CFOOOiJ15iJ88'8"""" ^' IN THEH1GH COURT OF JUDICAtURE AT CHHATTISGARH - BtLASPUR WJ>.No.: Q^ /1004 PETITIOB R : BADRUDDINQURAISHY, S/o; Late Nizamuddm Quraishy, Aged56 years, Ex M.L.A., Bhilai Constituency - Govt. QfChhattisgarh & PRESIDENT - Haj Committee - Chhattisgash R/o. Bungalov^ mo; 6 - 32 Bungalows, Bhilai, Distt.: Durg (Chliattisgarh) Versus •QNDENTS: ^illte... STATE OF GHHATTISGARH Represented by Special gecretary Adim-lati & Amisuchitffati ViMiag Mantralaya, Dau Kalyan Singh Bhawan - Raipur (Chliattisgarh) INDEX frf«/ HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR (Division Bench) CORAM : Hon'ble Shri A.K. Patnaik, CJ & Hon'ble Shri V.K. Shrivastava, J. WRIT PETITION N0.640 OF 2004 Badruddin Quraishy Versus State of Chhattisgarh Present: Petitioner by Dr. N.K. Shukla, Sr. Adv. with Miss Ritu Mishra, Advocate. Respondent by Mr. Prashant Mishra, Addl. A.G. O RDE R (29m of March 2005) The following Order ofthe Court was passed by A.K. Patnaik, CJ: - The petitioner was a member of the Stat® Legislative Assembly of the State of Chhattisgarh from Bhilai Constituency. He belongs to the National Congress Party. By a Notification dated 15/09/2003 jssued under Section 18 of the Haj Committee Act, 2002 (hereinafter retefred to as 'the Act), the State Government nominated the petitioner as a member of the State Haj Committee. In the general election of 2003, the petitioner contested but was not elected as a member of the State Legislative Assembly of Chhattisgarh from Bhilai Constituency and as a consequence he ceased to be a Member of the State Legislative Assembly of the State of ChhatUsgarh. By an order dated 11.02.2004 of fte State Government, the petitioner was removed as a member of the State Haj Committee. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India praying for quashing the said order dated 11.02.2004 of the State Government. 2. tn the retum filed by the respondent, the Stete of ChhatUsgarh has taken a stand that the petitioner was nominated under Section 18 (1) (i) of the Act as a Member of the State Haj Committee by virtue of his being a Member of the State Legislat'ive Assembly of the State of Chhattisgarh and since he ceased to be a Member of the State Legislative Assembly of the <^ State of Chhattisgarh, he was removed as a member of the Stats Haj Committee. 3. Dr. N.K. Shukla, Sr. Advocate appearing for the petitioner submitted that although the petitioner was nominated by the State Govemment as a member of the State Haj CommNtee under Section 18(l)@ of th®Act by virtue of his being a member of the Stat®Legislativs Assembly, there is no provision in the Act for removal of a member of the State Haj Committee on his ceasing to bea memberofthe State Legislative Assembly. tn this context he referred to the provisions of SecUon 25 of the Act to show that there is nothing in thesaid provlsion providing for removal of a member of the State Haj Committee on his ceasing to be a Member of the State Legislative Assembly. Dr. Shukla pointed out that Section 4(i) of <he Act provides for nomination of a member of Pariiament as a member of the Haj Committee of India and the proviso to the said Section 4(i) of the Act provides Uiat a member of Pariiament shall upon ceasing to be a member cease to be a member of Haj Committee of tndia. Dr. Shukla submitted that a similar proviso has not been made in Section 18 ofthe Act providing that a member of the State Legislative Assembly who has been nominated to ttie State Haj Committee will cease to be a member of the State Haj Committ^ on his ceasing to be a member of the State Legislative Assembly. He submitted that Section 20 of tfte Act provides that the term of the member of the State Haj Committee would be 3 years and hence the petitioner could not have been removed before Uie expiry of 3 years. 4. Mr. Prashant Mishra, teamed Additional Advocate General for the State of Chhattisgarh, on the other hand, submiBed that a plain reading of Section 18(1) of the Act would show that a member of the State LegistaUve Assembly is nominated by the State Government as a member of the State Haj Committee by virtue of his being a member of the State Legislative Assembly and ttierefore, when a member of the Stete Haj Committee ceases to be a member of the State Legislative Assembly he also ceases to be a member of the State Haj Committee. He hirther submitted that although there is no express provision in the Act like the proviso to Section 4(i) of the Act providing that a member of the State Legislative Assembly who has been nominated as a member of the State Haj Committee will cease to be a member of the State Haj Committee whenever he ceases to be a member ofthe State Legislative Assembly, this ^ is an inadvertent omission by the Legistature and this omission can be supptied by the Court following ttis principle of 'casus omissus' . In support of his submission he cited a decision of the Supreme Court in Union of India vs Rajiv Kumar reported in (2003) 6 SCC 516. 5. Para 23 of the decision of the Supreme Court in Union of India vs Rajiv Kumar (supra) on which reliance is placed by Mr. Mishra is quoted herein below: "Two principles of construction - one relating to casus omissus and the other in regard to reading the statute / statutory provision as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court exceptinthecaseofclearnecessityandwhen reason for it is found in the four comers of the statute itself. But, at the same time a casus omissus should not be readily inferred and for that purpose alt the parts of a statute or section must be construed together and every clause of a section should be constmed with reference to the context and ottier clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This woukl be more so if literal construction of a partrcular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. 