Manipur High Court
Mufti Alsam Khan vs The State Of Manipur Through The ... on 18 January, 2022
Digitally
LHAINE signed by
LHAINEICHO IN THE HIGH COURT OF MANIPUR
ICHON NG HAOKIP
G Date:
2022.01.18 AT IMPHAL
HAOKIP 16:14:15
+05'30'
WP (C) No. 373 of 2021
1. Mufti Alsam Khan, aged about 36 years, S/O Mohd. Abdur Rashid,
resident of Santhel Litan Makhong, P.O. & P.S. Mayang Imphal,
District Kakching, Manipur, Pin-795132.
2. Abdul Manan, aged about 41 years, S/O (L) Md. Ali Amjad,
resident of Lilong Bazar, P.O. & P.S. Lilong, District Thoubal,
Manipur-795130.
3. Y. Ruhida Shahni, aged about 32 years, D/O Md. Cherak Ali,
resident of Khergao Awang Leikai near Cambridge School, P.O.
Singjamei, P.S. Porompat, Imphal East District, Manipur-795008.
... PETITIONER/S
-Versus -
1. The State of Manipur through the Principal Secretary/Secretary
(Minority Affairs) Govt. of Manipur, Secretariat building, P.O. &
P.S. Imphal, District Imphal West, Manipur, Pin-795001.
2. The Director, Minority Affairs, Govt. of Manipur, Office of the
Directorate of Minority Affairs, 1st Floor, South Block, Secured
Office Complex, A.T. Line, Imphal, Manipur-795001.
3. Md. Fajur Rahim, MLA, resident of Irong Chesaba Salam
Achouba, P.O., P.S. Mayang Imphal, District Thoubal, Manipur-
795132.
4. Y. Antas Khan, MLA, resident of Haoreibi Mayai Leikai, P.O. &
P.S. Lilong and District Thoubal, Manipur, Pin-795130.
5. Md. Abdul Nasir, resident of Lilong Chaobok, Mairenkhun, P.O. &
P.S. Lilong and District Thoubal, Manipur-795130.
6. Shri M.H. Khan, IAS, Additional Chief Secretary, Govt. of Manipur,
Secretariat Building, Babupara, P.O. & P.S. Imphal, Imphal West
District, Manipur-795001.
7. Md. Rabi Khan, resident of Minuthong Golapati near Tanky,
Imphal, Imphal East District, Manipur-795001.
8. Mohammad Azad Khan, resident of Khomidok Koubak Houbi,
Pangei, Imphal East District, Manipur-795114.
WP(C) No. 737 of 2021 Page 1
9. Alhaj Md. Iqbal Ahmed, Lilong Haoreibi Chandakhong, P.O. & P.S.
Lilong, District Thoubal, Manipur-795130.
10. Md. Hafiz Quayamuddin, resident of Lilong Haoreibi Turel Ahanbi,
P.O. & P.S. Lilong, Thoubal District, Manipur-795130.
11. Md. Asker Ali Makakmayum, resident of Lilong Haoreibi, P.O. &
P.S. Lilong, Thoubal District, Manipur-795130.
12. Md. Deepak Shah, resident of Kairang Awang Leikai, P.O.
Lamlong, P.S. Heingang, Imphal East District, Manipur-795010.
........RESPONDENT/S
B E F O R E HON'BLEMR. JUSTICE AHANTHEM BIMOL SINGH For the Petitioners : Mr.Anjan Prasad Sahu, Adv.
For the respondents : Mr.HS. Paonam, Sr. Adv.,
Mr. Lenin Hijam, Addl. AG &
Md. Rabi Khan.
Date of Hearing : 05.07.2021,09.09.2021,
15.09.2021,24.09.2021,
29.09.2021 & 01.10.2021
Date of Judgment : 18.01.2022
&Order
Judgment & Order
(CAV)
[1] Heard Mr.Anjan Prasad Sahu, learned counsel appearing for the
petitioners, Mr. Lenin Hijam, learned Addl. AG, appearing for the respondents No. 1 & 2, Mr. HS. Paonam, learned senior counsel appearing for the respondents No. 5, 8, 9,11& 12 and Md. Rabi Khan, respondent No. 7 appearing in-person.
