Bombay High Court
Shaikh Mahemud Shaikh Mahebub vs The State Of Maharashtra on 24 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 784
Author: S. V. Gangapurwala
Bench: S. V. Gangapurwala, Shrikant D. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3983 OF 2020
Shaikh Mahemud S/o Shaikh Mahebub
Age : 60 years, Occu. Social Work,
R/o. Marble House, Roshan Gate Road,
Central Naka, Aurangabad,
Tq. & Dist. Aurangabad .. Petitioner
Versus
The State of Maharashtra
Through its Secretary
Minorities Development Department,
Mumbai-32. .. Respondent
Mr. V. J. Dixit, Senior Advocate i/by Mr. S. V. Dixit, Advocate for the
Petitioner.
Mr. S. B. Yawalkar, Addl. G. P. for sole Respondent.
CORAM : S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
Date on which reserved for order : 22nd December, 2020.
Date on which order pronounced : 24th February, 2021.
JUDGMENT (Per S. V. Gangapurwala, J.) :
1. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.
2. The petitioner assails the notification dated 04.03.2020 cancelling his appointment as a member of the Waqf Board.
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3. Shorn of details the facts relevant for adjudicating the present matter are culled out as under.
4. The petitioner was appointed as a member of the Waqf Board by the respondent under notification dated 13.09.2019 by exercising its powers conferred under sub section 9 and clause (C) of sub section 1 of Section 14 of the Waqf Act, 1995 (for short 'Act of 1995) for a period of five years from the date of publication of the notification or until further orders whichever is earlier. Under the impugned notification dated 04.03.2020 the appointment of the petitioner as a member of the Waqf Board is cancelled purportedly in exercise of powers conferred by sub section 9 r/w clause (C) of sub section 1 of section 14 of the Act of 1995.
5. Mr. V. J. Dixit, learned senior counsel for the petitioner strenuously contends that the impugned notification is illegal. Section 14 of the Act of 1995 does not empower the respondent to cancel the appointment of the member of the Waqf Board. None of the provisions of the Waqf Act enables the respondent to cancel membership of the member of the Waqf Board before completion of term of five years except in the circumstances specified under Section 16, 19 and 20 of the Act of 1995. To buttress his submission, the learned senior counsel relies on the judgment of the Division Bench of this Court in Writ 2 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 3 WP 3983 of 2020.odt Petition No. 5566 of 2015 dated 07.08.2015. It is further contended by the learned senior counsel that respondent has not exercised power under Section 20 of the Act of 1995 and no procedure as required is followed. The impugned notification does not assign any grounds for cancellation of the membership. The impugned order is in excess of powers of the respondent. Sub section 9 of section 14, nor clause (C) of sub section 1 of section 14 of the Act of 1995 empowers respondent to cancel the membership of the petitioner. The learned senior counsel further submits that Section 15 of the Act of 1995 provides term of the membership. The members are entitled to complete their term unless member incurs disqualification under Section 16 or is removed under Section 20 of the Act of 1995. The impugned notification is arbitrary and without any reasons. It is also against the principles of natural justice.
6. Mr. Yawalkar, learned Addl. G. P. strenuously contends that the appointment of the petitioner is until further orders. The same is specified in the notification dated 13.09.2019. The petitioner never challenged the legality of the same. In view of such specific condition in the order of appointment of the petitioner as a member, the Government has taken decision and superseded its earlier notification dated 13.09.2019 under notification dated 04.03.2020. The learned 3 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 4 WP 3983 of 2020.odt Addl. G. P. further submits that under Article 166 of the Constitution r/w provisions made under Rules of Business and instructions issued thereunder the allocations of the business of Government is made amongst Ministers. The Rules of Business r/w instructions issued thereunder provide for submission of certain matters to the Hon'ble Chief Minister before issuing the orders. Item (23) under instruction No. 15 issued under the Rules of Business provides that in respect of the appointment of chairman and members of the statutory Tribunal, the matter shall be submitted before the Hon'ble Chief Minister for approval. As Maharashtra State Board of Waqf is a State level body and some powers of quasi judicial in nature are vested with the members of the Board, all matters relating to appointment of the members by nomination by the State Government on Maharashtra State Board of Waqf are submitted for approval to the Hon'ble Chief Minister through Minister, Minorities Development Department and only on approval by the Hon'ble Chief Minister the appointment orders are issued. The same procedure was followed in respect of appointment of members of the Board.
