Allahabad High Court
Waqf Rani Saltanat Begam, Lucknow vs Civil Judge, Lucknow And Others on 27 March, 1998
Equivalent citations: 1998(3)AWC1840
JUDGMENT R.H. Zaidi, J.
1. By means of this petition under Article 226 of the Constitution of India, petitioner mainly prays for Issuance of writ, order or direction in the nature of certiorari quashing the order dated 28.8.1997 in so far as it directs for fixation of the date for final hearing, without disposing of the application for interim relief, which according to the petitioner amounts to an order refusing to exercise the Jurisdiction to grant ad interim injunction, and for quashing the orders dated 9.10.1996 and 15.6.1996 passed by respondent No. 3. Prayer for writ, order or direction in the nature of mandamus restraining the respondent No. 3 to function as Controller and to directing the respondent No. 1 to decide the reference filed by the petitioner within the time specified by this Court were also made.
2. The dispute relates to a 'Waqf Al-al-aulad', known as 'Waqf Hamid Begam Saltanat Manzil, Hamid Road. Lucknow' (for short the "waqf in question').' The waqf in question was created by means of a registered waqf deed dated 13.2.1946 and. supplementary waqf deed dated 13.4.1946 (by Rani Saltanat Begum, wife of Khan Bahadur Nawab Syed Hamid Hussain Khan Sahab). It is stated that 'Saltanat Manzil' (for short the building in question), which is a subject-matter of the Waqf in question, was in dilapidated condition and needed reconstruction which was also necessary for enhancement of the income of the Waqf. The mutawallis of the 'waqf in question' therefore, prepared a 'development project' and submitted the same before the respondent No. 2 for Its approval in January, 1983. Since the approval was not granted by the respondent No. 2. the petitioner applied to the District Judge. Lucknow for grant of requisite permission. The District Judge vide order dated 7.10.1983 accorded the permission as prayed for, to work on the 'development project'. The petitioner thereafter on 21.10.1983 intimated the Board about the permission granted by the District Judge. In pursuance of the order of the District Judge referred to above and in exercise of the powers under clause 12) of the Waqf Deed, a copy of which has been placed on the record as Annexure-2 to the writ petition, an agreement dated 10.10.1983 registered on 22.9.1984 was entered into between the petitioner and one Sri B. P. Halwasiya which was thereafter revised and modified on 7.10.1985, by means of a registered document, a copy of which also forms part of the record of the case. The respondent No. 2 instead of accepting the request made by the petitioner issued notices te the mutawallis of the waqf in question under Sections 49B and 55 of U. P. Muslim Waqfs Act. 1960 on 8.2.1996, calling upon them to show cause as to why the agreement entered into between the Waqf and Sri B. P. Halwasiya, be not cancelled and as to why. they be not removed, from the office of mutawailis. On receipt of the notices, replies were filed on behalf of the mutawallis. Respondent No. 3 by his order dated 15.6.1996 held that the agreements entered into between the petitioner and Sri B. P. Halwasiya were Illegal and directed the mutawailis to get the said agreements cancelled and also directed other relevant authorities not to act upon the said deeds. By means of the said order it was further directed that the map (building plan) if submitted before the competent authority shall not be passed. The respondent No. 3 in exercise of powers purportedly under Section 20 of the U. P. Muslim Waqf Act. 1960 delegated the powers to hear the cases under Sections 29, 45B. 55 and 57A of the Act. to the Secretary of the Board vide order dated 24.8.96. On the strength of the said order, the Secretary of the Waqf Board heard the case under Section 55 of the Act and thereafter concluding the hearing of the case, placed the record before the respondent No. 3. Respondent No. 3 vide his order dated 9.10.96. deprived of and removed Syed All Hamid and Smt. Hasima Raza from the mutawalli-ship of Waqf tn question. According to the petitioner, orders dated 15.6.1996 and 9.10.1996 were passed by respondent No. 3 without affording any opportunity of hearing to the