LAL SHAH BABA DARGAH TRUSTversusMAGNUM DEVELOPERS AND OTHERS

                        (2015] 10 S.C.R 966


A               LAL SHAH BABA DARGAH TRUST
                                  v.
             MAGNUM DEVELOPERS AND OTHERS
                  (CivilAppeal No. 14565 of2015)
B
                       DECEMBER 15, 2015
              [M.Y. EQBALAND C. NAGAPPAN, JJ.]
         Wakf Act, 1995 - s. 83(as amended by 2013 Act) -
c  Constitution of tribunal -Amendment of s. 83(4) whereby
   three members tribunal to be constituted by the State
   Government by notification in the Official Gazette - Whether
   till a three member tribunal is constituted by the State
   Government by issuing notification one member tribunal as
D constituted under 1995 Act would continue functioning or it
   ceases to have jurisdiction - Held: State has not done its
   mandatory duty of issuing fresh notification constituting three
  members tribunal as provided uls. 83 - It is common practice
   that the old institution/member continues to exercise duty till
E the time any new institution/member takes charge of that duty
  - One member tribunal would continue to exercise
  jurisdiction till the time the State constitutes three members
   tribunal by notification in the Official Gazette - High Court
   erred in holding that after the Amendment Act, 2013 came
F into force, the one member tribunal exercising jurisdiction
  ceased to exist even though a fresh notification constituting
   three member tribunal has not been notified and that the civil
  court would exercise jurisdiction in such situation - States to
  take steps for constituting a three member tribunal as
G mandated bys. 83(4) and issue notification to that effect-
   Wakf (Amendment) Act, 2013.

        Doctrine/Principle - Doctrine of implied repeal -
    Application of - Explained
H
                                966
      LAL SHAH BABA DARGAH TRUST v. MAGNUM                   967
              DEVELOPERS AND ORS.

     Partly allowing the appeals, the Court                   A

       HELD: 1.1 From perusal of the statement of objects
  and reasons of the Wakf (Amendment) Act, 2013, it reveals
· that the single member of the tribunal was working fine
  under the Waqf Act, 1995 (before 2013 amendment). The B
  idea of expanding the composition by the 2013
  Amendment seems to make improvement in the
  functioning of the tribunal with the help of two more
  members in the tribunal. Even by the 2013 amendment
  in Section 85 of the Act, they have also ousted the C
  jurisdiction of the reve~ue court or any other authorities
  along with the civil court. Meaning thereby the
  legislatures wanted to make sure that no authorities
  apart from the tribunal constituted under Section 83 of
  the Act shall determine any dispute, question or other D
  matter relating to a waqf property, eviction of a tenant or
  determination of rights and obligations of the lessor and
  the lessee of such property under this Act. [Paras 25 and
  26) [985-F-H; 986-A]
                                                               E
       1.2 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 word "shall"). It F
  should be kept 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. The one member tribunal will continue to exercise·
  jurisdiction till the time the State constitutes three G
  members tribunal by notification in the Official Gazette.
  The High Court erred in holding that the civil court would
  exercise jurisdiction in such situation as it is manifest
  by the intention of the legislature that they do not want H
968         SUPREME COURT REPORTS                [2015] 10 S.C.R.


A any other authorities to exercise over the Waqf property
  matter under the Act. [Para 27] [986-8-D]

       1.3 It was submitted that by 2013 Amendment Act,
  sub-section 83(4) has been substituted replacing the
B earlier sub-section 83(4) as the intention of the
  Legislature is that One Member Tribunal is not enough
  and in its place a Three Member Tribunal should function;
  that the old Section 83(4) and the amended Section 83(4)
  is inconsistent with each other and, therefore, doctrine
C of implied repeal would apply. The submission that
  section 83 (4) of 1995 has been implied repeal cannot be
  accepted. [Para 28] [986-E-G]

           1.4 In case where there is a repealing clause to a
o     particular Act, it is a case of express repeal, but in a case
      where doctrine of implied repeal is to be applied, the
      matter will have to be determined by taking into account
      the exact meaning and scope of the words used in the
      repealing clause. The implied repeal is not readily
E     inferred and the mere provision of an additional remedy
      by a new Act does not take away an existing remedy.
      While applying the principle of implied repeal, one has
      to see whether apparently inconsistent provisions have
      been repealed and re-enacted. The implied repeal of an
F     earlier law can be inferred only where there is enactment
      of a later law which had the power to override the earlier
      law and is totally inconsistent with the earlier law and
      the two laws cannot stand together. If the later law is not
      c·apable of taking the place of the earlier law, and for
G     some reason cannot be implemented, the earlier law
      would continue to operate. To such a case, the rule of
      implied repeal may result in a vacuum which the law
      making authority may not have intended. [Para 30-31]
H     [987-8-F]
     LAL SHAH BABA DARGAH TRUST v. MAGNUM                 969
             DEVELOPERS AND ORS.

