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Shah Alam v/s Union of India & Others


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Civil Misc. Writ Petition No. 30948 of 2016

    Decided On, 29 July 2016

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE ACTING CHIEF JUSTICE MR. V.K. SHUKLA & THE HONOURABLE MR. JUSTICE MAHESH CHANDRA TRIPATHI

    For the Petitioner: Mohammad Hisham Qadeer, M.A. Qadeer, Advocates. For the Respondents: C.S.C., A.S.G.I., Gynendra Kr. Dwivedi, Manish Goyal, Advocates.



Judgment Text

V.K. Shukla, A.C.J.

Shah Alam is before this Court with following relief:-

1. Issue a writ, order or direction in the nature of certiorari quashing the impugned Notification dated 03.03.2014 issued by the State Government (Annexure-6 to the writ petition) and circular/Notification of Registrar of High Court dated 13.04.2016 (Annexure-13 to the writ petition) and both be declared to be ultra virus, void, illegal, arbitrary and unenforceable in the eyes of law.

2. Issue a writ, order or direction in the nature of mandamus commanding the Respondent nos. 2 and 3 to constitute Waqf Tribunal in each district including District Meerut.

3. Issue a writ, order or direction in the nature of mandamus directing the Registrar General of High Court of Judicature at Allahabad/Respondent no.4 to withdraw its notification dated 13.04.2016 and not to compel the District Judges to transfer the cases of petitioner from Meerut to Rampur concerning Waqf No. 50-A, Meerut and cases pending before Waqf Tribunal, Meerut be heard and decided at Meerut.

4. Issue a writ, order or direction in the nature of mandamus commanding the Waqf Tribunal, Rampur not to proceed further with hearing of Waqf Case No. 19 of 2016, Reference No. 55 of 2015, Reference No. 54 of 2016 and Reference No. 53 of 2016 respectively.

2. Petitioner is submitting that in reference of waqf property, following four cases of his pending at Meerut would be transferred to Rampur namely.

1. Reference No. 901 of 2000 under Section 83(2) of the Waqf Act No. 43 of 1995, regarding Waqf No. 50-A Meerut of which the petitioner is Mutawalli and is Defendant No. 5.

2. Reference No. 772 of 2010 filed by Smt. Shahida Begam in respect of some of the properties of the Waqf No. 50-A, Meerut of which the petitioner is Mutawalli and Defendant No. 5.

3. Reference No. 6 of 2013 filed by Dr. Badre Alam in which the petitioner is Respondent no.3 and is Mutawalli of Waqf No. 50-A, Meerut.

4. Reference No. 11 of 2014 filed by Waqf Alal Aulad through its alleged Mutawalli Mohammad Muttaqi Alvi of which the petitioner is Mutawalli in which the petitioner filed Application for his impleadment under Order1, Rule10C.P.C. Which is pending disposal.

3. Petitioner submits that Waqf Act, 1995 came into force with effect from 01.01.1996. 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. Petitioner submits that 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. Subsection 4 of Section 83 as it stood under the original Act is quoted herein below:-

'(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 and the appointment of every such person may be made either by name or by designation'.

4. 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;

(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 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.'

5. Petitioner submits that as Amending Act No. 27 of 2013 did not repeal Act No. 43 of Waqf Act, 1995, in view of this, Civil Judges (Senior Division) would continue to work as Waqf Tribunal even after 01.11.2013 pursuant to the notification dated 07.11.1998 wherein State Government has proceeded to appoint Civil Judge (Senior Division) of each and every District to act as one man Waqf Tribunal and said proceedings in no way would be impaired/barred and would continue to be dealt with by respective Civil Judges (Senior Division).

