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CORRECTED REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.14565   OF 2015 (Arising out of SLP(C) NO. 29234/2015)

LAL SHAH BABA DARGAH TRUST Appellant (s) versus

MAGNUM DEVELOPERS AND OTHERS Respondent(s) WITH

CIVIL APPEAL NO.14566    OF 2015 (Arising out of SLP(C) NO. 31610/2015)

MAHARASHTRA STATE BOARD OF WAKFS  THROUGH ITS CHIEF EXECUTIVE OFFICER Appellant (s)

versus MAGNUM DEVELOPERS AND OTHERS Respondent(s)

CIVIL APPEAL NO.14567   OF 2015 (Arising out of SLP(C) NO. 31606/2015)

MUSHTAQUE AHMED SHAIKH FAKHRUDDIN Appellant (s) versus

MAGNUM DEVELOPERS AND OTHERS Respondent(s)

CIVIL APPEAL NO.14569   OF 2015 (Arising out of SLP(C) NO. 31605/2015)

SHAIKH RAHIM AND ANOTHER Appellant (s) versus

MAGNUM DEVELOPERS AND OTHERS Respondent(s)

CIVIL APPEAL NO.14570    OF 2015 (Arising out of SLP(C) NO. 31595/2015)

JAVED HAMID DESHMUKH Appellant (s) versus

MAGNUM DEVELOPERS AND OTHERS Respondent(s)

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CIVIL APPEAL NO.14571   OF 2015 (Arising out of SLP(C) NO. 30725/2015)

MAGNUM DEVELOPERS AND OTHERS Appellant (s) Versus

LAL SHAH BABA DARGAH TRUST AND ANOTHER Respondent(s)

J U D G M E N T

M.Y. Eqbal, J.:

In  the  special  leave  petition  being  SLP(C)No.29234  of

2015, the petitioner (plaintiff) seeks to challenge the impugned

judgment and order dated 11.9.2015 passed by Single Judge

of the Bombay High Court in Civil Revision No.395 of 2015,

whereby  waqf  suit  instituted  by  the  petitioner  before  one

member Waqf Tribunal has been held to be not maintainable

and necessary directions have been issued by the said order

for  return  of  the  plaint  and  for  presentation  before  the

appropriate civil court for adjudication of disputes.

2. The plaintiff, a trust called Lal Shah Baba Dargah Trust,

instituted the suit before the one member  Maharashtra Waqf

Tribunal, Aurangabad (in short,  “the Tribunal”)  claiming the

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suit property as waqf property held by the trust, for perpetual

injunction  restraining  defendants  nos.  1  to  7  from illegally

developing portion of the suit plot in City Survey No. 1/50 to

11/50 and part of C.S.No.50 situated at Tawripada, Lalbagh,

Mumbai;  from  raising  further  construction;  creating  third

party interest; from changing the nature of the suit properties

as  also  from  handing  over  the  possession  of  the  flats

constructed  therein.   A  separate  application  for  temporary

injunction was also filed before the Tribunal, which was partly

allowed and an ad-interim injunction in those terms has been

granted.

3. Aggrieved by the order passed by the Tribunal granting

injunction, the defendant-respondents moved the High Court

under  Section  83(9)  of  the  Waqf  Act,  1995  by  way  of  civil

revision, which was registered as C.R. No.395 of 2015.  The

defendant-respondents, besides other defence, challenged the

jurisdiction of one man Tribunal on the ground inter alia that

the functioning of single member Tribunal constituted under

Section 83(4) of the 1995 Act ceased to have jurisdiction after

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the 1995 Act was amended by Wakf (Amendment) Act of 2013,

which came into force with effect  from 1.11.2013 i.e.  much

before the commencement of the suit before one man Tribunal.

4.  The High Court after hearing the parties allowed the civil

revision application and set aside the order  of  the Tribunal

holding that it has no jurisdiction.  However, the High Court in

the impugned order did not interfere with the interim order.

The High Court finally held:-

“74. Now it  is also necessary to consider the fate of suits or other proceedings which are instituted prior to coming  into force  of  the  Amendment  Act  with effect from  1.11.2013.  The  legislature  has  not  made  any transitory  provision.  The  legislature  has  also  not provided for  transfer  of  suits/proceedings  which are instituted prior to 1.11.2013. In view of Section 6(e) of the  General  Clauses  Act,  1897,  suits/proceedings instituted  before  a  single  member  Tribunal  prior  to 1.11.2013 shall be continued as if Section 83(4) is not amended. In view thereof,  it  has to be held that the waqf  suit  instituted  by  the  plaintiff  after  1.11.2013 before a single member Tribunal is not maintainable and consequently Plaint is liable to be returned along with  Applications  Exhibit  19  and  30.  Parties  shall appear before the Tribunal when the Tribunal will pass further  orders  for  return  of  Plaint  along  with Applications-Exhibit 19 and 30 for presentation before appropriate  Civil  Court  in  the  light  of  observations made  herein.  The  impugned  order  will  have  to  be quashed and set aside on the ground that it is without jurisdiction  and  Applications-Exhibit-19  and Exhibit-30 filed by the plaintiff are liable to be restored to  the  file.  The  said  Applications  will  have  to  be

