Gujarat High Court
Saiyed Badasab Saiyedmiya vs Deputy Collector And Returning Officer on 14 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/2518/2024 ORDER DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2518 of 2024
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 2518 of 2024
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SAIYED BADASAB SAIYEDMIYA
Versus
DEPUTY COLLECTOR AND RETURNING OFFICER
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Appearance:
MR MTM HAKIM with SAQUIB S ANSARI(7152) for the Petitioner(s)
No. 1
MS MANISHA LAVKUMAR SHAH, AAG with MS SHRUTI PATHAK, AGP
for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR MANISH S SHAH(5859) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/02/2024
ORAL ORDER
ORDER IN CIVIL APPLICATION NO. 1 of 2024
1. By way of present civil application, the applicant herein seeks to be joined as party respondent No.3 in the main matter being Special Civil Application No.2518 of 2024.
2. Heard Mr. B.J. Trivedi, learned advocate appearing for the applicant.
3. Considering the submissions made by Mr. Trivedi, learned Page 1 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined advocate appearing for the applicant and the averments made in the civil application, the Civil Application No.1 of 2024 is hereby allowed. The present applicant is directed to be joined as party respondent No.3 in the Special Civil Application No.2518 of 2024.
(VAIBHAVI D. NANAVATI,J) ORDER IN SPECIAL CIVIL APPLICATION NO. 2518 of 2024
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"18. The Petitioner therefore most humbly prays that THIS HON'BLE COURT MAY BE PLEASED TO issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari and by exercise of extraordinary jurisdiction under section 226 of the Constitution of India:
(A) THIS HON'BLE COURT MAY BE PLEASED TO quash and set aside the impugned letter/order dated 09/02/2024 by the Respondent No. 1 Deputy Collector and Returning Officer For appointment of Member in Mutawalli Category, Gandhinagar. (Annexure - A) (B) Pending, admission hearing and final disposal of the present Petition, THIS HON'BLE COURT MAY BE PLEASED TO stay the implementation, execution and operation of the impugned letter/order dated 09/02/2024 by the Respondent No. 1 - Deputy Collector and Returning Officer For appointment of Member in Mutawalli Category, Gandhinagar. THIS HON'BLE COURT MAY FURTHER BE PLEASED TO direct the Respondent No. 1 - Deputy Collector and Returning Officer to immediately and forthwith accept the nomination of the Petitioner.
(Annexure - A) (C) Pending, admission hearing and final disposal of the present Petition, THIS HON'BLE COURT MAY BE PLEASED TO stay the further proceedings of election for appointment of Member in Mutawalli Category of the Gujarat State Waqf Board. (Annexure - A). Page 2 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024
NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined (D) THIS HON'BLE COURT MAY BE PLEASED TO grant such other and further relief/s which may be deemed fit to the Hon'ble Court in the interest of justice."
2. The present petition is preferred challenging the letter/order dated 09.02.2024 issued by the Prant Officer and Sub-Divisional Officer, Gandhinagar whereby, the nomination of the petitioner for appointment of as Member is rejected on the ground that since the year 2021, the petitioner is not a Mutawalli of the Ahmedabad Sunni Muslim Waqf. 2.1 The petitioner Waqf - Ahmedabad Sunni Muslim Waqf Committee was established in the year 1914 and the petitioner is Mutawalli of the said Waqf. The scheme of the Waqf was framed by the Hon'ble City Civil Court at Ahmedabad in the order dated 23.07.1987 passed in Civil Suit No.590 of 1979. After coming in force of the Waqf Act, 1995, the management and supervision of the Waqf was transferred to the Respondent No.2 - Waqf Board as per the provisions of Section 43 of the Waqf Act.
2.2 It is the case of the petitiocner that on perusal of the PTR of the petitioner Waqf, it is apparent that 3 Mutawallis retired in the year 2009 and the petitioner along with Shri Ridhwan Page 3 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined Qadri and Late Shri Zahirul Hasan were appointed as Mutawalli by order dated 31.08.2009 at which point there were 9 existing Mutawallis. Moreoever, as per the Scheme of the Waqf, 3 Mutawallis were to retire every 6 years and therefore, the last appointed 3 Mutawallis would have to resign at 18 th year i.e. in the year 2027. In view of the same, the tenure of the petitioner and other 2 Mutawallis would come to an end only in the year 2027 and not before it. In view thereof, it is the case of the petitioner that the order passed by the respondent No.1 allowing the objections filed by the private respondents, is required to be quashed and set aside more particularly, when the Change Reports for appointment and removal of Mutawallis are pending before the Waqf Board and the same was not notified till date.