6. Petitioner submits that three member Tribunal has been constituted at Lucknow and Rampur by the State Government and before the Tribunal in question, only matters that have been instituted as on 01.11.2013 and thereafter are liable to be transferred and rest of the matter are liable to be tried by the Civil Judge (Senior Division), and in view of this, based on the provision of Amended Act No. 27 of 2013 as there is no repeal clause as per Section 6 of the General Causes Act earlier provision would continue to hold the field and Registrar General of this Court at the point of time when he has proceeded to pass order giving direction to District Judge to transfer the case before the Waqf Tribunal at Lucknow or Rampur, as the case may be has clearly transgressed and overstepped its jurisdiction. Petitioner submits that if petitioner's cases that are pending before Waqt Tribunal are transferred at Rampur then it would be mockery of justice and various reasons have been sought to be attributed and in this regard mention has been made that notification dated 03.03.2016 issued by the State Government is against sub-section (2) and (4) of Section 83 as State Government has failed to constitute Tribunal in each District, in view of this, interference be made and legitimate rights of petitioner be protected.

7. On the matter being taken up on 12.07.2016, Sri Rama Nand Pandey learned Standing Counsel was directed to obtain requisite instruction in the matter and accordingly requisite instructions have been obtained.

8. Sri. Punit Kumar Gupta, Advocate has moved impledment application on behalf of U.P. Sunni Central Waqf Board, 3A Mal Avenue Lucknow through its Chairman and said application has been allowed.

9. Sri Sameer Sharma, Advocate has entered appearance on behalf of the High Court and as pure legal questions are involved, as such present matter has been taken up for final hearing/disposal with the consent of the parties.

10. Sri. M.A. Qadeer, Senior Advocate, assisted by Sri M.H. Qadeer, Advocate submitted with vehemence that in the Amendment Act 27 of 2013 as on 01.11.2013 there is no repeal clause, therefore, as per Section 83 (4) of the Waqf Act No. 43 of 1995, as stated earlier would continue to operate accordingly and proceeding that have been instituted prior to 01.11.2013 will have to dealt with as per the old provision, in view of Section 6 of General Clauses Act, accordingly the cases pending before the District Waqf Tribunal, has to be decided and cannot be transferred, and in view of this action taken for transferring of the cases is perse bad and same is liable to be interfered with.

11. Sri. Gyanendra Kumar Dwivedi, Advocate representing respondent no. 1, learned Standing Counsel Sri Rama Nand Pandey representing State of U.P as well as Sri Punit Kumar Gupta, Advocate representing U.P. Sunni Central Waqf Board and Sri Sameer Sharma, Advocate representing this Court on the other hand submitted that in the present case, once notification issued by the State Government on 07.11.1998 stands superseded, wherein one man Waqf Tribunal has been constituted and thereafter, in its place multiple member Waqf Tribunal has been constituted, then by no stretch of imagination the prayer that has been so made by the petitioner can be accorded and all the matters that have been pending even prior to the amendment that has been so initiated after setting aside the notification dated 07.11.1998, has to be decided by the multiple member Waqf Tribunal and in view of this argument raised has no substance and is totally devoid of substance and Section 6 of General Clauses Act would not come to the rescue or reprieve of petitioner, as Section 6 of General Clauses Act, saves right accrued and/or liability incurred and it does not create a right, accordingly writ petition preferred deserves dismissal.

12. After respective arguments have been advanced, the provisions of un-amended Act as well as provision of Amended Act in question has been examined by us and factual situation i.e. so emerging in the present case is that dispute pertaining to waqf property was to be adjudicated by the Tribunal so constituted by the State Government. Section 83 provides for constitution of Tribunal. Unamnended Section 83(4) provides that every Tribunal shall consist of one person holding a rank not below that of a District, Sessions or Civil Judge, Class 1 in the State Judicial Service. Amended Section 83(4) provided constitution of Tribunal as follows: (I) 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 (ii) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, member(iii) 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.

