Supreme Court of India
MUMTAZ YARUD DOWLA WAKFversusM/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.
- Citation
- 2023 INSC 949
- Decided
- 20 October 2023
- Disposal
- Appeal(s) allowed
- Bench
- M M SUNDRESH
Holding
The Wakf Tribunal has jurisdiction to entertain eviction suits over Wakf property, and the 2013 amendment applies retrospectively, precluding a fresh jurisdictional challenge at the execution stage.
Summary
The appellant, Mumtaz Yarud Dowla Wakf, owned a property that was leased to the respondent hotel for 33 years, which expired in 1999. After the lease ended, the appellant sued the respondents before the Wakf Tribunal for ejectment and possession, obtaining a decree in 2002. During execution of the decree, the respondents raised a jurisdictional objection, relying on the Supreme Court’s earlier decision in Ramesh Gobindram, and the High Court reversed the executing court’s dismissal of the objection. The Supreme Court held that the Wakf (Amendment) Act, 2013, which amended Sections 6, 7 and 83 of the Wakf Act, 1995, is a procedural amendment that retrospectively changes the forum, thereby confirming the Tribunal’s jurisdiction over eviction suits even for cases filed before the amendment. It further ruled that an executing court may not entertain a fresh jurisdictional plea at the execution stage, especially when the judgment‑debtor had the opportunity to raise it earlier, invoking the doctrines of approbate‑reprobate and actus curiae. Consequently, the High Court’s order was set aside and the executing court’s decision restored.
Issues considered
- The effect of the Wakf (Amendment) Act, 2013 on the jurisdiction of the Wakf Tribunal to entertain eviction suits filed before the amendment.
- Whether a jurisdictional objection can be raised for the first time during execution proceedings under Section 47 of the CPC.
- Whether the High Court was justified in reversing the executing court’s dismissal of the jurisdictional plea relying on Ramesh Gobindram.
Legislation cited
- Code of Civil Procedure, 1908s. Section 47, s. Section 9
- Wakf Act, 1995s. Section 6, s. Section 7, s. Section 83
- Wakf (Amendment) Act, 2013s. Section 6, s. Section 7, s. Section 83
Subjects
Wakf Tribunaljurisdictionprocedural amendmentretrospective effectexecution of decreeSection 47 CPCchange of forumapprobate and reprobateactus curiae
Judgment
[2023] 15 S.C.R. 984 : 2023 INSC 949
CASE DETAILS
MUMTAZ YARUD DOWLA WAKF
v.
M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.
(Civil Appeal No. 6933 of 2023)
OCTOBER 20, 2023
[M. M. SUNDRESH AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Objection raised by the respondents that the
suit filed by the appellant as decreed, ought not to have been entertained
by the Wakf Tribunal, was dismissed by the Executing Court. High Court,
whether justified in reversing the decision of the Executing Court by placing
reliance upon the decision of the Supreme Court in Ramesh Gobindram case,
the basis whereof has been removed after the amendment made by the Act
27 of 2013, as held in Rashid Wali Beg case.
The Wakf (Amendment) Act, 2013 (Amendment Act 27 of 2013 ) –
Effect of removal of the basis of the judgment – Code of Civil Procedure,
1908 – s.47 – Suit filed by the appellant-owner of the suit property
before the Wakf Tribunal for ejectment and recovery of possession was
decreed – Respondents filed revision petition, dismissed – Appellant
filed execution petition – After four years, respondents raised plea with
respect to the jurisdiction of the Wakf Tribunal – Application filed u/s.47
dismissed by Executing Court – High Court reversed the said decision by
placing reliance upon the decision of this Court in Ramesh Gobindram
(Dead) through LRs. v. Sugra Humayun Mirza Wakf [2010] 10 SCR
945 – Plea of the appellant that the said decision has been explained by
this Court in Rashid Wali Beg v. Farid Pindari and Others [2021] 13
SCR 1 and by the amendment brought in under the Act 27 of 2013, the
basis of the decision in Ramesh Gobindram has been removed:
Held: This Court in Rashid Wali Beg took note of the earlier decision
rendered in Ramesh Gobindram and held that after the amendment made by
the Act 27 of 2013, the basis of the said decision was correctly removed – It
984
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 985
BALAKRISHNA HOTEL PVT. LTD. & ORS.
was further held that there are sufficient provisions even otherwise to maintain
a suit for eviction over a Wakf property – Wakf Tribunal has got sufficient
jurisdiction to try every suit pertaining to either Wakf or a Wakf property,
notwithstanding the nature of relief concerned, except as mandated under
the statute – High Court while passing the impugned order, unfortunately
did not have the benefit of the decision rendered in Rashid Wali Beg –
Even otherwise, as per the amendment by way of the Act 27 of 2013, the
jurisdiction now lies with the Wakf Tribunal – An adjudicating forum being
a product of a procedural right has to come under retrospective operation
when an amendment is introduced to cure a defect which paved the way for
a decision of the Court in holding otherwise – Protracted proceedings have
helped respondents to be in possession for over two decades, notwithstanding
the expiry of the lease way back in 1999 – The Act 27 of 2013 is a procedural
amendment and therefore, has to be applied retrospectively in the context
of change of forum and jurisdictional provisions – The decision in Rashid
Wali Beg agreeed with – The amendment has been brought forth in order to
get over the interpretation given in Ramesh Gobindram – Impugned order
set aside while that of the Executing Court is restored – Waqf Act, 1995 –
Practice and Procedure. [Paras 28-30, 32]
Code of Civil Procedure, 1908 – s.47 r/w Or.XXI – Execution
proceedings – Question involving jurisdiction – Availability of
opportunity to raise said plea at an earlier point of time – Conduct of
party significant:
Held: An Executing Court is enjoined with the duty to give effect to
the decree – Any interference, including on a question involving jurisdiction,
should be undertaken very sparsely as a matter of exception – The onus
lies heavily on the judgment-debtor to convince the Court that a decree is
inexecutable – The conduct of a party assumes significance – If a party is
likely to have an undue advantage, despite the availability of an opportunity
to raise a plea of lack of jurisdiction at an earlier point of time, it should
not be permitted to do so during the execution proceedings – Further, a
plaintiff shall not be made to suffer by the passive act of the defendant
in submitting to the jurisdiction – One has to see the consequence while
taking note of the huge pendency of the cases before various Courts in the
country – There is no gainsaying that but for the adverse decree suffered, a
986 SUPREME COURT REPORTS [2023] 15 S.C.R.
judgment-debtor would not have ventured to raise such a plea – It is clearly
a case of an afterthought to suit his convenience – He cannot be allowed to
approbate and reprobate – Though this Court is conscious about the earlier
precedents dealing with the stage at which such a plea can be raised, much
water has flown under the bridge in terms of the ground reality – Approbate
and Reprobate. [Paras 14, 15]
Practice and Procedure – Jurisdiction – Lack of jurisdiction to a
forum vis-à-vis a case where two or more forums deal with the same
issue along with the rights and liabilities of the parties:
Held: There is a subtle difference when dealing with a case involving
coram non-judice – The principle governing lack of jurisdiction to a forum
may differ from a case where two or more forums deal with the same issue
along with the rights and liabilities of the parties – To make the position
clear, one has to see as to whether there is any change in the rights and
liabilities of the parties by choosing one forum as against the other – In
a case involving same rights and liabilities but the question is only with
respect to the forum being judicial or quasi-judicial, the issue of jurisdiction
would pale into insignificance when it is sought to be raised as a last straw
at a very belated stage – Therefore, when the process becomes the same
for both parties who undertake the said route willingly, the question of
jurisdiction cannot be put against each other after it has attained finality,
unless it is demonstrated that the rights of the party who suffered the decree
are obliterated. [Para 16]
Code of Civil Procedure, 1908 – s.9 – Duty of the Court in
confirming its own jurisdiction – Discussed – Maxims – “actus curiae
neminem gravabit”.
Practice and Procedure – Specialized forum under a statute,
exclusion of a civil court:
Held: When a specialized forum is made available under a statute,
a civil court should normally entertain a dispute which would otherwise
not be amenable before the said forum – Therefore, rights and liabilities
of the parties arising from an enactment ought to be adjudicated upon in
tune with the mechanism provided thereunder – The provisions of the
enactment ought to be given effect to through such forums and therefore to
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 987
BALAKRISHNA HOTEL PVT. LTD. & ORS.
the exclusion of a civil court whose jurisdiction is otherwise to be inferred
– As a principle of law, the powers of the civil court, being plenary in
nature, the onus lies on the party who contends that it lacks jurisdiction –
However, this does not take away the duty of the civil court to check its
own jurisdiction, more so when a specialized forum has come into being
as a creature of a statute. [Para 26]
LIST OF CITATIONS AND OTHER REFERENCES
Dhulabhai etc. v. State of Madhya Pradesh and Another, [1968] 3
SCR 662 – followed.