3. Heard Mr. MTM Hakim, learned advocate for Mr. Saquib S. Ansari, learned advocate appearing for the petitioner, Ms. Manisha Lavkumar Shah, learned Additional Advocate General with Ms. Shruti Pathak, learned AGP appearing for the respondent No.1 abd Mr. Manish Shah, learned advocate appearing for the respondent No.2.
4. Mr. MTM Hakim, learned advocate for the petitioner, Page 4 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined submitted that the name of the petitioner still reflects in the PTR of the petitioner Waqf and the petitioner is recorded as Mutawalli of the petitioner Waqf. The petitioner name is also reflecting in the Electoral roll wherein, no objections are raised against the petitioner. The aforesaid exercise under undertaken as per Rule 12 to 18 of the Waqf Rules. The nomination of the petitioner under Rule 20(3) of the Waqf Rules is erroneous and contrary to the Waqf Act and Rules. 4.1 Mr. MTM Hakim, learned advocate, submitted that once the name of the petitioner is recorded in the electoral list and the same has not been objected, the electoral list is finalized and published, thereafter, the action taken by the respondent No.1 rejecting the nomination of the petitioner on the ground that the petitioner is not a Mutawalli of the petitioner Waqf, is grossly illegal, arbitrary and contrary to the evidence on record. In view thereof, the impugned communication dated 09.02.2024 is required to be quashed and set aside. It was also submitted that the tenure of the petitioner is until 2027 and in view thereof, the question of rejecting the nomination of the petitioner on the ground that the petitioner ceases to be Mutawalli since 2021 is grossly erroneous. Placing reliance on Page 5 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined the aforesaid submissions, Mr. Hakim, learned advocate submitted that the present petition is required to be allowed.
5. Ms. Manisha Lavkumar Shah, learned Additional Advocate General, appearing for the respondent No.1, submitted that the Ahmedabad Sunni Muslim Waqf is one of the petitioners in the public interest litigation seeking appointment of the Waqf Board as well as Waqf Tribunal which is being actively monitored by the Hon'ble Division Bench in Writ Petition (PIL) No.29 of 2023 with Writ Petition (PIL) No.75 of 2018 and allied matters. The Hon'ble Division Bench is seized of the issues with respect to the constitution of the Waqf Board as well as Waqf Tribunal, the matters are posted for hearing on 26.02.2024 before the Hon'ble Division Bench. The Hon'ble Division Bench is also apprised of the latest status as regards to the election of Mutawallis. The State Government in exercise of the powers conferred under Section 109 of the Waqf Act, 1995 has framed the rules namely Gujarat State Waqf Rules, 2023 (for short 'the Rules, 2023'). Accordingly, for the purpose of election of Mutawallis, the Respondent Authority has carried out necessary procedure as contemplated under the Rules of 2023 as under:
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NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined On 24.01.2024, a public notice was issued by the Election Officer and Secretary, Legal Department in consonance with the provisions contemplated under the Waqf Act, 1995 and Waqf Amendment Act, 2013 as well as Rule 13 of the Rules, 2023, in Sandesh and Young Leader Hindi newspaper intimating about the electoral roll of 211 Mutawallis after the electoral roll prepared by the Gujarat State Waqf Board as per Rule 12 of the the Rules, 2023. Apropos to the same, the objections were invited.
On 03.02.2024, public notice was issued by the Election Officer and Secretary, Legal Department in Divyabhaskar and Young Leader Hindi newspaper regarding final voters list (Electoral Roll) as per the provisions under Waqf Amendment Act, 2013 as well as Rule 14(1)(b)(iv) of the Gujarat State Waqf Rules, 2023.
Subsequent to the aforesaid proceedings, the election program was declared on 14.02.2024. The elections are to be held on 15.02.2024.
On 07.02.2024, after the submission of nomination form of the petitioner, the objections were raised by one Mohamad Farooq Kansara. Pursuant to the said objections raised by the Mohamad Farooq Kansara, the Joint Secretary, Legal Department sought guidance from the Gujarat State Waqf Board with respect to the tenure of the Mutawalli.Page 7 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024
NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined On 08.02.2024, the Gujarat State Waqf Board vide communication dated 08.02.2024 intimated that the tenure of the Mutawalli had concluded in the year 2021 and that at present there is no Mutawalli. The Board further communicated that pursuant to the change reports Nos. 476 of 2017 and 668 of 2020 for the purpose of appointment of Mutawalli which were pending, an Application No.30 of 2019 was preferred by Mohamad Farooq Kansara which was directed to be decided within three months to the Waqf Board. In the interregnum, the Waqf Board got dissolved and that another Special Civil Application No. 17764 of 2022 was also pending. It was intimated in the said communication by the Gujarat State Waqf Board that, Saiyed Badasab Saiyedmiya i.e. the present petitioner has not revealed true and correct facts at the time of filling up form and that his name is required to be deleted from the voters list at Sr. No. 154.