     1.5 There is a presumption against repeal by A
implication. The reason for the presumption is that the.
legislature while enacting a law has complete knowledge
of the existing laws on the subject matter and, therefore,
when it is not providing a repealing provision, it gives
out an intention not to repeal the existing legislation. If B
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. Hence, if the two
statutes by any fair course of reason are capable of being
reconciled, that may not be done and both the statutes C
be allowed to stand. [Para 33] [988-G-GH; 989-A]

   · 1.6 The intention of the Parliament while substituting
Section 83(4) is not that one member tribunal vanishes
or ceases to exist till a three member tribunal is D
constituted. Intention to bring new sub-section (4) in
Section 83 is nothing but improvement in the
constitution of th·e tribunal and both the earlier and the
substituted sub-sections are not inconsistent with each
other. [Para 39] 992-C-D]                                   E

     1.8 The High Court erred 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 F
tribunal has not been notified. The States have not till
date issued fresh notification constituting three
members tribunal as mandated by Section 83(4) of the
Act. The States are directed to immediately take steps
for constituting a three member tribunal and notification G
to that effect must be issued. [Paras 40, 42] [992-E, F, H;
993-A]
     Rajasthan State Road Transport Corporation and
     Another vs. Bal Mukund Bairwa (2) (2009) 4 SCC        H
970   SUPREME COURT REPORTS              [2015) 10 S.C.R.

A     299: 2009 (2) SCR 161; Afcons Infrastructure
      Limited and Another vs. Cherian Varkey
      Construction Company Private Limited and Ors.
      (2010) 8 sec 24: 2010 (8) SCR 1053; M.P. Wakf
      Board vs. Subhan Shah (2006) 10 SCC 696: 2006
B     (8) Suppl. SCR 85; Municipal Council, Palai vs.
      T.J. Joseph AIR 1963 SC 1561:1964 SCR 87;
      Bhagat Ram Sharma vs. Union of India AIR
      (1988) SC 740: 1988 SCR 1034; Om Prakash
      Shukla v. Akhi/esh Kumar Shukla AIR 1986 SC
c     1043: 1986 SCR 855; Municipal Council, Palai
      vs. T.J. Joseph AIR 1963 SC 1561: 1964 SCR
      87; Harshad S. Mehta vs. State of Maharashtra
      (2001) 8 sec 257: 2001 (2) Suppl. SCR 577 -
      referred to.
D
      Mangin vs. /RC (1971) 1 All ER 179 (PC) -
      Referred to.

                CASE LAW REFERENCE
E
      2009 (2) SCR 161          Referred to.   Para 13

      2010 (8) SCR 105          Referred to.   Para 13

      2006 (8 ) Suppl. SCR 85 Referred to.     Para 14
F
      AIR 1963 SC 1561          Referred to.   Para 28

      1988 SCR 1034            Referred to.    Para 28

      1986 SCR 855             Referred to.    Para 32
G
      1964 SCR 87              Referred to.    Para 34

      2001 (2) Suppl. SCR 577 Referred to.     Para 36

H
       LAL SHAH BABA DARGAH TRUST v. MAGNUM                          971
               DEVELOPERS AND ORS.

    CIVIL APPELLATE JURISDICTION:Civil Appeal No.                    A
 14565 of2015

     From the Judgment and Orde'r dated 11.09.2015 of the
 High Court of Judicature at Bombay rendered in Civil Revision
 Application No. 395 of 2015                                         B

                               WITH
    C. A. NOS. 14566, 14567, 14569, 14570 & 14571 OF
 2015
                                                                     c
      P. B. Gaikwad, Y. H. Muchhala, Saghar A. Khan, Ejaz
  Maqbool, C. George Thomas, Akriti Chaubey, G. D. Shaikh,
  Faraz Maqbool, Sudhanshu S. Choudhari, Samir Patel, Vatslya
  Vigya, Rajat Kapoor, Shakil Ahmed Syed, Mohd. Parvez
. Dabas, Uznii Jameel Husani, Shirish K. Deshpande; Ajay K. D
  J. Panicker, Shyam Moorjani, Sureshan P., Vaibhav S.
  Nagvekar, Ravindra KeshavraoAdsure, Nishant Ramakantrao
  Katneshwarkar for the appearing parties.

     The Judgment of the Court was delivered by                      E
      M.Y. EQBAL, J.:ln the special leave petition being
 SLP(C)No.29234 of 2015, the petitioner (plaintiff) seeks to
 challenge the impugned judgment and order dated 11.9.2015
 passed by Single Judge of the Bombay High Court in Civil            F
 Revision No.395 of 2015, whereby waqf suit instituted by the
 petitioner before one memberWaqfTribunal has been held to
 be not maintainable and necessary directions have been
 issued by the said order for return of the plaint and for
 presentation before the appropriate civil court for adjudication    G
 of disputes.

      2. The plaintiff, a trust called Lal Shah Baba Dargah Trust,
 instituted the suit before the one member Maharashtra Waqf
 Tribunal, Aurangabad (in short, "the Tribunal") claiming the suit   H
972         SUPREME COURT REPORTS                    [2015] 1OS.C.R.