Rashid Wali Beg v. Farid Pindari and Others (2022) 4 SCC 414 :
[2021] 13 SCR 1; Union of India and Others v. N. Murugesan and Others,
(2022) 2 SCC 25; New India Insurance Co. Ltd. v. Smt. Shanti Misra,
Adult, (1975) 2 SCC 840 : [1976] 2 SCR 266; Hitendra Vishnu Thakur and
Others v. State of Maharashtra and Another (1994) 4 SCC 602 : [1994]
1 Suppl. SCR 360; Neena Aneja and Another v. Jai Prakash Associates
Ltd. (2022) 2 SCC 161; Vankamamidi Venkata Subba Rao v. Chatlapalli
Seetharamaratna Ranganayakamma (1997) 5 SCC 460 : [1997] 3 SCR
530; Ashok Kapil v. Sana Ullah (1996) 6 SCC 342 : [1996] 6 Suppl. SCR
768; Eureka Forbes Ltd. v. Allahabad Bank, (2010) 6 SCC 193 : [2010] 5
SCR 990; Madras Bar Association v. Union of India and Another (2022)
12 SCC 455 – relied on.
Faseela M. v. Munnerul Islam Madrasa Committee and Another,
(2014) 16 SCC 38 : [2014] 4 SCR 613; Ramesh Gobindram (Dead) through
LRs. v. Sugra Humayun Mirza Wakf (2010) 8 SCC 726 : [2010] 10 SCR
945; Indore Development Authority v. Manoharlal and Others, (2020) 8
SCC 129 : [2020] 3 SCR 1; M. Hariharasudhan v. R. Karmegam (2019)
10 SCC 94: [2019] 13 SCR 442 – referred to.
General Manager of the Raj Durbhunga v. Maharajah Coomar
Ramaput Sing, 1872 SCC OnLine PC 16 – referred to.
Federated Engine Drivers and Firemen’s Association of Australasia
v Broken Hill Proprietary Co. Ltd., (1911) 12 CLR 398; Zhang v.
Zemin (2010) 79 NSWLR 513; Wolverhampton New Waterworks Co. v.
Hawkesford [1859] 6 C.B. (NS) 336 – referred to.
988 SUPREME COURT REPORTS [2023] 15 S.C.R.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6933 of 2023.
From the Judgment and Order dated 23.11.2021 of the High Court for
the State of Telangana at Hyderabad in CRP No. 1264 of 2021.
Appearances:
Dr. Abhishek Manu Singhvi, Huzefa Ahmadi, Sr. Advs., Mahfooz
Ahsan Nazki, Polanki Gowtham, Ms. Rajeswari Mukherjee, Ms. Niti
Richhariya, Meeran Maqbool, Advs. for the Appellant.
Shyam Divan, Sr. Adv., B. Shravanth Shanker, Ms. Prerna Robin,
Rahul Jajoo, Devadipta Das, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti,
Chinmay Kalgaonkar, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
M. M. SUNDRESH, J.
1. Leave granted.
2. A legal journey adopted by the appellant with periodical stoppages
orchestrated in the process at behest of respondent no(s). 1 and 2 brought
the lis back to the place where it started, forcing it to undertake a fresh guard
by the impugned order.
3. This case is a classic example of the unfortunate situation taken
note of and lamented by Right Honorable Sir James Colvilbe in General
Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing,
1872 SCC OnLine PC 16,
“These proceedings certainly illustrate what was said by Mr.
Doyne, and what has been often stated before, that the difficulties
of a litigant in India begin when he has obtained a Decree…”
The situation not only continues but has become more prevalent.
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 989
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
FACTUAL BACKGROUND
4. The appellant being the undisputed owner of the suit property
executed a registered lease deed in favour of respondent no. 2. Respondent
no. 1 concern is being represented by a person who is the son of the
individual (since deceased) who represented respondent no. 2. The period
of lease was for 33 years. The suit premises was sublet without permission
by respondent no(s). 1 and 2.
5. After the expiry of the lease by efflux of time, the appellant issued a
legal notice requiring respondent no. 2 to hand over the vacant possession. A
reply was given stating that the possession having been handed over only on
25.11.1966, the lease subsists till 24.11.1999. On receipt of the said reply-
notice by respondent no. 2 dated 05.06.1999, a second notice was issued
by the appellant to which a different response came; that the said registered
lease was extended orally for another 33 years. A reference was also made
to the arbitration clause available under the original lease deed.
6. The appellant promptly filed a suit in O.S. No. 132 of 1999 before
the Wakf Tribunal seeking a decree for ejectment and recovery of possession,
along with arrears of rent and damages. After a prolonged litigation and
delaying tactics employed at the hands of respondent no(s). 1 and 2, a decree
was passed at last on 13.11.2002. The suit was dismissed against defendant
no(s). 3, 4, 5, and 7, while defendant no. 6 was set ex-parte. No plea with
respect to the jurisdiction of the Wakf Tribunal was raised, while the aborted
attempt to raise a defense of oral lease was rightly repelled.
7. Not being satisfied with the decree passed, respondents no(s). 1
and 2 filed a revision petition before the High Court being C.R.P. No. 5863
of 2002. It was dismissed inter alia holding that there is no legal basis to
continue in occupation after the expiry of the lease.
8. The dilatory tactics adopted by respondent no(s). 1 and 2 continued
even thereafter, to the extent that the appellant had to file an execution
petition in E.P. No. 29 of 2014 on 18.10.2014. Even during the execution
proceedings, respondent no. 2 did not raise the plea of maintainability of
the suit. However, after four years during which time also the Court was
successfully prevented through a series of applications/objections, obviously
at the instance of the respondents, an additional counter was filed raising
990 SUPREME COURT REPORTS [2023] 15 S.C.R.
the plea that the suit as laid and decreed ought not to have been entertained
in view of the dictum rendered by this Court in Faseela M. v. Munnerul
Islam Madrasa Committee and Another, (2014) 16 SCC 38 which in turn
relied upon the decision rendered in Ramesh Gobindram (Dead) through
LRs. v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726. The objection
raised was not found to be tenable by the Executing Court by dismissing
the application filed under Section 47 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the Code”). On a revision, the High Court of
Telangana reversed the decision of the Executing Court by placing reliance
upon the decision of this Court in Ramesh Gobindram (Supra). The said
order passed is under challenge in this appeal.
SUBMISSIONS
9. Dr. Abhishek Manu Singhvi and Shri Huzefa Ahmadi, learned senior
counsel appearing for the appellant, fervently submitted that there was
absolutely no objection raised by the contesting respondents till the stage
of the execution petition. The decision rendered in Ramesh Gobindram
(Supra) has been considered and explained by this Court in Rashid Wali
Beg v. Farid Pindari and Others, (2022) 4 SCC 414. Such an exercise
was also undertaken by this Court even on the earlier occasions. By the
amendment brought in under the Act 27 of 2013, the basis of the decision
in Ramesh Gobindram (Supra) has been removed. Even assuming that the
impugned order is correct, the resultant situation would be that the appellant
will have to file a suit before the Wakf Tribunal once again.
10. Supplementing the said submission, Shri K. Parameshwar, learned
counsel appearing for respondent no. 8, the Wakf Board, submitted that even
prior to the decision rendered in Ramesh Gobindram (Supra), there was
ample jurisdiction to try all suits pertaining to a Wakf and Wakf property, a
fact correctly taken note of in Rashid Wali Beg (Supra). Section 83 read with
Section 85 of the Wakf Act, 1995 being distinct and independent provisions
clothed the Wakf Tribunal with adequate jurisdiction.
11. Shri Shyam Divan, learned senior counsel appearing for the
contesting respondents submitted that a plea of nullity can be taken at any
stage. As held in Ramesh Gobindram (Supra), Sections 6 and 7 of the Act
43 of 1995 do not confer the requisite jurisdiction on the Wakf Tribunal in
deciding an issue qua an eviction of an individual from a Wakf property.
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 991
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
As the impugned order was passed noting the dictum laid by this Court in
Ramesh Gobindram (Supra), there is no need for interference.
