Umar Jusab Munjavar Petitioner(S) v. Mohmmad Abdul Karim & 3 (S)

not chosen to put in an appearance before the Court.

2. On the facts and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

3. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the issuance of a writ of Certiorari or any other appropriate writ or direction, quashing and setting aside the impugned judgment and order dated 15.04.2014, passed by the learned Principal Senior Civil Judge, Jamnagar, below the application at Exh.89, in Wakf Appeal No.01 of 2012.

4. The petitioner is the original appellant, who had instituted Regular Civil Suit No.270 of 2006 in the Court of learned Civil Judge (S.D.), Jamnagar, for determination of disputed questions relating to Wakf properties. The said suit came to be converted as Wakf Appeal No.01 of 2012, vide order dated 28.12.2006 of this Court, passed C/SCA/6869/2014 JUDGMENT in Special Civil Application No.26010 of 2006.

5. The petitioner submitted an application at Exh.89, in the proceedings of Wakf Appeal No.1 of 2012. In the said application, a contention was raised by the petitioner that the learned Judge is proceeding to conduct the appeal as per the provisions of Section 83 of the Unamended Wakf Act, 1995 ("the Wakf Act" for short) and that the Tribunal is not constituted as per the said amendment. By way of the said application, the petitioner contended that any order made by the learned Judge would be an order without jurisdiction, as the Tribunal was not constituted as per the amendment. It was, therefore, prayed that the proceedings of the appeal be stayed, until the constitution of the Tribunal as per the amended provision. The above application of the petitioner came to be dismissed by the impugned order dated 15.04.2014, giving rise to the filing of the present petition.

6. This Court has heard Mr.R.C. Kakkad, learned advocate for the petitioner and Mr.Vivek N. Mapara, learned advocate for respondent No.1­ C/SCA/6869/2014 JUDGMENT Caveator, at length.

7. The submissions advanced by learned counsel for the respective parties are briefly encapsulated as below.

7.1 Mr.R.C. Kakkad, learned advocate for the petitioner submits that after the amendment, the Tribunal shall consist of three Members as prescribed in Section 83(4) of the Wakf Act as amended by the Wakf (Amendment) Act, 2013. In the present case, the Tribunal has still not been constituted as per the amendment and it consists of only one Member. In short, the Tribunal, as constituted under the unamended Section 83(4) of the Wakf Act, is still continuing. It is submitted that as the Tribunal is not constituted as per the amendment, the orders passed by it would be without jurisdiction, therefore, the prayer made by the petitioner for staying of the proceedings of the appeal ought to have been granted.

7.2 It is next submitted that by the amending Act, Sub­section (4) of Section 83 has been C/SCA/6869/2014 JUDGMENT substituted with a new section which mandates that every Tribunal shall consist of three Members with qualifications as described in the said sub­section. The fact that it is substituted means that it has to be construed to be applicable from the initial enactment of the said provision on the statute book. That being so, any order passed by the Tribunal constituted as per the old Act, after the amendment, would be without jurisdiction as three Members are required. An order passed by only one­Member Tribunal would not stand the scrutiny of law. 7.3 Pointing out to paragraph­10 of the Memorandum of the petition, it is urged by the learned advocate for the petitioner that the Tribunal failed to appreciate the meaning of the word "substitute", which means to replace and put one in the place of another. The word "substitute" may also be employed to mean replacement by cancellation of the previous one. 7.4 On the above grounds, it is prayed that the impugned order may be stayed and ultimately, C/SCA/6869/2014 JUDGMENT quashed and set aside.