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decided by the Civil Court after return of Plaint along with  Applications  Exhibit  19  and  30,  on  their  own merits and in accordance with law uninfluenced by the observations made herein. 75.  In  the  light  of  the  aforesaid  discussion,  Civil Revision Application is allowed as under:-

1. The waqf suit instituted by the plaintiff before a  single  member  Tribunal  is  not  maintainable and  consequently  Plaint  along  with Applications-Exhibit 19 and 30 are liable to be returned  for  presentation  before  appropriate Civil  Court.  Parties  shall  appear  before  the Tribunal on 15.9.15 and the Tribunal will pass necessary orders within two weeks from the date of appearance of the parties. 2.  Impugned  order  passed  by  the  Tribunal  is quashed and set aside on the ground that the said  order  is  without  jurisdiction  and Applications-Exhibit-19  and  30  filed  by  the plaintiff  are  restored  to  the  file.  The  said Applications shall be decided by the Civil Court after return of Plaint on their own merits on the basis  of  material  on record and in accordance with law uninfluenced by the observations made herein. 3. Suits or any other proceedings instituted prior to  1.11.2013 before  a  single  member  Tribunal will continue to be tried by the said Tribunal in view of Section 6(e) of the General Clauses Act, 1897. 4. On and after 1.11.2013, being the date when Amendment  Act  came  into  force,  a  single member  Tribunal  has  no  jurisdiction  to entertain  and  try  disputes  referred  in  Section 83(1)  of  the  Act.  Suits  or  any  proceedings instituted  on  and  after  1.11.2013  cannot  be tried by a single member Tribunal. 5. Civil Courts will have jurisdiction to entertain and try suits or any other proceedings instituted on and after 1.11.2013 despite bar of Section 85 till  such  time  the  State  Government  issues notification appointing a three member Tribunal as per the amended Section 83(4).

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6.  As  there  is  no  provision  for  transfer  of pending suits  in the Amendment  Act,  suits  or any other proceedings, so instituted on or after 1.11.2013,  shall  continue  to  be  tried  by  Civil Courts even after the State Government issues notification  constituting  a  three  member Tribunal  as  per  the  Amended  Section  83(4) unless  the  Central  Government  intervenes  as per Section 113 or the Act is suitably amended. 7.  Notwithstanding setting aside the impugned order, Clauses (2) and (3) of operative part of the impugned  order  shall  remain  in  force  for  a period of six weeks from today so as to enable the  plaintiff  to  obtain  appropriate  adinterim, interim order from Civil Court. Continuation of the  ad-interim  order  shall  not  be  treated  as expression of merits of the case either way. All the contentions in that regard are expressly kept open. 8. Rule is made absolute in the aforesaid terms with no orders as to costs.”

5. The  defendant-respondent  Maharashtra  State  Board  of

Wakfs, also aggrieved by the impugned order, has filed special

leave petition being SLP(C) No. 31610 of 2015.  The petitioners

in SLP(C) Nos.31605, 31606 and 31595 of 2015 are aggrieved

by that part of the impugned order whereby the High Court

divested  jurisdiction  of  the  Waqf  Tribunal  in  respect  of  the

waqf suit and conferred jurisdiction to the civil court to decide

all those suits.

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6. In  SLP(C)  No.30725 of  2015,  the  petitioner-defendants

have assailed that part of the impugned order passed by the

High Court whereby the High Court refused to interfere with

the interim order passed by the Tribunal and directed that the

interim order passed by the Tribunal  shall  continue till  the

plaint of the suit is presented to the civil court.

7. Since  all  these  special  leave  petitions  arise  out  of  the

impugned judgment passed by the High Court and common

questions  of  law are  involved,  these applications have  been

heard together and are disposed of by this common judgment.

8. Leave granted.  

9. Mr. Saghar A. Khan, learned counsel appearing for the

appellant, assailed the impugned judgment and order passed

by  the  High  Court  as  being  illegal  and  wholly  without

jurisdiction inasmuch as in exercise of revisional power under

Section 83(9) of the Waqf Act, 1995.  The High Court ought not

to  have  entered into  the  merits  of  the  case  and decide the

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jurisdiction of Single Member Tribunal before  which the suit

was  pending  for  adjudication.   According  to  the  learned

counsel, when the petition was filed by the respondent under

Section  9(A)  CPC  of  the  Maharasthra  Amendment  Act  was

pending before the Tribunal, the High Court ought not to have

decided the jurisdiction of the Tribunal in the revision petition

which  was  filed  by  the  defendant-respondent  assailing  the

order of interim injunction.

