, filed a revision petition challenging the order dated 02.11.2024 passed by the Civil Judge (Senior Division), Srinagar. By the said order, the trial court had dismissed the petitioner's application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, which sought rejection of the plaint filed by the respondent.

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The respondent, a registered welfare association of shopkeepers, had instituted a civil suit seeking a declaration and injunction against a 120% hike in rent levied by the petitioner in respect of shops located in the Wakf Complex, Soura, Srinagar. The plaintiff association claimed its members were allottees of shops constructed under the Self Finance Scheme and had deposited substantial sums toward construction costs. As per the association’s pleadings, the rent was originally fixed in 2005 with agreed periodic increments. The disputed enhancement, effected from 01.04.2018, allegedly violated the lease terms.

In the suit, the plaintiffs sought a declaration that the decision to enhance rent was null and void, a mandatory injunction to compel acceptance of rent as per the original lease, and a permanent injunction to restrain eviction.

In response, the Waqf Board invoked Section 85 of the Waqf Act, 1995, contending that civil courts have no jurisdiction to entertain disputes concerning waqf property, which fall within the exclusive jurisdiction of Tribunals constituted under Section 83 of the Act. On this basis, the Board filed an application under Order 7 Rule 11 CPC seeking rejection of the plaint.

The plaintiff association contested this position, arguing that no Waqf Tribunal had been constituted in the Union Territory of Jammu & Kashmir under Section 83 of the Act, and hence, no alternative forum was available for redressal. Consequently, they argued, the bar under Section 85 could not be invoked.

The trial court, upon considering both sides, held that although there was an express bar under Section 85 of the Waqf Act, the absence of a Tribunal under Section 83 rendered the bar inoperative. It therefore dismissed the application for rejection of the plaint and held the civil suit to be maintainable.

The petitioner Waqf Board then filed the present revision petition before the High Court, arguing that the bar under Section 85 was absolute and could not be circumvented by the non-constitution of a Tribunal. The petitioner further relied on the legal maxim ubi jus ibi remedium, stating that it was inapplicable where a statute explicitly barred civil court jurisdiction.

Despite service of notice, no one appeared on behalf of the respondent shopkeepers’ association in the High Court proceedings. The matter was, therefore, heard ex parte.

The Court analysed Sections 83 and 85 of the Waqf Act, 1995, in detail and stated:  “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.”

Referring to Section 83(1) of the Waqf Act, the Court quoted: “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.”

It then stated: “From a perusal of the aforesaid provision, it is clear that a Tribunal constituted by the State Government has jurisdiction to determine any dispute... including determination of rights and obligations of the lessor and the lessee.”

On the scope of Section 85, the Court quoted: “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.”

However, the Court proceeded to examine the impact of the absence of a Tribunal and relied on the Supreme Court’s Constitution Bench ruling in Dhulabhai & Ors. v. State of Madhya Pradesh & Anr. (AIR 1969 SC 78), stating: “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...”

“It can be deduced that even in a case where there is an express bar... the consideration as to the scheme of the statute in question and the adequacy or sufficiency of the remedy provided for it is permissible in law.”

Applying this principle, the Court found that since no Tribunal had been constituted by the Government of Jammu & Kashmir under Section 83, the plaintiff was left without any forum to pursue its claim. Therefore, the bar under Section 85 could not be applied in such a vacuum.

In this regard, the Court stated: “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... If no Tribunal has been constituted... there would be no forum to determine a dispute or question relating to waqf property.”

“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.”

The Court also examined and distinguished earlier judgments cited by the petitioner, noting that they were rendered when Tribunals under earlier statutes had been functioning or addressed different legal questions. The Court recorded: “Therefore, the ratio laid down in the said case would not be attracted to the facts of the present case.”

In its final directions issued on 11.07.2025, the Court recorded that, based on the preceding analysis, it could not be said that the trial court had committed any illegality or acted with material irregularity in declaring the suit maintainable and rejecting the application under Order 7 Rule 11 of the Civil Procedure Code.

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The Court found no ground or justification to invoke its revisional jurisdiction concerning the impugned order. Consequently, the petition was dismissed for lack of merit, along with all connected miscellaneous applications, and any interim direction previously granted was ordered to stand vacated.

Additionally, the Court clarified that in the event a Tribunal under Section 83 of the Waqf Act, 1995, is constituted by the Government of the Union Territory of Jammu and Kashmir during the pendency of the suit, the trial court shall transfer the matter to the said Tribunal.

Advocates Representing the Parties

For the Petitioners: Mr. Ruaani Ahmad Baba, Advocate

Case Title: J&K Board for Muslim Specified Wakfs & Specified Wakf Property v. Soura Shopkeepers Welfare Association

Case Number: CR No. 31/2024

Bench: Justice Sanjay Dhar