7.5 Mr.Vivek N. Mapara, learned advocate for respondent No.1­Caveator, has submitted that the period of transition during which the amendment to Section 83(4) is made effective in order to constitute the Tribunal, cannot be taken to mean that the existing Tribunal under the old Act, has no jurisdiction and every matter before it should be stayed. That, the prayer made by the petitioner is to the effect that the Tribunal should not hear the Wakf Appeal filed by him but should stay the proceedings. However, such cannot be construed to be the intention of the Legislature. It is submitted that if the contention of the petitioner is accepted, it would render a large number of litigants without any remedy, pending the re­constitution of the Tribunal, as Section 85 of the Wakf Act, 1995, clearly bars the jurisdiction of the Civil Courts. This Section has not been amended. 7.6 It is further submitted that the Court should lean towards a purposive interpretation that C/SCA/6869/2014 JUDGMENT preserves the constitutionality of the Tribunals as well as the Forum, until its re­constitution as per the amendment, instead of adopting a literal interpretation. It is contended that some period of time would obviously elapse between the Publication of Notification of the amendment in the Government Gazette and the actual implementation thereof, by the State Government. The interregnum period would not render the orders of the Tribunal constituted under the old Act to be without jurisdiction.

7.7 In support of the above submissions, learned advocate for respondent No.1 has placed reliance upon a judgment of the High Court of Andhra Pradesh in Mirza Khusru Ali Baig Vs. The Andhra Pradesh State Wakf Board, represented by its Chief Executive Officer and two others passed in Writ Petition No.582 of 2014 decided on 28.01.2014.

7.8 On the basis of the above submissions, it is urged that the petition be rejected.

8. This Court has heard learned counsel for the C/SCA/6869/2014 JUDGMENT respective parties, perused the averments made in the petition, the contents of the impugned order and other documents on record.

9. A perusal of the impugned order would go to show that the Tribunal has rejected the application of the petitioner on the ground that the Wakf (Amendment) Act, 2013, would come into force on the day on which it is notified in the Government Gazette. A copy of the Gazette Notification dated 23.09.2013 appears to have been submitted to the Court on behalf of the petitioner. Meaning thereby, that the amendment has been notified on that date. The submission on behalf of the petitioner before the Tribunal, was to the effect that the amendment should be given retrospective effect as it has been substituted for the unamended provision. According to the learned advocate for the petitioner, the word "substitute" as occurring in the Amendment Act relating to Section 83(4) would mean that the amending section would replace the old section with retrospective effect, from the date when the C/SCA/6869/2014 JUDGMENT Wakf Act was initially enacted. The submissions advanced by the learned advocate for the petitioner have not been accepted by the Tribunal for the reason stated in the order, to the effect that the amendment would come into effect from the date of the Notification.

10. The petitioner before this Court has raised a question to the effect that by way of the Wakf (Amendment) Act, 2013, Sub­section (4) of Section 83 of the Wakf Act has been amended and as a result of the amendment, the Tribunal ought to consist of three Members. It is his contention that any order passed by a single­member Tribunal under the unamended Act, as in the present case, would be without jurisdiction. In order to examine this contention, it would be fruitful to advert to the relevant provisions of the Wakf Act, 1995, as well as unamended and and the amended provisions.

11. The unamended provisions of Section 83(4) of the Wakf Act reads as below:

C/SCA/6869/2014 JUDGMENT "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 wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.

(2) ***** (3) **** (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."

12. This provision provided for a one­Member Tribunal.

13. The Wakf (Amendment) Act, 2013 (No.27 of 2013) was enacted to amend the Wakf Act of 1995. Section 1 of the Amendment Act reads as below:

"Section­1.(1) This Act may be called the Wakf (Amendment) Act, 2013.

C/SCA/6869/2014 JUDGMENT (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint."

14. The act received the assent of the President of India on 20.09.2013, and was published/notified for general information in the Government Gazette on 23.09.2013. It, therefore, came into force on that date.

15. The amendment to Section 83(4) is as below:

"44. In Section 83 of the principal Act,­

(a) for sub­section (1), the following sub­ section shall be substituted, namely:­ "(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,";

(b) for sub­section (4), the following sub­ C/SCA/6869/2014 JUDGMENT sections shall be substituted, namely:­ "(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."

16. By the above amendment, the Tribunal is now required to be constituted of three members, having the qualifications prescribed as above.