petitioner, or to its mutawallis. Petitioner challenging the validity of the orders dated 15.6.1996 and 9.10.1996 filed Writ Petition No. 3044 (M/S) of 1996. It has been stated in paragraph 12. of the writ petition, the contents of which have not been denied in the counter-affidavit, that the learned Judge, hearing the said writ petition orally observed that writ petition was liable to be dismissed on the ground of availability of alternative remedy under Section 71 of the Act. The petitioner. therefore, got the said writ petition dismissed as not pressed and thereafter the reference No. 15 of 1995 was filed on 7.1.1997 before respondent No. 1 challenging the validity of the orders dated 15.6.1996 and 9.10.1996 and an application under Order XXXIX, Rule 1/2, C.P.C. was also filed, for interim injunction, along with the same of reference. On the said date of filing, the respondent No. 1 instead of granting interim injunction issued notices to the defendants-respondents and thereafter, it is stated that case was listed and arguments on the application for grant of temporary injunction were heard as many as fourteen times, but insplte of the fact petitioner applied for day-to-day hearing of the Interim injunction application and grant of interim injunction, respondent No. 1 instead of granting injunction order vide impugned order dated 28.8.1997 framed the issues and fixed 23.9.1997 for final hearing of the case. The petitioner, thereafter filed the present petition, as according to the submission made by the learned counsel for the petitioner, order dated 28.8.1997 amounted an order of refusal to exercise the Jurisdiction, to grant interim injunction in favour of the petitioner.
3. Learned counsel for the petitioner vehemently urged that the respondent No. 1 acting as Waqf Tribunal, failed to exercise the Jurisdiction vested in it to grant injunction by not disposing of the application for interim relief and directing the case to be heard finally. The said order amounted to an order refusing to grant interim relief and was. therefore, to that extent liable to be set-aside respondent Nos. 2 and 3 were liable to be directed to refrain from interfering in the affairs of the waqf in question and the respondent No. 1 was liable to be directed to decide the case within the time fixed by this Court. It has also been urged that petitioner was prlma facie entitled to interim relief in its favour, inasmuch as the orders passed by respondent No. 3 were prlma facie wholly illegal and without jurisdiction. It has been urged that U. P. Act No. 16 of 1960 has been repealed by the Central Act, i.e., Waqf Act. 1995 (Act No. 43 of 1995) w.e.f. 1.1.1996 respondent No. 3. therefore, ceased to have jurisdiction to act as controller of the waqf board. Alternatively, it has been urged that appointment of respondent No. 3 as controller of waqf board in exercise of powers under Section 14 of the U. P. Waqf Act was for a limited period. The period of his initial appointment as well as the period of extension granted by the State Government came to an end and Section 14 itself having been repealed, therefore, the respondent No. 3 automatically ceased to be the controller of the waqf board, by operation of law. It has also been urged, that the respondent No. 3 had no power to act as controller of the waqf board and had no jurisdiction to delegate his power to the Secretary. Alternatively, it has been urged that the respondent No. 3 had no jurisdiction to pass the orders against the petitioner, inasmuch as. the cases were heard by the Secretary and not by the respondent No. 3. as legally if a case is heard by an authority or Court. same is required to be decided by that very authority or Court and not by any other authority or Court. It was further submitted that interim order dated 13.6.1996 granted by this Court in Civil Misc. Writ Petition No. 1689 (M/B) of 1996. on the basis of which impugned orders were passed by respondent No. 3. was stayed by the Supreme Court vide order dated 19.12.96 passed in State of U. P. v. Rizwanull Haq. Special Leave Petition No. CC 6851-6854 of 1996. Therefore, the orders passed by respondent No. 3 relying upon the order dated 13.6.1996 were illegal and without Jurisdiction and. were liable to be quashed.
