Madras High Court
M.H.Jawahirullah vs Government Of Tamil Nadu on 25 March, 2013
Bench: R.Banumathi, K.Ravichandra Baabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.03.2013
CORAM:
THE HON'BLE MRS.JUSTICE R.BANUMATHI
AND
THE HON'BLE MR.JUSTICE K.RAVICHANDRA BAABU
W.P.NOS.16997, 27590, 33785 AND 34381 OF 2012 AND 658, AND 3870 OF 2013
W.P.No.16997 of 2012:-
--------------------
M.H.Jawahirullah .. Petitioner
Vs.
1. Government of Tamil Nadu,
represented by its Secretary,
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai,
2. The Tamil Nadu Wakf Board,
rep.by its Chief Executive Officer,
1, Jaffer Syrang Street,
Vallai Seethakadhi Nagar,
Chennai- 600 001
3. Mr.Mohammed Jan,
Minister to the State
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai 600 009,
Member of Legislative Assembly,
Office of the Member of Legislative Assembly,
Ranipettai, Tamil Nadu,
4. Mr.S.Abdul Rahim,
Member of Legislative Assembly,
Officer of the member of Legislative Assembly,
Avadi,
Residing at:
248/4, New Military Road,
Avadi, Chennai 600 054, Tamil Nadu,
5. A.Aslam Basha,
Member of Legislative Assembly,
Office of the Member of Legislative Assembly,
Ambur, 20/2/1, Sunnambukara Street,
Ambur- 635 802, Vellore District,
Tamil Nadu,
6. J.M.Aaron Rashid,
Member of Parliament (House of people)
Theni Constituency
7, VRS Road, Street-I,
Teynampet, Chennai, Tamilnadu,
7. Mr.S.Amir Ali Jinnah,
Member of Parliament (House of States),
97, V.R.M.Street,
Vijayapuram District, Thiruvarur,
Tamil Nadu 600 102.
8. Abdur Rahman,
Member of Parliament (House of People)
Vellore constituency,
No.6, Scheme road, Silver Scheme Building,
Mahalingapuram, Chennai, Tamil Nadu,
9. Thiru.Tamizhmahan Hussain,
No.27, Premier Studio Street,
Nagerkoil,
10. Thiru.S.A.Farooq,
No.12, Kopperumdevi Street,
Manapalam, Erode-1,
11. Thiru.Salahuddin Md.Ayub
(Chief Khazi), (Sunni Member)
Mowbrays Road,
Royapettah, Chennai 600 014,
12. Thiru.Ghulam Md.Mehdi Khan,
(Chief Khazi),
Thousand Light Charity,
Peter Road, Chennai 600 006,
13. Thiru.Md. Nasimuddin, I.A.S.,
(State Government Nominee),
St.Fort George, Chennai .. Respondents
W.P.No.27590 of 2012:
--------------------
M.H.Jawahirullah .. Petitioner
Vs.
1. Government of Tamil Nadu,
rep.by its Secretary,
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai 600 009,
2. The Tamil Nadu Wakf Board,
rep.by its Chief Executive Officer,
1, Jaffer Syrang Street,
Vallai Seethakadhi Nagar,
Chennai- 600 001
3. Mr.Mohammed Jan,
Minister to the State
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai 600 009,
Member of Legislative Assembly,
Office of the Member of Legislative Assembly,
Ranipettai, Tamil Nadu,
4. Mr.S.Abdul Rahim,
Member of Legislative Assembly,
Officer of the member of Legislative Assembly,
Avadi,
Residing at:
248/4, New Military Road,
Avadi, Chennai 600 054, Tamil Nadu,
5. J.M.Aaron Rashid,
Member of Parliament (House of people)
Theni Constituency
7, VRS Road, Street-I,
Teynampet, Chennai, Tamilnadu,
6. Mr.S.Amir Ali Jinnah,
Member of Parliament (House of States),
97, V.R.M.Street,
Vijayapuram District, Thiruvarur,
Tamil Nadu 600 102.
7. Thiru.Tamizhmahan Hussain,
(Eminent Muslim Personality)
No.27, Premier Studio Street,
Meenakshipuram, Nagerkoil,
8. Thiru.S.A.Farooq,
(Eminent Muslim Personality),
No.12, Kopperumdevi Street,
Manapalam, Erode-1,
9. Thiru.Salahuddin Md.Ayub
(Chief Khazi), (Sunni Member)
Mowbrays Road,
Royapettah, Chennai 600 014,
10. Thiru.Ghulam Md.Mehdi Khan,
(Chief Khazi),
Thousand Light Charity,
Peter Road, Chennai 600 006,
11. Thiru.Mohammed Nasimuddin, I.A.S.,
(State Government Nominee),
St.Fort George, Chennai,
12. M.K.Khan,
Ex.Member of Bar Council of Tamilnadu,
Plot No.2031/3B, 13th Main Road,
Annanagar West, Chennai 600 040,
13. A.S.Bibi John,
Advocate,
Ex.Member of Bar Council of Tamil Nadu,
30, Ramiya Street, Aminjikarai,
Chennai- 600 030,
14. M.Mohammed Sikkandar,
Ponnappa Mudali Street,
Purasaiwalkam,
15. Dr.Haja K.Majeed,
Mariyam Thayanithi Centre,
Angappan Naicken Street,
Chennai 600 001,
16. Abdur Rahman,
Member of Parliament (House of People)
Vellore constituency,
No.6, Scheme road, Silver Scheme Building,
Mahalingapuram, Chennai, Tamil Nadu,
17. A.Aslam Basha,
Member of Legislative Assembly,
Office of the Member of Legislative Assembly,
Ambur,
Residing at:-
20/2/1, Sunnambukara Street,
Ambur- 635 802, Vellore District,
Tamil Nadu,
18. T.P.M.Khader Mohideen,
Member of Legislative Assembly,
No.110A, Sikkandharpuram Street,
Tirunelveli Town, Tirunelveli 627 006. .. Respondents
W.P.No.33785 of 2012:
--------------------
M.S.Anwar Hussain .. Petitioner
Vs.
1. Union of India,
rep.by its Secretary,
Ministry of Affairs, 11th Floor,
Paryavaram Bhawan, CGO Complex,
Lodhi Road, New Delhi 110 003,
2. State of Tamil Nadu,
rep.by its Secretary,
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai 600 009,
3. The Tamil Nadu Wakf Board,
rep.by its Chief Executive Officer,
1, Jaffer Syrang Street,
Vallai Seethakadhi Nagar,
Chennai- 600 001
4. Janab A.Tamizhmahan Hussain,
Chairman, Tamil Nadu Wakf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001,
5. Alhaj J.M.Aaron Rashid,
Member of Parliament
Theni Constituency
7, VRS Road, Street-I,
Teynampet, Chennai, Tamilnadu,
6. Janab S.Amir Ali Jinnah,
Member of Parliament
97, V.R.M.Street,
Vijayapuram District, Thiruvapur,
Tamil Nadu 600 102.
7. Janab Mohammed Jan,
Minister of the State
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai 600 009,
Member of Legislative Assembly,
Office of the Member of Legislative Assembly,
Ranipettai, Tamil Nadu.
8. Janab S.Abdul Rahim,
Member of Legislative Assembly,
Officer of the Member of Legislative Assembly,
Avadi,
Residing at:
248/4, New Military Road,
Avadi, Chennai 600 054, Tamil Nadu.
9. Janab S.A.Farooq,
(Eminent Muslim Organization),
No.12, Kopperumdevi Street,
Manapalam, Erode-1.
10. Al-Haj. Salahuddin Md.Ayub
(Chief Khazi), (Sunni Member)
Mowbrays Road,
Royapettah, Chennai 600 014.
11. Janab. Ghulam Mohammed Mehdi Khan,
(Chief Khazi),
Thousand Light Charity,
Peter Road, Chennai 600 006.
12. Janab Mohammed Nasimuddin, I.A.S.,
(State Government Nominee),
St.Fort George, Chennai.
13. Janaba.A.S.Bibi John,
Advocate,
Ex.Member of Bar Council of Tamilnadu,
30, Ramiya Street,
Aminjikarai,
Chennai- 30.
14. Janab M.K.Khan, Advocate,
Ex.Member of Bar Council of Tamilnadu,
Plot No.2031/3B, 13th Main Road,
Annanagar West, Chennai 600 040.
15. Janab M.Mohammed Sikkandar,
Ponnappa Mudali Street,
Purasaiwalkam, Chennai.
16. Dr.Haja K.Majeed,
Mariyam Thayanithi Centre,
Angappan Naicken Street,
Chennai 600 001. .. Respondents
W.P.No.34381 of 2012:
--------------------
K.A.Naina Mohamed .. Petitioner
Vs.
1. State of Tamil Nadu,
rep.by its Secretary,
Backward Class, Most Backward Class and
Minority Welfare Department,
Fort St.George,
Chennai 600 009
2. The Tamil Nadu Wakf Board,
rep.by its Chief Executive Officer,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001,
3. A.Tamizhmahan Hussain,
Tamil Nadu Wakf Board,
No.1, Jaffar Syrag Street,
Vallal Seethakathi Nagar,
Chennai 600 001,
4. S.A.Farooq .. Respondents
W.P.No.658 of 2013:
------------------
Haji A.Abdul Rahman,
President, Ad hoc Committee
Jumma Peria Pallivasal Wakf,
No.10, Savarimuthu Lane,
Pudupet, Chennai 600 002. .. Petitioner
Vs.
1. Union of India,
rep.by its Secretary,
Ministlry of Minority Affairs, 11th Floor,
Paryavaram Bhawan, CGO Complex,
Lodhi Road, New Delhi 110 003,
2. State of Tamil Nadu,
rep.by its Secretary,
Backward Classes, Most Backward Classes and
Minorities Welfare Department,
Fort St.George, Chennai 600 009,
3. The Tamil Nadu Wakf Board,
rep.by its Chief Executive Officer,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001,
4. Janab. Mohamed Jan
Minister of the State
Backward Classes, Most Backward Classes
and Minorities Welfare Department,
Fort St.George, Chennai 600 009,
Member of Legislative Assembly,
Office of the Member of Legislative Assembly,
Ranipettai, Tamil Nadu,
5. Janab A.Tamizhmahan Hussain,
Chairman, Tamil Nadu Wakf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001,
6. Janab S.A.Farooq,
(Eminent Muslim Organization),
No.12, Kopperumdevi Street,
Manapalam, Erode-1, .. Respondents
W.P.No.3870 of 2013:
-------------------
Sarkar-E-Abbasi Ashurkhana E-Mubarak Wakf,
(also known as Thousand Lights Charities)
represented by its Mutawalli,
Medhi Ali, 210, Anna Salai,
Chennai 600 006. .. Petitioner
Vs.
1. State of Tamil Nadu,
represented by its Secretary,
Backward Classes, Most Backward Classes and
Minorities Welfare Department,
Fort St.George,
Chennai 600 009,
2. Tamil Nadu Wakf Board,
represented by its Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai 600 001.
3. Ghulam Mohammed Mehdi Khan,
197, Anna Salai,
Chennai 600 006. .. Respondents
Prayer:Writ Petition in W.P.No.16997 of 2012 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorarified mandamus to call for the records of the first respondent relating to the G.O.(2D) No.18, Backward Classes, Most Backward class and Minorities Welfare (T1) Dated 15.06.2012 published in the Tamil Nadu Government Gazette Extra Ordinary quash the same as illegal and ultra vires to the Wakf Act of 1995 and further direct the 1st respondent to strictly follow the provisions of the Wakf Act, 1995 in constituting the Wakf Board.
Writ Petition in W.P.No.27590 of 2012 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorarified mandamus to call for the records of the first respondent pertaining to the notification dated 31.08.2012 published in Tamilnadu Government Gazette Extraordinary No.240, quash the same, and direct the first respondent to constitute a Wakf Board on following the due procedure set out in Section 14 of the Wakf Act, 1995.
Writ Petition in W.P.No.33785 of 2012 is filed under Article 226 of the Constitution of India seeking for the relief of declaration to declare the Section 14 Sub clause 8 of Wakf Act, 1995 is illegal and against the fundamental rights guaranteed under the Constitution of India and consequently forbearing the 4th respondent from passing orders as Chair person of the Tamil Nadu Wakf Board in discharging function of quasi-judicial.
Writ Petition in W.P.No.34381 of 2012 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorari to call for the records of the 1st respondent/ Government of Tamil Nadu in G.O.2D.No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1) dated 31.08.2012 and quash the said Government Order in respect of the nomination of the 3rd and 4th respondents as members of the Tamil Nadu Wakf Board.
Writ Petition in W.P.No.658 of 2013 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorari to call for the records in notification dated 31.08.2012 published in the Tamil Nadu Government Gazette in G.O.(2D) No.28, issued by the 2nd respondent in respect of nomination of the 4th, 5th and 6th respondents herein as members of the Tamil Nadu Wakf Board and quash the same as illegal, arbitrary and against the scope of the Wakf Act, 1995 as well as against the provisions of the Constitution of India.
