Shaik Fareed vs The Government of Andhra Pradesh And Others

Sanjay Kumar and V. Eswaraiah, JJ.—The controversy referred to this Full Bench for resolution, as succinctly put in the order of reference, is as under:

The question that has been raised is whether an elected Member of Parliament or the State Legislature, who is elected as a Member of the Wakf Board, loses his Membership in the Wakf Board when he ceases to be a Member of Parliament or a Member of Legislative Assembly. In other words, whether his election term to the Wakf Board is co-terminus with his election as a Member of Parliament or a Member of Legislative Assembly.

Our learned brother, C.V. Nagarjuna Reddy, J, upon a meticulous and painstaking analysis of the facts and law, answered the reference as under:

The term of the elected members u/s 14(1)(b)(i), (ii) & (iii) of the Act, is not co-terminus with their tenure as the Members of Parliament, State Legislature or State Bar Council and that their term as the Chairperson or members of the Wakf Board, as the case may be, will last till completion of five years as envisaged u/s 15 of the Act unless they resign, or, are removed by the State Government by applying the provisions of Section 20 of the Act.

Having given thoughtful consideration to the issue, we regret our inability to accede to the broad and extensive conclusion of our learned brother that Members of Parliament or the State Legislature, once elected to the State Wakf Board u/s 14 of the Wakf Act, 1995 (for brevity, ''the Act of 1995''), are entitled to continue as such for a full term of five years irrespective of the circumstances in which they cease to be Members of Parliament or the State Legislature, as the case may be. There may be situations where the tenure of the Members of Parliament or the State Legislature, who were elected to the Wakf Board by virtue of that status, may be cut short in such manner as to have an impact on their eligibility to continue as Members of the Wakf Board for a full term of five years.

Ergo, we are constrained to express our reservations as to the comprehensive and all-encompassing nature of our learned brother''s conclusion by way of this separate opinion. We strive hereunder to elaborate on this aspect as certain nuances of this conundrum are subtle and elusive.

The Division Bench, while making the reference, alluded to the cessation of elected Wakf Board Members as Members of Parliament or the Legislative Assembly and in that context, framed the question whether the term of such Member of Parliament or of the Legislative Assembly in the Wakf Board would be co-terminus with his ''election'' as Member of Parliament or Member of the Legislative Assembly. However, the election of a Member of Parliament or of the Legislative Assembly is liable to cessation not only by expiry of the term but by other intervening circumstances also, such as the election itself being set aside. This aspect would therefore have to be borne in mind while resolving the controversy.

The facts of the case have been set out impeccably by our learned brother and we see no reason to recount the same. Suffice it to state that respondents 3 and 4, who were elected as Members of the Andhra Pradesh State Wakf Board, by virtue of their being Members of Parliament and the Andhra Pradesh State Legislative Assembly respectively completed their term as such in May, 2009 and failed to contest the General Elections held in 2009. The short question raised in the writ petition is whether they are entitled to continue as Members of the Wakf Board, despite their demitting office as Members of Parliament and the State Legislative Assembly respectively.

The legal backdrop of the case is provided by the Act of 1995. Chapter IV thereof, comprising Sections 13 to 35, deals with the establishment of Wakf Boards and their functions. Section 13 speaks of incorporation of a Board of Wakfs by the State Government through a notification in the Official Gazette. The Board is to be a body corporate having perpetual succession and a common seal u/s 13. Section 14 deals with composition of the Board and reads as under:

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) Mutawallis of the wakfs 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 case 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-clauses (i) to (iii) of clause (b) of sub-section (1) the ex-Muslim Members of Parliament, the State Legislature or ex-member 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-clauses (i) to (iii) of clause (b) of sub-section (1), the State Government may nominate such persons as the 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 Wakfs but no separate Shia Wakfs Board exists, at least one of the members from the categories listed in sub-section (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 Wakfs and Sunni Wakfs 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 mutawalli as the member of the Board.