Pursuant to the guidance received from the Waqf Board, the respondent No.1 passed the impugned order dated 09.02.2024.
5.1 Ms. Shah, learned AAG, submitted that with the declaration of the election program, the present petition would not be maintainable. If the petitioner is aggrieved by the rejection of nomination form, the petitioner is required to file an election petition after the election are over. This Court in Page 8 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined the facts of the present case, may not interfere under Article 226 of the Constitution of India and the remedy lies by preferring an election petition.
5.2 Ms. Shah, learned AAG, submitted that the constitution of the Waqf Board is being carried out under the active monitoring of the Hon'ble Division Bench and that the same may not be interfered at the behest of the present petitioner. It was submitted that Rule 20(3) of the Rules of 2023 provides for the power to the Returning Officer to examine the nomination forms and decide the objections which may be made at the time of nomination. The returning officer is empowered to carry out a summary inquiry on the eligibility of the candidate as a member of that particular category of the board. While scrutinizing the nomination papers, the aforesaid exercise is to be carried out in restricted and expeditious manner and that the Returning Officer does not have a jurisdiction or legal authority to delve into the aspect of right of the nominee. It was submitted that the present petition may not be entertained.
6. Mr. Manish Shah, learned advocate appearing for the respondent No.2, relied on the affidavit-in-reply filed by the Page 9 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined respondent No.2 and submitted that the present controversy is required to be considered in light of the Clause - 8(b) of the Scheme of the waqf-in-question. It was submitted that the Scheme categorically provides that out of 9 members, every 6 years, 3 senior members as per their seniority will retire and new vacancies should be filled up within 3 months of the retirement. It was submitted that in the present case, in the year 2009, there were 9 members out of which, 3 members have resigned. Therefore, out of remaining 6 members, 3 senior most members would retire in the year 2015.
6.1 Mr. Shah, learned advocate, submitted that in the facts of the present case, the trustees filed change report in the year 2017 but, due to various litigations and orders passed by the Waqf Tribunal in the year 2019 in Waqf Application No.30 of 2019 in the year 2019, directing to decide all the questions together by the Waqf Board, necessary proceedings were initiated by issuing show cause notice but in the meantime, due to Covid-19 and non-availability of the Waqf Board, decision could not be taken on the pending change report. It was submitted that even if, it is assumed that the said change report filed by the Wakf in question would have been allowed Page 10 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined in the year 2017 or as corrected presented in the year 2020 and 2021 even then, the petitioner would have retired in the year 2021 being a senior most member since, he was appointed in the year 2009 and according to rotation of 3 members, every 6 years their tenure end in the year 2021 and therefore, when the objections were raised pertaining to which, the Election Officer addressed a query to the said regard, the respondent No.2 vide communication dated 08.02.2024 explaining in detail reason for not accepting his name in the voters list were addressed by the CEO of the Waqf Board.
6.2 In light of the aforesaid, Mr. Shah, learned advocate appearing for the respondent No.2, submitted that the impugned order dated 09.02.2024 passed by the respondent No.1 s just and proper and does not require any interference and that the petition be dismissed in limine.
7. Mr. B.J. Trivedi, learned advocate appearing for the respondent No.3, also submitted that the impugned order requires no interference and submitted that while narrating the facts, the petitioner has failed to state correct and true facts. It was submitted that the term of the petitioner has ended in the year 2021. The petitioner was appointed as Trustee in the year Page 11 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined 2009 and 3 members in terms of seniority retired every 6 years. Even if, the petitioner was re-appointed in the year 2015, the petitioner term would end in the year 2021 and that, at present there is no Trustee in the petitioner Trust.
Analysis:
8. Having heard the learned advocates appearing for the respective parties, following undisputed facts emerge:
(a) On 24.01.2024, a public notice was issued by the Election Officer and Secretary, Legal Department in consonance with the provisions contemplated under the Waqf Act, 1995 and Waqf Amendment Act, 2013 as well as Rule 13 of the Rules, 2023, in Sandesh and Young Leader Hindi newspaper intimating about the electoral roll of 211 Mutawallis after the electoral roll which was prepared by the Gujarat State Waqf Board As per Rule 12 of the the Rules, 2023.
(b) The objections were invited.
