Andhra HC (Pre-Telangana)
Muslim Minority Front, Rep. By Its ... vs The Government Of Andhra Pradesh Rep. By ... on 12 March, 1996
Equivalent citations: 1996(2)ALT30
Bench: B. Subhashan Reddy, Mohammed Habeeb Shams Ansari
ORDER P.S. Mishra, C.J.
1. The writ petition by one Sri Mohd. Abdul Muqueet (Khusroo), the Secretary, Muslim Minority Front is filed seeking a writ in the nature of Mandamus to restrain respondents 4 to 13 from reassumption of office as the Chairman and Members of the A.P. State Wakf Board. Petitioner also asked for interim directions to command the second respondent not to hand over the charge of the Board to any other person until the Board was reconstituted in accordance with the Wakf Act of 1995. B. Sudershan Reddy, J., who heard the writ petition first, however, found that respondents 4 to 13 were to assume the office of the Chairman and the Members of the Wakf Board pursuant to a Bench judgment of this Court rendered in W.A. No. 401/95 and batch dt.17-1-96 and in view of the contentions before him decided to refer the matter to be placed before me for appropriate order for posting the writ petition before a Division Bench for the reasons as follows:
"I cannot pass any order which would run counter and contrary to the orders passed by the Division Bench of this Court.
It is however, contended by the learned Counsel for the petitioner that the provisions of the Wakf Act, 1995, No. 43 of 1995, were not brought to the notice of the Division Bench, while the matter was being disposed of. The Act came into force on 1-1-1996, while the writ appeal was pending consideration before the Division Bench.
The present Act No 43 of 1995 prescribes entirely a different procedure for the purpose of constituting the Wakf Board and it is submitted that the judgment of the Division Bench would have been totally different if the provisions of the Act No. 43 of 1995 were brought to the notice of the Division Bench. Be that as it may, it is a complex situation and any order that may have to be passed in the writ petition in one way or the other may run counter to the Division Bench judgment.
In view of these facts and circumstances, it is just and necessary that the present writ petition should be heard by a Division Bench for an authoritative pronouncement. In the circumstances, the Registry is directed to place the matter before My Lord and Hon'ble the Chief Justice along with a copy of the Division Bench judgment in Writ Appeal No. 401 /95 and batch dated 17-1-96.
It is further stated, that there is a tussel going on between the rival groups and particularly respondents 4 to 13 making an attempt to reassume the office and the same is likely to result in breach of peace. It is also represented that certain valuable documents are likely to be moved from the premises of the Wakf Board."
While admitting the petition, however, the Division Bench felt that some of the issues already traversed by the parties in W. A.401 /95 and batch could possibly be agitated in the instant writ petition and referred accordingly the matter for being heard by a Full Bench.
2. It is not in dispute that the Government of Andhra Pradesh vide G.O.Ms.Nos. 74 and 75,dt. 26-8-94 and 30-8-94 respectively constituted the Board under the Wakf Act No. 29 of 1954 comprising the respondents 4 to 13. W.P.Nos. 16111 /94 and 16122/94 were filed challenging their appointments on various grounds. A learned Single Judge who heard the writ petitions held against the constitution of the Board and the respondents 4 to 13 as a result of which they ceased to hold office with effect from 10-4-95, The Government in G.O.Ms.No.41, Minorities Welfare (Wakf I) Department, dt. 10-4-95 appointed a Special Officer Under Section 64 (2) (b) of Wakf Act, 1954 and the Special Officer assumed charge on 10-4-95 itself. The Government of India vide Gazette No. 65, Extraordinary Part II, dt. 22-11-95 have promulgated Act No. 43 of 1995 which repealed the Wakf Act, 1954 and the 1984 Amendment Act but saved, however, anything done or any action taken under the said Acts in these words:
"Not with standing such repeal anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act."
Act No. 43 of 1995 has, however, come into force in the State of Andhra Pradesh with effect from 1-1-96.
3. When the writ petition was disposed of on 10-4-95 and following the directions in the writ petition a Special Officer was appointed, the Wakf Act 1954 was in force. Writ appeals, however were disposed of setting aside the judgment in the writ petition after Act 43 of 1995 had come into force vide the judgment of the Court dated 17-1-96. The petitioner has stated," that neither the appellants therein nor the respondents in the Writ Appeals thought it fit to bring to the notice of the Hon'ble Court that the Central Wakf Act of 1954 has been replaced by the Central Wakf Act of 1995 which received the assent of the President of India on 22-11-95 and the Act has come into force w.e.f.1-1-96."
