Amir Alam Khan vs State of U.P. and Others

S.H.A. Raza, J.—The question, which requires consideration in the present writ petition is as to whether the Chairperson of the U. P. Sunni Central Board of Waqf, U. P. (hereinafter called as the ''Board''), which is elected by the nominated and elected members of the Board, can function, only as long he enjoys the confidence of the members, who have elected him, or can be subjected to power of amotfon under the Common Law, in the absence of any statutory provision in the Waqf Act, 1995.

Before replying to the aforesaid question, it would be relevant to deal with the factual matrix as set out in the writ petition.

On 22.4.1999, Government of U. P. issued a notification constituting the ''Board''. The ''Board'' consists of thirteen members, out of which seven members are elected from various constituencies and six are nominated. On 22.7.1999, Mr. Amir Alam Khan, the petitioner was elected as the Chairperson of the Board by the elected and nominated members of the Board. On 17.1.2000, the members of the Board expressing no confidence against the Chairperson ceased all his powers, which were earlier delegated to him. The meeting was attended by seven members of the Board, who put up their signature on the said motion, which was forwarded to the Secretary, Minority Welfare and Waqf, Vidhan Sabha Marg, Lucknow, demanding that the Chairperson be restrained from discharging the powers delegated to him by the Board on 11.8.1999.

As no action was taken by the State Government, one Sri Arshad Rashid Khan filed Writ Petition bearing No. 14954 of 2000 before the High Court at Allahabad, praying for issuance of a writ of mandamus commanding the Secretary, Minority Welfare and Waqf, to convene the meeting of the Board for consideration of the motion of no-confidence against the Chairperson. On 30.3.2000, without issuing any notice to the petitioner, who was arrayed as respondent to the writ petition, the Division Bench consisting of Hon. Mr. Justice N. K. Mitra, C.J. (as he then was) and Hon. Mr. Justice O. P. Garg passed the following order :

"Heard Sri Shashl Nandan, learned counsel for the petitioner as well as learned standing counsel.

Respondent No. 3 Amir Alam Khan is the Chairperson of U. P. Sunni Central Board of Waqf, Lucknow. The petitioner and other members have brought a no-confidence motion against him. The grievance of the petitioner is that the respondent State of U. P. through respondent No. 1 has not convened any meeting for the purposes.

The writ petition is finally disposed of with the direction that the respondent No. 1 State of U. P. through Secretary, Minority Welfare and Waqf, Secretariat, Lucknow, shall hold the meeting of no-confidence motion against respondent No. 3 (sic) in order and appropriate action shall be taken within the specified period under the law. In this regard, respondent No. 1 shall pass appropriate order within 15 days from the date of production of a certified copy of this order before him."

On 11.5.2000, Secretary issued a notice for holding the meeting on 22.5.2000 at 11 a.m. for consideration of no-confidence motion against the petitioner and the election of new Chairperson in place of the petitioner.

In the said meeting, motion of no-confidence was alleged to have been passed against the Chairperson and Mr. Zafar Ahmad Farooqi was elected as the Chairperson of the Board. On 30.5.2000, a notification was issued by the State Government, appointing Mr. Zafar Ahmad Farooqt as the Chairperson of the Board.

Main thrust of the petitioner is that an elected Chairperson under the Waqf Act, 1995, in absence of any statutory provision in the Act, cannot be removed by passing a motion of no-confidence by the members, who earlier elected the Chairperson, while respondent submitted that the members of the Board have not elected the Chairperson but appointed him as such and hence, if he has lost confidence of the members, he can be ousted. It was also submitted that in the common law, the Chairperson can be removed by the members, who have elected him.

From the side of the private respondent Mr. Siddharth Shankar Ray, senior counsel, who was ably assisted by Mr. Shashi Nandan, following points were raised repelling the assertion of the petitioner, who was represented by senior counsel Mr. Umesh Chandra, who was assisted by Mr. Wasiquddin :

(1) The petitioner cannot be permitted to challenge the motion of no-confidence passed against him as well as the election of Sri Zafrar Ahmad Farooqi as Chairperson of the Board, because the direction of the High Court was binding upon the petitioner as well as the respondents and the meeting was called under the directions of the High Court, which passed the motion of no-confidence against the petitioner.

(2) The petitioner has already filed the Writ Petitton bearing No. 23641 of 2000 challenging the notice and the Agenda for holding the meeting, which is still pending and hence, without amending that writ petition by incorporating the relief of writ of certiorari for quashing the resolution dated 22.5.2000, the petitioner cannot maintain this writ petition.

(3) The term of the office of five years is only available to the members of the Board elected or appointed by the State Government u/s 15 of the Act but the term of office of five years is not available and enjoyable by the member, who is elected as the Chairperson u/s 14(8) of the Act. The Chairperson can be removed from the office by the members of the Board in the same manner in which he has been elected by them.

(4) The role of the Chairperson is only for the purpose of presiding over the meetings of the Board, hence under the law of meetings, as well as common law, the Chairperson can be removed from his office, and substituted by another person to preside over the meetings,

(5) As the Board is a body corporate and a Corporation, the power of amotion is the incident of the Corporation, unless it has been taken away by the Statute.

Before delving into the points raised both from the side of the petitioner as well as the respondent, it will be appropriate to glance over the different relevant provisions of Waqf Act. 1995.

Section 3(h) defines ''member'', which means a ''member of the Board'' and includes the ''Chairperson''.

Section 13 of the Act provides for incorporation, which reads as under:

"13. Incorporation.--(1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established a Board of Waqfs under such name as may be specified in the notification.

(2) Notwithstanding anything contained in Sub-section (1), if the Shia Waqfs in any State constitute in number more than fifteen per cent of all the waqfs in the State or if the income of the properties of the Shia Waqfs in the State constitutes more than fifteen per cent of the total income of properties of all the waqfs in the State. the State Government may, by notification in the Official Gazette, establish a Board of Waqfs each for Sunni Waqfs and for Shfa Waqfs under such names as may be specified in the notification.

(3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued."

Section 14 pertains to the composition of the Board, which is reproduced below :

"14. Composition of Board.--(1) The Board for a State and the Union territory of Delhi shall consist of :

(a) a Chairperson ;

(b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of-

(i) Muslim members of Parliament from the State or, as the case may be, the Union territory of Delhi ;

(ii) Muslim members of the State Legislature ;

(iii) Muslim members of the Bar Council of the State, and

(iv) Mutuawallis of the waqfs having an annual income of rupees one lakh and above ;

(c) one and not more than two members to be nominated by the State Government representing eminent Muslim organizations ;

(d) one and not more than two members to be nominated by the State Government, each from recognized scholars in islamic Theology ;

(e) an officer of the State Government not below the rank of Deputy Secretary.

(2) Election of the members specified in Clause (b) of Sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed :

Provided that where the number of Muslim members of Parliament, the State Legislature or the State Bar Council, as the icase may be, is only one, such Muslim member shall be declared to have been elected on the Board :

Provided further that where there are no Muslim members in any of the categories mentioned in Sub-Clause (i) to (iii) of Clause (b) of Sub-section (1), the ex-Muslim members of Parliament, the State Legislature or ex-members of the State Bar Council, as the case may be, shall constitute the electoral college.

