Calcutta High Court (Appellete Side)
Board Of Wakfs vs The State Of West Bengal & Ors on 8 February, 2018
Author: Shekhar B. Saraf
Bench: Debasish Kar Gupta, Shekhar B. Saraf
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Shekhar B. Saraf
W.P.L.R.T No. 58 of 2017
Board of Wakfs, West Bengal
Versus
The State of West Bengal & Ors.
For the Petitioner : Mr. Sk. Md. Galib,
Mr. Abu Siddique Mallick,
Mr. Tanwishree Mukherjee,
For the State : Mr. Kishore Datta,
Ld. A. G.
Mr. Soumitra Bandyopadhyay,
Mr. Priyabrata Batabyal
For the Respondent No.7 : Mr. S. N. Mukherjee
Ld. Senior Advocate
Mr. Amit Banerjee
For the Respondent No.8 : Mr. Amal Baran Chatterjee,
Mr. Tapan Chakraborti,
Mr. Abdul Alim
Heard on : 30/06/2017, 10/07/2017, 31/07/2017, 16/08/2017, 23/08/2017, 23/10/2017,
30/10/2017, 08/11/2017, 15/11/2017, 22/11/2017, 29/11/2017, 06/12/2017
& 20/12/2017
Judgment on: 08/02/2018
Shekhar B. Saraf, J. :
1. This is an application filed under Article 226 of the Constitution of India challenging the judgment and order dated December 22, 2016 passed by the West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as the "Learned Tribunal") in O.A No. 1633 of 2014 (LRTT) (Sash Hazari Wakfs Estate vs. State of West Bengal and Others).
2. This writ petition has been filed by the writ petitioner being the Board of Wakf, West Bengal challenging the very jurisdiction of the Learned Tribunal. The petitioner had also challenged the same before the learned Tribunal.
3. The writ petition before the Learned Tribunal had arisen out of the impugned order dated January 31, 2014 passed by the Land Reforms Commissioner, West Bengal rejecting the case of the respondent no. 7 to cancel the long term settlement granted in favour of the respondent no. 8. The case of the respondent no. 7 before the Learned Tribunal was that the Land Reforms Commissioner, West Bengal had upheld the long term settlement in favour of respondent no. 8 without considering the fact that the land could not be vested under any circumstances and in fact there was no trace of the vesting order passed in any proceeding and as such the said vesting would be presumed to be non est in the eyes of law. The respondent no. 7 in O.A No. 1633 of 2014 had further contended that there was no automatic vesting as per law. Furthermore, no possession was taken under sub- Section (2) of Section 10 of the West Bengal Land Acquisition Act, 1953, (hereinafter referred to as the "said Act of 1953") and as such the State was not entitled to lease out the land in question. Several other grounds were taken in the said Original Application. The Learned Tribunal considering all the materials before it had dismissed the Original Application after passing an order on the merits of the case. The respondent no. 7 filed a writ petition before this Court challenging the said order dated December 22, 2016.
4. The writ petitioner herein being the Board of Wakf, West Bengal challenged the application made before the Learned Tribunal as well as the order passed by the Learned Tribunal on the ground that the Learned Tribunal had no authority whatsoever to pass any order in relation to Wakf properties and any dispute in relation to the same would have to be contested before the Learned Tribunal set up under the Wakf Act, 1995 (hereinafter referred to as "Wakf Tribunal").
5. Mr. Sk. Md. Galib, Advocate appearing on behalf of the writ petitioner placed heavy reliance on three sections of the Wakf Act, 1995 (hereinafter referred to as the "Wakf Act") being Section 83, Section 85 and Section 108A. The relevant sections are reproduced below:
"Section- 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 mutawali or 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 order 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 other order as it may think fit.
STATE AMENDMENT West Bengal.--In section 83, for sub-section (4), substitute the following sub-section, namely:-
"(4)(a) Every Tribunal shall consist of one person, who is or has been a member of the State Judicial Service holding a rank, not below the rank of a District and Sessions Judge and the appointment of every such person may be made either by name or by designation.
(b)On such appointment, such person shall be designated as Judge, Wakf Tribunal, becoming the name of the State and shall hold office for a term of three years from the date of such appointment or till he attains the age of sixty-two years, whichever is earlier."
[Vide West Bengal Act 20 of 2001, sec. 3.] Section - 85 Bar of jurisdiction of civil courts. - 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.
Section - 108A Act to have overriding effect.- The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this act."
6. Mr. Galib submits that sub-section (1) of Section 83 makes it mandatory for any dispute, question or other matter relating to Wakf or Wakf property to be within the exclusive jurisdiction of the Wakf Tribunal. He further points out that the amendment carried out by the Wakf (Amendment) Act, 2013 was explicitly done by the legislature to include all matters/disputes in relation to Wakf to be determined by the Wakf Tribunal.
7. He further places reliance on Section 85 that creates a bar of jurisdiction of civil courts. He emphasises that by the amendment of 2013, any "civil court, revenue court and any other authority" is excluded in respect of any dispute, question or other matter relating to any Wakf/Wakf property.
