By A Mirsab, TwoCircles.net,
Delhi: The Supreme Court has directed all the states to straight away take steps for constituting a three-member Waqf tribunal and issue notification to that effect within four months.
A divisional bench of Supreme Court consisting of Justice M Y Eqbal and Justice C Nagappan on Tuesday issued these directions, while granting leave in five special leave petitions filed by the Lal Shah Baba Dargah Trust (Mumbai), Maharashtra State Board of Waqf, Mushtaque Ahmed Shaikh Fakhruddin, Shaikh Rahim & others and Javed Hamid Deshmukh. All these petitions were filed against Magnum Developers and others.
The court also upheld the Aurangabad-based single-member Waqf tribunal’s judgment dated June 29, 2015 granted in favour of Lal Shah Baba Dargah trust against the Mumbai-developer, restraining him from illegally developing property at Tawripada in Lalbagh, Mumbai.
The developer then filed a civil revision application before the Bombay high court against the tribunal’s interim order by challenging its jurisdiction.
On September 11, high court quashed and set aside the tribunal judgment stating that single member tribunal has no jurisdiction to try the cases after the Wakf Amendment Act, 2013 came into force in November 2013. Thus, all the decisions taken so far would be treated as null and void. It had ordered that the said application shall be decided by a civil court on its own merits.
In its 33-page judgment, the Apex Court on Tuesday set aside this order observing, “We are of the definite opinion that the High Court has committed serious error of law in holding that after 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 SC further observed that “the High Court further erred in law in directing the civil court to decide disputes in respect of Waqf property”.
Inferring that no party should suffer due to inaction of the state, SC said, “As per the amendment, the three-member tribunal is to be constituted by the state government by notification in official gazette. However, the state has not done its mandatory duty as provided under Section 83 of the Act.”
It said that it is a common practice that the old institution/member continues to exercise duty till the time any new institution/member takes charge of that duty and in the present case also the one-member tribunal will continue to exercise jurisdiction till the time the state constitutes a three-member tribunal by notification in official gazette.
The court then took serious exception to the conduct of states and who have not till date issued fresh notification constituting three member Tribunal as mandate by Section 83(4) of the Act and directed, “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.”
Advocate Javed Abdul Hameed Deshmukh, President of Maharashtra Waqf Tribunal bar Council expressed happiness over the Supreme Court judgment. “With this order, all the hurdles that were raised by parties sighting Amendments to the Act in 2013 come to the rest,” he told Twocircles.net.
Related:
Waqf cases be tried before civil court: Bombay HC