(8) Whenever the Board is constituted or re-constituted, 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 stipulates that Members of the Wakf Board shall hold office for a term of five years. Section 16 deals with disqualification for being appointed, or for continuing as, a Member of the Wakf Board and reads as under:

Disqualification for being appointed, or for continuing as, a member of the Board:-- A person shall be disqualified for being appointed, or for continuing as, a member of the Board if--

(a) he is not a Muslim and is less than twenty-one years of age;

(b) he is found to be a person of unsound mind;

(c) he is an undischarged insolvent;

(d) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;

(e) he has been on a previous occasion-

(i) removed from his office as a member or as a mutawalli, or

(ii) removed by an order of a competent court or Tribunal from any position of trust either for mismanagement or for corruption.

Section 19 permits the Chairperson or any Member of the Wakf Board to resign from office by writing under his hand addressed to the State Government. Section 20 deals with removal of the Chairperson or Members of the Wakf Board and reads thus:

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 disqualifications 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 wakfs; 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."

Section 21, dealing with filling of a vacancy, is crucial to this case and reads as follows:

Filling of a vacancy:-- When the seat of a member becomes vacant by his removal, resignation, death or otherwise, a new member shall be appointed in his place and such member shall hold office so long as the member whose place he fills would have been entitled to hold office, if such vacancy had not occurred.

Section 64 deals with removal of mutawallis and provides for the various situations where such removal can be effected. This, then, is the legal setting.

It would be appropriate at this stage to analyze the case law which has bearing on the controversy. In Muslim Minority Front Vs. The Government of Andhra Pradesh and Others, a Full Bench of this Court dealt with the issue whether the Wakf Board constituted u/s 11 of the Wakf Act, 1954 (for brevity, ''the Act of 1954'') was entitled to continue for a full term of five years notwithstanding the advent of the Act of 1995, which provided for a different composition of the Wakf Board. The Full Bench took note of the fact that the Act of 1954 provided for nomination by the State Government of Members of the State Legislature and the Parliament, representing the State, as Members of the Wakf Board. As per Section 10 of the Act of 1954, the Board was to consist of eleven members. Section 11 thereof provided for appointment of Board members by the State Government by notification in the Official Gazette from any one or more of the following categories of persons, viz., (a) Members of the State Legislature and Members of Parliament representing the State; (b) persons having special knowledge of Muslim Law and representing associations such as State Jamiat-ul-Ulma-i-Hind (whether such persons are Hanafi, Ahle-Hadis or Shefai) or State Shia Conference; (c) persons having special knowledge of administration, finance or law; (d) mutawallis of wakfs situated within the State.

Section 14 of the Act of 1995, reproduced supra, however brought about a sea change in the mode and method of constituting the Board. The Full Bench in Muslim Minority Front Vs. The Government of Andhra Pradesh and Others, ) was therefore of the view that as the Act of 1995 completely overhauled the methodology for constituting the Board and the Act of 1995 came into force in the State of Andhra Pradesh on 01.01.1996, the Board constituted under the erstwhile Act of 1954 could not be permitted to complete the term of five years u/s 12 of the Act of 1954.

It is interesting to note that the Wakf (Amendment) Act, 1984 (Act No. 69 of 1984) substituted Section 10 of the Act, 1954 and omitted Section 11 altogether. The substituted Section 10 of the Act of 1954 was, in effect, a replication of the present Section 14 of the Act of 1995. However, though Act No. 69 of 1984 received the assent of the President of India it was not brought into force in all respects in the State of Andhra Pradesh and the erstwhile Section 11 of the Act of 1954 continued to hold the field, notwithstanding the amendment of the provisions relating to the composition of Board. It was only u/s 14 of the Act of 1995, which came into force in the State of Andhra Pradesh from 01.01.1996, that the new provisions with regard to composition of the Wakf Board, which are practically identical to those in the substituted Section 10 of the Act of 1954, were given effect.

