1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7071 OF 2008 1] Syed Jameel Ahmed s/o. Syed Janimiya, Age 40 years, Occ. Business & Mutawalli, r/o. House NO. 3-2-50 Tattupura, Old Jalna, District Jalna. .. Petitioner Versus 1] The State of Maharashtra through its Secretary, General Administration Department, Mantralaya, Mumbai-32. 2] The State of Maharashtra through its Secretary, Minorities Development Department, Mantralaya, Mumbai-32. 3] The Maharashtra State Board of Wakfs, through its Chief Executive Officer, Panchakki, Aurangabad. 4] Shri Hussain Dalwai, Ex-Member of Parliament, Member, MHA, Wakf Board, Express Court, Charchgate, Mumbai. 5] Shri Shaikh Rashid Haji Shaikh Shafi, Member of Legislative Assembly 747, Hazzor Kholi, Malegaon, District Nashik. 2 6] Shri Durrani Abdulla Khan s/o. Latif Khan, Member of Legislative Assembly Fakirabad Mohalla, Parbhani, District Parbhani. 7] Shri Mubeen Haroon Solkar, Advocate Western India High Court Bar Association, Room No.18, First Floor, High Court, of Bombay Fort, Mumbai. 8] Shri Adul Sattar Haji Mohammad Merchant, C/o. Dargah Haji Ali, Worli, Mumbai. 9] The Collector, Mumbai City and Returning Officer, Mumbai. 10] The Additional Collector, Mumbai City and Electoral Registration Officer for Election of Chairman of the Maharashtra Board of Wakfs, Mumbai. ..Respondents 11] Shri Mohmood Ali s/o. Gulam-e-Liva, Aged about 52 years, Occ. Business. 12] Dr. Munavvar Yusuf s/o. Dr. Abde Badar Yusuf, Age 49 years, Occ. Doctor. 13] Shri Qamber s/o. Shaikh Hatim Jeevaji, Age 75 years, Occ. Service. 14] Dr. Abbas Hamza Age 76 years, Occ. Doctor. 15] Shri Munavvar s/o. Tassaduke Badar, Age 74 years, Occ. Retired Govt. Servant. All residents of Mahdi Bagh Garden, Binaki Mangalwari, P.O. Dr. Ambedkar Marg, Nagpur 400 017. [RESPONDNTS 11 TO 15 INTERVENORS] 3 --- Mr. S.B. Talekar, Advocate for the petitioner Mr. S.K. Kadam, AGP for respondent No.1 Mr. M.B.W. Khan Advocate for the respondent No.3 Mr. A.D. Sugdare, Advocate for the respondent No.7 Mr. P.M. Shah, Senior Counsel for the respondent No.1 and 2 Mr. M. Shoeb Alam, Advocate for the respondent No.6. Mr. J.R. Shaikh, Advocate for respondent Nos. 11 to 15 (intervenors). CORAM : B.R. GAVAI & N.D. DESHPANDE,JJ. DATE : 29TH JULY, 2009. ORAL JUDGMENT :-[ PER B.R.GAVAI,J.] 1] Though the petition is initially filed for a writ of Quo- warranto and also for a Writ of Mandamus, the learned counsel for the petitioners, on instructions of the petitioners, does not press the petition in so far as the Writ of Quo-warranto is concerned and restricts the claim in the present petition only in so far as prayer clauses (C) and (D) are concerned. 2] Facts in nutshell, giving rise to the present petition are as under :- . In exercise of powers conferred by sub-clauses (i) to (iii) of clause (b) and clause (c) of sub-section 1 read with sub-section (3) of Section 14 of the Wakf Act, 1995 ( hereinafter referred to as "the said Act" for the sake of brevity) the Maharashtra State Board of Wakf was constituted by the respondent No.1 herein, vide notification 4 dated 4/1/2002. It appears that on the said Board, Shri Mohammad Abdul Aziz was appointed as Chairman, one Shri Dhature Hafiz Hussain, was appointed as member of the State Legislature, One Shri Harun Aadam Solkar was appointed as a representative of the Bar Council. One Shri Chand Pasha Inamdar was appointed as a person representing the eminent Muslim Organization. Shri Janab Ibrahimbhai Q Izuddin and Shri Maulana Mohammad Assadulla were appointed as Scholors in Islamic Theology. It appears that subsequently one Shri Ahmadulla Usmanullah Pathan was appointed as representative of the Bar Council vide notification dated 27/7/2006 and one Shri Shah Tarik Anwar was appointed as a member of Parliament from the State vide notification dated 27/9/2006. It also appears to be the undisputed position that all the aforesaid members except Shri A.U. Pathan and Shri Tarik Anwar ceased to hold their office on various dates between 18th May, 2005 to 16th August, 2007 either on account of their resignation or end of the tenure. It thus appears to be a undisputed position that after 16th August, 2007, the Board consisted of only 2 members namely, Shri A.U. Pathan and Shri Shah Tarik Anwar. It appears that, subsequently, vide notification dated 4th September, 2008, the State Government has nominated the respondent Nos. 4 to 8 herein alongwith one Shri Maulana Gulam Vastanwi and Smt. Shahin Sayyad Kadri, Deputy Secretary Minorities Development Department, Mantralaya, Mumbai, on the said Board. 5 3] Being aggrieved by the aforesaid notification dated 4th September, 2008, issued by the State in exercise of powers under sub- section (3) of Section 14, the petitioner who claims to be a Mutawali and as such, entitled for a representation on the Board under Section 14(1)(b) (iv) of the said Act, has approached this court. 