IMPORTANT POINT
The Single member Tribunal continues till the three member Tribunal is constituted.

Headnote:(a) Waqf Act, 1995 – Section 83 and 85 – Jurisdiction of Single member Waqf Tribunal – Amendment 2013 expanding size of Tribunal only to improve functioning of the Tribunal – Section 85 ousting jurisdiction of civil courts – Only Tribunal competent to decide disputes under the Act – State not constituting three member Tribunal – Single member Tribunal continues till the three member Tribunal is constituted. (Para 26, 27, 39)
       (2009)4 SCC 299; (2010) 8 SCC 24; (2006) 10 SCC 696; AIR 1988 SC 740 – Referred
       (b) Implied repeal – Implied repeal is not readily inferred – Mere provision of an additional remedy by a new Act does not take away an existing remedy – Enactment of later law overriding the earlier one imperative – The two laws must be totally inconsistent and not reconcilable – If later law cannot be implemented, earlier law continues – Further, there is a presumption against repeal by implication. (Para 30, 31, 33)
       AIR 1986 SC 1043; (2001) 8 SCC 257 – Relied upon
       (1971) 1 All ER 179 (PC); (2010) 8 SCC 24 – Referred
       Facts of the case:
       The plaintiff, the Lal Shah Baba Dargah Trust, instituted the suit before the one member Maharashtra Waqf 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. 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.
       The defendant-respondents moved the High Court under Section 83(9) of the Waqf Act, 1995 by way of civil revision.
       The High Court 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.
       Finding of the Court:
       High Court erred in law.
       Result: Appeal allowed.

JUDGMENT

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

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Judicial Analysis

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2015 Supreme(SC) 1288

IMPORTANT POINTThe Single member Tribunal continues till the three member Tribunal is constituted.

Cases Referred (7)

Judicial Analysis

IMPORTANT POINT
The Single member Tribunal continues till the three member Tribunal is constituted.