Writ Petition in W.P.No.3870 of 2013 is filed under Article 226 of the Constitution of India seeking for the relief of issuance of writ of certiorarified mandamus to call for the records of the respondents culminating in the impugned G.Os of the 1st respondent being G.O.(2D) No.18, dt.15.06.2012 and G.O.(2D) No.28 dated 31.08.2012 both of Backward classes, Most Backward Classes and Minorities Welfare (T1) Department, quash the same insofar as it nominates/ appoints the 3rd respondent viz., Thiru.Ghulam Mohammed Mehdi Khan (Chief Khazi) (Shia Member), (Scholar in Islamic theology) and direct the 1st respondent to appoint/nominate a suitable Shia member who is not disqualified in any manner, as a Shia member of the 2nd respondent viz., Tamil Nadu Wakf Board, under Scholar in Islamic Theology category/in place of the 3rd respondent, by strictly complying with the provisions and requirements of the Wakf Act, 1995 (43 of 1995).
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For Petitioner in W.P.No. : Mrs.Hema Sampath
16997, 27590 of 2012 Senior Counsel
for
Mr.G.Sivakumar
------------------------------------------------------------
For Petitioner in W.P.No. : Mr.S.R.Rajagopalan
33785 of 2012 for
M/s.M.Vivekanandan
------------------------------------------------------------
For Petitioner in : Mr.A.S.Vijayaraghavan
W.P.No.34381 of 2012 for
Mr.N.Sureshkumar
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For Petitioner in : Mr.T.Velumani
W.P.No.658 of 2013
and
17th Respondent in
W.P.No.27590 of 2012
------------------------------------------------------------
For Petitioner in : Mr.M.Sunder
W.P.No.3870 of 2013 for
M/s.J.Viswanathan
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For Respondent No.1 in : Mr.AL.Somayaji
W.P.Nos.16997, 34381 Advocate General
of 2012; 3870 of 2013; assisted by
and for Respondent No.2 Mr.Inbadurai
in W.P.Nos.33785 of Spl. Govt. Pleader
2012 and 658 of 2013 and
Mr.M.Hidayathullah Khan
Government Advocate
------------------------------------------------------------
For Respondent No.1 in : Mr.P.H.Arvindh Pandian
W.P.No.27590 of 2012 Addl. Advocate General
assisted by
Mr.M.Hidayathullah Khan
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For Respondent Nos.2, : Mr.S.Haja Mohideen Gisthi
3,9,10,12 in W.P.No.16997
of 2012 and Respondent Nos.
2,3,7,8 and 10 in W.P.No.
27950/12 and Respondent
Nos.1,2,7,9,11 in W.P.No.
33785/12 and Respondent
Nos.3 and4 in W.P.No.34381
of 2012 and Respondent Nos.
4, 5 and 6 in W.P.No.658/2013
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For Respondent Nos.3 : Mr.V.Lakshmi Narayan
& 4 in W.P.No.33785/2012 for
and Respondent Nos.2 M/s.V.Raghavachari
& 3 in W.P.No.34381/2012
and Respondent Nos.3 & 5
in W.P.No.658/2013
------------------------------------------------------------
For Respondent No.3 in : Mr.AR.L.Sundaresan
W.P.No.3870 of 2013 Senior Counsel
for
M/s.A.Prabakaran
------------------------------------------------------------
For Respondent No.6 in : Mr.T.Ananth Kumar
W.P.No.16997 of 2012
and Respondent No.5 in
W.P.No.27590 & 33785/2012
------------------------------------------------------------
For Respondent No.7 in : Mr.A.N.Purushotham
W.P.No.16997 of 2012
------------------------------------------------------------
For Respondent No.11 in : Mr.Md. Ashafaq Rafi
W.P.No.16997 of 2012
& Respondent No.9 in
W.P.No.27590 of 2012
------------------------------------------------------------
For Respondent No.14 in : Mr.P.Abdul Mubeen
W.P.No.27590 of 2012
------------------------------------------------------------
For Respondent No.5 in : Mr.S.V.Karthikeyan
W.P.No.16997 of 2012
------------------------------------------------------------
For Respondent No.1 : Mr.Manisundergopal
in W.P.No.658 of 2013
------------------------------------------------------------
For Respondent No.2 in : Mr.V.Lakshminarayanan
W.P.No.3870 of 2013 for
Mr.A.Shaik Pareeth
------------------------------------------------------------
COMMON ORDER
R.BANUMATHI, J., AND K.RAVICHANDRABAABU,J.
The writ petitioners challenge the constitution of the Wakf Board in G.O.(2D) No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012 on the ground that requisite conditions for exercise of power by the State Government under Section 14 sub-section (3) are not satisfied and thereby challenging the appointment of members nominated under Section14(1)(b)(i) and (ii) and 14(1)(c) and 14(1)(d) and also challenging the vires of Section 14 sub-section (8) and the consequential election of Tamizhmahan Hussain as Chairperson of Tamil Nadu Wakf Board.
2. Since common issues are involved, all the writ petitions were heard together and shall stand disposed of by this Common Judgment. For conveniences, the respondents are referred to as per their array in W.P.No.27590 of 2012 or by their name.
3. Brief facts:- Section 14(1) of the Wakf Act deals with the composition of the Board. Section 14 Sub-section (2) deals with the election of members specified in Clause (b) of sub-section (1), which has to be held in accordance with system of proportional representation by means of a single transferable vote. Where, in the opinion of the State Government, it is not practicable to constitute an electoral college, Section 14 sub-section (3) empowers the State Government to nominate such members as it deem fit.
4. In view of the resignation of the members of the previous Board, invoking Section 14(3), Government by G.O.(2D) No.18, Backward Classes, Most Backward Classes and Minorities Welfare (T1), dated 15.06.2012, constituted the Tamil Nadu Wakf Board by nominating nine members two members each from Members of Parliament, Members of Legislative Assembly and Muslim Organisations and Scholars in Islamic Theology and appointing one State Government nominee. In so far as the two vacancies in the Bar Council as well as the two vacancies in Mutawalli categories, election was held on 29.8.2012. Government constituted Tamil Nadu Wakf Board and notified the appointment of the nominated nine members and also the elected members (in the category of Bar Council Members and Mutawallis) in G.O.(2D) No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1), dated 31.08.2012. A.Tamilmahan Hussain, (7th respondent in W.P.No.27590 of 2012) has been unanimously elected as Chairman of the Tamil Nadu Wakf Board under Section 14(8) of the Wakf Act, 1995 and the same was notified in G.O.(2D) No.29, Backward Classes and Most Backward Classes and Minorities Welfare (T1) dated 11.09.2012.
5. Case of writ petitioners is that in the impugned G.Os, the Wakf Board constituted has nine nominated members and four elected members thereby violating Section 14(4), which stipulates that the number of elected members shall at all times be more than the nominated members, except as provided under sub-section (3). There was no practical difficulty in conducting the election for just handful of M.L.As and M.Ps i.e., 5 M.L.As and 3 M.Ps. According to the writ petitioners, for exercising the power under Section 14(3), reasons are to be recorded and Government erred in not recording in writing any reason to show that it could not constitute an electoral college. The impugned G.Os are assailed contending that it is vitiated by malafide since the process and the 3rd respondent, who is a Minister for the 1st respondent Department, has nominated himself as a member of Tamil Nadu Wakf Board in the category of Member of Legislative Assembly and the Board so constituted illegally only to serve the purpose of the Government and in violation of the statute cannot function.
6. W.P.No.33785 of 2012 is filed for declaration that Section 14 sub-clause (8) of Wakf Act is unconstitutional and against fundamental rights guaranteed under Constitution of India and consequently to forbear Tamizhmahan Hussain from passing orders as Chairperson of the Tamil Nadu Wakf Board. W.P.No.3870 of 2013 is filed praying to quash G.O.(2D) No.18 dated 15.6.2012 and also G.O.(2D) No.28 dated 31.8.2012 in respect of appointment of Ghulam Md.Mehdi Khan as Shia Member.
7. Challenging G.O.(2D) No.18 dated 15.06.2012 and G.O.(2D) No.28 dated 31.8.2012 of Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department, a sitting M.L.A. has filed W.P.Nos.16997 and 27590 of 2012. Case of the petitioner is that the Wakf Board has 9 nominated members and 4 elected members and the constitution of Wakf Board is in violation of Section 14 of the Wakf Act. Power under Section 14(3) could be exercised by the State Government only for reasons to be recorded and the satisfaction should be arrived at only if it is not reasonably practicable to constitute electoral college in each category. There was no practical difficulty in conducting election for just handful of M.L.As and M.Ps i.e., 5 M.L.As and 3 M.Ps. Government had not recorded any reasons in writing to show that it could not constitute an electoral college for M.L.As and M.Ps, as required under Section 14(3). Further case of petitioner is that the entire process is vitiated by malafide that the 3rd respondent Mr.Mohammed Jan, who is the Minister for Backward Classes, Most Backward Classes and Minorities Welfare Department, has nominated himself under the category of Muslim Members of Legislative Assembly and the 3rd respondent has thus abused power vested in him. Alleging constitution of Board is arbitrary and violation of Section 14 of the Wakf Act, petitioner seeks certiorarified mandamus to quash both the G.Os G.O.(2D).No.18, Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department, dated 15.06.2012 and G.O.(2D).No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012.
8. Challenging the appointment of Tamizhmahan Hussain and S.A.Farooq (both in the category of eminent Muslim Orgaisations) and Mohammed Jan - 3rd respondent (Member of Legislative Assembly), two practising advocates have filed W.P.No.34381 of 2012 and 658 of 2013.
9. Case of writ petitioners is that in the category of eminent Muslim Organisation, Government nominated two persons viz., the Tamizhmahan Hussain and S.A.Farooq, who do not belong to any eminent Muslim Organisation and thereby the provisions of Section 14(1)(c) of the Act have been violated in the nomination of the aforesaid two persons, which is per se illegal. For the purpose of nominating two persons from the category of eminent Muslim Organisations as members of the Wakf Board, the 1st respondent/Government have not even called for applications from the various personalities belonging to various prominent and eminent Muslim Organisations functioning in the State for the betterment of Muslim community. Alleging that Tamizhmahan Hussain and S.A.Farooq do not belong to any eminent Muslim Organisation and that their nomination is arbitrary and violative of Section 14(1)(c) the writ petitioners seek to quash G.O.(2D).No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012.
10. Insofar as the nomination of 3rd respondent, in W.P.No.658 of 2013, apart from challenging the nomination of Tamizhmahan Hussain and S.A.Farooq, the writ petitioner also challenges the nomination of Mohammed Jan, who was nominated under the category of elected Muslim members of the Legislative Assembly. Case of writ petitioners is that the Department of Backward and Most Backward Classes and minorities welfare Department is the appellate authority to verify the orders passed by the Tamil Nadu Wakf Board under Sections 20, 65, 66 and 99. The 3rd respondent Mohammed Jan is the Minister of the concerned Department, which is Appellate Authority and he is not eligible to function as a member of the Board. The same person cannot hold the post of basic authority as well as the appellate authority and his appointment is challenged on the ground that it is in violation of principles of natural justice.
11. Challenging the vires of Section 14, sub-clause (8) of Wakf Act and consequently to forbear the 7th respondent Tamizhmahan Hussain from functioning as Chairperson, the writ petitioner Anwar Hussain has filed W.P.No.33785 of 2012. Case of petitioner is that the Chairperson of the Wakf Board is to carry out quasi-judicial functions of the Board in determination of the issues involved in various cases pertaining to the Wakfs, which are fraught with various questions of law and facts and the Chairperson of the Wakf Board has to possess adequate and requisite basic knowledge in the field of law besides wide knowledge in the particular field. According to the petitioner, in the present Wakf Act, 1995. more particularly under Section 14(8), the requisite qualification, experience of the person to be so elected as the Chairperson is absent and as such the present provisions - Section 14(8) of the Wakf Act selecting the Chairperson without possessing adequate knowledge and experience in law is against the fundamental rights. Case of petitioner is that the 7th respondent Tamizhmahan Hussain does not possess the basic and requisite knowledge in law and experience in the field of law and while challenging the vires of Section 14(8) of the Act, the writ petitioner seeks for injunction restraining the 7th respondent Tamizhmahan Hussain from passing orders as Chairperson in the Wakf Board.
