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Section 96 in The Wakf Act, 1995
Section 97 in The Wakf Act, 1995
The Wakf Act, 1995
Article 372 in The Constitution Of India 1949
The South India Corporation(P) ... vs The Secretary, Board Of ... on 13 August, 1963

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Andhra High Court
Majlis-C-Shura Dasti Parcha Bafi ... vs A.P. Wakf Board, Hyderabad And ... on 28 July, 1998
Equivalent citations: 1998 (5) ALD 236, 1998 (5) ALT 761
Author: U C Banerjee
Bench: U C Banerjee, B Nazki



ORDER
 

 Umesh Chandra Banerjee, C.J.

1. These writ appeals are directed against the order of the learned single Judge wherein the Rule nisi issued has been made absolute in part. The learned single Judge, while dealing with the matter did set aside the direction contained in the impugned resolution of the Wakf Board authorising the Chief Executive Officer to proceed for taking over the properties into the direct management along with institutions. The learned Judge further directed that the inquiry initiated by the Andhra Pradesh Wakf Board under Section 71 of the Wakf Act, 1995 shall continue and in the event the allegations made against Sri KM. Arifuddin stand proved, it would be open to the Wakf Board to order for taking over the properties into the direct management of the Board along with the institutions. It is this order which is under challenge in the appeals.

2. On the factual score it appears that the inquiry was being conducted in terms of the directive of the State Government and it is on this count Mr. Ramana Reddy, learned senior advocate appearing in support of the appeals contended that having due regard to the provisions of Section 97 of the Act the State Government has no power or authority to issue a directive on to the Wakf Board to get the inquiry initiated against the petitioner. For convenience sake, Sections 96 and 97 of the Act are set out below:

"96. Power of Central Government to Regulate Secular Activities of Wakfs:

(1) For the purpose of regulating the secular activities of Wakfs, the Central Government shall have the following powers and functions, namely:--

(a) to lay down general principles and policies of Wakf administration insofar as they relate to the secular activities of the Wakfs;

(b) to co-ordinate the functions of the Central Wakf Council and the Board, insofar as they relate to their secular functions;

(c) to review administration of the secular activities of Wakfs generally and to suggest improvements, if any.

(2) In exercising its powers and functions under sub-section (1), the Central Government may call for any periodic or other reports from any Board and may issue to the Board such directions as it may think fit and the Board shall comply with such directions.

Explanation: For the purposes of this Section "secular activities" shall include social, economic, educational and other welfare activities.

97. Directions by State Government:

Subject to any directions issued by the Central Government under Section 96, the State Government may, from time to time, give the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with such directions."

3. The learned single Judge, on this score, has been categorical enough to record that if the Central Government has laid down any general principles or policies relating to Wakf administration, the State Government shall exercise its policies subject to or in conformity therewith, but if the Central Government has not laid down any such principle or if there is any matter not connected or related to any such general principles of policy to be laid by the Central Government, the State Government could be free to issue directions to the Wakf Board. It is this observation of the learned single Judge which has been strongly commented upon by the learned senior advocate appearing in support of the appeals. It is contended that a proper reading of the provisions of the statute would unmistakably depict Section 97 does not have any independent application but has been engrafted on to the statute book as a necessary and ancillary power to that of Central Government as recorded under Section 96. We are, however, unable to record our concurrence with the submissions of Mr. Ramana Reddy, learned senior advocate. The language used is specific. The expression "subject to any directions issued by the Central Government" has a definite legal connotation and cannot but be taken note of that in the event the field is occupied by the Central Government, the State Government must have to act in terms therewith, but in the event the field is not occupied by the Central Government, there is no embargo or fetter on the part of the State Government to issue necessary directive to the Wakf Board. That is exactly what the learned single Judge has also taken recourse to in interpreting the above noted two provisions of the statute namely Sections 96 and 97. Mr. Reddy, in support of his contentions placed strong reliance on a decision of the Supreme Court in the case of South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum, , wherein the Supreme Court in paragraph 13 of the report observed that the words "subject to the other provisions of the Constitution" should be given a reasonable interpretation, an interpretation which would carry out the intention of the makers of the Constitution and also which is in accord with the constitutional practice in such matters. The Supreme Court observed:

"The article posits the continuation of the pre-existing laws made by a competent authority notwithstanding the repeal of Article 395; and the expression "other" in the Article can only apply to provisions other than those dealing with legislative competence."

Be it noted that while dealing with the matter, the Supreme Court, in no uncertain terms observed that the object of Article 372 is to maintain the continuity of the pre-existing laws after the Constitution came into force till they were repealed, altered or amended by a competent authority. Without the aid of such an article there would be utter confusion in the field of law. The assumption underlying the article is that the State laws may or may not be within the legislative competence of the appropriate authority under the Constitution. The article would become ineffective and purposeless if it was held that pre-Constitution laws should be such as could be made by the appropriate authority under the Constitution. The words "subject to the other provisions of the Constitution", the Supreme Court observed, should, therefore, be given a reasonable interpretation.

4. In the facts of the matter under consideration, however, we do not see any application of the decision of the Supreme Court. In any event, the words "subject to any directions issued by the Central Government" cannot but mean that in the event of there being any direction by the State Government and in the event of there are similar directions by the Central Government, the directions of the State Government shall be subject to the directions of the Central Government and not independently of it. In our view, there is no confusion, neither there exists any scope therefor. As such, we do not see any infirmity in the order of the learned single Judge as regards the continuation of the inquiry, neither there is any lack of propriety so far as the State Government is concerned. As such these appeals fail and are dismissed. No order as to costs.