12. In support of the rival contentions, the learned counsel placed
reliance upon the following decisions:
Ramesh Gobindram (Dead) through LRs v. Sugra Humayun
Mirza Wakf, (2010) 8 SCC 726
Punjab Wakf Board v. Pritpal Singh & Anr., (2013) SCC Online
SC 1345 : Civil Appeal No.8194 of 2013
Faseela M. v. Muneerul Islam Madrasa Committee and Another,
(2014) 16 SCC 38
Punjab Wakf Board v. Sham Singh Harike & and Another, (2019)
4 SCC 698
Telangana State Wakf Board & Anr. V. Mohamed Muzafar, (2021)
9 SCC 179
Kiran Devi v. Bihar State Sunni Wakf Board and Others, (2021)
15 SCC 15
Rashid Wali Beg v. Farid Pindari and Others, (2022) 4 SCC 414
Kiran Singh and Others. v. Chaman Paswan and Others, 1955
(1) SCR 117 : AIR 1954 SC 340
Chandrika Misir and Another v. Bhaiya Lal, (1973) 2 SCC 474
Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through His
LRs, (1990) 1 SCC 193
Chiranjilal Shrilal Goenka (Deceased) through LRs. v. Jasjit
Singh and Others, (1993) 2 SCC 507
Sarwan Kumar and Another v. Madan Lal Aggarwal, (2003) 4
SCC 147
Ashok Leyland Ltd. v. State of T.N. and Another, (2004) 3 SCC
1
Hindustan Zinc Ltd. (HZL) v. Ajmer Vidyut Vitran Nigam Ltd.,
(2019) 17 SCC
992 SUPREME COURT REPORTS [2023] 15 S.C.R.
P.V Nidhish & Ors. v. Kerala State Wakf Board & Anr., (2023)
SCC OnLine SC 519 : 2023 (7) SCALE 130.
13. Before dwelling into the merits of this case, we shall first go into
the issues of law governing the submissions made.
EXECUTING COURT CANNOT GO BEYOND THE DECREE
14. The legal principle that an Executing Court cannot go beyond the
decree stands fortified, subject to the rigor of Section 47 read with Order XXI
of the Code. As a matter of course, an Executing Court is enjoined with the
duty to give effect to the decree. Any interference, including on a question
involving jurisdiction, should be undertaken very sparsely as a matter of
exception. The onus lies heavily on the judgment-debtor to convince the
Court that a decree is inexecutable. When an exercise is likely to involve a
factual adjudication, it should better be avoided.
15. The conduct of a party assumes significance. If a party is likely
to have an undue advantage, despite the availability of an opportunity to
raise a plea of lack of jurisdiction at an earlier point of time, it should not
be permitted to do so during the execution proceedings. In other words, a
plaintiff shall not be made to suffer by the passive act of the defendant in
submitting to the jurisdiction. One has to see the consequence while taking
note of the huge pendency of the cases before various Courts in the country.
There is no gainsaying that but for the adverse decree suffered, a judgment-
debtor would not have ventured to raise such a plea. It is clearly a case of
an afterthought to suit his convenience. He cannot be allowed to approbate
and reprobate. Though we are conscious about the earlier precedents dealing
with the stage at which such a plea can be raised, much water has flown
under the bridge in terms of the ground reality. Union of India and Others
v. N. Murugesan and Others, (2022) 2 SCC 25,
“Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would
only mean that no party can be allowed to accept and reject the
same thing, and thus one cannot blow hot and cold. The principle
behind the doctrine of election is inbuilt in the concept of approbate
and reprobate. Once again, it is a principle of equity coming
under the contours of common law. Therefore, he who knows
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 993
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
that if he objects to an instrument, he will not get the benefit he
wants cannot be allowed to do so while enjoying the fruits. One
cannot take advantage of one part while rejecting the rest. A
person cannot be allowed to have the benefit of an instrument
while questioning the same. Such a party either has to affirm or
disaffirm the transaction. This principle has to be applied with
more vigour as a common law principle, if such a party actually
enjoys the one part fully and on near completion of the said
enjoyment, thereafter questions the other part. An element of
fair play is inbuilt in this principle. It is also a species of estoppel
dealing with the conduct of a party. We have already dealt with
the provisions of the Contract Act concerning the conduct of a
party, and his presumption of knowledge while confirming an
offer through his acceptance unconditionally.
27. We would like to quote the following judgments for better
appreciation and understanding of the said principle:
27.1.Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B. Shama
Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR pp. 601-02, para 23)
“23. But it is argued by Sri Krishnaswami Ayyangar that as the
proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea
that the decree and sale in OS. No. 100 of 1919-20 are not collusive,
not on the ground of res judicata or estoppel but on the principle
that a person cannot both approbate and reprobate. It is immaterial
that the present appellants were not parties thereto, and the decision
in Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co.
Ltd. [(1921) 2 KB 608 (CA)], and in particular, the observations
of Scrutton, LJ., at p. 611 were quoted in support of this position.
There, the facts were that an agent delivered goods to the customer
contrary to the instructions of the principal, who thereafter filed a
suit against the purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next filed a suit against
the agent for damages on the ground of negligence and breach of
duty. It was held that such an action was barred. The ground of the
decision is that when on the same facts, a person has the right to
claim one of two reliefs and with full knowledge he elects to claim
994 SUPREME COURT REPORTS [2023] 15 S.C.R.
one and obtains it, it is not open to him thereafter to go back on his
election and claim the alternative relief. The principle was thus stated
by Bankes, L.J. : (Verschures Creameries Ltd. case [(1921) 2 KB
608 (CA)] , KB p. 611)
‘… Having elected to treat the delivery to him as an authorised delivery
they cannot treat the same act as a misdelivery. To do so would be to
approbate and reprobate the same act.’
The observations of Scrutton, L.J. on which the appellants rely are as
follows : (Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)],
KB pp. 611-12)
‘… A plaintiff is not permitted to “approbate and reprobate”.
The phrase is apparently borrowed from the Scotch law, where
it is used to express the principle embodied in our doctrine of
election — namely, that no party can accept and reject the same
instrument : Ker v. Wauchope [(1819) 1 Bligh PC 1 at p. 21 : 4
ER 1 at p. 8] : Douglas-Menzies v. Umphelby [1908 AC 224 at p.
232 (PC)] . The doctrine of election is not however confined to
instruments. A person cannot say at one time that a transaction is
valid and thereby obtain some advantage, to which he could only
be entitled on the footing that it is valid, and then turn round and
say it is void for the purpose of securing some other advantage.
That is to approbate and reprobate the transaction.’
It is clear from the above observations that the maxim that a person
cannot “approbate and reprobate” is only one application of the
doctrine of election, and that its operation must be confined to reliefs
claimed in respect of the same transaction and to the persons who are
parties thereto. The law is thus stated in Halsbury’s Laws of England,
Vol. XIII, p. 464, para 512:
‘On the principle that a person may not approbate and reprobate,
a species of estoppel has arisen which seems to be intermediate
between estoppel by record and estoppel in pais, and may
conveniently be referred to here. Thus a party cannot, after taking
advantage under an order (e.g. payment of costs), be heard to say
that it is invalid and ask to set it aside, or to set up to the prejudice
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 995
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
of persons who have relied upon it a case inconsistent with that
upon which it was founded; nor will he be allowed to go behind
an order made in ignorance of the true facts to the prejudice of
third parties who have acted on it.’
27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144]
: (SCC pp. 153-54, paras 22-23 & 25-26)
“22. The doctrine of “approbate and reprobate” is only a species of
estoppel, it implies only to the conduct of parties. As in the case of
estoppel it cannot operate against the provisions of a statute. (Vide
CIT v. MR. P. Firm Muar [AIR 1965 SC 1216].)
23. It is settled proposition of law that once an order has been passed,
it is complied with, accepted by the other party and derived the benefit
out of it, he cannot challenge it on any ground. (Vide Maharashtra
SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329]). In
R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has
observed as under : (R.N. Gosain case [(1992) 4 SCC 683] , SCC
pp. 687-88, para 10)
‘10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the same
instrument and that ‘a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to which
he could only be entitled on the footing that it is valid, and then
turn round and say it is void for the purpose of securing some
other advantage’.’
***
25. The Supreme Court in Rajasthan State Industrial Development
& Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.
[(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation
that a party cannot be permitted to “blow hot and cold”, “fast and
loose” or “approbate and reprobate”. Where one knowingly accepts
the benefits of a contract or conveyance or an order, is estopped
to deny the validity or binding effect on him of such contract or
conveyance or order. This rule is applied to do equity, however, it
996 SUPREME COURT REPORTS [2023] 15 S.C.R.
must not be applied in a manner as to violate the principles of right
and good conscience.
26. It is evident that the doctrine of election is based on the rule of
estoppel, the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a rule of
equity. By this law, a person may be precluded, by way of his actions,
or conduct, or silence when he has to speak, from asserting a right
which he would have otherwise had.”
27.3.Rajasthan State Industrial Development & Investment Corpn. v.
Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3
SCC (Civ) 153] : (SCC pp. 480-81, paras 15-16)
“I. Approbate and reprobate
15. A party cannot be permitted to “blow hot-blow cold”, “fast and
loose” or “approbate and reprobate”. Where one knowingly accepts
the benefits of a contract, or conveyance, or of an order, he is estopped
from denying the validity of, or the binding effect of such contract,
or conveyance, or order upon himself. This rule is applied to ensure
equity, however, it must not be applied in such a manner so as to
violate the principles of what is right and of good conscience. [Vide
Nagubai Ammal v. B. Shama Rao [1956 SCR 451 : AIR 1956 SC
593], CIT v. V. MR. P. Firm Muar [ AIR 1965 SC 1216], Ramesh
Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009)
1 SCC (L&S) 706], Pradeep Oil Corpn. v. MCD [(2011) 5 SCC
270 : (2011) 2 SCC (Civ) 712], Cauvery Coffee Traders v. Hornor
Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3
SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer
[(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : (2013) 4 SCC (Cri)
587 : (2013) 3 SCC (L&S) 416].