13. State Government earlier in its turn in exercise of power conferred under Section 83 of Waqf Act, 1995 read with section 21 of the General Clauses Act, 1997 and in supersession of Government Notification dated 29.11.1977 and Government Notification dated 11.03.1998 as amended from time to time and all other notifications issued in this behalf constituted with effect from the date of publication of notification is the Gazette, the judicial officers mentioned in Column 3 of the Schedule by designation as Tribunal, for the purposes of the said Waqf Act and provided that each Tribunal shall have jurisdiction over the revenue areas specified against each in column 4 of the schedule.

14. As per the said list in question for every district Civil Judge (Senior Division) was designated to function as Waqf Tribunal and area of jurisdiction was also mentioned therein and based on the same, respective Civil Judge (Senior Division) proceeded to function as Tribunal under Waqf Act, 1995 on the strength of Notification dated 07.11.1998. After enforcement of Amended Act No. 27 of 2013, Section 44 of the Amending Act substituted the provision of sub-section (1) and (4) of Section 83 and therein State Government was empowered to 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 or 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. Section 83(4) provides that every Tribunal shall consist of (I) 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 (ii) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, member(iii) 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.

15. By notification dated 29 October 2013 published in the Gazette of India on 31 October 2013, the Central Government appointed 1st November 2013 as the date on which the provisions of the Act would come into force. On 3 March 2014, in exercise of the powers conferred by sub-section (4) of Section 83, the State Government constituted two Tribunals, one at Lucknow and another at Rampur.

16. At this juncture the view point of Apex Court in the case ofLal Shah Baba Dargah Trust v. Magnum Developers and others AIR 2016 SC 381would be worthwhile to notice. Relevant paragraph nos. 25, 26, 27, 28, 29, 40, 39, 40 are being extracted below.

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 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 practise that the old institution/member continues to exercise duty till the time 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 implied repeal. In this connection, learned counsel relied upon Afcons Infrastructure (supra),Municipal Council, Palai v. T.J. Joseph, AIR 1963 SC 1561, andBhagat Ram Sharma v. 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 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.

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 subsection (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.

40. Having regard to the law discussed herein-before 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.

17. In the judgement of Apex Court quoted above clear cut mention has been made that 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. Further mention has been made that High Court, has committed serious error in 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. Thus Apex Court is clear and categorical that 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-section are not inconsistent with each other.

18. Once such opinion has been expressed by Apex Court in Lal Shah Baba Dargah Trust' case, then issue that has been raised by the petitioner before this Court that earlier Section 83(4) would continue to hold the field, cannot be accepted by us for the simple reason that constitution of the Waqf Tribunal is exclusive domain of the State Government and State Government in its turn earlier vide notification dated 07.11.1998 had appointed Civil Judge (Senior Division) of each district to act as one man Waqf Tribunal and such action of the State Government was clearly in exercise of authority conferred under Section 83 of Waqf Act, 1995. In this direction once the State Government has rescinded the authorisation made by notification dated 07.11.1998 then Civil Judge (Senior Division) of each District would cease to have jurisdiction to decide such matters and matters in question certainly thereafter are required to be placed before the Waqf Tribunal competent to decide the dispute in question.

19. Apex Court in Lal Shah Baba Dargah Trust' case clearly proceeded to make a mention that one member Waqf Tribunal exercising jurisdiction would not cease to exist even though a fresh notification constituting three member Tribunal has not been notified. Here in the State of U.P. situation on ground has been different as her multi member Tribunal has been constituted at two places namely Lucknow and Kanpur. Tribunal in question that has been so notified, 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.

20. At this juncture the provision of Section 6 of General Clauses Act are being looked into:-

Section 6.Effect of repeal- where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not

(a) ------------

(b) ------------

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) ---------

(e) ---------

The objective of this provision is to ensure protection of any right or privilege acquired under the repealed Act.

