ORDER
P. Venkatarama Reddi, J
1. The petitioners herein are the defendants in suit OS No.4767 of 1996 filed by the 3rd respondent in the City Civil Court. The 3rd respondent-plaintiff is said to be the Mutawalli of a Wakf governed by the Wakf Act, 1995. The suit was filed for ejectment and recovery of mesne profits. The suit which was filed on 6-11-1996 long after the Wakf Act, 1995 came into force is pending in the Court of XIX Junior Civil Judge, City Civil Court, The trial had commenced and PW1 was examined. At that stage, the writ petitioners raised an objection that the suit cannot be continued in the civil Court inasmuch as the civil Court has no jurisdiction to deal with the matter falling within the purview of Wakf Tribunal constituted under the said Act. This contention was not accepted by the learned trial Judge, basing on the circular of the High Court in Roc.No,2960/El/98, dated 13-7-1999. Paras 2 and 3 of the Circular read as follows:
“The suits or other proceedings involving determination of dispute or question relating to Wakf or Wakf property or other matters falling within the purview of the Wakf Tribunal cannot be
entertained by the civil Courts, when once the Wakf Tribunal is constituted. (vide Sections 83 and 85 of the Wakf Act, 1995).
The High Court of Andhra Pradesh hereby directs all the civil Courts in the State to return the plaints/petitions instituted on or after 1-7-1997, so as to enable the parties to present them before the Andhra Pradesh Wakf Tribunal, Hyderabad, after giving notice to the Counsel and hear them if there is any dispute as regards the maintainability of the suit and then take appropriate steps.”
Assailing the correctness of the circular and seeking a direction to the Junior Civil Judge to transfer the suit to Andhra Pradesh Wakf Tribunal, the present writ petition is filed.
2. Though the Act came into force on 1-1-1996 and the Act provided for constitution of Tribunal, actually, the Tribunal was constituted by the State Government by Government Order No.88, Minorities Welfare Department dated 20-6-1997 with effect from 1-7-1997. A Judicial Officer of the rank of District Judge was posted some time later and the Tribunal is now functioning. In several Central and State enactments wherein an exclusive Tribunal is created for the purpose of dealing with the specified matters, provision is made for the transfer of pending cases, for example, Section 29 of Administrative Tribunals Act, Section 8 of Family Courts Act, Section 31 of Recovery of Debts due to the Banks and Financial Institutions Act, etc. But, no such provision is: found in the Wakf Act.
3. Then, the question is what is the position of the suits or other proceedings instituted between 1-1-1996 and 30-6-1997? The contention of the learned Counsel for the petitioners is that in view of the express
bar created by Section 85 of the Act, the civil Court cannot proceed with the matter because its jurisdiction has been taken away by that provision and therefore either plaint should be returned for presentation in the proper Court or if that cannot be done, the suit will have to be dismissed on the ground of want of jurisdiction and the plaintiff will have to institute a fresh suit in the Wakf Tribunal. It is therefore submitted that the plaints/petitions instituted after 1-7-1997 involving disputes or questions relating to Walkf or Wakf property or other allied matters, should be returned to the parties to enable them to present them in the Wakf Tribunal and that the circular issued by the High Court is contrary to Section 85 of the Act. The Counsel for the 3rd respondent supports the circular of the High Court and submits that the suits or proceedings instituted in the City Civil Court even if they relate to matters pertaining to Wakf or Wakf property should only be presented in the civil Court in the absence of Wakf Tribunal and such suits or proceedings will continue to be dealt with by the civil Court. He also questions the bona fides of the petitioners in taking up an objection after the trial commenced and plaintiff’s evidence was adduced.
4. The learned Additional Advocate-General appeared on Court notice and assisted the Court. We are therefore benefited by his arguments apart from the arguments advanced by the learned Counsel on both sides. The crucial provisions to be noticed are Sections 85 and 83 and 7 of the Wakf Act.
“85. Bar of jurisdiction of civil Courts :–No suit or other legal proceeding shall lie in any civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.
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 other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a wakf 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 on such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other mater relating to the wakf.
(3) Where any application made under sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallies of the wakf 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 jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having
jurisdiction, and, or 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 is necessary in the interests of Justice to deal with the application afresh.
(4) Every Tribunal shall consist of one person who shall be a member of the State Judicial Service holding rank, not below that of a District, Sessions or Civil Judge, Class 1, and the appointment of every such person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil
Procedure, 1908, while trying a suit, or executing a decree or order.
