1. Since the main controversy revolves round some questions of law, this case, with the consent of parties has been heard at length at the stage of admission itself and the points are decided as follows :--
2. In this matter one I.A. No, 359 of 1999 has been filed by one Saiyed Salman Hussain for allowing him to appear in this matter as an Intervenor-respondent. He is permitted to do so and is heard through his counsel. In fact the main argument in this case has been advanced by the learned counsel for the Intervenor-respondent.
3. The factual aspect of the case urged before me at the argument stage is in a narrow compass. The petitioner is claiming himself to be the Chairman of the Bihar State Shia Wakf Board (hereinafter referred to as the said Board) prior to its present constitution under the impugned notification dated 31st December, 1997. The main challenge to that notification, inter alia, is on the ground that the said notification dated 31st December, 1997 by which the present Board (respondent No. 5) has been brought into existence is void in law in view of the fact that it has been issued in purported exercise of power under the Wakf Act, 1954 (hereinafter called 1954 Act). The 1954 Act is no longer in existence in view of the present Wakf Act, 1995 (Act 43 of 1995) (hereinafter called the 1995 Act). The petitioner asserts that he is a member of the present Board which is illegally constituted under 1954 Act but he has resigned from the Board as the said constitution is per se illegal and he is challenging the constitution of Board, inter alia, on the ground that after the 1995 Act has come into existence on 1st January, 1996, the impugned notification dated 31st December, 1997 which purportedly constitute the Board under the 1954 Act is void from the very inception and as such the said notification is a nullity and should be quashed.
4. Learned counsel for all the respondents opposing the aforesaid contention of the petitioner raised various points on the commencement of the Act and advanced arguments on the interpretation of Section 1 and its various sub-sections in 1995 Act. The matter was not much argued on factual aspects save and except that the learned counsel for the Intervenor-respondent referred to certain inquiries which are going on against the writ petitioner and also the fact that the writ petitioner was removed from the Chairmanship of the erstwhile Board.
5. But since the main argument has been mostly advanced on the interpretation of the statutory provisions of Section 1 of the 1995 Act and other legal questions, I have not given any finding on the allegation against the writ petitioner or on the legality of any inquiry if any is pending against him.
6. The admitted facts of this case are that the previous Board of which the writ petitioner happened to be the Chairman was constituted by Government notification No. 99 dated 1-10-1992 for a term of five years and the first meeting of the said Board was held on 13-10-1992. Thereafter admittedly its term of five years has expired.
7. Now the question is whether the 1995 Act has come into force on 1st January, 1996 as is contended by the writ petitioner.
8. It is not in dispute that if the new Act has come into force on 1st January, 1996, as is the contention of the writ petitioner, then the impugned notification dated 31st December, 1997 by which the said Board was constituted under the provisions of the 1954 Act is an action which is void ab initio.
9. This Court has compared the provisions for constitution of the Board under the 1954 Act and the 1995 Act and found that the provisions are substantially different. Therefore, it is not a case of merely referring to a wrong provision while passing the impugned notification. The question is of exercising completely a different power under the provisions of the 1995 Act for constituting the said Board.
10. Learned counsel for the petitioner in support of his contention has drawn the attention of this Court to the provisions of Section 1 of the 1995 Act and particularly Sub-section (3) of Section 1 of the 1995 Act. Sub-section (3) of Section 1 of the 1995 Act on which the main argument was advanced is set out below :--
"It shall come into force in a State on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas within a State and for different provisions of this Act, and any reference in any provisions to the commencement of this Act, shall, in relation to any State or area therein, be construed as reference to the commencement of that provision in such State or areas."
11. Learned counsel for the petitioner while referring to the provisions of the said Act has stated that the assent of the President of India to the 1995 Act was published in the Official Gazette on 22-11-1995 but in view of the provisions of Sub-section (3) of Section 1 of the 1995 Act, it has come into force on 1-1-1996 in terms of the notification to that effect by the Central Government. The said notification issued by the Government of India, Ministry of Welfare is to the following effect:--
"S.O. 1007 (E) -- In exercise of the power conferred by Sub-section (3) of Section 1 of the Wakf Act, 1995 (43 of 1995), the Central Government hereby appoints the 1st day of January, 1996, as the date on which the said Act shall come into force."