The present writ petition has been filed assailing the entire process for constitution of the 7th Waqf Board, Manipur, as well as the WP(C) No. 737 of 2021 Page 2 election of the Chairperson of the Board coupled with a prayer for directing the State respondents to constitute the Waqf Board afresh as per law. [2] It has been pleaded by the petitioners in their writ petition that the entire process of constitution of the Board and the appointment of the members of the 7th Waqf Board including the Chairman is liable to be quashed and set aside on the following grounds:-
"(a) constitution of the 7th Waqf Board, Manipur was not published in the official gazette which is mandatory as per Section 14 (9) of the Waqf Act, 1995.
"(b) Two members of the Board should be women which is also not included in the formation of the Board. There is no exception to this requirement which is mandatory.
"(c) The appointment of Respondent No. 5 is also not justified as he is an Ex-MLA who is appointed under NGO category. Moreover, 5 N.G.Os/candidates had applied for the said post under NGO category including the petitioner No. 2 and election is mandatory whenever more candidates than the seats available, have applied under the same category. In the case in hand no election was held for the said category, it was appointed on the "pick and choose" policy with malafide intention of the present Govt.
"(d) The appointment of Respondent No. 10 is also illegal as notification for election was never published for the said category. As per Rule 8 (Conduct of Election) Rules, 1997 notification should be published which is mandatory. It was also done in the "pick and choose" policy.
"(e) The respondents No. 11 & 12 were also appointed in the category of Muslim Members of Parliament from the State.
Here, the respondent No. 11 is the Ex-MLA of the State Legislature who is not qualified under the said category. Hence, their appointments are also illegal."
[3] At the time of hearing of the present writ petition, it has been submitted by Mr.Anjan Prasad Sahu, learned counsel appearing for the petitioners that he will advance his arguments in respect of only two WP(C) No. 737 of 2021 Page 3 grounds and that he is not pressing the other remaining grounds pleaded by the petitioners in their writ petition.The first ground raised by the counsel appearing for the petitioners is that no women members were appointed in the 7th Waqf Board in total contravention of the mandatory provisions under second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995 and as such, the constitution of the 7th Waqf Board is null and void and deserves to be quashed and set aside.
[4] In connection with the the first ground, it has been submitted by the learned counsel appearing for the petitioners that under the second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995, it is provided that at least two members appointed on the Board shall be woman. However, in the present case, no woman have been included in the impugned notification dated 31.03.2021 issued by the Secretary (Minority Affairs), Government of Manipur, appointing the members of the 7th Waqf Board, Manipur w.e.f. 1st April, 2021.It has been submitted that the word 'Shall' used by the Legislature in the second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995, clearly connotes the mandatory nature of the aforesaid provisions without any exception and as such, the constitution of the 7th Waqf Board without at least two women members deserves to be quashed and set aside as null and void. In support of his contentions, the learned counsel relied on the judgment dated 30.06.2021 WP(C) No. 737 of 2021 Page 4 passed by the Hon'ble Supreme Court in WP(C) No. 554 of 2021 and WP(C) No. 539 of 2021, wherein, it has been held at Para 10.4 as under:-
"10.4. Therefore, to construe the word "Shall" as "may" and as directory/discretionary, the very object and purpose of the Act will be defeated. The world "Shall" used twice in Section 12 significantly imposes a duty cast upon the National Authority to issue guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life as also assistance on account of damage to houses and for restoration of means of livelihood. Nothing is on record that any guidelines/decision has been taken by the National Authority recommending guidelines for the minimum standards of relief in the form of ex gratia assistance on account of loss of life of a person who has died due to Covid-19. At this stage, it is required to be noted and it is not in dispute and cannot be disputed that Covid-19 pandemic is a disaster within the meaning of Section 2(d) of DMA 2005. Not only that even in the letter dated 14.03.2020, the Central Government has declared Covid-19 pandemic as "notified disaster". Even, all other steps including the guidelines and SOPs are issued under the provisions of DMA 2005. Therefore, once the Covid-19 pandemic is declared as "notified disaster"/national disaster, even otherwise the same can be disaster within the meaning of Section 2 (d) of DMA 2005, the provisions of Section 12 of DMA 2005 shall be applicable and it has to be applied to the Covid-19 pandemic which is declared as "notified disaster"/national disaster. The submission on behalf of the Union of India that considering the peculiar nature of the Covid-19 pandemic, even if Covid-19 pandemic is declared and/or considered as a disaster, Section 12 of DMA 2005 may not be applicable and/or the word "shall" should be construed as "may"
as when DMA 2005 was enacted, the legislature might not have visualised that such a pandemic/disaster would occur which would have a long-time effect/impact.The aforesaid cannot be accepted for the simple reason that every disaster as defined under Section 2(d) of the Act is a disaster and once it is declared as a "notified disaster"/national disaster/disaster, Section 12 of DMA 2005 shall be applicable and is mandatorily to be complied with, with respect to any disaster, within the meaning of Section 2(d) of DMA 2005.
