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1980 DIGILAW 1028 (ALL)

Abdul Wahid v. Haji Abdul Rahman

1980-11-04

GOPINATH

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ORDER Gopinath, J. - This revision is directed against an order passed by the 1st Addl. Civil Judge, Varanasi, as Tribunal Judge Class I, dated 12-2-1977. By that order the Tribunal held that it had no jurisdiction to try the case. The case arose out of a reference made by the U.P. Sunni Central Waqf Board, Lucknow, under sub-section (5) of Section 63 of the U.P. Muslim Waqfs Act, 1960, hereinafter called 'the Act'. That section provides: "(5) Where in a case in which the Board has assumed direct management of a waqf or appointed a Mutawalli or a committee of management and the Board or the Mutawalli or the committee so appointed, is prevented from taking possession of the property of the waqf or of any title deeds or other deeds or other documents relating thereto the tribunal may, on the application of the Board, or of the Mutawalli or Committee so appointed, give an award for the delivery of possession of the property of wakf, and the title deeds, or other documents relating thereto against such person or persons as may be in possession of such property, title deeds or other documents". The case set out for obtaining the award was that a property of the Waqf was illegally occupied by the opposite party and hence an award from the Tribunal was necessary for obtaining possession thereof. One of the pleas raised in defence was that after the amendment of Section 63 (5) by U.P. Act No. 28 of 1971 the Tribunal had no jurisdiction to give an award. One of the pleas raised in defence was that after the amendment of Section 63 (5) by U.P. Act No. 28 of 1971 the Tribunal had no jurisdiction to give an award. After the amendment of Section 63 (5) by U.P. Act No. 28 of 1971 it reads as follows: "(5) Where in a case in which the Board has assumed direct, management of a waqf or appointed a Mutawalli or a committee of management and the Board or the Mutawalli or committee so appointed, is prevented from taking possession of the property of the waqf or of any title deeds or other deeds or other documents relating thereto, the Board may by order direct the Mutawalli to deliver possession of the waqf property and the title deed or the documents relating thereto to the Board or any officer thereof duly authorised in that behalf or to any person or committee appointed to act as the Mutawalli of the waqf property, and the order of the Board shall be forwarded to the Court of Munsif, or where there is no Munsif, the Court of Civil Judge, within whose territorial jurisdiction the said property is situate or the said Mutawalli resides, and the Court shall thereupon execute the order as if it were a decree made by itself in a suit." The effect of the amendment is that the Board by an order can itself direct delivery of possession of a property and it is not necessary to approach the Tribunal for an award. The order of the Board has to be executed by the Munsif or the Civil Judge as a decree. The position thus obtaining after the amendment of Section 63 (5) of the Act is that no re-reference is required to be made by the Board for an award to the Tribunal. The question is what is to happen to a reference already made which is pending before the Tribunal at the time of the amendment of the section. The Court below took the view that the amendment seeks to divest the Tribunal of its power to proceed with a reference made before the amendment of the section hence it had no jurisdiction to try the case. 2. Aggrieved, the Mutawalli at whose instance the reference was made has come up in revision. The Court below took the view that the amendment seeks to divest the Tribunal of its power to proceed with a reference made before the amendment of the section hence it had no jurisdiction to try the case. 2. Aggrieved, the Mutawalli at whose instance the reference was made has come up in revision. Learned counsel for the applicant submitted that pending proceedings had to be disposed of in accordance with the provisions of Section 63 (5) as it existed prior to its amendment. Under the general law a Court cannot be divested of its jurisdiction to hear a pending case notwithstanding the amendment of the law unless it expressly provides so. See Indermull Loniya v. Subordinate Judge, Secunderabad (AIR 1958 Andh Pra 779). In Venugopala Reddiar v. Krishnaswami Reddiar (AIR 1943 FC 24) it was held that a right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. In Penumatcha Neelakanteswararaju v. Jaddu Mangamma (AIR 1970 