The Andhra Pradesh State Wakf Board Conduct of Election Rules, 1996 (for brevity, ''the Rules of 1996'') were framed by the Government of Andhra Pradesh, in exercise of the powers conferred by Section 109 read with Section 14 of the Act of 1995. The Rules of 1996 pertain to conduct of election of members of the Andhra Pradesh State Wakf Board, to ordinary vacancies as well as casual vacancies. ''Election'' as defined in the Rules of 1996 means an election to fill a vacancy in the office of the members of the Andhra Pradesh State Wakf Board under clauses (i), (ii), (iii) and (iv) of Section 14(1)(b) of the Act of 1995. Rule 7 thereof posits issuance of a public notice of the intended election and states that after the commencement of the Act of 1995, an ordinary election for the constitution of the Andhra Pradesh State Wakf Board, u/s 14(2), shall be conducted to elect the members in categories (i) to (iv) u/s 14(1)(b) of the Act of 1995 and on the expiration of the term of the Wakf Board or on its supersession or dissolution u/s 99 of the Act of 1995 or for filling up of any casual vacancy caused in a particular category u/s 16 or Section 64 of the Act of 1995, as the case may be.

Under Rule 4 of the Rules of 1996, dealing with the electoral roll in so far as it pertains to election of a Mutawalli u/s 14(1)(b)(iv) of the Act of 1995, the Secretary of the Wakf Board shall give one week time to the Mutawalli or the Managing Committee of the Wakf Institution to elect one from among themselves, in the case of there being more than one Mutawalli, or one office bearer of the Committee, if the institution is administered by a Managing Committee, to be a member of the electoral college. A Division Bench of this Court, in Abdul Khadeer Beig Vs. Government of Andhra Pradesh and Others, , struck down the deletion effected in this Rule under G.O.Ms. No. 30 dated 29.06.2005, in so far as it pertained to election of an office bearer of a Managing Committee of a Wakf Institution. One of the contentions urged by the Government in support of the amendment was that the Managing Committee of the Wakf Institution did not have a fixed tenure and therefore it would create difficulties in applying the rule for election of an office bearer of such Committee as a member of the electoral college. The Division bench observed that as per Section 14 of the Act of 1995, the tenure of most of the persons on the basis of which they became Members of the Board was uncertain. The Division Bench observed that one of the categories from which persons could be taken to the electoral college was Muslim Members of Parliament from the State, another category was Muslim Members of the State Legislature and a third category was Muslim Members of the Bar Council of the State. The Bench observed that the tenure of these three categories was also uncertain and rejected the argument. This judgment therefore drew a distinction between the tenure of Members of Parliament, the State Legislature and the Bar Council, which formed the substratum for their candidature to be elected as Members of the Wakf Board as compared to the tenure of their membership of the Wakf Board. Though not explicitly stated, the tone of this judgment suggests that the two are independent.

In P.K. M. Kutty Haji v. State of Kerala W.P. (C) Nos. 30649 of 2006 and 6932 & 25659 of 2007 dated 14.08.2008, a Division Bench of the Kerala High Court dealt with the issue as to whether a Muslim Member of the Legislative Assembly elected as a Member of the Wakf Board was entitled to continue in office for a term of five years despite ceasing to be a Member of the Legislative Assembly. It was contended that at the time of his election as a Member of the Board, the Member of the Legislative Assembly was fully qualified to contest therefor and upon being duly elected, his term of office would invariably be five years. It was pointed out that u/s 20 of the Act of 1995, automatic cessation from membership of the Board did not arise and there had to be specific removal from membership for the reasons stipulated therein. The Division Bench, agreeing with this submission, observed that once a Muslim Member of the Legislative Assembly was elected as a Member of the Wakf Board, he would have to continue in office for five years in the absence of a specific provision that when he ceased to be a Member of the Legislative Assembly, his membership in the Wakf Board would also automatically cease. The Court further observed that it could not fill the allowed gap and that the Legislature was free to add such a clause in the Wakf Act if it was really needed. The Court felt that it was not for it to fill up the gaps imagining the intention of the Legislature.