12. From the materials on record (Annexure-5 to the supplementary affidavit of the petitioner) it appears that a communication by way of telegram was issued from which it is clear that in exercise of the powers conferred on it by Sub-section (3) of Section 1 of the 1995 Act, the Central Government has appointed 1st January, 1996 as the date on which the said Act shall come into force. In the said communication a direction was also given to the effect that necessary action including constitution of Wakf Board, appointment of Survey Commissioner and Chief Executive Officer, constitution of Tribunals etc. may be taken by the State Government on top priority basis. A copy of that telegram along with a copy of 1995 Act has been addressed to the Chief Secretary of the State.
13. Learned counsel for the petitioner stated that in view of the aforesaid materials on record it cannot be disputed that the 1995 Act has come into force in the State of Bihar also on 1 st January, 1996 and, therefore, the impugned notification dated 31st December, 1997 including its correction by another notification of the same day under 1954 Act, which stands repealed, are void in law. The said contention of the petitioner has been opposed by all the lawyers appearing for the different respondents.
14. Learned counsel for the respondent-Board submitted that the notification dated 27th December, 1995 purporting to be under Sub-section (3) of Section 1 of the New Act is a general notification and not a specific notification as is required under Sub-section (3) of Section 1 of the 1995 Act. Apart from that learned counsel further submitted with reference to Annexure-D to the counter-affidavit filed by it that the matter relating to application of the provisions of the 1995 Act was considered by this Court by a Division Bench and by its order dated 7-1-1998 the following observation was made :
"Having heard learned counsel and on considering the relief as claimed that provision of Wakf Act, 1995 (Act No. 43 of 1995) be directed to be implemented, we are afraid such relief by way of issuing mandamus directing the State Government cannot be issued. (See AIR 1988 SC 1768).
Petition is accordingly dismissed. However, it is made clear that if State Government considers it proper, this order will not come in their way."
15. Relying on the aforesaid observation of the Division Bench learned counsel for the respondents-Board submitted that the 1995 Act cannot be said to have been implemented in this State. Learned counsel for the respondent-Board further submitted that having regard to the provisions of Section 14 of the 1995 Act, that Act can be made applicable to a State only on the basis of a second notification and the only notification which has been issued, as pointed out above, is not sufficient.
16. It does not appear from the observation of the Division Bench that the notification dated 1 st January, 1996 was brought to its notice. Therefore, those observations without noticing the relevant notification, do not have any binding force and obviously cannot be treated as a precedent. Apart from that the questions which are urged here were not in issue before the Division Bench.
17. Learned counsel for the State has also submitted that the 1995 Act has not come into force and as such the impugned notification issued under the old Act is valid and proper and this Court should not exercise its jurisdiction to quash a valid notification issued under the existing law.
18. Learned counsel for the Intervenor-respondent argued in extenso in support of his intervention petition and he raised a few more additional points apart from urging that the notification referred to above is not a notification under Sub-section (3)of Section 1 of the said Act. He further states that the said Act has not been notified for the State of Bihar. Learned counsel further contended that for each different States different notifications should be made. Learned counsel further submitted that in Sub-section (3) of Section 1 of the 1995 Act the expression "a State" occurs. Therefore, according to him this contemplates different notifications for different States. Learned counsel further submitted that there cannot be a deeming commencement of the Act under Section 1(3) of the 1995 Act. Apart from advancing the aforesaid argument, in support of his submission learned counsel further submitted that the petitioner has no locus standi to challenge the notification as he is not the person aggrieved in view of the fact that the petitioner is included as a member of the Board under the impugned notification. Apart from that learned counsel further submitted that under the said notification a Board has been constituted consisting of various persons. Those persons have not been made parties to the writ petition even though the Intervenor might have come forward on his own but other members of the Board which is constituted under the impugned notification have not been impleaded and as such they have not been noticed and have not been heard. They have a valuable right under the impugned notification and they must be heard. Therefore, this Court without hearing them cannot quash the impugned notification. Learned counsel further submitted that the principles of natural justice demands that all those persons who have been named in the impugned notification should have been impleaded and should have been heard and in their absence this writ petition should be dismissed as not maintainable.
