THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WP Nos.11349 & 11728 of 1996 JUDGMENT: ( per Hon’ble Sri Justice Ghulam Mohammed, J ) 1. These two writ petitions are filed praying this Court to declare provisions of the Wakf Act, 1995 (Central Act 43 of 1995) particularly Section 14 of the Wakf Act, unconstitutional, arbitrary and violative of Articles 14, 25 and 26 of the Constitution. 2. WP No.11349 of 1996 is filed by the Association of AP Sajjada Nasheens, Mutawallies & Khidmat Guzaran of Wakfs, Dargah Hazrath Shaikh-ji-hali, Urdu Shareef, Hyderabad, represented by its President Soofi Shah Mohd. Sabir Ali and WP No.11728 of 1996 is filed by All India Shia Organization, Yakutpura, Hyderabad, represented by its Joint Secretary Mirza Mehdi Ali Baig. Since the relief sought for in these writ petitions is the same, they are taken up together for hearing and are being disposed of by a common judgment. 3. The facts in WP No.11349 of 1996 are adverted to. It is stated that prior to the enactment of the Wakf Act, 1995, the Union Legislature had enacted the Wakf Act,1954 and the provisions of the said Act held the field for the last about half a century in all the States of this country, though the Union Legislature and some of the State Legislatures have been making amendments from time to time to the provisions of the Wakf Act, 1954 according to the exigencies. The very concept of creation and administration of wakf give rise to the concept of the person or persons connected with the administration of the wakf. The said persons may either be appointed by the author of the wakfs or under a statute or by the users of the wakf and such persons are called “Mutawallis” under the Muslim Personal Law. The very purpose of enacting the Act is to provide better administration for wakfs and the matters connected thereto or incidental thereto. 4. It is further stated that the Wakf Act, 1995, provides for the better administration of Wakf and other incidental matters thereto. That while the avowed object of the Act is to democratize the functions of the wakfs and to make the Mutawallis a self-governing body, the provisions of the Wakf Act, 1995, in fact totally denude Mutawallis of the powers and functions and purport to confer powers on a body constituted by persons who are totally unconnected with wakfs or their intents and purposes. That while sub- Clause (b) of sub-Section (1) of Section 14 provides for election of one or two members from the Muslim members of the Parliament, State Legislature, Muslim members of the Bar Council and the Mutawallis of the wakfs having annual income of one lac and above, Sub-clauses (c), (d) and (e) of sub- Section, (1) empower the State Government to nominate certain officers or persons to the Board. That in pursuance of Section 109 Wakf Act, 1995, the Government of Andhra Pradesh framed rules for conducting elections in GO Ms.No.68, dated 27-5-1996 and by subsequent GO Ms.No.74, dated 11-6- 1996, the Government constituted the Wakf Board by conducting elections of the members of the AP Wakf Board under sub-clause (b) of sub-Section (1) of Section 14 of the Wakf Act, 1995, from among members of the Parliament, members of the Legislature, members of the AP Bar Council and Mutawallis of the wakfs in the State, having an annual income of one lac and above. It is further stated that only one member can be elected from among Mutawallis, whereas four members are required to be elected from other denominations. It is stated that the Government is empowered to nominate two persons from each category of persons under Clauses (c) and (d) and also appoint a government official under Clause (e) of sub-Section (1) of Section 14 of the Act. Thus five persons are nominated by the Government and four persons are elected from bodies which have nothing to do with the wakfs. In the result, out of ten or eleven persons which would constitute Wakf Board, nine or ten, members are persons who are not at all connected with wakfs. 5. It is further stated that the Members of the Parliament or the Legislature, or even a member of the Bar Council of the State, even though belonging to Muslim Community, are not elected thereto on account of their being Muslims muchless on account of their having to do anything with the Muslim religious institutions, such as wakfs. It is stated that wakf is essentially an institution which should take care of the affairs of Muslims which are religious, pious and charitable recognized by the Muslim personal law. That in the earlier enactment viz., Wakf Act, 1954, although it conferred powers on the Government to appoint persons to the Wakf Board, criteria was laid down therein to the effect that the persons appointed must be known to have some knowledge, information and interest in the Muslim personal law more particularly the aspects which Islamic law considers pious, religious and charitable. If any person or persons were to be appointed unconnected with such purposes or whose bona-fides relating to Islamic religion were in doubt, the appointment of such persons was liable to be challenged in a Court of law and was liable to be corrected by the process of Judicial Review which was a check on the arbitrary power of the Government. In the impugned Wakf Act,1995 although, the process of selection of members is purported to be by election, the criteria laid down is totally unconnected with the purpose of religion and more particularly the purposes relating to the administration of wakfs. 