16. Thus, it is evident that the doctrine of election is based on the rule
of estoppel—the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a rule of
equity. By this law, a person may be precluded, by way of his actions,
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 997
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
or conduct, or silence when it is his duty to speak, from asserting a
right which he would have otherwise had.”
(emphasis supplied)
16. There is a subtle difference when we deal with a case involving
coram non-judice. The principle governing lack of jurisdiction to a forum
may differ from a case where two or more forums deal with the same issue
along with the rights and liabilities of the parties. To make the position clear,
one has to see as to whether there is any change in the rights and liabilities
of the parties by choosing one forum as against the other. As an example,
we can take the case of eviction of a tenant. If he is to be evicted only under
the Rent Control Act which extends a certain right to the tenant, who cannot
be evicted otherwise than under the provisions contained therein, a common
law remedy cannot be invoked by way of a suit as against a proceeding
before the Rent Controller. In that view of the matter, certainly the question
of prejudice would arise. However, in a case involving same rights and
liabilities but the question is only with respect to the forum being judicial or
quasi-judicial, the issue of jurisdiction would pale into insignificance when
it is sought to be raised as a last straw at a very belated stage. Therefore,
when the process becomes the same for both parties who undertake the said
route willingly, the question of jurisdiction cannot be put against each other
after it has attained finality, unless it is demonstrated that the rights of the
party who suffered the decree are obliterated.
CHANGE OF FORUM
17. We shall now come to the issue of retrospective application and
change of forum. As discussed, when a statute is amended on an issue
pertaining to a forum for adjudication, it being procedural takes effect
retrospectively. A party to a lis does not have any vested right of forum as
against action. In the absence of any substantive right being subsumed by
a particular forum, one has to give retrospective application. New India
Insurance Co. Ltd. v. Smt. Shanti Misra, Adult, (1975) 2 SCC 840,
“5. On the plain language of Sections 110A and 110F there should be
no difficulty in taking the view that the change in law was merely a
change of forum i.e. a change of adjectival or procedural law and
not of substantive law. It is a well-established proposition that
998 SUPREME COURT REPORTS [2023] 15 S.C.R.
such a change of law operates retrospectively and the person has
to go to the new forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a vested right
of action but not a vested right of forum. If by express words
the new forum is made available only to causes of action arising
after the creation of the forum, then the retrospective operation
of the law is taken away. Otherwise the general rule is to make it
retrospective. The expressions “arising out of an accident” occurring
in sub-section (1) and “over the area in which the accident occurred”,
mentioned in sub-section (2) clearly show that the change of forum
was meant to be operative retrospectively irrespective of the fact as
to when the accident occurred. To that extent there was no difficulty
in giving the answer in a simple way. But the provision of limitation
of 60 days contained in sub-section (3) created an obstacle in the
straight application of the well-established principle of law. If the
accident had occurred within 60 days prior to the constitution of the
tribunal then the bar of limitation provided in sub-section (3) was not
an impediment. An application to the tribunal could be said to be the
only remedy. If such an application, due to one reason or the other,
could not be made within 60 days then the tribunal had the power
to condone the delay under the proviso. But if the accident occurred
more than 60 days before the constitution of the tribunal then the bar
of limitation provided in sub-section (3) of Section 110A on its face
was attracted. This difficulty of limitation led most of the High Courts
to fall back upon the proviso and say that such a case will be a fit
one where the tribunal would be able to condone the delay under the
proviso to sub-section (3), and led others to say that the tribunal will
have no jurisdiction to entertain such an application and the remedy
of going to the civil court in such a situation was not barred under
Section 110F of the Act. While taking the latter view the High Court
failed to notice that primarily the law engrafted in Sections 110A and
110F was a law relating to the change of forum.”
(emphasis supplied)
18. Hitendra Vishnu Thakur and Others v. State of Maharashtra
and Another, (1994) 4 SCC 602,
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 999
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
“26. The Designated Court has held that the amendment would
operate retrospectively and would apply to the pending cases in which
investigation was not complete on the date on which the Amendment
Act came into force and the challan had not till then been filed in the
court. From the law settled by this Court in various cases the illustrative
though not exhaustive principles which emerge with regard to the
ambit and scope of an Amending Act and its retrospective operation
may be culled out as follows:
(i) A statute which affects substantive rights is presumed to
be prospective in operation unless made retrospective, either
expressly or by necessary intendment, whereas a statute which
merely affects procedure, unless such a construction is textually
impossible, is presumed to be retrospective in its application,
should not be given an extended meaning and should be strictly
confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature,
whereas law relating to right of action and right of appeal even
though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such
right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied
retrospectively where the result would be to create new disabilities
or obligations or to impose new duties in respect of transactions
already accomplished.
(v) A statute which not only changes the procedure but also creates
new rights and liabilities shall be construed to be prospective
in operation, unless otherwise provided, either expressly or by
necessary implication.”
(emphasis supplied)
19. Neena Aneja and Another v. Jai Prakash Associates Ltd.,
(2022) 2 SCC 161,
“58. SEBI argued before this Court that a change of the forum for trial
was a matter of mere procedure and would, therefore, be retrospective,
1000 SUPREME COURT REPORTS [2023] 15 S.C.R.
there being no express or implied intent either in the 2002 and 2014
Amendments that the amendments were intended to be of prospective
effect. J.S. Khehar, J. speaking for the two-Judge Bench of this Court
adverted to the decisions inter alia in New India Assurance [New
India Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840], Ramesh
Kumar Soni [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC
696 : (2014) 4 SCC (Cri) 340] and Hitendra Vishnu Thakur [Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC
(Cri) 1087], and observed in that context : (Classic Credit case [SEBI
v. Classic Credit Ltd., (2018) 13 SCC 1 : (2019) 1 SCC (Cri) 431],
SCC pp. 67-68, para 49)
“49. … In our considered view, the legal position expounded by
this Court in a large number of judgments including New India
Assurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840]; SEBI
v. Ajay Agarwal [(2010) 3 SCC 765 : (2010) 2 SCC (Cri) 491]
and Ramesh Kumar Soni v. State of M.P. [(2013) 14 SCC 696
: (2014) 4 SCC (Cri) 340] , is clear and unambiguous, namely,
that procedural amendments are presumed to be retrospective
in nature, unless the amending statute expressly or impliedly
provides otherwise. And also, that generally change of “forum” of
trial is procedural, and normally following the above proposition,
it is presumed to be retrospective in nature unless the amending
statute provides otherwise. This determination emerges from
the decision of this Court in Hitendra Vishnu Thakur v. State
of Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087];
Ranbir Yadav v. State of Bihar [(1995) 4 SCC 392 : 1995 SCC
(Cri) 728] and Kamlesh Kumar v. State of Jharkhand [(2013)
15 SCC 460 : (2014) 6 SCC (Cri) 489], as well as, a number of
further judgments noted above.”
59. The above observations indicate the clear view of this Court
that:
59.1. In the absence of a contrary intent express or implied,
procedural amendments are presumed to be retrospective.
59.2. A change in the forum of a trial is a procedural matter.
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1001
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
59.3. Since a change of forum is procedural, a statute which brings
about the change is presumed to be retrospective in the absence
of a contrary intent.
×××××
C.23. Conclusion on the position of law
72. In considering the myriad precedents that have interpreted
the impact of a change in forum on pending proceedings and
retrospectivity—a clear position of law has emerged : a change in
forum lies in the realm of procedure. Accordingly, in compliance
with the tenets of statutory interpretation applicable to procedural
law, amendments on matters of procedure are retrospective,
unless a contrary intention emerges from the statute. This position
emerges from the decisions in New India Assurance [New India
Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840], Maria
Cristina [Maria Cristina De Souza Sodder v. Amria Zurana Pereira
Pinto, (1979) 1 SCC 92], Hitendra Vishnu Thakur [Hitendra Vishnu
Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri)
1087], Ramesh Kumar Soni [Ramesh Kumar Soni v. State of M.P.,
(2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340] and Sudhir G. Angur
[Sudhir G. Angur v. M. Sanjeev, (2006) 1 SCC 141]. More recently,
this position has been noted in a three-Judge Bench decision of
this Court in Manish Kumar v. Union of India [(2021) 5 SCC 1 :
(2021) 3 SCC (Civ) 50]. However, there was a deviation by a two-
Judge Bench decision of this Court in Dhadi Sahu [CIT v. Dhadi
Sahu, 1994 Supp (1) SCC 257], which overlooked the decision of
a larger three-Judge Bench in New India Assurance [New India
Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840] and of a
coordinate two-Judge Bench in Maria Cristina [Maria Cristina De
Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92]. The
decision in Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
propounded a position that : (Dhadi Sahu case [CIT v. Dhadi Sahu,
1994 Supp (1) SCC 257] , SCC p. 262, para 21)
“21. … no litigant has any vested right in the matter of procedural
law but where the question is of change of forum it ceases to be a
question of procedure only. The forum of appeal or proceedings
1002 SUPREME COURT REPORTS [2023] 15 S.C.R.
is a vested right as opposed to pure procedure to be followed
before a particular forum. The right becomes vested when the
proceedings are initiated in the tribunal.”