19. This Court proposes to examine first the main question whether the 1995 Act has actually come into existence in the State of Bihar as has been urged by the learned counsel for the Respondents.
20. The commencement of an Act is at times controlled by the provisions of the Act itself. Sometimes an Act commences as soon as it receives the assent of the President of India but sometimes the commencement of the Act is deferred to a future date depending on the provisions of the Act which empower a delegated authority to bring the Act into operation on a future date, may be in parts or may be the whole of the Act in one go. Sometimes it provides that the different dates may be appointed for commencement of different provisions for different areas within a State.
21. In this connection it may be noted that there is a distinction between making of law and its commencement. As soon as the assent is given by the President to the law passed by the Parliament, the making of the law is complete but the commencement of the law may be expressed in the Act itself and/or to be postponed to a future date by giving power to the Executive or the delegated legislation to bring that Act into force at a particular point of time.
22. In the instant case Sub-section (3) of Section 1 of the said Act is one such provision. But if closely read, Sub-section(3) of Section 1 of the said Act leaves the choice to the Central Government, a delegated authority in the matter. The Central Government may bring into operation the entire Act in one go or may appoint different dates for commencement of different provisions for different areas within a State. In the instant case from the notification referred to above issued by the Central Government it appears that the Central Government has chosen the first course, namely, it has brought into operation the entire Act by one notification referred to above.
23. This choice of the Central Government in this matter, namely, whether the entire provisions of the Act shall be brought into force on one date or whether different dates for different provisions for different areas in a State shall be mentioned is unfettered and it cannot be questioned and it has not been questioned in this proceeding. So in the instant case as the Central Government has chosen to bring into operation the entire provisions of the Act on a particular date, the argument that there should be different notificalions for each State is utterly misconceived.
24. The further argument made by the learned counsel appearing for the Intervenor is that the words 'a State' would mean only one particular Stale and, therefore, a notification which provides for commencement of the Act in all the States is not appropriate, is equally misconceived.
25. Learned counsel with reference to Law Lexicon has tried to establish that 'a' means one. There can be hardly any dispute on that. But the said expression 'a State 6 must be understood in the context in which it occurs.
26. As has been discussed above that the different provisions of the Act can be brought into different areas of different States on different dates if the Central Government so chooses, the expression 'a State' becomes relevant in that context. But where by the said notification the 1995 Act has been brought into operation to all the States to which it extends, the word "a State" would mean that in all States the 1995 Act has come into force save and except the State of Jammu and Kashmir as has been provided under Sub-section (2) of Section 1 of the 1995 Act.
27. Since in the instant case the Act as a whole has been brought into operation by the said notification with effect from 1st January, 1996, no other notification is required to bring into operation the 1995 Act.
28. Reference in this connection may be made to the provisions of Sub-section (13) of Section 3 of the General Clauses Act, 1897. The word "commencement" has been defined under the General Clauses Act as follows :--
" 'Commencement' used with reference to an Act or Regulation shall be the day on which the Act comes into force."
29. If we compare the provisions of the Interpretation Act, 1978, it will be found that it is almost similar to the definition which is given to the word 'commencement' under the General Clauses Act. Under the Interpretation Act, 1978, the definition of word "commencement" is as follows :--
"Commencement in relation to an Act or enactment means the time when the Act or enactment comes into force."
30. Reference is this connection may be made to the provisions of Section 13(2) of the General Clauses Act which is set out here-in-below :--
"Words in the singular shall include plural and vice verse."