21. Provisions of Section 6 of General Clauses Act would not extend any benefit to the petitioner as Apex Court in Lal Baba Shah Dargah Trust case has clearly expressed its view that section 83 (4) of 1995 has not at all been impliedly repealed. Once neither there is an express repeal nor there is any implied repeal and new sub-section (4) of Section 83 is nothing but improvement in the constitution of Tribunal then the effect of repeal that is being claimed before this Court is neither here nor there and is misplaced on the face of it as Section 6 of General Clauses Act would come into play only when there is repeal in any form i.e. express repeal or implied repeal. Merely because constitution of Tribunal has been changed and place of functioning of Tribunal has been changed same does not manifest intention inconsistent with the provision as contained under Section 83(4) and under amended Section 83(4) as intent remains the same i.e. to provide forum, for settling dispute pertaining to Waqfs with improvement in the constitution of Tribunal. Section 6 would be applicable only when the new legislation manifests an intention incompatible with or contrary to the earlier provisions of section and in no other contingency. Merely because pending matters have been transferred, including the matters pertaining to petitioner, in no way would effect any right or privilege of petitioner as State Government inheres in itself the right to constitute Tribunal and define its local limit. Apex Court in the case ofShiv Shakti Housing Co-operative Society v. Swaraj Developers 2003 (6) SCC 659has clearly mentioned that no person has a vested right in procedure, he has only the right of proceeding in the manner prescribed. If by statutory change the mode of procedure is altered, the parties are to proceed as per the altered mode, without exception, unless there is a different situation. In such situation Section 6 has no application. Petitioner accordingly even after withdrawal of notification by State Government cannot insist that Civil Judge, should continue with the case even though Notification dated 07.11.1998 stands withd

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rawn by the State Government 22. Reliance placed by petitioner on the case ofSardar Khan v. Syed Nazmul Hasan 2007 Law Suit (SC) 245would also not help the petitioner for the reason that said judgement is clearly based on the fact that by virtue of sub-section (5) of Section 7, the Tribunal had no authority or jurisdiction to determine any matter that has been subject matter of suit/proceeding instituted or commenced in Civil Court prior to coming into force of the Waqf Act 1995. Judgement in the case ofBhagat Ram Sharma v. Union of India 1987 Law Suit (SC) 820will also not help the petitioner in the present case for the preposition that it is legislative practise to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted, then such a deletion has the effect of repeal of existing provision, as here in reference of statutory provisions that governs the Waqf properties, Apex Court in the case of Lal Shah Baba Trust has clearly ruled that there is no implied repeal. We cannot take view running counter to the reasoning and result reached therein. Judicial discipline binds us to follow the aforementioned binding precedent. 23. Division Bench of this Court inPublic Interest Litigation No. 8068 of 2016 (Mohd Junaid Ajaz and 2 other v. Union of India and 3 others)in reference of constitution of these two Tribunals has held that in view of repeal of Act No. 27 of 2013 by the Repealing and Amending (Second) Act, 2015 (Act No. 19 of 2015), the Waqf Tribunals which were established at Lucknow and Rampur in pursuance of the amended provision of Section 83 would not cease to exist and would continue to function. Division Bench also considered the scope and ambit of Section 4 of the Repealing and Amending (Second) Act, 2015 and came to the conclusion that once provisions of amending legislature, Amended Act No. 27 of 2013 has been brought into force and amendment has been incorporated in the Act then subsequent repealing amended legislature would not affect that has already affected. 24. Once such is the factual situation that is so emerging in the present case is that the very authorisation by means of notification in question dated 07.11.1998 has been rescinded, then net effect of the same is that Civil Judge (Senior Division) would cease to function as one man Waqf Tribunal, then Multi Member Waqf Tribunals established at Lucknow and Rampur in pursuance of the amended provisions of Section 83, would deal with the subject matter and none of the vested right of the petitioner could be said to be infringed. 25. As far as issues for opening Waqf Tribunal at other places are concern, as requested by parties, such issues are left open to be decided in another Public Interest Litigation and to the domain of State Government. 26. With the above, present writ petition is dismissed. Petition dismissed.
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