LexLAL SHAH BABA DARGAH TRUST versus MAGNUM DEVELOPERS AND OTHERS
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A B (2015] 10 S.C.R 966 LAL SHAH BABA DARGAH TRUST v. MAGNUM DEVELOPERS AND OTHERS (CivilAppeal No. 14565 of2015) DECEMBER 15, 2015 [M.Y. EQBALAND C. NAGAPPAN, JJ.] Wakf Act, 1995 - s. 83(as amended by 2013 Act) - c Constitution of tribunal -Amendment of s. 83(4) whereby three members tribunal to be constituted by the State Government by notification in the Official Gazette - Whether till a three member tribunal is constituted by the State Government by issuing notification one member tribunal as D constituted under 1995 Act would continue functioning or it ceases to have jurisdiction - Held: State has not done its mandatory duty of issuing fresh notification constituting three members tribunal as provided uls. 83 - It is common practice that the old institution/member continues to exercise duty till E the time any new institution/member takes charge of that duty - One member tribunal would continue to exercise jurisdiction till the time the State constitutes three members tribunal by notification in the Official Gazette - High Court erred in holding that after the Amendment Act, 2013 came F into force, the one member tribunal exercising jurisdiction ceased to exist even though a fresh notification constituting three member tribunal has not been notified and that the civil court would exercise jurisdiction in such situation - States to take steps for constituting a three member tribunal as G mandated bys. 83(4) and issue notification to that effect- Wakf (Amendment) Act, 2013. H Doctrine/Principle - Doctrine of implied repeal - Application of - Explained 966 LAL SHAH BABA DARGAH TRUST v. MAGNUM 967 DEVELOPERS AND ORS. Partly allowing the appeals, the Court A HELD: 1.1 From perusal of the statement of objects and reasons of the Wakf (Amendment) Act, 2013, it reveals · that the single member of the tribunal was working fine under the Waqf Act, 1995 (before 2013 amendment). The B 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. Even by the 2013 amendment in Section 85 of the Act, they have also ousted the C jurisdiction of the reve~ue 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 D 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. [Paras 25 and 26) [985-F-H; 986-A] 1.2 As per the amendment, the three members tribunal is to be constituted by the State Government by notification in the Official Gazette. However, the State has not done its mandatory duty as provided under Section E 83 of the Act (as the Section 83 uses the word "shall"). It F should be kept 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. The one member tribunal will continue to exercise· jurisdiction till the time the State constitutes three G members tribunal by notification in the Official Gazette. The High Court erred in holding that the civil court would exercise jurisdiction in such situation as it is manifest by the intention of the legislature that they do not want H 968 SUPREME COURT REPORTS [2015] 10 S.C.R. A any other authorities to exercise over the Waqf property matter under the Act. [Para 27] [986-8-D] 1.3 It was submitted that by 2013 Amendment Act, sub-section 83(4) has been substituted replacing the B earlier sub-section 83(4) as the intention of the Legislature is that One Member Tribunal is not enough and in its place a Three Member Tribunal should function; that the old Section 83(4) and the amended Section 83(4) is inconsistent with each other and, therefore, doctrine C of implied repeal would apply. The submission that section 83 (4) of 1995 has been implied repeal cannot be accepted. [Para 28] [986-E-G] 1.4 In case where there is a repealing clause to a o 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. The implied repeal
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