8. It is his further submission that the inclusion of Section 108A makes it abundantly clear that the Wakf Act shall have precedence over all other Acts as the Wakf Act is a special statute and the non obstante clause in Section 108A shall override all Acts such as the West Bengal Reforms Act, 1955; West Bengal Estate Acquisition Act, 1953 and West Bengal Land Reforms and Tenancy Tribunal Act, 1997.
9. Mr. Galib placed reliance on the judgment passed by the Supreme Court in Board of Wakf, West Bengal and Another vs. Anis Fatma Begum and Another1 and submitted that the Supreme Court in the above case clearly stated that all matters pertaining to Wakf should be filed in the first instance before the Wakf Tribunal and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India. He placed heavy reliance on paragraph 7 of the above judgment that reads as follows:-
"7. The dispute in the present case relats to a wakf. In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statue which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters."
10. However, on careful reading of the above judgment another paragraph seems to be of great significance to me being paragraph 17 of the judgment and the same is reproduced below:
"Learned counsel for the respondent, however, relied on the decision of this Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf. In the aforesaid decision it was held that eviction proceedings can only be decided by the civil court and not by the Wakf Tribunal. The dispute in the present case is not an eviction dispute. Hence, the aforesaid decision in Ramesh Gobindram case is distinguishable."
11. Mr. Galib also placed reliance on the Supreme Court judgment in Union of India vs. R. Gandhi, President, Madras Bar Association2 1 (2010) 14 SCC 588: (2012) 1 SCC (Civ) 773 2 (2010) 11 SCC 1: (2010) 6 S.C.R. 857 and placed reliance on paragraphs 71 to 84 of the said judgment. He also relied on R. K Jain vs. Union of India3 and in particular relied on paragraph 67, that reads as follows:-
"The tribunals set up under Articles 323-A and 323-B of the Constitution or under an Act of legislature are creatures of the statute and in no case can claim the status as Judges of the High Court or parity or as substitutes. However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the high Court and Supreme Court would arise for discussion and decision."
12. Mr. Galib submitted that it is the Wakf Tribunal that has the legal expertise, judicial experience and modicum of legal training with respect to Wakf properties and therefore, any issue relating to Wakf needs to be concluded by the Wakf Tribunal. He further submitted that any order passed by any other court, tribunal shall be non est in law and without jurisdiction.
13. Mr. Kishore Dutta, Learned Advocate General, appearing on behalf of the State of West Bengal, submitted that the instant matter related to a vesting done under the said Act of 1953. He drew our attention to prayer (c) of the original application filed by the respondent no. 7 challenging the said vesting.
3(1993) 4 SCC 119: (1993) SCC (L&S) 1128: (1993) 25 Administrative Tribunal Cases 464
14. He further drew our attention to Section 6 and 7 of the said Wakf Act. The relevant portion of the same are reproduced here:
"Section-6 Disputes regarding (auqaf).- (1) If any question arises whether a particular property specified as [Waqf] property in the list of [auqaf] is [Waqf] property or not or whether a [Waqf] specified in such list is a Shia [waqf] or Sunni [waqf], the Board or the mutawalli of the [Waqf] or [any person aggrieved] may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of [auqaf]:
[Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub- section (6) of section 4.] Section-7 Power of Tribunal to determine disputes regarding [auqaf].- (1) If, after the commencement of this Act, [any question or dispute] arises, whether a particular property specified as [waqf] property in a list of [auqaf] is [waqf] property or not, or whether a [waqf] specified in such list is a Shia [waqf] or a Sunni [waqf], the Board or the mutawalli of the [waqf], or [or any person aggrieved by the publication of the list of auqaf under section 5] therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:
Provided that----
(a) In the case of the list of [auqaf] relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of [auqaf]; and
(b) In the case of the list of [auqaf] relating to any part of the State and published at any time within a period of one year immediately preceding the ommencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement:
Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question."
15. In light of the above sections, he submitted that the power of the Learned Tribunal was restricted to determining disputes regarding Wakf properties as mentioned in Sections 6 and 7 and the same does not encompass all disputes especially a dispute between the State and a private person in relation to vesting by the State.
16. His next submission was in relation to the LRTT Act wherein the powers of the Learned Tribunal are defined. He submitted that section 2(r)(i) of the LRTT Act included the Act of 1953 as one of the specified Acts that comes under the LRTT Act and all disputes in relation to the same would lie before the Learned Tribunal.
17. Finally, the Learned Advocate General submitted that the challenge before the Learned Tribunal was a specific challenge with reference to vesting of the property and there was no dispute in relation to Wakf properties. He submitted that the vesting by the State had not been challenged on the ground that it was a Wakf property and therefore, there was no dispute in relation to any Wakf property.
