Case: Lal Shah Baba Dargah Trust Vs. Magnum Developers And Others

2. The plaintiff, a trust called Lal Shah Baba Dargah Trust, instituted the suit before the one member Maharashtra Waqf Tribunal, Aurangabad (in short,) claiming the suit property as waqf property held by the trust, for perpetual injunction restraining defendants nos. 1 to 7 from illegally developing portion of the suit plot in City Survey No. 1/50 to 11/50 and part of C.S.No.50 situated at Tawripada, Lalbagh, Mumbai; from raising further construction; creating third party interest; from changing the nature of the suit properties as also from handing over the possession of the flats constructed therein. A separate application for temporary injunction was also filed before the Tribunal, which was partly allowed and an ad-interim injunction in those terms has been granted.3. Aggrieved by the order passed by the Tribunal granting injunction, the defendant-respondents moved the High Court under Section 83(9) of the Waqf Act, 1995 by way of civil revision, which was registered as C.R. No.395 of 2015. The defendant-respondents, besides other defence, challenged the jurisdiction of one man Tribunal on the ground inter alia that the functioning of single member Tribunal constituted under Section 83(4) of the 1995 Act ceased to have jurisdiction after the 1995 Act was amended by Wakf (Amendment) Act of 2013, which came into force with effect from 1.11.2013 i.e. much before the commencement of the suit before one man Tribunal.4. The High Court after hearing the parties allowed the civil revision application and set aside the order of the Tribunal holding that it has no jurisdiction. However, the High Court in the impugned order did not interfere with the interim order.The defendant-respondent Maharashtra State Board of Wakfs, also aggrieved by the impugned order, has filed special leave petition being SLP(C) No. 31610 of 2015. The petitioners in SLP(C) Nos.31605, 31606 and 31595 of 2015 are aggrieved by that part of the impugned order whereby the High Court divested jurisdiction of the Waqf Tribunal in respect of the waqf suit and conferred jurisdiction to the civil court to decide all those suits.6. In SLP(C) No.30725 of 2015, the petitioner-defendants have assailed that part of the impugned order passed by the High Court whereby the High Court refused to interfere with the interim order passed by the Tribunal and directed that the interim order passed by the Tribunal shall continue till the plaint of the suit is presented to the civil court.

Reasoning:
7. Since all these special leave petitions arise out of the impugned judgment passed by the High Court and common questions of law are involved, these applications have been heard together and are disposed of by this common judgment.The statement of objects and reasons for bringing Wakf (Amendment) Act, 2013 is quoted hereinbelowWakf Act, 1995, [which repealed and replaced the Wakf (Amendment) Act, 1984] came into force on the 1st day of January, 1996. The Act provides for the better administration of auqaf and for matters connected therewith or incidental thereto. However, over the years of the working of the Act, there has been a widespread feeling that the Act has not proved effective enough in improving the administration of auqaf.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 83 of the Act (as the Section 83 uses the wordThen the question is should any party suffer due to the inaction of the State. We should keep 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. In the present case also, the one member tribunal will continue to exercise jurisdiction till the time the State constitutes three members tribunal by notification in the Official Gazette. The High Court erred in holding that the civil court will exercise jurisdiction in such situation as it is manifest by the intention of the legislature that they do not want any other authorities to exercise over the Waqf property matter under the Act.Having regard to the law discussed hereinbefore and giving our anxious consideration in the matter, we are of the definite opinion that the High Court has committed serious error of law in holding that after the Amendment Act, 2013 came into force, the one member Tribunal exercising jurisdiction ceased to exist even though a fresh notification constituting three member Tribunal has not been notified. The High Court further erred in law in directing the Civil Court to decide the disputes in respect of waqf property.Before parting with the order we record our serious exception to the conduct of the States who have not till date issued fresh notification constituting three member Tribunal as mandate by Section 83(4) of the Act. We, therefore, direct the States to immediately take steps for constituting a three member Tribunal and notification to that effect must be issued within four months from today. Let copy of this judgment be sent to the Chief Secretaries of all the States for