7. The learned Addl. G. P. further contends that in the present case, the proposal for appointment of the petitioner as a member of Maharashtra State Board of Waqf was submitted on 31.08.2019 to the 4 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 5 WP 3983 of 2020.odt then Hon'ble Chief Minister for approval through the then Hon'ble Cabinet Minister, Minorities Development Department. The then Hon'ble Cabinet Minister approved the proposal and instructed to appoint the petitioner as a member of Maharashtra State Board of Waqfs and send the file to the then Hon'ble Chief Minister. The said appointment was neither approved nor ratified by the Hon'ble Chief Minister. The proposal for appointment of the petitioner as a member of the Maharashtra State Board of Waqf was not approved by the Hon'ble Chief Minister, so the appointment of the petitioner is rightly cancelled under the impugned notification. The appointment was not by a competent authority as such, the same was invalid.
8. The learned Addl. G. P. submits that the judgment of this Court in Writ Petition No. 5566 of 2015 dated 07.08.2015 (supra) would not assist the petitioner. The learned Addl. G. P. to substantiate his contention that the Board performs quasi judicial functions and as such, is required to be considered as a Tribunal relies upon the following judgments.
(i) The Bharat Bank Ltd. Delhi Vs. Employees of Bharat Bank Ltd., New Delhi reported in AIR 1950 SC 188.
(ii) Jaswant Sugar Mills Ltd., Meerut Vs. Laxmichand and others reported in AIR 1963 SC 697 5 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 6 WP 3983 of 2020.odt
(iii) Mohd. Riyazul Raheman Siddiqui Vs. Dy. Director of Health Services reported in 2006 (6)MHLJ page no. 941 (Full Bench).
9. The learned Addl. G. P. further relies upon Section 40, 51, 52, 52 (A), 54, 55, 55(A), 64, 65, 67, 69, 71 of the Waqf Act to contend that the Board performs quasi judicial functions and as such, has the attributes of a Tribunal.
10. The Act of 1995 is a complete Code in itself. The composition of the Board is detailed under Section 14 of the Act of 1995. The petitioner is nominated as a member of the Maharashtra State Board of Waqf referring to clause (C) of sub section 1 of section 14 of the Act of 1995. The petitioner is nominated as a member as possessing professional experience in Town Planning or Business Management, Social work, Finance or Revenue, Agriculture and Development activities. Section 15 of the Act of 1995 provides for the term of the member of the Board. According to Section 15 of the Act of 1995, the members of the Board shall hold office for a term of five years from the date of notification referred to in sub section 9 of section 14 of the Act of 1995. Section 16 of the Act of 1995 details the disqualifications for being appointed, or for continuing as a member of the Board. Section 20 of the Act of 1995 prescribes for removal of a chairperson and the member of the Board.
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11. The respondent do not contend that the petitioner is disqualified for being appointed or for continuing as a member of the Board as contemplated under Section 16 of the Act of 1995, nor is removed for any of the acts specified in Section 20 of the Act of 1995.
12. The impugned notification cancelling the appointment of the petitioner as a member of the Board also does not specify any reason for cancellation of the membership. The stand of the respondent to substantiate their action of cancelling the membership of the petitioner under the impugned notification is pleaded in the affidavit in reply viz.
(i) the appointment of the petitioner was not approved or ratified by the then Hon'ble Chief Minister as required under Rules of Business and instructions issued thereunder (ii) the appointment of the petitioner was for a period of five years from the date of publication of the notification dated 13.09.2019 or until further orders whichever is earlier.
