LAL SHAH BABA DARGAH TRUST Vs. MAGNUM DEVELOPERS AND OTHERS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 14565-14571 of 2015, Judgment Date: Dec 15, 2015
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)
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 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 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 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).
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.
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
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 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 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.
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 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 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:-
“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.
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;
(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.”
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.
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 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 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 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.
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 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 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 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 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 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:
“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.”
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 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.
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.
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 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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