10. Learned counsel then submitted that in any case so long

as the State Government by notification in the official Gazette

does not constitute a Tribunal as per amended Section 83(4) of

the  Act,  the  Single  Member  Tribunal  shall  continue  to

determine and decide the matters referred to it under Section

83(1) of the Act.  It was submitted that the Waqf Act, 1995 was

amended  and  the  notification  to  that  effect  was  issued  on

20.09.2013 amending certain provisions of the Waqf Act, 1995

including Section 83(4) of the Act.  By the said amendment the

Tribunal which was already functioning under the principal

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Act  was  continued  since  no  fresh  notification  constituting

Three Member Tribunal was issued.  Learned counsel submits

that in terms of amended Section 83(4) of the Act, the State

Government  shall  have  to  issue  a  fresh  notification  in  the

official  gazette  constituting  Three Members Tribunal.   Till  a

fresh notification is  issued,  the One Member Tribunal  shall

continue  to  function.   In  this  respect  learned  counsel

submitted that the Andhra Pradesh High Court, Gujarat High

Court and Kerala High Court have uniformly taken a view that

so long as the State Government has not constituted a Three

Member Tribunal in terms of the amendment in Section 83(4)

of the Act, a Single Member Tribunal is competent to decide

the questions referred to it.

11. Lastly,  Mr.  Khan,  brought  to  our  notice  a  notification

issued by the Central Government dated 14.05.2015 by which

several  amended  acts  sought  to  repeal  including  the  Wakf

Amendment Act, 2013 which came into force on 01.11.2013.

According to the learned counsel, the said notification of the

Central  Government  of  2015  repealing  various  amendment

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acts was not brought to the notice of the High Court.  In the

alternative, learned counsel submits that after the Amended

Act,  2015,  repealing  2013  amendment,  the  One  Member

Tribunal is fully competent to entertain and decide the suit

that has been filed by the appellant.

12. Learned counsel further contended that the High Court

has totally ignored the mandate of Section 90(1) and (3) of the

Act allowing the prayer of the defendants to delete the name of

Respondent  No.2  –  Waqf  Board  from  the  said  Revision

Application.  The impugned order was passed without issuing

notice  to  the  Waqf  Board  and  on  this  ground  alone  the

impugned  order  is  liable  to  be  set  aside.   The  High  Court

further failed to consider the provisions of Section 6, Section 7

and Section 85 of the Waqf Act, 1995 which completely oust

the jurisdiction of Civil  Court to decide the nature of  Auqaf

and Waqf properties as the same requires adjudication by the

Waqf Tribunal alone.

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13. Per contra,  Mr.  Y.H. Muchhala,  learned senior counsel

appearing for the defendant-respondents firstly contended that

the  plaintiff  instituted  the  waqf  suit  after  amendment  to

Section  83(4)  came  into  force  in  2013.   On  and  from

01.01.2013,  the Single  Member Tribunal  cannot  decide and

determine  the  dispute  referred  to  instituted  before  the

Tribunal.   According to the learned counsel while amending

the Act of 1995 the Legislature has not made any transitory

provision, hence bar under Section 85 cannot be invoked in

the  facts  and  circumstances  of  the  present  case  and

particularly when the State Government has not issued a fresh

notification appointing a Three Member Tribunal  in terms of

amended Section 83(4).  So long as a Three Member Tribunal

is not constituted by the State Government, the jurisdiction of

Civil Court is not ousted.  The High Court, therefore, rightly

held that the plaintiff can approach the Civil Court and obtain

appropriate relief so long as the Three Member Tribunal is not

constituted in terms of Section 83(1)(4) of the Act.  In support

of the submission, learned counsel relied upon the decision of

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this Court in the case of  Rajasthan State Road Transport

Corporation  and  Another  vs.  Bal  Mukund  Bairwa  (2),

(2009)4 SCC 299; and  Afcons Infrastructure Limited and

Another  vs. Cherian  Varkey  Construction  Company

Private Limited and Others, (2010) 8 SCC 24.

