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All India Shia Confe... v. Taqi Hadi And Others...
Factual and Procedural Background
The applicant, All India Shia Conference, a registered society representing Shias in India, challenged the election process of members to the Shia Central Waqf Board constituted under the U.P Muslim Waqfs Act, 1936. The Act provided for the election of five members by the Shia members of the local legislature. However, in a 1952 election, when only three Shia members of the State Legislature existed, these three elected two additional members who were not legislators. The applicant contended that this was unauthorized and that the right to fill the deficiency rested with the applicant under Section 9 of the Act. The applicant filed a writ petition in August 1952 seeking to exclude the two non-legislator members from the Board and to have the deficiency filled by the applicant. During the pendency of the petition, the U.P Muslim Waqfs (Amendment) Act, 1953 was enacted, which removed ambiguities by allowing the legislature members to elect persons who need not be legislators themselves. The applicant argued that the amendment should not apply retrospectively to the pending case and that the legislature could not affect vested rights or decide pending cases. The court heard the matter and rendered its decision.
Legal Issues Presented
- Whether the five members to be elected by the Shia members of the local legislature under Section 8(1)(i) of the U.P Muslim Waqfs Act must themselves be members of the legislature.
- Whether the U.P Muslim Waqfs (Amendment) Act, 1953, which clarified that elected members need not be legislators, applies retrospectively to a pending case.
- Whether the legislature has the power to affect vested rights and alter the law applicable to pending cases.
- Whether the legislature can effectively decide a pending case by altering the applicable law without usurping judicial functions.
Arguments of the Parties
Applicant's Arguments
- The two members elected by the three Shia legislators in 1952 who were not legislators themselves could not lawfully be elected under the existing law.
- The applicant, as the All India Shia Conference, had the right under Section 9 to fill the deficiency in elected members when fewer than five legislators were available.
- The U.P Muslim Waqfs (Amendment) Act, 1953 should not apply retrospectively to the pending case.
- The legislature cannot affect vested rights or decide pending cases, as these are judicial functions.
Opposite Parties' Arguments
- This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Colonial Sugar Refining Co. Ltd. v. Irving (1905) AC 369 | Presumption that legislation is prospective and does not affect vested rights unless language is clear. | Court held that this presumption can be overridden by clear legislative intent and thus the amendment could affect vested rights retrospectively. |
| Basanta Chandra v. Emperor AIR 1944 PC 86 | Legislature cannot decide pending cases but can alter the law affecting rights in pending cases. | Court reasoned that the legislature's amendment, though affecting pending rights, did not usurp judicial function but declared applicable law. |
Court's Reasoning and Analysis
The court identified an ambiguity between Sections 8(1)(i) and 12 of the principal Act regarding whether elected members must be legislators. The 1953 amendment removed this ambiguity by expressly permitting elected members to be non-legislators, and this amendment was clearly retrospective as indicated by the use of the word "ever." The court rejected the applicant's contention that the amendment could not apply to pending cases or affect vested rights, emphasizing that while legislation is presumed prospective, this presumption can be displaced by clear language. The court distinguished between the legislature's power to alter the law applicable to pending cases and its inability to directly decide cases. The legislature's amendment was held to be a valid exercise of its power to declare law, requiring the judiciary to apply the amended law even if it affects vested rights. Consequently, the election of non-legislator members by the three Shia legislators was lawful under the amended law, and the applicant's challenge failed.
Holding and Implications
Application dismissed.
The court held that the U.P Muslim Waqfs (Amendment) Act, 1953 applies retrospectively to clarify that members elected by the legislature need not themselves be legislators. This decision directly upheld the validity of the contested election and denied the applicant's claim to fill the membership deficiency. No new precedent was established beyond affirming the legislature's power to enact retrospective amendments affecting vested rights and pending cases, and the judiciary's duty to apply such law.
Agarwala, J.:— This is an application under Section 226 of the Constitution. The applicant All India Shia Conference is a registered Society under the Societies Registration Act 21 of 1860. It is a representative body of the Shias of India. It has been given representation on the Shia Central Waqf Boards formed under the U.P Muslim Waqfs Act 13 of 1936. That Act created two bodies, the Shia Central Waqf Board and the Sunni Central Waqf Board to look after and manage Shia and Sunni Waqfs respectively.
2. Section 8 provided for the constitution of the Shia Central Board which shall consist of.
(i) five members to be elected in the manner prescribed by the Shia members of the local legislature;
(ii) one member to be elected in the manner prescribed by the Executive Committee of the All India Shia Conference;
(iii) one member to be elected in the manner prescribed by the Board of Trustees of the Shia College, Lucknow;
(iv) three members to be co-opted by the above seven members from persons whom they regard as ulemas; and
(v) the President, if he is not one of the above ten members.
3. Section 9 then provided:
“(1) If at any election of members of a Central Board the full number of five members is not elected by the local legislature, the deficiency shall be made up by election of the requisite-number of members by the Provincial Muslim Educational Conference in the case of Sunni Central Board, and by the Executive Committee of the All India Shia Conference in the case of Shia Central Board. In case of the failure of the Provincial Muslim Educational Conference or the All-India Shia Conference to make up the deficiency, the same shall be made up by nomination by the State Government.”
4. Section 12 then went on to say
“After the formation of legislative bodies under the Government of India Act, 1935, the five members of the local legislature referred to in sections 7 and 8 shall be elected as follows:
(i) four members by the Sunni or Shia members as the case may be, of the Provincial Legislative Assembly.
(ii) one member by the Sunni or Shia members, as the case may be, of the Provincial Legislative Council.”
