Andhra Pradesh High Court - Amravati
Patan Shaffee Ahmed Quadri vs The State Of Andhra Pradesh on 16 December, 2024
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THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
I.A.No.2 of 2024 in W.P.No.29098 of 2024;
I.A.No.1 of 2024 in W.P.No.29168 of 2024;
I.A.No.2 of 2024 in W.P.No.29640 of 2024
COMMON ORDER
Since the interim relief claimed in all the three interlocutory applications is identical, this Court deems it apposite to decide them by way of common order.
1. Learned Senior Counsel Sri Vedula Venkata Ramana submits that the Petitioners herein are the nominated members of A.P. Waqf Board appointed under G.O.Ms.No.47, dated 21.10.2023 and also devotees and believers towards Muslim religion. As such they also should be treated as persons interested as per Section 3(k) of the Waqf Act, 1995 (for short "Act"). The 1st Respondent is the competent authority for constitution of A.P. Waqf Board as per Section 14 of the Act.
2. He further submits that Section 14 of the Act describes the electoral college for election of various types of members. He further submits that Section 14(9) contemplates the members of the Board shall be appointed by the State Government by notification in the official Gazette for a period of five (5) years. Once the 1st Respondent notifies the appointment U/s 14(9) of the Act, the members of the Board shall hold office for a term of 5 ::2::
years. In the case on hand, admittedly the Petitioners herein were nominated as members of the Board vide G.O.Ms.No.47, dated 21.10.2023 for a period of five years as per Section 15 of the Act.
3. Contrary to the procedure as contemplated U/s 14 and 15 of the Act, the Respondents herein issued G.O.Ms.No.75, dated 30.11.2024 withdrawing the G.O.Ms.No.47 basing on vague reasons and without jurisdiction. He further asserts that the entire scheme of the Act, 1995 does not contemplating or providing authority to the State for withdrawal of G.O.Ms.No.47. In the absence of any power conferred upon the State under the scheme of the Act for issuing of G.O.Ms.No.75 is contrary to the law and liable to be set aside. He further submits that admittedly the 1st Respondent neither issued any proceedings U/s 20 of the Act for removal of the Petitioners herein nor initiated any proceedings U/s 99 of the Act. Without invoking Section 20 as well as Section 99 of the Act, the right of continuance for five years as Members of the Board as envisaged under Section 15 of the Act, cannot be taken away without any jurisdiction.
4. He further submits that due to interim directions of this Hon'ble Court the constitution of the Board is suspended for a temporary period. Therefore on the guise of the interim orders of this Hon'ble Court, alleging ::3::
that the Board become non-functioning and thereby resorting the present arbitrary action by way of G.O.Ms.No.75 is contrary to settled proposition of law and also ratio laid down by the Hon'ble Apex Court in Jagmittar Sain Bhagat v. Director, Health Services, Haryana1. Hon'ble Apex Court observed thus:
"9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213)."
5. He further contends that since the 1st Respondent having no jurisdiction issued G.O.Ms.No.75 for withdrawal of the G.O.Ms.No.47. Therefore, consequential G.O.Ms.No.77, dated 06.12.2024 under which new Board was constituted is liable to be suspended.
6. Learned Senior Counsel Sri O. Manohar Reddy appeared on behalf Petitioners in W.P.No.29168 of 2024 also reiterates the contentions of the 1 (2013) 10 SCC 136 ::4::
learned Senior Counsel Sri Vedula Venkata Ramana. He further argued that as per Section 14 some of the Members should be elected from the particular electoral college. Without such fresh election constituting new Board vide G.O.Ms.No.77 is contrary to the settled proposition of law and also Section 14 of the Act. He also relied upon Govind Sahai v. State of U.P2. Sri N. Sivarama Krishna, learned counsel for the Petitioners in W.P.No.29640 of 2024 also adopted the arguments advanced by learned Senior Counsel.
7. On the other hand, learned Advocate General appeared for Respondent No.1 submits that it is a settled proposition of law that once the authority is empowered to appoint would include the power of cancellation of such appointment, as such, there is no need of any express provision for withdrawal or cancellation of appoitnment. Therefore, the contentions of learned Senior Counsel for the Petitioners that the issuance of the G.O.Ms.No.75 is without jurisdiction is lacks merits and liable to be rejected. He further submits that in all Writ Petitions the Petitioners are only nominated members and their right to function as members cannot be equated with the rights of elected members. The fact remains that the 2 AIR 1968 SC 1513 ::5::
elected members of earlier board under G.O.Ms.No.47 has been continuing as members of the Board constituted vide G.O.Ms.No.77, dated 06.12.2024.