4. On the other hand, learned counsel appearing for the contesting respondents raised several preliminary objections. It has been urged that the respondent No. 1. the civil Judge (Waqf Tribunal), was a Court subordinate to High Court, therefore, the impugned order passed by it was revisable under Section 115. C.P.C. The revision, having not been filed by the petitioner, the writ petition was, therefore, liable to be dismissed on the ground of availability of alternative remedy. It was urged that the present writ petition was cognizable by a Division Bench of this Court and a Judge sitting singly has got no Jurisdiction to hear and decide the same. It was also urged that petitioner previously having challenged the validity of the impugned orders dated 15.6.1996 and 9.10.1996 in Writ Petition No. 3044 (M/B) of 1996 which was dismissed on 20.12.1996 as not pressed, this petition was, therefore, not maintainable in this Court. The objections regarding concealment of facts, nonjoinder of necessary parties and locus standi were also raised by the learned counsel for the respondents and it was submitted that the impugned orders were competently passed by respondent No. 3 and the same do not suffer from any error of law or jurisdiction, therefore, the writ petition filed by the petitioner was liable to be dismissed.
5. I have considered the submissions made by the learned counsel for the parties and also carefully perused the record.
6. Before dealing with the matter on merits. I firstly deal with the preliminary objections raised by the learned counsel for the respondents.
7. The question as to whether the Tribunal constituted under Section 70 of the U. P. Muslim Waqfs Act, 1960 is a Court subordinate to High Court and as to whether the orders passed by it interlocutory or final are revisable under Section 115, C.P.C. came up for consideration before this Court in Naqushe Ali v. U. P. Sunni Central Waqf Board, 1970 ALJ 815. Relying upon the decision in Sunni Central Board of Waqfs u. Sirajul Hasan Khan, AIR 1963 All 573. It was held that the order passed by the Waqf Tribunal during pendency of the reference before it would not be an award and would not attract the revisional jurisdiction of the High Court under Section 76 of the Act and further it was ruled that the Civil Judge constituted as a Tribunal under Section 70 of the Act would not be a civil court subordinate to High Court within the meaning of Section 115, C.P.C. No revision, therefore, could be filed and entertained against any order of the said Tribunal under Section 115. C.P.C. and that the power under Section 76 of the Act cannot be exercised by the High Court till an award has come into existence as a result of the decision of the Tribunal.
8. Again the said question was considered by this Court in Shujani Hasan v. Qaisar Ali Khan and others, 1979 ACJ 338, wherein it was ruled as under :
"Learned counsel for the applicant has urged that the learned Additional District Judge had no jurisdiction to set-aside the order passed by the Tribunal inasmuch as the Tribunal was not a Court subordinate to the learned District Judge, and consequently, the provisions of Section 115, C.P.C. were not applicable at all. 1 agree with the submission of the learned counsel for the applicant. It is clear that the Tribunal constituted under the Muslim Waqfs Act is not a Court subordinate to the High Court or the District Judge within the meaning of Section 115, C.P.C. and consequently the learned Additional District Judge had no Jurisdiction to set-aside the order passed by the Tribunal."
9. Learned counsel appearing for the contesting respondents in support of his submissions that revision could be filed under Section 115. C.P.C. cited certain decisions, but the said decisions do not relate to interpretation of U. P. Muslim Waqfs Act, 1960. They deal with the provisions of other Acts like Arbitration Act. Displaced Persons (Debt Adjustment) Act. 1951, U. P. (Temporary) Control of Rent and Eviction Act, 1947. U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. 1971 etc. As 1 fully agree with the view taken by this Court in Sirqjul Hasan Khan's case. Naqushe Ali's case and Qaisar Ali Khan's (supra). 1 do not consider it necessary to deal with the decisions cited by the learned counsel for the contesting respondents as they do not deal with the provisions of U. P. Muslim Waqfs Act. 1960. In my opinion, the said decisions have got no application to the facts of the present case.
10. The submission made by the learned counsel for the contesting respondents that present petition was liable to be dismissed on the ground of availability of alternative remedy is totally misconceived and devoid of merit.
11. So far as the question of cognizance of this petition by single Judge is concerned, this petition has been reported to be cognizable by learned single Judge by the Stamp Reporter.