4] Shri Talekar, learned counsel appearing on behalf of the petitioners submits that since the eligible persons, who could be elected to represent the categories as mentioned in Section 14(1)(b) (i) to (iii) were available, it was not permissible for the State Government to have taken recourse to sub-section (3) of Section 14, for nominating the members on the Wakf Board. He further submits that power under sub-section(3) of Section 14 could be exercised by the State Government only if the 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- clause (i) to (iii) of clause (b) of sub-section (1) of Section 14 of the said Act. He further submits that in view of sub- section (9) of Section 14, it is required that the members of the Board shall be appointed by the State Government by notification in the official Gazette. It is the submission of the learned counsel for the petitioner that as such, it is necessary that the reasons for exercising the powers under Section 14(3) of the Act should be reflected in the notification itself. The learned counsel submits that since no reasons are recorded in the notification, the exercise of power under sub-section (3) of Section 14 is vitiated and as a result of which the notification impugned in the present petition is required to be set aside. It is the specific contention of the petitioner that when the number of Muslim Members of Parliament, State Legislature or the Bar 6 Council of the State , as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board. The learned counsel submits that power exercised by the State Government under Section 14(3), has been exercised without there being any valid reason. The learned counsel further submits that when law requires a particular thing to be done in a particular manner, that thing has to be done in that manner alone or not at all. He , therefore, submits that since the power which is exercised by the State Government under Section 14(3) has not been exercised in the manner as stipulated under sub-section (3) of Section 14 of the said Act, such exercise of power would be vitiated thereby vitiating the notification itself. The learned counsel relies on the following judgments of the Apex Court :- [1] R.S. Raghunath Vs. State of Karnataka and others. (1992) 1 SCC 335. (2)Bhavnagar University Vs. Palitana Sugar Mill (p) Ltd and others. (2003) 2SCC 111. (3) Chandra Singh and others Vs. State of Rajasthan and others (2003)6 SCC 545. (4) Bharat Petroleum Corporation Ltd. Vs. Madulla Ratanvally and others. (2007) 6 SCC 81. (5) Bhikhubhai Vitthalbhai Patel Vs. State of Gujarat and othes” (2008) 4 SCC 144. (6) Mansingh Vs. State of Haryana and others” (2008)12 SCC 331. 5] Shri Shah, the learned Senior Counsel who appears for the respondent Nos. 1 and 2 and Shri M. Shoeb Alam, learned Counsel for the respondent No.6, vehemently opposed the petition. The contention advanced on behalf of the respondents is that the scope of judicial review of an executive action, while exercising jurisdiction under Article 226 of the Constitution is very limited. It is submitted that if it is found that the power exercised by the State is permissible within the limitations as prescribed by the Statute, then it is not permissible for this court to sit in an appeal over the decision of the 7 decision maker. It is submitted that only if it is found that the decision making process is so unreasonable or so irrational, as has been commonly known as “Wednesbery’s unreasonableness”, then only it would be permissible for this court to exercise its powers of judicial review. It is the further contention of the learned counsel for the respondents that this court, while exercising powers of judicial review under Article 226 of the Constitution does not sit in appeal over the decision of the decision maker. It is submitted that powers are only restricted to examine as to whether the process of the decision maker has been fair, reasonable, just and proper. It is further submitted that it is also equally not permissible for this court to take into consideration the reasons which weighed with the decision maker in taking the decision. It is also submitted that if it is found that the decision which has been taken is within the limits of the statute, which empowers the decision maker to take the decision, then no interference is permitted. ‘ Shri M. Shoeb Alam learned counsel submits that power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. He further submits that it is also not permissible for this court to upset the decision of the decision maker on the ground that it finds its view to be more probable than that of the decision maker. The learned counsel further submits since the statutory provision under section 14(3) empowers the State Government to exercise the powers on it being satisfied regarding the necessity to exercise the said powers, it is not permissible for this court to sit in an appeal and easily come to the conclusion that the satisfaction has not been rightly arrived at. It is submitted that the presumption is in favour of the legality of the action and the person, who challenges the legality of the executive action is required to discharge the heavy burden. 