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Allahabad High Court · body

2023 DIGILAW 18 (ALL)

Nauman Ali v. Mazahar Hasan, son of Abdul Gaffoor

2023-01-03

J.J.MUNIR

body2023
JUDGMENT : This revision under the proviso to sub-Section (9) of Section 89 of the Waqf Act, 1995 is directed against the order of the Waqf Tribunal dated 28.02.2022 passed in Case No. 286 of 2017, rejecting the revisionist’s application under Order VII Rule 11 of the Code of Civil Procedure, 1908. 2. Amongst other grounds raised in challenge to the impugned order, there is an objection of seminal importance. On the basis of that objection, this Court, while reserving orders on 14.10.2022, framed the following question for consideration : Whether the Waqf Tribunal, constituted under Section 83(1) of the Waft Act, 1995 can be said to be in valid quorum, with a membership of two, including the Chairman, or three members, including the Chairman, envisaged under sub-Section (4) of Section 83 of the Act, is essential ? 3. A further question that would arise is : Whether given the mandatory composition of the Tribunal under sub-Section (4) of Section 83 of the Waqf Act, 1995 comprising three members with distinct qualifications and office specified, can the Tribunal sit through benches of two members, irrespective of their qualifications and office by virtue of sub-Rule (4) of Rule 3 of the Uttar Pradesh Waqf Tribunal Rules, 2017? 4. Heard Mr. Mahboob Ahmad, learned Counsel for the revisionist, Mr. Javed Hussain Khan, learned Counsel appearing for respondent no. 1 and Mr. Punit Kumar Gupta, learned Counsel for respondent no. 2. 5. The impugned order has been passed by the Uttar Pradesh Waqf Tribunal, Lucknow, comprising the Chairman of the Tribunal and one member. It is argued by the learned Counsel for the revisionist that by virtue of sub-Section (4) of Section 83 of the Waqf Act, 1995[“the Act” for short] the Tribunal must comprise of the Chairman and two other members, who are to be persons of specified office and qualifications. 6. On the other hand, learned Counsel for the respondents have brought to the notice of this Court the fact that the State Government, in exercise of powers under Section 109 of the Act, has made rules called The Uttar Pradesh Waqf Tribunal Rules, 2017. These rules have been made by notification published in the official gazette dated 14th December, 2017. On the other hand, learned Counsel for the respondents have brought to the notice of this Court the fact that the State Government, in exercise of powers under Section 109 of the Act, has made rules called The Uttar Pradesh Waqf Tribunal Rules, 2017. These rules have been made by notification published in the official gazette dated 14th December, 2017. The notification bears number 1468/LII-2–2017-2(279)-2013 T.C. Rule 3 of the Uttar Pradesh Waqf Tribunal Rules, 2017[“the Rules” for short] is quoted below : 3 (1) Any mutawalli, person interested in a waqf property 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 the Act or the rules for resolution of any dispute, question or other matter relating to the waqf. (2) Where any application made under sub-rule (1) relatesto any waqf property which falls within the territorial limits of the jurisdiction of the Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallies of the waqf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal as aforesaid, the other Tribunals shall not entertain any application for the determination of such dispute, question or other matter. (3) Every application, plaint or memorandum of appeal or an application for execution or recovery of possession shall be accompanied by Court fee as prescribed in Schedule I and II of Court Fees Act, 1870 (Act No. VII of 1870) as amended from time to time. (4) The Chairman of the Tribunal will constitute three benches comprising of two members each. The bench will be competent to decide a case. In case of disagreement between the two members of a bench, the matter will be decided by the full tribunal comprising of the three members with the majority decision. (5) 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. (6) the Tribunal will generally sit in Lucknow. However, in the public interest, the Chairman may fix sittings of a bench at divisional level, by issuing a quarterly calendar well in advance. 7. (6) the Tribunal will generally sit in Lucknow. However, in the public interest, the Chairman may fix sittings of a bench at divisional level, by issuing a quarterly calendar well in advance. 