13. Section 15 of the Act of 1995 provides for the term of the member of the Board. The same is five years from the date of publication of the notification. The respondent's contention that the appointment of the petitioner was for a period of five years or until further orders would not inure to the benefit of the respondent for the following reasons (i) Section 15 of the Act of 1995 provides for the 7 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 8 WP 3983 of 2020.odt fixed term of the member of the Board viz. five years unless he is disqualified under Section 16 of the Act of 1995 or removed under Section 20 of the Act of 1995 for the reasons specified therein. Moreover, reliance on the 'doctrine of pleasure' would not assist the respondent. The appointment cannot be cancelled at the whims and fancies of the respondent. For invoking the doctrine of pleasure some reasons should exist. During the course of argument, the respondent did not give much emphasis on the doctrine of pleasure but the substratum of the contention was that the appointment of the petitioner was not approved or ratified by the Hon'ble Chief Minister as required under item 23 under instruction No. 15 under the Rules of Business. It will be relevant to reproduce the same. The same is in a regional language. It reads thus :
HkkjrkP;k lafo/kkukP;k vuqPNsn 166 }kjk r;kj dsysY;k egkjk'Vª "kklu dk;Zfu;ekoyhP;k fu;e 15 vUo;s ns.;kr vkysY;k "kklukP;k dkedktklaca/kh vuqns"k Hkkx 1 1- &&&&&& 2- &&&&&& 3- &&&&&& Hkkx 2 4- &&&&&& 5- &&&&&& 6- &&&&&& 15- ¼1½ vkns"k dk<.;kiwohZ izdj.kkaps iq<hy izdkj eq[; ea«;kdMs lknj djkosr] rs Eg.kts& ¼,d½ f"k{kk oxSjs ekQ dj.ks] f"k{kk rgdwc dj.ks] f"k{ksph rgdqch fdaok ekQh ;klkBh 8 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 9 WP 3983 of 2020.odt izLrko fdaok vuqPNsn 161 vuqlkj f"k{ksps fuyacu lwV fdaok rh lkSE; dj.ks ;klkBh izLrko] ¼nksu½ fu;ekoyhP;k nqlÚ;k vuqlwph}kjs ;k vk/kh lekfo'V u dsysY;k /kksj.kkpk iz"u mifLFkr dj.kkjh izdj.ks vkf.k iz"kklfudn`'V;k egRokph izdj.ks] ¼rhu½ izdj.ks] T;keqGs jkT;kP;k "kkarrsyk vkf.k fLFkjrsyk ck/kk iksgprs fdaok ck/kk iksgpo.;kpk laHko vkgs] v"kh izdj.ks] ¼pkj½ &&&&&& ¼ikp½ &&&&& ¼rsfol½ fofo/k lkafof/kd U;k;kf/kdj.kkP;k v/;{k o lnL; ;kaP;k use.kqdhckcrps izLrko] ¼"kklu vkns"k] lkekU; iz"kklu foHkkx] dz- "kkdkfu&1097@iz-d-z 36@94@18¼j-o-dk-½] fnukad 02 ekpZ 1998 vUo;s lekfo'V dj.;kr vkys½-
14. The Maharashtra State Board of Waqf is the Board of Waqf as incorporated under Section 13 of the Act of 1995. Sub section 3 of section 13 of the Act of 1995 provides that the Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. The Tribunal is also constituted under the Act of 1995. Section 7 of the Act of 1995 defends the jurisdiction of the Tribunal to determine disputes regarding auqafs. Reading instruction No. 15 (23) as relied by the learned Addl. G. P. the proposal for appointment of chairperson and the member of the statutory tribunal is to be submitted to the Hon'ble Chief Minister before issuing
9 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 10 WP 3983 of 2020.odt appointment order. The question would be whether the Maharashtra State Board of Waqf can be equated with the statutory Tribunal contemplated as under instruction No. 15 (23).