14.   It has further been submitted on behalf of the defendants

that the plaintiff has not prima facie established that the suit

properties are the waqf  properties belonging to the plaintiff,

and  therefore,  the  Tribunal  was  not  justified  in  granting

ad-interim order.   Whereas it has been pleaded on behalf of

the plaintiff that coming into force of the Act is one thing and

enforcement of the Act is another thing. Though the Principal

Act  came  into  force  with  effect  from  1.1.1996  and  the

Amendment Act came into force with effect from 1.11.2013,

the scheme of the Act itself contemplates that in stage-wise

the  Act  will  be  enforced.  Till  such  time,  the  Tribunal  is

constituted  in  terms  of  the  amended  Section  83(4),  single

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member  Tribunal  can  proceed  to  decide  the  disputes  as

contemplated  under  the  amended  Section  83(1).  Learned

counsel submitted that the Principal Act as also Amendment

Act contemplate different statutory authorities. Each of such

authorities must exercise the functions within the four corners

of the Statute.  In support of this proposition, plaintiff  relied

upon the decision of the Apex Court in the case of M.P. Wakf

Board vs. Subhan Shah, (2006) 10 SCC 696.

15. As noticed above, the High Court in the concluding para

74 of the impugned order, quoted hereinabove, held that the

suit before the One Member Tribunal is not maintainable and

till  a  fresh  notification  is  issued  by  the  State  Government

constituting  a  Three  Member  Tribunal,  the  Civil  Court  has

jurisdiction  to  entertain  such  suits  and  decide  the  dispute

with regard to waqf properties.  However, learned Single Judge

refused to interfere with the interim order of injunction passed

by One Member Tribunal.  The Court in paragraph 73 of the

impugned order held:-

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“73. The question whether the suit  properties are  wakf  properties  or  not,  is  not  a  pure question of law. It is a mixed question of law and fact. Parties will have to lead evidence in order to substantiate the respective case. For the reasons recorded  in  paragraphs  32  and  34  in  the impugned  order,  the  Tribunal  has  granted ad-interim order. I do not find that the Tribunal committed any error in passing the ad-interim order.  I, therefore, do not find that defendants no. 1 to 7 have made out any case for interfering with  the  impugned  order  in  the  exercise  of revisional jurisdiction.”

16. We  have  heard  learned  counsel  for  the  parties  and

examined the relevant provisions of both the principal Act and

the amendment Act brought in 2013.

17. A cursory glance of the Waqf Act, 1995 would show that

the Waqf Act, (for short ‘1995 Act’) came into force with effect

from  1.1.1996.  By Section 3(q), the Tribunal is defined as the

Tribunal constituted under sub-section 1 of the Section 83 of

the Act having jurisdiction in relation to that area.  Section 84

confers power to the Tribunal to decide and determine dispute,

questions  or  other  matters  relating  to  a  waqf  property  and

decide the proceeding as expeditiously as possible.

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18. The relevant provision i.e.  Section 83 confers power to

the State Government to constitute Tribunals.  In the original

Act, Section 83 provides for constitution of Tribunal consisting

of only one person.  Sub-section 4 of Section 83 as it stood

under the original Act is quoted hereinbelow:-

“(4) Every Tribunal shall consist of one person, who  shall  be  a  member  of  the  State  Judicial Service  holding  a  rank,  not  below  that  of  a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation”.

19. Certain  amendments  have  been  brought  in  the  Act  of

1995 in 2013 called the Wakf (Amendment) Act, 2013.  By this

Amendment  Act,  2013,  many  sections  have  been  amended

including Section 83.  After amendment, Section 83 reads as

under:-

“83. Constitution of Tribunals, etc.-  (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;

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(2)  Any mutawalli  person  interested  in a Waqf  or  any other person aggrieved by an order made under this Act, or  rules  made  thereunder,  may  make  an  application within the time specified in this Act or where no such time has been  specified,  within  such  time  as  may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Waqf.  (3)  Where  any application made under  sub-section (1) relates  to  any  Waqf  property  which  falls  within  the territorial  limits  of  the  jurisdiction  of  two  or  more Tribunals, such application may be made to the Tribunal within  the  local  limits  of  whose  jurisdiction  the mutawalli  or  any  one  of  the  mutawallis  of  the  Waqf actually and voluntarily resides, carries on business or personally  works  for  gain,  and  where  any  such application is made to the Tribunal aforesaid, the other Tribunal  or  Tribunals  having  jurisdiction  shall  not entertain any application for the determination of such dispute,  question  or  other  matter:  Provided  that  the State  Government  may,  if  it  is  of  opinion  that  it  is expedient in the interest of the Waqf or any other person interested in the Waqf or the Waqf property to transfer such  application  to  any  other  Tribunal  having jurisdiction  for  the  determination  of  the  dispute, question or other matter relating to such Waqf or Waqf property, transfer such application to any other Tribunal having jurisdiction , and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the  Tribunal  from which  the  application  has  been  so transferred, except where the tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.  (4) Every Tribunal shall consist of—  (a)  one  person,  who  shall  be  a  member  of  the  State Judicial  Service  holding  a  rank,  not  below  that  of  a District, Sessions or Civil Judge, Class I, who shall be the Chairman;  (b)  one person, who shall  be an officer  from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;  (c)  one  person  having  knowledge  of  Muslim  law  and jurisprudence,  Member;  and the  appointment  of  every