4. The Wakf Act, 1954 which received the assent of the President on 21-5-54 and published in the Gazette of India, Extraordinary Part II Section I on 24-5-54 (it is not in dispute, was in force in the State) purported to provide for the better administration and supervision of Wakf and contemplated establishment of Boards consisting of eleven Members (see Section 10(1)) with a Chairman elected by the Members from amongst themselves. Section 11 provided for appointment of Members by the State Government by notification in the official Gazette from any one or more of the following categories of persons, namely.
(a) members of the State Legislature and members of Parliament representing the State;
(b) persons having special knowledge of Muslim Law and representing associations such as State Jamiat-ul-Ulama-i-Hind (whether such "persons are Hanafi, Ahle-Hadis or Shefai) or State Shia Conference;
(c) persons having special knowledge of administration, finance or law;
(d) mutawallis of wakfs situate within the State;
Provided further mat in determining the number of Sunni members or Shia members in the Board, the State Government shall have regard to the number and value of Sunni Wakfs and Shia Wakfs to be administered by the Board.
Tenure of office of the Members of the Board was fixed for five years provided that a Member shall, notwithstanding the expiration of his term of office, continue to hold office until the appointment of his successor is notified in the official Gazette (see Section 12). Section 11 of the Wakf Act, 1954, however, was sought to be omitted and substituted by a new provision by Act 69 of 1984 which Act, however, although received the assent of the President of India, was not brought in force in all the aspects in the State of Andhra Pradesh and Section 11 of the Wakf Act, 1954 continued to hold field notwithstanding the amendment by Act 69 of 1984 in the State. The Wakf Act, 1995, however, has received the assent of the President and has been brought into effect in the State on and from 1-1-96, which as stated above, has brought into effect the repeal of the Wakf Act, 1954 but saved anything done or any action taken under the said Act by providing inter alia for the saving of anything done or action taken to be deemed to have been done or taken under the corresponding provisions of the Act, i.e. the Wakf Act, 1995. Questions that have been posed before us thus on account of the repeal of the Wakf Act, 1954 are whether the Board Constituted in accordance with Section 11 of the Wakf Act, 1954 survives the repeal and is it a Board deemed to have been constituted under the corresponding provisions of the Wakf Act, 1995. We have received able assistance to the problem before us from the learned Advocate-General and learned Counsel for the parties and it is found possible by all concerned to keep aside correctness or otherwise of the judgment of this Court in W.A. 401/95 and batch for whether the Board constituted under the Wakf Act, 1954 shall be in office notwithstanding the repeal is a question which in no manner shall a affect the adjudication in the said proceeding except whether pursuant to the setting aside of the judgment of the learned single Judge revival of the Board constituted under the Wakf Act, 1954 will entitle the members including the Chairman to assume office and continue to function until they complete their term of five years and beyond until their successors are appointed by necessary notifications in this behalf as contemplated under the Wakf Act, 1995. Incorporation of Boards and their functions is contemplated in Chapter IV of the Wakf Act, 1995. Section 13 of the said Act provides as follows:
13. Incorporation:-
"(1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established a Board of Wakfs under such name as may be specified in the notification.
(2) Notwithstanding anything contained in Sub-section (1), if the Shia Wakfs in any State constitute in number more than fifteen per cent of all the wakfs in the State or if the income of the properties of the Shia Wakfs in the State constitutes more than fifteen per cent of the total income of properties of all the wakfs in the State, the State Government may, by notification in the Official Gazette, establish a Board of Wakfs each for Sunni Wakfs and for Shia Wakfs under such names as may be specified in the notification.
(3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued."
On the day the writ petition was filed as well as on the day we started hearing the writ petition there was no notification issued Under Section 13 (1) of the Wakf Act, 1995. A notification has since had been issued on 6-3-1996 which reads as follows:
"In exercise of the powers conferred by Sub-section (1) of Section 13 of the Wakf Act, 1995 (No.43 of 1995), the Governor of Andhra Pradesh hereby establishes the Andhra Pradesh State Wakf Board with effect from the 6th March, 1996.
2. The appointment of members of the Andhra Pradesh State Wakf Board under Sub-section (9) of Section 14 shall be made separately."