8. He further explained that due to interim directions of this Court in batch of Writ Petitions in W.P.No.28422 of 2023 and batch dated 01.11.2023 passed by this Court, the 2nd Respondent Board is not functioning from the date of its constitution which reads thus:
"Suffice to state that this Court prima facie is satisfied that the constitution of the Waqf Board is not in strict adherence with the provisions of the Act. Though, the appointment / nomination of the Members of the Waqf Board in respect of the some of the categories, prima facie is not in accordance with the provisions of the Act, as the appointment of Members have already come into effect, this Court deems it appropriate that an opportunity has to be afforded to the unofficial respondents before passing any orders, which may have an adverse effect on their appointments. However, Election to the Chairperson by the Members whose appointments are prima facie not in consonance of the provisions of the Act would amount to perpetration of illegality, there shall be stay of Election to the post of Chairperson, which is scheduled to be held on 01.11.2023"
(emphasis supplied) The entire administration and the management of Waqf properties/ward institutions is standstill. Having no other option, the 1st Respondent-State issued G.O.Ms.No.75 withdrawing the G.O.Ms.No.47 and constituted a new board vide G.O.Ms.No.77. He further submits that Hon'ble Apex Court in State of Maharashtra v. Shaik Mahemud3 in 3 (2022) 18 SCC 573 ::6::
identical matter considered the contents raised herein and answered negatively as follows:
"8. It is relevant to point out that the appointment of the first respondent was by the method of nomination by the State Government in terms of clause (c) of subsection (1) of Section 14. The appointment under both categories (election or nomination) should be by a notification issued by the State Government and published in the official Gazette. This is by virtue of subsection (9) of Section 14. Sub section (9) of Section 14 reads as follows: "14. Composition of Board.--
xxx xxx xxx (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette."
10. Though Section 14(9) is common to the appointment under both categories and though Section 15 speaks about the term of office of members appointed by a notification under Section 14(9), nomination always stands on a slightly different footing than election. Perhaps, as per the scheme of the Act, it may not be possible for the State Government to breach the process of election from each of the electoral colleges under clause (b) of subsection (1) of Section 14, by curtailing the term of office of such elected members. But the same logic cannot be extended to nominated members. In other words, it may not be possible to hold that there is no elbow space for the State Government in the cases of nomination covered by clauses (c), (d) or (e).
11. It must be noted that under clause (e) of subsection (1) of Section 14, an officer of the State Government not below the rank of Joint Secretary to Government may be nominated to the Board. If Section 15 is construed in the manner in which the High Court has 6 construed, such a nominated officer of the State Government may have to be allowed to continue, even if he reaches superannuation before completing five years of tenure. Therefore, it is not possible to accept the view of the High Court that the term of office prescribed under Section 15 cannot be curtailed. This is so at least in respect of a nominated member.
12. For holding that the cancellation of appointment of the first respondent was arbitrary, the High Court did not really have any material. The only reason why the High court held it to be arbitrary is that the order of cancellation of appointment did not contain any reason and that the cancellation went against Section 15. For holding the action of the Executive to be arbitrary, there must be a factual basis. It did not exist in this case.
13. It was contended by the learned counsel for the first respondent that the notification of cancellation of appointment was issued in exercise of the ::7::
powers conferred by subsection (9) read with clause (c) of subsection (1) of Section 14. Since these provisions deals only with appointment and not with removal, it was contended by the learned counsel for the first respondent that the notification of cancellation was not in accordance with law.
14. But the above contention loses sight of the fact that the power to appoint would include the power of cancellation of appointment. Therefore, the said contention is liable to be rejected.
15. It was next contended by the learned counsel for the first respondent that the procedure prescribed under Section 20 of the Act for the removal of the respondent was not followed. But this contention is unsustainable, in view of the fact that the respondent was not removed from the office of membership of the Waqf Board. His appointment was cancelled by the notification impugned in the writ petition. Therefore, Section 20 has no application to the case."
(Emphasis supplied)
9. Having considered the submissions made by learned Senior Counsel for the Petitioners and learned Advocate General and on the perusal of the ratio laid down by the Hon'ble Apex Court in State of Maharashtra v. Shaik Mahemud (supra 3), there is no prima facie case in favour of the Petitioners herein and due to facts and circumstances i.e., non-functioning of the Board since two years, this Court is not inclined to pass any orders in the interlocutory applications.
10. Accordingly, interlocutory applications are dismissed.
________________________________ VENKATESWARLU NIMMAGADDA, J Dt:16.12.2024 Krk ::8::
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA I.A.No.2 of 2024 in W.P.No.29098 of 2024;
I.A.No.1 of 2024 in W.P.No.29168 of 2024;
I.A.No.2 of 2024 in W.P.No.29640 of 2024 16.12.2024 Krk