Allahabad High Court
U.P. Sunni Central Waqf Board vs Mohd. Azim Khan 2 Others on 12 February, 2020
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 Case :- MATTERS UNDER ARTICLE 227 No. - 494 of 2020 Petitioner :- U.P. Sunni Central Waqf Board Respondent :- Mohd. Azim Khan 2 Others Counsel for Petitioner :- Punit Kumar Gupta Counsel for Respondent :- Bakhteyar Yusuf Hon'ble Ajay Bhanot,J.
1. This petition under Article 227 of the Constitution of India arises out of the judgment and order dated 13.01.2020 rendered by the learned Civil Judge (Senior Division), Allahabad, registered as Reference No. 127 of 1990 (Mohd. Azim Khan Vs. Controller Sunni Waqf Board), whereby the learned trial court has invalidated the challenge laid out to its jurisdiction to continue as a duly constituted tribunal under the Uttar Pradesh Muslim Waqfs Act, 1960, in view of the promulgation of the Waqf Act, 1995, by the notification dated 03.03.2014.
2. Shri Punit Kumar Gupta, learned counsel for the petitioner contends that the proceedings on foot before the learned Civil Judge (Senior Division), Allahabad, registered under Section 55 of the Uttar Pradesh Muslim Waqfs Act, 1960, are devoid of jurisdiction after the promulgation of the Waqf Act, 1995 and the constitution of the tribunal under the Waqf Act, 1995.
3. He also relies on a Division Bench judgment of this Court rendered in Shah Alam Vs. Union of India and others, reported at 2016(8) ADJ 85 (DB).
4. Before proceeding further in the matter, a brief consideration of certain facts, legislations and notifications would be in order.
5. The Government of Uttar Pradesh constituted a Waqf Tribunal under Section 70 of the Uttar Pradesh Muslim Waqfs Act, 1960, by issuing a notification on 29.11.1977. The said notification dated 29.11.1977 designated a Civil Judge (Senior Division), Allahabad, as the Waqf Tribunal for the District Allahabad.
6. A dispute arose in regard to the removal of Mohd. Azim Khan (deceased Mutawalli) which caused the respondents and their predecessor in interest to take out proceedings under Section 55 of the Uttar Pradesh Muslim Waqfs Act, 1960. The continuance of the said proceedings registered as Reference No. 127 of 1990 (Mohd. Azim Khan Vs. Controller Sunni Waqf Board), before the learned Civil Judge (Senior Division), Allahabad, notified as a Waqf Tribunal by earlier notification is in issue in this writ petition.
7. The Parliament promulgated the Waqf Act, 1995 on 01.01.1996. Section 83 of the Waqf Act, 1995, contemplated the constitution of a Waqf Tribunal by the State Government. The provision being relevant is extracted hereinunder:
"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."
8. In exercise of powers vested by Section 83 of the Waqf Act, 1995, the State Government issued a notification on 07.11.1998 constituting a Waqf Tribunal and simultaneously superseding the earlier notification dated 29.11.1977 which had designated the Civil Judge (Senior Division), Allahabad as a Waqf Tribunal for the District Allahabad.
9. It is relevant to point out that the notification dated 07.11.1998 taken out in exercise of powers under Section 85 of the Waqf Act, 1995 read with section 21 of the U.P. General Clauses Act, 1904, in effect redesignated the earlier judicial officer as the Tribunal under the new Act. The notification being relevant is extracted hereunder:
Appendix III Waqf Tribunal In Uttar Pradesh In exercise of the powers under Section 83 of the Wagf Act, 1995 (Act No. 43 of 1995) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (Uttar Pradesh Act No. 1 of 1904) and in supersession of Government notification No. 4125/MW-242-77, dated November 29, 1977 as amended from time to time, and all other notifications issued in this behalf, the Governor is pleased to constitute with effect from the date of publication of this notification in the gazette, the following judicial officers as mentioned in column 3 of the Schedule below of the State Government by designation a Tribunal, for the purposes of the said Wagf Act and to order that each tribunal shall have jurisdiction over the revenue areas specified against each in column 4 to the Schedule below:--
SCHEDULE Serial District Designation of Tribunals Area of No Jurisdiction
1. 2. 3. 4.