12. In Indra Jain v. Mathew Beni Prasad. JT (1993) (9) SC 183. It was ruled by Apex Court that it is the prerogative of Hon'ble the Chief Justice, to constitute Benches and to allocate work to such Benches. Proviso (a) to Rule 1 of Chapter V. of the Rules of the Court also confers power to constitute Benches and to allocate work, to the Hon'ble Judges sitting singly, or in Division Benches, upon Hon'ble the Chief Justice of this Court. The then Chief Justice. Vide order dated 28.7.1992, in modification of earlier order dated 17.7.1992, directed that writ against judgments, orders and Awards passed or given by the Tribunal, Courts or Statutory Arbitrations, shall be heard and disposed of by Hon'ble Judges of this Court, sitting singly. Present petition, as stated above, is mainly directed against order of Statutory Tribunal constituted under Muslim Waqf Act, 1960, and is. therefore, cognizable by learned Judge sitting singly and not by a Division Bench.
13. In the present case, on the date the reference and the application for grant of ad interim injunction were filed, respondent No. 1. without applying his mind to the facts of the case simply issued notices to the defendants-respondents. Defendants-respondents, on receipt of the notices, put in their appearance in the case and filed their objections. Thereafter, as many as fourteen dates were fixed in the case, application for grant of Interim relief was heard on several dates, but instead of disposing of the application for interim relief. Tribunal has, by means of the impugned order dated 28.8.1997, directed the case to be listed for final hearing. Said order, thus, clearly amounted to an order refusing to exercise jurisdiction to grant interim relief. Present petition, filed by the petitioner, is therefore, legally maintainable, as no appeal or revision against the impugned order could be filed. A reference in this regard may be made to the following decision :
H. Biswas and Co., Kanpur v. Ram Bihari and others, AIR 1951 All 8 (DB). wherein in the similar circumstances, it was ruled that order issuing notice amounts to an order refusing to issue an interim injunction. Same was. though, not appealable, but revision could be filed against the same under Section 115 of the C.P.C. Aforesaid case was relied upon in Arya pratinidhi Sabha v. Manmohan Tewari, 1993 (11) LCD 595, and it was held as under :
"The learned counsel for the applicant has placed reliance on the case of H. Biswas and Company v. Ram Bihari, AIR (36) 1951 All 8. In this case, it has been held by two Judges that against an order, refusing to grant an ex parte injunction a revision is maintainable.
'In view of this, the order refusing to pass an ex parte order would amount to a case decided. It would also be so in view of fact that it can have serious effect on the right of the party concerned.'
14. Similarly, in Bhaneshwar Karji v. Umesh Chandra Chaudhry and others, AIR 1985 Gau 46. It was held as under :
"to keep an application pending for an indefinite period and not passing any order on the application for expeditious disposal of the stay application, itself, tantamounts to not exercising the jurisdiction."
15. Similar view was taken in Ashak Tsharing Laws u. Tsherir Wangdi, AIR 1982 Sikkim 20. and it was held as under :
"It would have thought that when a party makes an application for an Immediate and ex parte order of injunction, and the Court refusing to grant such an injunction, and instead issues notice of the application to the opposite party, the order of refusal would be an order under Rule 1 or Rule 2. as the case may be and not under Rule 3 and hence, appealable under Order XLIII, Rule 1 (r)."
16. Facts of the present case are much better than the facts of the aforesaid cases. In this case, after fixing as many as 14 dates, and hearing injunction matters on several dates, not passing an order on Injunction application and passing an order to hear the reference finally amounts to an order refusing to grant temporary Injunction. Therefore, the petitioner was justified in approaching this Court for ventilation of its grievances.
17. Further, learned counsel for the petitioner stated at the bar that he was not pressing for relief (B), and (C) to (F), at this stage, as relief [B) has been prayed for before the respondent No. 1, and for relief (C) to (E), petitioner proposes to file separate petition for a writ of quo warranto. Request magnate of learned counsel for the petitioner was accepted and application dated 23.9.1997 was dismissed on 16.10.1997, with liberty to petitioner to file fresh petition for the said reliefs.
18. In view of the aforesaid discussions, submissions made by learned counsel for contesting respondents, that instant petition was cognizable by a Division Bench of this Court, cannot be accepted.
