# Shah Alam v. Union Of India & Ors

- **Citation:** (2016) 7 ILRA 1096
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** V.K. Shukla, Acting Chief, Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shah-alam-v-union-of-india-ors-43974
- **Pages:** 12

## Headnote

Waqf Act, 1995 - Section 83 - Wakf (Amendment) Act, 2013 - Constitution of Tribunal - One member
Tribunal - Three member Tribunal - Notification dated 07.11.1998 - Notification dated 03.03.2014 - Civil
Judge (Senior Division) to act as one man Waqf Tribunal - Notification dated 07.11.1998 stands rescinded -
Civil Judge (Senior Division) would cease to have jurisdiction - Multi Member Waqf Tribunal constituted -
Section 6 of General Clauses Act - No express repeal - No implied repeal - No person has a vested right in
7 All. Shah Alam Vs Union Of India & Ors.
1097
procedure - Matters in question required to be placed before the Waqf Tribunal - Present writ petition is
dismissed.

Held: (Paras-22-27)
1.Provisions of Section 6 of General Clauses Act would not extend any benefit to the petitioner as Apex Court
in Lal Baba Shah Dargah Trust case has clearly expressed its view that section 83 (4) of 1995 has not at all
been impliedly repealed. Once neither there is an express repeal nor there is any implied repeal and new subsection (4) of Section 83 is nothing but improvement in the constitution of Tribunal then the effect of repeal
that is being claimed before this Court is neither here nor there and is misplaced on the face of it as Section
6 of General Clauses Act would come into play only when there is repeal in any form i.e. express repeal or
implied repeal. Merely because constitution of Tribunal has been changed and place of functioning of Tribunal
has been changed same does not manifest intention inconsistent with the provision as contained under
Section 83(4) and under amended Section 83(4) as intent remains the same i.e. to provide forum, for settling
dispute pertaining to Waqfs with improvement in the constitution of Tribunal. Section 6 would be applicable
only when the new legislation manifests an intention incompatible with or contrary to the earlier provisions of
section and in no other contingency. Merely because pending matters have been transferred, including the
matters pertaining to petitioner, in no way would effect any right or privilege of petitioner as State
Government inheres in itself the right to constitute Tribunal and define its local limit. Apex Court in the case
of Shiv Shakti Housing Co-operative Society Vs. Swaraj Developers 2003 (6) SCC 659 has clearly mentioned
that no person has a vested right in procedure, he has only the right of proceeding in the manner prescribed.
If by statutory change the mode of procedure is altered, the parties are to proceed as per the altered mode,
without exception, unless there is a different situation. In such situation Section 6 has no application.
Petitioner accordingly even after withdrawal of notification by State Government cannot insist that Civil
Judge, should continue with the case even though Notification dated 07.11.1998 stands withdrawn by the
State Government

2.Reliance placed

## Text

1096 INDIAN LAW REPORTS ALLAHABAD SERIES

then it shall not render the resignation to be invalid. The only consequence of resignation
without deposit of one month's salary in lieu of notice would be that the college shall become
entitled to recover the said amount in accordance with law. Not giving one month's prior
notice or not depositing one month's salary in lieu thereof, while tendering resignation; was
the breach of Clause 35.02 of Chapter XXIII of the Statutes of the University committed by
the petitioner and as such he cannot be allowed to say that the resignation was bad for want
of one month's notice or deposit of one month's salary. The petitioner has committed a wrong
of which he cannot take advantage. The resignation was voluntarily tendered by the
petitioner which was lawfully accepted by the competent authority. On the post which fell
vacant due to resignation of the petitioner, one Sri Subhash Chandra Singhw was appointed,
whose appointment was duly approved by the respondent No.2 yet the petitioner has not
impleaded him as respondent. The manager of the college against whom sole allegation of
forced resignation has been made, has also not been impleaded as respondent.