(emphasis supplied)
In taking this view, the two-Judge Bench did not consider binding
decisions. Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
failed to consider that the saving of pending proceedings in Mohd.
Idris [Mohd. Idris v. Sat Narain, (1966) 3 SCR 15 : AIR 1966 SC
1499] and Manujendra Dutt [Manujendra Dutt v. Purnedu Prosad
Roy Chowdhury, (1967) 1 SCR 475 : AIR 1967 SC 1419] was a
saving of vested rights of the litigants that were being impacted
by the repealing Acts therein, and not because a right to forum is
accrued once proceedings have been initiated. Thereafter, a line of
decisions followed Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1)
SCC 257] , to hold that a litigant has a crystallised right to a forum
once proceedings have been initiated. A litigant’s vested rights
(including the right to an appeal) prior to the amendment or repeal
are undoubtedly saved, in addition to substantive rights envisaged
under Section 6 of the General Clauses Act. This protection does not
extend to pure matters of procedure. Repeals or amendments that
effect changes in forum would ordinarily affect pending proceedings,
unless a contrary intention appears from the repealing or amending
statute.”
COURT MUST SATISFY ITSELF AS TO THE EXISTENCE
OF JURISDICTION
Section 9 of the Code
“9. Courts to try all civil suits unless barred.—The Courts shall
(subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognisance
is either expressly or impliedly barred.
Explanation I.—A suit in which the right to property or to an office
is contested is a suit of a civil nature, notwithstanding that such right
may depend entirely on the decision of questions as to religious rites
or ceremonies.
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1003
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
Explanation II.—For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a particular
place.”
20. On a proper construction of Section 9 of the Code, it is clear
that the court has to prima facie satisfy itself as to the existence of the
jurisdiction. Such an exercise will avoid putting the parties to unnecessary
risk and difficulty. Vankamamidi Venkata Subba Rao v. Chatlapalli
Seetharamaratna Ranganayakamma, (1997) 5 SCC 460,
“15. This Court in Vatticherukuru Village Panchayat v. Nori
Venkatarama Deekshithulu [1991 Supp (2) SCC 288] after considering
the entire case-law, had held that the civil court has no jurisdiction to go
into the correctness of the patta granted by the Settlement Authorities.
Under Section 9 CPC, the courts shall, subject to the provisions
contained therein, have jurisdiction to try all suits of civil nature
excepting suits cognizance of which is either expressly or impliedly
barred. When a legal right is infringed, a suit would lie unless there
is a bar against entertainment of such civil suit and the civil courts
would take cognizance of it. Therefore, the normal rule of law is that
civil courts have jurisdiction to try all suits of civil nature except those
of which cognizance is either expressly or by necessary implication
excluded. The rule of construction being that every presumption would
be made in favour of the existence of a right and remedy in a democratic
set-up governed by rule of law and jurisdiction of the civil courts is
assumed. The exclusion would, therefore, normally be an exception.
Courts generally construe the provisions strictly when jurisdiction of the
civil courts is claimed to be excluded. However, in the development of
civil adjudication of civil disputes, due to pendency of adjudication
and abnormal delay at hierarchical stages, statutes intervene
and provide alternative mode of resolution of disputes with less
expensive but expeditious disposal. It is settled legal position that
if a tribunal with limited jurisdiction cannot assume jurisdiction
and decide for itself the dispute conclusively, in such a situation,
it is the court that is required to decide whether the tribunal
with limited jurisdiction has correctly assumed jurisdiction and
1004 SUPREME COURT REPORTS [2023] 15 S.C.R.
decided the dispute within its limits. It is also equally settled that
when jurisdiction is conferred on a tribunal, the courts examine
whether the essential principles of jurisdiction have been followed
and decided by the tribunals leaving the decision on merits to
the tribunal. It is also an equally settled legal position that where
a statute gives finality to the orders of the special tribunal, the
civil court’s jurisdiction must be held to be excluded, if there is
adequate remedy to do what the civil court would normally do
in a suit. Such a provision, however, does not exclude those cases
where the provisions of the particular Act have not been complied
with or the statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure. Where there is
an express bar of jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court. Where there is no express
exclusion, the examination of the remedies and the scheme of the
particular Act to find out the intendment becomes necessary and
the result of the enquiry may be decisive. In the latter case, it is
necessary that the statute creates a special right or liability and
provides procedure for the determination of the right or liability
and further lays down that all questions about the said right or
liability shall be determined by the tribunal so constituted and
whether remedies are normally associated with the action in civil
courts or prescribed by the statutes or not. Therefore, each case
requires examination whether the statute provides right and
remedies and whether the scheme of the Act is that the procedure
provided will be conclusive and thereby excludes the jurisdiction of
the civil court in respect thereof. After the advent of independence,
land reforms was one of the policies of the Government abolishing
feudal system of land tenures and conferment of the ryotwari patta
on the tiller of the soil. Thereby, the land reform laws extinguish pre-
existing rights and create new rights under the Act. The Act confers
jurisdiction on the tribunals in matters relating thereto and hierarchy of
appeals/revisions are provided thereunder giving finality to the orders
passed thereunder. Thereby, by necessary implication, the jurisdiction
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1005
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
of the civil court to take cognizance of the suits of civil nature covered
under the land reform laws stands excluded giving not only finality to
the decisions of the tribunal but also ensuring expeditious, inexpensive
and simple procedure for disposal of the matters by the tribunal and
make the ryotwari patta granted to the tiller of the soil conclusive.
Under the normal course of civil procedure, the jurisdiction of the trial
of the civil suits in relation to the matters covered under the Acts being
time-consuming and tardy the lack of financial support or otherwise
incapacity in defending or working the rights in the civil courts and
by hierarchy of appeals defeat justice. Obviously, therefore, the civil
suits by necessary implication stand excluded unless the fundamental
principles of procedure are not followed by the tribunals constituted
under the land reform laws. In this case, the Act concerned extinguishes
the pre-existing right, creates new rights under the Act and requires
tribunals to enquire into the rival claims and a form of appeal has been
provided against the order of the primary authority. Thereby the right
and remedy made conclusive under the Act are given finality by the
orders passed under the Act. Thereby, by necessary implication, the
jurisdiction of the civil court stands excluded.”
(emphasis supplied)
21. Every case is a journey towards truth. A procedural law, as
repeatedly settled by this Court, is a handmaid of justice. There is an inherent
sense of equity and fair play in the proceedings of the Court. When a lis
is entertained it is the paramount duty of the Court to check on itself and
satisfy the existence of jurisdiction, despite being not raised by the parties.
Such an exercise would not only prevent injustice but will also take care of
a party taking advantage of its own wrong. It has to apply the principle of
nullus commodum capere potest de injuria sua propria (no man can take
advantage of his own wrong) in order to prevent any miscarriage of justice.
When the court is satisfied that one party to the dispute is manipulating the
process to perpetuate illegality and to the detriment of the other, it should
go beyond the procedural entrapment by rendering correct justice. Ashok
Kapil v. Sana Ullah, (1996) 6 SCC 342,
“7. If the crucial date is the date of allotment order, the structure
was not a building as defined in the Act. But can the respondent
1006 SUPREME COURT REPORTS [2023] 15 S.C.R.
be assisted by a court of law to take advantage of the mischief
committed by him? The maxim “Nullus commodum capere potest
de injuria sua propria” (No man can take advantage of his own
wrong) is one of the salient tenets of equity. Hence, in the normal
course, the respondent cannot secure the assistance of a court of
law for enjoying the fruit of his own wrong.”