(3) Notwithstanding anything contained in this section, where the State Government is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in Sub-clause (i) to (iii) of Clause (b) of Sub-section (1), the State Government may nominate such persons as members of the Board as it deems fit.

(4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under Sub-section (3).

(5) Where there are Shia waqfs but no separate Shia Waqfs Board exists, at least one of the members from the categories listed in subSection (1), shall be a Shia Muslim.

(6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia Waqfs and Sunni Waqfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination.

(7) In the case of the Union territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in Sub-section (1) :

Provided that there shall be one mutuawalli as the member of the Board.

(8) Whenever the Board is constituted or reconstituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board.

(9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette."

Section 15 provides that the members of the Board shall hold office for a term of five years.

Section 17 deals with the holding of the meetings of the Board, which reads as under :

"17. Meetings of the Board.--(1) The Board shall meet for the transaction of business at such times and places as may be provided by regulations.

(2) The Chairperson, or in his absence, any member chosen by the members from amongst themselves shall preside at a meeting of the Board.

(3) Subject to the provisions of this Act, all questions which come before any meeting of the Board shall be decided by a majority of votes of the members present, and in the case of equality of votes, the Chairperson or, in his absence, any other person presiding shall have a second or casting vote."

Section 19 provides that the Chairperson or any other member may resign his office by writing under his hand addressed to the State Government :

Provided that the Chairperson or the member shall continue in office until the appointment of his successor is notified in the Official Gazette.

Section 20 deals with the removal of Chairperson and member, which is reproduced below :

Removal of Chairperson and member.--(1) The State Government may, by notification in the official Gazette, remove the Chairperson of the Board or any member thereof if he ;

(a) is or becomes subject to any disqualification specified in Section 16 ; or

(b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he may offer, considers to be prejudicial to the interests of the waqfs ; or

(c) fails in the opinion of the Board, to attend three consecutive meetings of the Board, without sufficient excuse.

(2) Where the Chairperson of the Board is removed under Sub-section (1), he shall also cease to be a member of the Board.

The direction of the Court in Writ Petition bearing No. 14954 of 2000 was circumscribed by the words ''appropriate action'', hence it was incumbent upon the Secretary of the Minority Welfare and Waqf, before issuing the notice for holding the meeting for consideration of no-confidence motion, to have looked into the provisions of the Act as to whether the Chairperson of the Board can be ousted in the manner the members of the Board wanted. It is really unfortunate that without issuing the notice to the petitioner, and delving into the question as to whether the Chairperson of the Board can be removed by amotion, the Division Bench passed the order. Assuming that the direction was a binding one, it was incumbent upon the State Government to have considered that the order passed by the Court was a mere direction to deal with the matter ''under the law''. The words ''under the law'' and ''appropriate order, occurring in the order, were ignored. In view of the aforesaid reason, it cannot be said that the judgment and order passed by this Court has a binding effect on either of the parties.

As fair as the second contention of the respondent is concerned that due to filing of the writ petition by the petitioner against the issuance of notice for holding the meeting, on a particular date for considering the motion of no-confidence, which is said to be pending, the present writ petition is not maintainable, cannot be accepted, inasmuch as, the first writ petition was filed by the petitioner against the issuance of the notice for calling a meeting of the Board to consider the motion of no-confidence and the present writ petition has been filed for quashing the notification dated 30.5.2000 issued by the State Government and for quashing of the resolution dated 22.5.2000 alleged to have been passed against the petitioner in the said meeting, and restraining the members from interfering into the functions of the petitioner as the Chairperson of the Board. The present writ petition has been filed for a separate cause of action. Generally, this Court deprecates the tendency of filing of the successive petitions by the same person for more or less same cause of action, but the cause of action in present writ petition as well as in earlier writ petition, which has been filed by the petitioner, are distinct and different. Undoubtedly, the petitioner could have amended his writ petition incorporating the subsequent events, which took place after the issuance of the notice, and the agenda of the meeting for passing the vote of no-confidence, but for that reason, the present writ petition cannot be thrown out.

The first question, which deserves to be considered by this Court is as to whether the Chairperson of the Board enjoys fixed term. And thereafter, the second question has to be probed into as to whether the Chairperson can be removed by the members of the Board by exercising the power of amotion, under the common law.

There is no dispute that the Board is a body corporate, incorporated under the provisions of Section 13 of the Waqf Act, 1995. In the light of the aforesaid provision, it has also to be looked into as to whether the principle of incorporation and its incidental powers are attracted or not.

Section 3(h) of the Waqf Act, provides that ''member'' means, a ''member of the Board'' and includes ''Chairperson''. Section 15, which deals with the terms of office, provide that members of the Board shall hold office for a term of five years.

Section 15 of the Waqf Act provides that the member of the Board shall hold office for a term of five years. There exists no provision in the Act, that any member of the Board or Chairperson may be removed by passing of the vote of no-confidence motion. u/s 19 of the Act, the Chairperson or any other member may resign his office by writing under his hand addressed to the State Government.

Section 20 of the Act deals with the removal of the Chairperson or any member, which the State Government may, by notification in the official Gazette, remove the Chairperson of the Board or any member thereof if he :

(a) is or becomes subject to any disqualification specified in Section 16 ; or

(b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he may offer, considers to be prejudicial to the interests of the waqfs ; or

(c) fails in the opinion of the Board, to attend three consecutive meetings of the Board, without sufficient excuse.

Sub-section (2) of Section 20 provides that where the Chairperson of the Board is removed under Sub-section (1), he shall also cease to be a member of the Board.

The term of the Board is co-terminus with the term of the members, i.e., 5 years. The word "member" includes ''Chairperson'' but it was asserted on behalf of private respondents that although the term of the office of the member is five years, but the term of the Chairperson of the Board will not be 5 years.

Mr. Siddharth Shanker Ray argued that the word "includes" as used in Section 3(h) of the Waqf Act is also often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "Statute".

In Commissioner of Income Tax, Andhra Pradesh Vs. Taj Mahal Hotel, Secunderabad, , it has been held that when the word "includes" is so used these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things, which the interpretation clause declares that they shall include. The word "includes" is also susceptible of other constructions, which is unnecessary to go into.

What we have understood from the argument of Mr. Siddharth Shanker Ray is that while members of the Board have a fixed term of 5 years, the Chairperson of the Board has no fixed term.

Quoting Crawford''s statutory interpretation Mr. Siddharth Shanker Ray submitted that the meaning of the word in the statute can be enlarged to meet the real intention of the legislation of discretion. If a statute leads to an absurd proposition then it has to be avoided and statute should be interpreted with common sense. It was submitted that definition clause contained in Section 3(h) of the Waqf Act, where the words "means and includes" have occurred can lead to different meanings under different sections. In this connection, he relied upon the observations of Hon''ble Supreme Court in P. Kasilingam and others Vs. P.S.G. College of Technology and others, , where the college is defined in Clause (b) of Rule 2 as under :

"College" means and includes ''Arts and Science College, Teachers Training College, Physical Education College, Oriental College. School of Institute of Social Work and Music College'' maintained by the educational agency and approved by, or affiliated to the University."