15. As observed above, the Board is a body corporate having a perpetual succession and a common seal. The Tribunals are constituted for resolving the disputes. The phrase Tribunal may not have trappings of a Court, but includes within its realm the adjudicating bodies, provided they are constituted by the State and are having judicial as distinguished from purely administrative or executive functions. They are established under the Statute. It is a seat of justice or a judicial body with jurisdiction to render justice. The Tribunal according to the dictionary meaning is a seat of justice and in the discharge of its functions, it shares the characteristics of the Court. The Tribunals are normally clothed with some of the powers of the Court. They can compel witnesses to appear, they can administer oath, they are required to follow certain rules of procedure. They have to decide on evidence before them. They have to act judicially and reach their decision in an objective manner and they cannot go ahead purely administratively or base their conclusions on subjective tests or inclinations. The procedural rules which regulate the proceedings before the Tribunals and the powers available with them in dealing with matters brought 10 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 11 WP 3983 of 2020.odt before them, are sometimes described as the trappings of a Court and in determining the questions as to whether a particular body or authority is a Tribunal or not, some times a rough and ready test is applied by requiring whether the said body or authority is clothed with the trappings of a Court. The Tribunal may have two distinct characteristics (1) the trappings of a Court and (2) it should be constituted by the State, should be invested with such inherent judicial powers as distinct with administrative or executive functions. They are adjudicating bodies and deal with and finally decide disputes between the parties, which are entrusted to their jurisdiction. The Tribunal is a creature of a statute and can only exercise such powers specifically conferred upon it. The Waqf Tribunal is constituted U/Sec. 83 of the Waqf Act, 1995. The Waqf Tribunal is constituted by the State Government by notification in the official Gazette for determination of any dispute, question or other matters relating to a waqf or waqf property. All the matters relating to the determination of any dispute, question or other matter relating to waqf are dealt by Tribunal constituted U/Sec. 83 of the Waqf Act. The proceedings before the Tribunal are termed as judicial proceedings. Even orders passed by the board can be appealed and/or challenged before the Tribunal.
16. The Waqf board performs administrative functions 11 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 12 WP 3983 of 2020.odt essential for the safeguard of the Waqf property and Waqf and for that purpose may conduct enquiry about the Waqf property. The Waqf board discharges an effective role in the overall superintendence of Waqf particularly laying down policies and acting as a watch dog and recommending the State Government for providing necessary facilities for Waqf administration. Removal of Mutawalis, the supervision and supersession of the committee of management of Waqf by the board, is an act in furtherance of its administrative and supervisory function. The same cannot be equated with the adjudicatory powers of the Tribunal.
17. The judgments relied by the learned Addl. G. P. may not inure to the benefit of the petitioner.
18. In a case of The Bharat Bank Ltd. Delhi (supra) the matter in issue was whether the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions, although it is not a Court in the technical sense of the word. The Apex Court in that case held that the word Tribunal in Article 136 of the Constitution of India has to be construed liberally and not in a narrow sense. An Industrial Tribunal in as much as it discharges functions of a judicial nature in accordance with law comes within the ambit of Article 136 of the Constitution of India.
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19. In a case of Jaswant Sugar Mills Ltd., (supra) also the Apex Court observed that there are tribunals with many of the trappings of a Court which nevertheless are not Courts in the strict sense for exercising judicial power. The intention of the constitution by the use of the word Tribunal in the article seems to have been to include within the scope of Article 136 of the Constitution of India the tribunals alone with similar trappings as Court, but strictly coming within that definition.
20. In the case in hand, the issue before us is different. The member of the Waqf board cannot be equated with the member of a statutory tribunal. The Maharashtra State Board of Waqf performs purely administrative and executive functions. The appointment of Mutawalis, registration of Waqf properties, removal of Mutawalis, appointment of managing committees are administrative functions for the proper management of the Waqf as discussed supra.
21. The irresistible conclusion of the aforesaid discussion is that the appointment of a person as a member of the Waqf board cannot be on the same pedestal as a member of the Tribunal. The Waqf board does not possess the trappings of the Tribunal. Reliance on the instruction no. 15 (23) of the Rules of Business to justify removal of the petitioner without assigning reason is misplaced and arbitrary.
22. An arbitrary action has no place in the society governed by rule 13 of 14 ::: Uploaded on - 20/03/2021 ::: Downloaded on - 29/08/2021 18:45:30 ::: 14 WP 3983 of 2020.odt of law. Arbitrariness is antitheses to the rule of law, justice, equity, fair play and good conscience. An arbitrary action cannot be sustained.
23. The impugned notification revoking the membership of the petitioner as a member of the Waqf board is arbitrary necessitating invocation of the plenary powers of the Court under Article 226 of the Constitution of India. The impugned notification is quashed and set aside.
Rule is made absolute accordingly. No costs.
( SHRIKANT D. KULKARNI ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
P.S.B.
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