# Mohd. Junaid Ajaz & Ors v. Union Of India & Ors. 1102 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 4 ILRA 1101 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-14 - **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, Yashwant Varma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-junaid-ajaz-ors-v-union-of-india-ors-1102-indian-law-reports-allahabad-43550 - **Pages:** 6 ## Headnote Waqf Act, 1995 - Section 83 (1) & (4) - Waqf (Amendment) Act, 2013 - Repealing and Amending (Second) Act, 2015 - Effect of repeal of amending legislation - Constitution and continuance of Waqf Tribunals - Validity. Waqf Act, 1995 - Once the amendments introduced by the Waqf (Amendment) Act, 2013 in Section 83 of the Waqf Act, 1995 have been notified and incorporated into the principal Act, the subsequent repeal of the amending Act by the Repealing and Amending (Second) Act, 2015 does not affect the validity, operation or continuance of the amended provisions. The repeal of an amending statute does not undo or obliterate amendments already merged into the parent enactment. Constitution and continuance of Waqf Tribunals - The Waqf Tribunals constituted pursuant to amended Section 83(4) of the Waqf Act, 1995 therefore continue to exist and function lawfully. Reliefs seeking abolition of Waqf Tribunals at Lucknow and Rampur and restraining their functioning on the ground of repeal of the Amending Act are misconceived. Writ Petition dismissed. No order as to costs. Case listed Jethanand Betab v. State of Delhi, AIR 1960 SC 89; K.K. Vasudeva Kurup v. Union of India, 2002 (4) Mh.LJ 838 Lal Shah Baba Dargah Trust v. Magnum Developers, AIR 2016 SC 381. ## Text 4 All. Mohd. Junaid Ajaz & Ors. Vs Union Of India & Ors. 1101 Minister on that ground alone but is to be left to constitutional functionaries to resolve the issue which is beyond the scope of judicial review. The Governor of a State for exercise of any executive power is to act with the aid and advice of the council of Ministers. I may extract one sentence from para 88 of the judgment referred to above which recites the observations made by M.H. Beg, J. (as His Lordship then was) to make out the point. "Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionally assigned sphere or orbit of authority into that of the other." 40. In yet another judgment reported in AIR 1950 SC 124, in para 12, the apex court while dealing with the legislative competence of State has held as under:- "We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. ..." 41. The executive power of the State, therefore, is subject to all such limitations which are binding on other organs of the State. 42. Consequently, the petition deserves to be consigned to records with the hope and expectation that the constitutional authorities, namely, His Excellency the Governor, the Speaker of the Assembly, the Chief Minister and the Minister concerned would resolve the issue at the earliest. 43. For the reasons already given here-in-above, the issue not being justiciable on the facts of the present case, we are not inclined to interfere and the writ petition is consigned to records. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.03.2016 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. & THE HON'BLE YASHWANT VARMA, J. Public Interest Litigation (PIL) No.- 8068 Of 2016 Mohd. Junaid Ajaz & Ors. ...Petitioners Versus Union Of India & Ors. ...Respondents 1102 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Petitioners: Kshitij Shailendra,Mir Sayed Counsel for the Respondents: C.S.C.,A.S.G.I.,Manish Goyal,R K Jaiswal Waqf Act, 1995 - Section 83 (1) & (4) - Waqf (Amendment) Act, 2013 - Repealing and Amending (Second) Act, 2015 - Effect of repeal of amending legislation - Constitution and continuance of Waqf Tribunals - Validity. Waqf Act, 1995 - Once the amendments introduced by the Waqf (Amendment) Act, 2013 in Section 83 of the Waqf Act, 1995 have been notified and incorporated into the principal Act, the subsequent repeal of the amending Act by the Repealing and Amending (Second) Act, 2015 does not affect the validity, operation or continuance of the amended provisions. The repeal of an amending statute does not undo or obliterate amendments already merged into the parent enactment. Constitution and continuance of Waqf Tribunals - The Waqf Tribunals constituted pursuant to amended Section 83(4) of the Waqf Act, 1995 therefore continue to exist and function lawfully. Reliefs seeking abolition of Waqf Tribunals at Lucknow and Rampur and restraining their functioning on the ground of repeal of the Amending Act are misconceived. Writ Petition dismissed. No order as to costs. Case listed Jethanand Betab v. State of Delhi, AIR 1960 SC 89; K.K. Vasudeva Kurup v. Union of India, 2002 (4) Mh.LJ 838 Lal Shah Baba Dargah Trust v. Magnum Developers, AIR 2016 SC 381. (Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J. & Hon'ble Yashwant Varma, J.) 1. Prior to its amendment by the Waqf (Amendment) Act, 2013, subsection (1) of Section 83 of the Waqf Act, 1995 