19. Next objection made by learned counsel for the contesting respondent was that the first petitioner challenges validity of the order dated 9.10.96 and 15.6.96, passed by Controller of the Wakf Board, in Writ Petition No. 3044 (M/S) of 1996. which was dismissed as not pressed. Therefore, present petition was legally not maintainable. Reference in this regard may be made to the decision of Apex Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M. P., Gwalior and others, (1987) 1 SCC 5, wherein it has been ruled as under :
"The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition, can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would . also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit the petitioner to Invoke the extraordinary Jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court, without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since each withdrawal does not amount to res judicata. the remedy under Article 226 of the Constitution of India, should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We however, make it clear that whatever we have stated in this order, may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus of seeks to enforce the fundamental rights guaranteed under Article 21 of the Constitution since such case stands on a different footing altogether. We, however, leave this question open."
In view of the law laid down by the Supreme Court, after dismissal of the writ petition, as withdrawn suits and other remedies are not barred. Same principle will apply in the case of dismissal of a petition as not pressed as in that case also, nothing is decided on merits and the order cannot operate res judicata. In the present case, after dismissal of the Writ Petition No. 3044 (M/S) of 1996 as not pressed, petitioner approached Tribunal for ventilation of Its grievances. Aforesaid writ petition was not decided on merits. It was, therefore, open to the petitioner to avail of the other alternative remedies for redressal of its grievance Including the remedy by way of reference under Section 71 of U. P. Muslim Waqf Act, 1960. Submissions made by learned counsel for contesting respondents to the contrary, therefore, cannot be accepted .
20. So far the objections raised by the learned counsel for the respondent regarding the non-Joinder of Syed All. Hamid and Mohammad Imtlaz Halder, are concerned, petitioner in this petition, or in the reference filed before the District Judge, does not seek any relief against the said persons. It has been stated that Mohammed Imtiaz was impleaded as proforma defendant before the District Judge. He was neither a necessary, nor proper party to the present writ petition. I do not consider that the present petition suffers from the vice of mis-joinder or non-joinder of necessary parties as effective orders can be passed in their absence in the present case. The other objections regarding locus standi, and concealment of facts were not pressed seriously by the learned counsel appearing for the contesting respondent and in the counter-affidavit also the material facts have been stated which are alleged to have been concealed by the petitioner have not been stated. The mutwallis of the waqf have got the right to protect their interest, the waqf property and to file the present petition.
21. Thus, the preliminary objections raised by the learned counsel for the respondents have got no substance, they are. therefore, overruled.
22. Before coming to the merits of the case, it may be clarified that the observations made in this judgment on the questions of fact and law Involved in the case, will not be treated as final. As the case is stilt pending before the Waqf Tribunal, respondent No. 1, which will be decided by the said respondent after following the procedure prescribed under law on the basis of the evidence produced by the parties for and against otherwise also observations made in the proceedings for temporary orders whether made by the lower courts or by this Court have no relevance whatsoever, in passing final verdict after trial of the suit. A reference in this regard may also be made to P. Govindaswamy and other v. S. Narayanan and others. (1987) (Supp) SCC 58 and Smt. Nirmala Kanta v. Mulkraj Kohili. AIR 1977 All 145.
23. At this stage, this Court will simply examine as to whether the petitioner has got a prima facie case in its favour for grant of interim relief. The answer of the said question depends upon a further question as to whether the respondent No. 3 had the jurisdiction to pass the orders dated 15.6.1996 and 9.10.1996. In this connection, it will also have to be seen whether the respondent No. 3 had the jurisdiction, after the cases were heard by the Secretary, to pass final orders against the petitioner, that too without affording an opportunity of hearing to the petitioner.
24. The respondent No. 3 was appointed as Controller of Shia Central Waqf Board by the State Government in exercise of power under sub-section (2) of Section 14 of the U. P. Muslim Waqf Act, 1960 which reads as under :
"14. Term of the Board.--(1) Subject to the provisions of Section 23, the term of the members of the Board shall be five years from the date of the notification of its constitution :
Provided that the State Government may, by notification in the official Gazette/extend, the said period by a further period not exceeding one year :
Provided further that except as provided in sub-section (2). the outgoing members of the Board (including its President) shall, notwithstanding the expiration of their term, continue to hold office as members and President respectively until the constitution of the new Board is notified by the State Government in the Official Gazette.