18. Mr. Shaktinath Mukherjee, Learned Senior Advocate appearing on behalf of the respondent no. 7, the writ petitioner before the Learned Tribunal, submitted that Section 108A goes in conjunction with Section 85 and Section 108A can only go to the extent as provided in Section 85. He further submitted that one has to see the limitation of Section 83, the extent of Section 85 and thereafter apply Section 108A. He emphasized that Section 83 has no manner of application in the present facts and circumstances as the dispute does not relate to any issue in relation to Wakf but relates to a dispute with regard to vesting done by the State of West Bengal.
19. Mr. Mukherjee submitted that the jurisdiction under Article 226 and 227 of the Constitution of India is a jurisdiction conferred directly by the Constitution, while jurisdiction of the other Tribunals are conferred by the Civil Procedure Code read with State or Central legislations. He further submitted that the powers of the Tribunals set up under Article 323A and Article 323B of the Constitution of India are completely different from those that are set up under other statutes.
20. Mr. Mukherjee, thereafter, placed the Preamble of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereinafter referred to as "LRTT Act"):-
"An Act to provide for the setting up of a Land Reforms and Tenancy Tribunal in pursuance of Article 323B of the Constitution of India and for the adjudication and trial by such Tribunal of dispute, claims, objections and applications relating to, or ariing out of, land reforms or tenancy in land and other matters under a specified Act and for matters connected therewith or incidental thereto.
Whereas it is expedient to provide for setting up of a Land Reforms and Tenancy Tribunal and for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for the exclusion of the jurisdiction of all courts except a Division Bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India and the Supreme Court of India in adjudication and trial of such dispute, claims, objections and applications and for the matters connected therewith or incidental thereto."
He further placed Section 6(a), Section 7, Section 8 and Section 9 of the said Act to show the jurisdiction, power and authority of the Learned Tribunal; the exclusion of jurisdiction of courts including the Single Bench of the High Court and the fact that all cases that were before the Single Bench of the High Court were transferred to the Learned Tribunal when the said Act came into force.
21. Mr. Mukherjee, thereafter, placed before us the Apex Court judgment in the matter of L. Chandra Kumar vs. Union of India and Others4. He emphasized and placed paragraph 78 to 82 of the above judgment to buttress his arguments that the power, authority and jurisdiction of the Learned Tribunal is a special power that cannot be touched or curtailed in any manner being a basic feature of the Constitution and the same cannot even be changed by way of a Constitutional amendment. He further submitted that the jurisdiction of the Tribunals constituted under Article 323A and 323B is a Constitutional jurisdiction that cannot be touched. It is an alternative institutional mechanism and is supplemental to the High Courts in the sense that it helps the High Court to Act as a filter in the matters in which it has jurisdiction. The above situation is such that the jurisdiction and power of the Tribunal cannot be taken away by any Central or State Act. In view of the above, he submitted that the Learned Tribunal being an off shoot of the Constitution under Article 323B and specifically dealing with all matters relating to the said Act of 1953, amongst other specified Acts, no other Court or Tribunal can in any manner decide on disputes in relation to the Act of 1953 except the Learned Tribunal. For a better understanding of the principles laid down by the Apex Court in L. Chandra Kumar (supra), paragraphs 78 to 82 are set out below:
"78. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned 4 (1997) 3 SCC 261: (1997) SCC (L&S) 577 since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards.
An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of the constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.
80. however, it is important to emphasise that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental - as opposed to a substitutional
- role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses clause (3) of Article 32 of the Constitution which reads as under:
"32. Remedies for enforcement of rights conferred by this Part----
(1) * * * (2) * * *
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may be law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)."
(emphasis supplied)
81. if the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the Constitution, can be additionally conferred upon "any other court", there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323-B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 323-A and 323-B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77,78,79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose.
82. there are pressing reasons why we are anxious to preserve the conferment of such a power on these tribunals. When the Farmers of our Constitution bestowed the powers of judicial review of legislative action upon the High Courts and the Supreme Court, they ensured that other constitutional safeguards were created to assist them in effectively discharging this onerous burden. The expectation was that this power would be required to be used only occasionally. However, in the five decades that have ensued since Independence, the quantity of litigation before the High Courts has exploded in an unprecedented manner. The decision in Sampath Kumar case was rendered against such a backdrop. We are conscious of the fact that when a Constitution Bench of this Court in Sampath Kumar case adopted the theory of alternative institutional mechanisms, it was attempting to remedy an alarming practical situation and the approach selected by it appeared to be most appropriate to meet the exigencies of the time. Nearly a decade later, we are now in a position to review the theoretical and practical results that have arisen as a consequence of the adoption of such an approach."
22. Mr. Mukherjee, Learned Senior Advocate, further placed Article 246 of the Constitution of India to show the distribution of power between the Parliament and the State Legislatures to enact laws. He submitted that Article 246 has to be read with the Seventh Schedule to determine the different jurisdictions of the Parliament and the State Legislature. He further placed article 254 of the Constitution which deals with inconsistency between laws made by Parliament and laws made by the Legislatures of the States. He submitted that Article 254 provides for the supremacy of a law made by the Parliament over that of the State Legislature. However, he submitted that in the instant case, the principles enunciated in Article 254 shall not apply as in the present case the State law is enacted by virtue of Article 323B which is on a completely different footing. Mr. Mukherjee submitted that in a situation such as the present one, the State law that has been passed under Article 323B shall prevail over the Parliament law that has been enacted under Article 246 read with the Seventh Schedule.