Dealing with the Maxim Contemporanea Expositio, it was observed :

"A particular expression is often defined by the Legislature by using the word ''means'' or the word ''includes''. Sometimes the words ''means and includes'' are used. The use of the word ''means'' indicates that "definition is a hard and fast definition and no other meaning can be assigned to the expression than is put down in definition". The word ''includes'' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words ''means and includes'' on the other hand, indicate "an exhaustive explanation" of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. The use of the words ''means and includes'' in Rule 2 (b) would, therefore, suggest that the definition of "college" is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2 (b) and other educational institutions are not comprehended. In so far as engineering colleges are concerned, their exclusion may be for the reason that the opening and running of the private engineering colleges are controlled through the Board of Technical Education and Training and the Director of Technical Education in accordance with the directions issued by the All India Council for Technical Education from time to time. The Grant-In-Aid Code contains provisions, which, in many respects, cover the same field as is covered by the Act and the Rules. The Director of Technical Education has been entrusted with the functions of proper implementation of those provisions. There is nothing to show that the said arrangement was not working satisfactorily so as to be replaced by the system sought to be introduced by the Act and the Rules. Rule 2 (d), on the other hand, gives an indication that there was no intention to disturb the existing arrangement regarding private engineering colleges because in that Rule the expression "Director" is defined to mean the Director of Collegiate Education. The Director of Technical Education is not included in the said definition indicating that the institutions which are under the control of Directorate of College Education only are to be covered by the Act and the Rules and technical educational institutions in the State of Tamil Nadu which are controlled by the Director of Technical Education are not so covered."

Thus, according to Mr. Siddharth Shanker Ray, the definition of the word "member" is intended to be exhaustive and not extensive and would cover only the ''member'' and the ''Chairperson'' may be excluded. The genesis of this argument appears to be that the members of the Board have a fixed term of 5 years, but the Chairperson has no fixed term and he can be removed by the motion of no-confidence. If Section 3(h) of the Waqf Act is incorporated by common sense then it will lead to a conclusion that the Chairperson has no fixed term and hence the members, who elected him can also remove him by passing vote of no-confidence motion.

It is pertinent to mention here that there are two types of members in the Board. Some are nominated by the State Government and some are elected from various constituencies. At the most, it can be said that nomination may comprehend the appointment, but the election cannot mean "appointment" and the word "elect" cannot mean "appoint". The Chairperson of the Board u/s 14(8) of the Act, just after the constitution or re-constitution of the Board shall be elected by the members of the Board present at a meeting convened for the purpose, from amongst them.

Mr. Siddharth Shanker Ray emphasized that the word ''elect'' occurring in Section 14(8) of the Waqf Act, 1995, does not mean ''election'' as generally known. The maxim "Electio semel facta et placitum testatum non patiture regression. Qued semel placuit in electionibus amplius displicre non potest" (formulated by Coke, Littleton page -146), which means elections once made suffers no recall. "What has pleased a man on election cannot displease him", on further consideration, cannot be applied, for the purposes of choosing and appointing a Chairperson u/s 14(8) of the Act. u/s 14(8) members of the Board do not elect a representative Chairperson, so the question of recall of an elected representative/ Chairperson does not arise. The Chairman does not represent any body. He merely has to chair the meetings. He is like the Speaker of the House of a Legislature. A member of the Legislature is a representative of people, who elected him, but not the Speaker who was not appointed as a representative, by the Legislature but only as its Chairman to conduct proceedings. The Speaker or Chairman does not represent anybody. He is only to conduct meetings etc. Therefore, while a member of a Legislature cannot be recalled, Speaker or a Chairman can be recalled by a no-confidence motion. It may not be possible to recall a representative, but one who is not a representative can be recalled.

In that regard, Mr. Ray referred to definition of word ''elect'' as indicated in Chandrachur''s Law of Lexicon page 619, according to which word ''elect'' in the given case can also mean ''appoint''. With a view to fortify his argument, he has drawn the attention of this Court towards, few passages of Shackleton''s Law of Meeting. Curry''s Conduct and Procedure of Meeting, Daver''s law and Procedure of Meeting in India as well as Halsbury''s Law of England, where words ''elect'' or ''election'' as well as ''appoint'' or ''appointment'' both have been used, which connote the same meaning.

According to Shackleton, a Chairman is appointed by those present at the meeting. This might arise where people meet as a group for the first time. It is then usual for the person responsible for convening the meeting to call for nominations, each of which should be proposed and seconded. If there is more than one the choice should be put to the vote. Alternatively, the meeting may usually on a formal basis and without opposition, elect a temporary Chairman to run the meeting until the Chairman is properly elected.

Shackleton further says that the appointment of a Chairman does not however. In the absence of special provisions, entitle him to fill the office as long as he retains his directorship, and the directors have power at any time to substitute another chairman in his place. (Foster v. Foster (1916) 1 Ch, 532).

Curry''s at page 28-30, deals with the appointment of a Chairman. According to him, there must be a Chairman. If a person is present, who has previously been duly elected Chairman, or has for some other reason a right to take the chair, that person must take the chair. If there is no such person or such person is not present, the election of a Chairman is necessary, and it is desirable in such cases that a temporary chairman, who is not a candidate for the chairmanship, should be chosen, merely for the purpose of electing the chairman. The Chairman may be elected for a particular meeting, or annually, or for a fixed period of time, or sometimes for life.

Daver also says that the appointment of a Chairman is absolutely necessary for every meeting, whether it is a meeting held under a joint stock company organization or a public meeting, or in fact, any other meeting of responsible people where decision must be arrived at on certain questions that are to be placed before the meeting.

In Corpus Juris Secundum (Volume 19) pages 71-72, it has been said :

"The power of amotion is inherent in every private corporation as an incident of its being and may be expressly conferred by statute or charter in recognition, it has been said of at least one statute, of the inherent nature of the power. While ministerial officers and agents who are elected or appointed by the Board of Directors are removable at will without a cause being assigned and without notice or a hearing, directors, trustees, and officers elected by the corporation at large may, by virtue of this inherent power, and irrespective of the existence of a provision for removal in the articles of bye-laws, be removed for cause, but not otherwise, and only after notice and hearing or an opportunity of being heard."

To the same effect is the statement of law in 19 American Jurisprudence 2nd, pages 545 and 547 and in Bouvier''s Law Dictionary. 3rd Edition, Volume 1, page 190. The English common law relating to the removal or "amotion" of the holder of an office is stated as follows in Jowitt''s Dictionary of English Law at page 115 :

"In municipal boroughs, a removal from his office of a councillor by his fellow-councillors, frequently exercised before the Municipal Corpora- tions Act, 1835, and not expressed abolished either by that Act or by the Municipal Corporations Act. 1882. The power of amotion is implied or may be conferred by charter."

Similar statements of law occur in Wharton''s Law Lexicon, 14th Edition, pages 59-60 and in 9 Halbsury''s Laws of England, 3rd Edition, paragraph 67, with regard to an office held at pleasure.

Haisbury in Laws of England (Vol. 9) 3rd Edition, paragraph 67 under the heading Power of amotion says :

"1266. Power of amotion. Amotion means depriving a corporate officer of his office. A power of amotion is incident to a corporation, unless it has been taken away by Statute. (Booth v. Arnold It is necessary to the good order and Government of corporate bodies that there should be such a power, and a corporation may, by its incidental power to make bye laws, confer upon itself power to remove for just cause, although there is no express power by a charter or prescription to make such a byelaw. A power to amove is strictly interpreted. Thus, the word "majority" will, in connection with such a power, be construed to mean a majority of the whole corporation, including the persons to be amoved."