As observed hereinabove, nothing is on record that any decision/guidelines has/have been issued by the National Authority for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for minimum standards of relief to be provided to the persons affected by the disaster/Covid-19 pandemic. Once, it is observed as above and it is held that the word "Shall" have to be read as "shall" and it is the mandatory statutory duty cast upon the National Authority to recommend guidelines for the minimum standards of relief which WP(C) No. 737 of 2021 Page 5 shall include ex gratia assistance on account of loss of life, not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section 12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005."
[5] With regard to the stands taken by the State respondents that as no applications were received from any women applicants despite wide spread notification, no woman member could be nominated and that in the earlier constitution of Waqf Board also, there were no woman members and therefore, the present constitution of 7th Waqf Board cannot be vitiated on this ground, it has been submitted by Mr.Anjan Prasad Sahu that such stands are not tenable for the simple reason that the illegal constitution of the earlier Waqf Board cannot form legal premise to enable the State respondents to repeat or to perpetuate such illegal acts, nor could it be legalised. In support of his contentions, the learned counsel relied on the judgment rendered by the Hon'ble Apex Court in the case of "Sarup Singh Vs. Union of India" reported in (2011) 11 SCC 198, wherein, it has been held at Para 30 as under:-
"30. In the State of Bihar v. Kameshwar Prasad Singh this Court held thus: (SCC pp. 111-13, paras 30-31) "30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. ..... Benefits extended to some WP(C) No. 737 of 2021 Page 6 persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed (Gursharan Singh case*): (SCC p. 465, para 9) '9. ..... Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.' Again in Jaipur Development Authority V. Daulat Mal Jain this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding: (SCC pp. 51-52, para 28) '28. .... Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents.' "31. In the State of Haryana V. Ram Kumar Mann this Court observed: (SCC p. 322, para 3) '3. .... The doctrine of discrimination is founded upon the existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e. benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Article 14 for reinstatement? The answer is obviously 'No'. In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for WP(C) No. 737 of 2021 Page 7 enforcement of the same order. As stated earlier, his right must be founded upon an enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."
[6] The second ground raised by the learned counsel appearing for the petitioners is that declaring the respondent No. 5 as duly elected Chairman of the 7th Waqf Board, Manipur as notified under the impugned notification dated 09.04.2021 issued by the Government is illegal inasmuch as no election was held for election of the Chairman of the 7th Waqf Board in terms of the relevant provisions of the Acts and Rules.
In this connection, it has been submitted that under Sub- Section (8) of Section 14 of the Waqf Act, 1995, it is provided that whenever the Board is constituted or re-constituted, the members of the Board present at the meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. It has accordingly been submitted that election of the Chairman is mandatory and no other means can be adopted for appointing the Chairman. In the present case, no election has been held for appointing the Chairman. Accordingly, the impugned notification dated 09.04.2021 declaring the respondent No. 5 as duly elected Chairman of 7th Waqf Board, Manipur, is not sustainable in the eye of law and it deserves to be quashed and set aside.