23. Mr. Mukherjee further placed reliance on Government of Andhra Pradesh -v- P. Laxmi Devi5 to establish the hierarchy of 5 (2008) 4 SCC 720 legislations. The relevant paragraphs being paragraphs 32 to 35 are provided below:
"A. Do courts have the power to declare an Act of the legislature to be invalid:
32. The answer to the above question is: Yes. The theoretical reasoning for this view can be derived from the theory in jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law).
33. According to Kelsen, in every country there is a hierarchy of legal norms, headed by what he calls as the "grundnorm" (the basic norm). If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail (see Kelsen's The General Theory of Law and State).
34. In India the grundnorm is the Indian Constitution, and the hierarchy is as follows:
(i) The Constitution of India;
(ii) Statutory law, which may be either law made by Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of rules made under the statute, regulations made under the statute, etc.;
(iv) Purely executive orders not made under any statute.
35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the directive principles which, by Article 37, have been expressly made non-enforceable)."
24. Mr. Chatterjee appearing on behalf of the respondent no. 8 (the party to whom the State Government has subsequently settled the property to) submitted that he adopts the arguments placed by Mr. Mukherjee. He further submitted that the State Act is at a higher pedestal as the same has been legislated under Article 323B of the Constitution of India. The same being a part of the basic structure of the Constitution the laws enacted under Article 323B are on a higher footing than that of other Parliamentary and State laws.
25. Mr. Chatterjee further relied on S. P. Sampath Kumar & Others
-v- Union of India6 to show that the Learned Tribunal is an alternative institutional mechanism and is a substitute to the High Court carrying on the Constitutional functions under Article 226 and 227. He further reiterated that vesting under the Act of 1953 relates to a completely different issue unrelated to the subject matters that can be dealt by the Wakf Tribunal.
26. In reply, Mr. Galib submitted that the power and jurisdiction under sections 83, 85 read with section 108A of the Wakf Act are wider than the power and jurisdiction under section 3, section 6, section 7 and section 8 of the LRTT Act. He submitted that the scheme of the LRTT Act deals only with the specified Acts under sub-section (r) of section 2 of the LRTT Act and the Learned Tribunal has no power to travel beyond the said scheme. He further submitted that the tribunals constituted under Article 323A and 323B of the Constitution of India cannot be equated with the writ court. He relied on the explanation in Article 323B to emphasize that the "appropriate legislature" in relation to any matter, that is, the state legislature, has to make laws in accordance with the lists referred to in Part XI of the Constitution7. Relying further on paragraph 67 in R. K. Jain's case (supra) he submitted that all tribunals whether constituted under Article 246 or 6 AIR 1987 SC 386 7 Articles 245 to Articles 263 are contained in Part XI that deals with 'Relations Between the Union and the States'.
under Articles 323A and 323B of the Constitution of India are statutory tribunals and it is wrong to conclude that the tribunals set up under Article 323A and 323B are in any manner superior to and/or vested with more powers than the tribunals set up under Article 246 of the Constitution of India. Mr. Galib further placed reliance on paragraphs 1, 7, 80, 81, 93 and 99 of L. Chandrakumar's judgment (supra) in support of his above submissions. Mr. Galib finally submitted that the Wakf Act has conferred powers to the Wakf Tribunal that are wide enough to decide on issues relating to vesting under the Act of 1953. In support of the above argument he placed section 51 of the Wakf Act and laid emphasis on the second proviso to section 51 to state that all kinds of acquisitions would be covered by the Wakf Act, 1995 and disputes in relation to acquisitions would necessarily have to be adjudicated by the Wakf Tribunal.
27. I have examined the contentions of all the parties and gone through the various precedents cited by the Learned Advocates. The fact that the dispute in the present case is one relating to vesting under the Act of 1953 is not in dispute. Furthermore, the challenge to the said vesting is primarily based on various provisions of the Act of 1953. There is no doubt that an argument has also been raised by the respondent no. 7 that the applicant before the Learned Tribunal being a Wakf estate was entitled to get protection u/s 6(1)(i) of the Act of 1953.
28. There can be no second opinion after reading the judgment of the Supreme Court in L. Chandra Kumar (supra) that the tribunals that are constituted under Articles 323A and 323B of the Constitution of India are alternative institutional mechanisms and have got vested in them powers of issuing writs under Article 226 and 227 that were earlier the exclusive domain of the High Courts. That is to say, certain powers by way of constitutional amendment were transferred and culled out from the High Courts to the tribunals to enable quicker disposal of litigations. The same was done so as to relieve the High Courts of their increased loads and the tribunals set up under Articles 323A and 323B stepped into the shoes of the High Courts with respect to the powers and jurisdiction that had been culled out and given to them.
