ORDER
S.C. Pande, J.
1. The applicant has filed an application purporting to be under Section 24 of the Code of Civil Procedure. In the prayer clause, it has not been mentioned in this application under Section 24 of the Code of Civil Procedure where the applicant wants the proceedings pending before the Madhya Pradesh Wakf Tribunal, Bhopal (henceforth 'the Tribunal') to be transferred.
2. The allegation made in the application for transfer under Section 24 of the Code of Civil Procedure shows that the Presiding Officer of 'the Tribunal' was a relative of the defendants-respondents Nos. 6 to 9 and, therefore, it is apprehended, that the applicant shall not get justice from Shri Majhar Ali, the Presiding Officer of 'the Tribunal'.
3. It is not in dispute that the suit property is used as a Kabristan (grave yard). Initially a suit was filed before the Court of 7th Additional District Judge, Bhopal seeking permanent injunction and possession of that property by the applicant. Consequent to the passing of Wakf Act, 1995 (henceforth 'the Act'), the civil suit stood transferred to 'the Tribunal' under Section 83 thereof. The State Government has been given power to constitute Wakf Tribunals by notification in the Gazette for determination in relation to matters under 'the Act'. Accordingly, only one Tribunal has been constituted by notification which is being presided over by Shri Majhar Ali. Shri Majhar Ali is a member of State Judicial Service, holding the rank of Additional District Judge. There is no other person who could act as a Presiding Officer of the Tribunal'.
4. The result is there is no Tribunal to which this case can be transferred. It has not been mentioned in the prayer clause to what authority the applicant wants to the case be transferred. In view of this matter, the Court has no power to transfer the case even on the grounds stated by the applicant. The Court has no power to create a new Tribunal which is the power of the State Legislature under Section 83 of 'the Act'. In case, the Court does so, by a judicial order, it will amount to legislation. The Court cannot usurp the function of a legislature in the garb of judicial process under our constitutional scheme. There is a legislative prohibition in the shape of Section 85 of 'the Act' to the effect that civil court shall not decide the dispute of the nature triable by the Tribunal. In other words, it is impossible to give relief to the applicant. The well known maxim lex non cogit ad impossibillia comes into full play. It says that the law does not compel the impossible. In view of the matter, it is impossible to transfer the case to any other Tribunal or Court, there is no merit in this application. This Court may further add that in cases where a person tries the case of a relative, the case is liable to be transferred not on the ground that Presiding Officer is in fact prejudiced, but on the ground that there is likelihood of bias in favour of his relation. This assumption on the part of the Court is based on the principle that justice should not only be done, but it should be seen to be done. However, it is not necessary that in each and every case, the Presiding Officer is bound to be prejudiced, in favour of a relative. He can be totally impartial, despite the fact, he is trying the case of a relative. History is replete with such instances, where an impartial Judge did not spare his own relative. The necessity of the situation requires that it is the Presiding Officer Shri Majhar Ali who should try the suit. It is expected of him, that he shall raise above the mundane and petty considerations of relationship, to do justice between the parties.
5. With the aforesaid observations, this application i.e. the M.C.C. is hereby dismissed.