12. In view of the above discussions, I do not find any merit in this writ petition.
Writ petition is wholly misconceived and is, therefore, dismissed. However, there shall be no
order as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE V.K. SHUKLA, ACTING CHIEF JUSTICE, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ C No.- 30948 Of 2016

Shah Alam
 ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Mohammad Hisham Qadeer, Mr. M.A. Qadeer

Counsel for the Respondents:
C.S.C., A.S.G.I., Gynendra Kr Dwivedi, Manish Goyal

Waqf Act, 1995 - Section 83 - Wakf (Amendment) Act, 2013 - Constitution of Tribunal - One member
Tribunal - Three member Tribunal - Notification dated 07.11.1998 - Notification dated 03.03.2014 - Civil
Judge (Senior Division) to act as one man Waqf Tribunal - Notification dated 07.11.1998 stands rescinded -
Civil Judge (Senior Division) would cease to have jurisdiction - Multi Member Waqf Tribunal constituted -
Section 6 of General Clauses Act - No express repeal - No implied repeal - No person has a vested right in
7 All. Shah Alam Vs Union Of India & Ors.
1097
procedure - Matters in question required to be placed before the Waqf Tribunal - Present writ petition is
dismissed.

Held: (Paras-22-27)
1.Provisions of Section 6 of General Clauses Act would not extend any benefit to the petitioner as Apex Court
in Lal Baba Shah Dargah Trust case has clearly expressed its view that section 83 (4) of 1995 has not at all
been impliedly repealed. Once neither there is an express repeal nor there is any implied repeal and new subsection (4) of Section 83 is nothing but improvement in the constitution of Tribunal then the effect of repeal
that is being claimed before this Court is neither here nor there and is misplaced on the face of it as Section
6 of General Clauses Act would come into play only when there is repeal in any form i.e. express repeal or
implied repeal. Merely because constitution of Tribunal has been changed and place of functioning of Tribunal
has been changed same does not manifest intention inconsistent with the provision as contained under
Section 83(4) and under amended Section 83(4) as intent remains the same i.e. to provide forum, for settling
dispute pertaining to Waqfs with improvement in the constitution of Tribunal. Section 6 would be applicable
only when the new legislation manifests an intention incompatible with or contrary to the earlier provisions of
section and in no other contingency. Merely because pending matters have been transferred, including the
matters pertaining to petitioner, in no way would effect any right or privilege of petitioner as State
Government inheres in itself the right to constitute Tribunal and define its local limit. Apex Court in the case
of Shiv Shakti Housing Co-operative Society Vs. Swaraj Developers 2003 (6) SCC 659 has clearly mentioned
that no person has a vested right in procedure, he has only the right of proceeding in the manner prescribed.
If by statutory change the mode of procedure is altered, the parties are to proceed as per the altered mode,
without exception, unless there is a different situation. In such situation Section 6 has no application.
Petitioner accordingly even after withdrawal of notification by State Government cannot insist that Civil
Judge, should continue with the case even though Notification dated 07.11.1998 stands withdrawn by the
State Government

2.Reliance placed by petitioner on the case of Sardar Khan Vs. Syed Nazmul Hasan 2007 (SC) Law Suit 245
would also not help the petitioner for the reason that said judgement is clearly based on the fact that by
virtue of sub-section (5) of Section 7, the Tribunal had no authority or jurisdiction to determine any matter
that has been subject matter of suit/proceeding instituted or commenced in Civil Court prior to coming into
force of the Waqf Act 1995. Judgement in the case of Bhagat Ram Sharma Vs. Union of India 1987 Law Suit
(SC) 820 will also not help the petitioner in the present case for the preposition that it is legislative practice to
provide while enacting an amending law that an existing provision shall be deleted and a new provision
substituted, then such a deletion has the effect of repeal of existing provision, as here in reference of
statutory provisions that governs the Waqf properties, Apex Court in the case of Lal Shah Baba Trust has
clearly ruled that there is no implied repeal. We cannot take view running counter to the reasoning and result
reached therein. Judicial discipline binds us to follow the aforementioned binding precedent.

4. Division Bench of this Court in Public Interest Litigation No. 8068 of 2016 ( Mohd Junaid Ajaz and 2 other
Versus Union of India and 3 others) in reference of constitution of these two Tribunals has held that in
view of repeal of Act No. 27 of 2013 by the Repealing and Amending (Second) Act, 2015 (Act No. 19 of
2015), the Waqf Tribunals which were established at Lucknow and Rampur in pursuance of the amended
provision of Section 83 would not cease to exist and would continue to function. Division Bench also
considered the scope and ambit of Section 4 of the Repealing and Amending (Second) Act, 2015 and came
to the conclusion that once provisions of amending legislature, Amended Act No. 27 of 2013 has been brought
into force and amendment has been incorporated in the Act then subsequent repealing amended legislature
would not affect that has already affected.