(2) Where as a result of any interim order or any Court either the State Government is unable to issue a notification of due constitution of the new Board or after such notification is issued the new Board is unable to function the State Government may for the duration of such order appoint a Sunnl Muslim or a Shia Muslim, as the case may be. as Controller of the Board, and such controller shall perform exercise and discharge the function, powers and duties of the Board as well as of its President and members."
25. It is a matter of record that Waqf Act. 1995 (Act No. 43 of 1995] (for short the 'Central Act') on receiving the assent of the President on November 22, 1995 was published in the extraordinary Gazette Part-II. and was enforced in the State of U. P. on 1.1.1996. Section 112 of the Central Act provides as under :
112. Repeal and Savings.--(1) The Wakf Act. 1954 (29 of 1954] and the Wakf (Amendment) Act. 1984 (69 of 1984) are hereby repealed.
(2) Notwithstanding 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.
(3) If. immediately before the commencement of this Act. In any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed :
Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was tn force on the day on which such things were done or action was taken."
26. It is apparent from the aforesaid section that U. P. Muslim Wakf Act, 1960. which corresponded to the Central Act. stood repealed. In the Central Act, there is no provision analogous to the provisions of Section 14 of U. P. Act No. 16 of 1960, which provided for the appointment of the controller for a limited period. In Gajraj Singh and others v. State Transport Appellate Tribunal and others. (1997) 1 SCC 650. It was ruled by the Apex Court of the country, that the effect of repeal is to obliterate the Act completely from the record of the Parliament, as it had never been passed, it never existed except for the purpose of those actions which were commenced, prosecuted and concluded while it was an existing law. Repeal is not a matter of mere form but is of substance depending on the intention of the Legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute to abrogate or wipe off the former enactment wholly or in part then it would be a case of total or protanto repeal. It was also observed that where there is a repeal and simultaneous re-enactment Section 6, of General Clauses Act, would be applicable in such cases unless the new legislation manifest intention inconsistent with or contrary to the application of section. Such Incompatibility would have to be ascertained from all relevant provisions of the new Act. In such case the Court should look to the provisions of the new Act for purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of obsolete matters. Similar view was taken by the Supreme Court in Manphool Singh Sharma v. Ahmedi Begum, (1994) 5 SCC 465. It was ruled that when a repeal is accompanied by fresh legislation on the same subject the provisions of the new Act will have to be looked into to determine whether and how far the new Act protects or keeps alive the old rights and liabilities.
27. In view of the law laid down by the Apex Court. I will have to see the intention of the Legislature by looking to the provisions of the Central Act. From a reading of the Central Act. It is apparent that there is no provision analogous to the provisions of Section 14 of the U. P. Act No. 16 of 1960, which provided for the appointment of the controller for a limited period. Section 112 of Central Act simply provided for the repeal of all State Acts which corresponded to the said Act. Section 112 of the Act simply saved the things done or action taken under the repealed Act, if they could be justified under the new Law, as it is evident from the proviso to sub-section (3) of Section 112 of the Central Act. In the Central Act, as stated above, there is no provision analogous or corresponding to the provisions of Section 14 of the U. P. Act. which provided for the appointment of the controller for a limited period. The appointment of the controller thus, was not saved by the saving clause of the Central Act. The appointment of the respondent No. 3 as a controller automatically came to an end on 1.1.1996. A reference in this regard may be made to the Full Bench decision of this Court in Municipal Board. Kanpur v. Bihari Lal. AIR 1960 All 546 (FB), wherein it was ruled as under :
"Dr. Chatterji had been appointed a Public Analyst under the U. P. Pure Food Act, 1950, in September, 1953. It is not in dispute that, that Act was repealed by Section 25 of the Prevention of Food Adulteration Act. 1954, but it is contended by the prosecution that notwithstanding the repeal of the Pure Food Act, the appointment of Dr. Chatterjee, as a Public Analyst remained effective by virtue of the provisions of Section 6 of the General Clauses Act and that he must be deemed to be a Public Analyst, within the meaning of Section 13 of the Prevention of Food Adulteration Act. This was the view which found favour in AIR 1960 All 117, but with great respect we do not think it to be well founded."