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such  person  shall  be  made  either  by  name  or  by designation. (4A) The terms and conditions of appointment including the  salaries  and  allowances  payable  to  the  Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed.  (5) The Tribunal shall be deemed to be a civil court and shall  have the same powers as may be exercised by a civil  court under the Code of Civil Procedure,1908(5 of 1908), while trying a suit, or executing a decree or order. (6)  Notwithstanding anything contained in  the code of Civil  Procedure,  1908(5  of  1908),  the  Tribunal  shall follow such procedure as may be prescribed.  (7)  The  decision  of  the  Tribunal  shall  be  final  and binding upon the parties to the application and it shall have the force of a decree made by a civil court.  (8) The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).  (9)  No  appeal  shall  lie  against  any  decision  or  order whether  interim  or  otherwise,  given  or  made  by  the Tribunal:  Provided that a High court may, on its own motion or on the application of the Board or any person aggrieved, 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 and may confirm, reverse or modify such determination or pass such order as it may think fit.”

20.  Perusal  of  the amended sub-section (4)  of  Section 83

would  show  that  now  the  Tribunal  shall  consist  of  three

members  and  the  State  Government  shall  by  notification

constitute  a  Tribunal  consisting  of  three  members.

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Indisputably,  till  date,  as  per  amended  sub-section  (4)  of

Section 83, the State Governments of different States have not

constituted  Tribunal  consisting  of  three  persons  by  issuing

notification.   

21. The only question, therefore, that arises for consideration

is as to whether till a three member tribunal is constituted by

the  State  Government  by  issuing  notification  one  member

tribunal  as  constituted  under  1995  Act  shall  continue

functioning or it ceases to have any jurisdiction to entertain

disputes and decide it  in accordance with the provisions of

Act.

22. The statement of objects and reasons for bringing Wakf

(Amendment) Act, 2013 is quoted hereinbelow :-

“The Wakf Act, 1995, [which repealed and replaced the Wakf (Amendment) Act, 1984] came into force on the 1st day of January, 1996.  The Act  provides  for  the  better  administration  of auqaf  and  for  matters  connected  therewith  or incidental  thereto.   However,  over the years of the  working  of  the  Act,  there  has  been  a widespread feeling that the Act has not proved

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effective enough in improving the administration of auqaf.

2. The  Prime  Minister’s  High  Level Committee for Preparation of Report on Social, Economic and Educational Status of the Muslim Community  of  India  (also  known  as  Sachar Committee) in its Report submitted to the Prime Minister on the 17th November, 2006 considered the aforementioned issue and suggested certain amendments  to  the  Act  relating  to  women’s representation, review of the composition of the Central  Wakf  Council  and  the  State  Wakf Boards, a stringent and more effective approach to countering encroachments of Waqf properties and other matters.  The Committee stressed the need  for  setting  up  of  a  National  Waqf Development  Corporation  and  State  Waqf Development  Corporations  so  as  to  facilitate proper utilization of valuable waqf properties for the  objectives  intended.   The  Committee recommended that the Act should be amended so that the State Waqf Boards become effective and  are  empowered  to  properly  deal  with  the removal of encroachments of waqf properties.  It also recommended to amend the Act so that the Waqf  Tribunal  will  be  manned  by  a  full  time Presiding Officer appointed exclusively for waqf properties.  The Joint Parliamentary Committee on  Waqf  in  its  Third  Report  presented  to  the Rajya Sabha on the  4th March,  2008 made re commendations for a wide range of amendments relating to time bound survey of waqf properties, prevention  and  removal  of  encroachments, making  the  Central  Waqf  Council  a  more effective  and  meaningful  body,  provisions  for development of waqf properties, etc.  In its Ninth Report presented to the Rajya Sabha on the 23rd October,  2008,  the  Joint  Parliamentary Committee  reconsidered  certain  issues.   The recommendations  of  the  Joint  Parliamentary Committee  on  Waqf  were  considered  by  the Central Waqf Council.  The various issues and the need for amendments to the Act have also

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been  considered  in  consultation  with  other stakeholders  such  as  the  All  India  Muslim Personal Law Board, representatives of the State Governments and the Chairmen and the Chief Executive Officers of State Waqf Boards.”

23. With the aforesaid object, necessary provisions have been

substituted in the original Act.  Clause 40 of the Bill sought to

amend Section 83 of  the  Act  relating to  constitution of  the

Tribunal with a view to expand the composition of a tribunal.