12. Sarkar-E-Abbasi Ashurkhana E-Mubarak Wakf, also known as Thousand Lights Charities, has filed W.P.No.3870 of 2013 challenging the nomination of Ghulam Mohammed Mehdi Khan - 10th respondent (Chief Khazi), (Shia member in the category of Scholar in Islamic Theology). As per Section 14(5) of the Wakf Act, it is mandatory to have atleast one Shia member in the Wakf Board and Ghulam Mohammed Mehdi Khan - 10th respondent is alone the Shia member in the Wakf Board. Case of writ petitioner is that Ghulam Mohammed Mehdi Khan is disqualified from being nominated as Wakf Board member since he was disqualified under Section 16(e)(i) of the Wakf Act. Since he was disqualified under Section 16(e)(i) of the Act as he was removed from the office of Mutawalli of the writ petitioner Wakf, by the proceedings dated 27.6.2001 in W.E.A.No.12/99/E5/MDS, Ghulam Mohammed Mehdi Khan - 10th respondent has not purged himself of his disqualification and his disqualification continues. Challenging his removal, 10th respondent Ghulam Mohammed Mehdi Khan filed a statutory appeal before the Wakf Tribunal in O.S.No.7449 of 2001 on the file of City Civil Court, Chennai and the said suit was dismissed, against which the 10th respondent has preferred a revision petition in the High Court in C.R.P.No.1329 of 2004. Alleging that the nomination of 10th respondent Ghulam Mohammed Mehdi Khan as member of Wakf Board is clearly barred by Section 16(e)(i) of the Wakf Act, the writ petitioner Wakf seeks to quash nomination of Ghulam Mohammed Mehdi Khan as the Shia member in the category of Scholar in Islamic Theology.
13. The 1st respondent/ Government filed counter contending that for proper and smooth functioning of the Wakf Board and since number of projects were pending, considering the exigency of the situation, which have been recorded by the State Government, the State Government exercised the powers conferred under Section 14(3) of the Act nominating the members and constituted the Board. The appointment of the members of the Board has been made strictly in accordance with the provisions of the Act and that too, after the State Government being satisfied for valid reasons that it is not reasonably possible to constitute the electoral college in respect of the categories relating to Muslim members of Parliament and Muslim members of the State Legislature and power under Section 14(3) of the Act was invoked for valid reasons.
14. According to Government, the powers conferred under Section 14(3) of the Act have been correctly invoked after the State Government is fully satisfied that it was not reasonably practicable to constitute electoral college relating to M.Ps and M.L.As. In so far as the categories of Muslim members of Bar Council and Mutawallis of Wakf, election was held on 29.8.2012 by secret ballot as per the procedure prescribed and counting of votes was completed on 30.8.2012 and the constitution of the Board was notified in Tamilnadu Government Gazette Extraordinary No.240 dated 31.8.2012. According to the Government, the nomination of the members and the constitution of the Wakf Board are in accordance with the provisions of Wakf Act and the rules made thereunder.
15. In respect of challenge to the appointment of 3rd respondent Mohammed Jan, Minister of Backward Classes, Most Backward Classes and Minority Welfare Department, as the member of the Board is concerned, the Government filed counter stating that such member holding a post in the Ministry will not be debarred from being nominated as a member of the Board. Any decision rendered by the Board can be appealed to the State Government under Section 65(2) of the Act and the Secretary to Backward Classes, Most Backward Classes and Minority Welfare Department is competent to decide the correctness, legality or propriety of the notification issued by the Board and in such circumstances, the writ petitioner cannot contend that the appellate authority is under the influence of the Ministry and therefore the nomination of Minister under the category of Section 14(1)(b)(ii) of the Act is in order.
16. In respect of challenge to the nomination of Tamizhmahan Hussain and S.A.Farooq in the category of eminent Muslim Organisation, Government filed counter stating that Tamizhmahan Hussain was nominated taking into account his active participation in the prominent Muslim Organisation as President viz, Kanyakumari District Muslim Jamath Federation for about five years. In respect of the nomination of S.A.Farooq - 8th respondent is concerned, he is an active member of Erode Education Academy (a Minority educational Trust) for more than three years and his nomination is also only in terms of Section 14(1)(c) of the Act and the writ petitioner cannot question the validity of the nomination made by the Government in the category of Section 14(1)(c) of the Act.
17. In respect of challenge to the appointment of Ghulam Mohammed Mehdi Khan (Chief Kazi) (shia member), Government filed counter stating that Ghulam Mohammed Mehdi Khan was nominated under the scholar in Islamic Theology category from Shia sect. According to Government, the above nomination has been done based on his continuous occupation as State Chief Kazi (Shia) and he has been serving in the said post from the year of 2003 without any blemish and has been effectively representing the Shia community in the State. Considering his position that he, being the Chief Kazi to the Government of Tamil Nadu for Shia sect for more than a decade and also his representation to the Government to consider him for being nominated as a member of the Wakf Board, Government nominated him as a member under the category of Scholar in Islamic Theology and the same cannot be challenged.
18. Ghulam Mohammed Mehdi Khan's removal as Mutawalli was on the ground that he was residing in Iran and that his family is over-represented and therefore such removal cannot amount to disqualification. Removal from the office of Mutawalli should be in consonance with the reason assigned in Section 16(e)(ii) of the Act viz., mis-management or for corruption alone. The writ petitioner Wakf, being an Association, has no locus standi to maintain the writ petition.
19. Reiterating the averments in the counter filed by the Government, Tamil Nadu Wakf Board filed separate counter stating that nomination of members and constitution of the Wakf Board are in accordance with the provisions of Wakf Act and Rules made thereon. According to the 2nd respondent, for discharging its urgent and pending functions and projects, the 2nd respondent- Wakf Board continuously requested the Government to constitute the Tamil Nadu Wakf Board for discharging the urgent and pending functions and projects. Section 14(3) provides that where the State Government is satisfied for reasons to be recorded in writing that it is not reasonably practicable to constitute electoral college for any of the categories in (i) to (iii) of clause b of Sub Section 1, Government may nominate such persons as the members of the Board and this shows the election from each electoral college relating to the M.Ps, M.L.As, Bar Council Members and Mutawalli is not the only method by which the composition of the Board can be made. The nomination of the members and constitution of the Wakf Board are in accordance with the provisions of the Wakf Act and rules thereon. The writ petitions are liable to be dismissed.
20. In W.P.No.33785 of 2012, challenging the constitutionality of Section 14(8), Government filed counter stating that Section 14(8) of the Act sets out the manner in which the Chairman of the Board is to be elected and election is a best solution to prevent arbitrariness. The writ petitioner miserably failed to demonstrate as to how the said Section is unconstitutional. The Act does not speak about educational qualification as a necessity for functioning as Chairman. The Chairperson of the Wakf Board cannot be compared to the Chief Information Commissioner. Power vests with the Board and not with the Chairman alone. Wakf Board has two legally trained minds and former member of the Bar Council of India, who are eminent persons to advise the Board, while taking decisions and therefore the petitioner cannot contend that the Chairperson should possess adequate knowledge of law. Wakf Board has to decide the issues relating to Wakf with reference to the School of Islam to which it belong. Therefore, the knowledge of Holy Quran and Hadis is the required condition. The constitutionality of the Act has been upheld by several High Courts and the Writ Petitioner is not entitled to the relief sought for.
21. We have heard the learned counsel appearing for the parties at length. We refer to the submissions while considering the respective points. Upon consideration of the submissions, the following points arise for consideration in these writ petitions:-
1. Whether the requisite conditions for exercising power under Section 14 sub-section (3) were not satisfied and whether the impugned G.O.(2D).No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1) dated 31.08.2012 is vitiated for improper invoking of Section 14 Sub-section (3)?
2. Whether the impugned G.O.(2D).No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1) dated 31.08.2012 is vitiated for violation of Section 14(4)?
3. Whether the nomination of Mohammed Jan, Minister of Backward Classes, Most Backward Classes and Minorities as a member of the Wakf Board vitiates the impugned G.Os?
4. Whether the challenge to the nomination of Tamizhmahan Hussain and S.A.Farooq under the category of 'eminent Muslim organisations' is acceptable?
5. Whether the petitioners are right in contending that Section 14(8) of the Wakf Act is ultra vires?
6. Whether the petitioners are justified in challenging the election of Tamizhmahan Hussain as the Chairperson of Tamilnadu Wakf Board on the ground that he does not possess any educational qualification and that he would not be in a position to discharge the responsibilities?
7. Whether the objection raised by Tamil Nadu Wakf Board regarding the locus standi of the writ petitioners in W.P.No.33785 of 2012 is acceptable?
8. Whether the contention of writ petitioner in W.P.Nos.3870 of 2013 challenging the appointment of Ghulam Mohammed Mehdi Khan (in the category of Scholar in Islamic Theology) is acceptable?
9. Whether Tamil Nadu Wakf Board's objection regarding Writ Petitioner Wakf (W.P.No.3870 of 2013) the locus standi of the petitioner Wakf is acceptable?
10. If G.O.(2D).No.18, Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department, dated 15.06.2012 and G.O.(2D).No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012 are vitiated on account of violation of Section 14(3), what are the directions to be issued?
22. Point No.1:- Challenge to the notification under Section 14(3) of Wakf Act:-
It is stated that in the State of Tamil Nadu, there are three muslim Members of Parliament and five muslim Members of State Legislative Assembly. Invoking Section 14(3) of Wakf Act, Government nominated two Members of Parliament J.M.Aaron Rashid and S.Amir Ali Jinnah [Section 14(1)(b)(i)]; two Members of State Legislative Assembly Mohammed Jan and S.Abdul Rahim [Section 14(1)(b)(ii)] and Notification G.O.2D.No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012 was issued appointing them as Members of Wakf Board.
23. On behalf of the writ petitioners, it was submitted that eligible persons to constitute the electoral college to represent the categories as mentioned in Section 14(1)(b)(i) and (ii), where available, the State ought not to have taken recourse to Sub-section (3) of Section 14 for nominating members on the Wakf Board. It was further submitted that the power under sub-section (3) of Section 14 could be exercised by the State Government only if the Government is satisfied for reasons to be recorded in writing that it is not reasonably practicable to constitute an electoral college for the categories mentioned in sub-clause (i) and (ii) of Clause (b) of Sub-section (1) of Section 14 of the said Act. The learned Senior Counsel for the petitioners Mrs.Hema Sampath submitted that when the Government found time to constitute electoral college for the categories of Muslim members of Bar Council of the State and Mutawallis of the Wakfs, there were no reasons for exercise of power under sub-section (3) of Section 14 in respect of categories 14(1)(b)(i) and (ii). The learned counsel submitted that since no reasons are recorded in the notification, the exercise of power under sub-section (3) of Section 14 nominating the members in respect of categories in Section 14(1)(b)(i) and (ii) vitiates the Government Order.
24. Refuting the contentions, the learned Advocate General submitted that the scope of judicial review of an executive action while exercising jurisdiction under Article 226 of the Constitution is very limited. Taking us through the counter, the learned Advocate General submitted that in number of writ petitions (W.P.Nos.20379 of 2010, 1134 of 2011, 13365 of 2011 and 4276 of 2011) various directions were issued by the Court to the Wakf Board and Wakf Board was also facing contempt in Contempt Petition No.767 of 2011 and considering that there was immediate necessity to constitute Wakf Board and since the statutory provision under Section 14(3) empowers the State Government to exercise the powers, on being satisfied regarding the necessity to exercise the said power and on the materials when the Government was satisfied to invoke Section 14(3), the writ petitioners cannot challenge the decision of the State Government to invoke Section 14(3). The learned Advocate General further submitted that Section 14(3) opens with non-obstante clause and it has overriding effect over the other parts of Section 14. When the power under Section 14(3) was exercised by the State Government, the provisions in other parts of Section 14 will not come in its way.
25. We have considered the submissions. For appreciating the contentions, it is necessary to refer to Section 14 of the Wakf Act, which 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 organisations;
(d) one and not more than two members to be nominated by the State Government, each from recognised 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".
26. Section 14 prescribes composition of the Board and it employs the word shall consist of and prescribes various categories from which the members can either be elected or nominated. If one member from each category is elected, the total strength of the Board becomes seven. Out of them, four will be elected and three will be nominated. If two members are elected from each category/nominated under Section 14(1), the total strength comes to thirteen and out of it, eight will be elected and five will be nominated. Out of thirteen, not more than two members shall be elected from each of the electoral college consisting of (i) Muslim members of Parliament; (ii) Muslim members of the State Legislature; (iii) Muslim members of the Bar Council of the State and (iv) Mutavallis of the Wakfs having annual income of Rs.1 lakh and above.
27. The desire to have popular representation on Wakf Board can be gathered from Section 14 sub-section (2), which prescribes electoral college and election. The above four categories specified in Section 14(1)(b) are to be elected from each electoral college and eligible candidates from respective categories by a system of proportional representation by single transferable vote. By virtue of the 1st proviso to sub-section (2), if there is a single Muslim leader in electoral college, under Section 14(1)(b)(i), (ii) (iii), the enactment itself declares him to be elected on Board. In the absence of any Muslim member in electoral colleges under Section 14(1)(b)(i)(ii)(iii), the ex.Muslim members of Parliament, State Legislature or Muslim ex.members of the State Bar Council shall constitute the electoral college. Primacy given to democratic process of administration and supervision in Wakf Board Management is apparent. In fact, the Statement of Objects and reasons shows this composition and election is an important feature of the Wakf Act. Since the intention of the Legislature is to have democratic process of administration and supervision in Wakf Board Management, the State cannot avoid election and resort to nomination arbitrarily. The only exception is Section 14(3). In Section 14(3), the Government is given discretion to exercise power to nominate such persons as members of the Board.