"The Prevention of Food Adulteration Act. must be read as a whole and when so read, we have no doubt that the Public Analyst whose report is admissible in evidence under Section 13 of the Act is a Public Analyst for whose appointment provision is made in Section 8 The repeal of the U. P. Pure Food Act had the necessary consequence of terminating the appointments of Public Analysts appointed under that Act. unless their appointments are specifically saved, and our attention has not been invited to any provisions of the new Act, which would have that effect, A Public Analyst is defined in the Pure Food Act as 'any person' appointed by the State Government to perform the duties of a Public Analyst under this Act ; and even if it be the case that the appointment is saved by virtue of the provisions of Section 6 of the General Clauses Act. the only result in our opinion will be that Dr. A. C. Chatterjl will continue to be a Public Analyst under the Pure Food Act. It could not make him a Public Analyst within the meaning of the Prevention of Food Adulteration Act. With great respect, we are of the opinion that the decision in AIR I960 All 117 that a person who has been appointed a Public Analyst under the U. P. Pure Food Act must be deemed a Public Analyst, for the purposes of the Prevention of Food Adulteration Act, is erroneous."
28. Even assuming that the appointment of the respondent No. 3 was saved by the aforesaid saving clause, his first appointment was made on 19.7.1994 for limited period of one year, which came to an end on 18.7.1995. Subsequently vide an order dated 27th July. 1995, the appointment of respondent No. 3 was extended in exercise of amended Section 14, which was amended by U. P. Act No. 23 of 1995. Section 5 of the Amendment Act (U. P. Act No. 23 of 1995) reads as under :
"5. The amendment of Section 14 of the principal Act in sub-section (2) the words 'one year' the words 'two years' or up to the Constitution of the Board which ever is earlier, shall be substituted."
Vide Section 1 of the Amending Act, 1995 above noted Section 5 was deemed to have come into force on July 16, 1994, thus, the controller could at the best, be appointed for a period of two years with effect from 16.6.1994. In the present case, the controller was appointed on 19.7.1994 for one year. The period of appointment came to an end on 18.7.1995. He was again appointed on 27.7.1995 without specifications of time. Two years time came to an end on 15.6.1996. The respondent No. 3, thus, ceased to be the controller with effect from 15.6.1996. The respondent No. 3. therefore, had prima facie no Jurisdiction to pass the order dated 9.10,1996. In my opinion, after 1.1.1996 respondent No. 3 is holding the office and is acting as Controller without any authority of law, as his appointment and continuance as Controller of Waqf Board is not saved by Section 112 of the Central Act.
29. Learned counsel for the contesting respondents- Mr. N. K. Seth also referred to and relied upon the order passed by this Court dated 13.6.1996 in Writ Petition No. 1689 (M/BJ of 1996 where a learned single Judge directed (as interim measure), for continuance of the Wakf Board and the Tribunals constituted in the repealed Act. The said order was stayed by the Supreme Court vide order dated 19.12.1996 in S.L.P. No. CC 6851-6854 of 1996, therefore, respondent No. 3 was not right in saying that he was exercising the powers on the basis of the said interim order and that on the strength of the interim order dated 13.6.1996, he was entitled to act as the Controller of the Wakf Board. Further this Court could not confer jurisdiction upon any authority or Court, by means of an interim order, where there existed none. Therefore, the learned counsel for the respondent was also not justified in placing reliance upon the interim order of this Court which has already been stayed by the Supreme Court.