(emphasis supplied)
22. Eureka Forbes Ltd. v. Allahabad Bank, (2010) 6 SCC 193,
“66. The maxim nullus commodum capere potest de injuria
sua propria has a clear mandate of law that, a person who by
manipulation of a process frustrates the legal rights of others,
should not be permitted to take advantage of his wrong or
manipulations. In the present case Respondents 2 and 3 and the
appellant have acted together while disposing off the hypothecated
goods, and now, they cannot be permitted to turn back to argue,
that since the goods have been sold, liability cannot be fastened
upon Respondents 2 and 3 and in any case on the appellant. The
Bench of this Court in Ashok Kapil v. Sana Ullah [(1996) 6 SCC
342] referred to rule of mischief and while explaining the word
“building”, held as under: (SCC p. 346, para 11)
“11. Stroud’s Judicial Dictionary (Vol. I of the 5th Edn.)
states that ‘what is a building must always be a question
of degree and circumstances’. Quoting from Victoria City
Corpn. v. Bishop of Vancouver Island [(1921) 2 AC 384 (PC)]
(AC at p. 390), the celebrated lexicographer commented that
‘the ordinary and natural meaning of the word “building”
includes the fabric and the ground on which it stands’. In
Black’s Law Dictionary (5th Edn.) the meaning of ‘building’
is given as ‘A structure or edifice enclosing a space within
its walls, and usually, but not necessarily, covered with
a roof’. (emphasis in original). The said description is
a recognition of the fact that roof is not a necessary and
indispensable adjunct for a building because there can be
roofless buildings. So a building, even after losing the roof,
can continue to be a building in its general meaning. Taking
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1007
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
recourse to such general meaning in the present context
would help to prevent a mischief.”
(emphasis supplied)
23. The mandatory duty of the Court in confirming its own jurisdiction
has been taken note of and dealt with succinctly by Griffith, C.J. in Federated
Engine Drivers and Firemen’s Association of Australasia v Broken Hill
Proprietary Co. Ltd., (1911) 12 CLR 398,
“If they exist, it is quite immaterial to inquire by what route the
President arrived at a right conclusion. If they do not, it is equally
unimportant to inquire how he fell into error. In such a matter this
Court is not a Court of Appeal from him.
But the first duty of every judicial officer is to satisfy himself that he
has jurisdiction, if only to avoid putting the parties to unnecessary
risk and expense. In this respect a grave responsibility rests upon the
President, whose jurisdiction is limited both by the Constitution and
the Act. This responsibility is not diminished by tbe possibility that
he may be misled by imperfect or erroneous information. The mode
of satisfying himself may vary in different cases. In most cases that
come before an ordinary Court of law it is not necessary to make any
inquiry.”
(emphasis supplied)
24. The aforesaid principle of law has been quoted with approval
by the New South Wales Court of Appeal (Australia) in Zhang v. Zemin
(2010) 79 NSWLR 513,
“37. A further, alternative, reason for rejecting the appellant’s
contentions is that there is a long line of authority that a court must
satisfy itself that it has jurisdiction, whether or not a jurisdictional
issue is raised by a party.
38. As Mr H Burmester QC, who appeared for the Attorney,
submitted, the Court would have had to address this issue even if
the Attorney had not intervened and even without the application
for default judgment.
1008 SUPREME COURT REPORTS [2023] 15 S.C.R.
39. The determination of whether or not it has jurisdiction has
been described as the “first duty” of a court. (See Federated Engine
Drivers and Firemen’s Association of Australasia v Broken Hill
Pty Co Ltd (1911) 12 CLR 398 at 415 per Griffith CJ.) That case
involved a legislative scheme providing for a jurisdictional fact.
As Isaacs J said in that context at 454:
“What [the court] has to do at the outset is to satisfy its mind
that it is not overstepping the bounds which Parliament has
laid down for it.”
40. To similar effect are the observations of Barton J when he said
at 428:
“Where the jurisdiction is disputed, adequate and careful
inquiry is still the duty of the superior Court. On the other
hand, where the jurisdiction is not contested by the party
defending, very slight inquiry may be adequate, and many
cases will to the mind of the tribunal be so plainly within
its competence that it will rightly forego inquiry unless the
objection is taken, and the objector tenders proof of facts in
its support.”
41. The observations of Griffith CJ and Barton J in Federated
Engine Drivers supra, were applied by Fullagar J in The King
v Blakeley; Ex parte The Association of Architects, Engineers,
Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90-
91, where his Honour accepted of the language of “duty”.\
42. In Cockle v Isaksen (1957) 99 CLR 155, neither party wished
to challenge the jurisdiction of the High Court to hear a particular
appeal. However, the Court permitted the Commonwealth to
intervene to argue the issue of validity, without, in that case,
becoming a party…”
×××××
44. The observations of Barton J in Federated Engine Drivers,
quoted at [40] above, indicate that it is not essential for an issue
of jurisdiction to be raised by a party to proceedings. That matter
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1009
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
had earlier been determined by the High Court in the course of a
preliminary application in Federated Amalgamated Government
Railway and Tramway Service Association v The NSW Railway
Traffic Employees’ Association (1906) 4 CLR 488. Objection had
been taken to a point being raised by an intervenor concerning the
validity of the statute, on the basis that such a point should not be
raised except in litigation between parties, where it is necessary
to determine the issue of validity. Griffith CJ, with whom Barton
and O’Connor JJ agreed, said at 495:
“A point of jurisdiction, when it is seriously raised or, if it
suggests itself to the Court without being taken by a party,
cannot properly be disregarded.”
(emphasis supplied)
25. Having dealt with the aforesaid principle and making it applicable
to the Courts in India, we are inclined to hold that any failure on the part
of the Court to do so would draw the legal maxim “actus curiae neminem
gravabit’ (no one shall be prejudiced by an act of Court). As a consequence,
in a case where a Court has failed to check its jurisdiction and a plea has
been raised subsequently and that too after receiving an adverse verdict, the
forum shall not be declared as the one having lack of jurisdiction, especially
when there is no apparent injury otherwise to the rights conferred under
a particular statute. Indore Development Authority v. Manoharlal and
Others, (2020) 8 SCC 129,
“320. The maxim actus curiae neminem gravabit is founded upon the
principle due to court proceedings or acts of court, no party should
suffer. If any interim orders are made during the pendency of the
litigation, they are subject to the final decision in the matter. In case the
matter is dismissed as without merit, the interim order is automatically
dissolved. In case the matter has been filed without any merit, the
maxim is attracted commodum ex injuria sua nemo habere debet,
that is, convenience cannot accrue to a party from his own wrong.
No person ought to have the advantage of his own wrong. In case
litigation has been filed frivolously or without any basis, iniquitously
in order to delay and by that it is delayed, there is no equity in favour
of such a person. Such cases are required to be decided on merits. In
1010 SUPREME COURT REPORTS [2023] 15 S.C.R.
Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] , this
Court observed that : (AIR p. 1355, para 5)
“5. … The same principle is comprised in the Latin maxim
commodum ex injuria sua nemo habere debet, that is,
convenience cannot accrue to a party from his own wrong. To
put it in other words, no one can be allowed to benefit from his
own wrongful act.”
×××××
324. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. [(1995)
3 SCC 33], it has been observed that the Court can under its inherent
jurisdiction ex debito justitiae has a duty to mitigate the damage suffered
by the defendants by the act of the court. Such action is necessary to
put a check on abuse of process of the court. In Amarjeet Singh v. Devi
Ratan [(2010) 1 SCC 417 : (2010) 1 SCC (L&S) 1108], and Ram Krishna
Verma [Ram Krishna Verma v. State of U.P., (1992) 2 SCC 620], it was
observed that no person can suffer from the act of court and unfair
advantage of the interim order must be neutralised. In Amarjeet Singh
[Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 : (2010) 1 SCC (L&S)
1108], this Court observed : (SCC pp. 422-23, paras 17-18)
“17. No litigant can derive any benefit from mere pendency of the
case in a court of law, as the interim order always merges in the final
order to be passed in the case, and if the writ petition is ultimately
dismissed, the interim order stands nullified automatically. A party
cannot be allowed to take any benefit of its own wrongs by getting
an interim order and thereafter blame the court. The fact that the
writ is found, ultimately, devoid of any merit, shows that a frivolous
writ petition had been filed. The maxim actus curiae neminem
gravabit, which means that the act of the court shall prejudice no
one, becomes applicable in such a case. In such a fact situation,
the court is under an obligation to undo the wrong done to a party
by the act of the court. Thus, any undeserved or unfair advantage
gained by a party invoking the jurisdiction of the court must be
neutralised, as the institution of litigation cannot be permitted to
confer any advantage on a suitor from delayed action by the act of
the court. (Vide Shiv Shankar v. U.P. SRTC [1995 Supp (2) SCC
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1011
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
726 : 1995 SCC (L&S) 1018], GTC Industries Ltd. v. Union of
India [(1998) 3 SCC 376] and Jaipur Municipal Corpn. v. C.L.
Mishra [(2005) 8 SCC 423]).
18. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC 620],
this Court examined a similar issue while placing reliance upon
its earlier judgment in Grindlays Bank Ltd. v. CIT [(1980) 2
SCC 191 : 1980 SCC (Tax) 230] and held that no person can
suffer from the act of the court and in case an interim order has
been passed, and the petitioner takes advantage thereof, and
ultimately the petition is found to be without any merit and is
dismissed, the interest of justice requires that any undeserved
or unfair advantage gained by a party invoking the jurisdiction
of the court must be neutralised.”