In Sri Yusuf Qureshi and others Vs. Moulana Mohammed Jamaluddin Deccani and others, ), a Division Bench of this Court was dealing with the constitution of the Wakf Board u/s 11 of the Act of 1954. Incidentally, the issue arose as to whether a Member of the Legislative Assembly who was elected as a Member of the Board was entitled to continue after ceasing to be a Member of the Legislative Assembly. In this regard, the Bench observed that the tenure of five years prescribed in Section 12 applied to persons covered by clauses (b) to (d) of Section 11 but as regards Members of the State Legislature and Parliament covered by clause (a), their continuance for five years was dependant upon their membership of the State Legislature or Parliament as the case may be; their appointment was qua the membership of the State Legislature or Parliament and when membership in that behalf ceased, they could not continue as members of the Wakf Board. The Bench concluded that when an M.L.A. or M.P. was appointed as a Member of the Wakf Board, his tenure was co-terminus with his membership in the State Legislature or Parliament.

As pointed out by our learned brother, this judgment is not supported by any detailed reasoning. The same is the situation with the conflicting judgment of the Karnataka High Court in Karnataka Wakfs Protection Joint Action Committee v. The State of Karnataka W.P. No. 22437 of 2005 dated 07-11-2005. This judgment turned on Sections 15 and 16 of the Act of 1995 but again, elaborate reasoning is wanting. The issue before us would therefore have to be resolved independently on the touchstone of the statutory provisions and their interpretation.

Ordinarily, the canon of interpretation adopted by the Courts would be the golden rule of literal interpretation. As pointed out by the Supreme Court in Kanai Lal Sur Vs. Paramnidhi Sadhukhan, the words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only, when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction.

In his concurring opinion in Kehar Singh and Others Vs. State (Delhi Administration), Justice K. Jagannatha Shetty observed:

Before I come to consider the arguments put forward by each side, I venture to refer to some general observations by way of approach to the questions of construction of statutes. In the past, the judges and lawyers spoke of a ''golden rule'' by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the court to intervene by its innovation.

During the last several years, the ''golden rule'' has been given a go-by. We now look for the ''intention'' of the legislature or the ''purpose'' of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischief''s which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.

Let me here add a word of caution. This adventure, no doubt, enlarges our discretion as to interpretation. But it does not imply power to us to substitute our own notions of legislative intention. It implies only a power of choice where differing constructions are possible and different meanings are available.

In Standard Chartered Bank and Others etc. Vs. Directorate of Enforcement and Others etc., a Constitution Bench had occasion to interpret the Foreign Exchange Regulations Act, 1973. Justice K.G. Balakrishnan, as the learned Judge then was, opined that the distinction between a strict construction and a more free one has disappeared in modern times and that the question was "what is the true construction of the statute?" The learned Judge referred to Craies on Statute Law, 7th Edition:

The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. ''All modern Acts are framed with regard to equitable as well as legal principles.'' ''A hundred years ago,'' said the court in Lyons'' case [Lyons v. Lyons, 1858 Bell CC 38 : 169 ER 1158], ''statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature.

At p. 532 of the same book, observations of Sedgwick are quoted as under:

The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the courts inclining to mercy.