Appointment of Members of the Board under the Wakf Act, 1954 has now received the nomenclature of composition of Board Under Section 14 of the Wakf Act, 1995 which reads as follows:
"14. Composition of Board:-
(1) The Board for a State and the Union Territory of Delhi shall consist of-
(a) a Chair person;
(b) one and not more than two members, as the State Government may think fit, to be elected from each of electoral colleges consisting of-
(i) Muslim Members of Parliament from the State or, as the case may be, the Union Territory of Delhi,
(ii) Muslim Members of the State Legislature,
(iii) Muslim Members of the Bar Council of the State, and
(iv) Muta wall is of the wakfs having an annual income of rupees one lakh and above;
(c) one and not more than two members to be nominated by the State Government representing eminent Muslim Organisations;
(d) one and not more than two members to be nominated by the State Government, each from recognised scholars in Islamic Theology;
(e) an officer of the State Government not, below the rank of Deputy Secretary, (2) Election of the members specified in Clause (b) of Sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed:
Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board:
Provided further that where there are no Muslim Members in any of the categories mentioned in Sub-clauses (i) to (iii) of Clause (b) of Sub-section (1) the ex-Muslim Members of Parliament, the State Legislature or ex-member of the State Bar Council as the case may be, shall constitute the electoral college.
(3) Notwithstanding anything contained in this Section , where the State Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in Sub-clauses (i) to (iii) of Clause (b) of subsection (1) the State Government may nominate such persons as the members of the Board as it deems fit.
(4) The number of elected members of the Board shall at all times be more than the nominated members of the Board except as provided under Sub-section (3).
(5) Where there are Shia Wakfs but no separate Shia Wakf Board exists, at least one of the members from the categories listed in Sub-section (1) shall be a Shia Muslim.
(6) In determining the number of Shia members of Sunni members of the Board, the State Government shall have regard to the number and value of Shia Wakfs and Sunni Wakfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination.
(7) In the case of the Union territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in Sub-section (1).
Provided that there shall be one mutawalli as the member of the Board.
(8) Whenever the Board is constituted or reconstituted the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board.
(9) The members of the Board shall be appointed by the State Government by notification in the official Gazette."
The most striking difference in the appointment of members as was in Section 11 of me Wakf Act, 1954 and the composition of the Board Under Section 14 of the Wakf Act, 1995 Act is that instead of being appointed by the State Government in the categories of persons (1) members of the State Legislature and members of Parliament representing the State can come to the Board only on being elected from their respective electoral college.(2) Mutawallis of the Wakfs having an annual income of Rupees one lakh and above alone can qualify and can come to hold the office of the member of the Board only on being elected from their respective electoral college and in the new Board more institutions will be represented than in the Board Under Section 11 of the Wakf Act, 1954. Muslim members of the Bar Council of the State shall find representation by election for their election from their electoral college and to the Board the State Government shall contribute by nomination one and not more than two members representing eminent Muslim Organisations, one and not more than two members each from recognised scholars in Islamic Theology and an officer of the State Government not below the rank of Deputy Secretary. A residuary power is conferred upon the State Government, notwithstanding anything done in the Section , for the reasons to be recorded in writing that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in Sub-clauses (i) to (iii) of Clause (b) of Sub-section (1) to nominate such persons as the members of the Board as it deems fit.
4. Since the State Government has taken action Under Section 13(1) and there is nothing to show that any action under Sub-section (2) of Section 13 has been envisaged, we can safely proceed to decide the matter without any reference to a possibility of the State Government establishing separate Boards for Sunni Wakfs and Shia Wakfs. In deference, however, to the submissions of the learned Advocate-General in this behalf we record specifically that we express no opinion of our own whether incorporation of the Board under Sub-section (1) of Section 13 is final and whether the State Government can still decide to have separate Boards for Sunni Wakfs and Shia Wakfs. The State Government has at present proceeded to issue notification for the Board which shall be constituted in accordance with the provisions Under Section 14 of the Wakf Act, 1995 and on such constitution and the appointment of the members on being nominated by the State Government as contemplated Under Section 14(1)(c)(d) and (e) and on being elected as contemplated Under Section 14 (1) (b), the formalities shall stand completed.
5. As to the general effect of a repeal one is accustomed to refer to Section 6 of the General Clauses Act, Act 10 of 1897, which provides, when any Central Act or Regulation made after the commencement of the Act repeals any enactment, unless a different intention appears, the repeal shall not- (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. In State of Punjab v. Mohar Singh, AIR 1955 SC 84 it is pointed out that Section 6 of the General Clauses Act as is well known is on the similar lines as Section 38(2) of the Interpretation Act of England and pointed out, "Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the Section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention."