The quotes mentioned in the foregoing paragraphs are with regard to joint stock companies or corporate offices.

In Booth v. Arnold. 1895 1 QB 571, per Lopes (LJ), it was held that the power of amotion for reasonable cause is incidental to every corporation, unless it has been taken away by statute. It was further observed that the power of amotion for reasonable cause, such as corrupt or dishonest conduct, still exists and if I am right in this view, the objection of the defendant fails, and the action is sustainable, even if possible damage is necessary. It is a power essential to the good order and management of a corporation, and without it I do not see how the business of a corporation could be satisfactorily carried on. Learned counsel for the defendant admitted that, but for such power, a member of a corporation could not be removed for corrupt and dishonest conduct in his office of the most flagrant kind.

In Foster v. Foster more or less same view was taken by Peterson, J., to the effect that the power of appointing a Chairman is under Article 102, by which the directors may elect a Chairman of their meetings, and determine the period for which he is to hold office. It is argued that, inasmuch as there has been no express determination of the period for which he is to hold office, it follows that he is to hold office for the whole of the period during which he remains a director, I am unable to accept that argument. When the directors appoint a Chairman, they appoint him for such time as they think fit, and there is no contract with the person appointed as Chairman that he shall remain chairman until he ceases to be a director, but it is open to the directors at any time to substitute another Chairman in his place. Therefore, I think that argument cannot succeed.

In Booth v. Arnold (supra), the power of amotion at common law was expressly given by or implied from the term of the Charter of Borough, meaning thereby that if the power of amotion is not expressly given , then the members who appointed or elected a person, shall have a right to remove the person so appointed or elected as the power of amotion from the corporate office is incidental to every corporation, unless it has been taken away by the statute. The members or the Directors of a Corporation can dust a person, who has been appointed by them.

The principles mentioned in the foregoing paragraphs find place in General Clauses Act, 1897, to the extent that the power to appoint also includes the power to suspend or dismiss.

In that regard, reliance was placed on the decisions of Hon''ble Supreme Court in Dr. Bool Chand Vs. The Chancellor, Kurukshetra University, ; Bar Council of Delhi Vs. Bar Council of India, ; Ghanshyam Singh Vs. Union of India and Others, ; Life Insurance Corporation of India Vs. Escorts Ltd. and Others, ; Narayan Nair and Another Vs. Joint Registrar of Co-operative Societies and Others, ; Lekhraj Satramdas, Lalvani Vs. Deputy Custodian-cum-managing Officer and Others, .

The observations of Hon''ble Supreme Court in Boolchand v. Chancellor, Kurufcshetra University (supra) cannot be made applicable to the present case, as the appointment of Vice-chancellor was held to be terminable before the expiry of the term of his appointment on account of charges levelled against him and for which the Chancellor had given him opportunity to show cause.

In Bar Council of Delhi v. Bar Council of India (supra) Mr. V. S. Deshpandey, J., speaking for the Bench observed :

Quite irrespective of the question whether the office of the Chairman of a State Bar Council is held at pleasure or for the same period for which the Bar Council is elected, the common law relating to the removal of the holder of an office is that the body which has the authority to elect its Chairman has the inherent and implied power to remove the Chairman, if the Chairman holds his office at will. But if he holds his office otherwise than at pleasure, he can be removed only for cause after notice and hearing. It would suffice to quote the following from 19 Corpus Juris Secundum, pages 71-72 :

"The power of amotion is inherent in every private corporation as an incident of its being and may be expressly conferred by statute or charter in recognition, it has been said of at least one statute, of the inherent nature of the power. While ministerial officers and agents who are elected or appointed by the Board of Directors are removable at will without a cause being assigned and without notice or a hearing, directors, trustees, and officers elected by the corporation at large may, by virtue of this inherent power, and irrespective of the existence of a provision for removal in the articles of bye-laws, be removed for cause, but not otherwise, and only after notice and hearing or an opportunity of being heard."

To the same effect is the statement of law in 19 American Jurisprudence 2nd, pages 545 and 547 and in Bouver''s Law Dictionary, 3rd Edition, Volume 1, page 190. The English common law relating to the removal or "amotion" of the holder of an office is stated as follows in Jowltt''s Dictionary of English Law at page 115:

"In municipal boroughs, a removal from his office of a councillor by his fellow-councillors is frequently exercised before the Municipal Corporations Act, 1835, and not expressly abolished either by that Act or by the Municipal Corporation Act, 1882. The power of amotion is implied or may be conferred by charter."

Similar statements of law occur in Wharton''s Law Lexicon, 14th Edition, pages 59-60 and in 9 Halsbury''s Laws of England, 3rd Edition, paragraph 67, with regard to an office held at pleasure.

The view expressed by the majority of the Bar Council of India that a rule cannot be made u/s 15 of the Advocates Act for the removal of the Chairman of the State Bar Council leads to the result that once elected such Chairman is removeable. He would go out of office only when the State Bar Council does at the expiry of its statutory tenure. Such a result can be justified only if the common law stated above has been changed by the statute. The view of the Bar Council of India is, on the other hand, based on the very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an office remains unchanged. The statute does not therefore, has to say that the Chairman of the State Bar Council would be removable is inherent in the Bar Council which elects its Chairman. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State Bar Council the power to remove the Chairman so elected. Just as Rules can be made u/s 15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that Rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory intervention. So long as this is not done, they would remain connected with each other even though only one of the powers, namely, the power of election has been made statutory while the other power, namely, the power of removal has been left to be implied. If such a power is not implied. The mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the construction of the statute in the light of the common law implies such a power in the State Bar Council."

In Ghanshyam Singh (supra), the Delhi High Court relying upon its earlier decision in Bar Council of Delhi v. Bar Council of India, observed that the initial nomination of the petitioner (who was nominated as Director of Board of Directors of Indian Farmers Fertilizer Cooperative Ltd.) for further orders and later on removed herein and for that matter nomination of any official or non-official on the Board of Directors was at the will of the Government. The Government has an inherent power to revoke the same as per Section 16 of the General Clauses Act.

In L.I.C. v. Escorts Ltd. (supra), Hon''ble Supreme Court observed as under :

"The strict theory of Parliamentary sovereignty would not apply by analogy to a company since under the Companies Act, there are many powers exercisable by the Directors with which the members in general meeting cannot interfere. The most they can do is to dismiss the Directors and appoint others in their place, or alter the articles so as to restrict the powers of the Directors for the future. Gower himself recognizes that the analogy of the Legislature and the executive in relation to the members in general meeting and the Directors of a Company is an over-simplification and states "to some extent a more exact analogy would be the division of powers between the Federal and the State Legislature under a Federal Constitution." As already noticed, the only effective way the members in general meeting can exercise their control over the Directors in a democratic manner is to alter the articles so as to restrict the powers of the Directors for the future or to dismiss the Directors and appoint others in their place. The holders of the majority of the stock of a corporation have the power to appoint, by election, Directors of their choice and the power to regulate them by a resolution for their removal. And, an injunction cannot be granted to restrain the holding of a general meeting to remove a director and appoint another."

