1. Being aggrieved and dissatisfied by the order dated 28.10.2021 passed by the Gujarat State Waqf Tribunal in Waqf Application No. 67 of 2017, the applicants had moved this Court under Section 115 of the Civil Procedure Code for quashing and setting aside the impugned order.

2. This Court has heard the arguments advanced by the learned advocate Mr. Rutvij Oza for Mr. Javed Qureshi for the applicants and learned advocate Mr. Manish Shah for respondent No.1. So far as learned advocate Mr. Saquib Ansari appearing for respondent No.2 is concerned, learned advocate for the applicant has stated that learned advocate Mr. Saquib Ansari for respondent No.2 has given consent, so far as the judgment of this Court in the case of Ashrafbhai Noorbhai Khalifa Vs. State of Gujarat recorded on Civil Revision Application Nos. 474 of 2021 to 476 of 2011 dated 17.02.2022, wherein the case was remanded back.

3. Rule returnable forthwith. Learned advocate Mr. Manish Shah and learned advocate Mr. Saquib Ansari waive service of notice of rule on behalf of respective respondents.

4. Since this application raised a issue with regard to authority and jurisdiction of Gujarat State Waqf Tribunal determining the proceedings in respective cases by Chairman and one member of the Tribunal, can it be said to be an order passed by duly constituted Tribunal under the Waqf Act, 1995 (for short ‘the Act’).

5. Learned advocate Mr. Rutvij Oza with Mr. Javed Qureshi for the applicants submitted that the order impugned before this Court is passed by chairman as also one member of the Gujarat State Waqf Tribunal, which is without jurisdiction, and therefore, it is required to be interfered with under the revisional jurisdiction of this Court under sub section (9) of Section 83 of ‘the Act’.

5.1 Drawing attention of the Court to Section 83 of ‘the Act’, he submitted that the State Government may constitute as many Tribunals as it may think fit by notification in the Official Gazette, for determination of any dispute, question or other matter relating to and covered under ‘the Act’ and define the local limits and jurisdiction of such Tribunals. Drawing attention of the Court to sub section (4) of Section 83 of ‘the Act’, he submitted that every Tribunal shall consist of a chairman necessarily a Judicial Officer, not below the rank of a District, Sessions or Civil Judge, Class -I, a member to be an officer from State Civil Services equivalent in rank to that of the Additional District Magistrate and a member as a person having knowledge of Muslim law and jurisprudence. Therefore,according to his submission, each Tribunal shall consist of in all three persons, one judicial officer shall act as chairman or two other member as defined under ‘the Act’. Therefore, it is submitted that unless and until a case is determined by duly constituted Tribunal i.e. by all the three members, it is a decision by “coram non judice” and can be branded as an order without jurisdiction. He has further submitted that the impugned order is determined by only two persons i.e. a Chairman and a member. Therefore, it is submitted that the judgment and order impugned is nonest and passed by a Tribunal not duly constituted under ‘the Act’, for the determination of the issue before it.

5.2 Therefore, it is submitted that the impugned judgment and order is required to be quashed and set aside and the matter is required to be remanded back for the purpose of decision afresh by duly constituted Tribunal under sub section (4) of Section 83 of ‘the Act’.

6. As against that, learned advocate Mr. Manish Shah appearing for respondent No.1 – Waqf Board as also learned advocate Mr. Saquib S. Ansari for respondent No.2 have, in one voice, submitted that the impugned judgment and order lack in jurisdiction as they are not passed by duly constituted Tribunal under ‘the Act’. Mr. Manish Shah, learned advocate for respondent No.1 – Waqf Board submitted that with the appointment of a member to the Gujarat State Waqf Tribunal vide Notification dated 27.12.2021, now a Tribunal is duly constituted under ‘the Act’. The copy of Notification issued by the Under Secretary to Government, Legal Department, dated 27.12.2021, notifies appointment of Mr. Mukesh Pandya,Gujarat Administrative Service, Class-I (Senior Scale) as member of the Gujarat State Waqf Tribunal, is taken on record. So as on date from when Mr. Mukesh Pandya, took over charge as member of the Gujarat State Waqf Tribunal, the Tribunal can be said to be duly constituted under ‘the Act’.