5.Once such is the factual situation that is so emerging in the present case is that the very authorisation by
means of notification in question dated 07.11.1998 has been rescinded, then net effect of the same is that
1098 INDIAN LAW REPORTS ALLAHABAD SERIES

Civil Judge (Senior Division) would cease to function as one man Waqf Tribunal, then Multi Member Waqf
Tribunals established at Lucknow and Rampur in pursuance of the amended provisions of Section 83, would
deal with the subject matter and none of the vested right of the petitioner could be said to be infringed.

6.As far as issues for opening Waqf Tribunal at other places are concern, as requested by parties, such issues
are left open to be decided in another Public Interest Litigation and to the domain of State Government.

7.With the above, present writ petition is dismissed.

Case Law discussed:

(Delivered by Hon'ble Hon'ble V.K. Shukla, A.C.J.)

1. Shah Alam is before this Court with following relief:-

1. Issue a writ, order or direction in the nature of certiorari quashing the impugned
Notification dated 03.03.2014 issued by the State Government (Annexure-6 to the writ petition)
and circular/ Notification of Registrar of High Court dated 13.04.2016 (Annexure-13 to the writ
petition) and both be declared to be ultra virus, void, illegal, arbitrary and unenforceable in the eyes
of law.

2. Issue a writ, order or direction in the nature of mandamus commanding the
Respondent nos. 2 and 3 to constitute Waqf Tribunal in each district including District Meerut.

3. Issue a writ, order or direction in the nature of mandamus directing the Registrar
General of High Court of Judicature at Allahabad/Respondent no.4 to withdraw its notification
dated 13.04.2016 and not to compel the District Judges to transfer the cases of petitioner from
Meerut to Rampur concerning Waqf No. 50-A, Meerut and cases pending before Waqf Tribunal,
Meerut be heard and decided at Meerut.

4. Issue a writ, order or direction in the nature of mandamus commanding the
Waqf Tribunal, Rampur not to proceed further with hearing of Waqf Case No. 19 of 2016,
Reference No. 55 of 2015, Reference No. 54 of 2016 and Reference No. 53 of 2016 respectively.

2. Petitioner is submitting that in reference of waqf property, following four cases of his
pending at Meerut would be transferred to Rampur namely.

1. Reference No. 901 of 2000 under Section 83(2) of the Waqf ActNo. 43 of 1995,
regarding Waqf No. 50-A Meerut of which the petitioner is Mutawalli and is Defendant No. 5.

2. Reference No. 772 of 2010 filed by Smt. Shahida Begam in respectof some of
the properties of the Waqf No. 50-A, Meerut of which the petitioner is Mutawalli and Defendant
No.5.
7 All. Shah Alam Vs Union Of India & Ors.
1099
3. Reference No. 6 of 2013 filed by Dr. Badre Alam in which thepetitioner is
Respondent no.3 and is Mutawalli of Waqf No. 50-A, Meerut.

4. Reference No. 11 of 2014 filed by Waqf Alal Aulad through itsalleged
Mutawalli Mohammad Muttaqi Alvi of which the petitioner is Mutawalli in which the petitioner
filed Application for his impleadment under order 1 Rule 10 C.P.C. Which is pending disposal.

3. Petitioner submits that Waqf Act, 1995 came into force with effect from 01.01.1996. By
Section 3(q), the Tribunal is defined as the Tribunal constituted under sub-section (1) of the Section
83 of the Act having jurisdiction in relation to that area. Section 84 confers power to the Tribunal to
decide and determine dispute, questions or other matters relating to a waqf property and decide the
proceeding as expeditiously as possible. Petitioner submits that Section 83 confers power to the
State Government to constitute Tribunals. In the original Act, Section 83 provides for constitution
of Tribunal consisting of only one person. Subsection 4 of Section 83 as it stood under the original
Act is quoted herein below:-

"(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 and the appointment of every such person may be made either by name or
by designation".

