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It appears that said order dated 04.04.1996 was challenged by Sri Sahibzada Khurshid Husain before the Waqf Board itself and accordingly, the Controller of the Waqf Board passed an order on 05.06.1996 whereby he stayed the operation of the order dated 04.04.1996. The petitioner of both these writ petitions, Sri Sahibzada Moinuddin Siddiqui has challenged the said order dated 05.06.1996, passed by the Controller of the Waqf Board in writ petition no. 3778(MB) of 1996.

In respect of writ petition no. 3778(MB) of 1996, the sole submission made by Sri Jilani, learned counsel representing the petitioner is that after the enactment of Waqf Act, 1995 which came into force on 01.01.1996 by virtue of a Notification issued under Section 1(3) of the Waqf Act, 1995, the office of Controller of the Board created under the U.P. Muslim Waqf Act, 1960 seized to exist legally and therefore, any order passed by the Controller after 01.01.1996 will be an order completely without jurisdiction and hence, void ab initio. To fortify his submission, Sri Jilani has stated that prior to enactment of Waqf Act, 1995, the entire field relating to Muslim Waqfs in the State of U.P. was covered by the U.P. Muslim Waqfs Act, 1960 and under the said enactment, the Controller of the Waqf Board was appointed to discharge the functions of the Board and since Waqf Act, 1995 does not envisage any office of the Controller, hence the Controller appointed under the old Act of 1960 can not be said to have any jurisdiction to pass any order after 01.01.1996.

We will first consider and scrutinize the veracity of the arguments raised by the learned counsel appearing for the respective parties in respect of the order dated 05.06.1996 passed by the Controller of the Waqf Board, which is under challenge in Writ Petition No.3778 (M/B) of 1996.

Prior to enactment of the Waqf Act, 1995, the legislative field in respect of Waqfs in the State of Uttar Pradesh was held by a State Legislation known as U.P. Muslim Waqfs Act, 1960. The 1960 Act was enacted by the State Legislature with a view to provide a better governance, administration and supervision of the Waqfs in the State of Uttar Pradesh. The said Act contains exhaustive provisions so as to provide better governance and supervision of the Waqfs. Under Section 10 of the said Act, two separate Boards, which were called the "Sunni Central Board' and the "Shia Central Board" of Waqfs, were established which were entrusted with various statutory functions. The Waqf Board was, thus, constituted in terms of the provision contained in Section 10 of the said Act. In terms of the provision contained in Section 11, the Board constituted/established under 1960 Act was a multi member body which conducted and transacted its business entrusted to it under the said Act and the quorum for the meeting of the Board as prescribed under Section 16 of the Act was one-half of the total number of the members of the Board. The functions of the Board were provided under Section 19, according to which the Board was empowered to do all things reasonable or necessary to ensure that the Waqfs are properly maintained, controlled and administered. Under section 19(2)(o), the Waqfs Board was also vested with the power to remove and appoint a Mutwalli. The Board could delegate some of its powers in terms of the provision contained in Section 20 including the power to appoint and remove the Mutawalli. Sub-section (2) of Section 14 of 1960 Act provides that in case on account of result of any interim order of any court, if the State Government is unable to issue a notification for constitution of the new Board or after issuance of such notification the new Board is unable to function, the State Government could appoint a Controller of the Board which was empowered to perform, exercise and discharge the functions, powers and duties of the Board as well as those of its President and members. The appointment of Controller under 1960 Act is, thus, available in Section 14(2). However, the issue which falls for consideration in this case is as to whether any Controller could be appointed after Waqf Act, 1995 came into force and as to whether any Controller, if appointed even before the Waqf Act, 1995 came into force, would continue to discharge its functions in terms of the provisions contained in section 14(2) of 1960 Act.

Even if, the Controller in the instant case was appointed prior to 01.01.1996 i.e. prior to enforcement of 1995 Act, his authority, much less any legal authority, ceased to exist once 1995 Waqf Act was enforced by the notification issued under Sub-section (3) of Section 1 of 1995 Act on 01.01.1996. It is not a case where certain proceedings were instituted prior to 01.01.1996 before the Controller and in such a proceedings pending on 01.01.1996, the order dated 05.06.1996 was passed. Admittedly, the order dated 05.06.1996 has been passed on an objection raised by Sri Sahibzada Khurshid Husain against the order dated 04.04.1996 passed by the officiating Secretary of the Waqf Board appointing Shri Sahibzada Moinuddin Siddiqui as Mutawalli of the Waqf in question. Thus by any stretch of imagination, it cannot be said that the order passed by the Controller of the Waqf Board dated 05.06.1996 was passed in any proceedings which were initiated prior to 01.01.1996 or in proceedings which can be said to be pending on 01.01.1996 i.e. the date on which the Waqf Act 1995 was enforced.

Accordingly, in our considered opinion the repeal and savings clause contained in Section 112 of the Waqf Act, 1995 does not save any action taken or even the impugned order passed on 05.06.1996 by the Controller of the Waqf Board for the reason that the said order has not only been passed after the Waqf Act, 1995 was enforced but also for the reason that the impugned order has been passed not in any proceedings which were initiated prior to enforcement of Waqf Act 1995 or were pending on the date of enforcement of the said Act. The Controller of the Waqf Board, thus, ceased to have any jurisdiction to take any action or pass any order after 01.01.1996. At the most, though not very relevant for the purposes of adjudicating the issue involved herein, the Controller could have passed the order or taken some action on a proceeding instituted prior to 01.01.1996 and which could be said to be pending and continuing before the said date i.e. before 01.01.1996.