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Andhra Pradesh High Court
Judges : P.VENKATRAMA REDDY, V.ESWARAIAH
P.Rama Rao - Appellant
Versus
High Court A.P., rep.by Registrar (Vigilance) - Respondent
Decided On : 12-06-99
Civil procedure Code, 1908 – Constitution of India - Article 14 - Wakf Act, 1995 - Recovery of Debts due to Banks and financial Institutions Act - Section 31 - Family Courts Act - Section 8 - Administrative Tribunals Act - Section 29 - Suit was filed for ejectment and recovery of mesne profits -Though Act came into force and Act provided for constitution of Tribunal, actually, tribunal was constituted by State government, Minorities welfare Department, with effect - A Judicial Officer of rank of District Judge was posted some time later and Tribunal is now functioning - In several Central and State enactments wherein an exclusive Tribunal is created for purpose of dealing with specified matters, provision is made for transfer of pending cases - But, no such provision is found in Wakf Act - Question is what is position of suits or other proceedings instituted contention of learned Counsel for petitioners is that in view of express bar created civil Court cannot proceed with matter because its jurisdiction has been taken away by that provision and therefore either plaint should be returned for presentation in proper Court or if that cannot be done, suit will have to be dismissed on ground of want of jurisdiction and plaintiff will have to institute a fresh suit in Wakf Tribunal - It is therefore submitted that plaints/petitions instituted involving disputes or questions relating to Wakf or Wakf property or other allied matters, should be returned to parties to enable them to present them in Wakf Tribunal and that circular issued by High Court is contrary - Counsel for 3rd respondent supports circular of high Court and submits that suits or proceedings instituted in City Civil court even if they relate to matters pertaining to Wakf or Wakf property should only be presented in Civil Court in absence of Wakf Tribunal and such suits or proceedings will continue to be dealt with by Civil Court - He also questions bona fides of petitioners in taking up an objection after trial commenced and plaintiff s evidence was adduced – Held , It is true as pointed out by learned addl - Advocate General and also learned Counsel for petitioners, on plain language bar against entertainment of suit seems to arise on and from date of commencement of Act - Moment Act came into force, bar operates, prima facie - fundamental postulate read with other relevant provisions is that wakf Tribunal shall be a substitute for civil Courts in respect of matters required to be dealt with by Tribunal under act - Scheme of Act contemplates and unfolds intention of Legislature in clearest terms that obliteration of jurisdiction of Civil Court and creation of Tribunal to take over exclusive jurisdiction confided to it is a simultaneous process - No vacuum or hiatus could have been intended by legislature - Delay in constitution of Tribunal just as it has happened in this state, would not have been foreseen by legislature - Surely, it could not have been intention of Legislature that existing remedy or recourse to Civil Court should be extinguished as a first step and that remedy should be made available only when Wakf Tribunal is set up - In instant case, Tribunal was constituted l years after Act came into force which is fairly a long period - If aggrieved persons or Institutions are left without any remedy to move Court or a judicial body during this period, absurd and unintended results would follow - Such consequences are manifestly contrary to legislative intention - Not only that, even provision i - e would be vulnerable to attack on ground of infringement inasmuch as a particular class of litigants would be left without remedy to prevent invasion of their rights recognized by law on account of sheer delay in constituting Tribunal - Obviously, such construction should be avoided - Literal interpretation should yield to purposive construction and a construction which preserves constitutionality of provision - fact that provision for transfer of cases from Civil Court to Wakf Tribunal is not provided for in Act is also a pointer to legislative intention that suits filed earlier to constitution of Tribunal shall continue to be dealt with by Civil court - Court are therefore of view that in interests of imparting rationality to provision and accomplishing legislative object has to be qualified by words "after constitution of tribunal" immediately after words "should lie" - No doubt by doing so, literal construction is eschewed and certain words which are really implicit are read into Section - But such reading and interpretation is not an impermissible exercise - Writ petition dismissed
( 1 ) THE petitioners herein are the defendants in suit O. S. No. 4767 of 1996 filed by the 3rd respondent in the City Civil court. The 3rd respondent - plaintiff is said to be the Mutawalli of a Wakf governed by the Wakf Act, 1995. The suit was filed for ejectment and recovery of mesne profits. The suit which was filed on 6-11-1996 long after the Wakf Act, 1995 came into force is pending in the Court in XIX Junior Civil judge, City Civil Court. The trial had commenced and P. W. 1 was examined. At that stage, the writ petitioners raised an objection that the suit cannot be continued in the Civil Court inasmuch as the Civil court has no jurisdiction to deal with the matter falling within the purview of Wakf tribunal constituted under the said Act. This contention was not accepted by the learned trial Judge, basing on the circular of the High Court in Roc. No. 2960/e1/98, dt. 13-7-1999. Paras 2 and 3 of the Circular read as follows:"the suits or other proceedings involving determination of dispute or question relating to Wakf or Wakf property or other matters falling within the purview of the Wakf tribunal cannot be entertained by the Civil Courts, when once the wakf Tribunal is constituted. (vide sections 83 and 85 of the Wakf Act, 1995 ). The High Court of Andhra Pradesh hereby directs all the Civil Courts in the State to return the plaints/ petitions instituted on or after 1-7-1997, so as to enable the parties to present them before the A. P. Wakf tribunal, Hyderabad, after giving notice to the Counsel and hear them if there is any dispute as regards the maintainability of the suit and then take appropriate steps. "
( 2 ) ASSAILING the correctness of the circular and seeking a direction to the junior Civil Judge to transfer the suit to A. P. Wakf Tribunal, the present writ petition is filed.
( 3 ) THOUGH the Act came into force on 1-1-1996 and the Act provided for constitution of the Tribunal, actually, the tribunal was constituted by the State government by G. O. No. 88, Minorities welfare Department, dt. 20-6-1997 with effect from 1-7-1997. A Judicial Officer of the rank of District Judge was posted some time later and the Tribunal is now functioning. In several Central and State enactments wherein an exclusive Tribunal is created for the purpose of dealing with the specified matters, provision is made for the transfer of pending cases, for example, section 29 of Administrative Tribunals Act, section 8 of Family Courts Act, Section 31 of recovery of Debts due to the Banks and financial Institutions Act, etc. But, no such provision is found in the Wakf Act.
( 4 ) THEN, the question is what is the position of the suits or other proceedings instituted between 1-1-1996 and 30-6-1997? the contention of the learned Counsel for the petitioners is that in view of the express bar created by Section 85 of the Act, the civil Court cannot proceed with the matter because its jurisdiction has been taken away by that provision and therefore either plaint should be returned for presentation in the proper Court or if that cannot be done, the suit will have to be dismissed on the ground of want of jurisdiction and the plaintiff will have to institute a fresh suit in the Wakf Tribunal. It is therefore submitted that the plaints/petitions instituted after 1-7-1997 involving disputes or questions relating to Wakf or Wakf property or other allied matters, should be returned to the parties to enable them to present them in the Wakf Tribunal and that the circular issued by the High Court is contrary to section 85 of the Act. The Counsel for the 3rd respondent supports the circular of the high Court and submits that the suits or proceedings instituted in the City Civil court even if they relate to matters pertaining to Wakf or Wakf property should only be presented in the Civil Court in the absence of Wakf Tribunal and such suits or proceedings will continue to be dealt with by the Civil Court. He also questions the bona fid
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