Kerala High Court
Vasudev Shenoy And Ors. vs Government Of India And Ors. on 20 January, 1994
Equivalent citations: AIR1994KER305, AIR 1994 KERALA 305, (1994) 1 KER LT 389 (1995) 1 CIVLJ 336, (1995) 1 CIVLJ 336
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
ORDER K.G. Balakrishnan, J.
1. Petitioners are in occupation of a building belonging to Wakf Board. This property originally belonged to a Trustee represented by its Managing Trustee H.K. Mohammed Babu Sait. It was later declared as a wakf property. According to the petitioners, they have been in occupation of this building for the last 14 years and on 17-10-1986 the Kerala Wakf Board published a notification for the sale of the building in question. The notification specified that there could be either separate tenders or a composite there could be either separate tenders or a composite tender. Petitioners submitted tenders for getting their respective portions of property which is possessed by them. Initially the Wakf Board was prepared to accept the tender but later they re-tendered for the whole land and building. One Gopala Fai Raveendra Nath Pai submitted a tender and the same was accepted. The land and buildings were given in his favour. Petitioners preferred an appeal before the Secretary, Department of Revenue, Trivandrum. Petitioners wanted the Government to exercise the power vested on the Government under Sections 63 and 64 of the Wakf Act, 1954. Petitioners were intimated that they were not entitled to get any benefit under the Wakf Act and they were directed to approach the Munsiff Court under the Kerala Building (Lease and Rent Control) Act, 1965. One of the petitioners then fixed O.P. No. 479/1989 contending that there was violation of the fundamental rights under Article 21 of the Constitution in rejecting the tender offered by the petitioners. That original petition was dismissed vide Ext. PI.
2. Petitioners allege that as the first respondent, the Union of India represented by Secretary, Ministry of Law has not issued a notification under proviso to Section 1(3) of the Act 69 of 1984 bringing into force Section 63B of the Wakf Act. Petitioner contends that Section 63B of the Wakf Act cannot be invoked by the petitioner and this Court shall issue a writ of mandamus directing the first respondent to issue a notification as envisaged under proviso to Section 1 (3) of the Wakf Act. Ext. P3 is the representation submitted by the petitioners to the first respondent.
3. I heard the petitioners' counsel. Counsel for the petitioners pray that this Court shall issue an order in the nature of mandamus directing the 1st respondent to issue a notification under proviso to Section 1 (3) of the Wakf Act. The request of the petitioners cannot be granted. The Wakf Act a centrally enacted legislation. Under Section 1 of the Wakf Act 1954 the Central Government is authorised to notify the commencement of the Act. Admittedly no notification has been issued by Central Govt. regarding the commencement of Section 63 of the Act. It is almost a settled position that no Court would issue a writ of mandamus or order in the nature of writ of mandamus asking the legislature to pass an enactment. Applying the same rule, the Court also shall not issue any direction to the rule making authority to pass any delegated legislation.
4. A question of similar nature came before the Supreme Court in A.K. Roy v. Union of India, 1982(1) SCC 271: (AIR 1982 SC 710). The question that was considered was whether the failure of the Central Government to bring Section 3 of the 440 amendment is mala fide and whether the Court would be justified in issuing a writ of mandamus directing the executive to enforce the provisions, if not done, within reasonable time. The Court held that at page 732; of AIR:
"The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The Executive is responsible to the Parliament and parliament does not irretrievably lose its power to bring the Amendment into force by reason of the empowerment in favour of the Central Government to bring it into force."
The Supreme Court was of the view that the Court cannot issue a writ of mandamus directing the executives to enforce a provision, if not done, within reasonable time.
5. In another case reported in Aeltemesh Rein v. Union of India, (1988 (4) SCC 54 : AIR 1988 SC 1768), the question that arose for consideration was whether the Court would be justified in issuing a direction to the Central Government in the nature of mandamus directing the Central Government to bring Section 30 of Advocates Act, 1961 into force. Following the earlier decision in A. K. Roy's case the Supreme Court held that:
"it is not open to their Court to issue writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government."
However the Court observed that the Court can issue a writ in the nature of mandamus to the Central Government to consider whether the time to bring the provisions of the Act has arrived or not.
6. In yet another decision of the Supreme Court reported in State of Jammu & Kashmir v. A. R. Zakki and others, AIR 1992 SC 1546 (1992 AIR SCW 1711) the Supreme Court held that, a writ of mandamus cannot be issued to the legislature to enact a particular legislation and the same rule will apply to the executive when it exercises the power to make rules. That was a case where the readers and librarians employed in the High Court of Jammu & Kashmir submitted representation to the Chief Justice of the High Court alleging that they do not have any prospects of future promotion, and that they should be given reservation of the 25% of the vacancies in the service by a promotion to the post of Assistant Registrars and others. The representation was considered by the Full Court of the High Court and they proposed to amend the rules and the proposal was sent to the State Government. No action was taken by the State Government on the proposal for amendment of the rules. The affected parties filed a writ petition in the High Court praying for a writ of mandamus commanding the State Government to implement and give effect the recommendations of the High Court. The learned single Judge allowed the writ petition and direction was issued to the State Government to consider effectively the amendment proposed by the High Court within a period of three months. The State Government challenged the decision before the Division Bench of the same High Court but the appeal was dismissed and the direction given by the High Court was assailed before the Supreme Court. The Supreme Court held that:
"A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation .......... This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court."
7. From the above decisions it is clear that the Court will not issue any writ or order i the nature of writ of mandamus directing the parliament or rule making authority to bring into force a particular enactment. There are ever so many legislations which was not brought into force. It is for the legislature or the executives, who is authorised to enforce the enactment to decide the question. It may be noticed that in the instant case the petitioner has not alleged any mala fide or unreasonableness on the part of the first respondent in not bringing into force Section 63 B of Act 69 of 1984. Therefore the prayer of the petitioner in the original petition cannot be granted. The request of the petitioner that this Court shall give a direction to consider Ext. P 3 also cannot be considered. It is for the first respondent to consider the representation received from the petitioner.
The O. P. is without any merit and it is dismissed.