31. Faced with this provisions of the General Clauses Act, learned counsel for the Intervenor-respondents cited a few decisions in order to contend that here 'a State' would mean 'a single State'. Reliance in this connection has been placed by the learned counsel on the Division Bench judgment of the Patna High Court in the case of . In the said decision the interpretation of Parcel or Package occurring in Section 75(1) of the Railways Act, 1890 came up for consideration and it was held that the word 'parcel' or 'package' will mean the singular and not the plural. The learned Judges have quoted Section 75(1) of the Railways Act, 1890 as it stood prior to amendment in 1947 and 1949 and stated in paragraph 2 that in order to understand the significance of this expression the facts of the case should be noted and thereafter noted the facts of the case. It appears from a reading of various paragraphs in the said judgment that the said interpretation centred round a commercial transaction of booking parcel or package in the Railway and the consequent liability of the Railway administration in the case of loss of parcel or package. In the said context the learned Judges of the Division Bench considered Section 13(2) of the General Clauses Act and held that the provisions of Section 13(2) of the General Clauses Act must be read in the context of the subject. The learned Judges came to the conclusion that in the context of the case in Section 75(1) of the Railways Act, the word 'parcel' or 'package' cannot be said to include plural also. In coming to the said conclusion the learned Judges of the Division Bench in Radha Kishan Nathani (AIR 1957 Patna 231) (supra) have given the following reasons (para 12):--
"Section 75(1) contemplates two objects : (1) the articles mentioned in the second schedule, and (2) the object which constitutes the container for the article. Therefore, unless there is a parcel or a package in which the article is contained, Section 75( 1) can have no application. The word 'package' was construed by Lord Justice Goddard in Studebaker Distributors Ltd. v. Charlton Steam Shipping Co. (1938) 1 KB 459 (K). The distinguished noble Lord said that : 'package' must indicate something packed". Desai, J., of the Allahabad High Court in Firm Mahesh Glass Works (AIR 1950 All 543) (B) (supra), observed, "A bare article like a car or a silver bar or a bangle cannot possibly be described as a parcel or package; in order that an article can be said to be 'contained' in a parcel or package, it is necessary that some other article is used with it in order to protect it, or cover it, or keep it in position or keep it together with another article or articles."
32. Therefore, in view of the aforesaid reasons the learned Judges came to the conclusion in paragraph 16 of the judgment that the word 'parcel' or 'package' means the singular and not the plural, and, it contemplates each individual 'parcel' or 'package', and not the entire 'consignment' or 'luggage' consisting of several parcels or packages.
33. This Court fails to understand how, the concept of 'a State' in the context of Section 1(3) of 1995 Act can be equated with the commercial connotation of the word either 'parcel' or 'package'. Judged in this context, this Court is unable to uphold that the argument of the learned counsel for the Intervenor that here 'a State' will not include 'all the States'. Such an argument is wholly "repugnant to the context".
34. Learned counsel for the Intervenor-respondent has also relied on another judgment of this Court in the case of Chandi Prasad v. Rameshwar Prasad Agarwal, reported in AIR 1967 Patna 41 : 1966 BLJR
869. This decision is not an authority on Section 13(2) of the General Clauses Act but in this decision the provisions of Section 259 of the Bihar and Orissa Municipal Act, 1922 came up for consideration. On a construction of Section 259 of the said Act, the learned Judges found that only one question was urged before them, namely, whether only one licence has to be taken for carrying on in the same premises more than one of the trades or businesses specified in Section 259(1) of the Municipal Act or whether separate licence with corresponding liability to pay separate fees have to be taken out for carrying on each of such trades and businesses.
35. The contention raised before the learned Judges of the Division Bench was that only one licence was required to be taken. That contention was repelled by the learned Judges by holding that in the particular context in which the word 'any' has been used, it implies 'all'. The learned Judges held that the object of the section, namely, the provisions of Section 259 of the Act is to ensure that none of the trades or businesses specified in the Sub-section is carried on within the Municipal area until the Commissioner have an opportunity of determining whether the carrying on of such trades or businesses at the place concerned would be proper on consideration of the health safety etc., of the people of the locality and such other factors as may be relevant including the necessity of ensuring proper cleanliness and sanction. On consideration of these facts, the learned Judges held in paragraph 6 of the said judgment that the petitioner has to take out separate licence for different businesses coming under the scope of Section 259 of the Act.
36. This Court fails to appreciate the relevance of this ratio in the context of interpretation of Sub-section (3) of Section 1 of the 1995 Act read with Section 13(2) of the General Clauses Act.