It was further observed :

"The Life insurance Corporation of India, as a shareholder of Escorts Limited has the same right as every shareholder to call an extraordinary general making of the company for the purpose of making a resolution to remove some Directors and appoint others in their place. The Life Insurance Corporation of India cannot be restrained from doing so nor is it bound to disclose its reasons for removing the resolutions."

In Narayan Nair v. Joint Registrar, Co-operative Societies (supra), the Government, or any authority specified in that behalf, was vested with a power to nominate not more than three persons or 1/3rd of the total number of members of the Committee of the Society, whichever is less, to the members of the Committee. Section 31(3) provides :

"A person nominated to the committee of a society under Sub-section (4) shall not take part in the discussion of any no confidence motion or vote on any such motion."

In the light of the aforesaid provision, Mr. K. Bhaskaran, J., observed :

''This would indicate that the Legislature was not totally averse to the idea of a President or any other office bearer of the committee being removed by no-confidence motion. On the other hand, the framers of the Act and the Rules had in mind the situation when a no-confidence motion would be discussed and put to vote ; otherwise, there is no point in having a provision in the nature of what is contained in Sub-section (3) of Section 31 referred to above. The counsel for the petitioner submitted that the provisions contained in Section 17 of the Act, which would indicate that a President could be removed by the passing of a no-confidence motion. Section 17(1) of the Act provides as follows :

"Any member of a society who has acted adversely to the interests of the society, may be expelled upon a resolution of the general body passed at a special meeting convened for the purpose by the votes of not less than two-thirds of the total number of members present and voting at the meeting."

"Rule 18 of the Rules provides for the procedure for expulsion of members. Neither Section 17 nor Rule 18, in my view, has direct application to the question relating to the right of the committee to remove the President from his office by a no-confidence motion."

In Para 5 of the report, it was also observed that :

"It is true that there is no specific provision in the Act and the Rules which expressly provides for the removal of the President of the committee of the society. Though Rule 43 provides for the election of the President, it is silent about the removal of the President. By applying the principles of Section 16 of the General Clauses Act, it could, however, be construed that the authority which appoints the president shall have the power to remove him from that office."

In Lekhraj v. Deputy Custodian (supra), it was observed :

"The power of appointment conferred upon the custodian u/s 10(2)(b) of the 1950 Act confers, by implication, upon the Custodian the power to suspend or dismiss any person appointed as manager. Thus, the management of a person with regard to the business concerns can lawfully be terminated by the Deputy Custodian by virtue of Section 10 (2) (b) of the above Act read with Section 16 of the General Clauses Act. The principle underlying the Section is that the power to terminate is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power."

The ''Chairperson'' having been included in the definition of a member u/s 3(h) of the Waqf Act, has a fixed tenure of five years u/s 15 of the Act. This term can be curtailed by taking recourse to Sections 19 and 20 of the Act, which provide for resignation of the Chairperson and the members and removal of Chairperson and the member. The fixed term of the Vice Chancellor in Dr. Boolchand v. Chancellor, Kurukshetra University (supra), cannot be relied upon to support the contention that even if there is a fixed term, a person cannot be ousted because the appointment of the Vice Chancellor was held to be terminable before the expiry of the term of his appointment on account of the charges levelled against him and the services were terminated by the Chancellor after giving opportunity to show-cause.

In Bar Council of Delhi v. Bar Council of India (supra) in para 13 of the report, the Court itself observed that no such tenure has been fixed for the Chairman of the State Bar Council under the Advocates Act, on the contrary the common rule that the holder of an office can be removed for a cause even if he has a fixed tenure of office, was followed by Hon''ble Supreme Court in Dr. Bhool Chand v. Chancellor, Kurukshetra University (supra), where the Chancellor had been appointed for a period of three years, nevertheless his appointment was held to be terminable before expiry of three years for a cause and after he was given hearing following borough, (to be seen)

Thus, it is evident that ratio decidendi of the aforesaid two cases appears to be that if the tenure of a person appointed had been fixed, then under common law rule the holder of office can be removed for a cause even if he has a fixed tenure of office. The word ''cause'' which has occurred in both the Judgments has a great significance, meaning thereby ; that if a person has committed an act or misconduct of gross nature, then for that cause such a person can be removed, even when he has a fixed tenure of office. No doubt the petitioner could be removed for a cause as provided u/s 20 of the Waqf Act, but he could not be ousted by means of a motion of no-confidence, particularly when the Waqf Act does not provide to remove the Chairperson by passing a vote of no-confidence.

Where the word has been defined by the statute, it must bear the same meaning. The definition of the ''member'' in Section 3(h) of the Waqf Act, means a member of the Board and includes Chairperson. Where a word is defined to mean something, it is restrictive as well as exhaustive.

In the present case, the definition clause contained in Section 3(h) of the Act, defines member in exhaustive term which also includes a Chairperson.

In Indian Immigration Trust Board of Natal v. Govindasam Lord Dunedin speaking for the Bench observed :

"When the interpretation clause in a statute says that such and such an expression shall include so and so, a Court in constructing a statute is bound to give effect to the direction unless it can be shown that the context of the particular passage where the expression is used shows clearly that the meaning is not in this place to be given effect to, or unless there can be alleged some general reasons of weight why the interpretation clause is to be denied its application. There is no intrinsic improbability that any of the older sections may not be amended, in an amending and consolidating Act and it is a novel and unheard of idea that an interpretation clause which might easily have been so expressed as to cover certain sections and not to cover others should be, when expressed in general terms, divided upon by a sort of theory of applicando singula singulis so as not to apply to sections whose context suggests no difficulty in its application."

It was further observed :

"Change of circumstances is no ground for inferring an intention different from what the words clearly indicate."

In The Vanguard Fire and General Insurance Co. Ltd., Madras Vs. Fraser and Ross and Another, . Hon''ble Wanchoo. J., speaking for the Bench held :

"It is well-settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clause which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words namely, unless there is anything repugnant in the subject, or context. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under the circumstances."

In Jagir Singh and Others Vs. State of Bihar and Another etc. etc., . Hon''ble A. N. Ray, C.J., speaking for the Bench observed :

"The general rule of construction is not only to look at the words but to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under the circumstances."

In P. Kosilingam and Ors., v. P.S.G. College of Technology and Ors., (supra), which was referred by Mr. Siddharth Shanker Ray, maxim "Contemporanea Expositto" was dealt with and it has been rightly observed that:

"The word ''includes'' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words ''means'' and includes'' on the other hand, indicate "an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. The use of the words ''means and includes'' in Rule 2 (b) would, therefore, suggest that the definition of "college" is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2 (b) and other educational institutions are not comprehended. In so far as engineering colleges are concerned, their exclusion may be for the reason that the opening and running of the private engineering colleges are controlled through the Board of Technical Education and Training and the Director of Technical Education in accordance with the directions issued by the All India Council for Technical Education from time to time.

It is evident from the observations made in para 17 of the report that the Central Government had issued directions and instructions relating to technical educational institutions which are referable to matters covered by Entry 66 of List-I in the Seventh Schedule to the Constitution in respect of which Parliament alone has the power to make laws and that the Union Government could exercise its executive powers in respect of those matters even in the absence of a law made by the Parliament and that power of the State Legislature to make laws in respect of matters falling under Entry 25 of List III of the Seventh Schedule being subject to the power conferred on Parliament under Entry 66 of List-I, the State Legislature had no power to enact a law governing professional and technical educational institutions and, therefore, the Act and the Rules could not apply to professional and technical educational institutions.