28. Now, let us examine under what circumstances the power under Section 14(3) can be exercised by the State. By a careful reading of Section 14(3), exercise of power under Section 14(3) is circumscribed by three conditions:-
(i)The State is required to arrive at a satisfaction;
(ii)Reasons are to be recorded in writing for arriving at the satisfaction;
(iii)The satisfaction which is to be arrived at is to the effect 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) of Section 14.
29. The formation of opinion is a condition precedent for exercise of power by the State Government under Section 14(3) of the Act. The said opinion has to be based on the objective finding and for reasons to be recorded. Not constituting electoral college and to nominate members in the category of Members of Parliament and Members of State Legislative Assembly is to deviate from democratic process. The satisfaction of the Government must be based on materials and as per Section 14(3) of the Act, the satisfaction must be recorded in writing.
30. In BHIKHUBHAI VITHLABHAI PATEL AND OTHERS VS. STATE OF GUJARAT AND ANOTHER, (2008) 4 SCC 144 and BARIUM CHEMICALS LTD. VS. COMPANY LAW BOARD, (AIR 1967 SC 295), the Hon'ble Supreme Court was considering the question of Section 21 read with Section 17 of Maharashtra Regional Town Planning Act, in which the State Government was empowered to publish modifications in the draft development plan, provided the Government was of the opinion that substantial modification of the draft development plan was necessary. The question regarding formation of opinion by the Government arose for consideration before the Hon'ble Supreme Court. In the said case, the Hon'ble Supreme Court held as under:-
"20. The State Government is entitled to publish the modifications provided it is of opinion that substantial modifications in the draft development plan are necessary. The expression "`is of opinion' that substantial modifications in the draft development plan are necessary" is of crucial importance. Is there any material available on record which enabled the State Government to form its opinion that substantial modifications in the draft development plan were necessary? The State Government's jurisdiction to make substantial modifications in the draft development plan is inter-twined with the formation of its opinion that such substantial modifications are necessary in the draft development plan. The State Government without forming any such opinion cannot publish the modifications considered necessary along with notice inviting suggestions or objections. We have already noticed that as on the day when the Minister concerned took the decision proposing to designate the land for educational use the material available on record were :
(a) the opinion of the Chief Town Planner;
(b) Note dated 23rd April, 2004 prepared on the basis of the record providing the entire background of the previous litigation together with the suggestion that the land should no more be reserved for the purpose of South Gujarat University and after releasing the lands from reservation, the same should be placed under the residential zone.
21. It is true the State Government is not bound by such opinion and is entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.
22. Any opinion of the Government to be formed is not subject to objective test. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion. But there must be material based on which alone the State Government could form its opinion that it has become necessary to make substantial modification in the draft development plan.
23. The power conferred by Section 17(1)(a) (ii) read with proviso is a conditional power. It is not an absolute power to be exercised in the discretion of the State Government. The condition is formation of opinion - subjective, no doubt - that it had become necessary to make substantial modifications in the draft development plan. This opinion may be formed on the basis of material sent along with the draft development plan or on the basis of relevant information that may be available with the State Government. The existence of relevant material is a pre-condition to the formation of opinion. The use of word "may" indicates not only a discretion but an obligation to consider that a necessity has arisen to make substantial modifications in the draft development plan. It also involves an obligation to consider which of the several steps specified in sub- clauses (i), (ii) and (iii) should be taken.
24. The Proviso opens with the words "where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary....". These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan.
25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression: "as considered necessary" is again of crucial importance. The term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable;impossible to be otherwise; not to be avoided; inevitable. The word "necessary" must be construed in the connection in which it is used.
(See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)
26. The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan."
31. In the case of Berrium Chemicals Limited v. Company Law Board (AIR 1967 SC 295), the Hon'ble Supreme Court had an occasion to consider the import of the phrases "is satisfied", "is of the opinion" and "has reasonable cause to believe". Observing that opinion of the Government must be based on existence of circumstances and that the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed collateral ground, in the said decision, the Hon'ble Supreme Court held as under:-
"64. The object of s. 237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. Clause (a) does not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the court where a judicial process intervenes. Clause (b), on the other hand, leaves directing an investigation to the subjective opinion of the government or the Board. Since the legislature enacted s. 637 (i) (a) it knew that government would entrust to the Board its power under s. 237 (b). Could the legislature have left without any restraints or limitations the entire power of ordering an investigation to the subjective decision of the Government or the Board ? There is no doubt that the formation of opinion by the Central Government is a purely subjective process.
There can also be no doubt that since the legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist ? The legislature no doubt has used the expression "circumstances suggesting". But that expression means that the circumstances need not be such as would conclusively establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation. But the expression "circumstances suggesting" cannot support the construction that even the existence of circumstances is a matter of subjective opinion. That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the legislature could have abandoned even the small safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigation can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process. These analysis finds support in Gower's Modern Company Law (2nd Ed.) p. 547 where the learned author, while dealing with s. 165(b) of the English Act observes that "the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion" and that "they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality." There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub- clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute."
32. The extent of judicial review on the formation of opinion by the State Government which is subjective process, in Paragraph 33 of BHIKHUBHAI VITHLABHAI PATEL case, the Hon'ble Supreme Court held as under:-
"33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute".
33. Considering the question whether formation of opinion by the State Government under Section 14(3) can be subject to judicial review and after referring to the decision of the Supreme Court in BHIKHUBHAI VITHLABHAI PATEL AND OTHERS VS. STATE OF GUJARAT AND ANOTHER, (2008) 4 SCC 144 and BARIUM CHEMICALS LTD. VS. COMPANY LAW BOARD, (AIR 1967 SC 295), the Bombay High Court (Aurangabad) by observing that the formation of opinion by the State Government is subject to judicial review, called for the original file and examined the reasons and while considering the question of judicial review of formation of opinion by the State Government, the Bombay High Court has held as under:-
"... It could thus be seen that the Apex Court has held that the formation of opinion is a condition precedent for setting the law in motion proposing substantial modification in the draft development Plan. It has further been held by the Apex Court that the condition of formation of opinion was subjective, the said opinion was required to be formed on the basis of the material to be sent alongwith the draft development plan or on the basis of relevant information that may be available with the State Government. It has been further held that the existence of relevant material is a pre-condition for formation of opinion. It has been further held that the formation of opinion by the State Government should reflect intense application of mind with reference to the material available that it has become necessary to propose substantial modification to the draft development plan.
14. ...... It could thus clearly be seen that though the formation of opinion by the State Government is purely subjective process and it will not be permissible for this court to challenge the same on the ground of propriety, reasonableness or sufficiency, but, at the same time, it will be the duty of the Court to examine, whether the satisfaction arrived at by the authority is on the basis of the circumstances suggested in the statutory provision itself.
16. We are, therefore, of the considered view that this court would be entitled to examine, as to whether there has been any material available with the State Government, to arrive at a subjective satisfaction that it is required in law and whether the reasons which weighed in the formation of the opinion are recorded in writing. With the assistance of the learned Special counsel we have examined the original file. ...."
34. Pointing out that no reasons were recorded as to how the Government was satisfied that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of Section 14(1)(d), the Bombay High Court held that the condition precedent for invoking powers by the State Government under Section 14(3) were not satisfied and quashed the Government Order.
35. We agree with the view taken by the Bombay High Court. As pointed out earlier, the powers under Section 14(3) can be exercised only on the three conditions mentioned earlier, being satisfied. In the counter affidavit filed by the State Government (W.P.No.658 of 2013), it is averred that erstwhile Board members including Chairman have resigned their post on 17.5.2011 and by exercising the powers conferred under Section 14(3), and reasons recorded, State Government nominated two persons from each electoral colleges under Section 14(1)(b)(i) and (ii) and therefore the nomination of two members each from the members of Parliament and members of State Legislature cannot be faulted and the nomination is very much in consonance with Section 14(1)(iii) and (iv) of the Wakf Act.
36. In the counter filed by Tamilnadu Wakf Board in W.P.No.27590 of 2012, it is stated that in view of the resignation of the members of the previous Board, and pending functions and projects and there were many issues pending adjudication before the Tamil Nadu Wakf Board and many condone petitions were also pending, the Chief Executive Officer continuously requested State Government to constitute Tamil Nadu Wakf Board for discharging its urgent and pending functions and projects. In this regard, the learned Advocate General has drawn our attention to the Order passed in various Writ Petitions W.P.Nos.20379 of 2010 (29.9.2010); 1134 of 2011 (dated 6.6.2011) and 13365 of 2011 (dated 1.12.2011). In W.P.No.20379 of 2010, contempt petition was also filed in Contempt Petition No.767 of 2011.
37. In W.P.No.4276 of 2011, Madurai Bench of Madras High Court passed orders extending the tenure of the petitioner thereon till a new set of trustees is appointed to the Wakf in question. It was submitted that similar orders were also passed in other Writ Petitions extending the tenure of the trustees of various Wakfs. In this context, Chief Executive Officer of Tamil Nadu Wakf Board addressed a letter dated 27.12.2011 to the 1st respondent requesting the Government to take emergent steps to re-constitute Tamil Nadu Wakf Board. In the said letter, the Chief Executive Officer referred to the various writ petitions, wherein directions were issued against Tamil Nadu Wakf Board. Drawing our attention to the various writ petitions and also the said letter of the Chief Executive Officer, the learned Advocate General submitted that there were materials and existing circumstances to form subjective satisfaction that it was not reasonably practicable to constitute electoral college and therefore exercise of powers under Section 14(3) cannot be said to be arbitrary.
38. As we pointed out earlier, exercise of power under Section 14(3) is permissible only if the State Government arrived at a subjective satisfaction that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clause (i) to (iv) of Section 14(1)(b). Since it was reiterated in the counter that State Government recorded reasons for exercise of powers under Section 14(3), we have called for the original file. File No.4089/T1/2011 along with a small File containing G.O.2D No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.08.2012 and also a separate Note BC, MBC & MW(T1) Dept. dated 04.04.2012 containing seal of Secretary to Government were produced before us in a sealed cover.
39. We have perused the File. An Office Note dated 18.07.2011, after referring to the provision of Section 14(3) and the relevant sub-sections of Wakf Act, makes a proposal to nominate Two Members of Parliament and Two Members of State Legislative Assembly; Two Members of Eminent Muslim Organization; Two Members of Recognised Scholars in Islamic Theology and One Government Officer not below the rank of Deputy Secretary to Government. In the said Office Note, we do not find any subjective satisfaction recorded in writing that it is not reasonably practicable to constitute Electoral Colleges consisting of each categories of Members of Parliament and Members of State Legislative Assembly. The Office Note dated 18.7.2011 circulated to the Minister and Chief Minister sought for orders as to whether such nomination can be made. Inspite of such Office Note, we find no reason is recorded.
40. The said File circulated to the Chief Minister's Office on 20.07.2011 was pending. While the said File was pending, Note BC, MBC & MW(T1) Dept. dated 04.04.2012 was sent which refers to W.P.No.20379 of 2010 and M.P.No.1 of 2010 where the Court directed the Tamil Nadu Wakf Board to pass order within the period of two months to constitute the Tamil Nadu Wakf Board after referring to the circulation of the File No.4089/T1/2011. The said Office Note states as follows:-
"In respect of other members including Members of Parliament 2, Members of Legislative Assembly 2, Members of Eminent Muslim Organization 2, Recognised Scholars in Islamic Theology -2 and one Government officer not below the rank of Deputy Secretary to Government, it has already been proposed in file No.4089/T1/2011 to nominate them as members in view of urgency and Court proceedings and orders.
The return of the main file No.4089/T1/2011 is still awaited."
By perusal of the above Office Note, it is clear that even in the earlier Office Note, only proposal was made to nominate the above categories as Members. Needless to say that a mere proposal, unless ended in a decision, cannot be construed as in anyway reflecting the application of mind by the Government. Reference to W.P.No.20379 of 2010 and direction issued by the Court in the subsequent Office Note dated 04.04.2012 would not in any way satisfy the pre-requisite conditions which are to be satisfied for exercise of power under Section 14(3) of Wakf Act. There is nothing in the File which would show that the Government arrived subjective satisfaction that it is not reasonably practicable to constitute Electoral Colleges in each category of Members of Parliament and Members of State Legislative Assembly. No reasons are recorded in the File for arriving at a subjective satisfaction.
41. Let us go one step further and assume that the reasons referred to in the proposal are to be presumed as the reasons for resorting to Section 14(3). No doubt, it is ultimately the satisfaction of the Government that matters. Yet, such satisfaction should pass the test of touch stone of reasonableness and thereby Article 14 of the Constitution of India. Section 14(3) does not contemplate every reason of the Government as a satisfying requirement to invoke nomination procedure. On the other hand, it is very specific that impracticability to form the electoral college should be the reason for not resorting to election under Section 14(1). Hence such impracticability should be spelt out with sound reasonings and when it is tested before the Court, the same should also pass the test of justifiability. Certainly a democratic norm cannot be allowed to be thwarted especially when the Government fails to satisfy the Court about the compliance of the mandatory requirement under Section 14(3).