8 The learned counsel further submits that the claim of the petitioners in the present petition is barely restricted to either right to vote or contest. It is submitted that since the power to vote or contest is a statutory right, it is also subject to the statutory restrictions and as such, the petitioners cannot claim to have any fundamental right to challenge the notification. Both the learned counsel have also stressed on the issue that the pleadings are not sufficient so as to challenge the validity of the action under Section 14(3). It is submitted that since there is no specific pleading as to how the exercise of power under Section 14(3)is vitiated, it is not permissible for the petitioners to challenge the exercise of power under Section 14(3). The learned counsel further submits that while arriving at satisfaction as contemplated under section 14(3), what is relevant is the eligibility and not the suitability. The learned counsel further submits that the contention that the persons nominated from sub-clause (i) to (iii) of clause (b) of sub- section (1) of Section 14 have to be from that category alone, is without substance. It is submitted that once power is exercised by the State Government under Section 14(3), it is the absolute discretion of the State Government to appoint any eligible candidate. On merits, it is submitted by the learned Special Counsel appearing for the State that the Joint Parliamentary Committee had directed the State Government to establish the Wakf Board immediately, as the functioning of the Wakf Board had come to a stand-still. It is submitted that taking into consideration this aspect of the matter, the State Government had to come to a subjective satisfaction that it was necessary to do the nomination as contemplated under Section 14(3) of the said Act. It is further submitted by the learned Special Counsel that 9 the provisions of Section 14(3) have an overriding effect over the other parts of the said Section and when power under Section 14(3) is exercised by the State Government, the provisions in the other part of the statute will not come in its way. Both the learned counsel have relied on a catena of judgments of the Supreme Court, which are as under :- [1] Charan lal Sahu Vs. Nandkishore Bhatt (1973) 2 SCC 530; [2] Secretary, Indian Tea Association Vs. Ajit Kumar Barat (2000)3 SCC 93; [3] Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel (2006) 8 SCC 200; [4] H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority v. Gopinath and sons, 1992 Supp (2) SCC 312 ; [5] Union of India Vs. K.G. Soni, (2006)6 SCC 592; [6] Syed. T.A. Naqshbandi v. State of J & K (2003) 9 SCC 592; [7] Swapan Kumar Pal v. Ashintya Kumar Nayak (2008)1 SCC 379; [8] Sterling Computers Ltd. Vs. M & N. Publications Ltd.,(1993) 1 SCC 445; [9] Delhi Development Authority v. UEE Electricals Engg. (P) Ltd., (2004) 11 SCC 213; [10] M.A. Rasheed v. State of Kerala (1974) 2 SCC 687; [11] Dwarkadas Marfitia and Sons v. Board of Trustees of Port of Bombay (1989) 3 SCC 293; [11] Union of India Vs. G.M. Kokil , 1984(Supp) SCC 196; [12] Gazi Saduddin vs. State of Maharashtra and others, (2003) 7 SCC 330; [13] State of U.P. vs. Johri Mal (2004) 4 SCC 714; [14] Master Marine Service vs. Metcalfe (2005)6 SCC 138. 6] For appreciating the rival submissions, it will be necessary for us to refer to section 14 of the said Act, which reads thus : “ Section 14 “Composition of Board” (1) The Board for a State and Union Territory of Delhi shall consist of :- (a) a Chairperson; (b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of : (i) Muslim Members of Parliament from the State or , as the case maybe, the Union territory of Delhi, 10 (ii)Muslim Members of the State Legislature, (iii)Muslim Members of the Bar Council of the State, and (iv)mutawallis of the wakfs having an annual income of rupees one lakh and above; (c) one and not more than two members to be nominated by the State Government representing eminent Muslim organizations; (d) one and not more than two members to be nominated by the State Government, each from recognized Scholars in Islamic Theology; (e) an office of the State Government not below the rank of Deputy Secretary. (2) Election of the members specified in clause (b) of sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed : Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further that where there are no Muslim Members in any of the categories mentioned in sub- clause(i) to (iii) of clause (b) of sub-section (1) the ex- Muslim Members of Parliament, the State Legislature or ex- member of the State Bar Council, as the case may be, shall constitute the electoral college. (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. (4) 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). 11 (5) Where there are Shia wakfs but no separate Shia Wakfs Board exists, at least one of the members from the categories listed in sub-section(1), shall be a Shia Muslim. (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia Wakfs and Sunni wakfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. (7) In the case of the Union territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in sub-section (1). Provided that there shall be one mutawalli as the member of the Board. (8) Whenever the Board is constituted or re- constituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette." From the perusal of the sub-section (1) of Section 14 of the said Act, it could be seen that the Board shall consist of a Chairperson as required under clause (a). Clause (b) requires that one and not more than two members, as the State Government may think fit, are to be elected from each of the electoral colleges consisting of : (i) Muslim Members of Parliament from the State or , as the case maybe, the Union territory of Delhi, (ii) Muslim Members