Supreme Court says only Waqf Board has jurisdiction to decide on appointment of Mutawalli

The Supreme Court on Thursday ruled that while the Waqf Tribunal was only an adjudicating authority over a dispute, the Waqf Board was expected to deal with any issue pertaining to the administration, including the appointment of Mutawalli, whose job was to manage the Waqf properties.

The order was passed by the Bench of Justice M M Sundresh and Justice S V N Bhatti on a petition challenging the Kerala High Court order of October 29, 2018, which held that only the Waqf Tribunal had the jurisdiction to decide the issue of Mutawalliship.

The matter pertained to a dispute before the Waqf Board, in which both parties claimed their respective rights to Mutawalliship and Sheikhship. The Waqf Board had ruled in favour of the appellant declaring him as a Mutawalli.

The respondents then filed an application invoking Section 83 of the Waqf Act, 1995 before the Waqf Tribunal, which, after affording opportunities to both sides, inter alia, held that there was no perversity in the decision rendered by the Waqf Board.

A petition was also filed by the respondents before both the Waqf Board and the Waqf Tribunal, over the question of jurisdiction. The respondents contended that the Waqf Tribunal had the original jurisdiction to decide the issue pertaining to Mutawalliship and, therefore, the Waqf Board did not have the jurisdiction.

A revision filed in the High Court set aside the judgment and decree of the Waqf Tribunal inter alia holding that the Waqf Board did not have the jurisdiction and therefore, the matter had to be decided afresh only by the Waqf Tribunal.

Setting aside the High Court verdict, the Apex Court observed that the order could not be sustained in the eyes of law as the Waqf Board had rightly exercised the jurisdiction in exercise of power conferred under Section 32(2)(g) read with the definition under Section 3(i), which defined a ‘Mutawalli’.”

Having perused Section 83 Sub-Sections (5) and (7) of the Act, which dealt with the powers of the Tribunal, the Bench said the Waqf Tribunal was deemed to be a civil court having the same powers that could be exercised by the civil court under the Code of Civil Procedure, 1908.

It said a dispute could be tried like a suit by the Waqf Tribunal. Under sub-section (7) of Section 83 of the Waqf Act, the decision of the Tribunal should be deemed final and binding upon the parties and it shall have a force of a decree made by a civil court.

Referring to the word ‘competent authority’ as mentioned in the definition clause contained in Section 3(i), the court said this made the position further clear that it was the Waqf Board, which had the jurisdiction and not the Waqf Tribunal.

It further observed that the Waqf Tribunal was only an adjudicating authority over a dispute while the Waqf Board was expected to deal with any issue pertaining to administration.

The Bench noted that the power of superintendence could not be confined to routine affairs of a Waqf but it included a situation, where a dispute arose while managing the property and that would certainly include a right of a person to be a Mutawalli. After all, a Mutawalli was the person who did the job of administering and managing the Waqf.

The Apex Court ruled that the High Court order could not be sustained in relegating the matter to an adjudicating authority by treating it as a competent authority, which was none other than the Waqf Board.

The top court of the country remitted the matter back to the High Court to decide the revision on merits, in accordance with the law, except the issue of jurisdiction as decided by the Apex Court in this appeal.

The Bench further asked the High Court to expedite the hearing and make an endeavour to dispose it of as early as possible in view of the fact that the revision was filed in 2015 and the dispute was pending since 1987.

The Apex Court left all issues open for the High Court to decide.