enabled the State Government to constitute Tribunals for determining any dispute, question or other matter relating to a waqf or waqf property. Under subsection (4), the Tribunal was to consist of one person holding a rank not below that of a District, Sessions or Civil Judge, Class I in the State Judicial Service. Section 83 was amended by the Waqf (Amendment) Act, 2013) (Act No.27 of 2013). Section 44 of the Amending Act substituted the provisions of subsections (1) and (4) of Section 83 in the following terms: "44. Amendment of Section 83:- In Section 83 of the principal Act, (a) for sub-section (1), the following sub-section shall be substituted, namely- 4 All. Mohd. Junaid Ajaz & Ors. Vs Union Of India & Ors. 1103 "(1) The State Government shall, by notification in the Official Gazette constitute as many Tribunals as it may think fit, for the determination of any, dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals." (b) for sub-section (4), the following sub-sections shall be substituted, namely- "(4) Every Tribunal shall consist of- (a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman; (b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member; (c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation. (4-A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio, members shall be such as may be prescribed." 2. By a notification dated 29 October 2013 published in the Gazette of India on 31 October 2013, the Central Government appointed 1 November 2013 as the date on which the provisions of the Act came into force. On 3 March 2014, in exercise of the powers conferred by subsection (4) of Section 83, the State Government constituted two Tribunals, one at Lucknow and another at Rampur. Parliament enacted the Repealing and Amending (Second) Act, 2015 which was published in the Gazette of India on 14 May 2015. Among the amendments that were repealed included the Waqf (Amendment) Act, 2013 (Act No.27 of 2013). 3. The reliefs which have been sought in the writ proceedings are in the following terms: "(i) Issue an appropriate writ or direction or pass an appropriate order ABOLISHING the Waqf Tribunals established at Lucknow & Rampur; constituted and established in purported exercise of powers under Section 83 (4) of the Waqf (Amendment) Act, 2013 which stands repealed w.e.f. 14.05.2015 by the REPEALING AND AMENDING (SECOND) ACT, 2015 (NO.19 OF 2015). (ii) Issue a writ or direction or pass an order in the nature of PROHIBITION restraining the functioning of Waqf Tribunals at Lucknow and Waqf Tribunal, Rampur constituted and established in purported exercise of powers under Section 83 (4) of the Waqf (Amendment) Act, 1104 INDIAN LAW REPORTS ALLAHABAD SERIES 2013 which stands repealed w.e.f. 14.05.2015 by the REPEALING AND AMENDING (SECOND) ACT, 2015 (NO.19 OF 2015)." 4. The basis on which the reliefs have been sought is that in view of the repeal of Act No.27 of 2013 by the Repealing and Amending (Second) Act, 2015 (Act No.19 of 2015), the Waqf Tribunals which were established at Lucknow and Rampur in pursuance of the amended provisions of Section 83 would cease to exist and would have to be abolished. The second relief is in similar terms as the first, insofar as a writ is sought to restrain the functioning of the Tribunals at Lucknow and Rampur which have been established in pursuance of the amended provisions of Section 83 (4). In pursuance of an order of this Court dated 23 February 2016, a counter affidavit has been filed in these proceedings by the Secretary, Minority Welfare and Waqf Department of the State Government. 5. Section 4 of the Repealing and Amending (Second) Act, 2015 contains the following provisions: "4. The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred to: and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing: nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or form any enactment hereby repealed: nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force." 6. The effect of these provisions is that where any enactment has been applied, incorporated or referred to in any Act, the repealing provisions shall not affect the Act in which such enactment has been applied, incorporated or referred to. As a result of the provisions of Amending Act No.27 of 2013 with effect from 1 November 2013, subsections (1) and (4) of Section 83 were substituted. Sub-section (1) expanded the jurisdiction of the Waqf Tribunal. Prior to the amendment, the jurisdiction of the Waqf Tribunal was to determine any dispute, question or other matter relating to a waqf or waqf property under the Act. In addition to this, the substituted provisions of sub-section (1) also empower the Waqf Tribunal to determine matters relating to eviction of tenants or determination of rights and obligations of a lessor and lessee in respect of property under the Act. Moreover, under sub-section (4), the Tribunal is, in terms of the substituted provisions, to consist of 4 All. Mohd. Junaid Ajaz & Ors. Vs Union Of India & Ors. 1105 three members. Earlier, the Act had contemplated a one member Tribunal consisting of a judicial officer. Once the amendment was notified and came into force on 1 November 2013, the amendment was incorporated into the provisions of the parent Act. Hence, the provisions of Section 4 of the Repealing and Amending (Second) Act, 2015 (Act No.19 of 2015) would stand attracted and the repeal of the Amending Act would have no effect on the incorporation of the provisions of the Amending Act which had already been effected prior to the repeal. 