6. It is further stated that any person, although belonging to Muslim Community, elected to Parliament, or State Legislature or to the State Bar Council cannot avowedly say that he represents Islamic religion and is on account of his devotion to such religion or matters connected with such religion, that he has been elected thereto. The election to the concerned Legislatures or Bar Council of States is for a different purpose under different Legislations which are secular and are absolutely unconnected with the religion. That the constitutional process of holding elections to the legislatures (Central and State ) is to secure a secular and democratic political structure to take care of the social, economic and political interest of the people, while keeping away the religious sentiments therefrom and, therefore, it is obvious that persons purporting to represent the secular interests of a constituency, however, big or small, cannot represent the religious objects, purposes and religious interest of Muslim Community muchless the interest of the Mutawallis and the administration of wakfs. It is further stated that many religious Muslims dedicate their properties as a Wakf for certain object which according to them are religious, pious and charitable under Muslim personal laws and, therefore, the administration of wakfs is strictly religious, and relates to religious sentiments of the persons concerned with the particular wakf. It is further stated that each Waqkif (the author of the Wakf) either nominates a Mutawalli or lays down the criteria or conditions as to how and in what manner the choice of Mutawallis be made and, the purposes and objects of the particular wakf be carried out. 7. It is stated that as the purported object of the Wakf Act,1995, is to safeguard the interest of the wakfs and provide better administration thereto, it cannot be gainsaid that the Board or at-least a majority thereof, dealing with such administration must necessarily comprise of the persons concerned with the wakfs viz., Mutawallis of the wakfs, but contrary to such expectation, the provisions of the Wakf Act, 1995, and more particularly the action of the State Government, in the purported exercise of such provisions totally leads to denial of that object. That in the Board which consists of 11 persons under clauses (a), (b), (c), (d) and (e) of sub-Section (1) of Section 14 of the Act, only one member is representing the interest of the Mutawallis of the Wakfs and this is highly detrimental to the interest of the wakfs being violative of the constitutional guarantee provided under Article 14 of the Constitution. 8. It is also submitted that the provisions of the Wakf Act, 1995, are in contravention of the provisions of Article 25 and 26 of the Constitution. That Article 26 of the Constitution ordains every religious denomination or any section thereof shall have a right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law, the provisions of Section 14 of the Wakf Act, 1995, are totally in contravention of these constitutional guarantees. It is stated that there are more than one Lac wakfs in the State of AP, but only 22 wakfs satisfying the criteria for the purpose of choosing a representative of wakfs by virtue of the restriction laid down under sub-clause (iv) of sub-clause (b) of sub-section (1) of Section 14 of the Wakf Act, 1995 i.e. wakfs having an annual income of one lac and above; and that higher income of a wakf cannot be a criteria in choosing as a member of the Wakf Broad and this criteria is absolutely arbitrary and discriminatory and is violative of the principle of equality enshrined in Article 14 of the Constitution. 9. Counter affidavit is filed by the Under Secretary, Ministry of Minority Affairs, Government of India, New Delhi, representing the 1st respondent- Union of India stating that the allegation of the petitioners that the Wakf Act, 1995 purports to elect only one from amongst the Mutawallis is factually incorrect as under sub-Section (1) (b) of Section 14 of the Act, one and not more than two members, as the State Government may think fit, are to be elected from each of the four electoral colleges and, therefore, it is not correct to contend that four members of the Wakf Board are persons not concerned with the affairs and administration of the Wakfs. It is also stated that only members of the Muslim community are to be elected and in the light of definition under Clause (k) of Section 3 of the Wakf Act, 1995, it cannot be said that the members of the Wakf Board elected through the electoral colleges have nothing to do with the wakfs. It is also stated that even in the Wakf Act, 1954, the practice of nomination of members of State Legislature and Members of Parliament representing the State to Wakf Board has been continuing and no objection was ever taken though the provision had been on the statute for about 45 years till it was modified from time to time and eventually replaced by Act 43 of 1995. It is denied that matters connected with the administration of wakfs are strictly religions because wakfs are dedicated for purposes which are religions, pious or charitable as per the Muslim law and the statement of the petitioners is accepted to the extent that Wakif (endower) of the wakf either nominates a Mutawalli or lays down criteria or conditions with regard to the administration of wakfs. But it is denied that the provisions of the present Wakf Act, 1995, which provides for election of one or two Mutawallis to the Wakf Board is detrimental to the interests of Mutawallis and is violative of Article 14 of the Constitution as the Wakf Act, 1995 does not interfere with the right of the Mutawallis to manage the wakf properties under their charge so long as they manage it in accordance with the intention of the Wakif and apply the income thereof to the objects and for the purposes for which the wakfs were created or intended. It is also denied that the criteria for allowing only Mutawallis of wakfs having annual income of rupees one lac and above to form electoral college of Mutawallis is either arbitrary, discriminatory or violative of Article 14 of the Constitution as this restriction is imposed on a practical analysis of the matter. It is stated that even according to the petitioners there are about one lac wakfs and therefore it is practically not possible to have an electoral college for such a large number of Mutawallis and this cannot be described as discrimination against the other Mutawallis in the same way as giving right of voting to persons of above 18 years of age cannot be described as a discrimination against those citizens of Indian who are less than 18 years of age and, therefore, the writ petition is liable to be dismissed. 