4. Certain amendments have been brought in the Act of 1995 in 2013 called the Wakf
(Amendment) Act, 2013. By this Amendment Act, 2013, many sections have been amended
including Section 83. After amendment, Section 83 reads as under:-

"83. Constitution of Tribunals, etc.-

(1) The State Government shall, by notification in the Official Gazette,constitute as
many Tribunals as it may think fit, for the determination of any dispute, question or other matter
relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations
of the lessor and the lessee of such property, under this Act and define the local limits and
jurisdiction of such Tribunals;

(2) Any mutawalli person interested in a Waqf or any other person aggrieved by an
order made under this Act, or rules made thereunder, may make an application within the time
specified in this Act or where no such time has been specified, within such time as may be
prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to
the Waqf. (3) Where any application made under sub-section (1) relates to any Waqf property
which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application
may be made to the Tribunal within the local limits of whose jurisdiction the

mutawalli or any one of the mutawallis of the Waqf actually and voluntarily
resides, carries on business or personally works for gain, and where any such application is made to
1100 INDIAN LAW REPORTS ALLAHABAD SERIES

the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any
application for the determination of such dispute, question or other matter: Provided that the State
Government may, if it is of opinion that it is expedient in the interest of the Waqf or any other
person interested in the Waqf or the Waqf property to transfer

such application to any other Tribunal having jurisdiction for the determination of
the dispute, question or other matter relating to such Waqf or Waqf property, transfer such
application to any other Tribunal having jurisdiction , and, on such transfer, the Tribunal to which
the application is so transferred shall deal with the application from the stage which was reached
before the Tribunal from which the application has been so transferred, except where the tribunal is
of opinion that it is necessary in the interests of justice to deal with the application afresh.

(4) Every Tribunal shall consist of-

(a) one person, who shall be a member of the State Judicial Service holding a rank,
not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman; (b) one
person, who shall be an officer from the State Civil Services equivalent in rank to that of the
Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member; and
the appointment of every such person shall be made either by name or by designation.

(4A) The terms and conditions of appointment including the salaries and
allowances payable to the Chairman and other members other than persons appointed as ex officio
members shall be such as may be prescribed. (5) The Tribunal shall be deemed to be a civil court
and shall have the same powers as may be exercised by a civil court under the Code of Civil
Procedure,1908(5 of 1908), while trying a suit, or executing a decree or order. (6) Notwithstanding
anything contained in the code of Civil Procedure, 1908(5 of 1908), the Tribunal shall follow such
procedure as may be prescribed.

(7) The decision of the Tribunal shall be final and binding upon the parties to the
application and it shall have the force of a decree made by a civil court. (8) The execution of any
decision of the Tribunal shall be made by the civil court to which such decision is sent for
execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908). (9)
No appeal shall lie against any decision or order whether interim or otherwise, given or made by
the Tribunal:

Provided that a High court may, on its own motion or on the application of the
Board or any person aggrieved, call for and examine the records relating to any dispute, question or
other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the
correctness, legality or propriety of such determination and may confirm, reverse or modify such
determination or pass such order as it may think fit."
7 All. Shah Alam Vs Union Of India & Ors.
1101
5. Petitioner submits that as Amending Act No. 27 of 2013 did not repeal Act No. 43 of
Waqf Act, 1995, in view of this, Civil Judges (Senior Division) would continue to work as Waqf
Tribunal even after 01.11.2013 pursuant to the notification dated 07.11.1998 wherein State
Government has proceeded to appoint Civil Judge (Senior Division) of each and every District to
act as one man Waqf Tribunal and said proceedings in no way would be impaired/barred and would
continue to be dealt with by respective Civil Judges (Senior Division).