A     property as waqf property held by the trust, for perpetual
      injunction restraining defendants nos. 1 to 7 from illegally
      developing portion of the s.uit 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
B     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.
c
       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 of2015. The
D 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 1995Act ceased to have jurisdiction after .
  the 1995 Act was amended by Wakf (Amendment) Act of 2013,
E 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
F     holding that it has no jurisdiction. However, the High Court in
      the impugned order did not interfere with the interim order.
      The High Court finally held:-

           "74. Now it is also necessary to consider the fate of suits
G          or other proceedings which are instituted prior to coming
           into force of the Amendment Act with effect from
           1.11.2013. The legislature has not made any transitory
           provision. The legislature has also not provided for
           transfer of suits/proceedings which are institut~d prior
H          to 1.11.2013. In view of Section 6(e) of the General
 LAL SHAH BABADARGAH TRUSTv. MAGNUM                             973
   DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

  Clauses Act, 1897, suits/proceedings instituted before A
  a single member Tribunal prior to 1.11.2013 shall be
  continued as if Section 83(4) is not amended. In view
  thereof, it has to be held that the waqf suit instituted by
  the plaintiff after 1.11.2013 before a single member
  Tribunal is not maintainable and consequently Plaint is B
  liable to be returned along with Applications Exhibit 19
  and 30. Parties shall appear before the Tribunal when
  the Tribunal will pass further orders for return of Plaint
  along with Applications-Exhibit 19 and 30 for presentation
  before appropriate Civil Court in the light of observations C
  made herein. The impugned order will have to be
  quashed and set aside on the ground that it is without
  jurisdiction and Applications-Exhibit-19 and Exhibit-30
· filed by the plaintiff are liable to be restored to the file.
                                                                0
  The said Applications will have to be decided by the Civil
  Court after return of Plaint along with Applications Exhibit
  19 and 30, on their own merits and in accordance with
  law uninfluenced by the observations made herein.

 75. In the light of the aforesaid discussion, Civil Revision   E
 Application is allowed as under:-

    1. The waqf suit instituted by the plaintiff before a single
    member Tribunal is not maintainable and consequently
    Plaint along with Applications-Exhibit 19 and 30 are F
    liable to be returned for presentation before
    appropriate Civil Court. Parties shall appear before
    the Tribunal on 15.9.15 arid the Tribunal will pass
    necessary orders within two weeks from the date of
    appearance of the parties.                                   G
    2. Impugned order passed by the Tribunal is quashed
    and set aside on the ground that the said order is
    without jurisdiction and Applications-Exhibit-19 and 30
    filed by the plaintiff are restored to the file. The said   H
974   SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A      Applications shall be decided by the Civil Court after
       return of Plaint on their own merits on the basis of
       material on record and in accordance with law
       uninfluenced by the observations made herein.
       3. Suits or any other proceedings instituted prior to
B
       1.11.2013 before a single member Tribunal will
       continue to be tried by the said Tribunal in view of
       Section 6(e) of the General Clauses Act, 1897.
       4. On and after 1.11.2013, being the date when
c      Amendment Act came into force, a single member
       Tribunal has no jurisdiction to entertain and try disputes
       referred in Section 83(1) of the Act. Suits or any
       proceedings instituted on and after 1.11.2013 cannot
       be tried by a single member Tribunal.
D
       5. Civil Courts will have jurisdiction to entertain and try
       suits or any other proceedings instituted on and after
       1.11.2013 despite bar of Section 85 till such time the
       State Government issues notification appointing a
E      three member Tribunal as per the amended Section
       83(4).
       6. As there is no provision for transfer of pending suits
       in the Amendment Act, suits or any other proceedings,
       so instituted on or after 1.11.2013, shall continue to
F      be tried by Civil Courts even after the State
       Government issues notification constituting a three
       member Tribunal as per the Amended Section 83(4)
       unless the Central Government intervenes as per
       Section 113 or the Act is suitably amended .
.G
       7. Notwithstanding setting aside the impugned order,
       Clauses (2) and (3) of operative part of the impugned
       order shall remain in force for a period of six weeks
       from today so as to enable the plaintiff to obtain
H      appropriate adinterim, interim order from Civil Court.
      LAL SHAH BABADARGAHTRUSTv. MAGNUM                               975
        DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

         Continuation of the ad-interim order shall not be            A
         treated as expression of merits of the case either way.
         All the contentions in that regard are expressly kept
         open.
         8. Rule is made absolute in the aforesaid terms with
                                                                      8
         no orders as to costs."

     5. The defendant-respondent Maharashtra State Board
of Wakfs, also aggrieved by the impugned order, has filed
special leave petition being SLP(C) No. 31610 of2015. The
petitioners in SLP(C) Nos.31605, 31606 and 31595 of2015               C
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.
                                                                      D
     6. In SLP(C) No.30725 of2015, 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   E
of the suit is presented to the civil court.

    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           F
heard together and are disposed of by this common judgment.

    8. Leave granted. ·

     9. Mr. Saghar A. Khan, learned counsel appearing for the         G
appellant, assailed the impugned judgment and order passed
by the High Court as being illegal and wholly without jurisdiction
inasmuch as in exercise of revisional power under Section
83(9) of the Waqf Act, 1995. The High Court ought notto have
entered into the merits of the case and decide the jurisdiction       H
976          SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A  of Single Member Tribunal before which the suit was pending
   for adjudication. According to the learned counsel, when the
   petition was filed by the respondent under Section 9(A) CPC
 · of the Maharasthra Amendment Act was pending before the
   Tribunal, the High Court ought not to have decided the
B jurisdiction of the Tribunal in the revision petition which was
   filed by the defendant-respondent assailing the order of interim
   injunction.