[7] It has further been submitted by the learned counsel for the petitioners that Sub-Section (9) of Section 14 of the Waqf Act, 1995 provides that the members of the Board shall be appointed by the State WP(C) No. 737 of 2021 Page 8 Government by notification in the Official Gazette and that in the present case, the order appointing the members of the 7th Waqf Board, Manipur, was notified in the Official Gazette on 08.04.2021, thereby effectively appointing them as members of the said Board w.e.f. 08.04.2021 as provided under Section 14 (9) of the Waqf Act, 1995.However, even before the appointment of the members of the 7th Waqf Board, Manipur, the Government of Manipur issued the impugned notification dated 03.04.2021 for convening a meeting on 09.04.2021 at 4:30 pm in the office of the Secretary (Minority Affairs), Government of Manipur, for constitution of the 7th Waqf Board and for election of Chairperson of the Board, which according to the learned counsel is not permissible. The learned counsel also submitted that the said meeting for the constitution of the 7th Waqf Board and for election of the Chairman which was notified to be held at the office of the Secretary (Minority Affairs), Government of Manipur, was held at the office of the Chief Minister's Secretariat and unanimously elected the respondent No. 5 as Chairman of the 7th Waqf Board without following due process of election. It has accordingly been submitted that the appointment of the respondent No. 5 as Chairman of the 7th Waqf Board is illegal and deserves to be quashed and set aside. In support of his contentions, the learned counsel for the petitioners relied on the judgment of the Hon'ble Supreme Court in the case of "Central Coalfields Limited Vs. SLL-SML WP(C) No. 737 of 2021 Page 9 (Joint Venture Consortium)" reported in (2016) 8 SCC 622 wherein, it has been held in Para 52 as under:-
"52. There is a wholesome principle that the courts have been following for a very long time and which was articulated in Nazir Ahmad V. King Emperor, namely: (SCCOnLine PC) ".... where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmad that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above."
[8] In connection with the first ground raised on behalf of the petitioners, it has been submitted by Mr. Lenin Hijam, learned Addl. AG, appearing for the respondents No. 1 & 2 that Section 14 (1) of the Waqf Act, 1995, provides two different modes for appointment of different categories of members of the Waqf Board, i.e., one mode by election and other mode by nomination. In respect of the different categories of members as mentioned under Section 14 (1) (b) (i) to (iv) of the Waqf Act, 1995, they are chosen by election from amongst the candidate having the requisite qualification prescribed therein and in respect of the different categories of members as mentioned in Section 14 (1) (c), (d) & (e) of the said Act, they are to be WP(C) No. 737 of 2021 Page 10 nominated by the State Government from amongst the eligible persons having the requisite qualifications prescribed therein. [9] It has further been submitted by the learned Addl. AG that an overriding provision has been provided under Sub-Section (3) of Section 14 of the Waqf Act, 1995, which reads as under:
"(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."
[10] In the present case, the State Government appointed the different categories of members of the Waqf Board as mentioned in Section 14 (1)
(b) (i) to (iii) of the Waqf Act by exercising the overriding power under Sub- Section 3 of Section 14 of the Waqf Act, 1995 and the member mentioned in Section 14 (1) (b) (iv) of the said Act had been appointed after holding an election by following due process of election as provided under the Manipur Waqf Board (Conduct of Election) Rules, 1997.
[11] It has also been submitted by Mr. Lenin Hijam, learned Addl. AG that despite wide spread publication of notification in leading newspapers and electronic medias, inviting applications from all interested qualified persons, both men and woman, for the different categories of membership of the Waqf Board prescribed under Section 14 of the Act, no applications were received from any women for any of the prescribed categories of membership and that there is no woman Officer of the State Government WP(C) No. 737 of 2021 Page 11 not below the rank of Joint Secretary who can be nominated as a member of the Waqf Board under Section 14 (1) (e) of the Waqf Act, 1995. In view of the above, the State Government cannot nominate any woman as member of the 7th Waqf Board. The learned Addl. AG further submitted that having earlier faced with such similar difficulties, the State Government could not nominate any woman as member of the Waqf Board constituted earlier and that the constituted 7th Waqf Board cannot be interfered with, only on the ground of non-inclusion of any woman member especially, keeping in view, the peculiar facts and circumstances of the present case. [12] In connection with the second ground raised on behalf of the petitioners, it has been submitted by Mr. Lenin Hijam, learned Addl. AG that under Sub-Section 8 of Section 14 of the Waqf Act, 1995, it is provided that whenever the Board is constituted or re-constituted, the member of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. It has also been submitted that except for the aforesaid provisions of law for election of Chairperson of the Board, there is no other provisions prescribed under the Act or the Rules laying down the method or procedure for election of the Chairperson of the Board.