(c) On 03.02.2024, public notice was issued by the
Election Officer and Secretary, Legal Department in Page 12 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined Divyabhaskar and Young Leader Hindi newspaper regarding final voters list (Electoral Roll) as per the provisions under WAQF Amendment Act, 2013 as well as Rule 14(1)(b)(iv) of the Gujarat State WAQF Rules, 2023.
(d) Subsequent to the aforesaid proceedings, the election program was declared on 14.02.2024. The elections are to be held on 15.02.2024.
(e) On 07.02.2024, after the submission of nomination form by the petitioner, the objections were raised by private respondent - Mohamad Farooq Kansara.
(f) Pursuant to the objections raised by the Mohamad Farooq Kansara, the Joint Secretary, Legal Department sought guidance from the Gujarat State Waqf Board with respect to the tenure of the Mutawalli.
(g) On 08.02.2024, the Gujarat State Waqf Board vide communication dated 08.02.2024 intimated that the tenure of the petitioner concluded in the year 2021 and that at present there is no Mutawalli. The Board further communicated that pursuant to the change reports Nos.
476 of 2017 and 668 of 2020 for the purpose of Page 13 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined appointment of Mutawalli which were pending, an Application No.30 of 2019 was preferred by Mohamad Farooq Kansara which was directed to be decided within three months to the Waqf Board. In the interregnum, the Waqf Board got dissolved and that another Special Civil Application No. 17764 of 2022 was also pending. It was intimated in the said communication by the Gujarat State Waqf Board that, Saiyed Badasab Saiyedmiya i.e. the present petitioner has not revealed true and correct facts at the time of filling up form and that his name is required to be deleted from the voters list at Sr. No. 154.
(h) In light of the aforesaid facts, the respondent No.1 passed the impugned order dated 09.02.2024 rejecting the nomination of the petitioner for appointment as Member on the ground that since 2021, the petitioner is not a Mutawalli of the Ahmedabad Sunni Muslim Waqf Committee.
9. At this stage, it is apposite to refer to the impugned order dated 09.02.2024 passed by the respondent No.1, which read thus : (true translation) "No. PO/V.BO.CHU./VSHI 52 to 54/2024 Page 14 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined Date: 09/02/2024 To, Shri Saiyad Badasab Saiyadmiya Muttawali/ Trustee, Ahmedabad Sunni Muslim Waqf Committee, Address: Opp. GPO, Salapas Road, Ahmedabad. Subject: About objections raised against you candidature in the election of Muttawali of Gujarat State Waqf Board With regard to the captioned subject, it is to state that, the election for the Muttawali of the Gujarat State Waqf Board is to be held on 15/02/2024 as per Section 14(1)(B)(4) of the Waqf Act, 1995 as amended in 2013. In this regard, from 11:00 AM to 06:00 PM between 05/02/2024 to 06/02/2024, total 16 forms have been distributed. As the nomination forms for the election of Muttawali were to be accepted on 07/02/2024, total 14 forms have been accepted, which includes your nomination form as well.
Shri Mohammad Farooq U. Kansara, residing at 1217/12 Noor Chawl, Biscuit Gali, Pankornaka, Ahmedabad has presented an objection against your nomination on 07/02/2024. The objection qua the application has been forwarded, vide the office-letter dated 07/02/2024, to the Joint Secretary, E- Branch, Legal Department, Secretariat, Gandhinagar for their guidance, from whom guidance has been received vide the letter no. WQF/102023/01/25/E dated 08/02/2024. According to it, the scheme application of Ahmedabad Sunni Waqf Committee, Reg. No.B/447/Ahmedabad provides that the oldest 3 members from the said organization shall retire every 6 years and the vacant posts shall be filled up within 3 months after their retirement, as per the judgment dated 23/07/1987 of the Civil Court in Case No.559/1979. There were total 9 members in the organization in 2009. Out of them, 3 members resigned in 2009 and therefore, 6 members remained. As per the constitution of the organization, 3 members retired in 2015 after 6 years and 3 members remained. Further, as per the constitution of the organization, the remaining 3 members have retired after 6 years. Thus, there is no Mutvalli in the organization since 2021. Therefore, no person is qualified for nomination for Mutvalli. It has been stated that, thus, the objection raised by applicant Shri Mohammad Farooq U. Kansara needs to be accepted.
Considering the above mentioned facts, your nomination stands cancelled, which may kindly be noted.