In view of the aforesaid reason the professional and technical educational institutions were excluded from the definition of colleges.

It is well-settled principle of interpretation of a statute, that where two interpretations are possible, the Court will lean in favour of the constitutionality of the provisions since Legislature is presumed to have acted in accordance with Constitution,

Section 3(h) of the Waqf Act clearly lays down that "member" means a member of the Board and includes the Chairperson. Sections 19 and 20 of the Act place the "member" and "Chairperson" on the same footing or at the same place. There is no provision in the Act, from where a contrary intention of the Legislature can be inferred. The definition clause does not begin with the words "notwithstanding anything contained in any Section of this Act". From this, it is evident that if the Parliament, while enacting Section 3(h) intended to attach different meanings to the words "member" and the "Chairperson", it would have been mentioned in Section 3(h) of the Waqf Act.

In view of the aforesaid reason, we are definitely of the view that the definition of a "member" is exhaustive and not restrictive and the member of the Board includes the Chairperson. As the term of the member, which is co-terminus with the term of the Board, the term of the Chairperson in accordance with the aforesaid Section, will be 5 years.

No doubt power of amotion is incident to a corporation. Usually, there are two types of corporations, one, statutory corporation or corporations created by an Act or group of individuals in accordance with provisions of the statute. There is a difference between statutory body (corporation) or the body (corporation) created by an act of a group of individuals in accordance with the provisions of the Statute.

Taking a cue from Section 13 of the Waqf Act, 1995, Mr. Siddharth Shanker Ray, submitted that the Board is a body corporate, hence the common law dealing with corporation would be applicable to it.

In view of the aforesaid submission, we have to examine as to what ''corporation'' means. In S.S. Dhanoa Vs. Municipal Corporation, Delhi and Others, , Hon''ble A. P. Sen, J. speaking for the Bench indicated in paras 8, 9. 10 of the report :

"8. A corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession, notwithstanding changes in its membership. In addition, it possesses the capacity as such legal entity of taking, holding and conveying property, entering into contracts, suing and being sued, and exercising such other powers and privileges as may be conferred on it by the law of its creation just as a natural person may. The following definition of corporation was given by Chief Justice Marshall in the celebrated Dartmouth College case :

A corporation is an artificial being invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality ; properties, by which a perpetual succession of may persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property, without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. The term ''corporation'' is, therefore, wide enough to include private corporations. But, in the context of clause Twelfth of Section 21 of the Indian Penal Code, the expression ''corporation'' must be given a narrow legal connotation.

Corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zila Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a company under the Companies Act or a society under the Societies Registration Act owes its existence not to the Act of Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature.

There fs a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh v. Bhagatram Sardar Singh Raghuuanshi. It was observed :

A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act.

There is thus a well-marked distinction between a body created by a statute and a body which, after coming into existence, fs governed in accordance with the provisions of a statute. In Sabhajit Tewary v. Union of India, the question arose whether the Council of Scientific and Industrial Research which was a society registered under the Societies Registration Act, was a statutory body. It was urged that because the Council of Scientific and Industrial Research had Government nominees as the President of the body and derived guidance and financial aid from the Government. It was a statutory body. Repelling the contention, the Court observed :

The society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominee to the governing body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotions guidance and cooperation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilization of the result of the researches conducted under the auspices of the council towards the development of industries in the country are carried out in a responsible manner.

Whatever has been said with regard to the Council of Scientific and Industrial Research, which was a society registered under the Societies Registration Act, equally applies to the Cooperative Store Limited, which is a society registered under the Bombay Cooperative Societies Act, 1925. It is not a statutory body because it is not created by a statute. It is a body created by an act of a group of individuals in accordance with the provisions of a statute."

In S. S. Dhanoa v. Municipal Corporation, Delhi (supra) Hon''ble Supreme Court itself in para 10 of the report has drawn distinction between a corporation established by or under an Act or a body incorporated under an Act.

In Sukhdev Singh v. Bhagatram Sardar Singh Raghuuanshi (1975) 1 SCO 421, Hon''ble Supreme Court observed in para 25 of the report that :

"A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act.''

As there is well-marked distinction between a body created by a statute and a body which, after coming into existence, is governed, in accordance with the provisions of the statute, the corporations or the companies, which are governed in accordance with the provisions of the statute having no statutory and legislative functions cannot be said to be statutory bodies, because it is not created by the statute. There are bodies created by an Act or group of individuals in accordance with the provisions of the statute.

In view of the aforesaid reason, a corporation or a body incorporated, which comes into existence and is governed, in accordance with the provisions of the statute, can exercise the power of amotion against any member or the officer appointed by it, because power of amotion is incident to such corporation, unless it has been taken away by the statute, but such implied power of amotion cannot be exercised by a body or corporation created by a statute, which discharges statutory and legislative functions, because there is a distinction between a body created by a statute and a body, which after coming into its existence, is governed in accordance with the provisions of the statute.

The argument that there is an implied power to remove the Chairperson by the body, which elected him, without making a reference to any provision of the Act, is untenable. The body, which elected the Chairperson cannot remove the Chairperson through motion of no-confidence. Dictionary meanings, reference of Maxims and quotations from Jurists cannot be pressed into service when the Parliament itself used the word "elect" u/s 14(8) of the Waqf Act and hence, it cannot mean, "appoint".

Thus, it is evident that there is a distinction between a body created by a statute and a body, which after coming into existence is governed in accordance with the provisions of the statute. The Waqf Act, 1995, is a central legislation. It has been vested with statutory, legislative powers, which includes the registration of waqfs, to take a decision as to whether a property is a waqf property, to issue notification for changes in the management of the waqf, recovery of the waqf property transferred in contravention of the provisions of the Act, removal of encroachment from waqf property, imposition of penalties, to appoint or remove the mutawallis, assume direct management of the waqfs and supervision and supersession of the Committee of Management of waqf etc. The aggrieved persons against the order of the waqf board may file references to the Tribunals constituted under the Act. The statutory/legislative powers, which the Board enjoys, require determination and adjudication of complex and complicated questions and for that reason the Board does enjoy quasi-judicial powers.

The powers, which the Board enjoys is distinct from a corporation, which after coming into existence, is governed in accordance with provisions of an Act and incorporated under the Act. The Board is not like a society or company incorporated in accordance with the provisions of any Act, like joint stock companies or corporation or society. The Board after coming into existence is governed in accordance with the provisions of the statute. The power of amotion, which is vested to a non-statutory body incorporated under an Act, under common law cannot be made applicable to a corporation created by an Act of Parliament.

The word "elect" in Section 14(8) of the Waqf Act does not mean, "appoint". In the dictionary meanings, the word "elect" and the word "appoint" may have the same meaning, but where there is statutory provision, such meaning cannot be pressed into service to hold that word "elect" also means "appoint".

The Chairperson under the Waqf Act is not appointed by the members of the Board like any officer, who can be removed or dismissed u/s 16 of the General Clauses Act. He held an elective post.

