Is it Judicial Myopia or Prudence?

Being a novice into the field of Justice System, I fail to understand certain aspects of the Judicial reasoning... And rightly so, lest the course would have been superfluous!

As per the common understanding each Judgment coming out from the Apex Court of the country should be impeccable pieces of Judicial understanding, unquestionable by clear rationality and backed by Judicial enactments.

Having said that, I would draw attention to a Judgment of yesterday. (23-11-10)

Download it Here

Board of Wakf, West Bengal v. Anis Fatma Begum & Anr.

Crux of the Case:

The dispute pertains to the Wakf estate of Shahzadi Begum which was created by a Registered Deed of Wakf dated 22.09.1936 by one late Shahzadi Begum. By the said Wakf Deed the Wakf was created with the object of dedicating the property being Premises No. 33, Shakespeare
Sarani, (formerly Theatre Road), Calcutta-700 017, partly for the benefit of the Wakifa, her family and descendants and partly for pious and religious purposes...

Suit No. 488 of 1999 was filed in Original Summons jurisdiction for
answers to be given for the following two questions:

1) Whether the demarcation of the Wakf property being Premises No. 33, Shakespeare Sarani, Calcutta – 700 017, made as above in dividing the said property in two distinctive parts, one for
Wakf-al-al-aulad and the remaining portion for pious and religious purposes, is correct and has been made in consonance with the provisions of the Wakf Deed ?
2) Whether the Wakf Act, 1995 is applicable for the portion of the said property divided and earmarked for Wakf-al-al-aulad ?

By the order dated 30.02.2000 the Learned Single Judge answered the first question in the negative and the second question in the affirmative.

However, in appeal, the Division Bench by the impugned judgment has answered both the questions in the negative. Hence, this appeal.

It was submitted by Dr. Rajeev Dhawan, learned Senior Counsel appearing for the appellant, that only the Wakf Tribunal has jurisdiction in the matter under the Wakf Act, 1995 and hence the Suit filed in the High Court was without jurisdiction. We agree.

Judgment: For the reasons mentioned above, the impugned judgment of the Calcutta High Court cannot be sustained and it is hereby set aside. We hold that only the Wakf Tribunal has jurisdiction in the matter and the parties can approach the Wakf Tribunal, if so advised.

Now the points of my contention are:

The court lays down the reasons for the inactment of Wakf Act, and Tribunal as follows:

The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special
Tribunal has been constituted for deciding such matters.

Now, this particular case has been filed in the Civil Courts, considered by a Single Judge of the High Court, and on appeal again considered by a Division Bench. And again appeal to the Supreme Court.

Now the Supreme Court finds it should have been filed first in the Wakf Tribunal and only thereafter to the civil courts. Right view.

But anyway it has been brought up into civil courts. Already considered twice in High Court by Single Judge and Division Bench. The time that was supposed to have been saved by the formation of the Wakf Tribunal has already been expended. Now what is the point in referring it back to Wakf Tribunal?

Tribunal was constituted not because the High Court was incompetent to sit in judgement over the matter but merely to save time.

This case now goes back to Wakf Tribunal, and might come up again to the Civil Courts on appeals and finally to Supreme Court. Where have we saved time in this case?

Is it some sort of Myopia or Judicial Prudence? Enlighten me...