Andh Pra 1) it was held "it is a well established principle that a jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise. A right to continue a pending action or a right of appeal is not a matter of mere procedure but is a substantive right. See Colonial Sugar Refining Co. Ltd. v. Irving (1905 AC 369) and Garikapati Veeraya v. Subbiah Chaudhary ( AIR 1957 SC 540 ). In Om Prakash v. Moti Lal ( AIR 1958 All 409 ) : (1958 All LJ 210) (FB) it was held that the maxim "nova constitution futuris forman imponere debet. non praeteritis" - a new State of the law ought to affect the future, not the past - is the foundation of the rule that a statute will not be presumed to have retrospective effect. 3. In this view of the matter the amendment made in S. 63 (5) could not affect proceedings pending before the Tribunal on the date of the amendment and the Tribunal had the jurisdiction to proceed with the reference made to it. 4. 3. In this view of the matter the amendment made in S. 63 (5) could not affect proceedings pending before the Tribunal on the date of the amendment and the Tribunal had the jurisdiction to proceed with the reference made to it. 4. Learned counsel for the opposite party submitted that the jurisdiction of the Tribunal was taken away by necessary implication, in that, the saving clause, Section 19 of Act No. 28 of 1971 saved only proceedings under Ss. 49 (b), 57 (a) and 69 (a). Section 19 reads: "Section 19 of U.P. Amendment Act No. 28 provides transitory provisions as below: "Nothing in Section 49-B, Section 57A or Section 69A inserted in the principal act by this act:- (a) shall affect any suit or other proceedings instituted by the Board in a Civil Court for any relief mentioned in the said sections before the commencement of this Act, and any such suit or proceedings may be continued as if this Act had not come into force; or (b) affect the validity or executability of any judgment or decree passed by any Court before the commencement of this Act. New Section 69A after Section 69 of the principal Act reads. 69A Bar of suit etc., for certain reliefs: "No suit or other proceeding shall be instituted by the Board in Civil Court for any relief which may be obtained by proceedings under Section 49B or Section 57-A". 4-A. It will be seen that the amending Act provided for proceedings under Section 49-B and Section 57-A which could have been obtained under the unamended Act by a suit. Sec. 19 of the amending Act was thus concerned with the suits and proceedings which were pending under the unamended Act and in respect of which relief could be obtained under Sections 49-B and 57-A. It was not concerned with proceedings other than those which were mentioned in Section 19. The result was that proceedings pending under other provisions which were not affected by the provisions of Section 49-B and Section 57-A had to be governed by the general law. Under that law a pending proceeding had to continue according to old law. The Tribunal was accordingly not divested of its jurisdiction to hear a pending case. The result was that proceedings pending under other provisions which were not affected by the provisions of Section 49-B and Section 57-A had to be governed by the general law. Under that law a pending proceeding had to continue according to old law. The Tribunal was accordingly not divested of its jurisdiction to hear a pending case. It was then urged that the amendment of Section 63 (5) empowered the Board to obtain or direct delivery of possession of a waqf property and since it could itself give a direction in that behalf an award by the Tribunal was unnecessary and it rightly held that it had no jurisdiction to proceed with the case. Power of the Board to pass order as regards possession in respect of properties under the amended Section 63 (5) does not invalidate or affect prosecution of proceedings validly instituted before the amendment. Those proceedings had to be disposed of in accordance with the provisions under which they were instituted. It was then urged that the amendment was procedural in nature. This contention has no force. A right to continue a pending action is a vested right which is governed by the law as it stood on the date of the institution of the proceeding. Mohammad Haider v. Jamal Haidar ( AIR 1969 Bom 328 ). K. Eapen Chako v. The Provident Investment Company (P) Ltd. ( AIR 1976 SC 2610 ) cited on behalf of the opposite party have no application in the instant case. 5. The revision, accordingly, succeeds and is allowed. The order of the Court below is set aside. In view of the circumstances of the case there shall be no order as to costs.