[13] It has been submitted that after completion of the process for election and nomination of the different categories of member of the Waqf Board, the Secretary (Minority Affairs), Government of Manipur, issued a WP(C) No. 737 of 2021 Page 12 notification dated 31.03.2021 appointing altogether 10 (ten) persons, who are the respondents No. 3 to 12 in the present writ petition, as members of the 7th Waqf Board, Manipur w.e.f. 1st April, 2021 against the category indicated alongside their respective names. Thereafter, the Secretary (Minority Affairs), Government of Manipur, issued another notification dated 03.04.2021 for convening a meeting on 09.04.2021 at 4.30 pm in the office of the Secretary (Minority Affairs), Government of Manipur, for constitution of the 7th Waqf Board and for election of Chairpersons of the Board as provided under Section 14 (8) of the Waqf Act, 1995. Subsequently, the Secretary (Minority Affairs), Government of Manipur, notified the aforesaid notification dated 31.03.2021 in the Manipur Gazette on 08.04.2021 in terms of Section 14 (9) of the Waqf Act, 1995. It has been submitted by the learned Addl. AG that even though the notification dated 31.03.2021 appointing the members of the Waqf Board was published or notified in the Official Gazette only on 08.04.2021, the effect of their appointment was w.e.f. 01.04.2021 as clearly mentioned in the said notification and accordingly, the appointment of the members of the 7th Waqf Board was w.e.f. 1st April, 2021 and not from 08.04.2021 as erroneously submitted by the learned counsel appearing for the petitioners and that there is no irregularity or illegality in issuing the notification dated 03.04.2021 for convening the meeting for election of the Chairperson of the 7 th Waqf Board.
WP(C) No. 737 of 2021 Page 13 [14] The learned Addl. AG submitted that the first meeting of the 7th Waqf Board was held on 09.04.2021 at 4.30 pm in the office chamber of the Secretary (Minority Affairs), Government of Manipur, as notified earlier and in the said meeting the respondent No. 5 was unanimously elected as the Chairman of the 7th Waqf Board, Manipur and that such election of the Chairman had been done in compliance with the provisions of Section 14 (8) of the Waqf Act, 1995. The learned Addl. AG accordingly submitted that there is no merit or substance in the grounds advanced by the counsel for the petitioners and the present writ petition deserves to be dismissed as being devoid of merit.
[15] Mr. HS. Paonam, learned senior counsel appearing for some of the private respondents endorse the submissions made by the learned Addl. AG, Manipur and additionally, the learned senior counsel submitted that the provisions under second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995 are not mandatory but directory in nature and non- compliance of which, particularly in view of the facts and circumstances of the present case, cannot vitiate or nullified the constitution of the 7 th Waqf Board, Manipur. In this regard, the learned senior counsel submitted that the fact that the statute used the word "shall" while laying down the duty is not conclusive on the question whether it is a mandatory or directory provisions. It has been submitted that the question whether a particular provisions of a statute, even if it uses the word "shall" as in the present WP(C) No. 737 of 2021 Page 14 case, is either mandatory or merely directory depends upon the facts of its case and for that purpose, the object of the statute in making the provisions is the determining factor.
[16] The learned senior counsel submitted that under Section 22 of the Waqf Act, 1995, an overriding or saving provisions is provided to the effect that no Act or proceeding of the Board shall be invalid by reason only on the existence of any vacancy amongst its members or any defect in the constitution thereof. By referring to the provisions of Section 22 of the Waqf Act, it has been submitted by the learned senior counsel that the constitution of the 7th Waqf Board cannot be said to be vitiated or nullified merely because of the defect for non inclusion of two women members in the constitution of the said Board as provided under the second proviso to Sub-Section (1 A) of Section 14 of the said Act, in view of the overriding or saving provisions of Section 22, meaning thereby that the said second proviso to Sub-Section (1A) of Section 14 is not mandatory but merely directory in nature. In this context, the learned senior counsel relied on the following judgments of the Hon'ble Supreme Court:-
(1) AIR 1965 SC 895 "RazaBuland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur"
"8. The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the word "shall" as in the present case - is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor.The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience WP(C) No. 737 of 2021 Page 15 or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."
(2) AIR 1961 SC 849 "Banwarilal Agarwalla Vs. State of Bihar &Ors:
"6. It was undisputed before us that when the Regulations were framed, no Board as required under Section 12 had been constituted, and so, necessarily there had been no reference to any Board as required under Section 59. The question raised is whether the omission to make such a reference makes the rules invalid. As has been recognised again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity or only directory, i.e., a direction the non-observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions that non- observance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same. In the present case we have to determine therefore on a consideration of all these matters whether the legislature intended that the provisions as regards the reference to the Mines Board could be contravened only on pain of invalidity of the regulation."
