Page 1 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)

1

Page 2 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

2

Page 3 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

3

Page 4 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

4

Page 5 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).

5

Page 6 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

Page 7 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

7

Page 8 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

8

Page 9 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

9

Page 10 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.

10

Page 11 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

11

Page 12 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

12

Page 13 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:-

13

Page 14 “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.

14

Page 15 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;

15

Page 16 (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

16

Page 17 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.

17

Page 18 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 1

st

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

18

Page 19 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 17

th

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 4

th

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 23

rd

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

19

Page 20 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

20

Page 21 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.

21

Page 22 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

22

Page 23 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

23

Page 24 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

24

Page 25 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

25

Page 26 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

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Page 27 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:

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Page 28 “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.”

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Page 29 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

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Page 30 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.

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Page 31 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.

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Page 32 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

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Page 33 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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