29. The judgment relied upon by Mr. Galib, appearing on behalf of the writ petitioner in the case of Anis Fatma Begum (supra) related to a dispute of partition of a Wakf property and the views expressed by the Supreme Court that "all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India" was made in the above context. On an analysis of the entire judgment, it is crystal clear that the Supreme Court was referring to "all matters pertaining to disputes relating to Wakfs". It could never have been the intention of the Supreme Court to state that any matter that had any connection, incidental or otherwise to Wakf property would have to be dealt by the Wakf Tribunal only. If I am to agree to the submissions of Mr. Galib that any dispute having any connection with a Wakf property would have to be dealt by the Wakf Tribunal, the same would lead to absurd situations. For example, would an income tax issue under the Income Tax Act, 1961 be dealt by the Wakf Tribunal just because the said liability arose in relation to a Wakf property? Similarly, valuation disputes under Municipal Corporation Law of a Wakf property would be adjudicated by a Wakf Tribunal and not the Building Tribunal set up under the Municipal Law. To take this argument even further, this court asks the question that if a crime was committed on a Wakf property would the same have to be tried before the Wakf Tribunal and not the ordinary criminal courts just because the crime was committed on the precincts of a Wakf property?
30. I am unable to accept the sophistry in the arguments placed by Mr. Galib as the same would lead to absurd results neither contemplated by the Wakf Act nor by the LRTT Act.
31. The argument raised by Mr. Galib that Article 254 comes into play as the Wakf Act and the LRTT Act are operating on the same field and therefore the Act of 1995 would prevail over the LRTT Act cannot be accepted simply because I find that the scope and jurisdiction of the above two legislations are distinct from each other and are operating in different fields. As pointed out above, the Wakf Act can only operate in relation to Wakf issues and the term "all matters pertaining to Wakfs"
has to be interpreted in a reasonable and commonsensical manner. Furthermore, the LRTT Act clearly specifies the legislations that shall come within its purview, and therefore, any action of the government under the Act of 1953, shall be the subject matter before the Learned Tribunal as the Act of 1953 is a specified Act under the LRTT Act. The question of repugnancy between the two legislations does not arise at all.8
32. In any event, assuming that these two legislations were operating on the same field, I am of the opinion that the tribunal set up under Articles 323A/323B stand on a different footing having been provided with constitutional powers for issuing writs. The power and jurisdiction of the tribunals set up under Articles 323A/323B being wider in nature and having been constituted directly under the constitutional 8 Article 254 of the Constitution of India deals with situations where a law made by Parliament and a law made by the state legislature occupy the same field and a direct conflict is seen. See the mandate of Article 323A and Article 323B shall not be subject to part XI of the Constitution of India. The jurisdiction of making laws by the appropriate legislature, shall obviously be dependent on the lists enumerated in the Seventh Schedule, but the same does not imply that a statute enacted by the Parliament under Article 246 of the Constitution of India shall override a statute enacted by the state legislature under Article 323B. The discussion by the Supreme Court in P. Lakshmi Devi (supra) clearly states that if a law in a higher layer clashes with a law in a lower layer the former will prevail.
33. The question to be answered is whether a law passed under Article 323A and/or under Article 323B is on a higher plain than that of a law passed under Article 246. The argument of Mr. Galib that both these laws are passed by the appropriate legislature and are subject to Article 246 of the Constitution, and therefore, in case of a conflict Article 254 should apply is compelling. However, a distinction needs to be drawn between legislations passed under Article 323A and/or Article 323B as against legislations passed under Article 246. The distinction is not a minor distinction - tribunals formed under Article 323A and Article 323B exclude the jurisdiction of the single bench of the High Court and as held in L. Chandrakumar (supra) these tribunals shall act as a court of first instance in writ jurisdiction excluding the jurisdiction of the single bench of the High Court; none of the tribunals constituted by statutes that are passed under Article 246 have such a jurisdiction that is co-extensive with the jurisdiction of the single bench of the High Court.
34. The very fact that the Constitution under Article 323A and 323B itself decrees that tribunals may be set up for certain specific subject matters having power of issuing writs puts these tribunals on a Constitutional bench judgment in State of W.B. -v- Kesoram Industries Ltd. & Others; (2004) 10 SCC
201. separate plain higher than that of tribunals that are set up under legislations passed under Article 246. There is no doubt that in both cases of Article 246 and Article 323B the law has to be passed by the appropriate legislature. However, the extent of power and jurisdiction given to a tribunal set up under Article 323B stems from the Constitution of India itself and is undoubtedly wider than that of tribunals set up under legislations passed under Article 246. In such a situation, we are of the opinion that the theoretical reasoning derived from the theory in jurisprudence of the Jurist Kelsen9 shall apply. Applying the principles as laid down in paragraphs 32 to 35 in the Supreme Court judgment of P. Lakshmi Devi (supra), the Learned tribunal having been set up under Article 323B would prevail over the Wakf Tribunal constituted under a legislation passed under Article
246. Needless to say, that in the event a question of repugnancy between a law made by Parliament under Article 323B and a law made by the State Legislature under Article 323B arises, the law made by Parliament shall prevail as both the laws emanate from the same source, that is Article 323B. The above discussion in paragraphs 32 to 34 hereinabove are only academic in nature as I have already held in paragraph 31 that the question of repugnancy between the Wakf Tribunal and the Learned Tribunal does not arise as they operate in different fields.