325. In Karnataka Rare Earth v. Deptt. of Mines & Geology [(2004)
2 SCC 783], this Court observed that maxim actus curiae neminem
gravabit requires that the party should be placed in the same
position but for the court›s order which is ultimately found to be not
sustainable which has resulted in one party gaining advantage which
otherwise would not have earned and the other party has suffered
but for the orders of the court. The successful party can demand the
delivery of benefit earned by the other party, or make restitution for
what it has lost. This Court observed : (SCC pp. 790-91, paras 10-11)
“10. In … the doctrine of actus curiae neminem gravabit and
held that the doctrine was not confined in its application only
to such acts of the court which were erroneous; the doctrine is
applicable to all such acts as to which it can be held that the
court would not have so acted had it been correctly apprised
of the facts and the law. It is the principle of restitution that is
attracted. When on account of an act of the party, persuading
the court to pass an order, which at the end is held as not
sustainable, has resulted in one party gaining advantage which
it would not have otherwise earned, or the other party has
suffered an impoverishment which it would not have suffered,
but for the order of the court and the act of such party, then
the successful party finally held entitled to a relief, assessable
1012 SUPREME COURT REPORTS [2023] 15 S.C.R.
in terms of money at the end of the litigation, is entitled to be
compensated in the same manner in which the parties would
have been if the interim order of the court would not have been
passed. The successful party can demand : (a) the delivery of
benefit earned by the opposite party under the interim order of
the court, or (b) to make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment [Karnataka
Rare Earth v. Department of Mines & Geology, WPs No.. 4030-
4031 of 1997, order dated 1-12-1998 (KAR)] of the High Court,
if the appellants would not have persuaded this Court to pass the
interim orders, they would not have been entitled to operate the
mining leases and to raise and remove and dispose of the minerals
extracted. But for the interim orders passed by this Court, there
is no difference between the appellants and any person raising,
without any lawful authority, any mineral from any land,
attracting applicability of sub-section (5) of Section 21. As the
appellants have lost from the Court, they cannot be allowed to
retain the benefit earned by them under the interim orders of the
Court. The High Court has rightly held the appellants liable to be
placed in the same position in which they would have been if this
Court would not have protected them by issuing interim orders.
All that the State Government is demanding from the appellants
is the price of the minor minerals. Rent, royalty or tax has already
been recovered by the State Government and, therefore, there is
no demand under that head. No penal proceedings, much less any
criminal proceedings, have been initiated against the appellants.
It is absolutely incorrect to contend that the appellants are being
asked to pay any penalty or are being subjected to any penal
action. It is not the case of the appellants that they are being
asked to pay the price more than what they have realised from
the exports or that the price appointed by the respondent State
is in any manner arbitrary or unreasonable.”
(emphasis in the original)
326. In A.R. Antulay [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 :
1988 SCC (Cri) 372], this Court observed that it is a settled principle
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1013
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
that an act of the court shall prejudice no man. This maxim actus curiae
neminem gravabit is founded upon justice and good sense and affords a
safe and certain guide for the administration of the law. No man can be
denied his rights. In India, a delay occurs due to procedural wrangles.
In A.R. Antulay [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988
SCC (Cri) 372], this Court observed : (SCC p. 687, para 102)
“102. This being the apex court, no litigant has any opportunity
of approaching any higher forum to question its decisions. Lord
Buckmaster in Montreal Street Railway Co. v. Normandin [1917
AC 170 (PC)] (sic) stated:
‘All rules of court are nothing but provisions intended to secure
the proper administration of justice. It is, therefore, essential that
they should be made to serve and be subordinate to that purpose.’
This Court in State of Gujarat v. Ramprakash P. Puri [(1969) 3 SCC
156 : 1970 SCC (Cri) 29] , reiterated the position by saying : (SCC
p. 159, para 5)
‘5. … Procedure has been described to be a handmaid and
not a mistress of law, intended to subserve and facilitate the
cause of justice and not to govern or obstruct it. Like all rules
of procedure, this rule demands a construction which would
promote this cause.’
Once judicial satisfaction is reached that the direction was not open
to be made and it is accepted as a mistake of the court, it is not only
appropriate but also the duty of the court to rectify the mistake by
exercising inherent powers. Judicial opinion heavily leans in favour
of this view that a mistake of the court can be corrected by the court
itself without any fetters. This is on principle, as indicated in Alexander
Rodger case [Alexander Rodger v. Comptoir D’Escompte De Paris,
(1969-71) LR 3 PC 465 : 17 ER 120] . I am of the view that in the
present situation, the court’s inherent powers can be exercised to
remedy the mistake. Mahajan, J. speaking for a four-Judge Bench in
Keshardeo Chamria v. Radha Kissen Chamria [(1952) 2 SCC 329 :
1953 SCR 136 : AIR 1953 SC 23] , SCR p. 153 stated : (AIR p. 28,
para 21)
1014 SUPREME COURT REPORTS [2023] 15 S.C.R.
‘21. … The Judge had jurisdiction to correct his own error without
entering into a discussion of the grounds taken by the decree-
holder or the objections raised by the judgment-debtors.’ ”
×××××
328. Reliance was placed on Neeraj Kumar Sainy v. State of U.P. [(2017)
14 SCC 136 : 8 SCEC 454] There, this Court observed that no one should
suffer any prejudice because of the act of the court; the legal maxim cannot
operate in a vacuum. It has to get the sustenance from the facts. As the
appellants resigned to their fate and woke up to have control over the events
forgetting that the law does not assist the non-vigilant. One cannot indulge
in the luxury of lethargy, possibly nurturing the feeling that forgetting is
a virtue. If such is the conduct, it is not permissible to take shelter under
the maxim actus curiae neminem gravabit. There is no dispute with the
aforesaid principle. Party has to be vigilant about the right, but the ratio
cannot be applied. In the opinion, the ratio in the decision cannot be applied
for the purpose of interpretation of Section 24(2).”
26. When a specialized forum is made available under a statute, a civil court
should normally entertain a dispute which would otherwise not be amenable
before the said forum. Therefore, rights and liabilities of the parties arising from
an enactment ought to be adjudicated upon in tune with the mechanism provided
thereunder. The reason being that the provisions of the enactment ought to be
given effect to through such forums and therefore to the exclusion of a civil
court whose jurisdiction is otherwise to be inferred. J. Willes in Wolverhampton
New Waterworks Co. v. Hawkesford [1859] 6 C.B. (NS) 336,
“One is where there was a liability existing at common law, and that
liability is affirmed by a Statute which gives a special and peculiar form
of remedy different from the remedy which existed at common law:
there, unless the Statute contains words which expressly or by necessary
implication exclude the common law remedy the party suing has his
election to pursue either that or the statutory remedy. The second class
of cases is, where the Statute gives the right to sue merely, but provides,
no particular form of remedy: there, the party can only proceed by action
at common law. But there is a third class, viz., where a liability not
existing at common law is created by a Statute which at the same time
gives a special and particular remedy for enforcing it ........ The remedy
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1015
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
provided by the Statute must be followed and it is not competent to
the party to pursue the course applicable to cases of the second class.”
(emphasis supplied)
27. As a principle of law, the powers of the civil court, being plenary
in nature, the onus lies on the party who contends that it lacks jurisdiction.
However, this does not take away the duty of the civil court to check its
own jurisdiction, more so when a specialized forum has come into being
as a creature of a statute. Of course, there may be certain exceptions
when fundamental principles governing common law, including the one
pertaining to the principle of natural justice, stand violated. To deal with
the said issue one has to take into consideration the objective behind the
enactment, along with the provisions contained thereunder. Dhulabhai
etc. v. State of Madhya Pradesh and Another, (1968) 3 SCR 662 : AIR
1969 SC 78,
“32. Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR
752 = (AIR 1964 SC 322) or Kamla Mills, 1966 1 SCR 64 = (AIR
1965 SC 1942) can be said to run counter to the series of cases earlier
noticed. The result of this inquiry into the diverse views expressed
in this Court may be stated as follows:
(1) Where the statute gives a finality to the orders of the special
tribunals the civil courts’ jurisdiction must be held to be excluded
if there is adequate remedy to do what the civil courts would
normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not
been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court,
an examination of the scheme of the particular Act to find the
adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil
court.
Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry
1016 SUPREME COURT REPORTS [2023] 15 S.C.R.
may be decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the
determination of the right or liability and further lays down that
all questions about the said right and liability shall be determined
by the tribunals so constituted, and whether remedies normally
associated with actions in civil courts are prescribed by the said
statute or not.
×××××
(7) An exclusion of the jurisdiction of the civil court is not readily
to be inferred unless the conditions above set down apply.”
(emphasis supplied)
The aforesaid decision of the Constitution Bench of this Court is also
followed in a catena of judgments including the one in M. Hariharasudhan
v. R. Karmegam, (2019) 10 SCC 94.
