- (1.) HEARD learned counsel for the parties.
(2.) IN our opinion the petitioner has an alternative remedy of approaching the Waqf Tribunal constituted under Section 83 of Waqf Act, 1995. The petition is dismissed on the ground of availability of alternative remedy. However, if the petitioner approaches the Waqf Tribunal within three weeks from today his application will be entertained without raising any objection of limitation and shall be disposed of expeditiously in accordance with law after hearing the parties concerned. Learned counsel for the petitioner submitted that the dispute in this writ petition cannot be adjudicated upon by the Tribunal under the Waqf Act because no order has been passed under the Waqf Act. In our opinion the scope of Section 83 is very wide. Section 83 (1) states that the Tribunal can adjudicate any dispute, question or other matter relating to a Waqf or Waqf property under this Act. The words "any dispute, question or other matter relating to Waqf or Waqf Property" are very wide words and hence in our opinion all matters relating to a Waqf or Waqf property can be adjudicated upon by the Tribunal constituted under Section 83 of the Waqf Act, 1995. We do not agree that the Tribunal will only get jurisdiction when an order is passed under the Waqf Act. The words `under this Act' in Section 83 (1) refer to Waqfs or Waqf property covered by Section 3 (r) of the Act and they do not relate only an orders passed under the Act. The Waqf Act, 1995 is a comprehensive enactment dealing with Waqfs, as mentioned in para 5 of its Statement of Objects and Reasons. Para 6 (1) of the Statement of Objects and Reasons states that the Waqf Tribunal will consider questions and disputes pertaining to Waqfs. A Waqf is defined in Section 3 (r) of the Act as follows: - " (1) "waqf" means the permanent dedication by a person professing. Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes - (i) a waqf by user but such waqf shall not cease to be a waqf by reason only if the user having ceased irrespective of the period of such cessor; (ii) "grant", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and "waqf" means any person making such dedication. "
(3.) IN our opinion a purposive interpretation must be given to Section 83 of the Waqf Act 1995. As Lord Denning has pointed out in his book, 'the Discipline of Law' in modern times the literal rule has been replaced by the purposive rule, that is the rule of seeking the intention of the Legislature. This is also the view of our Supreme Court and High Courts vide Directorate of Enforcement v. Deepak Mahajan 1994 (3) SCC 440, Hindustan Lever Ltd v. Ashok Vishnu Kate; 1995 (6) JT 625 (631), Udai Shanker Singh v. Branch Manager LIC; 1998 (33) AIR 302, Administrator, Municipal Corporation v. Dattatraya Dahankar (1992) 1 SCC 361, etc. In Administrator, Municipal Corporation v. Dattatraya Dahankar (supra), the Supreme Court observed, "the mechanical approach to construction is altogether out of step with the modern positive approach. The modern positive approach is to have a purposeful construction that is to effectuate the object and purpose of the Act. " Similarly, in Director of Enforcement v. Deepak Mahajan (supra), the Supreme Court observed, "in given circumstances, it is permissible for Courts to have functional approach and look into the legislative intention and sometimes it may be given necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile. ";