'An intention to produce an unreasonable result', said Danckwerts, L.J. in Artemiou v. Pnxopiou (All ER p. 544 I), 'is not to be imputed to a statute if there is some other construction available'. Where to apply words literally would 'defeat the obvious intention of the legislation and produce a wholly unreasonable resulf w& must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction. per Lord Reid in Luke v. IRC where AC at p. 577 (All ER p. 664 I) he also observed: 'Thls is not a new problem, though our standard of drafting is such that it rarely emerges.']" It would be clear from the principles laid down by the Supreme Court in the aforesaid decision that the casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found h the four corners of the statute itself. In the aforesakl deciston the Supreme Court has furttier explained that :<>• casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together. In para 19 of the judgment, on the other hand, the Supreme Court has held that the intenUon <rf the Legislature enacting the Act must be gathered primarily from the language used in the Act and that addition of words in the Act is to be avoided by the courls. The said para 19 of the judgment ofthe Supreme Court is quoted herein below: "19. Words and phrases are symbols that sUmulate mental references to referents. The object of interpreting a statute or any statutory provision is to ascertain the intention of the legislature or the authority enacting it. (See Insfftute of Chattefed Accountants of IncKa v. Price Waterhouse). The intention of the maker is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addffion or substitution of words or which resutts in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner, courts cannot aid the legislature's defective phrasing of an Act; they cannot add or mend, and by construction make up deficiencies which are left there. (Also see Stete o1 Gujarat v. Dilipbhal Nathjibhai Patel). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Sfock v. Frank Jones (Tipton) LhS.] Rules <rf interpretation do not permit courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitted to read words Into an Act of Pariiament unless clear reason for it is to be found within the four comere of the Act itseff. (Per Lord Lorebum, L.C.in Vickers Sons and Maxim LU. v. Evans, quoted in Jumma Masjid v. Kodimaniancira Deviah)." 6. Bearing in mind the aforesaid principles taid down by the Supreme Court vw'th regard to the interpretation of statutes, we may now examine the provisions of tha Act. The retovant porb'ons of SecUons 4, 18 and Uie provistons of SecUons 20, 23, 24, 25 and 26 of the Act are extracted herein betow: CHAPTER-11 Hal Committee of India. "4. The Committee shall consist of the following members, namely:- 0) three members of Pariiament of whom two are to be nominated by the Speaker of the House of the People from among "rts Muslim members, and one by the Chairman of the Council of the States from among its Muslim members: Provided that a member of Partiament shall, upon ceasing to be a member, cease to be a member of the Committee and the Speaker of Ure hfouse of the People or the Chairman of the Council of States, as the case may be, shall make afresh nominafion, upon request by the Central Govemment. CHAPTER III State Haj Committees 18. (/) A State committee shall consist of sbcteen members, to be nominated bytheState Government, namely:- (O three membere from the Muslim membere of- (a) Parliament representing the State; (b) State Legislative Assembly; and (c) Legislative Council, where it exisls. 20. (1) The term of office of the members of the State Committee (other than the ex ofRcio members and members filling casual vacancies) shall be threeyeare, commencing on fte day follawingthe publication ofthe list of membere under Section 19. (2) The allowances payable to, and ttie other terms and conditions ofttie Chairperson and members shall be such as may be pr^cribed. c Civ) (V) (VI) (viQ (viii) 23. A person shall be disqualified for being nominated, or for continuing, as a member of the State Committee, W he- (i) is not a citizen of India; (ii) is not a resident of that State; (lii) is not a Musllm, except for an Executive Officer as provided in clause (vl) of sub-section (1) of section 18; is less than twenty-five years of age; is of unsound mind and stands so declared by a competent court; is an undischarged insolvent; has been convteted of an offence which, in the opinion of the State Govemment, invoh^es a moral turpitude; has been on a previous occasion- (a) removed from his office as a member; or (b) removed by an order of a competent authority either for not acting in the interest of the pllgrims or for corrupUon. 24. The Chairperson or any other member may resign his office by writing under his hand addressed to the State Government and it shall be effective from ftie date of such resignation. 25. (1) The State Government may, by noUfication in the Official Gazette, remove the Chairperson of the State Committee or any member thereof, if he- (i) is or becomes subject to any of the disqualifications specified in secUon 23; or refuses to act or is incapable of acting or acts in a manner whteh ttie State government, after hear'ing any explanaUon that he may offer, considers to be prejudicial to the interestsof the State Committee or the interest ofthe pilgrims; or fails, in the opinion of the State Committee, to attend three consecutive meetings of the State Committee, without sufficient excuse. 00 l^- 26. (1) When the seat of a member becomes vacant by his removal, resignation, death or otherwise, a new member shall be nominated in his place and such member shall hold office so long as the member whose place he fills would have been entiUed to hold ofRce if such vacancy had not occurred." 7. It would be clear from the language used in section 4 (i) of the Act that three members of Parliament can be nominated to the Haj Committee of India. Out of these three members of Pariiament, two members are to be nominated by the Speaker of the House of the Peopte from among its Muslim members, and one member is to be nominated by the Chairman of the Council of the State from among its Muslim members. The proviso to section 4 (i) expressly states that a member of Parliament shall upon ceasing to be a member, cease to be a member of the Haj Committee of India and the Speaker of the House of the People or the Chairman of the Council of the State, as the case may be, shall make a fresh nomination upon request by the Central Govemment. A reading of section 18(1) the Act would show that the Uiree members from the Muslim membere of Pariiament representing the State; State Legislative Assembly; and Legislative Council, where ft exists are to be nominated by the State Govemment to the State Haj Committee. But there is no provision whatsoever in section 18(1) similar to proviso to section 4(i) of the Act providing that a member of the State Haj Committee shall cease to be such a member of the State Haj Committee on his ceasing to be a member of Parliament, the State LegislaUve Assembly or Legislative Councit as the case may be. The fact that Pariiament has not made any express provision similar to the proviso to section 4(i) of the Act in section 18(1) of the Act would show that the Legislature never intended to provide that a member of Parliament, a member of State Legislative Assembly or a member of Legislative Council nominated by Uie State Government to be a member of the State Haj Committee shall cease to be a member of the State Haj Committee as soon as he ceased to be a member of Pariiament, State Legislative Assembly or a member of Legislative Council as the case may be. We cannot possibly accept the submission of Mr. Mishra that this was in an inadvertent omission on the part of the Parliament and ttiat this omission should be supplied by e Court by applying the principle of casus omissus. This is because we do not find any provision within the four corners of the Act that a member of Pariiament, the State Legislative Assembly or the Sterte Legislative Council nominated as a member of the State Haj Committee under Section 18(1) of the Act is to cease to be a member of the State Haj Committee on his ceasing to be a member of Pariiament, member of State Legislative Assembly or a member of the Legistath/e Council. There is nothing in section 25 read with section 23 that as soon as a member of Parliament, a member of Legislative Assembly or a member State Legislative Council nominated to the State Haj Committee under section 18 of the Act ceases to be a member of Parliament, member of State Legislative Assembly or a member of State Legislatwe Council is to be removed from the State Haj Committee. 8. Mr. Mishra submitted that secUon 26(1) of the Act provides that when the seat of a member becomes vacant by his removal, resignation, death or otherwise, a new member shall be nominated in his place. He argued that the expression 'otherwise' in section 26(1) would indtcate that a seat of a member of the State Haj Committee can become vacant when a member of the State Haj Committee nominated under section 18(1) of the Act by the State Govemment ceases to be a member of Parliament, member of State Legislative Assembly or a member of the State Legislatwe Council. It is difficult to accept the said submission of Mr. Mishra. Section 26(1) of the Act provides for nomination of a new member of the State Haj Committee when a seat of a member becomes vacant. The question of such nomination of new member would arise only after the seat of a member of the Haj Committee becomes vacant on account of his removal, resignation, death or otherwise. This provision cannot be invoked for making out a case of removal of a member unless such case of removal is provided for in section 25 ofthe Act. 9. Section 20 of the Act provides that the term of ofRce of the members of the State Haj Committee shall be three years commencing on the day following the publication of the list of members under section 19 of the Act. The peUtioner was appointed as a member of the State Haj Committee on 15.09.2003 and his term of three yeare as provided in section 20 of the Act was not complete when the impugned order dated 11/02/2004 was passed. He could be removed before the expiry of the said period of three years only on the grounds mentioned in Section 25 of the Act. ^^ 10. In the result the impugned order dated 11.02.2004 in Annexure P-1 is quashed and the writ petiUon is allowed. Considering the facts and circumstances of the case, the parties shall bear their own costs. Sd/- Chief Justice Judge, Sd/- V.K. Shrivastava Judge E.'ai'ash'