6. Petitioner submits that three member Tribunal has been constituted at Lucknow and
Rampur by the State Government and before the Tribunal in question, only matters that have been
instituted as on 01.11.2013 and thereafter are liable to be transferred and rest of the matter are
liable to be tried by the Civil Judge (Senior Division), and in view of this, based on the provision of
Amended Act No. 27 of 2013 as there is no repeal clause as per Section 6 of the General Causes
Act earlier provision would continue to hold the field and Registrar General of this Court at the
point of time when he has proceeded to pass order giving direction to District Judge to transfer the
case before the Waqf Tribunal at Lucknow or Rampur, as the case may be has clearly transgressed
and overstepped its jurisdiction. Petitioner submits that if petitioner's cases that are pending before
Waqt Tribunal are transferred at Rampur then it would be mockery of justice and various reasons
have been sought to be attributed and in this regard mention has been made that notification dated
03.03.2016 issued by the State Government is against sub-section (2) and (4) of Section 83 as State
Government has failed to constitute Tribunal in each District, in view of this, interference be made
and legitimate rights of petitioner be protected.

7. On the matter being taken up on 12.07.2016, Sri Rama Nand Pandey learned Standing
Counsel was directed to obtain requisite instruction in the matter and accordingly requisite
instructions have been obtained.

8. Sri. Punit Kumar Gupta, Advocate has moved impledment application on behalf of U.P.
Sunni Central Waqf Board, 3A Mal Avenue Lucknow through its Chairman and said application
has been allowed.

9. Sri Sameer Sharma, Advocate has entered appearance on behalf of the High Court and as
pure legal questions are involved, as such present matter has been taken up for final hearing
/disposal with the consent of the parties.

10. Sri. M.A. Qadeer, Senior Advocate, assisted by Sri M.H. Qadeer, Advocate submitted
with vehemence that in the Amendment Act 27 of 2013 as on 01.11.2013 there is no repeal clause,
therefore, as per Section 83 (4) of the Waqf Act No. 43 of 1995, as stated earlier would continue to
operate accordingly and proceeding that have been instituted prior to 01.11.2013 will have to dealt
with as per the old provision, in view of Section 6 of General Clauses Act, accordingly the cases
pending before the District Waqf Tribunal, has to be decided and cannot be transferred, and in
view of this action taken for transferring of the cases is perse bad and same is liable to be
interfered with.
1102 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Sri. Gyanendra Kumar Dwivedi, Advocate representing respondent no.1, learned
Standing Counsel Sri Rama Nand Pandey representing State of U.P as well as Sri Punit Kumar
Gupta, Advocate representing U.P. Sunni Central Waqf Board and Sri Sameer Sharma, Advocate
representing this Court on the other hand submitted that in the present case, once notification
issued by the State Government on 07.11.1998 stands superseded, wherein one man Waqf Tribunal
has been constituted and thereafter, in its place multiple member Waqf Tribunal has been
constituted, then by no stretch of imagination the prayer that has been so made by the petitioner can
be accorded and all the matters that have been pending even prior to the amendment that has been
so initiated after setting aside the notification dated 07.11.1998, has to be decided by the multiple
member Waqf Tribunal and in view of this argument raised has no substance and is totally devoid
of substance and Section 6 of General Clauses Act would not come to the rescue or reprieve of
petitioner, as Section 6 of General Clauses Act, saves right accrued and/or liability incurred and it
does not create a right, accordingly writ petition preferred deserves dismissal.

12. After respective arguments have been advanced, the provisions of un-amended Act as
well as provision of Amended Act in question has been examined by us and factual situation i.e. so
emerging in the present case is that dispute pertaining to waqf property was to be adjudicated by
the Tribunal so constituted by the State Government. Section 83 provides for constitution of
Tribunal. Unamnended Section 83(4) provides that every Tribunal shall consist of one person
holding a rank not below that of a District, Sessions or Civil Judge, Class 1 in the State Judicial
Service. Amended Section 83(4) provided constitution of Tribunal as follows: (I) 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 (ii) one person, who shall be an officer from the
State Civil Services equivalent in rank to that of the Additional District Magistrate, member(iii) 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.

13. State Government earlier in its turn in exercise of power conferred under Section 83 of
Waqf Act, 1995 read with section 21 of the General Clauses Act, 1997 and in supersession of
Government Notification dated 29.11.1977 and Government Notification dated 11.03.1998 as
amended from time to time and all other notifications issued in this behalf constituted with effect
from the date of publication of notification is the Gazette, the judicial officers mentioned in
Column 3 of of the Schedule by designation as Tribunal, for the purposes of the said Waqf Act and
provided that each Tribunal shall have jurisdiction over the revenue areas specified against each in
column 4 of the schedule.