             10. Learned counsel then submitted that in any case so
C      long as the State Government by notification in the official
      Gazette does not constitute a Tribunal as per amended Section
      83(4) of the Act, the Single Member Tribunal shall continue to
      determine and decide the matters referred to it under Section
      83( 1) of the Act. It was submitted that the Waqf Act, 1995 was
D     amended and the notification to that effect was issued on
      20.09.2013 amending certain provisions of the Waqf Act, 1995
      including Section 83(4) of the Act. By the said amendment
      the Tribunal which was already functioning under the principal
      Act was continued since no fresh notification constituting Three
E     Member Tribunal was issued. Learned counsel submits that
      in terms of amended Section 83(4) of the Act, the State
      Government shall have to issue a fresh notification in the official
      gazette constituting Three Members Tribunal. Till a fresh
      notification is issued, the One Member Tribunal shall continue
F
      to function. In t~is respect learned counsel submitted that the
      Andhra Pradesh High Court, Gujarat High Court and Kerala
      High Court have uniformly taken a view that so long as the
      State Government has not constituted a Three Member Tribunal
G     in terms of the amendment in Section 83(4) of the Act, a Single
      Member Tribunal is competent to decide the questions referred
      to it.

      11. Lastly, Mr. Khan, brought to our notice a notification
H issued by the Central Government dated 14.05.2015 by which
     LAL SHAH BABADARGAHTRUSTv. MAGNUM                         977
       DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

several amended acts sought to repeal including the Wakf A
AmendmentAct, 2013 which came into force on 01.11.2013.
According to the learned counsel, the said notification of the
Central Government of 2015 repealing various amendment
acts was not brought to the notice of the High Court. In the
alternative, learned counsel submits that after the Amended B
Act, 2015, repealing 2013 amendment, the One Member
Tribunal is fully competent to entertain and decide the suit that
has been filed by the appellant.

     12. Learned counsel further contended thatthe High Court C
has totally ignored the mandate of Section 90( 1) and (3) of the
Act allowing the prayer of the defendants to delete the name
of Respondent No.2 - Waqf Board from the said Revision
Application. The impugned order was passed without issuing
notice to the Waqf Board and on this ground alone the impugned o·
order is li<lble to be set aside. The High Court further failed to
consider the provisions of Section 6, Section 7 and Section
85 of the Waqf Act, 1995 which completely oust the jurisdiction
of Civil Court to decide the nature of Auqaf and Waqf properties
as the same requires adjudication by the WaqfTribunal alone. E

     13. Per contra, Mr. Y.H. Muchhala, learned senior counsel
appearing for the defendant-respondents firstly contended that
the plaintiff instituted the waqf suit after amendment to Section
83(4) came into force in 2013. On and from 01.01.2013, the F
Single Member Tribunal cannot decide and determine the
dispute referred to instituted before the Tribunal. According to
the learned counsel while amending the Act of 1995 the
Legislature has not made any transitory provision, hence bar
under Section 85 cannot be invoked in the facts and G
circumstances of the present case and particularly when the
State Government has not issued a fresh notification appointing
a Three Member Tribunal in terms of amended Section 83(4).
So long as a Three Member Tribunal is not constituted by the H
978          SUPREME COURT REPORTS                     [2015] 10 S.C.R.


A State Government, the jurisdiction of Civil Court is not ousted.
  The High Court, therefore, rightly held that the plaintiff can
  approach the Civil Court and obtain appropriate relief so long
  as the Three Member Tribunal is not constituted in terms of
  Section 83(1)(4) of the Act. In support of the submission,
B learned counsel relied upon the decision of this Court in the
  case of Rajasthan State Road Transport Corporation and
  Another vs. Bal Mukund Bairwa (2), (2009)4 SCC 299; and .
  Afcons Infrastructure Limited and Another vs. Cherian
  Varkey Construction Company Private Limited an_q
C Others, (2010) 8 SCC 24.

            14. It has further been submitted on behalf of the defendants
      that the plaintiff has not prima facie established that the suit
      properties are the waqf properties belonging to the plaintiff,
D     and therefore, the Tribunal was r:iot justified in granting ad-
      interim order. Whereas it has been pleaded on behalf of the
      plaintiff that coming into force of the Act is one thing and
      enforcement of the Act is another thing. Though the Principal
      Act came into force with effect from 1.1.1996 and the
E     Amendment Act came into force with effect from 1.11.2013,
      the scheme of the Act itself contemplates that in stage-wise
      the Act will be enforced. Till such time, the Tribunal is constituted
      in terms of the amended Section 83(4), single member Tribunal
F     can proceed to decide the disputes as contemplated under
      the amended Section 83(1). Learned counsel submitted that
      the Principal Act as alsoAmendmentAct contemplate different
      statutory authorities. Each of such authorities must exercise
      the functions within the four corners of the Statute. In support of
G     this proposition, plaintiff relied upon the decision of the Apex
      Court in the case of M.P. Wakf Board vs. Subhan Shah,
      (2006) 1o sec 696.