17. There is no doubt regarding the fact that the application of the petitioner at Exh.89, dated 25.03.2014 was moved after the amendment came into effect. The impugned order dated 15.04.2014, C/SCA/6869/2014 JUDGMENT was also passed after the amended provision had become applicable. However, the appeal of the petitioner in which the application was moved has been filed before the amendment and is pending.

18. The Tribunal that has heard and decided the application of the petitioner and passed the impugned order, has admittedly not been reconstituted as per the amended provisions of Section 83(4) so far. It consists of a single person, pending the re­constitution as per the amendment. The question to be decided is whether an order passed by the Tribunal constituted under the unamended provisions in an appeal preferred before the amendment, can be said to be an order without jurisdiction pending its re­constitution as per the amendment.

19. The very question came up for consideration before the High Court of Andhra Pradesh in the case of Mirza Khusru Ali Baig Vs. The Andhra Pradesh State Wakf Board, represented by its Chief Executive Officer and two others (Supra). In that case as well, it was the contention of C/SCA/6869/2014 JUDGMENT the petitioner before that Court that with the amendment of the provisions of Section 83(4) of the parent Act, whereunder a three­Member Tribunal is required to be constituted and in the absence of transitional provisions vesting jurisdiction in the existing Tribunal to deal with pending or fresh cases, and till such time as the new Tribunal is constituted by the State Government, the Tribunal is denuded of jurisdiction to entertain cases and adjudicate the same. This is precisely the submission advanced on behalf of the petitioner before this Court.

20. An additional limb of the submission made by the present petitioner is that the word "substitution" in the Amendment Act, in relation to Sub­section (4) of Section 83, means that the entire provision is deemed to be substituted from the initial date of the coming into force of the Wakf Act; meaning thereby, that it existed as though it was enacted by the Legislature from the very beginning. Even if the matter is viewed from this angle, the issue to be decided would remain C/SCA/6869/2014 JUDGMENT the same.

21. To examine this contention, it would be fruitful to glance at Section 85 of the Act, which has not been amended. It reads as below:

"Section 85. Bar of jurisdiction of civil courts.­ No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal."

22. This provision of law totally bars the jurisdiction of Civil Courts in respect of any disputed question or other matter relating to any Wakf Act and Wakf property or any other matter that is required to be determined by the Tribunal constituted under the Wakf Act. The only remedy available to a litigant desirous of raising a dispute relating to a Wakf property is to bring such dispute before a Tribunal constituted under the Wakf Act. Such litigant cannot approach the Civil Court, due to the bar of jurisdiction under C/SCA/6869/2014 JUDGMENT Section 85 of the Wakf Act. The Tribunal constituted under the Wakf Act is, therefore, the only Forum available for adjudication of disputes or questions relating to Wakf property or issues arising under the Wakf Act. The intention of the Legislature appears to be that all questions arising in relation to wakf properties and all disputes arising from wakf properties, be adjudicated by a specially constituted Tribunal and not by the Civil Court.

23. There is no doubt regarding the fact that when the Tribunal, that has passed the impugned order, was constituted, the amendment to Section 83(4) had not come into effect. The Wakf Appeal was filed by the petitioner in the year 2012, before the amendment came into force. The Tribunal had been duly constituted under the (unamended) Wakf Act and it is only during the pendency of the appeal that the amendment came into effect. The hearing of the appeal was commenced by the Tribunal before the amendment became effective. The impugned order is passed in an application C/SCA/6869/2014 JUDGMENT filed in the appeal. It is true that the Amendment Act does not contain any provision to take care of the transitional phase. However, would that mean that orders passed in all matters before the Tribunal that are pending adjudication or filed before its re­constitution as per the amendment would be without jurisdiction? In the view of this Court, the answer would be in the negative, for reasons stated hereinbelow:

a) If it is held that the existing Tribunal duly constituted under the parent Act has no power or jurisdiction to entertain and adjudicate cases under the Wakf Act, until and unless it is reconstituted, as per the amended provisions of Section 83(4), the result that would ensure is that a large number of litigants would be left without any remedy, as Section 85 of the Wakf Act bars the jurisdiction of the Civil Court. This would give rise to serious repercussions and have a cascading effect. A situation would be created where litigants would be left totally without a remedy. As a C/SCA/6869/2014 JUDGMENT consequence, not only would the purpose of the Legislature in enacting the Wakf Act be defeated, it would also open the flood­gates of litigation in the High Courts, leading to a choking of the channels of the administration of justice.