"17. In Srivastava case this Court quoted with approval the following observations of the Privy Council in Montreal Street Railway Company V. Normandin:
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
(3) (1976) 2SCC 895 "State of Mysore Vs. V.K. Kangan:
WP(C) No. 737 of 2021 Page 16 "10. In determining the question whether a provision is mandatory or directory, one must look into the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law-maker. And that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other. We see no reason why the rule should receive a permissible interpretation instead of a pre-emptory construction. As we said, the rule was enacted for the purpose of enabling the Deputy Commissioner (Land Acquisition Collector) to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the Government to make the proper decision. In Lonappan v. Sub- Collector of Palghat the Kerala High Court took the view that the requirement of the rule regarding the giving of notice to the department concerned was mandatory. The view of the Madras High Court in K.V. Krishna Iyer v. State of Madras is also much the same." [17] Alternatively, it has also been submitted by Mr. HS. Paonam, learned senior counsel that even if the provisions under second proviso to Sub- Section (1 A) of Section 14 of the Waqf Act are assumed to be mandatory, non-compliance thereof cannot vitiate the constitution of the 7th Waqf Board particularly in view of the fact that when the Government has widely notified calling for the applications from eligible candidates, including both men and women, for appointment as member of the 7th Waqf Board and expressed its inability to appoint any women as member of the 7th Waqf Board due to non availability or for want of qualified and eligible women candidates and when such action of the State Government has not been challenged or questioned by anyone including the present petitioners, on the ground that qualified and eligible women candidates have applied in terms of the WP(C) No. 737 of 2021 Page 17 notification issued by the Government and that their cases have not been considered by the Government, it can be reasonably inferred that the right and entitlement conferred upon women candidates by the second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995 has been waived and accordingly, the constitution of the 7th Waqf Board, Manipur cannot be said to be vitiated or nullified for non inclusion of women members in the said Board. In support of his contentions, the learned senior counsel relied on the judgments of the Hon'ble Apex Court rendered in the case of "Dhirendra Nath Goari & Ors. Vs. Sudhir Chandra Ghosh &Ors."reported in AIR 1964 SC 1300 wherein the Hon'ble Apex Court has held in Para 7 as under:
"7. Even then, the question arises whether an act done in breach of the mandatory provision is per force a nullity. In Ashutosh Sikdar V. Behari Lal Kirtania Mookerjee, J., after referring to Macnamara on 'Nullity and Irregularities', observed:
"... no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated."
Whether a provision falls under one category or the other is not easy of discernment, but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes v. Russell which reads:
"It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity."
WP(C) No. 737 of 2021 Page 18 A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book 'On the Interpretation of Statutes', 11thEdn., at p. 375, describes the rule thus:
"Another maxim which sanctions the non observance of a statutory provision is that cullibetlicetrenuntiarejuri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public or public policy."
The same rule is restated in 'Craies on Statute Law', 6thEdn., at p. 269, thus:
"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the courts."
The Judicial Committee in AL. AR. VellayanChettiar V. Government of Madraspointed out that there was no inconsistency between the propositions that the provisions of Section 80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. In that case the Judicial Committee held that Section 80 of the Code of Civil Procedure was explicit and mandatory; but still it held that it could be waived by the authority for whose benefit that was provided. This aspect of the law in the context of Section 35 of the Act was considered by a Division Bench of the Calcutta High Court in Gaya Prosad v. Seth Dhanrupwal Bhandari. Dealing with this argument, P.N. Mookerjee, J., speaking for the court, observed:
"It is true that Section 35 of the Bengal Money-lenders act casts a duty upon the court but such duty is solely for the benefit the private benefit of the judgment-debtor. It is, therefore, open to him to waive this benefit, or, in other words, to waive his objection of non-observance of that statutory provision by the court...
Guha and Banerjee, JJ., expressed much to the same effect in Maniruddin Ahmed v. Umaprasanna thus, at p. 30:
"The Bengal Moneylanders Act, 1940 enacted for the purpose of making better provision for the control of money- lenders and for the regulation and control of money-lending, has certainly a public policy behind it. But some of its provisions, and WP(C) No. 737 of 2021 Page 19 Section 35 one of them, are intended for the benefit of the individual judgment-debtors and have no public policy behind them. Such provision may be waived by the person for whose benefit the same were enacted."