Clause 41 of the Bill sought to amend Section 85 of the Act

dealing with bar of jurisdiction of civil courts so as to bar the

jurisdiction of  the revenue courts and any other authorities

besides civil courts in respect of disputes, question or other

matters relating to Waqf.   Waqf  properties or  other  matters

required to be determined by the Tribunal.

24. The aforementioned objectives nowhere stated that there

was  any  issue  with  regard  to  the  functioning  of  the  single

member  tribunal  in  the  Waqf  Act,  1995,  which  was

functioning  before  the  Wakf  (Amendment)  Act,  2013  (27  of

2013) came into force.  They have come up with the idea of

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three members Tribunal only to expand the composition of the

Tribunal  as  mentioned  in  the  Clause  40  of  the  Wakf

(Amendment) Bill, 2010 (Bill No.53 of 2010), which provides

that  it  seeks  to  amend  Section  83  of  the  Act  relating  to

constitution of Tribunals, etc.  Every Tribunal constituted by

the State Government will  have a Chairman who shall  be a

member of the State Judicial Service holding a rank not below

that of a District, Sessions or Civil Judge Class- I.  There will

be two other members, one of whom shall be an officer from

the State Civil Services equivalent in rank to that of Additional

District Magistrate and the other a person having knowledge of

Muslim law and jurisprudence.

25. From perusal of the statement of objects and reasons, it

reveals that the single member of the Tribunal was working

fine under the Waqf Act, 1995 (before 2013 amendment).  The

idea of expanding the composition by the 2013 Amendment

seems to make improvement in the functioning of the Tribunal

with the help of two more members in the Tribunal.

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26. Even by the 2013 amendment in Section 85 of the Act,

they have also ousted the jurisdiction of the revenue court or

any  other  authorities  along  with  the  civil  court.   Meaning

thereby  the  legislatures  wanted  to  make  sure  that  no

authorities apart from the Tribunal constituted under Section

83 of the Act shall determine any dispute, question or other

matter  relating  to  a  waqf  property,  eviction  of  a  tenant  or

determination of rights and obligations of the lessor and the

lessee of such property under this Act.

27. As per the amendment, the three members Tribunal is to

be constituted by the State Government by notification in the

Official  Gazette.   However,  the  State  has  not  done  its

mandatory duty as provided under Section 83 of the Act (as

the Section 83 uses the word “shall”).  Then the question is

should any party suffer due to the inaction of the State.  We

should keep in mind that it is common practice that the old

institution/member  continues  to  exercise  duty  till  the  time

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any new institution/member takes charge of that duty.  In the

present case also, the one member tribunal will  continue to

exercise jurisdiction till  the time the State constitutes three

members tribunal by notification in the Official Gazette.  The

High Court erred in holding that the civil court will exercise

jurisdiction in such situation as it is manifest by the intention

of the legislature that they do not want any other authorities

to exercise over the Waqf property matter under the Act.

28. Mr. Muchhala, learned senior counsel appearing for the

defendant/respondent,  submitted  that  by  2013  Amendment

Act,  sub-section  83(4)  has  been  substituted  replacing  the

earlier  sub-section 83(4)  of  the Act as the  intention of  the

Legislature is that One Member Tribunal is not enough and in

its place a Three Member Tribunal should function.  According

to the learned counsel the old Section 83(4) and the amended

Section 83(4) is inconsistent with each other and, therefore,

doctrine of implied repeal will apply.  In other words, the word

substitution used in the Amended Act must be interpreted as

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implied  repeal.   In  this  connection,  learned  counsel  relied

upon  Afcons  Infrastructure  (supra), Municipal  Council,

Palai vs. T.J. Joseph, AIR 1963 SC 1561, and Bhagat Ram

Sharma vs. Union of India, AIR (1988) SC 740.

29. We are  unable  to  accept  the  submission  made  by  the

learned  counsel  that  Section  83(4)  of  1995  Act  has  been

impliedly repealed.

30. It is well settled that in case where there is a repealing

clause to a particular Act, it is a case of express repeal, but in

a case where doctrine of implied repeal is to be applied, the

matter will have to be determined by taking into account the

exact meaning and scope of the words used in the repealing

clause.  It is equally well settled that the implied repeal is not

readily  inferred  and  the  mere  provision  of  an  additional

remedy by a new Act does not take away an existing remedy.

While applying the principle of implied repeal, one has to see

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whether apparently inconsistent provisions have been repealed

and reenacted.  