EFFECT OF REMOVING THE BASIS OF JUDGMENT
28. On the question of the effect of removal of the basis of the judgment,
once again, the distinction between a procedural and substantial law has
to be kept in mind. An adjudicating forum being a product of a procedural
right has to come under retrospective operation when an amendment is
introduced to cure a defect which paved the way for a decision of the Court
in holding otherwise. Madras Bar Association v. Union of India and
Another, (2022) 12 SCC 455,
“50. The permissibility of a legislative override in this country
should be in accordance with the principles laid down by this
Court in the aforementioned as well as other judgments, which
have been culled out as under:
50.1. The effect of the judgments of the Court can be nullified by
a legislative act removing the basis of the judgment. Such law can
be retrospective. Retrospective amendment should be reasonable
and not arbitrary and must not be violative of the fundamental
rights guaranteed under the Constitution. (Lohia Machines Ltd.
v. Union of India [Lohia Machines Ltd. v. Union of India, (1985) 2
SCC 197 : 1985 SCC (Tax) 245] ).
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1017
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
50.2. The test for determining the validity of a validating legislation
is that the judgment pointing out the defect would not have been
passed, if the altered position as sought to be brought in by the
validating statute existed before the Court at the time of rendering
its judgment. In other words, the defect pointed out should have
been cured such that the basis of the judgment pointing out the
defect is removed.
50.3. Nullification of mandamus by an enactment would be
impermissible legislative exercise (see S.R. Bhagwat v. State of Mysore
[(1995) 6 SCC 16 : 1995 SCC (L&S) 1334] ). Even interim directions
cannot be reversed by a legislative veto (see Cauvery Water Disputes
Tribunal [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC
96 (2)] ) and Medical Council of India v. State of Kerala [(2019) 13
SCC 185] .
50.4. Transgression of constitutional limitations and intrusion into
the judicial power by the legislature is violative of the principle
of separation of powers, the rule of law and of Article 14 of the
Constitution of India.”
(emphasis supplied)
RASHID WALI BEG (SUPRA)
29. This Court has taken note of the earlier decision rendered in
Ramesh Gobindram (Supra) and held that after the amendment made by
the Act 27 of 2013, the basis of the said decision is correctly removed. It was
further held that there are sufficient provisions even otherwise to maintain a
suit for eviction over a Wakf property. While giving our imprimatur to the
decision in Rashid Wali Beg (Supra), which in fact took into consideration
the decisions subsequent to Ramesh Gobindram (Supra), we do not wish
to elaborate much except quoting the following paragraphs,
“45. Interestingly, the basis of the decision in Ramesh Gobindram
[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC
726 : (2010) 3 SCC (Civ) 553] was removed through an amendment
under Act 27 of 2013. As we have stated elsewhere, Ramesh
Gobindram (Supra) sought to address the question whether a
1018 SUPREME COURT REPORTS [2023] 15 S.C.R.
Waqf Tribunal was competent to entertain and adjudicate upon
disputes regarding eviction of persons in occupation of what are
admittedly waqf properties. Since this Court answered the question
in the negative, Section 83(1) was amended by Act 27 of 2013 to
include the words, “eviction of tenant or determination of rights and
obligations of the lessor and lessee of such property”.
×××××
47. The upshot of the above discussion is that the basis of Ramesh
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] now stands removed
through Amendment Act 27 of 2013. In fact, when Ramesh
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was decided, Sections 6(1)
and 7(1) enabled only three categories of persons to approach the Waqf
Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the
waqf; or (iii) any person interested therein. However, the Explanation
under Section 6(1) clarified that the expression “any person interested
therein” shall include every person, who, though not interested in the
waqf, is interested in the property. But by Act 27 of 2013 the words,
“any person interested” were substituted by the words, “any person
aggrieved”, meaning thereby that even a non-Muslim is entitled to
invoke the jurisdiction of the Tribunal. Due to the substitution of
the words “any person aggrieved”, Act 27 of 2013 has deleted the
Explanation under 6(1). This amendment has also addressed the
concern expressed in Ramesh Gobindram [Ramesh Gobindram v.
Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ)
553] (in para 21 of the SCC report) whether a non-Muslim could be
put to jeopardy by the bar of jurisdiction, merely because the property
is included in the list of waqfs. We must point out at this stage that the
Explanation under sub-section (1) of Section 6, as it stood at the time
when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun
Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was decided,
already took care of this contingency, but was omitted to be brought
to the notice of this Court.
×××××
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1019
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
64. We have already seen that it is not as though there was no
provision in the Waqf Act conferring jurisdiction upon the
Tribunal in respect of the waqf property. We can break the
first part of Section 83 into two limbs, the first concerning the
determination of any dispute, question or other matter relating
to a waqf and the second, concerning the determination of any
dispute, question or other matter relating to a waqf property.
After Amendment Act 27 of 2013, even the eviction of a tenant
or determination of the rights and obligation of the lessor
and lessee of such property, come within the purview of the
Tribunal. Though the proceedings out of which the present
appeal arises, were instituted before the Amendment Act, the
words “any dispute, question or other matter relating to a waqf
or waqf property” are sufficient to cover any dispute, question
or other matter relating to a waqf property. This is why Ramesh
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was sought to be
distinguished both in Anis Fatma Begum [W.B. Wakf Board v.
Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC (Civ)
773] and Pritpal Singh [Punjab Wakf Board v. Pritpal Singh, 2013
SCC OnLine SC 1345] and such distinction was taken note of in
Akkode Jumayath Palli Paripalana Committee [Akkode Jumayath
Palli Paripalana Committee v. P.V. Ibrahim Haji, (2014) 16 SCC
65 : (2015) 3 SCC (Civ) 446]. Additionally, this Court in Kiran
Devi [Kiran Devi v. Bihar State Sunni Wakf Board, (2021) 15
SCC 15 : 2021 SCC OnLine SC 280], refused to apply the ratio
of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun
Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553], on the
ground that the suit was originally instituted before the civil
court, but was later transferred to the Waqf Tribunal and that
after allowing the order of transfer to attain finality, it was not
open to them to resurrect the issue through Ramesh Gobindram
[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8
SCC 726 : (2010) 3 SCC (Civ) 553].
65. It is well settled that the court cannot do violence to the
express language of the statute. Section 83(1) even as it stood
1020 SUPREME COURT REPORTS [2023] 15 S.C.R.
before the amendment, provided for the determination by the
Tribunal, of any dispute, question or other matter (i) relating to
a waqf; and (ii) relating to a waqf property. Therefore to say that
the Tribunal will have jurisdiction only if the subject property
is disputed to be a waqf property and not if it is admitted to be
a waqf property, is indigestible in the teeth of Section 83(1).”
(emphasis supplied)
30. On a proper analysis of the said decision, we have no hesitation in
holding that the Wakf Tribunal has got sufficient jurisdiction to try every suit
pertaining to either a Wakf or a Wakf property, notwithstanding the nature
of relief concerned, except as mandated under the statute.
31. We would like to consider one more issue by drawing a distinction
between institution and adjudication. Institution of a suit before a forum
where an adjudication process is the same as the other, insofar as the rights
and liabilities are concerned, has got no relevancy when subsequently either
an act or amendment has been brought forth conferring the jurisdiction to
some other forum. In other words, the issue for consideration is the forum
to adjudicate. This principle is subject to the rider that it may not have an
application when there is already a decree where a party has not raised the
issue of jurisdiction at any point before.
ON FACTS
32. The High Court while passing the impugned order, unfortunately
did not have the benefit of the decision rendered in Rashid Wali Beg
(Supra). Even otherwise, as per the amendment by way of the Act 27 of
2013, the jurisdiction now lies with the Wakf Tribunal. Respondent no(s).
1 and 2 have continuously put spokes on the wheels of justice as protracted
proceedings have helped them to be in possession for over two decades,
notwithstanding the expiry of the lease way back in the year 1999. We
do not wish to say much on the conduct of respondents no(s). 1 and 2 as
the facts narrated speak for themselves. The Act 27 of 2013 is certainly a
procedural amendment and therefore, has to be applied retrospectively in
the context of change of forum and jurisdictional provisions. As stated, we
are in respectful agreement with the decision rendered in Rashid Wali Beg
(Supra). The amendment has been brought forth in order to get over the
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 1021
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
interpretation given in Ramesh Gobindram (Supra). Therefore, we have
no hesitation in setting aside the order impugned passed by the High Court
in C.R.P. No. 1264 of 2021 dated 23.11.2021, by restoring the one passed
by the Executing Court, i.e. the Court of the III-Additional Chief Judge,
City Civil Court at Hyderabad in E.P. No. 29 of 2014 dated 10.08.2021.
The appeal stands allowed. No costs.
Headnotes prepared by: Appeal allowed.
Divya Pandey
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