THE HON’BLE SRI JUSTICE P.S.NARAYANA THE HON’BLE SRI JUSTICE G.CHANDRAIAH AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY % 26.04.2010 C.M.A.NO.3866 OF 2002 BADARLA SURYAKUMARI APPELLANTS. And BADARLA VAMA MURTHY AND FIVE OTHERS. RESPONDENTS Counsel for the appellants: Sri A.Ramalingeshwara Rao Sri G.Vidyasagar (Standing Counsel for High Court) Counsel for the respondent: Sri Jagan Mohan Reddy for respondents 1 and 4 to 6 Sri Syed Ahmed Khan (Standing Counsel for Wakf Board.) < Gist Ø Head Note. Ø ?Cases Referred: 1. 2000(1) ALT 210 2. 1999(6) ALD 270 3. (2002)7 SCC 273 4. (1990)1 SCC 277 5. (2007)2 SCC 230 6. (2003)6 SCC 659 7. (2003)6 SCC 519 8. AIR 1989 SC 1247 9. AIR 1994 SC 1647 10. AIR 1996 SC 238 11. AIR 1957 SC 540 12. AIR 1964 SC 1511 13. AIR 2000 SC 2957 14. AIR 1966 SC 1499 THE HON’BLE SRI JUSTICE P.S.NARAYANA THE HON’BLE SRI JUSTICE G.CHANDRAIAH AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.NO.3866 OF 2002 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) Heard the counsel appearing for both the parties. 2. This matter came up for reference before this Full Bench, as one of us (PSN,J) entertained a doubt in view of the two decisions of co-ordinate Division Benches of this court in P.RAMA RAO v. HIGH COURT OF A.P.[1] and M.BIKSHAPATHI v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS[2], with regard to jurisdiction of civil courts vis-à-vis Wakf Tribunal to entertain and decide the disputes relating to wakf and wakf property and other matters, which were filed in civil court after Wakf Act, 1995 (for short ‘the Act’) coming into force and before the Constitution of the Tribunal as envisaged under Section 83 of the Act, in view of the specific bar of jurisdiction of the civil courts under Section 85 of the Act. 3. The learned single Judge (PSN,J) by order dated 26.6.2003 framed the following questions to be decided by a Division Bench: 1. Whether the suits instituted after the Wakf Act, 1995 came into force are to be filed before the Wakf Tribunal only, though the Wakf Tribunal was constituted on a later date? In other words, whether the views expressed by the respective Division Benches in the decisions referred to (1) and (2) supra require reconsideration? 2. What is the scope and ambit of Sections 6,7, 83 and 85 of the Wakf Act, 1995? 4. On reference of the above questions to the Division Bench, the matter was posted before the Division Bench comprising of PSN,J and GVS,J (Justice P.S. Narayana and Justice G.V.Seethapathy). Again by order dated 5.12.2009, the said Division Bench (Per PSN,J) on the ground that inasmuch as it is stated that the views expressed by the respective Division Benches referred to supra, continue to hold the field and there is no subsequent change of law i.e., an authoritative pronouncement by a Full Bench or a Larger Bench in relation to the questions involved, referred the matter to the Full or Larger Bench. As per the administrative order of the Hon’ble the Chief Justice, the matter is placed before this Full Bench for answering the reference. 5. The facts, which are not in serious dispute, are that the suit schedule property is wakf property and the plaint was presented on 23.12.1996 and it was numbered as O.S.No.18 of 1999 on the file of Principal Senior Civil Judge, Eluru, which is filed for partition of Acs.9-00 of land and for recovery of past profits and future mesne profits. By the impugned order dated 13.12.2002, the court below returned the plaint for presenting before the Wakf Tribunal. Aggrieved by the same, the plaintiff filed the present appeal. As stated above, the learned single judge in view of the judgments 1 and 2 supra, referred the matter to the Division Bench and again the Division Bench referred the matter to this Full Bench for answering the reference. 6. Before the Full Bench the learned counsel appearing for the appellant Sri A.Ramalingeshwara Rao, submitted that as on the date of the presentation of the plaint, though the Act came into force, no Tribunal was constituted and, therefore, though there is specific bar of jurisdiction of civil courts under Section 85, as there is no forum, the civil court has jurisdiction to entertain and dispose of the suit. He submitted that the issue involved in the present appeal is aptly answered by the Division Bench of this court in P.Rama Rao’s case (1 supra). With these submissions he sought to set aside the impugned order of the court below dated 13.12.2002 and to direct the court below to entertain and dispose of the matter in accordance with law. 7. Sri G. Vidyasagar, who represented High Court, also supported the decision of the Division Bench in P.Rama Rao’s case (1 supra) and submitted that the Division Bench in P.Rama Rao’s case need not be reconsidered and there is also no conflict between the decisions of two co-ordinate Division Benches of this court referred to 1 and 2 supra. 