7. Learned Counsel for the respondents submit that in view of sub-Rule (4) of Rule 3 of the Rules, in the State of Uttar Pradesh, the Waqf Tribunal is in valid quorum, sitting in a bench of two members constituted by the Chairman of the Tribunal. It is argued that the exigencies of work and its volume in the State of Uttar Pradesh require the Tribunal to sit through different benches, rather than as a single bench comprising the Chairman and two members, envisaged under sub-Section (4) of Section 83 of the Act. It is submitted that the State Government is enabled, by virtue of Section 109(1) of the Act, to make rules by a notification published in the gazette to carry out the purposes of the Act, other than those that are part of Chapter III. It is further submitted that under sub-Section (2) of Section 109, there are specific matters enumerated, with reference to particulars sections of the Act, regarding which, the State Government may make rules to effectuate the purpose of the Act. Clause (xxv) of sub-Section (2) of Section 109 of the Act enables the State Government to frame rules regarding any other matter, which is required to be or may be prescribed. According to the learned Counsel, going by the definition of ‘prescribed’ clause (l) of Section 3 of the Act, ‘prescribed’ means prescribed under the Rules, except as regards Chapter III of the Act. 8. The submission of the learned Counsel for the respondents is that the State Government has wide powers to make rules in order to effectuate the objects and purpose of the Act. The rules here, including the one making provision for the Tribunal to sit through two-member benches, is also to make adjudication of disputes by the Tribunal constituted under the Act, effective. In short, it is said that it is the purpose of sub-Rule (4) of Rule 3 of the Rules that the Tribunal becomes a viable forum for adjudication of all disputes that are required to be decided by the Waqf Tribunal, constituted under Section 83 of the Act. 9. This Court has considered the submissions made by learned Counsel for parties. 10. 9. This Court has considered the submissions made by learned Counsel for parties. 10. Sub-Section (1) of Section 83 of the Act may be quoted with profit : 83. Constitution of Tribunals, etc.— [Subs. by Act 27 of 2013, s. 44, for sub-section (1) (w.e.f. 1-11-2013)][(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.] 11. A reading of sub-Section (1) of Section 83 would show that the Act envisages that it is within the province of the State Government, by notification in the Official Gazette to constitute such number of Tribunals as it thinks fit for the decision of disputes, questions and other matters relating to a Waqf or Waqf property. Eviction of a tenant has also been brought within the jurisdiction of these Tribunals. The State Government has the power to define the local limits and jurisdiction of the Tribunals that it constitutes. It is envisaged as a three-member body, comprising a Chairman and two members. The Chairman is mandated to be a member of the State Judicial Services, holding a rank not below than that of a District and Sessions Judge or Civil Judge Class I; one person who is an officer from the State Civil Services equivalent in rank to that of an Additional District Magistrate; and, one person having knowledge of Muslim law and jurisprudence. 12. What appears from a reading of sub-Section (1) and sub-Section (2) of Section 83 prima facieis that in the hearing and decision of disputes relating to Waqf or Waqf property, including eviction of tenants in such property, the State Government has been empowered by the Act to constitute such number of Tribunals as it thinks fit. The number of Tribunals that the State Government thinks fit would depend upon the nature, and more than that, the quantum of business before the Tribunal. The number of Tribunals that the State Government thinks fit would depend upon the nature, and more than that, the quantum of business before the Tribunal. There is no hurdle in the way of the State Government to constitute more Tribunals than one defining their jurisdiction, with reference to territory, or may be the nature of causes to be dealt with by each constituted Tribunal. There is no hurdle in the State Government’s way to constitute a Tribunal at every headquarters, or, may be more than one in a revenue district. It would all depend upon the State Government’s wisdom, considering the number of causes arising in a particular area, the nature of those causes, the distance that the litigants have to travel to the seat of the Tribunal and other relevant factors. 