6. The Supreme Court in its judgment has also pointed out,:
"The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We can not therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section . Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving Clause is by itself not material."
In T.M.L.S. Bradari v. improvement Trust, it has been pointed out that it is a maxim of the law that implied repeals are not to be favoured, and where two statutes are entirely affirmative and identical no question of inconsistency could arise. The Supreme Court has stated in its judgment as follows:
"Where the operative terms of the two enactments are identical and the enactment, so to speak, run parallel to each other there would be no scope for the application of the doctrine of implied repeal and that would be so particularly in a case where the earlier enactment is one of temporary duration while the later is a permanent enactment.."
In a five Judge Bench judgment of the Supreme Court in N.L.- Caterers Ltd. v. State of Punjab, AIR 1976 SC 1581 it has been pointed out:
"The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its inconsistency with such earlier Act, the latter may be treated as repealed. Even where the later Act does not contain such express words, if the co-existence of the two sets of provisions is destructive of the object with which the later Act was passed, the Court would treat the earlier provision as impliedly repealed. A later Act which confers a new right would repeal an earlier right if the fact of the two rights co-existing together produces inconvenience, for in such a case it is legitimate to infer that the legislature did not intend such a consequence. If the two Acts are general enactments and the later of the two is couched in negative terms, the inference would be that the earlier one was impliedly repealed. Even if the later statute is in affirmative terms, it is often found to involve that negative which makes it fatal to the earlier enactment. Thus Section 40 of the Requirements of Fines and Recoveries Act, 1883 which empowered a married woman to dispose of land by deed which she held in fee, provided she did so with the concurrence of her husband and by deed acknowledged was held to have been impliedly repealed by the Married Women's Property Act, 1882 which authorised herein general terms to dispose of all real property as if she were a feme sole. But repeal by implication is not generally favoured by Courts. Farwell J. following such disinclination ordered in Re Chance, 1936 Ch. 266 at p. 270 that "if it is is possible, it is my duty to read the Section as not to effect an implied repeal of the earlier Act.". Maxwell on Interpretation of Statutes, 11th Edn.p. 162 remarks:
"A sufficient Act ought not be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the Statute Book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore is not to be adopted unless it be inevitable. A reasonable construction which offers an escape from it is more likely to be in consonence with a real intention." The well settled rule of construction is that when the later enactment is worded in affirmative terms without any negative it does not implidely repeal the earlier law.
"What words" observed Dr. Lushington in the India,(1864)33LJAdm.l93 (as quoted in Craies on Statute Law, 6th Ed. 371) "will establish a repeal by implication it is impossible to say, from authority or decided cases. The prior statute would, I conceive be repealed by implication if its provisions were wholly incompatible with a subsequent one; or if the two statutes together would lead to wholly absurd consequences; or if me entire subject matter were taken away by the subsequent statute".
There are several judgments which tell us how in case of an express repeal the provisions of the old law and acts done thereunder are viewed and how implied repeal is inferred. In a case, however, where there is an express repeal and acts done thereunder are saved how they are qualified become relevant. We have seen, however, that there is a marked departure from the appointment of members as envisaged Under Section 11 of the Wakf Act 1954 and the composition of the Board by providing for representation of Muslim members of Parliament from the State or as the case may be, the Union Territory of Delhi, the Muslim members of the State Legislature, Muslim Members of the Bar Council of the State and Mutawallies of the Wakfs who qualified having an annual income of rupees one lakh and above by election as envisaged Under Section 14 of the Wakf Act, 1995.The savings need not be referred to the General Clauses Act for Section 112 of the Wakf Act, 1995 has along with the repeal of the Wakf Act, 1954 envisaged not with standing such repeal anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act. "Done or taken" under the corresponding provisions of this Act prompt a comparison of the appointment of members by the State Government from the categories of persons who are members of the State Legislature and members of Parliament representing the State and mutawallis of wakfs situated within the State and