A Division Bench of the Patna High Court in SheoDayalNarain V. MusammatMotiKuer, speaking through Meredith, J., In the context of the provisions of Section 13 of the Bihar Moneylenders (Regulation of Transactions) Act, 1939, which are parimateria with the provisions of Section 35 of the Bengal Money-Lenders Act, 1940, rejected the contention that a sale held in contravention thereof was a nullity in the following words "Illegal the sale may have been, in the limited sense that it was held in a manner at variance with a mandatory statutory provision. That provision, however, has no reference at all to the jurisdiction of the Court. It affords no foundation for the contention that the sale was one which the Court concerned had no power at all to hold."
Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiciton to sell the property. We have assumed that Section 35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interest of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under Section 35 of the Act; for instance, if the part of the property carved out by the court for sale is separated from the rest of his property, the value of the remaining property may be injuriously affected by the said carving out, in which case the judgment-debtor may prefer to have his entire property sold so that he may realize the real value of the property and pay part of the sale price towards the decretal amount. He cannot obviously be compelled to submit to the sale of a part of the property to his disadvantage. A provision intended for his benefit cannot be construed in such a way as to work to his detriment. But it is said that the proviso to Section 35 of the Act indicates a contrary intention. Under that proviso, "if the highest amount bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the WP(C) No. 737 of 2021 Page 20 decree-holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest bid and the price so specified". This is only an option given to the decree-holder: he may exercise this option, if he does not like to go through the entire sale proceedings over again. In one contingency this proviso also works for the benefit of the judgment-debtor, for he will be relieved of part of his indebtedness. But anyhow this does not show that the main provision is not intended for the benefit of the judgment-debtor. We are, therefore, satisfied, on a true construction of Section 35 of the Act, that it is intended only for the benefit of the judgment-debtor and, therefore, he can waive the right conferred on him under Section 35 of the Act." [18] After hearing the rival submissions of the parties and keeping in view the undisputed facts, the first point to be decided by this Court is as to whether the provisions under second proviso to Sub-Section (1A) of Section 14 of the Waqf Act, 1995 are mandatory or directory in nature or whether non-compliance with the said provisions will or will not vitiate or nullify the constitution of the said 7th Waqf Board, Manipur. For deciding this point, besides the various judgment of the Hon'ble Apex Court relied on hereinabove by the parties, this Court can also gainfully refer to the judgments of the Hon'ble Apex Court in the case of "Sharif-Ud-din Vs. Abdul Gani Lone" reported in (1980) 1 SCC 403 wherein, it has been held that the difference between a mandatory provision and directory provision is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the provision has been enacted and that the fact that statute usage the word "shall" while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision.It has been held by the Hon'ble Apex Court that in order to find out the true character of the WP(C) No. 737 of 2021 Page 21 legislation, the Court has to ascertain the object which the provision of law in question has to sub-serve and its design and the context in which it is enacted and if the object of the law is to be defeated by non-compliance with it, it has to be regarded as mandatory but when a provision of law relates to the performance of any public duty and in validation of any act done in this regard of that provision causes serious general inconvenience or injustice to those persons who have no control over the performance of the duty and at the same time would not promote the main object of the Act, such provision should be treated as a directory one. Para. 9 of the judgment is as under:-
"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus:
The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non- compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where, however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in purusuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to WP(C) No. 737 of 2021 Page 22 rectify the error later on, another rule would be contravened. Whenever a statue prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
[19] In the case of "Mohan Singh Vs. International Airport Authority of India"reported in (1997) 9 SCC 132, the Hon'ble Apex Court while dealing with the intention of the legislature to use the word "may" or "shall" observed in Para 17 as under:-
"17. The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word 'shall' or 'may' depends on conferment of power. In the present context, 'may' does not always mean may. May is a must for enabling compliance with provisions but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In Craies on Statute Law (7th Edn.) it is stated that the court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that the legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word 'shall' is not always decisive. Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid down in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve. In Sutherland's Statutory Construction (3rd Edn.), Vol. 1 at p. 81 in Para 316, it is stated that WP(C) No. 737 of 2021 Page 23 although the problem of mandatory and directory legislation is a hazard to all governmental activity, it is their peculiar hazardous to administrative agencies because the validity of their action depends upon exercise of authority in accordance with their charter of existence--the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative action. But if the language of the statute is directory only, the variation from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the delegation. In Crawford on the Construction of Statutes at p. 516, it is stated that:
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other."