10. Assistant Secretary to Government Minorities Welfare Department, AP Secretariat, Hyderabad, filed counter affidavit representing the 2nd respondent-Secretary, Minority Welfare & Wakf Department, Government of AP, Hyderabad. It is stated therein that the Wakf Act, 1954 was enacted to provide better administration and supervision of wakf through State Wakf Board but as the actual working of the Wakf Act, 1954 brought out many deficiencies in it, amendments were made from time to time and one such amendment related to the composition of the Wakf Board. It is stated that Section 10 was introduced by Amendment Act 69 of 1984, under which the constitution of Board consisted of (i) four members who shall be elected among themselves by such of the muslim members of Parliament as have been elected thereto from the State or the Union Territory of the Delhi, as the case may be, and the other two shall be elected from among themselves by such of the muslim members of the State Legislative Assemblies as have been elected thereto, and as such the election shall be held in accordance with the system of the proportionate representation by means of a single transferable vote in such manner as may be prescribed, (ii) five members to be appointed by the State Government of whom one shall be Shia where there is no Shia Board in the State, (iii) one shall be a person who is a recognized Scholar in Islamic theology, (iv) one from among the members of any muslim Organization and (v) two persons possessing administrative experience and knowledge of Law and (vi) one Muthawalli to be appointed by the State Government. The Wakf Commissioner was made the ex-officio member Secretary of the Board. It is stated that although the said amendment was made to the proviso in the year 1984 many of the provisions including Section 10 of the Wakf Act, 1995, could not be enforced in view of the strong opposition expressed by muslim Members of Parliament and also from the muslim Institutions. It is stated that the main criticism to Wakf Act, 1984 was that it facilitated gross interference by the State in the day-today management of the wakf. The other criticism related to the power given to the Wakf Commissioner which was considered to be over-riding the power of the Wakf Board in certain cases. The provisions of the Wakf Act, 1984, were examined in the light of the suggestions and objections submitted to the Committee on Wakf Act, 1984, which held series of discussions with the muslim Members of Parliament, State Government Ministers, In-charge of Wakf, Members of Central Wakf Council and some other eminent muslim personalities that led to a broad consensus with regard to the various provisions and ultimately culminating into enactment of the Wakf Act, 1995. 11. It is stated that the Wakf Act, 1995 has thus been enacted with the object of providing for better administration of the wakfs and matters connected there with or incidental thereto. That as seen from the reasons and objects of the Wakf Act, 1995, the Act seeks to provide for the constitution of Wakf Board with members of which majority will comprise of such persons as are elected from amongst the muslim Members of Parliament, muslim members of State Legislative, muslim member of Bar Council in the State and Muthawallies of the wakfs having annual income of one lakh or more, nominated members from the muslims Organization and muslim Scholars and the representative of the State Government. The object clause, amongst other, provides for distribution of the powers between the Wakf Board and the Chief Executive Officer, appointment of the Executive Officer in respect of the certain institutions, strengthening of the finances of the Wakf Board, restrictions on the powers of the Muthawallies in the interest of better management of the wakf property, setting up of Wakf Tribunals and to bring uniformity in respect of wakf administration throughout the Country. 12. It is further stated that in order to achieve the aforesaid objects, the Act provides for survey of wakfs, Central Wakf Council, establishment of the State Wakf boards, registration of wakfs, maintenance of accounts of wakfs, finances of the Board, audit of the funds etc. and in order to provide for judicial remedies in the matter of disputes relating to wakfs and their managements, the Act also provides for the constitution of Wakf Tribunals. The Wakf Act, 1995, has been made a self contained Code as regards the administration of Wakfs, and all the existing Wakf laws in different States have been repealed, thereby introducing a uniform law for the entire country, except the State of Jammu and Kashmir. That the establishment of Wakfs Tribunals under the Act is a distinguishing feature of the Wakf Act, 1995, and a reading of the entire provisions makes it manifestly clear that they regulate the various activities which ultimately lead to proper administration and utilization of wakfs for which the respective wakfs have been established. That none of the provisions lays down anything relating to religious practices nor do the provisions restrict the freedom of those concerned with the wakfs. Thus the various provisions of the Wakf Act, 1995, are in fact secular in nature. 