8. On the other hand, the learned counsel for the respondents 1 and 4 to 6 Sri Jagan Mohan Reddy appearing for Sri A.Narasimha Reddy and the Standing Counsel for Wakf Board Sri Syed Ahmed Khan, vehemently argued that in view of the express bar under Section 85, the civil court has no jurisdiction and the impugned order does not warrant any interference. 9. With regard to the decision of Division Bench in P.Rama Rao’s case (1 supra), the learned counsels submitted that it requires reconsideration. They contended that Section 85 of the Act expressly bars the jurisdiction of the civil court and the language employed in the section is clear and unambiguous and, therefore, even the pending cases also have to be transferred to the Wakf Tribunal, though there is no specific provision for transfer and by doing so, the avowed object envisaged by the Legislature, in enacting this special enactment, would be fulfilled. They submitted that when the jurisdiction of the civil court is barred, again directing the civil court to deal with the pending cases filed prior to the constitution of the Tribunal, is nothing but defeating the very object of creating the special Tribunal under the Act. It is contended that the Division Bench added the words “after the constitution of the Tribunal” after the words “should lie” occurring in Section 85 of the Act and the causes omissus in the present circumstances by the Court, is not warranted, as the language employed in the section is clear and unambiguous. Relying on the judgments of the Apex Court reported in UNION OF INDIA v. HANSOLI DEVI[3], UNION OF INDIA v. FILIP TIAGO DE GAMA[4], RAGHUNATH RAI BAREJA v. PUNJAB NATIONAL BANK[5], SHIV SHAKTI COOP. HOUSING SOCIETY v. SWARAJ DEVELOPERS[6] and UNION OF INDIA v. RAJIV KUMAR[7] they contended that when the language used in the section is clear and unambiguous, literal meaning has to be given irrespective of its consequences and the courts cannot legislate and the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation and the other rules of interpretation viz., reading down the statute, purposive interpretation etc., can be resorted to, when the plain words of a statute are ambiguous or lead to no intelligible results and if read literally, would nullify the very object of the statute. They contended that where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than literal rule. With these submissions, the law laid down by the Division Bench in P.Rama rao’s case (1 supra) was sought to be reconsidered. 10. In order to answer the reference, certain admitted facts, relevant provision under the Act and, the two judgments of this court referred to 1 and 2 supra and the law laid down by the Apex Court, are required to be considered. 11. The Act came into force on 1.1.1996 and Section 83 of the Act provided for constitution of the Wakf Tribunal. The Government of Andhra Pradesh issued G.O.No.88 Minorities Welfare Department dated 20.6.1997 constituting the Wakf Tribunal with effect from 1.7.1997. 12. Therefore, it is clear that though the Act came into force with effect from 1.1.1996, the Tribunal under the Act was constituted with effect from 1.1.1997 i.e., after a period of about one and half year and under Section 85 of the Act, the jurisdiction of the civil court is expressly barred. 13. The High Court of A.P. issued circular in R.O.C.No.2960/E1/98 dated 13.7.1999 directing all the civil courts in the State to return the plaints/petitions instituted on or after 1.7.1997, enabling the parties to present them before the A. P. Wakf Tribunal, Hyderabad. The relevant portion of the circular at paragraph nos.2 and 3 is extracted as under for ready reference: “The suits or other proceedings including determination of dispute or question relating to wakf or wakf property or other matters falling within the purview of the Wakf Tribunal cannot be entertained by civil court, when once the Wakf Tribunal is constituted. (Vide Sections 83 and 85 of the Wakf Act, 1995). The High Court of Andhra Pradesh hereby directs all the Civil Courts in the State to return the plaints/petitions instituted on or after 1.7.1997, so as to enable the parties to present them before the Andhra Pradesh Wakf Tribunal, Hyderabad, after giving notice to the counsel and hear them if there is any dispute as regards the maintainability of the suit and then take appropriate steps.” 