37. On the other hand the Full Bench judgment has been cited by the learned counsel for the petitioner in the case of S. Sher Singh v. Raghupati Kapur, reported in AIR 1968 Punjab 217, has construed the word 'State' in the context of Section 2 of the Contempt of Courts Act, 1952. On consideration of the relevant provisions of the Act, the learned Judges of the Court held that in this context the word 'State' would mean the 'States'. The ratio of this judgments applicable here,
38. Similar view has been expressed by the Hon'ble Supreme Court in the case of Wealth-tax Officer, Calicut v. C.K. Mammed Kayi, reported in AIR 1981 SC 1269. In that case while interpreting the ambit of the word 'individual' as an Unit, the learned Judges held, keeping in mind the principles of Section 13(2) of the General Clauses Act, that 'individual' does not include only a human being but it is wide enough to include a group of persons. Here also the same principle should apply while construing the expression 'a State' in the light of the context in which it occurs and in the light of the principles of Section 13(2) of the General Clauses Act 'a State' would mean all the States to which 1995 Act extends under Section 1 (2) of the said Act.
39. On the point that there cannot be a deemed bringing into force of a law, learned counsel for the Intervenor placed considerable reliance on the decision in the case of the State of Orissa v. Chandrasekhar Singh Bhoi, reported in AIR 1970 SC 398. In that case the provisions of Orissa Land Reforms Act, 1960 were under consideration. The said Act was assented to by the President on 17th October, 1960. Section 1(3), similar to the 1995 Act, was there. By a notification, certain provisions of principal Act, other than Chapters III and IV were brought into force. Then Chapter HI was brought into force subsequently. But Chapter IV was not brought into operation. Later on by way of amendment Chapter III and Chapter IV were deleted and substituted by fresh provisions.
40. Before the High Court it was contended that Chapter IV, even though not brought into force by a notification under Section 1(3) on being enacted is a law in force. That argument was accepted by the High Court.
41. The Hon'ble High Court refused to accept that view of the Hon'ble High Court with the following reasoning :
"A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statute being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity."
42. This Court is in respectful agreement with the above proposition. Here the entire Act has been brought into operation by the aforesaid notification under Section 1(3) of the 1995 Act. So there is a total situational difference in this case. Thus in this case there is no 'deemed' bringing into force of a law. Therefore, the ratio in Chandra Shekhar (AIR 1970 SC 398) (supra) does not at all support the contentions of the learned counsel.
43. The other point which was canvassed by the learned counsel for the Intervenor is that the petitioner has no locus standi to file this writ petition in view of the fact that the petitioner is not a person aggrieved. Learned counsel further urged that the petitioner is seeking a writ of certiorari which being a discretionary remedy cannot be given in favour of the petitioner.
44. This Court is not impressed by this submission. It cannot be said that the petitioner is a stranger to the proceeding. The petitioner was previously the Chairman of the erstwhile Board. Even in the impugned notification, the petitioner has been nominated as a member of the said Board. But the petitioner has resigned from the said Board as a protest as according to the petitioner the constitution of the present Board is void in law. In this connection this Court has considered the representation made by the petitioner which is at Annexure-4 to the writ petition and from the representation it appears that the petitioner has taken this point from the very beginning that the present Board has been constituted in complete violation of the legal position and as such he does not want to continue as a Member in the said illegally constituted Board.
45. The contention that a person who has been nominated to a particular Board does not have the locus to complain about the illegal constitution of the said Board is without substance. This contention is not consistent with the principles of locus standi in the field of public law as has been recently enunciated by the Apex Court in a number of cases. The impugned constitution of the present Board under the statutory provision is an exercise in public law and in the field of public law the traditional rigours of locus standi have been sufficiently watered down by the Hon'ble Supreme Court by a series of judgments. This position is too settled to be reiterated once again. In view of the accepted legal position on this aspect, this Court cannot persuade itself to accept this contention urged by the learned counsel for the Intervenor.
46. The other point which has been urged by the learned counsel for the Intervenor-respondent is that as all the persons who are made members of the Board have not been impleaded and they have not been heard, mis writ petition cannot continue in their absence.
47. This is also an objection which is without any substance. Here the petitioner has made the Board a party. The Board is a body corporate and can sue and be sued in its own name. Learned counsel for the Board has been heard also in this matter. It has been repeatedly held by the Courts that by a totally illegal constitution or by a totally illegal act, the so-called beneficiaries of such act do not acquire any right and a challenge to the said illegal act can be entertained in absence of the so-called beneficiaries.