14. As per the said list in question for every district Civil Judge (Senior Division) was
designated to function as Waqf Tribunal and area of jurisdiction was also mentioned therein and
based on the same, respective Civil Judge (Senior Division) proceeded to function as Tribunal
under Waqf Act, 1995 on the strength of Notification dated 07.11.1998. After enforcement of
Amended Act No. 27 of 2013, Section 44 of the Amending Act substituted the provision of subsection (1) and (4) of Section 83 and therein State Government was empowered to constitute as
many Tribunals as it may think fit, for the determination of any dispute, question or other matter
7 All. Shah Alam Vs Union Of India & Ors.
1103
relating to a waqf or waqf property, eviction of a tenant or determination or 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. Section 83(4) provides that every Tribunal shall consist of (I) 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 (ii) one person, who shall be an
officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate,
member(iii) 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.

15. By notification dated 29 October 2013 published in the Gazette of India on 31 October
2013, the Central Government appointed 1st November 2013 as the date on which the provisions of
the Act would come into force. On 3 March 2014, in exercise of the powers conferred by subsection (4) of Section 83, the State Government constituted two Tribunals, one at Lucknow and
another at Rampur.

16. At this juncture the view point of Apex Court in the case of Lal Shah Baba Dargah
Trust Vs. Magnum Developers and others AIR 2016 SC 381 would be worthwhile to notice.
Relevant paragraph nos. 25, 26, 27, 28, 29, 40, 39, 40 are being extracted below.

25. From perusal of the statement of objects and reasons,it reveals that the single
member of the Tribunal was working fine under the Waqf Act, 1995 (before 2013 amendment).
The idea of expanding the composition by the 2013 Amendment seems to make improvement in
the functioning of the Tribunal with the help of two more members in the Tribunal.

26. Even by the 2013 amendment in Section 85 of the Act,they have also ousted
the jurisdiction of the revenue court or any other authorities along with the civil court. Meaning
thereby the legislatures wanted to make sure that no authorities apart from the Tribunal constituted
under Section 83 of the Act shall determine any dispute, question or other matter relating to a waqf
property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee
of such property under this Act.

27. As per the amendment, the three members Tribunal isto be constituted by the
State Government by notification in the Official Gazette. However, the State has not done its
mandatory duty as provided under Section 83 of the Act (as the Section 83 uses the word "shall").
Then the question is should any party suffer due to the inaction of the State. We should keep in
mind that it is common practice that the old institution/member continues to exercise duty till the
time any new institution/member takes charge of that duty. In the present case also, the one
member tribunal will continue to exercise jurisdiction till the time the State constitutes three
members tribunal by notification in the Official Gazette. The High Court erred in holding that the
civil court will exercise jurisdiction in such situation as it is manifest by the intention of the
legislature that they do not want any other authorities to exercise over the Waqf property matter
under the Act.
1104 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Mr. Muchhala, learned senior counsel appearing for the defendant/respondent,
submitted that by 2013 Amendment Act, sub-section 83(4) has been substituted replacing the
earlier sub-section 83(4) of the Act as the intention of the Legislature is that One Member Tribunal
is not enough and in its place a Three Member Tribunal should function. According to the learned
counsel the old Section 83(4) and the amended Section 83(4) is inconsistent with each other and,
therefore, doctrine of implied repeal will apply. In other words, the word substitution used in the
Amended Act must be interpreted as implied repeal. In this connection, learned counsel relied
upon
 Afcons Infrastructure (supra), Municipal Council, Palai vs. T.J. Joseph, AIR 1963 SC
1561, and Bhagat Ram Sharma vs. Union of India, AIR (1988) SC 740.

29. We are unable to accept the submission made by thelearned counsel that
Section 83(4) of 1995 Act has been impliedly repealed.

30. It is well settled that in case where there is a repealingclause to a particular Act,
it is a case of express repeal, but in a case where doctrine of implied repeal is to be applied, the
matter will have to be determined by taking into account the exact meaning and scope of the words
used in the repealing clause. It is equally well settled that the implied repeal is not readily inferred
and the mere provision of an additional remedy by a new Act does not take away an existing
remedy. While applying the principle of implied repeal, one has to see whether apparently
inconsistent provisions have been repealed and reenacted.