(b) The amending Act has come into force on 23.09.2013. Almost nine months have elapsed since then. It cannot be said that the State Government would have directed the re­constitution of the Tribunal as per the amended act, immediately, on the very date of its coming into force. Some reasonable period of time would obviously be required to carry out the mandate of the amended provision. Till such time as a three­Member Tribunal is not constituted, it cannot be said that the one­Member Tribunal, which was seized of the appeal filed by the petitioner before the amendment came into force, loses its jurisdiction to pass an order pending appeal, midway through the adjudication. When the impugned order was passed on 15.04.2014, about seven months after the amendment, the re­constitution of the C/SCA/6869/2014 JUDGMENT Tribunal had not taken place as per the amended provision. In a situation where the Amending Act does not make a provision for the transitional phase, it cannot be held that all orders passed by a Tribunal duly constituted and functioning under the parent Act, would be without jurisdiction. This could not have been the intention of the Legislature, keeping in mind the scheme of the Wakf Act and the objects for which it has been enacted.

24. The main grievance of the petitioner is that the Tribunal did not stay the proceedings of his appeal pending before it. If it is concluded that the Tribunal shall not adjudicate upon any matter before it until its re­constitution, it would result in a freezing of all litigation abruptly. An alarming situation would be created where litigants would have no forum to approach and the pending litigation would be halted indefinitely. This could not have been the intention of the Legislature in making the amendment.

25. It is a settled position of law that while C/SCA/6869/2014 JUDGMENT interpreting a statute, the Courts should lean in favour of a purposive interpretation that preserves the constitutionality of the legislation.

26. In Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and others reported in 2003(6) SCC 659, the Supreme Court has held as below:

"22. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See CST v. Popular Trading Co.) The legislative casus omissus cannot be supplied by judicial interpretative process.

23. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole -

appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court excepts in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not C/SCA/6869/2014 JUDGMENT be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J. In Artemiou v. Procopiou (All ER p.544 I), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. Per Lord Reid in Luke v. IRC where at AC p. 577 (All ER p.664 I) he also observed: "This is not a new problem, though our standard of drafting is such that it rarely emerges."

(emphasis supplied)

27. The above pronouncement by the Supreme Court C/SCA/6869/2014 JUDGMENT lends support to the view of this Court that a construction that may be possible, but which is an improbable one that, in law, would operate with great severity and would go against the intention of the Legislation and all known notions of justice, ought not to be arrived at. The construction put by the Court has to be objective so as to ensure that injustice is not perpetuated and an unreasonable and unintended result does not emanate therefrom.

28. The object of the Wakf Act is to provide for the better administration and supervision of Wakfs. By directing the constitution of the Tribunal under the Wakf Act, the intention of the Legislature is to see that all matters arising from disputes relating to the Wakf Act or Wakf property should be adjudicated by a Tribunal constituted under the Wakf Act and not by the Civil Court. The Legislature has clearly favoured the creation of a Tribunal for such disputes, while barring the jurisdiction of the Civil Court. In the present case, there is already a Tribunal functioning that has been constituted C/SCA/6869/2014 JUDGMENT under the parent Act, though it has not yet been reconstituted as per the Amending Act. Instead of three Members, as required by the amended Section 83(4), only a one­Member Tribunal is functioning, that has passed the impugned order.