representation of other category of persons entirely by the choice of the State Government without there being any inhibition on its power with that of the power of the State Government to appoint the members of the Board by notification in the Official Gazetee as contemplated Under Section l4(9) of the Wakf Act, 1995 on being elected from each of the electoral colleges consisting of Muslim members of Parliament from the State, Muslim members of the State Legislature, Muslim members of the Bar Council and mutawallis of wakfs having an annual income of rupees one lakh and above and only in case the Government is satisfied for reasons to be recorded in writing that it is not reasonably practicable to constitute an electoral college for any of the above categories that nomination is permissible followed by the appointment. Quest of a corresponding provision to Section 11 of the Wakf Act, 1954 shall take one to Section l4 of the Wakf Act, 1995; but is it possible to see corresponding provisions to the provisions in Section 11 of the Wakf Act, 1954 in Section 14 of the Wakf Act, 1995? Dealing with a case of repeal in respect of a local proceeding or remedy continued or in force under the new Act in which the Court was required to give a meaning to the words, "under the corresponding provisions of this Act", the Supreme Court in E.V. Mathal v. Sub-Judge, Kottayam, has stated as follows:
"To correspond means to 'be in harmony with or be similar, analogous to! It does not mean to "be identical with" and therefore the relevant provisions of Section 34(1) of the Act of 1965 must behald to be a provision corresponding to Section 11 (4) of the Act of 1959. Our attention was drawn to the short notes of a judgment of the Kerala High Court in O.P.No. 2653/ 1967 dt. 4th October, 1967 as given in short Notes to Part I, The Kerala Law Times, 1968. We find outselves unable to accept the reasoning as given in the said short notes. Mr. Daphtari raised a further contention that under the express words of Sub-section (1) of Section 11 of the Act of 1965 the operation of any other law including the Act of 1959 was excluded. We do not think that is the proper construction to be put on the words of Sub-section (1) of Section 11 in view of Section 34(1) of the same Act."
The Madras High Court in S. Alphone v. Dist. Supply Officer, Nagarcoil, dealt with a similar provision and has stated as follows:
"Clause 31 of the 1984 Order is like the usual saving clause which is intended to save anything done or any action taken or any order or direction issued under a repealed provision of law. But while giving effect to a saving provision, when it provides that something which is done or issued under the repealed provision must be treated as having been treated or issued under the newly enacted provision, an earlier order can be saved only if such a direction or order could be effectively and validly made under the new provisions of law, which had repealed the earlier provisions."
7. It is clearly seen that the Board under the Wakf Act, 1995 has a different composition from the Board under the Wakf Act, 1954. The mode of representation of different categories of persons in the New Board is also different from the mode of representation of the members by appointment by the State Government as envisaged under the Wakf Act, 1954. Members of Parliament, State Legislature and mutawallies were given representation in the Board appointed Under Section 11 of the Wakf Act, 1954 but the State Government exercised the power to nominate their representations in the Board. Free wheeling movement of the State Government, however, in appointing any person of its choice as a member of the Board under the Wakf Act, 1954 from amongst the members of the Parliament and State Legislature as well as mutawallis is substantially curtailed by a right created in such persons to elect their representatives and it is only when such election is not possible that the State Government is given the power to nominate in their respective categories. While in the case of mutawallis an in corne limit is introduced for being qualified to be included in the electoral college, a new category altogether of the electoral college is introduced in the new Act in the shape of a representative of the State Bar Council. To make a rider to the Board Section 14 of the new Act has extended representations from persons having special knowledge of Muslim Law etc., Under Section 11 (b) of the Wakf Act, 1954 to persons representing eminent Muslim Organisations and one not more than two members to be nominated by the State Government each from recognised scholars in Islamic Theology.
8. The nominated Board or the Board appointed Under Section 11 of the Wakf Act, 1954 thus is not one which can stand the composition of the Board as envisaged under the Wakf Act, 1995. Even going by the wider meaning to the expression 'corresponding provisions' in Sub-section (2) of Section 12 of the Wakf Act, 1995, it will be difficult to find any traces of continuance of the Board appointed Under Section 11 of the Wakf Act, 1954 beyond the enforcement of the new Act.