31. The implied repeal of an earlier law can be inferred onlywhere there is
enactment of a later law which had the power to override the earlier law and is totally inconsistent
with the earlier law and the two laws cannot stand together. If the later law is not capable of taking
the place of the earlier law, and for some reason cannot be implemented, the earlier law would
continue to operate. To such a case, the rule of implied repeal may result in a vacuum which the
law making authority may not have intended.

39. Mr. L. Nageswara Rao, learned senior counsel appearingfor the Wakf Board,
has rightly contended that the intention of the Parliament while substituting Section 83(4) is not
that one member tribunal vanishes or ceases to exist till a three member tribunal is constituted.
Intention to bring new subsection (4) in Section 83 is nothing but improvement in the constitution
of the Tribunal and both the earlier and the substituted sub-sections are not inconsistent with each
other.

40. Having regard to the law discussed hereinbefore andgiving our anxious
consideration in the matter, we are of the definite opinion that the High Court has committed
serious error of law in holding that after the Amendment Act, 2013 came into force, the one
member Tribunal exercising jurisdiction ceased to exist even though a fresh notification
constituting three member Tribunal has not been notified. The High Court further erred in law in
directing the Civil Court to decide the disputes in respect of waqf property.
7 All. Shah Alam Vs Union Of India & Ors.
1105
17. In the judgement of Apex Court quoted above clear cut mention has been made that
intention to bring new sub-section (4) in Section 83 is nothing but improvement in the constitution
of the Tribunal and both the earlier and the substituted sub-sections are not inconsistent with each
other. Further mention has been made that High Court, has committed serious error in law in
holding that after the Amendment Act, 2013 came into force, the one member Tribunal exercising
jurisdiction ceased to exist even though a fresh notification constituting three member Tribunal has
not been notified. Thus Apex Court is clear and categorical that intention to bring new sub-section
(4) in Section 83 is nothing but improvement in the constitution of the Tribunal and both the
earlier and the substituted sub-section are not inconsistent with each other.

18. Once such opinion has been expressed by Apex Court in Lal Shah Baba Dargah
Trust' case, then issue that has been raised by the petitioner before this Court that earlier Section
83(4) would continue to hold the field, cannot be accepted by us for the simple reason that
constitution of the Waqf Tribunal is exclusive domain of the State Government and State
Government in its turn earlier vide notification dated 07.11.1998 had appointed Civil Judge (Senior
Division) of each district to act as one man Waqf Tribunal and such action of the State Government
was clearly in exercise of authority conferred under Section 83 of Waqf Act, 1995. In this
direction once the State Government has rescinded the authorisation made by notification dated
07.11.1998 then Civil Judge (Senior Division) of each District would cease to have jurisdiction to
decide such matters and matters in question certainly thereafter are required to be placed before the
Waqf Tribunal competent to decide the dispute in question.

19. Apex Court in Lal Shah Baba Dargah Trust' case clearly proceeded to make a mention
that one member Waqf Tribunal exercising jurisdiction would not cease to exist even though a
fresh notification constituting three member Tribunal has not been notified. Here in the State of
U.P. situation on ground has been different as her multi member Tribunal has been constituted at
two places namely Lucknow and Kanpur. Tribunal in question that has been so notified , is nothing
but improvement in the constitution of the Tribunal and both the earlier and the substituted subsections are not inconsistent with each other.

20. At this juncture the provision of Section 6 of General Clauses Act are being looked
into:-

Section 6. Effect of repeal- where this Act, or any (Central Act) or Regulation
made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be
made, then, unless a different intention appears, the repeal shall not

(a)---------------------

(b)--------------------

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed; or
1106 INDIAN LAW REPORTS ALLAHABAD SERIES