35. The issue raised by Mr. Galib in his reply for the first time with regard to section 51 of the Wakf Act that deals with matters in relation to acquisition of Wakf property is now addressed. The argument that issues in relation with acquisition also fall under the purview of the Wakf Act is not tenable as the vesting under the Act of 1953 is not an acquisition per se. The Act of 1953 is a legislation for bringing about land and agrarian reforms that removes the intermediaries and 9 For further examination of the hypothesis of 'Grandnorm', see ' 'Pure Theory of Law' written by legal theorist Hans Kelsen.
intermediary interest. Upon vesting of a land under the Act of 1953, holdings of a person above a particular limit vests with the government and the status of the persons holding land changes from land owner to that of a tenant. The concept of acquisition under the land Acquisition Act, 1894 and other related acquisition laws is quite different from the process of vesting under the Act of 1953. In view of the above, the argument of Mr. Galib that the Wakf Act intrinsically deals with vesting under the Act of 1953 is untenable and rejected.
36. Section 83 and 85 of the Wakf Act read with Section 108A of the Wakf Act shall definitely apply with respect to the specific matters within the scope of the Wakf Tribunal. A dispute such as vesting by the State under the Act of 1953 cannot by any stretch of imagination be a dispute within the scope and jurisdiction of the Wakf Act.
37. In fact the judgment of the Supreme Court in R. K. Jain (supra) wherein the Supreme Court has stated that "those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many a occasion different and complex questions of law has baffle the mind even the trained Judges in the Supreme Court and Supreme Court would arise for discussion and decision"
applies specifically to a situation where the challenge is that under the Act of 1953 with regard to vesting of a property as the Learned Tribunal has been constituted and specifically entrusted to deal with issues such as vesting under the Act of 1953.
38. In view of the above, I am of the opinion that the Learned Tribunal has correctly exercised its jurisdiction in relation to a dispute under the Act of 1953 as the same is a scheduled Act within the meaning of Section 2(r)(i) of the LRTT Act.
39. I would like to thank Mr. Kishore Dutta, Learned Advocate General, Mr. Shaktinath Mukherjee, Senior Advocate and Mr. Galib for their assistance given to this Court in the above matter.
(Shekhar B. Saraf, J.) Debasish Kar Gupta, J.
While concurring with the judgment delivered by my learned brother (Shekhar B. Saraf, J.) I would like to add a few words to the same.
The judgment impugned to this writ application is under challenge at the instance of Board of Wakfs, West Bengal, which is created under the Wakf Act, 1995 (hereinafter referred to as the said Act, 1995), on the ground of jurisdictional error alleged to have been committed by the West Bengal Land Reforms and Tenancy Tribunal, which is created under the West Bengal Land Reforms and Tenancy Act, 1995. According to Mr. Sk. Md. Galib, learned advocate appearing for the petitioner, the Tribunal created under the said Act, 1995 is the appropriate forum to take up the issue which was involved in the original application under reference for the purpose of taking up the same as a Court of first instance in view of the provisions of the said Act, 1995.
The subject matter of challenge in the original application before the learned Tribunal, which gives rise to this writ application, was an order dated January 31, 2014 passed by the Land Reforms Commissioner and communicated under a memorandum dated April 23, 2014 rejecting the prayer of the applicant for cancellation of long term settlement granted in favour of one Makhdoom Ashraf Mission in terms of letter dated July 1, 2013. According to the applicant, namely, Sash Hazari Wakfs Estate of Mollarpara, Kutub Sahar, P.S. Gazole, District- Malda, the vesting of the land in question under the West Bengal Estate Acquisition Act, 1953 was bad in law and consequent thereupon the above long term settlement could not be sustained in law.
In order to find out the appropriate forum as a Court of first instance for adjudication of the issue involved in the above matter, it is noteworthy that by virtue of the Constitution (Forty-second Amendment) Act, 1976, Articles 323-A and 323-B have been introduced in the Constitution of India by the Parliament. "Statement of Objects and Reasons" appended to the Constitution (Forty-fourth Amendment) Bill, 1976 contends, inter alia, as follows:-
". . . . . . .
5. To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio- economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under article 136 of the Constitution. It is also necessary to make certain modifications in the writ jurisdiction of the High Courts under article 226.
. . . . . . ."
Article 323-B of the Constitution of India provides as follows:-
"323B. Tribunals for other matters.- (1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely:-
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
(h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants;
(i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and fees in respect of any of those matters;
(j) any matter incidental to any of the matters specified in sub- clauses (a) to (i).
(3) A law made under clause (1) may-
(a) provide for the establishment of a hierarchy of tribunals;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under article 136 with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
(4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Explanation.- In this article, "appropriate Legislature", in relation to any matter, means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provisions of Part XI."
West Bengal Land Reforms and Tenancy Tribunal Act (hereinafter referred to as the said Act, 1997) is a legislation in exercise of the power conferred under Article 323B (2) (d) of the Constitution the object of the above enactment is indicated in the preamble as under:-
"Whereas it is expedient to provide for the setting up of a Land Reforms and Tenancy Tribunal and for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for the exclusion of the jurisdiction of all courts except a Division Bench of the High Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India and the Supreme Court of India in adjudication and trial of such disputes, claims, objections and applications and for matters connected therewith or incidental thereto;
Chapter II of the said Act, 1997 deals with establishment of Tribunal. Section 6 of the said Act, 1997 provides as under:-
"6. Jurisdiction, power and authority of Tribunal.- Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by notification in this behalf, exercise jurisdiction, power and authority in relation to-
(a) any order made by an Authority under a specified Act;
(b) an application complaining inaction or culpable negligence of an Authority under a specified Act;
(c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953;
(d) applications relating to matters under any provision of a specified Act or matters relating to any constitutional validity of any Act under the provisions of a specified Act;
(e) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act."
It is noteworthy that under the provisions of Clause (i) sub-section (r) of Section 2 of the said Act, 1997 the West Bengal Estate Acquisition Act, 1953 (hereinafter referred to as the said Act, 1953) is one of the specified acts under the said Act, 1997.
Section 7 of the said Act, 1997 provides that from the date appointed by the State Government under Section 6 of the said Act, 1997, the West Bengal Land Reforms and Tenancy Tribunal shall exercise all the jurisdiction, power and authority exercisable immediately before the day by any Court including the High Court, except the writ jurisdiction under Articles 226 and 227 of the Constitution of India exercised by a Division Bench of the High Court, but excluding the Supreme Court, for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provision of a specified Act.
Section 8 of the said Act, 1997 creates bars for the jurisdiction of the High Court except where that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution of India by a Division Bench, or any Civil Court, except Supreme Court, to entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act.
It is noteworthy at the stage to recollect the elaborate discussion made by the Hon'ble Supreme Court in the matter of L. Chandra Kumar vs. Union of India, reported in AIR 1997 SC 1125, urged before the Court, and careful appraisal of the law laid down in several judgments, and noticing the critical comments made with regard to the functioning of the Tribunals set up under Articles 323-A and 323-B of the Constitution of India by the Law Commission of India and the Malimath Committee, finally the Apex Court observed in paragraphs 98 and 99 of the above judgment as under:-
"98. Since we have analysed the issue of the constitutional validity of Section 5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the provision was not in question in Dr. Mahabal Ram case, we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which Sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for consideration of a Single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the virus of a statutory provision or rule will never arise for adjudication before a Single Member Bench or a Bench which does not consist of a Judicial Member. So construed, Section 5(6) will no longer be susceptible to charges of unconstitutionality.
99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) or Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
The jurisdiction of the West Bengal Land Reforms and Tenancy Tribunal fell for consideration of the Hon'ble Supreme Court in the matter of State of West Bengal vs. Ashish Kumar Roy, reported in AIR 2005 SC 254 and the relevant portion of the above decision is quoted below:-
"31. We are, therefore, unable to accept the contention of the learned counsel that in order to fall within the protection of umbrella of Article 323-B, the Tribunal must have been constituted only with regard to disputes arising under any law intended for agrarian reform. As long as it is a law with respect to "land reforms", it is sufficient to fall within the ambit of sub-clause (d) of clause (2) of Article 323-B of the Constitution."
In view of the above decision read with the law laid down by the Hon'ble Supreme Court by virtue of the decision of L. Chandra Kumar (supra) the West Bengal Land Reforms and Tenancy Tribunal is the appropriate forum for acting as a Court of first instance to adjudicate any dispute arising out of the provisions of the said Act, 1953, amongst other disputes.
Now, in order to consider the objections raised by Mr. Galib that the Tribunal created under the said Act, 1995 should be the appropriate forum to adjudicate the dispute in question, the statements of objects and reasons as contained in the Bill on Wakf matters which was placed before the Parliament for legislation the Wakf Act, 1995 is set out below:-
"STATEMENT OF OBJECTS AND REASONS
1. The actual working of the Wakf Act, 1954 had brought out many deficiencies in it as also in the set up of the Wakf Boards, especially, their powers of superintendence and control over the management of individual wakfs. To clarify some of these matters-the Act had to be amended three times-in 1959, in 1964 and in 1969- within a period of 15 years.
2. Comprehensive amendments to the Wakf Act, were, made by the Wakf (Amendment) Act, 1984 which were based largely on the recommendations of the Wakf Inquiry Committee set up in December, 1970 to enquire into administration of wakfs at all levels and in responses to a demand made in Parliament by the Members during a discussion on the Wakf (Amendment) Bill, 1969.