The learned Judge therefore concluded that the question would be as to what was the intention of the legislature. In his separate concurring opinion, Justice Dharmadhikari, in his concurring opinion, observed that the rule of interpretation requiring strict construction of penal statutes did not warrant a narrow and pedantic construction of a provision so as to leave loopholes for the offender to escape. The learned Judge stated that a penal statute has also to be so construed as to avoid a lacuna and to suppress mischief and to advance a remedy and that a common-sense approach for solving a question of applicability of a penal statute is not ruled out by the rule of strict construction. In his dissenting opinion, Justice B.N. Srikrishna, however, took a different view. The observations of the learned Judge in this regard are extracted hereunder:

We are unable to subscribe to the view that by "judicial heroics" it is open to the court to remedy an irretrievable legislative error by resort to the theory of presumed intention of the legislature. It was contended that the court should adopt a purposive construction of statutes. The dicta of Denning, L.J. in Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155, p.164 (CA)] were pressed into service for emulation. The view of Denning, L.J., that "judicial heroics" were warranted to cope with the difficulties arising in statutory interpretation, was severely criticized by the House of Lords in Magor & St. Mellons R.D.C. v. Newport Corpn. [(1951) 2 All ER 839 : 1952 AC 189 (HL)] Lord Simonds said: (All ER p. 841 E)

The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited:

It appears to me", said Lord Simonds, "to be a naked usurpation of the legislative function under the thin disguise of interpretation". Lord Morton observed "these heroics are out of place". Lord Tucker said: (All ER p. 850 A)

Your Lordships would be acting in a legislative rather than a judicial capacity if the view put forward by Denning, L.J., ... were to prevail.

This disapproval of Denning, L.J.''s approach was cited with approval by this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, The argument of purposive interpretation, therefore, does not appeal when the statute in plain terms says something.

The learned Judge pointed out that a judicial opinion is limited to finding solutions within specified parameters and anything more than that would be ''judicial heroics'' and ''naked usurpation of legislative function''.

Thus, precedential wisdom weighs in favour of giving full meaning to the actual language used in the statute. Viewed thus, there is no getting over the fact that the Act of 1995 does not prescribe a disqualification, whereby Members of Parliament or of the State Legislature automatically cease to be Members of the Wakf Board upon completion of their office as Members of Parliament or of the State Legislature. Significantly, Section 4 of the Haj Committee Act, 2002, dealing with composition of a Haj Committee, provides that a Member of Parliament nominated as a Member of the Haj Committee shall, upon ceasing to be a Member of Parliament, cease to be a Member of the Committee. No such provision is made in the Act of 1995. It is also pertinent to note that Members of Parliament and of the State Legislature are elected by the electoral college as Members of the Wakf Board, unlike earlier when they were nominated by the State Government. The present provision also contemplates former Members of Parliament and of the State Legislature being elected as Members of the Wakf Board in certain circumstances. Thus, there is no statutory mandate that only sitting Members of Parliament and of the State Legislature should be elected as Members of the Wakf Board. There is therefore no manifest dictate in the legislation that membership of the Wakf Board u/s 14(1)(b)(i) and (ii) of the Act of 1995 would terminate upon such Members of Parliament/State Legislature ceasing to be so. We therefore agree with the view taken by our learned brother to the extent that the Act of 1995 does not contemplate cessation of membership of the Wakf Board of Members of Parliament and of the State Legislature upon their demitting office as such upon expiry of their term.

However, our conclusion, unlike our learned brother''s, is not absolute as is evident from the language in which we have couched it. The nature of cessation of office of such Members of Parliament and of the State Legislature would be utmost relevant to decide their entitlement to continue as Members of the Wakf Board. Demission of office by them upon successful completion of their term, as stated supra, would have no impact on their continuance as Members of the Wakf Board for a full term. There may however be other circumstances in which their office could be cut short.