      15. As noticed above, the High Court in the concluding
H para 74 of the impugned order, quoted hereinabove, held that
     LAL SHAH BABA DARGAH TRUST v. MAGNUM                          979
       DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

the suit before the One Member Tribunal is not maintainable A
and till a fresh notification is issued by the State Government
constituting a Three Member Tribunal, the Civil Court has
jurisdiction to entertain such suits and decide the dispute with
regard to waqf properties. However, learned Single Judge
refused to interfere with the interim order of injunction passed B
by One Member Tribunal. The Court in paragraph 73 of the
impugned order held:-

      "73. The question whether the suit properties are wakf
     properties or not, is not a pure question of law. It is a C
     mixed question of law and fact. Parties will have to lead
     evidence in order to substantiate the respective case.
     For the reasons recorded in paragraphs 32 and 34 in
     the impugned order, the Tribunal has granted ad-interim
     order. I do not find that the Tribunal committed any error D
     in passing the ad-interim order. I, therefore, do not find
     that defendants no. 1 to 7 have made out any case for
     interfering with the impugned order in the exercise c,>f
     revisional jurisdiction."
                                                                   E
     16. We have heard learned counsel for the parties and
examined the relevant provisions of both the principal Act and
the amendmentAct brought in 2013.

     17. A cursory glance of the Waqf Act, 1995 would show F
that the Waqf Act, (for short '1995 Act') came into force with
effect from 1.1.1996. By Section 3(q), the Tribunal is defined
as the Tribunal constituted under sub-section 1 of the Section
83 of the Act having jurisdiction in relation to that area. Section
84 confers power to the Tribunat to decide and determine G
dispute, questions or other matters relating to a waqf property
and decide the proceeding as expeditiously as possible.

     18. The relevant provision i.e. Section 83 confers power
to the State Government to constitute Tribunals. In the original   H
980         SUPREME COURT REPORTS                     [2015] 10 S.C.R.


A     Act, Section 83 provides for constitution of Tribunal consisting
      of only one person. Sub-section 4 of Section 83 as it stood
      under the original Act is quoted hereinbelow:-

           "(4) Every Tribunal shall consist of one person, who shall
B          be a member of the State Judicial Service holding a rank,
           not below that of a District, Sessions or Civil Judge, Class
           I, and the appointment of every such person may be
           made either by name or by designation".

C          19. Certain amendments have been brought in the Act of
      1995 in 2013 called the Wakf (Amendment) Act, 2013. By
      thisAmendmentAct, 2013, many sections have been amended
      including Section 83. After amendment, Section 83 reads as
      under:-
D
            "83. Constitution of Tribunals, etc.-
            (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
E          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;                                             ·
 F
           (2) Any mutawalli person interested in a Waqf 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 this Act or where no such time has
G          been specified, within such time as may be presc~ibed,
           to the Tribunal for the determination of any dispute,
           question or other matter relating to the Waqf.
           (3) Where any application made under sub-section (1)
           relates to any Waqf property which falls within the
H        • territorial limits of the jurisdiction of two or more Tribunals,
LAL SHAH BAiJADARGAHTRUSTv. MAGNUM                              981
  DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

such application may be made to the Tribunal within the         A
iocal limits of whose jurisdiction the mutawalli or any one
of the mutawallis 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
aforesaid, the other Tribunal or Tribunals having               B
jurisdiction shall not entertain any application for the
determination of such dispute, question or other matter:
Provided that the State Government may, if iI is of opinion
that it is expedient in the interest of the Waqf or any other
person interested in the Waqf or the Waqf property to           C
transfer such application to any other Tribunal having
jurisdiction for the determination of the dispute, question
or other matter relating to such Waqf or Waqfproperty,
transfer such application to any other Tribunal having          D
jurisdiction , and, on such transfer, the Tribunal to which
the application is so transferred shall deal with the
application from the stage which was reached before
the Tribunal from which the application has been so
transferred, except where the tribunal is of opinion that it    E
is necessary in the interests of justice to deal with the
application afresh.
(4) Every Tribunal shall consist of-
(a) one person, who shall be a member of the State              F
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
Civil Services equivalent in rank to that of the Additional G
District Magistrate, Member;
(c) one person having knowledge of Musli.m law and
jurisprud~nce, Member; and the appointment of every
such person shall be made either by name or by · H
designation.
982       SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A        (4A) The terms and conditions of appointment including
         the salaries and allowances payable to the Chairman
         and other members other than persons appointed as ex
         officio members shall be such as may be prescribed.
         (5) The Tribunal shall be deemed to be a civil court and
 B
         shall have the same powers as may be exercised by a
         civil court under the Code of Civil Procedure, 1908(5 of
         1908), while trying a suit, or executing a decree or order.
         (6) Notwithstanding anything contained in the code of Civil
c        Procedure, 1908(5of1908), the Tribunal shall follow such
         procedure as may be prescribed.
         (7) 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.
D
         (8) The execution of any decision of the Tribunal shall be
         made by the civil court to which such decision is sent for
         execution in accordance with the provisions of the Code
         of Civil Procedure, 1908 (5of1908).
E        (9) No appeal shall lie against any decision or order
         whether interim or otherwise, given or made by the
         Tribunal: Provided that a High court may, on its own motion
         or on the application of the Board or any person
         aggrieved, call for and examine the records relating to
 F
         any dispute, question or other matter which has been
         determined by the Tribunal for the purpose of satisfying
         itself as to the correctness, legality or propriety of such
         determination and may confirm, reverse or modify such
G        determination or pass such order as it may think fit."

      20. Perusal of the amended sub-·section (4) of Section 83
  would show·that now the Tribunal shall consist of three members
  and the State Government shall by notification constitute a
H Tribunal consisting of three members. Indisputably, till date,
     LAL SHAH BABA DARGAH TRUST v. MAGNUM                       983
       DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

as per amended sub-section (4) of Section 83, the State A
Governments of different States have not constituted Tribunal
consisting of three persons by issuing notification.