3. Allahabad Civil Judge (Senior Division), Allahabad Distt. Allahabad
10. In this manner, despite change in the statutory regime, the Civil Judge (Senior Division), Allahabad, continued to function as the Waqf Tribunal under the Waqf Act, 1995 till 03.03.2014.
11. By means of the notification dated 03.03.2014 issued under section 83 of the Waqf Act, 1995, read with Section 21 of the General Clause Act, 1897, the constitution of the new tribunals was notified. The notification requires to be noticed and is reproduced below:
No. 360/LII-2-2014-2(279)-13 Dated Lucknow, March 3, 2014 IN exercise of the powers under sub-section (4) of section 83 of the Waqf Act, 1995 (Act no. 43 of 1995) read with section 21 of the General Clauses Act, 1897 (Act no. 10 of 1897), and in supersession of Government notification no. 2003/LI1-2-1998-8-96, dated November 7, 1998 as amended from time lo time, and all other notifications issued in this behalf, the Governor is pleased to constitute with effect from the date of publication of this notification in the Gazatte, the following 02 tribunals as mentioned in column 3 of the schedule below, for the purposes of the said Waqf Act and to order that each tribunal shall have jurisdiction over the revenue areas specified in column 4 of the Schedule below:-
SCHEDULE S.no Head Officer Designation of tribunals Area of Jurisdiction (District) 1 2 3 4 1 Lucknow Every Tribunal shall consist of:-
1. One person, who shall be a member of the State Judicial Services holding a rank not below that of a District, Sessions or Civil Judge Class I, who shlal be the Chairman;
2. One person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member Lucknow, Raibareilly, Unnao, Sitapur, Hardoi, Kheri, Gonda, Bahraich, Shrawasti, Balrampur, Basti, Sidharthnagar, Sant Kabir Nagar, Gorakhpur, Kushinagar, Deoria, Mahrajganj, Faizabad, Ambedkharnagar, Barabanki, Sultanpur, Amethi, Azamgarh, Ballia, Mau, Varanasi, Chandaui, Ghazipur, Jaunpur, Allahabad, Kaushambi, Fatehpur, Pratapgarh, Banda, Chitrakoot, Hamirpur, Mahoba, Jhansi, Jaluan (Orai), Lalitpur, Kanpur Nagar, Kanpur Dehat, Btawah, Farrukhabad, Kannauj, Aurraiya, Mirzapur, Bhadohi and Sonbhadra.
3. On person having knowledge of Muslim law and jurisprudence, Member
2.
Rampur
- Do -
Saharanpur, Muzaffarnagar, Shamili, Merrut, Bulandshahr, Ghazibad, Hapur, Gautambudhnagar, Baghapat, Moradabad, Bijnore, Sambhal, Rampur, Amroha, Aligarh, Hathras, Kasganj, Etah, Agra, Firozabad, Mainpuri, Mathura, Bareilly, Badaun, Piliphit and Shahjanpur.
The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other member shall be such as may be prescribed under sub-section (4-A) of section 83 of the said Waqf Act.
By order DR. DEVESH CHATURVEDI Pramukh Sachiv
12. Section 85 of the Waqf Act, 1995 ousts the jurisdiction of the civil court to entertain a regular suit, speaks thus:
"85. Bar of jurisdiction of [Civil Court, revenue Court and any other authority]--No suit or other legal proceeding shall lie in any [Civil Court, revenue Court and any other authority] in respect of any dispute, question or other matter relating to any [waqf], [waqf] property or other matter which is required by or under this Act to be determined by a Tribunal."
13. It is also pertinent to notice that the Waqf Act, 1995, was amended by Amendment Act No. 27 of 2013, whereby the constitution of the tribunal was described in amending section 83 of the Waqf Act, 1995. The amendment which was promulgated on 01.11.2013 speaks thus:
"(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."
14. It was the creation of the new tribunals which led to the controversy culminating in the judgment of this Court in Shah Alam (supra).