14. In the decision of the Division Bench of this court in P.Rama Rao’s case (1 ) supra, the above circular of the High Court dated 13.7.1999, came to be challenged. The question arose for consideration was “What is the position of the suits or other proceedings instituted between 1.1.1996 and 30.6.1997?”. It was contended that in view of the express bar created by Section 85 of the Act, the civil court cannot proceed with the matter, because its jurisdiction has been taken away. Considering this contention and the facts and circumstances, and also Sections 83, 85 and 7 of the Act, and also taking into consideration that the Tribunal was constituted after a period of about one and half year after the Act came into force and as there is no specific provision for transfer of cases from civil court to Tribunal, which provisions existed in several State and Central enactments like Section 29 of the Administrative Tribunals Act, Section 8 of Family Courts Act, Section 31 of Recovery of Debts due to the Banks and Financial Institutions Act, etc. the Division Bench upheld the circular of the High Court dated 13.7.1999 and qualified Section 85 of the Act by adding the words “after the constitution of the Tribunal” immediately after the words “should lie” occurring in the said section. The relevant paragraphs are extracted as under, for better appreciation: “3. Though the Act came into force on 1.1.1996 and the Act provided for constitution of the Tribunal, actually, the Tribunal was constituted by the State Government by G.O.No.88, Minorities Welfare Department, dt. 20.6.1997 with effect from 1.7.1997. A Judicial Officer of the rank of District Judge was posted some time later and the Tribunal is now functioning. In several Central and State enactments wherein an exclusive Tribunal is created for the purpose of dealing with the specified matters, provision is made for the transfer of pending cases, for example, Section 29 of the Administrative Tribunals Act, Section 8 of Family Courts Act, Section 31 of Recovery of Debts due to the Banks and Financial Institutions Act, etc. But, no such provision is found in the Wakf Act. 4. Then, the question is what is the position of the suits or other proceedings instituted between 1.1.1996 and 30.6.1997.. . . 5. . . 6 It is true as pointed out by the learned Addl. Advocate General and also the learned counsel for the petitioners, on the plain language of Section 85, the bar against the entertainment of suit seems to arise on and from the date of the commencement of the Act. The moment the Act came into force, the bar operates, prima facie. The fundamental postulate of Section 85 read with the other relevant provisions is that the Wakf Tribunal shall be a substitute for the civil courts in respect of matters required to be dealt with by the Tribunal under the Act. The scheme of the Act contemplates and unfolds the intention of the Legislature in clearest terms that the obliteration of the jurisdiction of the Civil court and the creation of the Tribunal to take over the exclusive jurisdiction confided to it is a simultaneous process. No vacuum or hiatus could have been intended by the Legislature. The delay in the constitution of the Tribunal just as it has happened in this State, would not have been foreseen by the Legislature. Surely, it could not have been the intention of the Legislature that the existing remedy or recourse to Civil Court should be extinguished as a first step and that remedy should be made available only when the Wakf Tribunal is set up. What should be the remedy of the aggrieved party or Institutions or Wakf during the intervening period? Should they indefinitely wait in order to pursue their remedy till the State Government issues a notification constituting the Tribunal? In the instant case, the Tribunal was constituted 1 ½ years after the Act came into force which is fairly a long period. If the aggrieved persons or Institutions are left without any remedy to move the Court or a judicial body during this period, absurd and unintended results would follow. Such consequences are manifestly contrary to the legislative intention. Not only that, even the provision i.e., Section 85 would be vulnerable to attack on the ground of infringement of Article 14 inasmuch as a particular class of litigants would be left without remedy to prevent invasion of their rights recognized by law on account of sheer delay in constituting the Tribunal. Obviously, such construction should be avoided. Literal interpretation should yield to purposive construction and a construction which preserves the Constitutionality of the provision. The fact