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2015 DIGILAW 482 (CAL)

Md. Tamijul Haque v. Md. Tahammul Haque

2015-06-15

HARISH TANDON

body2015
JUDGMENT: HARISH TANDON, J. The order No. 13 dated 7.4.2015 passed by the Waqf Tribunal West Bengal in suit No. 30 of 2014 refusing to pass an order of temporary injunction in favour of the petitioner, is assailed in this revisional application on a solitary legal point that two persons cannot constitute the Tribunal validity. In other words, the impugned order passed by a chairman and a member is without jurisdiction and coram non-judice. It would not be necessary to narrate the facts of the instant revisional application as the respective counsels have restricted their arguments on the above point which is a pure question of law. Prior to the amendment having brought to Section 83(4) of the Waqf Act 1995, one person being the member of the State Judicial Service holding a rank not below that of District, Sessions or Civil Judge Class I was the composition of the Wakf Tribunal. By Act 27 of 2013 which came into force from 1.11.2013, sub-Section 4 of Section 83 of the said Act was substituted. The amended Section 83(4) of the said Act as it is stands now is as follows: “83.(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 Judicial 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.” After the amendment having brought the Tribunal shall consist of three persons of which one should be from a State Judicial Service holding a rank not below that of a District, Sessions or Civil Judge Class I to act as a chairman and the other person to be an officer of the State Legal Services equivalent to the rank of Additional District Magistrate and another person having knowledge of Muslim Law and Jurisprudence. Sub-Section 5 of Section 83 of the Act confers power on the Tribunal that of a Civil Court to be exercised under the Code of Civil Procedure while trying a suit, executing a decree or order. Sub-Section 5 of Section 83 of the Act confers power on the Tribunal that of a Civil Court to be exercised under the Code of Civil Procedure while trying a suit, executing a decree or order. The sheet anchor of the argument advanced by the petitioner strikes at root of jurisdiction and competence of the Tribunal to pass an order while trying a suit consisting of a chairman and a member. Prior to the promulgation of the Wakf Act, 1954, there was no independent body or the agency to supervise or keep surveillance over all the wakfs. Different States or provincial legislations were having a different provisions relating to the wakfs within that State of province and there was unsatisfactory State of affairs of the Wakf through out the Country. The Wakf Act 1954 was passed by the Parliament to provide survey of the Wakf, publication of the list of the Wakf in each State and vesting in the Board to exercise the power of superintendents of all the Wakf in the State and imposed duty on the Board to insure that all the Wakf are properly maintained, controlled and administered and the incomes as also the usufructs thereof are applied in conformity with the objects and the purposes for which the same is created or intended. Several amendments were made since its promulgation relating to reconstitution of the Wakf Board, appointment of Wakf Commissioner and the enlargement of the power of the State to regulate, control and supervise and above most to constitute a Wakf Tribunals for easy, smooth and prompt disposal of the disputes concerning the Wakf. The last of such amendment was made in the year 1984 but could not be given effect to because of strong reservations and the opposition from the community. Subsequently, the Wakf Act, 1995 was enacted and the composition of the Wakf Tribunal under Section 83(4) of the said Act was vested to one person from the State Judicial Service holding a rank not below the rank of District Judge, Sessions or Civil Judge Class I. By Act 27 of 2013 the original sub-Section 4 of Section 83 of the Act was substituted and replaced. The legislature intended to bring transparency, certainty in the decision of the Tribunal if more than one member constitutes it. The legislature intended to bring transparency, certainty in the decision of the Tribunal if more than one member constitutes it. The said amendment was given effect to on and from 1st November, 2013 having over- riding effect on any other law for the time being in force or any instrument having effect by virtue of any law other than the said Act notwithstanding, anything inconsistent therewith. Chapter IV of the said Act as it stood after the amendment contains provisions relating to establishment of Boards and their functions. Section 13 requires State Government to establish the Board of Auqaf by notification in official gazettes who shall be a body corporate having perpetual succession and common seal with power to acquire and own property and to transfer such property subject to certain restrictions and conditions that may be prescribed. The composition of the Board indicated in paragraph 14 thereof which shall consist of a chairperson or persons not more than two members to elected from each of the electoral colleges consisting of Muslim members of the Parliament from the State or the national capital territory of Delhi or Muslims member of the State legislature or the Muslim members of Bar Councils of concerned State or Union Territory and Mutawallis of the Waqf having an annual income of Rs. 1 lakh and above, one person amongst the Muslims having professional experience in town planning or business management, social works, finance and revenue, agriculture and developmental activities, one person from the Muslim community having profound knowledge in Shia and Sunni theology and one person from amongst Muslims being an officer of the State Government not below the rank of Joint Secretary. A restriction is imposed to be nominated as a member of the Board of Auqaf if they are the minister of the Central Government or the State Government. Section 21 contains provisions for appointment of the member for filing up the vacancy which arises by removal, resignation, death or otherwise. Section 22 of the said Act saves action and /or orders and /or the steps taken by the Board of Auqaf on the existence of any vacancy or any defect in the Constitution thereof. It would be relevant to quote Section 22 which reads thus: “22. Section 22 of the said Act saves action and /or orders and /or the steps taken by the Board of Auqaf on the existence of any vacancy or any defect in the Constitution thereof. It would be relevant to quote Section 22 which reads thus: “22. Vacancies, etc., not to invalidate proceedings of the Board.-No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the Constitution thereof.” The legislatures were conscious of the eventuality that the filling of the vacancy may take some time and there cannot be a moratorium or keeping the Board defunct until the vacancy is filled. The aforesaid Section clearly reflects the legislative intent that the defect in the Constitution or vacancy shall not invalidate any act or the proceedings and the Board of Auqaf. The like provision has not made in relation to an act or proceedings before the Waqf Tribunal at the time of enactment of the said Act as the said Tribunal was composed of one member. Even after the substitution of sub-Section 4 of Section 83 of the Act a provision similar to Section 22 has not been introduced or brought in chapter VIII of the said Act except the exclusion Clause (Section 85) where Civil Court, revenue Court and any other authority were debarred to entertain and/or determine any dispute relating to any Waqf or Waqf property or any matter required to be determined by the Tribunal. In absence of similar provision, the intention of the legislature is manifest that the authority which derives power from a statute are required to discharge strictly inconformity therewith. The Tribunal not validly constituted passes any order or entertain any proceeding is acting without jurisdiction and such actions are nullity. Admittedly, the impugned order is passed by the Tribunal consisting of a Chairman and one member when the statute mandates that the composition of the Tribunal shall be of three persons one of which should act as a chairman and others as a members thereof. The impugned order per se is a nullity and suffers from coram non-judice. This Court, therefore, finds that the impugned order passed by the Tribunal suffers from incurable infirmities and illegalities and, therefore, cannot be sustained. The order impugned is thus set aside. The impugned order per se is a nullity and suffers from coram non-judice. This Court, therefore, finds that the impugned order passed by the Tribunal suffers from incurable infirmities and illegalities and, therefore, cannot be sustained. The order impugned is thus set aside. The State is directed to constitute the Tribunal strictly inconformity with sub-Section 4 of Section 83 of the Waqf Act 1985 within six months from the date of the communication of this order. Let the order be communicated to the Advocate General of this Court by the registry for securing the compliance thereof. The revisional application is thus disposed of. No costs.