15. In the case of Shah Alam (supra), four cases which were instituted prior to the notification dated 03.03.2014 constituting the new tribunals were transferred from the court of Civil Judge (Senior Division), Allahabad (duly constituted as a Waqf Tribunal under the Uttar Pradesh Muslim Waqfs Act, 1950, and continued as such under the Waqf Act, 1995 till the notification dated 03.03.2014), to the newly constituted Waqf Tribunal by the latter notification.
16. The petitioner before the court in Shah Alam's case contended that the aforesaid transfer was not sustainable in law.
17. The aforesaid contention was negatived by the learned Division Bench. The learned Division Bench embarked on a comprehensive survey of the provision of the Act and with the aid of Section 6 of the General Clauses Act reached the conclusion.
18. The contention of the petitioner was finally repelled by the learned Division Bench in Shah Alam (supra) by recourse to Section 6 of the General Clauses Act after the learned Division Bench set forth the following findings:
"20. At this juncture the provision of Section 6 of General Clauses Act are being looked into:-
Section 6. Effect of repeal- where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a)---------------------
(b)--------------------
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d)-----------------
(e)-----------------
The objective of this provision is to ensure protection of any right or privilege acquired under the repealed Act.
21. Provisions of Section 6 of General Clauses Act would not extend any benefit to the petitioner as Apex Court in Lal Baba Shah Dargah Trust case has clearly expressed its view that section 83 (4) of 1995 has not at all been impliedly repealed. Once neither there is an express repeal nor there is any implied repeal and new sub-section (4) of Section 83 is nothing but improvement in the constitution of Tribunal then the effect of repeal that is being claimed before this Court is neither here nor there and is misplaced on the face of it as Section 6 of General Clauses Act would come into play only when there is repeal in any form i.e. express repeal or implied repeal. Merely because constitution of Tribunal has been changed and place of functioning of Tribunal has been changed same does not manifest intention inconsistent with the provision as contained under Section 83(4) and under amended Section 83(4) as intent remains the same i.e. to provide forum, for settling dispute pertaining to Waqfs with improvement in the constitution of Tribunal. Section 6 would be applicable only when the new legislation manifests an intention incompatible with or contrary to the earlier provisions of section and in no other contingency. Merely because pending matters have been transferred, including the matters pertaining to petitioner, in no way would effect any right or privilege of petitioner as State Government inheres in itself the right to constitute Tribunal and define its local limit. Apex Court in the case of Shiv Shakti Housing Co-operative Society Vs. Swaraj Developers 2003 (6) SCC 659 has clearly mentioned that no person has a vested right in procedure, he has only the right of proceeding in the manner prescribed. If by statutory change the mode of procedure is altered, the parties are to proceed as per the altered mode, without exception, unless there is a different situation. In such situation Section 6 has no application. Petitioner accordingly even after withdrawal of notification by State Government cannot insist that Civil Judge, should continue with the case even though Notification dated 07.11.1998 stands withdrawn by the State Government
22. Reliance placed by petitioner on the case of Sardar Khan Vs. Syed Nazmul Hasan 2007 (SC) Law Suit 245 would also not help the petitioner for the reason that said judgement is clearly based on the fact that by virtue of sub-section (5) of Section 7, the Tribunal had no authority or jurisdiction to determine any matter that has been subject matter of suit/proceeding instituted or commenced in Civil Court prior to coming into force of the Waqf Act 1995. Judgement in the case of Bhagat Ram Sharma Vs. Union of India 1987 Law Suit (SC) 820 will also not help the petitioner in the present case for the preposition that it is legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision substituted, then such a deletion has the effect of repeal of existing provision, as here in reference of statutory provisions that governs the Waqf properties, Apex Court in the case of Lal Shah Baba Trust has clearly ruled that there is no implied repeal. We cannot take view running counter to the reasoning and result reached therein. Judicial discipline binds us to follow the aforementioned binding precedent.
