IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (PIL) No. 53 of 2010 Sufi Aziz Ur Rehman ….…... Petitioners Versus State of Uttarakhand and others ………. Respondents Mr. T.A. Khan, Advocate for the petitioner. Mr. S.N. Babulkar, Advocate General (State of Uttarakhand) with Mr. J.P. Joshi, Addl. Advocate General / Chief Standing Counsel (State of Uttarakhand) for respondent No. 1. Mr. D. Barthwal, Advocate for respondent No. 2. Mr. L.P. Naithani, Senior Advocate with Mr. D. Barthwal, Advocate for respondent No. 4. Mr. A. Rab, Advocate for respondent No. 6. Date of Judgment: 24.11.2010 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Nirmal Yadav, J. BARIN GHOSH, C.J. (ORAL) In the writ petition, in the form of Public Interest Litigation, challenge was thrown to the composition of the Board of Wakfs for the State of Uttarakhand. It was contended that the Board has been composed contrary to what has been provided in Section 14 of the Wakf Act, 1995 (hereinafter referred to as ‘the Act’). One contention was that the Board as constituted is in breach of Sub-Section (4) of Section 14 of the Act. In terms of Sub-Section (4) of Section 14 of the Act, the number of elected members of the Board shall, at all times, be more than the nominated members of the Board, except as provided under Sub-Section (3). Elected members are those who have been mentioned in Clause (b) of Sub- Section (1) of Section 14 of the Act. Muslim Members of Parliament from the State, Muslim Members of the State Legislature, Muslim Members of the Bar Council of the State and Mutawallis of the Wakfs having an annual income of Rs. 1 lakh and above are those who have been categorized as elected members in Clause (b) of Sub-Section (1) of Section 14 of the Act. Admittedly, there is no existing Muslim Member of Parliament from the State. In such case, second proviso to Sub-Section (2) of Section 14 of the Act applies. In terms thereof, an ex-Muslim Member of Parliament is entitled to constitute the electoral college. 2 However, there is no dispute that there is no ex-Muslim Member of Parliament from the State. In such view of the matter, in place of Muslim Members of Parliament, the State Government, in terms of Sub-Section (3) of Section 14 of the Act, was entitled to nominate others. In exercise of power under Sub-Section (3) of Section 14 of the Act, the State Government has nominated one Asgar Ali, who is not a party to the writ petition, and Mufti Rais Ahmed Kasmi (respondent No. 3), and the said state of affair has been noted in an order of this Court passed earlier in another proceeding. There is no dispute that two Muslim Members of the State Legislature, one Muslim Member of the Bar Council of the State and two Mutawallis of Wakfs having an annual income of Rs. 1 lakh and above have been nominated by the State. In such view of the matter, it must be deemed that the number of elected members are seven. As against that, the State Government has nominated one person representing eminent Muslim organizations. In such view of the matter, it appears to us that there is no substance in the contention contained in the writ petition that the State Government has failed to discharge its obligation of making it possible that the number of elected members of the Board is more than the nominated members of the Board. The challenge thrown to the composition on that score, accordingly, fails. 02. It is the contention of the petitioner that respondent No. 3 could not be nominated, since he is not a resident of the State of Uttarakhand. To support the said contention, petitioner is seeking to rely upon voter-list of a place situated in the State of Uttar Pradesh. As against that, respondent No. 3 has brought on record his own personal voter identity card, wherefrom it appears that Election Commission has accepted respondent No. 3 as a resident of the State of Uttarakhand. Challenge thrown by the petitioner in relation to nomination of respondent No. 3, accordingly, fails. 03. It is the contention of the petitioner that respondent No. 4 could not be nominated, since the State Government itself filed 3 First Information Reports against the said respondent and thereupon, in respect of those First Information Reports, charge sheets were filed and criminal trials 3 were held. The fact remains that the last of those 3 trials was concluded in 2003. Respondent No. 4 was exonerated from the charges levelled against him in each of the said trials. In such view of the matter, it cannot be contended that respondent No. 4 was such a person that he could not be nominated for being appointed as a member of the Wakfs Board. It has further been contended that respondent No. 4 is allegedly in wrongful occupation of a Wakf property. There appears to be no dispute that respondent No. 4 has acknowledged to be in possession of the property in question. However, such possession of respondent No. 4 is quite old, but even upto now, the authorities competent have not taken any action in respect of such possession by taking any measure in accordance with law. In such circumstances, we are of the view that challenge thrown as regards nomination of respondent No. 4 as a member of the Wakfs Board is of no substance. 04. It appears to be the contention of the petitioner that respondent No. 5 could not be nominated, in as much as a First Information Report against the said respondent under the Gangster Act was lodged, whereupon a charge sheet was filed and trial thereon is continuing. The fact remains that the said First Information Report was filed by the State of Uttarakhand. The fact further remains that upon investigation of the matters complained of in the said First Information Report, a charge sheet was filed and the State of Uttarakhand is prosecuting respondent No. 5 in respect of the charges contained therein before the trial court. It is true that Section 16 of the Act makes it abundantly clear that disqualification for being appointment is conviction for an offence involving moral turpitude, and at the same time, it is also true that respondent No. 5 has not yet been convicted and, accordingly, there is no statutory bar on the part of the State Government to nominate respondent No. 5 as a member of the Wakfs Board. However, is it permissible for a reasonable person to prosecute a person on the premise that the person has committed an offence involving moral turpitude, and at the same time, to nominate him as a member of a statutory authority of the State? Does such an action on the part of the State reposes public confidence in the actions of the State? We do not think so. 4 05. The learned counsel, appearing on behalf of respondent No. 5, cited several judgments of the Hon’ble Supreme Court rendered in the case of election matters vis-à-vis disqualification, including the one rendered in the case of Shrikant vs. Vasantrao and others, (2006) 2, SCC 682. We think that the said judgments have no application, in so far as the present case is concerned. By the Representation of the People Act, 1951, a statutory right has been created in favour of citizens to seek election. Such right can be curtailed by expressed terms used in the very Statute granting such right or in some other Statute. In the instant case, respondent No. 5 has no statutory right of being nominated. In terms of the Act, it is the State Government alone who is entitled to nominate. Respondent No. 5 has no right to seek such nomination from the State Government. In the matter of making nomination, while the discretion rests solely in the State, in the matter of discharge of such discretion, the State is required to establish that it has used the same in a manner which is flawless, which appears to have not been done in the instant case in the matter of nomination of respondent No. 5. 06. However, taking note of the fact, as disclosed by respondent No. 5, that the charge sheet in respect of the case pending against him was filed on 8th August 2005 and the trial has not yet been concluded, despite lapse of 5 years, we propose to pass the following order:- I. Henceforth, in the matter of nomination, the State must ensure that it does not nominate a person against whom it itself has taken steps under the criminal jurisprudence; II. the Board, as constituted by the State, shall function henceforth without respondent No. 5 for a period of one year from today; and III. in the event within one year the case pending against respondent No. 5 is not disposed of, he shall be permitted to participate in the proceedings of the Wakfs Board, after expiry of one year from today. 5 07. It is made clear that in the event the case is decided in favour of respondent No. 5 before expiry of one year from today, the said respondent shall be entitled forthwith therefrom to participate in the proceedings of the Wakfs Board, and at the same time, in the event respondent No. 5 is convicted, it shall be deemed that he had not been nominated. 08. This disposes of the writ petition. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) 24.11.2010 24.11.2010 Amit