5. It will be observed that S. 8(1)(i) directed five members to be elected by the Shia members of the local Legislature not necessarily from amongst themselves, but in S. 12 the five members referred to in S. 8 were described as members of the local Legislature. There was, therefore, an ambiguity and a certain amount of conflict between S. 8(1)(i) and S. 12. After the formation of the first Shia Central Waqf Board the practice in the past is alleged to have been that whenever there were less than five Shia members of the local Legislature the deficiency was made up by calling upon the All India Shia Conference to elect the requisite number of members under S. 9. But in the middle of July 1952, in a fresh election to the Shia Central Waqf Board when the Shia members of the State Legislature were only three, namely Syed Taqi Hadi, Syed Mohammad Wasi and Syed Ali Zaheer, opposite parties Nos. 1 to 3, they elected besides themselves two more members, namely Raja Syed Ahmad Mehdi and Nawab Hamid Hussain, opposite parties Nos. 4 and 5, who were not members of the Legislature. The applicant's grievance is that this could not be done under the law by the opposite parties Nos. 1 to 3, that since the members of the local Legislature were only three, the applicant had the right to elect the remaining two members and that this right could not be taken away by the opposite parties Nos. 1 to 3.
6. The applicant, therefore, moved this Court by means of the present writ petition on 1-8-1952, to direct the opposite parties Nos. 4 and 5 not to participate in the proceedings of the Shia Central Waqf Board as its members and further to direct opposite parties Nos. 1 to 3 to cause the deficiency in the membership of the Shia Central Waqf Board to be made up by the applicant as contemplated by Section 9 of the Act.
7. While this petition was pending, the U.P Legislature passed the U.P Muslim Waqfs (Amendment) Act 9 of 1953. The Act received the assent of the President on 26-2-1953. By this Act, the anomaly which existed between Ss. 8 and 12, as mentioned above, was removed. Section 12 was deleted altogether from the principal Act and after S. 8, the following section was added:
“8-A. Nothing in sections 7 or 8, or in section 12 omitted by section 5 of the U.P Muslim Waqfs (Amendment) Act, 1952, shall be deemed ever to have required that the members to be elected by the members of the State Legislature shall be from amongst the members for the time being of any House of the said Legislature.”
8. This amendment made the position absolutely clear. It is not necessary now that the five members who were to be elected by the members of the Legislature under section 8 should themselves be members of the Legislature. They could be outsiders. The right of election was vested in the members of the Legislature, but the persons to be elected need not necessarily be members of that body.
9. The applicant's contention, lastly is that this amending Act does not apply to the present case which was pending on the date on which it came into force, and, secondly that the legislature has no power to affect the rights of parties in a pending case for two reasons:
(a) it cannot take away vested rights,
(b) it cannot decide a pending case which is the function of the judiciary and not the function of the Legislature.
10. The contentions raised by the counsel for the applicant have no force. The general principle no doubt is that an enactment is presumed to be prospective only and should not be interpreted as affecting vested rights, vide — ‘Colonial Sugar Refining Co. Ltd. v. Irving’, (1905) AC 369 (A), and the presumption is still stronger in the case of a pending action. But this is only a rule of presumption. That rule itself implies that if the Legislature so desires, it may affect vested rights, whether in past transactions or in pending cases, I provided its language is clear beyond doubt. The contention of the learned counsel, therefore, that the Legislature has no power to affect vested rights is without substance.
11. The further contention that the Legislature has no power to pass an Act which would in effect be decisive of a ending action is also unsound. The line of demarcation between the functions of the Legislature, the Executive and the Judiciary is not always well defined. But it is well settled that the Legislature lays down the law, the Judiciary interprets that law and applies it to disputes between parties. The law laid down by the Legislature may, as already stated, affect vested rights even in pending cases. The Judiciary is not competent to question the law unless it be unconstitutional and must apply it to the facts of the case brought before it for decision. The rights of the parties in a pending action may be altered by the law, with the result that while a party was entitled to succeed if the law that was applicable at the commencement of the action were to be applied, he may be defeated by the change of the law during the pendency of the action. The courts in such a case will have to apply the law as amended by the Legislature. What the Legislature cannot do is to decide cases itself, for instance it cannot say that-a particular case or class of cases ‘is hereby dismissed’ vide — ‘Basanta Chandra v. Emperor’, AIR 1944 PC 86 at p. 91 (B), but there is nothing in law to prevent the Legislature from so altering the rights of the parties as to make it incumbent upon the judiciary to decide a case in a particular way as intended by the Legislature or the Legislature may even lay down that certain particular suit or classes of suit shall be dismissed, leaving thereby to the Judiciary to pass the order of dismissal. Although in this way the Legislature in substance decides a pending action, it is really not usurping the judicial function, because it is acting within its power to declare the law which is applicable to a particular case.
12. That the Legislature in the present case has affected vested rights in a pending case can admit of no doubt. The election was held in July 1952, and the present petition was filed in August 1952 in which the formation of the Shia Central Waqf Board was challenged. The language of the Amending Act is clearly retrospective. The word ‘ever’ in the amending section clearly refers to the past and therefore acts retrospectively so as to affect vested rights even in pending actions. Whatever meaning we might have attached to S. 8(1)(i) as it stood before the amendment, there is no scope for any doubt or ambiguity after its amendment. It must be held that the members of the Legislature could elect five members of the Shia Central Waqf Board not only from amongst themselves but also from outsiders and that this view of the law must be taken to have ‘ever’ been the meaning of section 8(1)(i) of the principal Act. In this view of the matter, the contention raised by the applicant has no force. The application is therefore dismissed. But as the application fails because of an Act which came into force during the pendency of the present case, we make no order as to costs.
B/R.G.D
13. Application dismissed.
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