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Head Note

Civil Law  - Wakf

Waqf Act, 1995 Sections 3(q), 83(1), 83(4), 83(9), 85, 90(1) and 90(3) - Wakf (Amendment) Act of 2013 effective from 01.11.2023 - Waqf property - Constitution of Tribunal - According to amended sub-section (4) of Section 83, Tribunal shall consist of three members and State Government shall by notification constitute such a Tribunal - Till date, State Government of different States did not constitute such a Tribunal - Whether till the time a three member tribunal is constituted, one member tribunal as constituted under 1995 Act shall continue functioning or will it cease to have jurisdiction, as held by High Court - Held it is common practice that old institution/member continues to exercise duty till the time new institution/member takes charge of duty - In this case also, one member tribunal will continue to exercise jurisdiction till the time the State constitutes three member tribunal - It is evident from the statement of objects and reasons, that single member of the Tribunal was working fine under 1995 Act and it was only to improve the working that addition of two more members was made under the Amendment Act. Further, even as per 2013 Amendment in Section 85, jurisdiction of revenue court or civil court was ousted and High Court erred in law in directing Civil Court to decide the dispute ED. - State Governments directed to immediately take steps for constituting a three member Tribunal by issuing notification to that effect within four months - Doctrine of Implied Repeal Waqf Act, 1995 Section 83(4) - Wakf (Amendment) Act of 2013 effective from 01.11.2023 - Doctrine of Implied repeal - As per new Section 83(4), Tribunal shall consist of three members and State Government shall by notification constitute such a Tribunal - Old Section 83(4) provided for one member tribunal - Whether old Section 83(4) and amended Section 83(4) are inconsistent with each other and thus, doctrine of implied repeal applies - Held, implied repeal is not to be readily inferred. Mere provision of an additional remedy by a new Act does not take away an existing remedy - To apply principle of implied repeal, it is to be seen whether apparently inconsistent provisions have been repealed and re-enacted. If by any fair interpretation, both the statutes can stand together, there will be no implied repeal and the court should lean against the implied repeal - The intention of the Parliament while substituting Section 83(4) was not that one member tribunal ceases to exist till a three member tribunal is constituted but was to improve the working of the constitution of Tribunal - Old and new sub-sections were not inconsistent with each other.

Topic(s)-Jurisdiction - Waqf Tribunal - Law clarified