9. Amongst the fundamental and secular schemes in the Constitution of India Article 25 protects the freedom of conscience and the right freely to profess and propagate religion but makes exception with respect to the laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Article 26 gives to every religious denomination or any Section thereof the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law. Without entering into any controversy as to the essentials of religion and non-essentials of religion, we can find in the freedom guaranteed for every religious denomination or any Section thereof the right as in Arts.25 and 26 to establish, maintain and manage institutions for religious and charitable purposes and to own and acquire movable and immovable property and to administer such property in accordance with Jaw. Wakf is defined Under Section 3(r) of the Wakf Act, 1995 to mean a permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and to include a wakf by user. The right to administer a wakf is not confined to any individual or association of individuals or the State. It is vested in the plurality constituting religious denomination of any Section thereof. Denominational or community representation in the affairs of the wakf alone can satisfy the freedom to administer the wakf and not any recognition of such a right in any individual or association of individuals who are not recognised by the denomination or Section concerned as they are representing. It is indeed for removing the arbitrariness in the appointment of the members of the Wakf Board and to bring the composition of the Board in conformity with the freedom to manage religious affiars, one of the basic or the fundamental of the India's democratic quality that Section s 13 and 14 of the Wakf Act, 1995 have provided for a balance between the elected members of the Board and the nominated members of the Board by providing inter alia that the number of elected members of the Board shall at all time be more than the nominated members of the Board except as provided under Sub-section (3), i.e., when for reasons to be recorded in writing the State Government decides to nominate such persons as the members of the Board as if reinstated. When the Parliament has decided to introduce such salutary provisions it is difficult to expect that it has permitted such members who are appointed by the State Government Under Section 11 of the Wakf Act, 1954 to continue to function until they completed their term of five years and until new members were appointed in their places.
10. The above, however, does not solve the problem because a question still remains to be answered. What is the date of the enforcement of the Wakf Act, 1995? Is it the date when the Act is notified after receiving the assent of the President for being enforced in the State, or is it the date when notification Under Section 13(1) of the New Act is issued or will it be later still when notification Under Section 14(9) of the New Act is issued? Answer to this question will make the way clear for the members of the Board appointed under Section 11 of the Wakf Act, 1954 to resume office or not to do so, shall establish that notwithstanding that they have been validly appointed under the Wakf Act, 1954 and this Court's judgment itself in appeal is correct and legal they will not function any more.
11. Notification Under Section l(3) of the Wakf Act, 1995 is the beginning of the enforcement of the Act in the State. Establishment of the Board of Wakf under such name as may be specified in the notification in the official gazette by the State Government is the expression of intention to have the Board established. The Board cannot, merely because the notification is issued in this behalf Under Section 13(1) of the Wakf Act, 1995, function unless such individuals who constitute the Board as members are appointed. Members can be officially appointed by the notification in the official gazette by the State Government Under Section l4(9) only after they are elected or no mirtated, as the case may be, in accordance with the provisions Under Section 14(1) of the Wakf Act, 1995. The process, thus, started by the notification Under Section 13(1) of the Act has to be completed by the elections and nominations of the members of the Board and once they are elelcted or nominated the Board will stand fully ready to function.
12. Since the Act has come into force and the State Government has made its intentions clear by issuing the notification Under Section 13(1) thereof that the Wakf Board shall be one as envisaged under it and it alone shall be regularizing the administration of the properties and other religious affairs attendant to the wakf, we have no reason to think that it is not serious and it shall not proceed to complete the composition of the Board Under Section 14(1) of the Act and no sooner the composition is complete, appoint the members by issuing necessary notification Under Section 14(9) of the Act.
13. Learned Advocate-General has indicated that the process of the composition of the Board shall be completed by June, 1996 and the new Board shall be in a position to function from July, 1996. Learned Counsel for respondents 4 to 13 has stated that they, i.e., respondents 4 to 13, shall co-operate and in no manner do anything which shall defeat or delay the appointment of the members of the Board under the new Act. Since we have found that unless notification under Under Section 14(9) is issued and members of the Board are appointed, the Board appointed under the Wakf Act, 1954 shall survive the notification Under Section l (3) of the Act and the notification Under Section 13(1) of the Wakf Act, 1995 but shall cease and all members of the Board appointed under Section 11 of the Wakf Act, 1954 shall vacate their office the moment notification Under Section 14(9) of the Wakf Act, 1995 is issued. They can hold the office, thus, pursuant to the judgment in W.A. 401/95 and batch until the composition of the Board under the Wakf Act, 1954 (sic. 1995) is completed, but not a day more. The new Board shall assume office on the appointment of the members thereof and the members appointed Under Section 11 of the Wakf Act, 1954 shall have no claim whatsoever for any office in the Board. Since a declaration to the above effect may not be sufficient, let a direction issue to the State Government to complete the formalities as contemplated Under Section 14 of the new Act by 30-6-1996. Let a further direction issue accordingly that consequent upon the notification Under Section 14(9) of the Wakf Act, 1995 respondents 4 to 13 shall vacate their office.
14. In view of the above the Receiver appointed by the Court shall hand over the charge of the office to respondents 4 to 13 forthwith. The State Government shall appoint the Secretary to the Board as the Receiver Secretary shall also vacate the office.
15. The writ petition is disposed of with the above direction. No costs.