29. It is obvious that a period of transition from a one­Member Tribunal to a three­Member Tribunal would be necessary. This may consume some period of time. The intention of the Legislature can be gathered from the scheme of the Act, which is that it did not intend to create any vacuum or hiatus in the interregnum, or that all orders passed during the transitional period from a one­ Member Tribunal to a three­Member Tribunal, pending the adjudication of a case, would be without jurisdiction. Such an interpretation would defeat the very object and purpose of the Wakf Act.

30. There is no provision in the Amending Act relating to the period of time required for the re­constitution of the Tribunal as per the amendment. A literal construction, such as urged C/SCA/6869/2014 JUDGMENT on behalf of the petitioner, that a Tribunal constituted before the amendment automatically loses its jurisdiction on the coming into force of the amendment resulting in all orders passed by it being without jurisdiction, would defeat the very purpose for which the Wakf Act has been enacted and lead to serious and disastrous consequences. Till such time that the Tribunal is re­constituted, it cannot be said that the Tribunal already functioning is without jurisdiction especially as the amendment came into force pending the adjudication of the appeal of the petitioner. At the best, it can be said to be an irregularity but not an illegality that goes to the very root of the jurisdiction vested in the Tribunal.

31. In MSR Leathers vs. S. Palaniappan and another reported in 2013 (1) SCC 177, the Supreme Court has held as below:

"31. The decision of this Court in Nathi Devi v. Radha Devi Gupta reiterates the rule of purposive construction in the following C/SCA/6869/2014 JUDGMENT words: ( SCC p.277, para17) "17.

Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted."

32. To the same effect is the decision of this Court in S.P. Jain v. Krishna Mohan Gupta wherein this Court observed: (SCC p.201, para 18)

18. We are of the opinion that law should take [a] pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and lifestyle of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Krishna Iyer, J. in Busching Schmitz (P) Ltd. case that legislative futility is to be ruled out so long as interpretative possibility permits."

(emphasis supplied)

32. As held by the Supreme Court, even though there C/SCA/6869/2014 JUDGMENT may be some ambiguity in the language, of a statute which is capable of two interpretations, the Court must make an interpretation that serves the object and purport of the Act. In other words, the Court must apply the doctrine of purposive construction. In the present case, though there is no ambiguity in the language of the statute. The issue has arisen as there is no express provision regarding the transitional phase in the implementation of the amended Section 83(4) of the Wakf Act. Even so, the above principles of law would be squarely applicable in the present case.

33. Applying above principles of law to the facts of the present case, this Court is of the view that it cannot be concluded that the present Tribunal functioning under the unamended provisions of Section 83(4) of the Wakf Act, is a Tribunal without jurisdiction, even though its constitution was legal and valid at the relevant point of time. It, further, cannot be held that every order passed by the said Tribunal is without jurisdiction, merely because of the fact C/SCA/6869/2014 JUDGMENT that it is passed during the period of transition, pending its reconstitution as per the amending act.

34. A submission has been advanced by the learned advocate for the petitioner to the effect that the word "substitution" means that the amendment came into force when the parent Act was initially enacted, therefore, the impugned order is without jurisdiction. If the contention of the petitioner is accepted, it would mean that all Tribunals under the Wakf Act constituted under the parent Act, which have not yet been reconstituted as per the amendment, would be declared to be without jurisdiction and the orders passed by them would also suffer the same fate. To accept such a submission would result in an alarming situation where litigants who have a dispute regarding any Wakf or Wakf property would be left remediless.

35. In the view of this Court, the Tribunal, in its impugned order has arrived at the correct conclusion. However, this Court is unable to C/SCA/6869/2014 JUDGMENT agree with the reasons given by it in the impugned order. This Court would, therefore, uphold the conclusion of the Tribunal in the impugned order, though for different reasons as discussed hereinabove. As the conclusion arrived at by the Tribunal cannot be faulted, this Court does not consider the present to be a fit case for the exercise of its supervisory jurisdiction.

36. The petition is, therefore, rejected. Rule is discharged. There shall be no orders as to costs.

(SMT. ABHILASHA KUMARI, J.) piyush