From the side of the petitioner, great reliance was placed upon the following decisions :

N. Venkataratnam Naidu Vs. The District Collector, Nellore and Others, .

Ajai Stngh v. State of U. P. and Ors., 1981 UPLBEC 286,

Narayan Nair and Another Vs. Joint Registrar of Co-operative Societies and Others, .

All the aforesaid cases pertain against the power of amotion exercised by the committee of Management of Co-operative Societies registered under the Co-operative Societies Act.

In N. Venkataratnam Naidu v. District Collector, Nellore and Ors., (supra), which was decided by Hon''ble single Judge of the Andhra Pradesh High Court, there existed no specific provision in the Act empowering the Committee of directors of a co-operative Society to pass a no-confidence motion against the President or to replace him before the term of the committee. But considering the democratic and cooperative principles underlying the co-operative law, the Court observed that it could not be said that the absence of a specific provision debars the committee of management from changing its office-bearers in whom they have no-confidence.

In Ajai Stngh v. State of U. P. and Ors., (supra), the vires of Rule 455 (b) of the U. P. Co-operative Societies Rules, which conferred powers on the District Magistrate to grant permission for moving motion of no confidence, was challenged. The petitioners challenged the Rule incorporated in Part VII of the Rules framed under the Act. Dealing with the removal of the Chairman by vote of no-confidence, the Division Bench of the Allahabad High Court held that the object of framing of no-confidence is that the Chairman should be permitted to act only so long as he enjoys the confidence of the majority he is representing, and the Rule was upheld. It is, thus, evident that in AJay Stngh, there existed a Rule, the vires of which was challenged. In the present case, neither there is any provision Jn the Waqf Act nor any Rules framed thereunder to bring no confidence motion against the Chairperson, hence the ratio of AJay Singh v. State of U. P. (supra) is not applicable to the facts of the present case.

In Narayan Natr and Ors., v. Joint Registrar of Co-operative Societies and Ors. (supra), there was no specific provision in the Act and the Rules, which expressly provided for the removal of the President of the Committee of Society, but applying the principle of Section 16 of the General Clauses Act, the Court expressed a view that the authority which appointed the President, shall have powers to remove him from that office.

In the present case, we are not dealing with a Gram Panchayat or Co-operative Society, which are run on democratic principles. The object of the Waqf Act, 1995 is to vest with the Board power of superintendence and control over the Management of Waqfs all over India. It is an autonomous body free from interference from any authority.

In the earlier Waqf Act, the Waqf Commissioner had been given overriding powers and the Waqf Board had been made subordinate to him. The important feature of the present Waqf Act is the distribution of powers between the Waqf Board and the Waqf Commissioner, which will now be re-designated as Chief Executive Officer and would be subordinate to the Waqf Board. The Act seeks to strengthen the finance of the Waqf Board and to put restriction on the powers of mutawallis, in the interest of better management of the Waqf properties and to save waqf property from being alienated, and to set up Waqf Tribunal to consider the question of disputes pertaining to the waqf. The present Waqf Act has been made applicable to Uttar Pradesh. West Bengal, parts of Gujarat and parts of Maharashtra and some of the North-Eastern State, so there will be uniformity in respect of Waqf administration throughout the Country except in Jammu and Kashmir. Some of the members of the Board are appointed by the State Government, and some are elected from various constituencies. After the process of election and nomination is over, the members elect a person from amongst themselves, as Chairperson. The term of the members from the date of the constitution of the Board is five years, which is co-terminus with the term of the Board. As the Chairperson is also a member of the Board and is included''within the definition of a member tinder Section 3(h) of the Waqf Act, his term would also be five years.

The Act does not vest any powers to the members to remove an elected Chairperson. The object of the Waqf Act is to provide stability in the functioning of the Board at least for five years. An elected person can function only as long he enjoys confidence of those by whom he has been elected, may be said to be an ideal form of democracy, which was prevalent in Greece. But, in the present democratic set up, which is not a sort of ''basic democracy'', as was prevalent in Greece, the legislators elected, continue to discharge their function for fixed term, even if they have lost confidence of the voters, because the Constitution does not vest with the electors a provision for recalling the elected representative. The Prime Minister and the Chief Minister, who hold their offices being the leaders of the majority party of several parties combined together in coalition, are accountable and responsible to the Legislature. As soon as they lose the confidence of the House, they have no option except to quit.

But as far as the Deputy Chairman of Rajya Sabha, Speaker of the Lok Sabha as well as the Chairman''s of Vidhan Parishads and Speakers of the Vidhan Sabhas are concerned, they are elected by the members of the respective Houses. Specific provisions in the Constitution have been made like Articles 90, 179 and 183 of the Constitution for their removal by exercising the power of amotlon. Vice-Presldent of India, who is also the Chairman of Rajya Sabha, can be removed under Article 67(b) from his Office by resolution of the Council of States and by majority of all the then members of the Council and agreed to by the House of People, but no resolution for the purposes of that clause, shall be moved unless at least 14 days notice has been given of the intention to move the resolution. The President of India can be impeached under Article 61 of the Constitution for violation of the Constitution by a resolution after 14 days notice in writing signed by not less than 1/4 of the total number of members of the House and is passed by 2/3rd majority of the total membership of the House.

The vague concept of democracy, in the absence of any statutory provision, cannot arm the electors either to recall the person so elected for a fixed term or remove him by passing a vote of no-confidence. The provisions of Section 16 of the General Clauses Act are applicable to the appointment, and cannot be made applicable to the case of election.

In Haji Abdul Ghafoor Bux v. State of U. P. and Ors. 1991 UPLBEC 505 , wherein it was asserted that a directly elected Chairman of the Municipal Board can only be removed by the voters who had elected him and not by the elected members of the Board. The Division Bench of this Court in which one amongst us (Hon. S.H.A. Raza, J.) was a member, held that the Municipal Board is a creature of the statute and it can have only such powers as are conferred upon it by the statute. Referring to the case of Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , it was observed that ordinary laws could not be tested against the vague concept of democracy. A special appeal was filed against the said judgment before Hon''ble Supreme Court by Mohan Lal Tripathi and Ors in Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, , it was observed :

"Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a ''fundamental right'' nor a ''common law right'' but a special right created by the statutes, or a ''political right'' or ''privilege'' and not a ''natural'', ''absolute'' or ''vested right''. "Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied." Right to remove an elected representative, too, must stem out of the statute as ''In the absence of a constitutional restriction it is within the power of a Legislature to enact a law for the recall of officers''. Its experience of validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary the right of recall is defined as, ''a provision enabling voters to remove an elected official from office before his or her term expired''. American Jurisprudence explains it thus. "Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens''. It was urged that ''recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another move in accordance with popular will'' therefore, the appellant could have been recalled by the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since. "A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a "public officer is indeed a ''servant of the people'' and can therefore, be dismissed by them in modern political setup direct popular check by recall of elected representative has been universally acknowledged in any civilized system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. ''Under a constitutional provision auhorising municipalities of a certain population to frame a charter for their own Government consistent with the subject to the Constitution and laws of the State, and a statutory provision that in certain municipalities the Mayor and members of the municipal council shall be elected at the time. In the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision. Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy.