13. However, a reading of sub-Section (4) of Section 83 of the Act, together with sub-Section (1) does not seem to confer upon the State Government, the power to prescribe by rules made under Section 109 of the Act, the number of members who would constitute valid quorum for a Tribunal. The composition of the Tribunal is spelt out by sub-Section (4) of Section 83 of the Act, and, prima facie, it cannot be modified or tinkered with, in exercise of the rule-making power under Section 109 by the State Government. The composition of the Tribunal statutorily prescribed by sub-Section (4) of Section 83 cannot be disturbed through a rule made by the State Government, prescribing the competent quorum. In fact, a reading of sub-Section (4) prima-facie appears to spare little doubt that each Tribunal’s composition has been purposely spelt out. It is not only about numerical membership, but also about the education, professional training and background of members constituting it. The Chairman is mandated to be a member of the State Judicial Service, whereas the two members envisaged are also distinct and different by their qualifications and professional training. One has to be an administrative officer of the State Civil Services carrying a specified rank, that is to say, of an Additional District Magistrate, whereas, the other member has to be a person knowledgeable in the Muslim law and jurisprudence. One has to be an administrative officer of the State Civil Services carrying a specified rank, that is to say, of an Additional District Magistrate, whereas, the other member has to be a person knowledgeable in the Muslim law and jurisprudence. Each member of the Tribunal is, therefore, distinctive by his education, professional training and background; and the Tribunal, once constituted prima-facie has to comprise of all the three members, as envisaged under sub-Section (4) of Section 83. The Tribunal envisaged by the statute prima facie is to comprise of a presiding member and his associates, all with dissimilar training and background. Therefore, it does not seem to be part of the statutory scheme for the composition of the Tribunal that it should be a multi-membered body of more than three members, with a Chairman who may allocate work to benches of two members like a Court where the Presiding Member or the Chief Member or the Chief Judge, amongst Members or Judges of uniform training and background, may be authorised to allocate business to different benches constituted by him. Under the scheme of the statute, there does not appear to be prima facie any power with the State Government that may be exercised under Rule 109 to provide, through any mechanism, a Tribunal with a different composition than that envisaged by sub-Section (4) of Section 83 of the Act. 14. Decisions of this Court in Naushad Raza and others v. Waqf Prabandhak, Committee of Waqf Qabristan and others [Civil Revision No. 3 of 2017, decided on 21.02.2017 ] and Faez Aftab v. Zafar Ali Khan and others [Civil Revision No. 96 of 2017, decided on 13.04.2017]have been brought to the notice of this Court, where it has been held that the Tribunal cannot sit through two members. Another decision taking a similar view that has been brought to the Court’s notice is Abrar Husain v. U.P. Waqf Tribunal, Lucknow and another, 2017 SCC OnLine All 4081, which, though not laying down the number explicitly, seems to have followed the view that the Tribunal cannot be in valid quorum through two members. But, all these decisions have been rendered before the rules were notified. The Court in those cases, was, therefore, not confronted with the rules; or the anomalous situation that these present. But, all these decisions have been rendered before the rules were notified. The Court in those cases, was, therefore, not confronted with the rules; or the anomalous situation that these present. It is a salutary principle that if there be conflict between subordinate legislation and the statute, the Court may ignore the subordinate legislation as ultraviresthe Act. The principle, as aforesaid, has been laid down by the Supreme Court in Bharathidasan University and another v. All India Council for Technical Edudcation and others, (2001) 8 SCC 676 vis-à-vis the statutes of the Universities and the University Grants Commission in the matter of approval for starting a new technical course and introduction of a new programme. 15. In Bharathidasan University (supra) it has been held by their Lordships: 14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that Regulations made under Section 23 of the Act have “constitutional” and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions. 16. 16. Since in this case, the issue is about the vires of sub-rule (4) and Rule 3 of the Rules framed by the State Government in exercise of power of power Section 109 of the Act, this Court is of opinion that the matter ought to be heard and determined by a Division Bench. 17. List this matter before the appropriate Bench, after seeking nomination from his Lordship the Hon’ble The Chief Justice.