13. It is added that under Article 25 (2) (a) of the Constitution the State is empowered to regulate the secular activities associated with religious practice and as the various provisions of the Wakf Act, 1995, are regulatory and none of the provisions lays down any restrictions or interferes with the essentials of Islamic or its religious practices of muslims or any denomination thereof. It is also stated that the provisions of the Wakf Act, 1995, do not deprive the religious denominations of their right to administer wakf or properties owned or acquired by them. 14. It is stated that the right guaranteed under Article 26 of the Constitution not being absolute and unqualified, any reasonable regulations may be made by the State, consistent with the fundamental right. It is stated that a particular fundamental right cannot exist in isolation in water tight compartment and exercise of fundamental right of a person may have to co- exist in harmony with the exercise of other fundamental rights by others. That in the light of this scenario, the contention of the petitioners that the Wakf Act, 1995 is unconstitutional being violative of Articles 14, 25 and 26 of the Constitution, is wholly without any substance. 15. With regard to constitution of the Board under Section 14 of the Wakf Act, 1995, it is stated that neither the freedom of the Mutawallies nor their rights to perform any religious functions as such has been affected by such composition of the Wakf Board. That the right of the petitioners to perform any religious rites or other activities integrally connected with religion has not been affected in any way. That under Section 32 of the Wakf Act, 1995, the Wakf Board has the power of general superintendence over all wakfs and the Wakf Board exercises its power only to ensure that the wakfs are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs are created or intended. That in exercising the powers under the Wakf Act, 1995, the Wakf Board shall have to act in conformity with the directions of wakif, the purposes of the wakf and any usage or custom concerned sanctioned by Muslim Law in respect of such wakfs. Thus the powers and functions of the Wakf Board, as mentioned in Section 32 of the Wakf Act, 1995, are all matters relating to good governance of the wakfs and the said powers do not interfere with any religious activities. 16. It is further stated that the contention of the petitioners that a person, although a muslim, elected to Parliament or State Legislature or to the State Bar Council cannot represent Islamic religion on the ground that his election has been made for a different purpose, is wholly misconceived. It is stated that a member of the Wakf Board constituted under Section 14 of the Wakf Act, 1995, is not performing any religious duty, performing his duties and discharging functions as member of the Board under Section 32 of the Wakf Act which are supervisory and regulatory in nature. That even a Muthawalli whose cause the petitioners represent in these writ petitions, does not perform any religious duties as per the definition of “Muthawalli” and a Muthawalli cannot claim to represent Islamic religion. A Member of Parliament, Member of Legislative Assembly or Member of State Bar council is entitled to be a member of the Wakf Board as he is as good a Muslim as any other Muslim. It is denied that the stipulation of one lakh income is for a Muthwalli to become a Wakf Board member, the provision relates to the income of a wakf, which is neither arbitrary nor unreasonable and reliance is placed on the Division Bench decision of the Karnataka High Court in SYED SHAH MOHAMMED ALI HUSSAINI vs. UNION OF INDIA (AIR 1999 Karnataka 112). It is further stated that the percentage of Shia Wakfs is not more than 15% as per the record of the Wakf Board, and as such creation of a separate Shia Wakf Board is not applicable as yet. 17. It is further stated that by any stretch of imagination, it cannot be said that the provisions of Section 14 of Wakf Act, 1995 are either arbitrary, or violative of Articles 14, 25 & 26 of the Constitution of India. That the provisions of Wakf Act, 1995, and more particularly Section 14 are not unconstitutional in any manner whatsoever and, therefore, the writ petitions are devoid of merits and the same are liable to be dismissed. 18. In the counter affidavit filed by the 3rd respondent-Chief Executive Officer, A.P. State Wakf Board it is stated that in matters of election of members to Wakf Board, the procedure prescribed under Rule 4 of AP State Wakf Board Conduct of Election Rules, 1996, is being scrupulously followed and there is no substance in the allegations of the petitioners, since the composition of the Wakf Board is such that all the members of the Muslim community from various walks of life are given fair representation in the Wakf Board and as such there is no violation of Article 14 of the Constitution of India. That the question of constitution of Shia Wakf Board is not tenable because as per the old Wakf Act, the entries in the Wakf register have become final by virtue of Section 6 of the old Wakf Act. It is stated that even otherwise, the percentage of Shia Wakf is not more than 15% in numbers, as per the records of the Wakf Board, and as such the provisions of Section 13 (2) of the Wakf Act, 1995 will not be attracted. It is also stated that Shia muslim community will not be affected by not creating separate Wakf Board as the present Wakf Board is not established for a particular community and the Wakf Board’s sole motive is to protect wakf properties and to administer the wakf institutions irrespective of whether they are shia or sunni wakf. That the