of the State Legislature, (iii) Muslim Members of the Bar Council of the State and (iv)mutawallis of the wakfs having an annual income of rupees one lakh and more; 12 Clause (c) requires that one and not more than two members are to be nominated by the State Government who represent eminent Muslim organizations. Clause (d) requires that one and not more than two members are to be nominated by the State Government, each of whom is to be recognized Scholar in Islamic Theology. Clause (e) requires that an officer of the State Government not below the rank of Deputy Secretary shall be member on the Board. Sub-section (2) requires that the Election of the members specified in clause (b) of sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed. The first proviso to the said sub-section provides that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board. The second proviso further provides that where there are no Muslim Members in any of the categories mentioned in sub-clause(i) to (iii) of clause (b) of sub-section (1) the ex-Muslim Members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college. Sub-section (3), which is most important for deciding the question involved in this petition, provides that 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 n 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. Sub-section (4) then provides that 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). 13 Sub-section (8) then provides that whenever the Board is constituted or re-constituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. Sub-section (9) then provides that the members of the Board shall be appointed by the State Government by notification in the Official Gazette." 7] It would also be relevant to refer to certain rules which are published in the official Gazette vide notification dated 23rd June, 1999 and which are called as the Maharashtra state board of wakf (conduct of election) rules, 2000. Rule 2 (1)(e) reads thus :- “Electoral College” means the categories from which members are to be elected under clause(b) of sub- section (1) of Section 14 and the second proviso to sub- section (2) of Section 14. Sub-rule (g) of the said section reads thus : (g) “Electoral Roll” means a list of voters, of each of four electoral colleges specified in clauses (i)(ii) (iii) and (iv) of clause (b) of sub-section (14) of the Act, maintained under sub-rule (1) of rule (11) Rule 6 of the said Rules reads thus :- Obtaining list of Electoral Colleges by Electoral Registration Officer :- (1) The Electoral Roll for the four categories of electoral colleges under clause (b) of sub-section (1) of Section 14 of the Act shall be prepared or revised by the Electoral Registration Officer before the date of notification of the election of the Board. (2) The Electoral Registration Officer for preparation or Revision of Electoral Rolls to the four Electoral Colleges shall obtain the list of eligible voters in case of categories specified in clause (b) of sub-section (1) of Section 14 :- (a) for sub-section (i) and (ii) from the Secretary, Maharashtra State Legislature. (b) for sub-clause (iii) thereof, from the Secretary, Maharashtra, Goa State Bar Council, Mumbai, 14 (c) for sub-clause (iv) from the Chief Executive Officer of the Board and where the new Board under the Act is not constituted, from the Secretary of the existing Board or from the Secretary of the Department dealing with wakf. Rule 12 of the said Rules reads thus :- 12.Notification of Elections by the State Government : The State Government shall, by notification in the official Gazette, notify the schedule of Elections to the four electoral colleges consisting of two members each under clause(b) of sub-section (1) of Section 14 indicating the dates of commencement and completion of election which shall not be less than thirty days. It could thus be seen from the said rules that the electoral college would mean a list of voters, of each of four electoral colleges specified in clauses (i)(ii) (iii) and (iv) of clause (b) of sub-section (14) of the Act, maintained under sub-rule (1) of rule (11). Rule 6 of the said Rules provides that electoral rolls are required to be prepared for the four categories of electoral colleges under clause (b) of sub-section (1) of Section 14 of the Act or revised by the Electoral Registration Officer before the date of notification of the election is issued. Sub-rule (2) of the said rule, provides that the Electoral Registration Officer, for preparation or Revision of Electoral Rolls to the four Electoral Colleges shall obtain the list of eligible voters in case of categories specified in clause (b) of sub-section (1) of Section 14 as under :- (a) for sub-section (i) and (ii) from the Secretary, Maharashtra State Legislature. (b) for sub-clause (iii) thereof, from the Secretary, Maharashtra, Goa State Bar Council, Mumbai, 15 (c) for sub-clause (iv) from the Chief Executive Officer of the Board and where the new Board under the Act is not constituted, from the Secretary of the existing Board or from the Secretary of the Department dealing with wakf. Sub-rule(12) of the said rules provides that the State Government is required to notify the schedule of elections of 4 Electoral colleges consisting of two members each under clause (b) of sub-section