To elaborate, u/s 20 of the Act of 1995, a Member of the Wakf Board can be removed if he attracts the disqualification specified in Section 16. Section 16(e) states that a person shall be disqualified for being appointed or for continuing as a Member of the Wakf Board if he has been, on a previous occasion, removed by an order of a competent Court or a Tribunal from any position of trust either for mismanagement or for corruption. However, u/s 100 of The Representation of the People Act, 1951 (for brevity, ''the Act of 1951''), election of a Member of Parliament or of the State Legislature can be declared void if, on the date of such election, he was not qualified or was disqualified to be chosen to fill the seat or if any corrupt practices had been committed by him or his agent or by any other person with his consent or if a nomination was improperly rejected or if the result of the election had been materially affected by any of the reasons mentioned in Section 100(1)(d) of the Act of 1951. Disqualification of candidates for membership of Parliament and of the State Legislatures is dealt with under Chapter III of the Act of 1951, comprising Sections 7 to 11. It is pertinent to note that an elected Member of the Parliament/State Legislature faces the risk of having his election declared void u/s 100 of the Act of 1951, not only for corrupt practices but also on various other grounds, such as disqualification owing to a subsisting contract between him and the appropriate Government or because he holds office in a Government company.

The anomalous situation which arises by juxtaposing the Act of 1951 and the Act of 1995 would be that in a given case, a Member of the Parliament/State Legislature who, by virtue of such office, is elected a Member of the Wakf Board would continue for the full term of five years, notwithstanding the fact that his election as a Member of the Parliament/State Legislature is declared to be void u/s 100 of the Act of 1951. Under the Act of 1995, it is only if he is removed from a position of trust owing to mismanagement or corruption that disqualification u/s 16(e) of the Act of 1995 would be attracted. But as pointed out supra, there are various grounds, other than corrupt practices, u/s 100 of the Act of 1951 for declaring void the election of a Member of the Parliament/State Legislature. It would, indeed, be incongruous if a Member of the Parliament/State Legislature loses office owing to his election being declared void but, having been elected as a Member of the Wakf Board by virtue of his being a Member of the Parliament/State Legislature, he would continue to hold office as a Member of the Board for the full term of five years! Once his election as a Member of the Parliament/State Legislature is itself declared void, it would be non est in the eye of law and his candidature, even if valid at the time of his election as a Member of the Wakf Board, would stand nullified by the subsequent voiding of his election as a Member of the Parliament/State Legislature. Such a person cannot obviously continue to garner the benefit of his election to the Wakf Board when the very substratum thereof, his election as a Member of the Parliament/State Legislature, stood wiped out by the declaration of such election as void u/s 100 of the Act of 1951.

In our considered opinion, it is to meet such a situation that provision has been made in Section 21 of the Act of 1995 for filling up the vacancy that would consequently arise in the Wakf Board. The words used in the provision may be referred to again, at the cost of repetition. Section 21 comes into play when the seat of a member becomes vacant by his removal, resignation, death or otherwise.

The phrase ''or otherwise'' has not been defined to mean any particular instance. The issue is as to what is the scope of the phrase ''or otherwise'' in the above provision. Our learned brother has taken the view, applying the principles of noscitur a sociis and ejusdem generis, that this phrase would take colour from the words preceding it. With due respect, we must disagree. It is a settled principle of statutory construction that every word and phrase used in the provision must be given its full effect. Just as it is not open to the Courts to supply words to fill in perceived omissions or gaps in the statute, it is not open to them to render any word or phrase in the provision meaningless or ineffective.

In this regard, the judgment of the Supreme Court Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra and Others, is relevant. Therein, it was observed that every word in a statute is to be given meaning and a construction which would leave without effect any part of the language of a statute would normally be rejected. Every clause of a statute, per the Supreme Court, is to be construed with reference to the context and other clauses of the Act so as to make, as far as possible, a consistent enactment of the whole statute.

Again, in The South Central Railway Employees Co-operative Credit Society Employees Union, Secundrabad Vs. The Registrar of Co-operative Societies and Others, the Supreme Court held that it is a cardinal principle of construction not to brush aside words used in a statute or in a notification issued under a statute and that full effect must be given to the entire words of an instrument.