     21. The only question, therefore, that arises for
consideration is as to whether till a three member tribunal is B
constituted by the State Government by issuing notification one
member tribunal as constituted under 1995 Act shall continue
functioning or it ceases to have any jurisdiction to entertain
disputes and decide it in accordance with the provisions of
Act.                                                            C

   22. The statement of objects and reasons for bringing Wakf
(Amendment) Act, 2013 is quoted hereinbelow :-

       'The Wakf Act, 1995, [which repealed and replaced the
                                                              0
     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 E
     feeling that the Act has not proved effective enough in
     improving the administration of auqaf.

       2.The Prime Minister's High Level Committee for
     Preparation of Report on Social, Economic and F
     Educational Status of the Muslim Community of India
     (also known as Sachar Committee) in its Report
     submitted to the Prime Minister on the 1?th November,
     2006 considered the aforementioned issue and
     suggested certain amendments to the Act relating to G
     women's representation, review of the composition of
     the Central Wakf Council and the State Wakf Boards, a
     stringent and more effective approach to countering
     encroachments of Waqf properties and other matters.
     The Committee stressed the need for setting up of a H
984          SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A           National Waqf Development Corporation and State Waqf
            Development Corporations so as to facilitate proper
            utilization of valuable waqf properties for the objectives
            intended. The Committee recommended that the Act
            should be amended so that the State Waqf Boards
B           become effective and are empowered to properly deal
            with the removal of encroachments of waqf properties. It
            also recommended to amend the Act so that the Waqf
            Tribunal will be manned by a full time Presiding Officer
            appointed exclusively for waqf properties. The Joint
c           Parliamentary Committee on Waqf in. its Third Report
            presented to the Rajya Sabha on the 4th March, 2008
            made re commendations for a wide range of
            amendments relating to time bound survey of waqf
            properties, prevention and removal of encroachments,
D
            making the Central Waqf Council a more effective and
            meaningful body, provisions for development of waqf
            properties, etc. In its Ninth Report presented to the Rajya
            Sabha on the 23'd October, 2008, the Joint Parliamentary
E           Committee reconsidered certain issues. The
            recommendations of the Joint Parliamentary Committee
            on Waqf were considered by the Central Waqf Council.
            The various issues and the need for amendments to the
            Act have also been considered in consultation with other
F           stakeholders such as theAll India Muslim Personal Law
            Board, representatives of the State Governments and
            the Chairmen and the Chief Executive Officers of State
            Waqf Boards."

G         23. With the aforesaid object, necessary provisions have
      been substituted in the original Act. Clause 40 of the Bill sought
      to amend Section 83 c,f the Act relating to constitution of the
      Tribunal with a view to expand the composition of a tribunal.
      Clause 41 of the Bill sought to amend Section 85 of the Act
H     dealing with bar of jurisdiction of civil courts so as to bar the
      LAL SHAH BABA DARGAH TRUST v. MAGNUM                          985
        DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

jurisdiction of the revenue courts and any other authorities A
besides civil courts in resp,ect of disputes, question or other
matters relating to Waqf. Waqf properties or other matters
required to be determined by the Tribunal.

      24. The aforementioned objectives nowhere stated that         B
there was any issue with regard to the functioning of the single
member tribunal in the Waqf Act, 1995, which was functioning
before the Wakf (Amendment) Act, 2013 (27 of 2013) came
into force. They have come up with the idea of three members
Tribunal only to expand the composition of the Tribunal as          C
mentioned in the Clause 40 of the Wakf (Amendment) Bill, 2010
(Bill No.53 of 2010), which provides that it seeks to amend
Section 83 of the Act relating to constitution of Tribunals, etc.
Every Tribunal constituted by the State Government will have a
Chairman who shall be a member of the State Judicial Service        D
holding a rank not below that of a District, Sessions or Civil
Judge Class- I. There will be two other members, one of whom
shall be an officer from the State Civil Services equivalent in
rank to that of Additional District Magistrate and the other a
person having knowledge of Muslim law and jurisprudence.            E

      25. From perusal of the statement of objects and reasons,
it reveals that the single member of the Tribunal wasiworking
fine under the Waqf Act, 1995 (before 2013 amendment). The
idea of expanding the composition by the 2013 Amendment             F
seems to make improvement in the functioning of the Tribunal
with the help of two more members in the Tribunal.

     26. Even by the 2013 amendment in Section 85 of the
Act, they have also ousted the jurisdiction of the revenue court G
or any other authorities along with the civil court. Meaning
thereby the legislatures wanted to make sure that no authorities
apart from the Tribunal constituted under Section 83 of the Act
shall determine any dispute, question or other matter relating
to a waqf property, eviction of a tenant or determination of rights H
986        SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A and obligations of the lessor and the lessee of such property
  under this Act.

        27.As per the amendment, the three members Tribunal is
  to be constituted by the State Government by notification in
B 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 word "shall"). Then 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
C 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
D 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.