48. In this context, it has to be kept in mind that after the date of commencement of the 1995 Act, that is with effect from 1st January, 1996, the 1954 Act stands expressly and totally repealed by Section 112 of the 1995 Act. However, actions which are pending under 1954 Act, at the time of repeal, are saved under Sub-section (2) of Section 112. This is an usual provision consistent with Section 6 of the General Clauses Act.
49. It has not been argued before me, and quite rightly, that the impugned notifications (Annexures-1 and 1-A) both dated 31st December, 1997 for constitution of the Board are pending actions under 1954 Act when repeal took place much before on 1st January, 1996 with the commencement of 1995 Act.
50. It is also not in dispute that here it is a case of total repeal of 1954 Act by Section 112 of the 1995 Act. Repeal of any statute has always been considered a matter of substance and not merely of form. A three-Judge Bench of the Apex Court in India Tobacco Co. Limited v. C.I.O., reported in (1975) 3 SCC 512 at 517: (AIR 1975 SC 155 at p. 158) held that repeal connotes abrogation and obliteration of one statute by another, and except as to transactions past and closed. The position is as if the statute had never existed. This ratio has also been affirmed by a subsequent three-Judge Bench of the Supreme Court in Gajraj Singh v. State Transport Appellate Tribunal, reported in (1997) 1 SCC 630 at page 665 : (AIR 1997 SC 412 at p. 421).
51. Therefore, the position in law which emerges is that the impugned notifications dated 31st December, 1997 having been passed in exercise of powers of a statute which stands obliterated on 1st January, 1996, does not confer any right whatsoever on the persons mentioned in the said notification.
52. That apart it has also been held, even in the context of appointment to public office that where such appointments have been made in a manner which is not in consonance with the legal provisions, the persons holding such office have acquired no right and need not be heard before their services are terminated. The purpose behind impleading a party is to give the party the opportunity of hearing. This is a requirement of natural justice principles.
53. Natural Justice principles on the basis of audi alteram partem are meant to ensure fairness in administrative and executive action and also in connection with quasi-judicial functions. But these principles are always relevant in the context of a right. When no right has been acquired by those who were made members of the so-called Board which has been constituted in a manner which is wholly without jurisdiction and void in law, those members cannot complain of deprivation of any right, if constitution of the so-called Board is quashed after hearing the Board which is a body corporate.
54. If in the context of employment or appointment which is a facet of the right of life, the legal position is that persons appointed without following valid procedure and in violation of Articles 14 and 16 of the Constitution are not entitled to be heard before their services are terminated, the members of the Board are in an even worse position, Such membership of the so-called Board is not supposedly an office of profit or a mode of sustenance of life of the members concerned. Therefore, if the said illegal constitution of the Board is challenged, and the Board is made a party and the Board is heard and the challenge is decided, to my mind no principle of natural justice is breached. After all principles of natural justice admit of sufficient flexibility in the given context and cannot and should not be allowed to bring about unnatural consequences. So this point is also overruled.
55. The State Government in its first affidavit has also accepted the position at least in paragraph 8 thereof that 1995 Act has come into force on 1 st January, 1996. In the subsequent affidavit in paragraph 4 some attempt is made to wriggle out of that position. But even in the second affidavit affirmed on 12-1-1999 they have not been able to completely disown the position that the 1995 Act has come into existence inasmuch as in the second affidavit in paragraph 4 they have stated as follows :--
"In this connection it is also pertinent to state that prior to implementing the provisions of Wakf Act, 1995 the State Government were required to take the following steps towards implementation of the Act, following which the different provisions of the Act could be notified."
56. The said stand is wholly misconceived. The Act is a Central Act and the Central Government has undoubted power under Sub-section (3) of Section 1 of the 1995 Act to notify the same and as soon as the said notification is issued, the said Act commences in all the States. It cannot be contended that the commencement of an act in a State is dependent upon the State Government's issuance of notification under different provisions of the said Act. This argument is wholly misconceived from another point also. It is obvious, unless the Act commences, the State Government cannot issue notifications under the different provisions of the Act. Therefore, the commencement of the Act will take place first and only thereafter the State Government can issue a notification under the different provisions of the Act. It cannot be the other way around as it has been sought to be contended in paragraph 4 of the second counter-affidavit filed by the State.