It is in the context of interpreting Section 21 of the Act of 1995 that the above principles gain relevance. The words ''or otherwise'' are markedly disjunctive and contemplate situations other than removal, resignation or death of an existing Member. The words cannot therefore be restricted to mean an event similar to those mentioned earlier. We are fortified in taking this view by the judgment of the Supreme Court in Maharashtra University of Health Sciences and Others Vs. Satchikitsa Prasarak Mandal and Others, Therein, the Supreme Court was dealing with the definition of ''teachers'' u/s 2(35) of the Maharashtra University of Health Sciences Act, 1998. This definition reads as under:

''teachers'' means full time approved demonstrators, tutors, assistant lecturers, lecturers, readers, associate professors, professors and other persons teaching or giving instructions on full time basis in affiliated colleges or approved institutions in the university;

The High Court dealing with this definition applied the principle of ejusdem generis in construing the phrase ''and other persons teaching or giving instructions'' and held that the respondents, being unapproved teachers, did not come within the definition of ''teachers''. The Supreme Court, however, disagreed with this construction. The observations of the Supreme Court in this regard are relevant:

The definition of teachers u/s 2(35) is wide enough to include even unapproved teachers. In fact the said definition has two parts, the first part deals with full time approved demonstrators, tutors, assistant lecturers, lecturers, etc. and the second part deals with other persons teaching or giving instructions on full-time basis in affiliated colleges or approved institutions in the University. Even though the approved teachers and those "other persons" who are teaching and giving instructions fall in two different classes both are encompassed with the definition of teacher u/s 2(35) of the Act. The word "and" before "other persons" is disjunctive and indicates a different class of people.

....

The Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context". It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some contrary indication [See Glanville Williams, The Origins and Logical Implications of the Ejusdem Generis Rule, 7 Conv. (NS) 119].

This ejusdem generis principle is a facet of the principle of noscitur a sociis. The Latin maxim noscitur a sociis contemplates that a statutory term is recognized by its associated words. The Latin word "sociis" means "society". Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context [See similar observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover, 1957 AC 436 at 461].

But like all other linguistic canons of construction, the ejusdem generis principle applies only when a contrary intention does not appear. In the instant case, a contrary intention is clearly indicated inasmuch as the definition of "teachers" u/s 2(35) of the said Act, as pointed out above, is in two parts. The first part deals with enumerated categories but the second part which begins by the expression "and other" envisages a different category of persons. Here "and" is disjunctive. So, while construing such a definition the principle of ejusdem generis cannot be applied.

The case before us stands on firmer footing as the words ''or otherwise'' are decidedly disjunctive as compared to the words ''and other persons...'' considered by the Supreme Court, which were nonetheless held to be disjunctive. The words ''or otherwise'' therefore have to mean something distinctive and other than instances of removal, resignation or death of a Member.

We would therefore use this instance of a membership of the Wakf Board falling vacant under the disjunctive caption of ''or otherwise'' to cover a situation where the Member of the Parliament/State Legislature suffers termination of his office as such owing to his election being declared void u/s 100 of the Act of 1951 and consequently, his membership of the Wakf Board based thereon would be adversely affected. To hold otherwise, as detailed supra, would lead to an absurd and patently bizarre situation.

To conclude, we concur with the view taken by our learned brother that mere expiry of the term of a Member of Parliament or of the State Legislature would not impact his elected membership of the Wakf Board u/s 14(1)(b)(i) and (ii) of the Act of 1995 and he would be entitled to continue as a Member of the Wakf Board for the full term. However, if the tenure of such Member of Parliament or of the State Legislature is cut short owing to his election being declared void u/s 100 of the Act of 1951, he would not be entitled to continue as a Member of the Wakf Board and recourse must necessarily be taken to Section 21 of the Act of 1995 for filling up the resultant vacancy. As in the present case, challenge to the continuance of respondents 3 and 4 as Members of the Andhra Pradesh Wakf Board is only on the ground that they have successfully completed their term and are not presently sitting Members of Parliament and of the State Legislature, it is without merit for the reasons set out hereinabove. The writ petition therefore fails and is accordingly dismissed. Parties shall bear their own costs.