42. Keeping this principle in mind, if we examine the reasons stated in the proposals, certainly they cannot, even at any stretch of imagination, be construed as justifiable one establishing the Government's impracticability in constituting the electoral college of 3 MPs and 5 MLAs. (Even a normal prudency is enough to say that those reasons failed the test of reasonableness.)
43. We are of the view that the conditions precedent for invoking the powers by the State Government under Section 14(3) were not satisfied and the nomination of Two Members of Parliament J.M.Aaron Rashid and S.Amir Ali Jinnah and Two Members of State Legislative Assembly Mohammed Jan and S.Abdul Rahim is liable to be quashed.
44. Point No.2:- Challenge to the Notification under Section 14(4) of Wakf Act:-
Section 14(4) of the Act requires that number of elected Members of the Wakf Board has to be more than its nominated members "at all times". The Section sets out the exception by stating that when the power under Section 14(3) is resorted to, it may not be so, since Section 14(3) opens with non obstante clause and dispenses with holding of election. Since the Government exercised its power under Section 14(3) in nominating the Members in the category of Two Members of Parliament and Two Members of State Legislative Assembly, naturally the nominated Members exceeded the elected Members. In view of our conclusion on Point No.1, the Point No.2 need not further be elaborated upon.
45. Point No.3:- Nomination of 3rd respondent Mohammed Jan, Minister to the State Backward Classes, Most Backward Classes and Minorities Welfare Department:- While making nomination in the category of Section 14(1)((b)(ii), the State Government nominated 3rd respondent - Mohammed Jan as the member of the Board of members of the Wakf. The 3rd respondent Mohammed Jan is the Minister to the State Backward Classes, Most Backward Classes and Minorities Welfare Department, under whom, the said Ministry is functioning and the said Ministry/ Department is having the general superintendence/appellate powers over the Board.
46. Contentions:- On behalf of the writ petitioners in W.P.Nos.27590 of 2012 and 658 of 2013 it was contended that as per the provisions of the Wakf Act, the State Government i.e., Department of Backward Classes, Most Backward Classes and Minorities Welfare Department is the appellate authority in respect of certain appealable matters provided under Sections 65 and 66 of the Wakf Act. It was submitted that the 3rd respondent Mohammed Jan is the Minister for the said Department under whom the Department is functioning and the 3rd respondent cannot be the original authority as well as the appellate authority and the nomination of concerned Minister himself in the category of Section 14(1)(b)(ii) vitiates the constitution of the Wakf Board.
47. Per contra, the learned Advocate General submitted that there is no question of disqualification and as such a Minister will not be debarred from being nominated as member of the Board. The learned Advocate General further submitted that any decision rendered by the Board can be appealed to the State Government under Section 65(2) of the Act and Secretary to Backward Classes, Most Backward Classes and Minorities Welfare Department is competent to decide the correctness, legality, propriety of the notification issued by the Board and in such circumstances, any influence or overlapping of the Ministry does not arise and therefore the nomination of Minister in the category of Section 14(1)(b)(ii) of the Act is perfectly in order.
48. Findings:- As pointed out earlier, the 3rd respondent is the Minister of Backward Classes, Most Backward Classes and Minorities Welfare Department, which is the concerned Department for the Wakf Board. Section 65 Sub-section (2) empowers the State Government either on its own motion or on the application of any person interested to consider the correctness, legality or propriety of the notification issued by the Board and pass necessary orders and the decision of the Government shall be final. Sub-section (3) enjoins the Board to send to the Government annual report in respect of wakfs under its direct management and sub-section (4) empowers the State Government to examine the report and give to the Board suitable directions and instructions.
49. Section 99 confers power on the State Government to supersede the Board and take over the functions of the Board and the administration of all wakfs in the State (1) if the Board is unable to perform the duties imposed on it; (2) if it has persistently made default in the performance of its duty; (3) if it has exceeded or abused its powers and other grounds as stated therein. The power of State Government under Section 99 is extraordinary in nature. Thus, the fact remains that the State Government has the power to supersede the Board and take over the functions of the Board.
50. On a combined reading of sub-sections 2 and 3 of Section 65 and Section 99 and the Scheme of the Act, it is clear that the State Government is the appellate authority and also having general superintendence over the Wakf Board. The 3rd respondent Mohammed Jan is Minister of Backward Classes, Most Backward Classes and Minorities Welfare Department, which is the Department Appellate authority/revisional authority and also having the general power of superintendence. Being the Minister of Backward Classes, Most Backward Classes and Minorities Welfare Department, 3rd respondent Mohammed Jan cannot be the original authority as well as the appellate/revisional authority.
51. Insofar as the contention that only Secretary to Backward Classes, Most Backward Classes and Minorities Welfare Department is competent to decide the correctness, legality or propriety of the notification issued by the Wakf Board, the 3rd respondent Mohammed Jan, being the Minister of the concerned Department, he is in an influential position for taking the decision. While we perused the file, we also noticed that the file was routed through the Secretary and then the Minister and then to the Chief Minister. The 3rd respondent, being the Minister of concerned Department, is responsible not only for his actions, but also for the actions/decisions taken by the Secretary. In JAIPUR DEVELOPMENT AUTHORITY VS. DAULAT MAL JAIN, (1997) 1 SCC 35, the Hon'ble Supreme Court after elaborating upon the office of Minister and Public acts or duties as the holder of public office, Hon'ble supreme Court held as under:
10. ...... The legal and moral responsibility or liability for the acts done or omissions, duties performed and policy laid down rest solely on the Minister of the Department. Therefore, they are indictable for their conduct or omission, or misconduct or misappropriation. The Council of Ministers are jointly and severally responsible to the legislature. He/they is/are also publicly accountable for the acts or conducts in the performance of duties.
11. The Minister holds public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or duties as the holder of public office. Therefore, he owes certain accountability for the acts done or duties performed..........
12. ...... The Government acts through its bureaucrats, who shape its social, economic and administrative policies to further the social stability and progress socially, economically and politically. Actions of the Government, should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the purpose and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals. The ministerial responsibility thereat comes into consideration. The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the name of the Governor in relation to the Department of which he is the head.
52. The Wakf Board is a creature of the statute. Section 16, which lays down the disqualification for being appointed or for continuation as member of Wakf Board, does not expressly disqualify a Minister from being nominated as a member of the Wakf Board. Had the 3rd respondent been a Minister in some other Department, there would not have been any impediment for him to be the member of the Wakf Board as well as the Minister. But as discussed earlier, the general superintendence of the Wakf is upon the State Government. The scheme of the statutory arrangement is such that the State Government i.e., the Department of Backward Classes, Most Backward Classes and Minorities Welfare Department has the general superintendence over the Wakfs and the Wakf Board. The 3rd respondent, being the Minister of the concerned Department, cannot be both the original authority as well as the supervisory authority. As a Minister of the State Ministry, the 3rd respondent Mohammed Jan is in a position of appellate authority. Though the Government acts through the Secretary, the Minister, being in an influential position, the action of the Secretary cannot be divorced from that of the Minister. As a minister, he is in a supervisory position of the Wakfs and the Wakf Board and he is the guardian of all the Wakfs and the Tamil Nadu Wakf Board. Oath of office obliges Hon'ble Minister to discharge his duties faithfully and conscientiously and to do right to all groups of people in accordance with the Constitution and the Law, without fear or favour, affection or ill-will. Being a member of the Wakf Board and his remote interests in State Wakf Board militates with his duty to advise and assist State Government in the general superintendence of Tamil Nadu Wakf Board. The impugned G.O.(2D) No.18 dated 15.06.2012 and G.O.(2D) No.28 dated 31.08.2012 has to be quashed in respect of nomination of 3rd respondent in the category of Muslim Member of State Legislature under Section 14(1)(b)(ii) on this score also.
53. Point No.4:- Whether Nomination of 7th respondent Tamizhmahan Hussain and 8th respondent - S.A.Farooq in the category of eminent Muslim Organisations is vitiated:- Tamizhmahan Hussain is said to have taken active participation in the prominent Muslim organisations as President viz., Kanyakumari District Muslim Jammath Federation for about two years. The 8th respondent S.A.Farooq is stated to be an active member of Erode Education academy (a minority educational Trust) for more than three years. Under Section 14(1)(c), one and not more than two members to be nominated by the State Government representing eminent Muslim Organisations. In terms of Section 14(1)(c), 7th respondent Tamizhmahan Hussain and 8th respondent S.A.Farooq were appointed in the category of eminent Muslim Organisations.
54. The nomination of 7th respondent Tamizhmahan Hussain in the category of eminent Muslim organisations is assailed on the ground that he was not the President of the Kanyakumari District Muslim Jammath Federation. In this regard, Mr.Velumani, learned counsel for writ petitioner has drawn our attention to the letter issued by the Secretary of Thaika Palli Jamath stating that after the death of former President, no President was elected for Thaika Palli Jamath. The learned counsel Mr.Velumani had also drawn our attention to Civil Suit filed by Kanyakumari Mavatta Muslim Jammath Kootamaippu (Regn.No.1 of 2007) in O.S.No.7 of 2007 on the file of District Court, Nagercoil against the 7th respondent Tamizhmahan Hussain and others. The said suit was filed for permanent injunction restraining Tamizhmahan Hussain and their men and others from using the name of Kanyakumari Mavatta Muslim Jammath Koottmaippu in any manner and from disturbing the functioning of the said koottamaippu. The learned counsel for writ petitioner submitted that when Kanyakumari Mavatta Muslim Jammath Koottamaippu has filed a civil suit against Tamizhmahan Hussain for permanent injunction restraining him from interfering with the affairs of the said koottamaippu, without even verifying the credentials of 7th respondent Tamizhmahan Hussain, the State Government chosen to nominate the 7th respondent.
55. Drawing our attention to the counter affidavits filed by the State Government and the 7th respondent, it was submitted that according to State Government it nominated the 7th respondent - Tamizhmahan Hussain for his active participation in the Muslim organisation - Kanyakumari District Muslim Jammath Foundation for about five years, but as per the memorandum of the Association, the 7th respondent was not even an ordinary member of the said Federation. It was further submitted that in the counter affidavits filed by the Member Secretary of the Government and the counter of the 7th respondent, contradictions in the statements as to the position of the 7th respondent raise considerable doubt as to the status of the 7th respondent belonging to any eminent Muslim organisation.
56. By perusal of records it is seen that Kanyakumari Mavatta Muslim Jammath Koottamaippu was registered in 1985 with Regn.No.24 of 1985. It appears that in the same name Kanyakumari Mavatta Muslim Jammath Koottamaippu represented by its President M.Ibrahim Khan subsequently and there was registration of the Society with Regn.No.1 of 2007. The 7th respondent Tamizhmahan Hussain is said to be associated with Kanyakumari Mavatta Muslim Jammath Koottamaippu with Regn.No.24 of 1985. The said Ibrahim Khan as plaintiff filed O.S.No.7 of 2007 on the file of District Court, Nagercoil seeking for a permanent injunction restraining Tamizhmahan Hussain and others from disturbing the functioning of the society bearing Regn.No.1 of 2007. When there is inter se dispute between two societies, the position of the 7th respondent Tamizhmahan Hussain in the said Society Kanyakumari Mavatta Muslim Jammath Koottamaippu cannot be assailed.
57. Insofar as the nomination of 8th respondent S.A.Farooq in terms of Section 14(1)(c), he is stated to be an active member of Erode Educational Academy (a minority educational trust) for more than three years.
58. The choice of nomination in terms of Section 14(1)(c) is the discretion of the Government, which is to adopt a balanced approach keeping in view the interest of various Muslim organisations. Judicial examination as to the choice of particular Muslim organisation is not permissible. There is no room for relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion for nomination of members in terms of Section 14(1)(c). All that is required is selection of a particular organisation by the State Government should reflect the intense application of mind by the Government. While we perused the file with respect to recording of reasons under Section 14(3), we incidentally noticed that number of representations were received from various Muslim Organisations. On consideration of the facts and based on the materials, we find that the nomination of 7th respondent -Tamizhmahan Hussain and 8th respondent -S.A.Farooq in the category of eminent Muslims do not suffer from any arbitrariness.
59. Point Nos.5 and 6:- Challenging the vires of Section 14(8) of Wakf Act and the election of Tamizhmahan Hussain as Chairperson - The challenge in writ petition (W.P.No.33785 of 2012) is against sub-section (8) of Section 14 of the Wakf Act to declare it as unconstitutional and consequently to forbear the 7th respondent Tamizhmahan Hussain from functioning as Chairperson of the Tamil Nadu Wakf Board.
60. The core contention of the petitioner in seeking to declare Section 14(8) as illegal and unconstitutional is that the said sub-clause dealing with election of the Chairperson of the Board does not stipulate requisite qualification for a person to get elected as a Chairperson .
61. The learned counsel drew our attention to various provisions under the Wakf Act viz., Sections 32, 40 and Section 70 and contended that the person elected as the Chairperson of the Board has to discharge the functions as a quasi judicial authority and therefore he should have special knowledge in law, administration, finance etc., Therefore, the absence of prescribing such qualification with specialised knowledge makes the said provision as illegal and unconstitutional.