19. Taking the aforesaid reasoning to its logical conclusion, the learned Division Bench found:
"Once such is the factual situation that is so emerging in the present case is that the very authorisation by means of notification in question dated 07.11.1998 has been rescinded, then net effect of the same is that Civil Judge (Senior Division) would cease to function as one man Waqf Tribunal, then Multi Member Waqf Tribunals established at Lucknow and Rampur in pursuance of the amended provisions of Section 83, would deal with the subject matter and none of the vested right of the petitioner could be said to be infringed.
As far as issues for opening Waqf Tribunal at other places are concern, as requested by parties, such issues are left open to be decided in another Public Interest Litigation and to the domain of State Government.
With the above, present writ petition is dismissed."
20. According to Shri Punit Kumar Gupta, learned counsel for the petitioner, the controversy has thus attained finality and the learned Civil Judge was misdirected in law, and acted in the teeth of the law laid down in Shah Alam (supra).
21. Per contra, Shri Somesh Khare, learned counsel and Shri Bakhteyar Yusuf, learned counsel for the respondent no. 2, with their utmost respect submit that the learned Division Bench in the case of Shah Alam(supra) was led into error as the provision of Section 112 of the Waqf Act, 1995, was not brought to her notice. The learned Division Bench in Shah Alam (supra) neglected to consider the ambit and impact of Section 112 of the Waqf Act, 1995.
22. According to the learned counsels for the respondent no. 2, the proceedings registered before the learned Civil Judge ,Senior Division, Allahabad (duly designated as a Waqf Tribunal under the Uttar Pradesh Muslim Waqfs Act, 1960 and registered as Reference No. 127 of 1990, (Mohd. Azim Khan Vs. Controller Sunni Waqf Board), were saved by virtue of operation of Section 112 read with section 7(5) and section 6 of the Waqf Act, 1995.
23. In such view of the matter, the learned Civil Judge (Senior Division), Allahabad, constituted as a Waqf Tribunal under the Uttar Pradesh Muslim Waqfs Act, 1960, continues to possess the jurisdiction to decide the pending reference on its merits. The reference is not liable to be transferred.
24. The scheme of Sections 6, 7 and 112 of the Waqf Act, 1995, would constitute the composite scheme which reflects the legislative intent in regard to references pending before the tribunals constituted under the Uttar Pradesh Muslim Waqfs Act, 1960, which is precursor of the Waqf Act, 1995.
25. Shri Punit Kumar Gupta, learned counsel for the petitioner in his usual fairness does not dispute the fact that the learned Division Bench in Shah Alam (supra) omitted to consider Section 112 of the Waqf Act, 1995. He, however, contends that non consideration of the provision would make little difference to the result, as full consideration was given to section 6 of the General Clause Act, which according to him is pari materia with section 112 of the Waqf Act, 1995.
26. Rejoining the issue, Shri Somesh Khare and Shri Bakhteyar Yusuf, learned counsels for the respondent no. 2, would contend that the scope and intent of Section 112 is at variance with Section 6 of the General Clauses Act.
27. Further, in view of the specific saving clause in the Waqf Act, 1995, recourse to section 6 of the General Clause Act was not called for.
28. Shri Somesh Khare and Shri Bakhteyar Yusuf, learned counsels for the respondent no. 2, also submit that the correct and true ratio of the judgment of the Hon'ble Supreme Court rendered in Sardar Khan and others Vs. Syed Najmul Hasan (Seth) and others, reported at 2007(10) SCC 727, was not placed before the learned Division Bench in Shah Alam (supra) Court which led to an error of law.
29. The Hon'ble Supreme Court in Sardar Khan (supra) while considering the applicability of section 7(5) read with section 85 of the Waqf Act, 1995 to the suits or proceedings or appeals or revisions which had commenced prior to 01.01.1996 i.e. coming into force of the Waqf Act, 1995, ruled as follows:
"12. In exercise of power under Section 83 of the Act, the Wakf Tribunal was constituted on 23-2-1997. By virtue of sub-section (5) of Section 7, it clearly transpires that the Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of Section 6, before the commencement of this Act i.e. if any suit has been instituted in any civil court prior to coming into force of the Wakf Act, 1995, then the Tribunal will have no jurisdiction to decide such matter and it will be continued and concluded as if the Act has not come into force.
