Suit for eviction of a tenant in the State of U.P. is cognizable by Judge Small Cause under the Provincial Small Cause Act, 1971. Thus, such cases have been taken out of jurisdiction of regular civil courts and have been entrusted to Small Cause Courts for ensuring early adjudication.
39. Learned counsel would submit that in view of the amendment in the Act after terminating tenancy, tenant becomes liable for ejectment and proceeding for eviction will be undertaken under the Wakf Act (as amended in 2013). Consequently, the civil court, namely, Small Cause court will have no jurisdiction and since the decree passed by Small cause court, impugned in the revision, is without jurisdiction, same deserves to be set aside.
46. Thus, it is manifest that by means of The Wakf (Amendment) Act, No. 27 of 2013 word "encroacher" was defined and power has been given to Wakf Tribunal to pass order of eviction. This amendment does not say anything about the pending proceeding.
47. Suit was filed on 20th March, 2009. Amendment has come into force on 1st November, 2013. Will amendment apply to the pending cases? There is no saving Clause in Amendment Act. There is nothing in the Act which makes the Amending Act retrospective.
48. Section 5 of The Wakf (Amendment) Act, No. 27 of 2013 says that " In section 3 of the principal Act (I) after clause (e), the following clause shall be inserted, namely (ee) "encroacher" means any person or institution, public or private occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board. There is no indication that this clause was sought to be made retrospective.
49. Similarly, Section 32 of the Amending Act whereby it amends Section 54 of the principal Act, says nothing that makes it retrospective. Even otherwise declaring somebody an encroacher amounts to declaring the character of a person which ordinarily cannot be done retrospectively. There is no contrary legislative intention discernible from the language of the provision.
50. Amendment of Section 54 further contemplates that application to the Tribunal for grant of order of eviction or removing shall be moved which means that Tribunal will start working prospectively. Section 54 (4) of the Act makes this position further clear and shows that Tribunal will work prospectively.
51. Section 56 of the Amending Act gives the overriding effect. Section 108A does not say anything about the pending proceedings. Consequently, proceedings which are pending on the date of amendment will continue to be dealt with in accordance with the prevalent law.
52. It is evident that by virtue of amendment, specific jurisdiction has been conferred on the Tribunal. Obviously, this will be prospective and in the absence of any provision for transfer of pending cases to the Tribunal, same will continue to be dealt with by the courts in accordance with the prevalent law and amendment at the most can take effect from 01.11.2013.
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
S.C.C. Revision No. 62 of 2015
Decided On: 09.10.2015
Sageer Ahmad Vs. Wakf Masjid Mohalla-Kazipura Wakf No. 9 and Ors.
Hon'ble Judges/Coram:
S.K. Saxena, J.
Citation: MANU/UP/1509/2015
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