57. Apart from the aforesaid stand in the counter-affidavit, from the impugned notification also, it will appear that the said notification has also been issued purportedly under the provisions of Section 64 of the 1954 Act which has been later on corrected as under Sections 10 and 11 of the previous Act but it has been stated in the first notification which is at Annexure-1 that the impugned constitution of the Board has been made under the provisions of 1954 Act read with the provisions of 1995 Act. This very stand shows that the State Government is aware that 1995 Act has also come into force.
58. A comparative study of the provisions of 1954 Act and 1995 Act amply demonstrates that after the 1995 Act has come into force, the constitution of the Board has to be under this Act only and not at all under the provisions of the 1954 Act. So the impugned constitution of the Board under 1954 Act read with 1995 Act is wholly misconceived and without jurisdiction.
59. This Court has compared the provisions of Section 10 of the 1954 Act, since repealed, with the provisions of Section 14 of the 1995 Act in so far as the composition of the Board is concerned and this Court finds that the provisions are substantially different and it is not a case of using the same power by referring to a wrong provision. A legal and valid constitution of the Board under Section 14 of the 1995 Act calls for a completely different statutory exercise which are not contemplated under Seclion 10 of the 1954 Act. Here the exercise for composition of the impugned Board has been shown under Section 10 of the 1954 Act which is (no) longer in existence so the entire exercise is wholly without jurisdiction and is an exercise by ignoring the law of the land. Therefore, the impugned notification purporting to constitute a Board under the provisions of 1954 Act is void in law and without jurisdiction and cannot be but be quashed by a Court of law.
60. If the contentions of the learned counsel for the Board and the Intervenor-respondent are accepted, in that case this Court will have to give a judicial declaration for postponing the date of commencement of a valid piece of legislation. This Court cannot do so. Reference in this connection may be made to the propositions laid down by the House of Lords in the case of Factortame Limited v. Secretary of State for Transport, reported in 1989 (2) WLR 997. It was held that a Court has no power to make an order postponing the coming into effect of a Statute which has already commenced. I am in respectful and complete agreement with the aforesaid ratio.
61. Thus both the impugned notifications at Annexures 1 and 1/A are quashed. The members of the respondent Board must vacate their offices forthwith. But there should not be any vacuum. Under the 1995 Act there is a provision under Section 99 thereof enabling the State Government for supersession of the Board. Here no supersession is involved inasmuch as supersession presupposes a valid Constitution. But after supersession, and during the period of interregnum, till a valid Board is constituted, all the powers and duties of the Board, shall during this period of interregnum, be exercised and performed by such person or persons as the State Government may direct and all properties of the respondent-Board shall vest in the State Government. These are contemplated under Section 99 of the 1995 Act.
62. Having regard to the aforesaid provisions in law, this Court is directing the Chief Secretary of the State to act in consultation with the Secretary, Minority Welfare Department, Government of Bihar, Patna (respondent No. 3) to take urgent steps for constitution of a valid Board under the relevant provisions of 1995 Act which has come into force in this State also. All attempts should be made to constitute such Board as early as possible and complete the constitution within a period of six months from the date of service of a copy of this order upon the Chief Secretary of the State. In the meantime, the Chief Secretary in consultation with the Secretary, Department of Minority Welfare, Government of Bihar, Patna (respondent No. 3) shall appoint a Special Officer for discharging the day-to-day functions of the Board and looking after its properties. Such Special Officer will not take any policy decision. If any policy decision is required to be taken, that can only be done with prior consultation with the Chief Secretary of the State. Such appointment should be made within seven days from the date of service of a copy of this order upon the Chief Secretary. It is, however, made clear that if any prosecution or any enquiry has been initiated or is going on or is pending against the petitioner, anything said in this order will not, in any way, impede the same and such enquiry, if any initiated, should go on expeditiously and also in accordance with law.
63. With the aforesaid direction, this writ petition is allowed to the extent indicated above. There will be no order as to cost.
64. Let a copy of this judgment be served upon the Chief Secretary of the State through Special Messenger at the cost of the Court by the Registry as early as possible preferably within a period of three days from today.