62. Learned counsel for Union of India Mr.Haja Mohideen Gisthi submitted that Section 14(8) sets out the manner in which Chairman of the Board is elected and being a transparent process, there is no question of it being unconstitutional. Learned counsel further submitted that in AIR 1999 Karnataka 112 (Syed Shah Muhammad Al Hussaini v. Union of India and others) and AIR 2002 Gujarat 252 (Maulana Kureshi Gulam Mustafa v. Union of India and others) and the decision in Delhi High Court in Writ Petition (Civil) No.12501 of 2005 (17.11.2006), the constitutionality of Section 14 of Wakf Act was challenged and those Writ Petitions were dismissed upholding the validity of Section 14 of Wakf Act and therefore, provision of Section 14 of the Act cannot be said to be unconstitutional.
63. By perusal of the decision in AIR 1999 Karnataka 112 (Syed Shah Muhammad Al Hussaini v. Union of India and others), it is seen that the Writ Petition was filed challenging the constitutional validity of Sections 14, 33, 38, 61, 64, 69, 70, 71, 72 and 96 of Wakf Act, 1995. But the learned counsel for Petitioner thereon restricted the arguments regarding constitutional validity of Section 14(1)(b) of the Act and did not argue with respect to the validity of other sub-sections. Like wise in AIR 2002 Gujarat 252 (Maulana Kureshi Gulam Mustafa v. Union of India and others), the main ground to challenge the provisions of Sections 13, 14, 32(a), 38, 61, 72 and 104 of the Act is that believers of Muslim faith have been divided into two broad categories "Sunnies' and 'Shias' in their respective Wakf in the constitution of Wakf Board and that the provisions of the Act have failed to recognise the fundamental differences between distinct and predominant sect of Muslims popularly known as "Sufi Silsilas'. Like wise in Delhi High Court in W.P.No.1201 of 2005 (17.11.2006), the constitutional validity of Section 14(1)(d) of Wakf Act, 1995 was under challenge. Even though the constitutional validity of Section 14(1)(d) of the Act was upheld, having regard to the submissions made by the Writ Petitioner, we have proceeded to consider the submissions made on behalf of the Writ Petitioner challenging the vires of Section 14(8) of the Act.
64. The petitioner is aggrieved against sub-section (8) of Section 14 alone and not seeking any such prescription of qualification in respect of the other members, who are either elected or nominated under Section 14(1(a) to (e).
65. Section 14 (8) reads as follows:-
"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."
66. A bare perusal of the said section contemplates election of the Chairperson of the Board among the members of the Board present at a meeting convened for the purpose of such election. The members, who got elected or nominated to the Wakf Board as the case may be, shall in turn elect one from amongst themselves as Chairperson of the Board as contemplated under Section 14(8). When there is no stipulation or prescription of any qualification to contest or getting nominated as a Member to the Board, other than what is stated under sub-clauses 1(a) to (c), the writ petitioner cannot insist upon prescribing any such qualification for the Chairperson alone since such prescription would ultimately defeat the entire object of election and nomination of members under Section 14.
67. The legislature at its wisdom has passed the enactment having fully understood the objects and reasons for making such enactment. In determining the constitutionality of a legislative Act, the Court has first to determine whether the Legislature in enacting the impugned statute has legislative competence according to the distribution of legislative powers. The Court has also to consider if the statute has infringed Fundamental Right guaranteed in the Constitution. Further, if it be a statute having extra-territorial operation, it has to be considered whether it possesses territorial nexus.
68. In this case, it is not the case of the petitioner that the Act goes beyond the limits set out by the Constitution. The Court must proceed on the presumption that every Act is constitutional. The pleading of unconstitutionality must be clear, specific, unambiguous, definite and precise. To prove unconstitutionality, the onus is on the person who challenges it. The pleading of unconstitutionality must be clear, precise and specific and the grounds of unconstitutionality must be definitely established. How Section 14(8) of the Act is unconstitutional is not established by the Petitioner.
69. The non-prescription of the requisite qualification for the election of Chairperson itself cannot make such provision unconstitutional, especially when the scheme of such enactment does not warrant so. At any event, as the very election has to be made among the members and when no such specialised qualification is prescribed for election and nomination of those members, such qualification, as required by the petitioner, cannot be insisted upon on the person to be elected as the Chairperson. Such prescription will certainly go against the scope and ambit of Section 14.
70. This issue can be looked at in a different angle. Let us assume that such prescription of specialised qualification is necessary for the Chairperson. Consequently, such prescription is necessary for members also since the Chairperson is elected among those members only. If it is so extended to members as well, then it would certainly defeat the object and scope of Representation of People Act, in so far as the case of M.Ps and M.L.As are concerned. In other words, even if they get elected as M.L.As., and M.Ps., they cannot contest in the election to the Member of the Board if they otherwise do not possess such specialised/educational qualification. Consequently, the object of inducting M.L.A and M.Ps as members in the Wakf Board is defeated.
71. Under Section 32 of Wakf Act, the general superintendence of all Wakfs in a State shall vest in the Board established by the State. It shall be the duty of the Board to exercise its powers under the Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended. It is not as though the Board is left without persons with knowledge in law, administration, finance, etc., The very object of electing one or not more than two Muslim Members from the Bar Council of the State and nominating an Officer of the State Government not below the rank of Deputy Secretary would show and establish that such apprehension is not well founded. The Wakf Board has legally trained minds who are immediately present to advice the Board while taking decision. The Law makers at their wisdom enacted this law knowing fully well of the consequences.
72. Moreover, the Chairperson cannot take any decision on his own under the Act and it is only the collective decision of the Board by majority. Of course, in the case of equality of votes, the Chairperson is empowered to cast a second vote under Section 17(3). Such empowerment cannot, at any stretch of imagination, be construed to mean that decision is taken by the Chairperson individually.
73. Further, Section 26 deals with Powers of the Chief Executive Officer who is appointed by the State Government not below the rank of Joint Secretary who shall also be a Muslim. Such Chief Executive Officer is empowered to place the decision taken by the Board for its reconsideration, if he considers that (a) the order or resolution of the Board is not in accordance with law; or (b) is in excess of or in abuse of the powers conferred on the Board; or (c) if implemented it is likely to cause financial loss to the Board or to the concerned wakf or to the wakfs generally or is likely to lead to a riot or breach of peace or is likely to cause danger to human life, health or safety; or (d) is not beneficial to the Board or to any wakf or to wakfs generally. Section 26 confers a power on the Chief Executive Officer, but also imposes a duty on him.
74. Thus, going by the said provision, it could be seen that the scheme of the Act has been very well taken care of more particularly with regard to the role of the Board in its quasi judicial functions. Therefore non-prescription of any special qualifications under Section 14(8) itself will not vitiate the said provision and so the same cannot be declared as unconstitutional or null and void on account of such non-prescription.
75. Learned counsel for the petitioner strongly relied on the Namit Sharma's case reported in 2013 (1) SCC 745 and submitted that the Chairman of the Board should be a person of a judicial mind, expertise and experience in that field, as the Board has to perform quasi judicial functions also, such qualification is necessary for the Chairman. He had invited our attention to various findings and observations rendered by the Apex Court in said case.
76. In Namit Sharma's case, the Hon'ble Supreme Court pointed out that the Information Commission is performing quasi judicial functions and essence of its adjudicatory powers is akin to the court system. The said Information Commission also possesses the essential trappings of a court and discharges the functions so and therefore, it must be termed as a judicial tribunal which requires to be manned by a person of judicial mind, expertise and experience in that field. Further, the Apex Court also noted that independence of judiciary stricto sensu applies to the Court system and thus by necessary implication it would also apply to the tribunals whose functioning is quasi judicial and akin to the court system.
77. The Apex Court by considering the entire scheme of the Right to Information Act 2005 and finding that the Information Commission is performing quasi judicial functions and therefore it is a judicial tribunal, observed that the same requires to be manned by a person of judicial mind, expertise and experience in that field.
78. We find that Section 18(3) of the Right to Information Act 2005 dealing with the Powers and functions of Commission contemplates that the Central Information Commission or State Information Commission, as the case may be, shall have the same powers as are vested in a civil Court while trying a suit under the Code of Civil Procedure 1908, while enquiring into any matter under the said Section.
79. While perusing the Wakf Act 1995, we do not find any similar power conferred on the Board. Whereas, under Section 83 of the said Act, the Tribunal constituted by the State Government is deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure Code 1908. Thus, the Tribunal constituted under Section 83 and also functioning as the appellate authority of the Board, is manned by a member of the State Judicial service holding the rank of Subordinate Judge/Senior Civil Judge. The scheme of the Wakf Act provides for appointing such a person of judicial mind, expertise and experience in that field when such appointment is made to the Tribunal. On the other hand, the Board is consisting of its members either with minimum of 7 or maximum of 13 and is functioning with collective decision taking process and therefore functioning of the Chairperson of the Board cannot be equated with the discharge of function by the Information Commission as contemplated under the Right to Information Act 2005.
80. It is needless to say that the scheme of every Act is important and to be taken note of carefully before considering the challenge against the constitutionality of any provision of such enactment. In fact, in the very same decision of Namit Sharma's case, the Hon'ble Supreme Court, has pointed out at paragraphs 20 and 21 as follows:-
"20. Dealing with the matter of closure of slaughterhouses in Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat (2008)(5) SCC 33 the Court while noticing its earlier judgment Govt.of A.P.V.P.Laxmi Devi (2008)(4) SCC 720 introduced a rule for exercise of such jurisdiction by the courts stating that the court should exercise judicial restraint while judging the constitutional validity of the statute or even that of a delegated legislation and it is only when there is clear violation of a constitutional provision beyond reasonable doubt that the court should declare a provision to be unconstitutional. Further, in P.Laxmi Devi (2008) (4) SCC 720 the Court has observed that even if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must prevail and the court must make efforts to uphold the constitutional validity of a statute, unlike a policy decision, where the executive decision could be rendered invalid on the ground of mala fides, unreasonableness and arbitrariness alone.
21. In order to examine the constitutionality or otherwise of a statute or any of its provisions, one of the most relevant considerations is the object and reasons as well as the legislative history of the statute. It would help the court in arriving at a more objective and just approach. It would be necessary for the court to examine the reasons of enactment of a particular provision so as to find out is ultimate impact vis-a-vis the constitutional provisions. Therefore, we must examine the contemplations leading to the enactment of the Act of 2005."
81. The Apex Court also noted in the said decision that the challenge made to Section 12(5) and (6) of the Right to Information Act 2005 was on the ground that the eligibility criteria therein is vague and does not specify any qualification and the stated "experience" has no nexus with the object of the Act. After pointing out the parameters, which would help the Court in determining the constitutionality of those provisions, at paragraphs 50 and 51, the Apex Court held as follows:-
"50. To examine the constitutionality of a statute in its correct perspective, we have to bear in mind certain fundamental principles as aforerecorded. There is presumption of constitutionality in favour of legislation. The legislature has the power to carve out a classification which is based upon intelligible differentia and has rational nexus with the object of the Act. The burden to prove that the enacted law offends any of the articles under Part III of the Constitution is on the one who questions the constitutionality and shows that despite such presumption in favour of the legislation, it is unfair, unjust and unreasonable.
51. Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of "reading down" or "reading into" the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this Court in its various pronouncements."
82. In Namit Sharma's case, the Hon'ble Supreme Court took note of the scheme of Right to Information Act and after observing that the Commission has essential trappings of a Civil Court, decided the issue therein in the light of the scheme of the said Act.
83. It is very clear that the scheme of both the Acts are not one and the same or travelling in the same line. In fact the Apex Court pointed out at paragraph 60 of its Judgment that it is not for the courts to spell out what ought to be the qualifications or experience for appointment to a particular post, when the legislature in its wisdom has chosen not to provide any specific qualification, but has primarily prescribed "wide knowledge and experience " in the cited subjects as the criteria for selection. Thus by observing so, the Apex Court also found that on a reasonable and purposive interpretation, it will be appropriate to interpret and read into Section 12(5) of Right to Information Act that the knowledge and experience in a particular subject would be deemed to include the basic qualification in that subject. Therefore, the Apex Court held at paragraph 60 as follows:-
60. .... "On a reasonable and purposive interpretation, it will be appropriate to interpret and read into Section 12(5) that the "knowledge and experience" in a particular subject would be deemed to include the basic qualification in that subject. We would prefer such an approach than to hold it to be violative of Article 14 of the Constitution. Section 12(5) has inbuilt guidelines to the effect that knowledge and experience, being two distinct concepts, should be construed in their correct perspective. "
84. Applying the said analogy to the facts of this case, we find that the legislature at its wisdom has, in fact, prescribed the requisite qualifications which are inbuilt in Section 14(1) itself. There is no dispute that the Chairperson has to be elected among the members elected and nominated under Section 14(1). Being an M.L.A. or M.P is the requisite qualification under Section 14(1)(b)(i) and (ii); being a law graduate and enrolled as an Advocate in the Bar Council of the State is the inbuilt qualification under Section 14(1)(b)(iii). Likewise, being a Mutawalli of a wakf is the qualification required under clause (iv). While coming to the other clauses viz., (c) and (d) the religious part of functioning of the Board is taken care of by nominating members from the Eminent Muslim Organisations and also from scholars in Islamic Theology. Finally, an Officer of the State not below the rank of Deputy Secretary also gets nominated under clause (e) whose presence in the Board undoubtedly means that knowledge from the administrative side is also made available to the Board. Therefore, when all these categories of members are brought into the constitution of the Board, in our considered view, if one among them is elected as the Chairperson of the Board, he need not necessarily to have any separate and specialised qualification as contended by the petitioners. Therefore, the said decision of the Apex Court in Namit Sharma's case is not applicable to the facts of the case on hand. The arguments advanced challenging the constitutionality of Section 14(8) of the Act does not merit acceptance.