(d)-----------------
(e)-----------------

21. The objective of this provision is to ensure protection of any right or privilege acquired
under the repealed Act.

22. Provisions of Section 6 of General Clauses Act would not extend any benefit to the
petitioner as Apex Court in Lal Baba Shah Dargah Trust case has clearly expressed its view that
section 83 (4) of 1995 has not at all been impliedly repealed. Once neither there is an express repeal
nor there is any implied repeal and new sub-section (4) of Section 83 is nothing but improvement in
the constitution of Tribunal then the effect of repeal that is being claimed before this Court is
neither here nor there and is misplaced on the face of it as Section 6 of General Clauses Act would
come into play only when there is repeal in any form i.e. express repeal or implied repeal. Merely
because constitution of Tribunal has been changed and place of functioning of Tribunal has been
changed same does not manifest intention inconsistent with the provision as contained under
Section 83(4) and under amended Section 83(4) as intent remains the same i.e. to provide forum,
for settling dispute pertaining to Waqfs with improvement in the constitution of Tribunal. Section 6
would be applicable only when the new legislation manifests an intention incompatible with or
contrary to the earlier provisions of section and in no other contingency. Merely because pending
matters have been transferred, including the matters pertaining to petitioner, in no way would effect
any right or privilege of petitioner as State Government inheres in itself the right to constitute
Tribunal and define its local limit. Apex Court in the case of Shiv Shakti Housing Co-operative
Society Vs. Swaraj Developers 2003 (6) SCC 659 has clearly mentioned that no person has a
vested right in procedure, he has only the right of proceeding in the manner prescribed. If by
statutory change the mode of procedure is altered, the parties are to proceed as per the altered
mode, without exception, unless there is a different situation. In such situation Section 6 has no
application. Petitioner accordingly even after withdrawal of notification by State Government
cannot insist that Civil Judge, should continue with the case even though Notification dated
07.11.1998 stands withdrawn by the State Government.

23. Reliance placed by petitioner on the case of Sardar Khan Vs. Syed Nazmul Hasan
2007 (SC) Law Suit 245 would also not help the petitioner for the reason that said judgement is
clearly based on the fact that by virtue of sub-section (5) of Section 7, the Tribunal had no authority
or jurisdiction to determine any matter that has been subject matter of suit/proceeding instituted or
commenced in Civil Court prior to coming into force of the Waqf Act 1995. Judgement in the case
of Bhagat Ram Sharma Vs. Union of India 1987 Law Suit (SC) 820 will also not help the
petitioner in the present case for the preposition that it is legislative practice to provide while
enacting an amending law that an existing provision shall be deleted and a new provision
substituted, then such a deletion has the effect of repeal of existing provision, as here in reference
of statutory provisions that governs the Waqf properties, Apex Court in the case of Lal Shah Baba
Trust has clearly ruled that there is no implied repeal. We cannot take view running counter to the
7 All. Bhupendra & Ors. Vs State of U.P. & Anr.
1107
reasoning and result reached therein. Judicial discipline binds us to follow the aforementioned
binding precedent.

24. Division Bench of this Court in Public Interest Litigation No. 8068 of 2016 ( Mohd
Junaid Ajaz and 2 other Versus Union of India and 3 others) in reference of constitution of
these two Tribunals has held that in view of repeal of Act No. 27 of 2013 by the Repealing and
Amending (Second) Act, 2015 (Act No. 19 of 2015), the Waqf Tribunals which were established at
Lucknow and Rampur in pursuance of the amended provision of Section 83 would not cease to
exist and would continue to function. Division Bench also considered the scope and ambit of
Section 4 of the Repealing and Amending (Second) Act, 2015 and came to the conclusion that
once provisions of amending legislature, Amended Act No. 27 of 2013 has been brought into force
and amendment has been incorporated in the Act then subsequent repealing amended legislature
would not affect that has already affected.

25. Once such is the factual situation that is so emerging in the present case is that the very
authorisation by means of notification in question dated 07.11.1998 has been rescinded, then net
effect of the same is that Civil Judge (Senior Division) would cease to function as one man Waqf
Tribunal, then Multi Member Waqf Tribunals established at Lucknow and Rampur in pursuance
of the amended provisions of Section 83, would deal with the subject matter and none of the
vested right of the petitioner could be said to be infringed.

26. As far as issues for opening Waqf Tribunal at other places are concern, as requested by
parties, such issues are left open to be decided in another Public Interest Litigation and to the
domain of State Government.

27. With the above, present writ petition is dismissed.
------------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 32275 Of 2015

Bhupendra & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rajesh Kumar Tripathi, Jawahir Yadav

Counsel for the Opposite Parties: