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Lapses on the part of the State under section 14(4) cannot be ground for superseding waqf board: SC

State of Tamil Nadu and Anr. v. Fazlur Rahman and Anr.

Civil Appeal Nos.36033605 of 2020 (arising out of SLP(C)Nos.1029410296 of 2020)

03 November, 2020.

Counsel for the Appellants: Learned Senior Counsel Shri C.S. Vaidhyanathan

Counsel for the Respondents: Learned Senior Counsel Shri Ratnakar Dash, Counsel Shri Mehmood Pracha

The Hon’ble Supreme Court consisting of Justice Ashok Bhushan Justice M.R. Shah and Justice Subhash Reddy held in a case that The obligation on the State Government to constitute the Board in accordance with Section 14 keeping in view the objective under Section 14(4) was both right and duty of the State and any lapse therein cannot be a ground for superseding the Board.

The Tamil Nadu Waqf Board is a statutory body governed by the Waqf Act, 1995. The term of earlier Waqf Board expired on 14.06.2017 and thereafter the State of Tamil Nadu reconstituted Tamil Nadu Waqf Board by order dated 10.10.2017. The Board constituted on 10.10.2017 consisted of 11 Muslim members to the following effect:

Two Senior Muslim Advocates were nominated by the State Government in exercise of power under proviso to Section 14(1)(b)(iii) of the Waqf Act, 1995. One Muslim Member of Parliament, two Muslim Members of State Legislature and two Mutawallis were elected members under Section 14(1)(b). The nomination of two Senior Muslim Advocates was challenged before the High Court by a writ petition which was dismissed upholding the nomination.

The State Government issued a notification dated 18.09.2019 in exercise of power under Section 99(1) of the Waqf Act, 1995 (hereinafter referred to as the “Act, 1995”) superseding the Waqf Board. The State Government was of the opinion that two Senior Advocates who were nominated as members under Section 14(1)(b)(iii) proviso cannot be treated as elected members hence the number of elected members are less than nominated members resultantly the Board is unable to perform its work as per the Waqf Act, 1995.

The period of Waqf Board was further extended by another six months upto 07.09.2020 by order dated 20.05.2020. The process for reconstituting the Waqf Board was initiated by order dated 14.07.2020. Writ Petition No.7661 of 2020 was filed challenging the order dated 14.07.2020. The writ petition was dismissed by a learned Single Judge of the High Court vide its judgment dated 24.07.2020 upholding the process of election initiated by order dated 14.07.2020. Writ Petition No. 8377 of 2020 (Syed Ali Akbar vs. State of Tamil Nadu) was filed questioning the order dated 18.09.2019 superseding the Board as well as order dated 12.05.2020. Syed Ali Akbar was elected member of the Board reconstituted on 10.10.2017 from the constituency of Mutawallis. Syed Ali Akbar filed another Writ Petition No.9557 of 2020 before the Madras High Court praying for issuances of writs fo r quashing the press release dated 09.06.2020 and consequential press release dated 14.07.2020. The respondent, K. Fazlur Rahman filed Writ Petition No.726 of 2020 challenging the Government order dated 18.09.2019 by way of Public Interest Litigation in which writ petition an interim order dated 18.03.2020 was passed by the High Court to the effect that any action taken during the interregnum shall be subject to the result of the writ petition.

All the writ petitions were decided by the High Court by the common judgment dated 17.08.2020. Although, the High Court held that supersession dated 18.09.2019 was not in accordance with law, however, the said order was set aside insofar as the election of two persons Syed Ali Akbar and Dr. Haja K. Majeed alone.

Learned Senior Counsel for the Appellants submitted that (i) the State Government has rightly exercised the power under Section 99 and the Government formed the opinion that the Board is “unable to perform”, hence the supersession was ordered. (ii) The Division Bench committed error in setting aside the notification dated 18.09.2019 partially. There can be no partial setting aside of the supersession order. (iii) The validity of notification dated 15.07.2019 was upheld by the High Court in Writ Petition No.20085 of 2019 by its judgment dated 12.11.2019 which issue had become final. The writ petition proceedings initiated by the respondent is barred by constructive res judicata. (iv) The High Court vide impugned judgment violated the principles of comity of Court as different benches of the High Court had upheld the validity of the notification dated 15.07.2020.

Learned counsel for respondent 1, Shri Ratnakar Dash, submitted that provision of Section 14(4) was not violated since two Senior Advocates who have been nominated under Section 14(1)(b)(iii) proviso should have been declared as elected members in which case numbers of elected members shall not be less than nominated members.

Learned counsel for the respondent 2, Mehmood Pracha, submitted that (i) as per second proviso to Section 99(1) the power of the State Government can be exercised only when there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of this Act. (ii) It is submitted that the grounds given for supersession in the order dated 18.09.2019 are not covered by Section 99(1) especially second proviso.(iii) It is submitted that responsibility to constitute the Board is on the State Government hence it cannot take benefit of its own wrong.

After hearing the parties in length, the Court brought out the scope of the board and the government under section 14 of the Wakf Act, 1995. The court also referred to the judgment of the Madras High Court in M.H.Jawahirullah and Ors, v, Government of Tamil Nadu and Ors. (2013) 3 MLJ 688 and observed the following:

From the facts as noted above, there can be no dispute that at the time when the Board issued show cause notice as well as notification dated 18.09.2019, the number of elected members was less than the number of nominated members. The provision of Section 14(4) which mandates that number of elected members of the Board shall at, all times, be more than the nominated members of the Board is a provision compliance of which has to be ensured by the State which is authorised to constitute the Board. While constituting the Board, the State Government has to be conscious of the fact that the composition of Board shall be such which may fulfill the objectives enshrined in Section 14(4). The State Government when makes nomination of two Senior Advocates under Section 14(1)(b)(iii), the said nomination was bound to have adverse effect on requirement of Section 14(4). While constituting the Board as per Section 14, the State has to keep in mind the principles and objectives as enshrined in Section 14(4) and constitution of Board shall be such as to give effect to the democratic principle which is to guide the Board in its functions. (Para 17)

In the above regard, the court held,

In the facts of the present case, the State Government could have very well complied with objective of Section 14(4) by conducting an election for members under Section 14(1)(b)(iii) by permitting nominated members to continue till the election is held. The State has further option to exercise power under Section 14(3) in event State was satisfied that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in subclauses (i) to (iii) of clause (b) of subsection (1), the State could have then nominated under Section 14(3) which nomination shall have overriding effect on the objective of Section 14(4) since subsection (3) begins with non obstante clause “Notwithstanding anything contained in this section,”. The obligation on the State Government to constitute the Board in accordance with Section 14 keeping in view the objective under Section 14(4) was both right and duty of the State and any lapse therein cannot be a ground for superseding the Board. (Para 23)

Then, the Court brought out the scope of section 99 of the Wakf Act, under which the government has passed the impugned notification and section 22 of the Act that deals with Vacancies.. Placing reliance on proviso 2 to section 99 and the scope of section 22, the Court noted the following:

The second proviso has to be read in conjunction with the main provision. The second proviso contains further restriction on the power of State Government to supersede the Board, i.e., unless there is prima facie evidence. There can be no dispute that prima facie evidence of financial irregularity, misconduct has to be prima facie financial irregularity or misconduct by the Board which is sought to be superseded. The third expression that is “violation” of the provisions of this Act has also to be read in the same manner that is violation of the provisions of this Act by actions of the Board. We, thus, are also of the opinion that in view of the legislative intendment as contained in second provision to Section 99, present was not a case where State could have exercised its power of supersession of the Board. In view of the foregoing discussion, we are satisfied that the High Court did not commit any error in holding supersession as contrary to law. (Para 26)

Answering the submission of Shri Vaidhyanathan that the High Court ought not to have set aside the notification partially insofar as two elected members of the Mutawalli category only. The Court observed the following:

We need not dwell into the question any further since before us there is no further challenge on behalf of the writ petitioners that supersession order ought to have been set aside in toto. It is State which has come in the appeals against the judgment of the High Court which has partially set aside the notification dated 18.09.2019 for Mutawalli category only. The High Court has not interfered with the fresh constitution of the Board by election and nomination of other categories except the category under Section 14(1) (b)(iv). In view of the foregoing discussion, we, thus, upheld the order of the High Court. (Para 27)

Concluding, the Court held:

28. In result, the fresh election of two members in category under Section 14(1)(b)(iv) held in the year 2020 shall become non est and Syed Ali Akbar and Dr. Haja K. Majeed shall continue to occupy their office till their normal tenure of five years from 10.10.2017.

Subsequently, the appeals were dismissed.

Kalidharun K M