13. Now coming to the facts of the present case, it is an admitted fact that suit was filed on 19-12-1976 before the Addl. District Judge, Jaipur and arguments were heard and judgment was reserved on 16-12-1995 and the judgment was delivered on 23-1-1996 against which the appeal was filed before the High Court on 1-3-1996. Therefore, from these facts it is clear that the suit was pending since 19-12-1976 i.e. prior to the commencement of the Act i.e. 1-1-1996. Therefore, by virtue of sub-section (5) of Section 7, the Tribunal will have no jurisdiction to decide the suit or the appeal arising from that suit. In the present case, the appeal which was filed by the respondents (herein) arises out of the judgment and decree passed by the Addl. District Judge, Jaipur on 23-1-1996 in a suit filed on 19-12-1976. Therefore, the appeal which was filed before the High Court against the judgment and decree passed on 23-1-1996 by the Addl. District Judge, Jaipur, will not be governed by this Act. By sub-section (5) of Section 7, a special provision has been made that on pending suit or proceeding or appeal or review or revision, the Act will not be applicable. In Syed Inamul Haq Shah [AIR 2001 Raj 19] the learned Single Judge only considered the effect of Section 85 but did not examine the effect of sub-section (5) of Section 7 and, on the basis of Section 85, it was held that in all the proceedings which were pending before the civil court, the civil court will have no jurisdiction. With great respect, perhaps the attention of the learned Single Judge was not drawn to sub-section (5) of Section 7 which specifically provides an exception that this will not be applicable to the pending suits, appeals and revisions. It has purpose behind it that when the Act was made prospective, how can it operate retrospectively, therefore, all pending matters were taken out from the purview of this Act.
14. On a conjoint reading of sub-section (5) of Section 7 and Section 85, the result would be that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1-1-1996 i.e. coming into force of the Wakf Act, 1995. Therefore, the view taken by the learned Single Judge was not correct in Syed Inamul Haq Shah [AIR 2001 Raj 19] . Hence, in view of the above discussion, we are of the view that the learned Single Judge has gone wrong in relying on the decision rendered by the Single Judge in Syed Inamul Haq Shah [AIR 2001 Raj 19] . Consequently, the impugned order passed by the learned Single Judge is set aside and the matter is remitted back to the High Court for deciding the appeal in accordance with law, expeditiously."
30. The learned counsels for the respondent no. 2 with great respect submits that this Court in Shah Alam (supra) had misconstrued the ratio of Sardar Khan (supra). Learned counsels contend that the proceedings in issue fall within the ambit of "pending suits or proceedings or appeals or revisions" which have commenced prior to 01.01.1996 i.e. coming into force of the Waqf Act, 1995, as laid down by the Hon'ble Supreme Court in Sardar Khan (supra) and are not liable to be transferred.
31. I had the privilege of reading the most erudite opinion of this Court in Shah Alam (supra) and also the pleasure of hearing the learned arguments advanced at the Bar. In my considered opinion, two questions of law arise for consideration for which reference has to be made to a larger Bench of this Court:
"I. Whether the omission on part of the learned Division Bench in Shah Alam (supra) to consider the scope and ambit of section 112 of the Waqf Act, 1995 would render the judgment in Shah Alam (supra) bad in law and would require an authoritative consideration and pronouncement by Larger Bench of this Court?
II. Whether the proceedings which were instituted under Uttar Pradesh Muslims Waqfs Act, 1960 before the designated tribunal and which remained pending even after the promulgation of the Waqf Act, 1995 are saved by section 112 of the Waqf Act, 1995 and are not liable to be transferred to the new waqf tribunal constituted by the notification dated 03.03.2014?"
32. Let the records of the case be placed before Hon'ble the Chief Justice for constituting larger Bench for deciding the questions referred to above.
33. The judgment rendered, if any, by the learned tribunal in the instant case shall remain subject to the decision of the reference.
Order Date :- 12.2.2020 Dhananjai