TMI Blog2015 (12) TMI 1698X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal and both the earlier and the substituted sub-sections are not inconsistent with each other. 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. - C.A. 14565 Of 2015, (Arising out of SLP(C) NO. 29234/2015) , 14566 OF 2015, (Arising out of SLP(C) NO. 31610/2015), 14567 OF 2015, (Arising out of SL - - - Dated:- 15-12-2015 - EQBAL M.Y. And NAGAPPAN C., JJ. C.A. 14565 Of 2015, (Arising out of SLP(C) NO. 29234/2015) , 14566 OF 2015, (Arising out of SLP(C) NO. 31610/2015), 14567 OF 2015, (Arising out of SLP(C) NO. 31606/2015), 14569 OF 2015, (Arising out of SLP(C) NO. 31605/2015), 14570 OF 2015, (Arising out of SLP(C) NO. 31595/2015), 14571 OF 2015, (Arising out of SLP(C) NO. 30725/2015) JUDGMENT M.Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 Waq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities. 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 Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed, 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 inferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 intend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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