In para 4 of the report it was further observed :

"Today democracy is not a Rule of ''poor'' as said by Aristotle or of ''Masses'' as opposed to ''clause'' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable of projecting views of the electorate."

In Mohan Lal Tripathi''s case (supra), the petitioner had assailed the validity of no-confidence motion passed against him u/s 87-A of the U. P. Municipalities Act, who was elected u/s 43(2) of the Act, as President of the Rae Bareilly City Municipal Board. He had assailed the action of passing of the no-confidence motion against him on the ground that it was violative of democratic concept of removal or recall of an elected representative by the Board instead of electorate who had elected him directly. In the light of the aforesaid situation, it was held that:

"An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President, his electorate, to exercise this right, is the Board as it comprises representatives of the same constituency from which the President is elected. Purpose of Section 87A of the Act, is to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representatives. In the Act, it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the board, who have also been elected by the people, is in fact removal by the electorate, itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather it ensures removal by a responsible body."

There are various Acts like U. P. Mahanagar Pallka Adhiniyam. Municipal Act, U. P. Panchayat Raj Act, Kshetriya Samltiyan Zila Parishad Adhiniyam, U. P. Cooperative Societies Act, etc., where the Act or the Rules confer specific and elaborate procedure for removal of the Chairman, President, Pramukh, Up-pramukh, Pradhan etc. by a motion.

We are definitely of the view that the fixed term of the Chairperson, can be curtailed by specific provision like Section 20 of the Waqf Act or could be cut short by exercising the power of amotion, if the Act would have provided that a person could be removed by a motion of no-confidence. Policy intended by the Parliament, indicated in Sections 14(8). 15 read with Section 3(h) and Section 20 of the Waqf Act, is obvious, that the term of the Chairperson, in absence of any specific provision in the Act, cannot be curtailed by the members, by exercising the power of amotion.

The view, which we have taken, is fortified by a Full Bench decision of Punjab and Haryana High Court in Jagdev Singh Vs. The Registrar, Co-operative Societies, Haryana and others, . in which most of the cases, which have been cited from the respondents side were referred to and considered. The following excerpts from paras 18, 20. 21 and 22, which are relevant are reproduced below :

"In absence of any provision in the Punjab Co-operative Societies Act, 1961. Rules and the bye-laws made thereunder (as also in the Haryana Co-operative Societies Act, 1984, Rules and the bye-laws made thereunder) for moving a no-confidence in the President of Managing Committee/Chairman of a Board of Directors of a Co-operative Bank, it is not permissible to move such a motion, inasmuch as such a power cannot be inferred nor such a power is inherent in the members of the Managing Committee/Director of the bank. The office bearers can only be removed in accordance with Section 27 of the Act read with Rules 25 and 26 of the Rules Haji Anwar Ahmed Khan Vs. The Punjab Wakf Board and Others,

Section 14 of the Punjab General Clauses Act, 1898 (equivalent to Section 16 of the General Clauses Act, 1897), only talks of inherent power of removal in an authority, which had the power of appointment. This Section is not applicable to an office bearer or a person who is elected to an office. Section 14 of the Punjab General Clauses Act is to be applied in cases of appointments made in the public service and not to an elected office.

The right to contest the election and the right to move to set aside the election or right to recall the person already elected are not common law rights. Otherwise also, Article 372(1) of the Constitution has no application as there was no existing law prior to the promulgation of the Constitution, which gave right under the Cooperative Societies Act to pass a no-confidence motion, which had to be saved under Article 372(1) of the Constitution.

The other Acts of the Local Bodies like the Zlla Parishad Act, Punjab Municipal Act and Punjab Gram Panchayat Act, where there are provisions for moving a noconfidence motion against the office-bearers. But such provisions have been made very stringent regarding calling of a meaning for such a purpose as also majority required for removing an office-bearer by a no-confidence motion. Under these Acts normal resolutions are passed by bare majority, whereas in case of a no-confidence motion, the majority required is of 2/3rd, if such power is read in the Co-operative Societies Act. Rules or the bye-laws that by a majority, an office-bearer could be removed it may lead to a very chaotic condition, inasmuch as the Managing Committee/Board of Directors which is always consisted of a very small number, every second day there will be a move to pass a no-confidence motion against one or the other office-bearer. If such a right to move a no-confidence motion is to be inferred or it was to be held that it was inherent in the body that elects the office-bearers, then it would follow that even the general body can by a vote of no-confidence remove a member from the membership of the Managing Committee. That would be really upsetting the whole concept of the co-operative movement."

A similar question arose when the members of U. P. Shia Central Board of Waqf, which was constituted under the Waqf Act, 1995, wanted to exercise the power of amotlon against the Chairperson of the Board. The State Government rejected their request for holding the meeting of the Board to consider the no-confidence motion. Two members of the U. P. Shia Central Board of Waqf filed the Writ Petition Bearing No. 3287 (MB) of 2000 for issue of an order, direction or writ in the nature of mandamus commanding the State of U. P. to convene a meeting of U. P. Shia Central Board of Waqfs for the consideration of no-confidence motion against the Chairperson of the U. P. Shia Central Board of Waqf along with other members of the Board dated 6.5.2000 and issuing mandamus to the opposite parties not to give effect to the order dated 2.6.2000 passed by the State of U. P. for not holding such a meeting. A prayer was also made that the order dated 2.6.2000 passed by the State Government may be quashed.

The Division Bench of this Court expressed a view that Section 16 of the General Clauses Act does not apply to the elected persons and it applies only to the persons appointed in public services, etc. Referring to the decision of the Allahabad High Court in Writ Petition Bearing No. 14964, in which an order was passed, directing the State Government to hold the meeting of the Sunni Central Board of Waqf for considering the ''no-confidence motion1 against the Chairperson, the Division Bench observed, that order was passed ex parte and the writ petition was finally disposed of with the above direction at the admission stage. The points in the case were not decided and that order was not a precedent, because no law has been discussed or laid down on any point in that case. It was further observed that when the State Government passed an order to the effect, there was no justification for summoning the meeting of the Board to consider the no-confidence motion. The State Government acted within its jurisdiction not to convene the meeting. The no-confldence motion is unknown to the Waqf Act and the members had no legal right to move the no-confidence motion and to call for the meeting of the Board for that purpose. The writ petition was accordingly dismissed.

It was vehemently argued by Mr. Siddharth Shanker Ray that the Division Bench decision of this Court in S.A.H. Rizvi and Anr. v. State of U. P. and Ors., does not lay down the correct law as the points raised and involved were not properly adverted to and discussed by the Court. It may be so. But, we are of the view that the conclusion, which has been drawn by the Division Bench, cannot be faulted. We are also of the view that in absence of any statutory provision in the Waqf Act, the power of amotion cannot be exercised by the members against the Chairperson to elect another Chairperson in place of the Chairperson, who has been amoved.

In view of what has been indicated hereinabove the writ petition succeeds. A writ in the nature of certforari quashing the notification dated 30.5.2000 issued by respondent No. 1 Bearing No. 849/Bawan-2-2000-2(24)-98-T.C., as well as Resolution dated 22.5,2000 is issued, and a writ in the nature of mandamus is also issued restraining the respondents from interfering in the functioning of Sri Amir Alam Khan as Chairperson of the U. P. Sunni Central Board of Waqf, Lucknow.