(Rest is omitted.)…..
Section 7: Power of Tribunal to determine disputes regarding wakfs :–(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:
Provided that-
(a) in the case of the list of wakf is relating to any part of the State and published after the commencement of this Act, no such application shall be entertained after the expiry of one year
from the date of publication of the list of wakfs; and
(b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately proceeding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement;
Provided further that where such question has been heard and finally decided by a civil Court in a suit instituted before such commencement, the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5) no proceeding under this section in respect of any wakf shall be stayed by any Court, Tribunal or other authority by; reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party to any application under sub-section (1).
(4) The list of wakf and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1) the list as modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in a civil Court under sub-section (1) of Section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit proceeding or appeal, as the case may be.”
5. It is true as pointed out by the learned Additional Advocate-General and also the learned Counsel for the petitioners, on the plain language of Section 85, the bar against the entertainment of suit seems to arise on and from the date of the commencement of the Act. The moment the Act came into force, the bar operates, prima facie. The fundamental postulate of Section 85 read with the other relevant provisions is that the Wakf Tribunal shall be a substitute for the civil Courts in respect of matters required to be dealt with by the Tribunal under the Act. The Scheme of the Act contemplates and unfolds the intention of the Legislature in clearest terms that the obliteration of the jurisdiction of the civil Court and the creation of the Tribunal to take over the exclusive jurisdiction confided to it is a simultaneous process. No vacuum or hiatus could have been intended by the Legislature. The delay in the constitution of the Tribunal just as it has happened in this State, would not have been foreseen by the Legislature. Surely, it could not have been the intention of the legislature that the existing remedy or recourse to civil Court should be extinguished as a first step and that remedy should be made available only when the Wakf Tribunal is set up. What should be the remedy of the aggrieved party or Institutions of Wakf during the intervening period? Should they indefinitely wait in order to pursue their remedy till the State Government issues a notification constituting the Tribunal? In the instant case, the Tribunal was constituted 1 1/2 years after the Act came into force which is fairly a long period. If the aggrieved persons or Institutions are left without any remedy to move the Court or a judicial body during this period, absurd and unintended results would follow. Such consequences are manifestly contrary to the legislative intention. Not only that, even the provision i.e.. Section 85 would be vulnerable to attack on the ground of infringement of Article 14 inasmuch as a particular class of litigants
would be left without remedy to prevent invasion of their rights recognised by law on account of sheer delay in constitution the Tribunal. Obviously, such construction should be avoided. Literal interpretation should yield to purposive construction and a construction which preserves the Constitutionality of the provision. The fact that the provision for transfer of cases from the civil Court to the Wakf Tribunal is not provided for in the Act is also a pointer to the legislative intention that the suits filed earlier to the constitution of the Tribunal shall continue to be dealt with by the civil Court. We are therefore of the view that in the interests of imparting rationality to the provision and accomplishing the Legislative object, Section 85 has to be qualified by the words “after the constitution of the Tribunal” immediately after the words “should lie”. No doubt by doing so, the literal construction is eschewed and certain words which are really implicit are read into the section. But such reading and interpretation is not an impermissible exercise. As long back as in 1955, the Supreme Court in Tirath Singh v. Bachittar Singh, , laid down that in order to avoid absurd and anomalous consequences, there could be addition or modification of the words.
6. The addition of qualifying words as mentioned supra would result in reading down the wide sweep of the embargo laid down in Section 85. Reading down a legal provision to save it from unconstitutionality or unjust or absurd consequences or even to make it sub-serve its avowed purpose has now come to be recognised as an effective tool of statutory interpretation. To cite a few recent examples of such reading down, we may refer to the decisions in Dy CTO v. Coromandal Pharmaceuticals, , B.R. Enterprises v. State of Uttar Pradesh, , Madan Sigh v. Union of India, . In Sunil Batra v. Delhi
Administration, AIR 1978 SC 1675, the rule of reading down and reading wide was acclaimed as an integral part of interpretational engineering.
7. In the light of the foregoing discussion, we uphold the circular of the High Court and hold that the plaint in the suit referred to above need not be returned, nor the suit be transferred to Wakf Tribunal. It can be dealt with by the civil Court. The writ petition is therefore dismissed. No costs.