3. Only two provisions of 1984 Act could, however, be enforced because of strong opposition to its various provisions from the Muslim Community. The two provisions related to-
(i) increasing the period of limitation for filing suits in respect of wakf properties in adverse possession from 12 years to 30 years; and
(ii) application of the provisions of Wakf Act, 1954, to the Evacuee properties.
4. The main criticism related to provisions concerning the powers of the Wakf Commissioner. It was stated that the Wakf Commissioner has been given overriding powers and the Wakf Board had been made subordinate to him. The other criticisms were that the Amendment Act, 1984 is a gross interference by the State and the Central Government in the day to day management and administration of the wakfs by the Trustees and Mutawallis of wakfs.
5. After a careful consideration of the objections to the various provisions of the 1984 Act, and after holding wide ranging discussions with the leaders of the Muslim Community, it has been decided to bring in a new comprehensive Bill on wakf matters incorporating the features of 1954 Act and such provisions of the 1984 Act in respect of which there was a near consensus.
6. Now, the Wakf Law will have inter alia the following features:-
(a) Wakf Boards for the States and for the Union territory of Delhi shall have not less than 7 and not more than 13 members of which the majority will comprise such person as are elected from amongst Muslim Members of Parliament, Muslim Members of State Legislatures, Muslim Members of the Bar Council in a State and Mutawallis of wakfs having an annual income of Rs.1 lakh or more.
The nominated members will be from Muslim organisations of State eminence, recognised scholars in Muslim theology and representative of the State Government not below the rank of Deputy Secretary. In a State where there are Shia wakfs but no separate Shia Wakf Board, at least one of the Members shall be a Shia Muslim. A smaller Wakf Board is envisaged for Union territories other than Delhi.
(b) The other important feature is about distribution of powers between the Wakf Board and the Wakf Commission which would not be redesignated as the Chief Executive Officer and would be subordinate to the Wakf Board.
(c) Provisions are also being made for appointment of the Executive Officer in respect of wakfs whose performance is not satisfactory and whose annual income is Rs.5 lakhs or more.
(d) To strengthen the finances of the Wakf Board, one of the measures being contemplated is to raise the rate of the contribution by a Wakf to the WAkf Board from 6 per cent of its annual income to 7 per cent.
(e) It is also intended to put certain restrictions on the powers of Mutawallis in the interest of better management of wakf properties.
(f) An important provision in the proposed Bill relates to setting up of Wakf Tribunals to consider questions and disputes pertaining to wakfs.
(g) There are instances of misuse of wakf properties either with or without the connivance of the Mutawallis. It is now proposed to incorporate in the Bill a provision so that the alienation of wakf properties will not be easy.
(h) At present, the Wakf Act, 1954 is not applicable to Uttar Pradesh, West Bengal, parts of Gujarat, parts of Maharashtra and some of the North-Eastern States. With the enforcement of this legislation, there will be uniformity in respect of wakf administration throughout the country except in Jammu and Kashmir State.
7. The present Bill seeks to achieve the above objectives."
After considering the above statement of objects and reasons and the preamble of the said Act, 1995, it is crystal clear that the same is promulgated to provide for the better administration of Auqaf and for matter connected therewith or incidental thereto.
By virtue of the provisions of Section 83 the State Government is empowered to constitute tribunals for determination of any dispute, question or other matters relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of lessor that the lessee of such property. Section 85 of the said Act, 1995 provides that no suit or other legal proceeding shall lie in any civil court, revenue court or any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matters which is required by or under the said Act, 1995 to be determined by a Tribunal.
Under the provisions of Section 108A of the said Act, 1995, the provisions of the above Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect other than the Act.
Considering the field of operation of the said Act, 1995 in the light of the aforesaid discussion, I am of the opinion that a dispute relating to vesting of any waqf property under the said Act, 1953 has no nexus with the better administration of "Auqaf" or it is a matter connected therewith or incidental thereto. I am of the further view that by virtue of the provisions of Section 85 the bar created for civil court, revenue court and any other authority to entertain a proceeding only restricted to any dispute, question or other matters relating to any waqf, waqf property to be determined by a Tribunal created under the said Act, 1995.
The overriding effect of the provisions of the said Act, 1995 as enumerated in Section 108A of the above Act was restricted to the field of the operation of the said Act, 1995 as has already been discussed hereinabove. It has no overriding effect on the said Act, 1953 or on the functioning of a Tribunal created under the said Act, 1997 for adjudication of the disputes relating to and arising out of "Specified Acts" as mentioned in the said Act, 1997. It will not be out of context that the field of operation of a Tribunal created under the said Act, 1997 has also been discussed hereinabove.
(Debasish Kar Gupta, J.) This writ application is misconceived and is accordingly dismissed.
There will be however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shekhar B. Saraf, J.) (Debasish Kar Gupta, J.)