E       28. Mr. Muchhala, learned senior counsel appearing for
  the defendant/respondent, submitted that by 2013Amendment
  Act, sub-section 83(4) has been substituted replacing the
  earlier sub-section 83(4) of the Act as the intention of the
  Legislature is that One Member Tribunal is not enough and in
F its place a Three Member Tribunal should function. According
  to the learned counsel the old Section 83(4) and the amended
  Section 83(4) is inconsistent with each other and, therefore,
  doctrine of i.mplied repeal will apply. In other words, the word
  substitution used in the Amended Act must be interpreted as
G implied repeal. In this connection, learned counsel relied upon
  Afcons Infrastructure (supra), Municipal Council, Palai vs.
  T.J. Joseph, AIR 1963SC1561, and Bhagat Ram Sharma
  vs. Union of/ndia, AIR (1988) SC 740.
H
      LAL SHAH BABA DARGAH TRUST v. MAGNUM                           987
        DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

    29. We are unable to accept the submission made by the           A
learned counsel that Section 83(4) of 1995 Act has been
impliedly repealed.

    30. It is well settled that in case where there is a repealing
clause to a particular Act, it is a case of express repeal, but in B
a case where doctrine of implied repeal is to be appli,ed, the
matter will have to be determined by taking into account the
exact meaning and scope of the words used in the repealing
clause. It is equally well settled that the implied repeal is not
readily inferred and the mere provision of an additional remedy C
by a new Act does not take away an existing remedy. While
applying the principle of implied repeal, one has to see whether
apparently inconsistent provisions have been repealed and
reenacted.
                                                                     D
     31.The implied repeal of an earlier law can be inferred
only where there is enactment of a later law which had the power
to override the earlier law and is totally inconsistent with the
earlier law and the two laws cannot stand together. If the later
law is not capable of taking the place of the earlier law, and for   E
some reason cannot be implemented, the earlier law would
continue to operate. To such a case, the rule of implied repeal
may result in a vacuum which the law making authority may not
have intended.
                                                                     F
    32. The principle of implied repeal was considered by
three Judges Bench of this Court in the case of Om Prakash
Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, this
Court held thus:-

     " ...... An implied repeal of an earlier law can be inferred    G
     only where there is the enactment of a later law which
     had the power to override the earlier law and is totally
     inconsistent with the earlier law, that is, where the two
     laws -the earlier law and the later law- cannot stand           H
988        SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A         together. This is a logical necessity _because the two
          inconsistent laws cannot both be valid without
          contravening the principle of contradiction. The later laws
          abrogate earlier contrary laws. This principle is, however,
          subject to the condition that the later law must be effective.
B         If the later law is not capable of taking the place of the
          earlier law and for some reason cannot be implemented, .
          the earlier law would continue to operate. To such a case
          the Rule of implied repeal is not attracted because the
          application of the Rule of impliep repeal may result in a
c         vacuum which the law-making authority may not have
          intended. Now, what does Appendix II contain? It contains
          a list of subjects and marks assigned to each of them.
          But who tells us what that list of subject~ means? It is
          only in the presence of Rule 11 one can understand the
D
          meaning and purpo~e.of Appendix II. In the absence of
          an amendment reenacting Rule 11 in the 1947oRules, it
          is difficult to hold by the application of the doctrine of
          implied repeal that the 1950 Rules have ceased to be
E         applicable to the ministerial establishments of the
          subordinate civil courts. The High Court overlooked this
          aspect of the case and proceeded to hold that on the
          mere rei_ntroduction of the new Appendix II into the 1947
          Rules, the examinations could be held in accordance with
F         the said Appendix. We do not agree with this view of the
          High Court."

       33. There is a presumption against repeal by implication.
  The reason for the presumption is that the legislature while
G enacting a law has complete knowledge of the existing laws
  on the subject matter and, therefore, when it is not providing a
  repealing provision, it gives out an intention not to repeal the
  existing legislation. If by any fair interpretation, both the statutes
  can stand together, there will be no implied repeal and the
H court should_ lean against the implied repeal. Hence, if the two
                   ~
     LAL SHAH BABADARGAH TRUSTv. MAGNUM                               989
       DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

statutes by any fair course of reason are capable of being            A
reconciled, that may not be done and both the statutes be
allowed to stand.

    34. The principle of implied repeal has been elaborately
discussed in the case of Municipal Council, Palai vs. T.J.            B
.Joseph, AIR 1963 SC 1561, this Court held:-

     "9. It is undoubtedly true that the legislature can exercise
     the power of repeal by implication. But it is an equally
     well-settled principle of law t.hat there is a presumption c
     against an implied repeal. Upon the assumption that the
     legislature enacts laws with a complete knowledge of all
     existing laws pertaining to the same subject the failure
     to add a repealing clause indicates that the intent was
     not to repeal existing legislation. Of course, this D
     presumption will be rebutted if the provisions of the new
     act are so inconsistent with the otd ones that the two
     cannot stand together. As has been- observed by
     Crawford on Statutory Construction, p. 631, para 311:
                                                                      E
     "There must be what is often called 'such a positive
     repugnancy between the two provisions of the old and
     the new statutes that they cannot be reconciled and made
     to stand together'. In other words they must be absolutely
     repugnant or irreconcilable. Otherwise, there can be no          F
     implied repeal ... for the intent of the legislature to repeal
     the old enactment is utterly lacking."
    35. Their Lordships further observed as under:-
     "The reason for the rule that an implied repeal will take        G
     place in the event of clear inconsistency or repugnancy,
     is pointed out in Crosbyv. Patch and is as follows:

     "As laws are presumed to be passed with deliberation,
     and with full knowledge of all existing ones on the same
     subject, it is but reasonable to conclude that the               H
990         SUPREME COURT REPORTS                   [2015] 1OS.C.R.


