Final Order:-

1. Heard both sides.

2. Municipal Corporation, Pune is taking exception to the order rejecting it’s application for setting aside no written statement order passed on 25.09.2023 in Wakf Suit No.103 of 2019.

3. Respondent No.1 has filed suit for declaration and injunction, challenging action of the Municipal Corporation calling upon it to remove unauthorized construction. Due to persistent default on the part of the applicant in filing written statement within stipulated period order of no written statement came to be passed on 06.09.2019. It is sought to be revoked vide application Exh.31 filed on 08.09.2023 which is accompanied by written statement. By impugned order application stands rejected.

4. Learned counsel Mr. Chapalgaonkar appearing for Corporation submits that reasons have been specifically mentioned in the application which would constitute sufficient ground for permitting it to file written statement. It is submitted that Tribunal adopted hyper technical approach and pedantic view in rejecting the application. It is further submitted that the proceedings were transferred to circuit Bench at Pune which was not informed to the Corporation. There are no lapses on the part of the Corporation. The filing of the written statement under Civil Procedure Code (hereinafter referred to as “CPC”) as well as under Maharashtra State Wakf Rules of 2022 are directory in nature and flexible. It is further submitted that the reasons assigned by the Tribunal is perverse.

5. Per contra, Mr. Mustafa supports impugned order. He would submit that application Exh.31 is filed in very casual manner. It is submitted that proceedings were never transferred to Pune and Tribunal is justified in holding that Officers of Corporation failed to keep track with the proceedings. It is further submitted that the explanation is not adequate in the wake of the fact that the delay is inordinate.

6. Learned counsel Mr. Deshmukh appearing for the respondent would support contention of respondent No.1.

7. Applicant/Corporation appeared before the Tribunal on 16.05.2019 and sought time to file written statement. Time was granted. Thereafter, order of no written statement was passed on 06.09.2019 which is sought to be challenged by application Exh.31 filed on 08.09.2023. Application Exh.31 spells out the reasons for not filing written statement within stipulated time.

8. Both sides cited certain judgments to support their contentions in respect of the mandate of filing written statement. In the matter of Atcom Technologies Ltd. Vs. Y. A. Chunawala and Co. and others (Civil Appeal Nos.4266-4267 of 2018), Supreme Court had occasion to consider that the provisions of Order VIII Rule 1 of CPC are directory in nature and the inherent discretion of Courts in condoning certain delay has not been dispensed with. The principles are reiterated by Apex Court in Desh Raj Vs. Balkishan (Dead) through proposed L.R Ms. Rohini ; (2020) 2 Supreme Court Cases 708. It is profitable to refer to following paragraph :

                   “15. However, it would be gainsaid that although the unamended Order VIII Rule 1 of Code of Civil Procedure is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. The legislative objective behind prescription of timelines under the Code of Civil Procedure must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays Under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay.”

9. This Court cannot be oblivious of the caution given by Apex court in paragraph No.19 of this judgment.

10. When the application Exh.31 was filed written statement was annexed with it. It is rightly contended by the respondent that there is inordinate delay. From the reasons assigned by the Corporation, no malafides can be attributable to it for not filing written statement within time. The proceedings are instituted at Aurangabad and the possibility of losing track of the matter cannot be ruled out. The Tribunal as well as High Court have discretion to condone delay if case of exceptional circumstances are made out by the party.

11. My attention is adverted to Rule 52 of Rules of 2022 which provides timeline for filing written statement. The relevant provision is as follows :

                   “52. Other procedure to be followed by Tribunal .–

                   (1) …..

                   (2) …..

                   (3) …..

                   (4) …..

                   (5) …..

                   (6) …..

                   (7) …..

                   (8) …..

                   (9) …..

                   (10) Written statement to the application preferred before the Tribunal may not be entertained from the respondent after sixty days have elapsed from the date of filing the application.

                   Provided that, if the Tribunal is satisfied that the respondent was prevented by sufficient cause from filing the written statement within the said period of sixty days, it may entertain the written statement within a further period of thirty days, but not thereafter.”

12. Sub Rule 10 is ambiguous and vulnerable. More than one interpretations are possible and confusion is likely to be created. It is absurd to call upon the defendant to file written statement within 60 days from the date of filing application. The vital interregnum event of service of summons and appearance of the defendant is lost sight of.

13. It is necessary to consider Section 83 of Wakf Act. Following is relevant extract:

                   “Section 83. Constitution of Tribunals, etc.—

                   (1) …..

                   (2) …..

                   (3) …..

                   (4) …..

                   (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 (5 of 1908), while trying a suit, or executing a decree or order.

                   (6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.

                   (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.”

14. The provisions of CPC are made applicable to the proceedings before the Tribunal. Its Order VIII governs filing of the written statement. Rule 52 (10) of Rules of 2022 is inconsistent with Order VIII Rule 1. In case of such a repugnancy the provisions of CPC would prevail. No any other view has been pointed out to disclose that the Rules of 2022 would get the preference. I am of the considered view that the procedure prescribed by CPC has been specifically made applicable by Parent Act and in case of any repugnancy the provisions of CPC shall prevail.

15. It is apposite to refer to law laid down by Supreme Court in the matter of Sarbananda Sonowal Vs. Union of India reported in (2007) 1 Supreme Court Cases 174. The trite principle that subordinate legislation should be in consonance with substantive law has been stated in following words :

                   “52. Another aspect of the matter cannot also be lost sight of. The 2006 Order is a subordinate legislation. It cannot, thus, violate a substantive law made by the Parliament.

                   53. In Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors., this Court observed : (SCC P. 337, para 17)

                   "17. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by the Parliament or the State Legislature."

                   It was further stated : (SCC pp. 340-41, paras 28-31)

                   "28. The Rules in terms of sub-section (1) of Section 29 of the Act, thus, could be framed only for the purpose of carrying out the provisions of the Act. Both the power to frame rules and the power to impose terms and conditions are, therefore, subject to the provisions of the Act. They must conform to the legislative policy. They must not be contrary to the other provisions of the Act. They must not be framed in contravention of the constitutional or statutory scheme.

                   29. In Ashok Lanka and Another v. Rishi Dixit and Others, it was held: (SCC p.622, para 57)

                   "We are not oblivious of the fact that framing of rules is not an executive act but a legislative act; but there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rule-making power contained in Section 62 of the Act."

                   30. In Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group & Ors., this Court has stated the law in the following terms: (SCC p. 488, para 104)

                   "104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith."

                   31. In Craies on Statute Law, 7th edition, it is stated at page 297-98:

                   "The initial difference between subordinate legislation (of the kind dealt with in this chapter) and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority, and that courts of law, as a general rule, will not give effect to the rules, etc., thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the courts, the validity of delegated legislation as a general rule can be. The courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation : and it follows that the court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials."

16. In the present case also, the Rules of 2022 is a sub- ordinate legislation enacted under Section 109 of Old Act. They have to be in conformity not only with the parent Act but legislative intent and constitutional policy. Rule 52(10) does not qualify the test referred above. It is inconsequential. I find that the approach of the Tribunal is pedantic. The delay should have been condoned by imposing cost. I pass following order :

ORDER

(i) Civil revision application is allowed.

(ii) Impugned order is quashed and set aside. Application Exh.31 shall stand allowed and the written statement filed along with it shall be taken on record.

(iii) Applicant/Corporation shall pay cost of Rs.40,000/- to respondent No.1 within a period of three (3) weeks from today which shall be condition precedent.

(iv) It would be open for respondent No.1 to furnish the account details so as to enable the Corporation to deposit the amount.

(v) The appellant/Corporation shall co-operate for the expeditious disposal of the suit.