that the provision for transfer of cases from the Civil Court to the Wakf Tribunal is not provided for in the Act is also a pointer to the legislative intention that the suits filed earlier to the constitution of the Tribunal shall continue to be dealt with by the Civil Court. We are therefore of the view that in the interests of imparting rationality to the provision and accomplishing the legislative object, Section 85 has to be qualified by the words “after the constitution of the Tribunal” immediately after the words “should lie”. No doubt by doing so, the literal construction is eschewed and certain words which are really implicit are read into the Section. But such reading and interpretation is not an impermissible exercise. As long back as in 1955, the Supreme Court in Tirath Singh vs. Bachittar Singh (AIR 1955 SC 830) laid down that in order to avoid absurd and anomalous consequences, there could be addition or modification of the words. 7. The addition of qualifying words as mentioned supra would result in reading down the wide sweep of the embargo laid down in Section 85. Reading down a legal provision to save it from unconstitutionality or unjust or absurd consequences or even to make it subserve its avowed purpose has now come to be recognized as an effective tool of statutory interpretation. To cite a few recent examples of such reading down, we may refer to the decisions in Dy.C.T.O. vs. Coromandal Pharmaceuticals {(1997)10 SCC 649}, B.R. Enterprises vs. State of U.P. (AIR 1999 SC 1867), Madan Singh vs. Unionof India {(1999)6 SCC 459}. In Sunil Batra vs Delhi Admn. (AIR 1978 SC 1675), the rule of reading down and reading wide was acclaimed as an integral part of interpretational engineering. 8. In the light of the foregoing discussion, we uphold the circular of the High Court and hold that the plaint in the suit referred to above need not be returned, nor the suit be transferred to Wakf Tribunal. It can be dealt with by the Civil Court. The writ petition is therefore dismissed. No costs.” 15. Coming to the co-ordinate Division Bench decision of this court in M.Bikshapathi’s case (2 supra), the dispute related to jurisdiction of the Tribunal to determine whether the wakf property has been rightly leased or wrongly leased and questions relating to wakf property. The Division Bench considering Section 6, which deals with disputes regarding wakf and also considering Section 83, which deals with constitution of the Tribunal by the State Government, held that jurisdiction of the Wakf Tribunal under Section 6 is not limited to the matters prescribed in Section 6, and it is competent to determine the question relating to management of the wakf property including its lease. The relevant portion at paragraph nos.6 and 7 is extracted as under: “6. Going by the principles of interpretation of a statute, a section should be read in a manner that both the sections should be operative so as to give effect to the intention of the Legislature. It is discernible from reading Section 83 that the State Government can appoint a Tribunal for the determination of any dispute, question or any matter relating to wakf or wakf property under the Wakf Act and define the local limits, jurisdiction etc. There is no dispute that the Wakf Tribunal has been constituted with such vast powers as envisaged by Section 83. Thus, the jurisdiction of the Wakf Tribunal cannot be limited by reading Section 6 alone providing for the decision to determine the nature of the wakf property i.e., to the effect whether it is a wakf property or not; whether it is a Shia Wakf or Sunni Wakf and who is the interested person who can institute a suit. Section 6 further specifies that the person interested shall, in relation to the property, include every person who though not interested in the wakf concerned, if interested in such property. We are of the considered view that reading both the sections together and permitting them to operate in their totality, it is within the jurisdiction of the Tribunal to determine whether the wakf property has been rightly leased or wrongly leased or any questions relating to wakf property. Consideration or non-consideration of the application of the appellant for leasing out the wakf property is within the purview of the Wakf Board and any irregularity or illegality in its consideration is within the jurisdiction of the Tribunal. 