31. The implied repeal of an earlier law can be inferred only

where there is enactment of a later law which had the power to

override  the  earlier  law and is  totally  inconsistent  with  the

earlier law and the two laws cannot stand together.  If the later

law is not capable of taking the place of the earlier law, and for

some reason cannot  be  implemented,  the  earlier  law would

continue to operate.  To such a case, the rule of implied repeal

may result in a vacuum which the law making authority may

not have intended.

32. The principle of implied repeal was considered by three

Judges  Bench  of  this  Court  in  the  case  of  Om  Prakash

Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, this

Court held thus:-

“……An implied repeal of an earlier law can be inferred only where there is the enactment of a

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later  law which had the power to override the earlier  law and is totally inconsistent  with the earlier law, that is,  where the two laws — the earlier  law  and the  later  law  — cannot  stand together. This is a logical necessity because the two  inconsistent  laws  cannot  both  be  valid without  contravening  the  principle  of contradiction.  The  later  laws  abrogate  earlier contrary laws. This principle is, however, subject to  the  condition  that  the  later  law  must  be effective. If the later law is not capable of taking the place of the earlier law and for some reason cannot  be  implemented,  the  earlier  law  would continue to operate. To such a case the Rule of implied  repeal  is  not  attracted  because  the application  of  the  Rule  of  implied  repeal  may result  in  a  vacuum  which  the  law-making authority  may  not  have  intended.  Now,  what does  Appendix II  contain? It  contains a list  of subjects  and marks assigned to each of  them. But  who  tells  us  what  that  list  of  subjects means? It is only in the presence of Rule 11 one can  understand  the  meaning  and  purpose  of Appendix  II.  In the absence  of  an amendment reenacting  Rule  11  in  the  1947  Rules,  it  is difficult to hold by the application of the doctrine of  implied  repeal  that  the  1950  Rules  have ceased  to  be  applicable  to  the  ministerial establishments  of  the  subordinate  civil  courts. The  High  Court  overlooked  this  aspect  of  the case  and proceeded  to  hold  that  on  the  mere reintroduction of  the new Appendix II  into the 1947 Rules, the examinations could be held in accordance with the said Appendix. We do not agree with this view of the High Court.”

33. There  is  a  presumption  against  repeal  by  implication.

The reason for the presumption is that the legislature while

enacting a law has complete knowledge of the existing laws on

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the subject matter and, therefore, when it is not providing a

repealing provision, it gives out an intention not to repeal the

existing  legislation.   If  by  any  fair  interpretation,  both  the

statutes can stand together,  there will  be no implied repeal

and the court should lean against the implied repeal.  Hence,

if the two statutes by any fair course of reason are capable of

being reconciled, that may not be done and both the statutes

be allowed to stand.

34. The  principle  of  implied  repeal  has  been  elaborately

discussed in the case of  Municipal Council, Palai vs. T.J.

Joseph, AIR 1963 SC 1561, this Court held:-

“9. It  is  undoubtedly  true  that  the  legislature can exercise the power of repeal by implication. But it is an equally well-settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts  laws  with  a  complete  knowledge  of  all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will  be rebutted if the provisions of the new act are so inconsistent with  the  old  ones  that  the  two  cannot  stand together. As has been observed by Crawford on Statutory Construction, p. 631, para 311:

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“There  must  be  what  is  often  called  ‘such  a positive repugnancy between the two provisions of the old and the new statutes that they cannot be  reconciled  and made  to  stand together'.  In other words they must be absolutely repugnant or  irreconcilable.  Otherwise,  there  can  be  no implied repeal ... for the intent of the legislature to repeal the old enactment is utterly lacking.”

35. Their Lordships further observed as under:-

“The reason for the rule that an implied repeal will take place in the event of clear inconsistency or repugnancy, is pointed out in Crosby v. Patch and is as follows:    “As  laws  are  presumed  to  be  passed  with deliberation,  and  with  full  knowledge  of  all existing  ones  on  the  same  subject,  it  is  but reasonable to conclude that the Legislature, in passing  a  statute,  did  not  intend  to  interfere with or abrogate any former law relating to the same  matter,  unless  the  repugnancy  between the two is irreconcilable.  Bowen v.  Lease (5 Hill 226). It is a rule, says Sedgwick, that a general statute  without  negative  words  will  not  repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. ‘The reason  and  philosophy  of  the  rule,'  says  the author, ‘is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it,  a subsequent statute in general  terms,  or  treating  the  subject  in  a general manner, and not expressly contradicting the  original  act,  shall  not  be  considered  as intended to effect the more particular or positive previous  provisions,  unless  it  is  absolutely necessary  to  give  the  latter  act  such  a construction, in order that its words shall have any meaning at all.”