[20] In the present case, it is an undisputed factand on record that the State Government widely circulated the notifications inviting applications from interested qualified Muslim, both men and women, for various categories of member of the 7th Waqf Board and that no qualified and eligible Muslim women responded to any of the said notifications. The stand of the State Government is that as no qualified and eligible women were available, it was unable to include two women members in the constitution of the 7th Waqf Board. It is also not the case of the petitioners that qualified and eligible Muslim women responded to the notifications issued by the Government and that despite availability of qualified and eligible women candidates, the State Government ignored their case in violation of the provisions of the second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995. On examination of the various provisions WP(C) No. 737 of 2021 Page 24 of the Waqf Act, 1995, this Court did not find any penal provisions or consequential effect in case of violation of the provisions of the second proviso to Sub-Section (1 A) of Section 14 of the said Act. Even though the second proviso to Sub-Section (1 A) of Section 14 of the said Act provides for appointment of at least two women as members of the Waqf Board, the State Government was unable to carry out the mandate of the said provisions due to non availability of eligible and qualified women candidate and in view of that, this Court cannot held that the right and entitlement of women candidate, as provided under the said second proviso to Sub- Section (1 A) of Section 14, have been infringed or violated. If this Court is to held that non compliance of the said provisions vitiates the constitution of the 7th Waqf Board, particularly in the facts and circumstances of the present case, it will defeat the very purpose and objective for constitution of the Waqf Board and would not promote the main object of the Waqf Act, 1995 and cause serious inconvenience and prejudice to those people for whose benefits the Act has been enacted and who have no controlled over the performance of the duty cast by the provisions under second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995. Moreover, in view of the overriding or saving provisions provided under Section 22 of the Waqf Act, 1995, this Court cannot also invalidate the proceedings of the Board or set aside the constitution of the 7th Waqf Board for the defect in the constitution of the said Board. For the foregoing reasons, this Court cannot WP(C) No. 737 of 2021 Page 25 held that non inclusion of at least two women members in the constitution of the 7th Waqf has vitiated or nullified the constitution of the said Board. [21] In respect of the second ground raised on behalf of the petitioners with regard to election of the Chairman of the 7th Waqf Board, this Court is of the considered view that except for the provisions under Sub-Section (8) of Section 14 of the Waqf Act, 1995, wherein, it is provided that whenever the Board is constituted or re-constituted, the members of the Board present at the meeting convened for the purpose shall elect one from amongst themselves as a Chairperson of the Board, there is no other specific provisions under the Act or Rules relating to the mode of election of the Chairperson of the Board.
In the present case, this Court finds that after constitution of the 7th Waqf Board w.e.f. 1st April, 2021 by issuing the notification dated 31.03.2021 and publishing the same in the Official Gazette as mandated under Sub-Section (9) of Section 14 of the said Act, the competent authority issued the notification dated 03.04.2021 for convening a meeting on 09.04.2021 at 4.30 pm in the office of the Secretary (Minority Affairs), Government of Manipur, for constitution of the 7th Waqf Board and for election of Chairperson of the Board.Pursuant to the said notification, the meeting was held in the office chamber of the Secretary (Minority Affairs), Government of Manipur, on the scheduled date and timeand in the said meeting only one nomination was filed by the private respondent No. 5 for WP(C) No. 737 of 2021 Page 26 election as the Chairman of the Board and all the members present in the said meeting unanimously elected the respondent No. 5 as Chairman of the 7th Waqf Board, Manipur.
I have perused and examined the proceedings of the said meeting as well as the relevant documents which has been enclosed in the counter affidavit filed by the respondent No. 1 & 2 and this Court find no reason or ground for doubting the election of the respondent No. 5 as Chairman of the 7th Waqf Board in compliance with the provisions of Sub- Section 8 of Section 14 of the Waqf Act, 1995. In view of the above, this Court cannot accept the contentions advanced by the counsel appearing for the petitioners that the election of the Chairman of the 7th Waqf Board is illegal and that no election has been held.
In the result, the writ petition fails and accordingly, the same is hereby dismissed, however, without costs.
JUDGE
FR/NFR
Lhaineichong
WP(C) No. 737 of 2021 Page 27