85. Section 14(8) of the Act sets out the manner in which the Chairman of the Board is to be elected. The 7th respondent Tamizhmahan Hussain was elected in the election held in a democratic manner and the same cannot be challenged on the arguments advanced challenging the vires of Section 14(8). However, since we have quashed the nomination of two members of Parliament and two members of State Legislative Assembly on the ground of violation of Section 14(3), Tamizhmahan Hussain, who was elected as a Chairperson by the then members of Wakf Board, cannot continue as a Chairperson.
86. Point No.7:- Anwar Hussain, a practicing advocate at Madurai Bench of Madras High Court has filed the writ petition W.P.No.33785 of 2012 claiming as "a person interested in wakfs" under Section 3(k) of the Wakf Act. On behalf of Tamil Nadu Wakf Board, learned counsel Mr.V.Lakshminarayanan raised strong objection as to the locus standi of the petitioner and submitted that the litigant, who approaches the Court, must come with good heart and good intention by placing reliance upon a decision of K.R.SRINIVAS VS. R.M.PREMCHAND, (1994 STPL(LE) 18849 SC = (1994) 6 SCC 620); Division Bench judgment of this Court dated 24.1.2013 in W.P.Nos.30326 of 2011 etc., batch in R.VEERAMANI AND ANOTHER VS. THE STATE OF TAMIL NADU, REPRESENTED BY ITS CHIEF SECRETARY, CHENNAI AND OTHERS, (LNIND 2013 MAD 60) and other decisions.
87. Contending that number of public interest litigations were filed by advocates, who are public spirited and that the scope of public interest litigation has been enlarged, Mr.S.R.Rajagopal, learned counsel for writ petitioner refuted the contentions and submitted that the petitioner, being Muslim advocate, is regularly practicing in the Wakf Board and he is interested in the good governance of Wakfs and therefore his locus standi cannot be challenged. Learned counsel placed reliance upon decisions of S.P.GUPTA VS. UNION OF INDIA, (AIR 1982 SC 149); JANATA DAL VS. H.S.CHOWDHARY AND OTHERS, ((1992) 4 SCC 305); CHAIRMAN, RAILWAY BOARD AND OTHERS VS. CHANDRIMA DAS (MRS.) AND OTHERS, ((2000) 2 SCC 465); SABANANDA SONOWAL VS. UNION OF INDIA AND ANOTHER, ((2005) 5 SCC 665) and SATYAWATI SHARMA (DEAD) BY LRS. VS. UNION OF INDIA AND ANOTHER, ((2008) 5 SCC 287).
88. All the above decisions relied upon by the learned counsel for writ petitioner relates to public interest litigation. Of course, in those public interest litigations, it has widest amplitude and meaning to the concept of a locus standi. It is pertinent to note that W.P.No.33785 of 2012 was not filed as a public interest litigation. As pointed out earlier, in the writ petition, the petitioner has clearly averred that he is a person interested in Wakfs within the meaning of Section 3(k) of the Wakf Act.
89. The learned counsel for Tamil Nadu Wakf Board then contended that there are no specific pleadings as to which Wakf the writ petitioner is interested and even if he is interested in any Wakf, the writ petitioner cannot be brought under Section 3(k) as "a person interested" and while so, to challenge the vires of Section 14(8) of the Wakf Act, elaborate arguments were advanced elaborating "the person interested" within the meaning of Section 3(k) of wakf Act. Considering the nature of dispute involved in these writ petitions i.e., challenge to the constitution of the Wakf Board, since the issue raised in the writ petition is a common issue arising in all other writ petitions and since we are answering the common issues, we do not propose to elaborate upon the expression "person interested" and the issue is left open.
90. Point No.8:- Challenge to the appointment of 10th Respondent - Ghulam Md. Mehdi Khan:-
As per Section 14(5) of the Act where there are Shia Wakf, but no separate Shia Wakf exist, atleast one of the members from the categories listed in sub-section (1) shall be a Shia muslim. Applying the provisions of Section 14(5) of the Act and considering the representation of 10th Respondent, the Government nominated the 10th Respondent Ghulam Md. Mehdi Khan under the category of Scholar in Islam Theology category from Shia sect. According to Government, the said nomination has been done based on the 10th Respondent's continuous occupation as State Chief Kazi (Shia) and he has been serving in the said post from the year 2003 and has been effectively representing the Shia community in the State.
91. The challenge in writ petition (W.P.No.3870 of 2013) is against the nomination of Ghulam Md. Mehdi Khan, the 10th respondent as the Board Member. The 10th respondent was nominated under Section 14(1)(d) of the Wakf Act 1995. The 10th respondent belongs to Shia wakfs and he is also functioning as Chief Khazi. The complaint against the 10th respondent while challenging his nomination is that he suffers disqualification under Section 16 (e)(i) of the said Act, as he was removed from the office of Mutawalli of the writ petitioner Wakf, by proceedings of the Board dated 27.6.2001. The said Proceedings dated 27.6.2001 was challenged in O.S.No.7449 of 2001 on the file of City Civil Court, Chennai and the said suit was dismissed on 13.8.2002. The said judgment of dismissing the suit was challenged before the High Court in C.R.P.No.1329 of 2004 and the same is stated to be pending. Therefore the petitioner contends that the 10th respondent who suffers disqualification under Section 16(e)(i) cannot either be appointed or permitted to continue in such appointment.
92. Learned Advocate General submitted that the removal by Wakf Board was only on the basis of over representation and hence, the said removal will not come under the purview of Section 16 of the Act. It was further submitted that removal contemplated under the Act is only for malpractice and corruption and removal for mismanagement or corruption alone would amount to disqualification. It was further submitted that the 10th Respondent was removed only due to over representation and that he was absent from India and it would not amount to any disqualification in terms of Section 16(e)(ii) of the said Act.
93. Learned Senior Counsel Mr.AR.L.Sundaresan, appearing for 10th Respondent and the learned counsel Mr.Lakshminarayanan, appearing for Tamil Nadu Wakf Board reiterates the submissions of the learned Advocate General.
94. In order to appreciate the said submission of the petitioner and to find out as to whether the 10th respondent suffers any such disqualification as contemplated under Section 16(e)(i) of the said Act, we need to appreciate the scope of Section 16 which is reproduced hereunder:-
"16. 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 earlier for mismanagement or for corruption.
95. As the petitioner is relying upon Section 16(e)(i), we need to analyse the scope and application of Section 64 of the said Act as well, which deals with the removal of Mutawalli. Section 64(1) of the Act enumerates as many as eleven grounds as (a) to (k) for removal of a Mutawalli.
96. A combined reading of both the provisions would only show that in order to hold a person as disqualified either for being appointed or for continuing as a member of the Board, his case should fall within any of the disqualifications contemplated under Section 16. The claim of the petitioner in this case is that the 10th respondent suffered a disqualification under Section 16(e)(i). Therefore, in order to attract Section 16(e)(i), the 10th respondent should have been removed from his office as Mutawalli and such removal should have been made in accordance with Section 64 since no other provision deals with the removal of Mutawalli.
97. Section 16 deals with five categories of disqualification, one can suffer. Such disqualifications are stated from clauses (a) to (e). While clauses (a) to (d) stipulate and deal with disqualification related with the personal capacity or character of a person, clause (e) deals with the disqualification in relation to his official capacity. In other words, clause (e) is a separate clause dealing with removal of office of such person wherein sub-clause (i) & (ii) are referable to the specification of such office. Thus, the removal is common to both the sub-clauses (i) and (ii). No doubt, only under sub-clause (ii) the grounds of removal i.e. "mismanagement or for corruption" is stated. But that does not mean that such grounds are not available or attributable to the clause (i) also. Therefore, sub-clauses (i) and (ii) of clause (e) have to be read not in isolation but in a conjoint reading. Section 16(e) (i) deals with the removal of mutawalli and Section 16(e)(ii) deals with removal of a position of a Trust. According to the petitioner, the 10th respondent who was removed from the office of Mutawalli by the Board, suffers disqualification under Section 16(e)(i).
98. We are unable to appreciate such contention of the learned counsel for the petitioner for the simple reason that removal of Mutawalli referred to under Section 16(e)(i) cannot be read in isolation as a removal simpliciter, but it has to be read along with other clause viz., 16(e)(ii), where the removal of any position of a trust either for mismanagement or for corruption is contemplated. In our considered view, the phrase used in Section 16(e)(ii) viz., "either for mismanagement or for corruption" cannot be confined with regard to the removal of any position of trust alone and on the other hand it has to be extended or applied even in respect of the removal from the office of a member or mutawalli as referred to under Section 16(e)(i).
99. In other words, the removal contemplated under Section 16(e)(i) is not a removal simpliciter and on other hand intended to get attached with a stigma viz., "mismanagement or corruption". The intention of the legislature cannot be with any discriminatory application between the two removals contemplated under Sections 16(e)(i) and 16(e)(ii). Therefore, unless such removal is in consequence of mismanagement or corruption, in our considered view, a removal from the office of Mutawalli or member for any other reasons cannot be construed as a sufferance of disqualification under Section 16(e)(i).
100. While we consider the scope of Section 64, which deals with removal of Mutawalli, we find that the said provision contemplates various grounds on which a person can be removed from the office of Mutawalli. While we peruse those grounds referred under sub-clauses (a ) to (k), we find that none of those grounds is attracted for the removal of the 10th respondent as Mutawalli under Section 64, while we parallelly peruse the order dated 27.6.2001 passed by the Board.
101. Under the said proceedings, the 10th respondent was removed from Mutawalli, only on three grounds viz.,
i) He was residing at Iran and therefore he cannot in any way administer the Wakf in the way normally it has to be administered.
ii) The 10th respondent is an youngster who can afford to wait for his chance in the usual course.
iii) There is no justification for the father and son holding the post together and depriving the reasonable chance of other persons.
Apart from these reasons, we find no other grounds as required under Section 64 is referred to in the said order.
102. Learned counsel for the petitioner contended that as the 10th respondent filed an appeal under Section 64(4) against the order of removal by way of a suit in O.S.No.7449 of 2001 on the file of City Civil Court, Chennai, it has to be presumed that he had admitted his removal as the one made under Section 64 and consequently such removal under Section 64, read along with Section 16(e)(i), disqualifying the 10th respondent.
103. We are unable to appreciate this contention. A person cannot confer jurisdiction by consent, if otherwise such jurisdiction is not vested under law. An appeal filed under Section 64(4) by the 10th respondent is against the order of removal of Mutawalli and such conduct of the 10th respondent need not necessarily to be construed as an admission of any of the grounds contemplated under Section 64. Therefore, the petitioner cannot bring the order of removal of mutawalli passed against the 10th respondent on 27.6.2001 within the scope and ambit of either under Section 64 or under Section 16 (e)(i).
104. We are also informed that the dismissal of the suit O.S.No.7449 of 2001 is under challenge, before this Court in C.R.P.No.1329 of 2004 and the same is still pending. Though it is not stayed, yet the fact remains that it has not reached its finality. At any event, as we hold that the removal of the 10th respondent on 27.6.2001 is not one such removal, as contemplated under Section 16(e)(i) read with the grounds stated in Section 16(e)(ii), neither the said order dated 27.6.2001 nor its culmination into the filing of CRP and its pendency will have any relevance or bearing to the issue on hand.
105. Mr.Lakshmi Narayanan, learned counsel appearing for the Wakf Board relied on a decision of this Court reported in 1990 (3) SCC 447 (Rohit Pulp and Paper Mills Ltd., Vs. Collector of Central Excise, Baroda) to contend that meaning of the word is to be judged by the company it keeps and by contending so, the learned counsel wanted this Court to read Section 16 (e) (i) along with Section 16(e)(ii). In the said decision, while considering the "noscitur a sociis" principle, the Apex Court pointed out that the said principle has been applied in a number of contexts in judicial decisions where the Court is clear in its mind that the larger meaning of the word in question could not have been intended in the context in which it has been used. By relying on the said decision Mr.Lakshmi Narayanan contended that the removal contemplated under Section 16(e)(i) is also to be read as a removal in pursuant to "mismanagement or corruption" as contemplated under Section 16(e)(ii).