7. The legislature adopts the device of repealing enactments which amend the parent legislation with a view to ensure that they do not crowd the statute book. The principle which however, emerges from a provision such as Section 4, is that the repeal of the amending legislation will not affect the amendments which have already been incorporated in the parent legislation. This principle has also been enunciated in the 6 judgment of the Supreme Court in Jethanand Betab Vs State of Delhi1 . In that case, in the Indian Wireless Telegraphy Act, 1933, as it original stood, there was no specific provision making the possession of a wireless transmitter an offence. By an Amending Act, Section 6 (1-A) was inserted by which, the possession of a wireless transmitter was constituted as a separate offence. The Amending Act was repealed by a Repealing and Amending Act 1952. The submission was that as a result, on the date of the alleged commission of the offence the said section was not on the statute book. The Repealing and Amending Act contained a provision by which, the legislature clarified that the repeal of any enactment by the Act shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to. The Supreme Court explained the import of Section 4 of the Repealing and Amending Act in the following terms: "6. ... It is, therefore, clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949, along with similar Acts, which had served its purpose." 8. The judgment of the Supreme Court has been followed in the judgment of a Division Bench of the Bombay High Court in K K Vasudeva Kurup Vs Union of India2 . The Bombay High Court held that once an amendment has been made in the Negotiable Instruments Act, 1881 by Amending Act 66 of 1988 and had been brought into force, it has served its purpose and amended the original Act. Once its purpose has been achieved, the repeal of the Amending Act would not affect the original enactment into which the amendment had been introduced. The observations of the Division Bench in that context were as follows: "14. ... To us, it is clear that once an amendment was made in 1881 Act by the Amending Act of 1988 and it had been brought into force, it has served its purpose and amended the original Act. Its object was to plant necessary amendment in the 1881 Act. Once such planting has been effected, the Amending Act (Planting Act), having achieved its object, lost its efficacy. It was thereafter not necessary to continue the Amending Act in a statute book. There are several such 1106 INDIAN LAW REPORTS ALLAHABAD SERIES Amending Acts under which amendments have been made in original Acts. Once the plant takes root in original Act, an appropriate step is required to be taken by the Legislature. If no action is taken, hundreds and thousands of such Amending Acts continue to remain in statute books. A device is, therefore, adopted by the Legislature to repeal all such Amending Acts, which would repeal only those Acts, i.e. Amending Acts. But such repeal does not affect original Acts which already stood amended." 9. In the judgment of the Supreme Court in Lal Shah Baba Dargah Trust Vs Magnum Developers & Ors3 both the amendment as well as the repealing legislation were taken notice of in paragraph 11. The Supreme Court had issued following directions to the States for compliance: "42. Before parting with the order we record our serious exception to the conduct of the States who have not till date issued fresh notification constituting three member Tribunal as mandate by Section 83 (4) of the Act. We, therefore, direct the States to immediately take steps for constituting a three member Tribunal and notification to that effect must be issued within four months from today." 10. Following these principles, it is clear that once the provisions of the amending legislation, namely, Amending Act 27 of 2013 had been brought into force and the amendments have been incorporated in the provisions of the Waqf Act, 1995, the subsequent repeal of the amending legislation would not affect the amendments which had already been effected. 11. Consequently, we find no merit in the writ petition. The writ petition shall, accordingly, stand dismissed. There shall be no order as to costs. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.04.2016 BEFORE THE HON'BLE KARUNA NAND BAJPAYEE, J. Criminal Misc. Bail Application No.- 9050 Of 2016 Smt. Rekha Sharma ...Applicant Versus State Of U.P. ...Opposite Party Counsel for Applicant: Anshu Singh, Hemendra Pratap Singh Counsel for Opposite Party: G.A.