6.1 Learned advocates appearing for the respective parties are unanimous on the issue of impugned judgment and order being passed by Tribunal, coram non judice. They have relied on precedents determining the very same issue by different High Courts like Telangana High Court and Calcutta High Court. Mr. Saquib Ansari learned advocate has relied on a decision of the Division Bench of Calcutta High Court in the case of Shree Hanuman Foundries Ltd. Versus Hem Ranjan Deb and others reported in 1965 SCC OnLine Cal 215, for the proposition that, even if, a case is heard on merit by two members out of three constituting Tribunal and ultimate conclusion is signed by all the three members, the said order can be said to be without jurisdiction. Drawing attention of the Court to para-25 of the very decision, it is submitted that for arriving at such conclusion, the Calcutta High Court has relied on two decisions of the Supreme Court.

6.2 According to their submissions, a Tribunal which is improperly or imperfectly constituted lacks jurisdiction, and its decision is void and liable to be quashed. He has further submitted that if the respective impugned judgment and order passed by improperly or imperfectly constituted Tribunal is quashed and set aside and matter is sent back to the Tribunal as it is having full coram now and duly constituted Tribunal under ‘the Act’ for a decision afresh, they have no objection.

7. Having heard the learned advocates appearing for the parties and considering the fact that now with the appointment of one more member to the Gujarat State Waqf Tribunal, as submitted by Mr. Manish Shah, learned advocate appearing for Waqf Board, State of Gujarat, as on date Tribunal is duly constituted under ‘the Act’. However, the impugned judgment and orders are not by the duly constituted Tribunal under ‘the Act’.

8. For consideration of the issue raised this application, it would be profitable to refer sub section (1) and (4) of Section 83 of ‘the Act’, which quote as under:

“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 waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.

(2) XXXXX…...XXXXX…..XXXXXX…

(3) XXXXX…...XXXXX…..XXXXXX…

(4) Every Tribunal shall consist of -

(a) one person, who shall be member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in the rank to that of the Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member, and the appointment of every such person shall be made either by name or by designation.]”

9. Under sub section (1) of Section 83 of ‘the Act’, the State Government is empowered to constitute as many Tribunals as it may think fit. If the said fact is to be read with constitution of a tribunal provided under sub section (4) of Section 83 of ‘the Act’, every Tribunal shall consist of a chairman and two members as provided therein. So if one or more Tribunals are constituted by the State Government, every Tribunal constituted under that authority shall consist of three members each, out of which, one would be a chairman being Judicial Officer. Thus, intention of the legislature is very clear that every tribunal shall be consisted of three members including chairman, as provided in sub section (4) of Section 83 of ‘the Act’. Reading whole section 83 of ‘the Act’, nowhere it permits any less number of members forming the tribunal to determine any dispute as stated in sub section (1) of Section 83. If decision by less number of members constituting tribunal to be treated as valid, it should have been provided under ‘the Act’ itself, despite constituting a tribunal of three members. Thus, intention of the legislature is very express when it constitutes a tribunal consisting of three members, one would be chairman necessarily to be a Judicial Officer and two members as mentioned in subsection (4) itself. When the provision in ‘the Act’ doesn’t permit any less number of member to determine an issue as a tribunal, the said order can be termed as an order without jurisdiction. When every tribunals constituted under ‘the Act’ to contain three members, if an issue is determined by members less than three, it can be termed to be an improperly or imperfectly constituted tribunal, lacking jurisdiction to decide the issue under ‘the Act’, as empowered under Section 83 of ‘the Act’.

10. ‘The Act’ doesn’t bar determining of issue under Section 83 by a Tribunal less than three members. However, at the same time, there is no express provision empowering even less members of the tribunal than the constituted tribunal for determining the dispute as covered under Section 83 of ‘the Act’, and therefore, if any decision is recorded by less number of members which may include or exclude a chairman, would be a decision without jurisdiction.

11. However, no deep and detail scrutiny, for the present, into the decision relied on, is needed as parties to the dispute also agreed to remand of the present cases for a decision afresh by duly constituted tribunal as it is now available as on date. Considering the provisions of ‘the Act’ as also the development which took place after the filing of the present application, respective impugned judgment and order is hereby quashed and set aside and the matter is remanded back to the Gujarat State Waqf Tribunal for a decision afresh in accordance with law by a duly constituted tribunal as aforesaid.

12. In view of the above discussions, the present application is required to be allowed and the same is allowed to the aforesaid extent. Rule made absolute. It is needless to say that on remand of this case, decision of the duly constituted tribunal shall be in accordance with law and without being prejudiced by the earlier decision rendered by it or the present order, and it shall determine the same in accordance with law after providing reasonable opportunity of hearing to all the parties concerned.