30. Admittedly, the case under Section 55 was heard by the Secretary of the Wakf Board, on the strength of order passed by respondent No. 3 whereby the power to hear the cases was delegated to the Secretary. Delegation of power of hearing the cases also include to decide the same, therefore, after hearing the case, the Secretary should have passed the order. He had no authority to place the record before respondent No. 3 and. respondent No. 3 had no jurisdiction to pass the orders against the petitioner, otherwise also legally a case heard by a competent authority or Court is required to be decided by that very authority or Court unless, of course, there is any statutory provision to the contrary. Section 20 of the Act which provided for the power of delegation also stands repealed, therefore, on the relevant date, the respondent No. 3 had no Jurisdiction to exercise the said power. Even assuming that the power of delegation was rightly exercised, only the Secretary could decide the cases and not the respondent No. 3. Thus, in any view of the matter, all proceedings for passing the order by the respondent No. 3 were null and void. A reference in this regard may be made to the decision in Mrs. Leela Jain v. State of Rqjasthan, AIR 1966 Raj 50 (FBI, wherein after considering several decisions of Apex Court and other High Courts, it was ruled as under :
"In our considered opinion, the authority which hears a matter like this. must be the one which is capable of deciding it and, that which decides it must also hear it. and if that is not so. hearing becomes more or less a force or in the language of their Lordship of the Supreme Court 'an empty formality' That being so, the order which is impugned before us. cannot be supported in law and we quash it accordingly."
31. Otherwise also the order dated 9.10.1996, has been passed in violation of principle of natural justice, inasmuch as respondent No. 3 did not afford any opportunity of hearing or to explain the case before passing said order. Said order is thus, apparently, non-est.
32. It was also urged by learned counsel for the contesting respondents, that in view of Section 6 of General Clauses Act. repealing Act cannot be given effect to, till Board is re-constituted, and the controller, as there existed no Board in Uttar Pradesh. was entitled to continue in the office. In support of his argument, learned counsel attempted to place reliance upon decision of the High Court of Andhra Pradesh. alleged to have been given in Muslim Minority Front v. Gout, of Andhra Pradesh. W.P. No. 830 of 1996. an uncertified copy of which has been placed on the record of the case, with supplementary objections. Said copy is incomplete jnasmuch as page 8 of the judgment is missing from it. It is thus, nothing but a draft of the judgment. No reliance upon the said judgment can be placed by learned counsel for the contesting respondents. Same is liable to be Ignored.
33. Even assuming that there existed any such judgment, as referred to above, it may be noted that in Andhra Pradesh, there existed no local Act. analogous, to U. P. Act No. 16 of 1960. In Andhra Pradesh Central Wakf Act, 1954 was in force, before enforcement of Act No. XLIII of 1995. In the Wakf Act, 1954 there existed no provision like Section 14 of the U. P. Act. Question arose, as to whether Board constituted under 1954, Act after enforcement of the Central Act. 1955 survives or not. at page 27 of the said judgment, it was observed :
"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. 1955. Even going by the wider meaning of the expression "corresponding provisions' in sub-section (2) of Section 112 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."
After recording aforesaid finding, there was no justification for holding that existing Board shall survive till composition of new Board, as was ultimately held. In my opinion, the approach of the learned Judges, with regard to them, was apparently erroneous. Same is. therefore, riot acceptable to me.
34. In view of the aforesaid discussion, and in view of facts and circumstances stated in the application for grant of interim injunction dated 7.1.97, particularly paragraphs No. 21, 22 and 23 of the application, petitioner was entitled to interim relief during pendency of reference before respondent No. 1. Respondent No. 1 has failed to exercise jurisdiction in refusing to grant interim relief even after hearing the parties for several dates and in fixing, the case for final hearing, instead of granting interim injunction. Orders passed by respondent No. 3 Impugned in the aforesaid reference, were prima facie, illegal and unenforceable in law. On the basis of said orders, mutawallls of the wakf could not be ousted from their respective offices and the lease deed executed by them could not be discarded by respondent No. 3. Writ petition therefore, deserves to be allowed in part.
35. Writ petition succeeds and is allowed in part. The order dated 28.8.97, in so far it impliedly rejects the application for interim injunction during the pendency of the reference, is quashed. The respondenu No. 1 is directed to dispose of the reference filed by the petitioner, finally within a period of one month from the date a certified copy of this order is produced before said respondent. Till disposal of the reference respondent Nos. 2 and 3, are restrained from interfering in the affairs of wakf in question, in any manner.
36. No order as to costs.