A          Legislature, in passing a statute, did not intend to
           interfere with or abrogate any former law relating to the
           same matter, unless the repugnancy between the two is
           irreconcilable. Bowen v. Lease (5 Hill 226). It is a rule,
           says Sedgwick, that a general statute without negative
.B         words will not repeal the particular provisions of a former
           one, unless the two acts are irreconcilably inconsistent.
           'The reason and philosophy of the rule,' says the author,
           'is, that when the mind of the legislator has been turned
           to the details of a subject, and he has acted upon it, a
c          subsequent statute in general terms, or treating the
           subject in a general manner, and not expressly
           contradicting the original act, shall not be considered as
           intended to effect the more particular or positive previous
           provisions, unless it is absolutely necessary to give the
D
           latter act such a construction, in order that its words shall
           have any meaning at all."

           36. In the case of Harshad S. Mehta vs. State of
      Maharashtra, (2001) 8 SCC 257, a three Judges Bench of
E     this Court considered the principle of implied repeal and held:-

           "31. One of the. important tests to determine the issue of
           implied repeal would be whether the provisions of the
           Act are irreconcilably inconsistent with those of the Code
F          that the two cannot stand together or the intention of the
           legislature was only to supplement the provisions of the
                                         I

           Code. This intention is to' be ascertained from the
           provisions of the Act. Courts lean against implied repeal.
           If by any fair interpretation both the statutes can stand
G          together, there will be no implied repeal. If possible,
           implied repeal shall be avoided. It is, however, correct
           that the presumption against the intent to repeal by
           implication is overthrown if the new law is inconsistent
           with or repugnant to the old law, for the inconsistency or
H
     LAL SHAH BABA DARGAH TRUST v. MAGNUM                         991
       DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

     repugnancy reveals an intent to repeal the existing laws. A
     Repugnancy must be such that the two statutes cannot
     be reconciled on reasonable construction or hypothesis.
     They ought to be clearly and manifestly irreconcilable. It
     is possible, as contended by Mr Jethmalani, that the
     inconsistency may operate on a part of a statute. Learned B
     counsel submits that in the present case the presumption
     against implied repeal stands rebutted as the provisions
     of the Act are so inconsistent with or repugnant to the
     provisions of the earlier Acts that the two cannot stand
     together. The contention is that the provisions of Sections C
     306 and 307 cannot be complied with by the Special
     Court and thus the legislature while enacting the Act
     clearly intended that the said existing provisions of the
     Code would not apply to the proceedings under the Act.
                                                                  0
     Learned counsel contends that this Court will not construe
     the Act in a manner which will make Sections 306 and
     307 or at least part of the said sections otiose and thereby
     defeat the legislative intendment whatever be the
     consequences of such an interpretation."                     E

     37. Learned counsel for the respondent put reliance on
the decision of this Court in Afcons case (supra). In this case
the question that came for consideration before the Court was
whether Section 89 of the Code of Civil Procedure empowers F
the Court to refer the parties to a suit to arbitration with the
consent of both the parties. While considering the provisions
of Section 89 and Order 10 Rule 1A of the Code, this Court
held that consideration for reference under Section 89 is
mandatory. While deciding the question various decisions G
on the point of interpretation of statute are being considered
and decide the issue holding that Court will have to follow the
rule of literal construction which enjoins the Court to take words
as used by the Legislature to give it the meaning which naturally
implies.                                                           H
992         SUPREME COURT REPORTS                  [2015] 10 S.C.R.


A        38. In Mangin vs. /RC, (1971) 1 All ER 179 (PC), the
   Privy Council held that the object of the construction of a statute
   being to ascertain the will of the legislature it may be presumed
   that neither injustice nor absurdity was intended. If therefore a
   literal interpretation would produce such a result, and the
B language admits of an interpretation which would avoid it, then
  ·such an interpretation may be adopted.

       39. Mr. L. Nageswara Rao, learned senior counsel
  appearing for the Wakf Board, has rightly contended that the
C intention of the Parliament while substituting Section 83(4) is
  not that one member tribunal vanishes or ceases to exist till a
  three member tribunal is constituted. Intention to bring new
  sub-section (4) in Section 83 is nothing but improvement in
  the constitution of the Tribunal and both the earlier and the
D substituted sub-sections are not inconsistent with each other.

           40. 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
E     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
F     disputes in respect of waqf property.

       41. We, therefore, allow all the appeals except the appeal
  arising out of SLP(C)No.30725/2015 and set aside the
  impugned judgment passed by the High Court. Consequently,
G the appeal arising out of SLP(C) No.30725/2015 is dismissed
  holding t~at the interim order passed by the Tribunal shall
  continue.

      42. Before parting with the order we record our serious
H exception to the conduct of the States who have not till date
      LAL SHAH BABADARGAHTRUSTv. MAGNUM                             993
        DEVELOPERS AND ORS. [M.Y.EQBAL, J.]

issued fresh notification constituting three member Tribunal A
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 compliance. B

Nidhi Jain                                Appeals partly allowed.