TaxTMI 
TaxTMI 
2015 (12) TMI 1698
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....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 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 th....
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....oresaid 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 si....
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....ications 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 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....
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....ned 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 this Court in the case of Rajasthan State Road Transport Corporation and Another vs. Bal Mukund Bairwa (2),....
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.... 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. 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, Se....
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....hed 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 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....
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....ctive 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 Joi....
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....istrict 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. 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 th....
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....ere 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 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....
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....rse, 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: "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. Bow....
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....ng 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 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.....