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36. In  the  case  of  Harshad  S.  Mehta  vs.  State  of

Maharashtra,  (2001) 8 SCC 257, a three Judges Bench of

this Court considered the principle of implied repeal and held:-

“31. One of the important tests to determine the issue  of  implied  repeal  would  be  whether  the provisions  of  the  Act  are  irreconcilably inconsistent with those of the Code that the two cannot  stand  together  or  the  intention  of  the legislature  was  only  to  supplement  the provisions of  the Code.  This  intention is to be ascertained  from  the  provisions  of  the  Act. Courts lean against implied repeal. If by any fair interpretation  both  the  statutes  can  stand together,  there  will  be  no  implied  repeal.  If possible,  implied repeal shall  be avoided. It is, however,  correct  that  the  presumption  against the intent to repeal by implication is overthrown if the new law is inconsistent with or repugnant to  the  old  law,  for  the  inconsistency  or repugnancy  reveals  an  intent  to  repeal  the existing  laws.  Repugnancy  must  be  such  that the  two  statutes  cannot  be  reconciled  on reasonable  construction  or  hypothesis.  They ought to be clearly and manifestly irreconcilable. It is possible,  as contended by Mr Jethmalani, that the inconsistency may operate on a part of a statute. Learned counsel submits that in the present  case  the  presumption  against  implied repeal stands rebutted as the provisions of the Act are so inconsistent with or repugnant to the provisions of the earlier Acts that the two cannot stand  together.  The  contention  is  that  the provisions of  Sections 306 and 307 cannot be complied with by the Special Court and thus the legislature  while  enacting  the  Act  clearly intended that the said existing provisions of the Code would not apply to the proceedings under the  Act.  Learned  counsel  contends  that  this

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Court  will  not  construe  the  Act  in  a  manner which  will  make  Sections  306  and  307  or  at least part of the said sections otiose and thereby defeat the legislative intendment whatever be the consequences of such an interpretation.”

37.  Learned counsel for the respondent put reliance on the

decision of this Court in  Afcons case  (supra).   In this case

the question that came for consideration before the Court was

whether Section 89 of the Code of Civil Procedure empowers

the Court to refer the parties to a suit to arbitration with the

consent of both the parties.  While considering the provisions

of Section 89 and Order 10 Rule 1A of the Code, this Court

held  that  consideration  for  reference  under  Section  89  is

mandatory.   While deciding the question various decisions on

the point of interpretation of statute are being considered and

decide the issue holding that Court will have to follow the rule

of literal construction which enjoins the Court to take words

as  used  by  the  Legislature  to  give  it  the  meaning  which

naturally implies.

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38. In  Mangin vs. IRC, (1971) 1 All ER 179 (PC), the Privy

Council held that the object of the construction of a statute

being  to  ascertain  the  will  of  the  legislature  it  may  be

presumed that neither injustice nor absurdity was intended.

If  therefore  a  literal  interpretation  would  produce  such  a

result,  and the  language  admits  of  an  interpretation  which

would avoid it, then such an interpretation may be adopted.

39. Mr. L. Nageswara Rao, learned senior counsel appearing

for the Wakf Board, has rightly contended that the intention of

the Parliament while substituting Section 83(4) is not that one

member  tribunal  vanishes  or  ceases  to  exist  till  a  three

member  tribunal  is  constituted.   Intention  to  bring  new

sub-section (4) in Section 83 is nothing but improvement in

the constitution of the Tribunal and both the earlier and the

substituted sub-sections are not inconsistent with each other.

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40. Having  regard  to  the  law  discussed  hereinbefore  and

giving our anxious consideration in the matter, we are of the

definite  opinion that  the High Court has committed serious

error of law in holding that after the Amendment Act, 2013

came  into  force,  the  one  member  Tribunal  exercising

jurisdiction ceased to exist  even though a fresh notification

constituting  three  member  Tribunal  has  not  been  notified.

The High Court further erred in law in directing the Civil Court

to decide the disputes in respect of waqf property.

41. We,  therefore,  allow  all  the  appeals  except  the  appeal

arising  out  of  SLP(C)No.30725/2015  and  set  aside  the

impugned judgment passed by the High Court.  Consequently,

the appeal arising out of SLP(C) No.30725/2015 is dismissed

holding that the interim order passed by the Tribunal shall

continue.

42. Before  parting  with  the  order  we  record  our  serious

exception to the conduct of the States who have not till date

issued fresh notification constituting three member Tribunal

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as mandate by Section 83(4) of the Act.  We, therefore, direct

the States to immediately take steps for constituting a three

member Tribunal and notification to that effect must be issued

within four months from today.  Let copy of this judgment be

sent to the Chief Secretaries of all the States for compliance.

…………………………….J. (M.Y. Eqbal)

…………………………….J. (C. Nagappan )

New Delhi December 15, 2015

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