106. Per contra, the learned counsel appearing for the petitioner, Mr.Sundar, contended that between 16(e)(i) and 16(e)(ii) it is only "or" is found and therefore one is exclusive of the other. He, thus, contended that the "removal" contemplated under Section 16(e)(i) is a removal simpliciter. Insofar as the reliance placed by the learned counsel for the Board on the principle "noscitur a sociis" is concerned, the petitioner's counsel contended that such doctrine cannot be applied when there is clarity in the provision. In support of such conclusion he relied on the decision reported in AIR 1960 SC 610(I) [The State of Bombay and others v. The Hospital Mazdoor Sabha and others].
107. Section 16 contains five categories of disqualifications out of which, clause (e) is a single category of disqualification dealing with removal of a person either from his office as a member or as a Mutawalli or from any position of trust. When removal is a common factor for both Section 16(e)(i) and Section 16(e)(ii), undoubtedly, what follows is that reason for such removal, viz., mismanagement or corruption also is to be applied as a common factor for both removals. In our considered view though clause (i) specifically does not have the phrase "either for mismanagement or for corruption", the same has to be read into the said provision so that the object and intention of the legislature is not lost or defeated. Therefore, even by applying the said principle "noscitur a sociis", under the facts and circumstances of the present case, we hold that Section 16(e)(i) and Section 16e(ii) have to be read together and not in isolation. Otherwise the interpretation, as projected by the petitioner if given, it would certainly lead to discrimination and thus violate Article 14 of the Constitution of India. An interpretation, if leads to violation of Article 14, such interpretation is to be eschewed and the one which makes the provision with equal treatment between similar classes is to be preferred.
108. It is further contended by the learned Advocate General that even assuming that the respondent suffered a disqualification as contemplated under Section 16(e)(i), such disqualification cannot continue after five years from the date of such removal as the 10th respondent is entitled to get reappointed as Mutawalli of that Wakf after a period of five years from the date of such removal as contemplated under Section 64(8).
109. To this submission, the learned counsel for the petitioner contended that the removal contemplated under Section 16(e)(i) is nothing to do with Section 64(8) and so long as such removal was not set aside by any competent court of law, the disqualification suffered continues.
110. We considered this point. A careful analysis of Section 64 (8) indicates that a Mutawalli removed from his office shall not be eligible for reappointment for a period of five years from the date of such removal. In other words, after five years, even though the said removal was not set aside or annulled by the competent court of law, still the said person is entitled or eligible to get reappointed as Mutawalli after the expiry of five years. Consequently, when he is entitled to be appointed as Mutawalli after five years irrespective of the fact that the said order of removal was not set aside, we wonder as to how he can still be brought under Section 16(e)(i) as contended by the petitioner. In our considered view, the disqualification based on the removal as contemplated under Section 16(e)(i) ceased to exist after five years from the date of such order of removal.
111. It is also pertinent to note that Section 64(8) deals with removal of Mutawalli and even in respect of removals made based on any one of the grounds referred to under Section 64(1). Still as per Section 64(8), the person so removed is eligible to get re-appointed after the period of five years. Therefore, we find force in the submission of the learned Advocate General on this aspect. The challenge raised in respect of nomination of 10th respondent in the category of Scholar in Islam Theology representing Shia sects is bereft of merits and W.P.No.3870 of 2013 is liable to be dismissed.
112. Point No.9:- The writ petition in W.P.No.3870 of 2013 has been filed by Sarkar-E-Abbasi Ashurkhana E-Mubarak Wakf, (also known as Thousand Lights Charities). Mr.V.Lakshminarayanan, learned counsel for Wakf Board raised strong objection regarding to locus standi of the writ petitioner in challenging the appointment of Ghulam Md.Mehdi Khan (Chief Khazi) - 10th respondent as a member in the category of Scholar in Islamic Theology. It was further submitted that only after issuance of notice in respect of sub-lease, the writ petitioner has come forward with the writ petition challenging the appointment of the 10th respondent to the Wakf Board and the writ petition is a motivated one and other writ petitions are stated to be pending. Learned counsel placed reliance upon the decision of Privy Council in SRI VIDYA VARUTHI THIRTHA SWAMIGAL VS. BALUSAMI AYYAR AND OTHERS, ((1922) XV Law Weekly 78) and number of other decisions. Refuting the contention, Mr.S.R.Sundar, the learned counsel for writ petitioner has made elaborate submissions and placed reliance upon number of other decisions. As we observed in Paragraph No.95, since the issue raised in the writ petition is the common issue arising in other writ petitions - challenge to the constitution of the Wakf Board and since we are giving reasons on all contentions, we do not propose to go into the question of the maintainability of the writ petition at the instance of a Wakf and whether the writ petition is motivated after the issuance of notice. The issue is left open.
113. Point No.10 Consequential Directions issued:- Since we have held that the conditions precedent for the exercise of the power under Section 14(3) are not satisfied, the Government Orders G.O.(2D).No.18, Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department, dated 15.06.2012 and G.O.(2D).No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012 in respect of nominations/appointments made in the category of (i) two Muslim Members of Parliament from the State (Section 14(1)(b)(i)) and (ii) two Muslim members of the State Legislature (Section 14(1)(b)(ii)) alone are quashed. When the said G.Os are quashed in respect of the above said nominations/appointments, further directions are to be issued. The election of members specified in Section 14(1)(b)(i) and (ii) is to be held in accordance with the proportional representation by means of a single transferable vote by constituting an electoral college in each category. As per Rule 4 of Tamil Nadu Wakf Board (Conduct of Election for Members) Rules, 1997, there shall be an electoral role for each of the electoral college specified in Clause (b) of sub-section (1) of Section 14 of the Act. Section 5 deals with publication of draft electoral roll atleast four weeks prior to the issue of notification under Rule 8. Rule 6 deals with filing of objections before the Election Authority within one week from the date of display of the draft electoral roll under sub-rule 5. Rule 7 deals with publication of final electoral roll, which shall be published not less than one week before the date of election notification under Rule 8. Rule 8 deals with notification of election and Rule 9 deals with filing of nomination. Other Rules deal with the manner of election and declaration of results. It would be in order that the election to the candidates in the category of Muslim Members of Parliament from the State (Section 14(1)(b)(i)) and Muslim Members of State Legislature (Section 14(1)(b)(ii)) is held by constituting an electoral college in each category and the election process is completed within a period of three months from the date of receipt of copy of this order.
114. If election is to be held in respect of the categories of Muslim Members of Parliament and Muslim Members of State Legislature, the question falling for consideration is the exercise of powers and various functions of the Board in the mean time. Leaving the four members, there are nine other members two each nominated in the category of eminent Muslim Organisations; and Scholar of Islamic Theology; one State Government nominee. Out of the remaining nine members, five are the nominated members and four are the elected members. As per Section 14(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 in sub-section (3). Since the elected members of the Board are less than the nominated members of the Board, till the election process is completed, the powers and functions of the remaining nine members of the Wakf Board cannot be exercised. Any such functioning by the remaining members of the Wakf Board will be in violation of the statutory provision Section 14(4). Therefore, we direct that till the Wakf Board is re-constituted after conducting election, the Chief Executive Officer shall exercise all the powers and functions of the Board.
115. While we uphold the constitutional validity of Section 14(8), since the nomination of two members of Parliament and two members of State Legislative Assembly is quashed on the ground of violation of Section 14(3), further directions are to be issued in respect of Chairman - Tamizhmahan Hussain, who was elected by the then members of the Wakf Board. Since we have directed the election to be held in respect of two Members of Parliament [Section 14(1)(b)(i)] and two members of State Legislative Assembly [Section 14(1)(b)(ii)] by constituting respective electoral college, after the election, the Wakf Board shall be re-constituted and the members of the re-constituted Wakf Board shall elect the new Chairman. In the fresh election for Chairman to be held, Tamizhmahan Hussain is also at liberty to contest.
116. In the result,
(i) W.P.Nos.16997 and 27590 of 2012 are partly allowed quashing G.O.(2D).No.18, Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department, dated 15.06.2012 and G.O.(2D).No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012, only in respect of nomination of Muslim members of Parliament under Section 14(1)(b)(i) and nomination of Muslim Members of State Legislative Assembly under Section 14(1)(b)(ii).
(ii) When the G.O.(2D) No.18, Backward Classes, MostBackward Classes and Minorities Welfare (T1) Department, dated 15.06.2012 and G.O.(2D) No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012 are quashed in respect of the nominations/appointments of two Muslim Members of Parliament [Section 14(1)(b)(i))] and two Muslim Members of State Legislative Assembly [Section 14(1)(b)(ii)], the election of members specified in Section 14(1)(b)(i) and 14(1)(b)(ii) is to be held in accordance with the proportional representation by means of a single transferable vote by constituting electoral college in each category. It would be in order that the election to the candidates in the category of Muslim Members of Parliament from the State [Section 14(1)(b)(i)] and Muslim Members of State Legislature [Section 14(1)(b)(ii)] is held by constituting an electoral college in each category and the election is completed within a period of three months from the date of receipt of copy of this order.
(iii) While we uphold the constitutional validity of Section 14(8), since the nomination of two members of Parliament and two members of State Legislative Assembly is quashed on the ground of violation of Section 14(3), further directions are to be issued in respect of Chairman - Tamizhmahan Hussain, who was elected by the then members of the Wakf Board. Since we have directed the election to be held in respect of two Members of Parliament [Section 14(1)(b)(i)] and two members of State Legislative Assembly [Section 14(1)(b)(ii)], after the election, the Wakf Board shall be re-constituted and the members of the re-constituted Wakf Board shall elect the new Chairman. In the fresh election for Chairman to be held, Tamizhmahan Hussain is also at liberty to contest.
(iv) If election is to be held in respect of the categories of Muslim Members of Parliament and Muslim Members of State Legislature and Board is re-constituted, the question falling for consideration is the exercise of powers and various functions of the Board in the mean time. Leaving the four members, there are nine other members i.e., two each nominated in the category of eminent Muslim Organisations; and Scholar of Islamic Theology; one State Government nominee; two elected members of Bar Council and two elected members of Mutawalli. Thus, out of the remaining nine members, five are the nominated members and four are the elected members. As per Section 14(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 in sub-section (3). Since the elected members of the Board are less than the nominated members of the Board, till the election is completed and Board is reconstituted, the powers and functions of the Wakf Board cannot be exercised by the remaining nine members. Any such functioning by the remaining nine members of the Wakf Board will be in violation of the statutory provision Section 14(4). Therefore, we direct that till the election is completed and new Wakf Board is re-constituted with the elected two members of the Members of Parliament and two members of State Legislature, the Chief Executive Officer shall exercise all the powers and functions of the Board.
(v) W.P.No.658 of 2013 is partly allowed and G.O.(2D).No.28 Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012, is quashed only in respect of nomination of Thiru.Mohammed Jan, Hon'ble Minister for Backward Classes, Most backward Classes and Minorities Welfare Department. Insofar as the challenge to the appointment of Thiru.Tamizhmahan Hussain and Thiru.S.A.Farooq (in the category of eminent Muslim organisations), the writ petition is dismissed.
(vi) W.P.No.34381 of 2012 is dismissed.
(vii) W.P.No.33785 of 2012 challenging the constitutionality of Section 14(8) of the Wakf Act is dismissed. However, for the reasons stated in Paragraph Nos.85 and 116(iii), Thiru.Tamizhmahan Hussain cannot continue as Chairman of the Wakf Board.
(viii) W.P.No.3870 of 2013 challenging the appointment of Thiru.Ghulam Mohammed Mehdi Khan, Chief Kazi representing shia Muslim in the category of Scholar in Islamic Theology is dismissed.
(ix) In the light of the findings in respect of Point No.7 and the conclusion in Paragraph 89, the issue regarding locus standi of the Writ Petitioners in W.P.No.33785 of 2012 and the Wakf - Sarkar-E-Abbasi Ashurkhana E-Mubarak Wakf in W.P.No.3870 of 2013 is left open.
However, there is no order as to costs. Consequently, all the connected miscellaneous petitions are dismissed.
=================================================================================== After we have pronounced the Order, Mr.Inbadurai, Special Government Pleader prayed for stay of operation of the Order in respect of quashing of the nomination of the two Muslim Members of the Parliament viz., J.M.Aaron Rashid and S.Amir Ali Jinnah and two Muslim Members of State Legislative Assembly viz., Mohammed Jan and S.Abdul Rahim to enable the State Government to prefer appeal before the Hon'ble Supreme Court. We are not inclined to grant any interim stay.
usk Copy to:
1. The Secretary, Backward Classes, Most Backward Classes and Minorities Welfare Department, Government of Tamil Nadu, Fort St.George, Chennai,
2. The Chief Executive Officer, Tamil Nadu Wakf Board, 1, Jaffer Syrang Street, Vallai Seethakadhi Nagar, Chennai- 600 001.
3. Minister to the State Backward Classes, Most Backward Classes and Minorities Welfare Department, Fort St.George, Chennai-600 009 & Member of Legislative Assembly, Ranipettai Tamilnadu