Sd/- (illegible) (B. B. Modiya) Returning Officer for appointment of Member for Mutvalli Category and Prant Officer, Gandhinagar"
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NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined
10. The petitioner herein has challenged the impugned order passed by the respondent No.1 dated 09.02.2024 duly produced at Annexure - A whereby, the objections raised by the private respondent - Mohamad Farooq Kansara, came to be allowed and the nomination of the petitioner came to be rejected. After the petitioner filed nomination form, objections came to be filed by the private respondent with respect to the nomination of the petitioner mainly on the ground that the scheme of Sunni Muslim Waqf Board B-447/Ahmedabad was formulated under Civil Suit No.590/1979 by City Civil Court, Ahmedabad wherein the tenure of membership is clearly provided as 6 years. The term of both the present members of Sunni Muslim Waqf Committee, Ahmedabad has expired in 2015. Gujarat Waqf Board was clearly ordered to take action against these two members. It is applicable to all the candidates who offer their candidature for the process of election of Waqf Board Mutwalli that it will be ensured by the practical test as to whether they can read and write all three languages- Gujarati, Hindi and Urdu. Further, it is also required to ensure as to whether they are familiar with Islamic Shariat or not. It is also required to verify as to whether they follow Shariat besides their knowledge of Shariat. Page 16 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024
NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined 10.1 The petitioner herein replied to the said objections vide communication dated 08.02.2024 reiterating that the name of the petitioner still runs in the PTR of the petitioner Waqf Committee and that, there is no disqualification by any Court of Law or Tribunal and in view thereof, the candidature of the petitioner would not have been rejected. The impugned order came to be passed on 09.02.2024 by the respondent No.1 whereby, it was stated that as per the guidance received vide the letter No. WQF/102023/01/25/E dated 08/02/2024 from the Joint Secretary, E- Branch, Legal Department, Secretariat, Gandhinagar, the scheme application of Ahmedabad Sunni Waqf Committee, Reg. No.B/447/Ahmedabad provides that the oldest 3 members from the said organization shall retire every 6 years and the vacant posts shall be filled up within 3 months after their retirement, as per the judgment dated 23/07/1987 of the Civil Court in Case No.559/1979. There were total 9 members in the organization in 2009. Out of them, 3 members resigned in 2009 and therefore, 6 members remained. As per the constitution of the organization, 3 members retired in 2015 after 6 years and 3 members remained. Further, as per the constitution of the organization, the remaining 3 members Page 17 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined have retired after 6 years. Thus, there is no Mutwalli in the organization since 2021. Therefore, no person is qualified for nomination for Mutwalli.
11. At this stage, this Court deems it fit to refer to the ratio as laid down by the Hon'ble Supreme Court in case of Shaji K. Joseph vs. V. Viswanath & Ors. reported in 2016 (4) SCC 429. Paragraphs 15, 16 and 17 of the said decision read thus:
"15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.
16. This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra).
17. Thus, in view of the aforestated settled legal position, the High Court should not have interfered with the process of election. We, therefore, set aside the impugned judgment and direct that the result Page 18 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined of the election should be published. We are sure that due to interim relief granted by this Court, Respondent no.1 must not have been permitted to contest the election. It would be open to Respondent no.1 to approach the Central Government for referring the dispute, if he thinks it proper to do so. No issue with regard to limitation will be raised if Respondent no.1 initiates an action under Section 5 of the Act within four weeks from today."
12. In light of the aforesaid, considering the ratio as laid down by the Hon'ble Apex Court in 2016 (4) SCC 429, the election has been set in motion upon publication of the election program on 03.02.2024. Further, The Waqf Board has opined and stated that the management and supervision of the petitioner Waqf was transferred to the respondent No.2 as per Section 42 of the Waqf Act, 1995.
12.1 Considering the facts of the present, the petitioner fails on both the counts; (i) if the petitioner is aggrieved by any decision of the Election Officer, remedy lies by filing Election Petition after the elections are over; (ii) The aforesaid decision arrived at by the respondent No.1 on the opinion/communication by the Waqf Board that the petitioners are not the Trustees that, the term of the petitioner ended in the year 2021.
13. For the aforesaid reasons, no interference is called for in the impugned order dated 09.02.2024 passed by the Page 19 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024 NEUTRAL CITATION C/SCA/2518/2024 ORDER DATED: 14/02/2024 undefined respondent No.1 reserving the liberty to the petitioner herein to avail statutory remedy by filing an Election Petition under Section 45(6)(a) of the Waqf Act, 1995 after the election is over. Further, no malafide, arbitrariness or any jurisdictional error is alleged by the petitioner herein against the respondent No.1 and in view thereof also, the said order calls for no interference since the same does not result into any extraordinary circumstances seeking interference by this Court.
14. It is clarified that this Court has otherwise not opined on the merits of the petition.
15. With the above observations, the present petition stands dismissed.
(VAIBHAVI D. NANAVATI,J) NEHA Page 20 of 20 Downloaded on : Thu Feb 15 20:47:38 IST 2024