7. It has been further brought to our notice that the lease was granted for 11 months and according to the counsel for the appellant lease has not yet been granted. In either of the eventualities, within a reasonable period on the expiry of the lease, we have no doubt that the Wakf Board will consider the applications of all the persons who apply for lease and it being a public property, the same should be leased out in accordance with the principles settled by the Supreme Court to serve the best interest of the Wakf and not by shady deals.” 16. From a reading of both the judgments of the co-ordinate Division Benches of this court referred to 1 and 2 supra, it is clear that both were dealing with different set of facts and circumstances. The Division Bench in P.Rama Rao’s case (1 supra) dealt with the situation where the suits relating to wakf property were instituted in the civil court earlier to the constitution of the Tribunal under Section 83 of the Act and held that the plaint need not be returned, nor the suit be transferred to the Wakf Tribunal and it can be dealt with by the Civil Court. In Bikshapathi’s case (2 supra) the Co-ordinate Division Bench dealt with regard to the jurisdiction of the Tribunal under Section 6 of the Act and held that the Tribunal constituted under Section 83 has jurisdiction to determine all questions relating to the management of the wakf property, including its lease. 17. Therefore, we are of the considered view that there is no conflict or rather any overlapping on any issue. 18. Before this Full Bench, the main contention of the counsel for the Wakf Board and the respondents is that literary meaning shall be given to the Section. There is no dispute with regard to this proposition. Hence, we would like to examine the section by giving literary interpretation. Section 85 of the Act is extracted as under: 85. Bar of jurisdiction of Civil Courts:-No Suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other mater relating to any Wakf, Wakf property or other matter which is required by order under this Act to be determined by a Tribunal. 19. From a reading of the above provision it is clear that the Legislature has used the expression ‘No suit or other legal proceedings shall lie in any Civil Court’ in respect of any dispute, which is required to be dealt with by the Tribunal. The words “shall lie” have to be carefully examined to give literal meaning to the section. The dictionary meaning of ‘shall’ in this regard needs to be considered: 20. The Chambers’s Twentieth Century Dictionary defines ‘shall’ as under: “Shall – Originally expressing debt or moral obligation, now used with the infinitive of a verb (without to) to form (in sense) a future tense, expressing in the first person mere futurity (as will in the second and third), in the second an third implying also promise, command, decree, or control on the part of the speaker: must, will have to, is to, &C. (2nd and 3rd persons, and interrogatively I):may be expected to, may chance to, may well (all persons) may in future contingency, may come to (all persons). . .” 21. The Oxford English Reference Dictionary give meaning of ‘Shall’ as under: “Shall – . . . (1) (in the 1st person) expressing the future tense (I shall return soon) or (with shall stressed) emphatic intention (I shall have a party). 2. (in the 2nd and 3rd persons) expressing a strong assertion or command rather than a wish (you shall not catch me again; they shall go to the party). . .3. expressing a command or duty ..4. (in 2nd person questions)expressing any enquiry, esp. to avoid the form of a request. . ” 22. From a reading of the above dictionary meaning it is clear that ‘shall’ is used for expressing future tense. Therefore, in the light of the dictionary meaning, if the section is read, it is clear that no suit or other legal proceedings shall lie i.e., admissible or sustainable, in future, in any civil court in respect of any dispute, which is required by or under the Act to be determined by a Tribunal. In other words, “no suit shall lie” would mean no fresh suit can be filed before the civil court i.e., it is having only prospective effect. 23. The expression ‘shall lie’ has fallen for consideration before the Apex Court. In MITHILIESH KUMARI v. PREM BIHARI KHARE[8] the facts reveal that a suit was filed by the real owner against the benamidar for declaration of his title in respect of a house. The said suit was decreed and the same was also confirmed in the appeal before the Additional District Judge and the High Court. The defendant carried the matter to the Apex Court by way of special leave. During the pendency of the proceedings before the Apex Court, the Benami Transaction (Prohibition) Act, 1988 came into force. Section 4(1) of the said Act provides that “no suit to enforce any right in respect of any property held benami shall lie by or on