Case: THE STATE OF TAMIL NADU &amp; ANR Vs. K. FAZLUR RAHMAN &amp; ANR

3. The brief facts of the case to be noted for deciding these appeals are: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:Muslim Member of ParliamentThiru A. Anwhar Raajhaa, M.P.Muslim member of State Legislature1. Thiru K.A.M. Muhammed Abubacker, M.L.A.2. Thiru K.S. Masthan M.L.A.1. Dr. Haja K. Majeed2. Thiru Syed Ali AkbarPerson with professional experienceThiru A. Tamilmahan HussainRecognized scholars Shia and Sunni Islamic Theology1. Tmt. Amatul Atifa, Scholar in Shia Islamic Theology2. Tmt. A.S. Fathima Muzaffer, Scholar in Sunni Islamic TheologyState Government NomineeThiru M.A. Siddique, I.A.S.4. Two Senior Muslim Advocates as referred above were nominated by the State Government in exercise of power under proviso to Section 14(1)(b)(iii) of the Waqf Act, 1995. Onetwo 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.5. 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 notification dated 18.09.2019 was issued after issuance of show cause notice to the 10 members of Waqf Board existing at that time. The membership of A. Anwhar Raajhaa, Member of Parliament ceased in May, 2019 reducing number of members as 10. 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 ground of supersession is mentioned in paragraph 8 of the notification 18.09.2019 which is to the following effect:8. And whereas, the Tamil Nadu Waqf Board has been called upon to show cause within 7 days from the receipt of that notice as to why the Tamil Nadu Waqf Board should not be superseded by the State Government under Section 99 of the Waqf Act, 1995. Further it has also been mentioned therein that in case no reply is received within stipulated time, action will be pursued in accordance with law. The show cause notice was served to all the present 10 members of the Tamil Nadu Waqf Board. In response to the show cause notice, out of 10 members 4 members namely, Thiruvalargal K.A.M. Muhammed Abubacker, M.L.A., A.S. Fathima Muzaffer, Dr. Haja K. Majeed, Syed Ali Akbar, Members, Tamil Nadu Waqf Board alone have sent their replies to the Government. They have stated that the Senior Advocates nominated as Members can be considered as elected members and requested that the superseding process may be dropped. In this regard, the Government had already received legal opinion that the Senior Advocates can be considered as nominated members. In view of above, the elected members are less than the nominated members and the Board is unable to perform its functions as per the Waqf Act, 1995. Thiru A. Sirajudeed, member, Tamil Nadu Waqf Board without responding to the notice has submitted his resignation as a member of the Tamil Nadu Waqf Board, citing personal reasons vide his letter dated 09.09.2019.6. 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 for 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. In paragraphs 22 and 23 following was held by the High Court:22.For these reasons, we accordingly hold that the order passed by us including the observation made on the impugned order would be applicable to these two persons alone. We have also been told that the process is completed for all other constituencies except mutawalli constituency.23. Accordingly, the impugned order of supersession in G.O.(Ms.) No.58 (Backward Class, Most Backward Class and Minorities Welfare (T1) Department) dated 18th September 2019 and the consequential orders stand set aside insofar as the election of two persons viz.,.Syed Ali Akbar and Dr. Haja K. Majeed alone are concerned. The writ petitions in W.P. Nos.8377 and 9557 of 2020 stand allowed accordingly.7. As per the election programme issued on 14.07.2020, the date of polling was fixed on 19.08.2020. The schedule of dates for various stages of election to constitute the Tamil Nadu Waqf Board was published in the Tamil Nadu Government Gazette dated 15.07.2020. The High Court by the impugned order dated 17.08.2020 had quashed the order dated 18.09.2019 insofar as two members of the Board of Mutawallis constituency are concerned, process for electing/nominating other members of the Board was untouched and was completed. In the SLP giving rise to these appeals, an interim order was passed on 28.08.2020 staying of the operation of the impugned judgment dated 17.08.2020. The counter-affidavit has been filed both by respondent No.1, K. Fazlur Rahman as well as Syed Ali Akbar, respondent No.2.

Reasoning:
15. As noted above when the Board was constituted initially on 10.10.2017 there was one elected member under Section 14(1)(b)(i), two elected members under Section 14(1)(b)(ii) and two elected members under Section 14(1)(b)iv). Thus, there were five elected members. The State Government had nominated two Senior Advocates under Section 14(1)(b)(iii) proviso, since, there was no Muslim member from the Bar Council of the State. Under Section 14(1)(c), (d) and (e) total four members were nominated. Initially the stand of the State was that two members nominated under Section 14(1)(b) (iii) are to be treated as elected members, thus, due to which State claimed composition of Board in accordance with Section 14(4). On receipt of the legal advice that members under Section 14(1)(b)(iii) proviso cannot be treated as elected members of the Board, Government formed the opinion that number of elected members are less than nominated members. Consequently, proceeded to supersede the Board by notification dated 18.09.2019. The composition of Board as provided under Section 14 consists of both elected and nominated members, wherever the words nominated members have been used, there can be no circumstances that they can be treated as elected members. Section 14(4) which provides that number of elected members of the Board shall at, all times, be more than the nominated members of the Board, is subject to an exception which is provided in sub-Section (3). Sub-section (3) contemplates that 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. If nomination is made under Section 14(3), in such situation mandate of Section 14(4) shall not be applicable, thus, Section 14 itself contemplates situation where there may be more nominated members than the elected members.17. 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.18. In this context, we may also notice a Division Bench judgment of Madras High Court in M.H. Jawahirullah and others vs. Government of Tamil Nadu and others, (2013) 3 MLJ 688  , where the Madras High Court has correctly noticed the legislative intendment while constituting the Board under Section 14 of the Act. Following observation had been made in paragraph 27:27......Primacy given to democratic process of administration and supervision in Wakf Board Management is apparent. In fact, the Statement of Objects and reasons shows this composition and election is an important feature of the Wakf Act. Since the intention of the Legislature is to have democratic process of administration and supervision in Wakf Board Management, the State cannot avoid election and resort to nomination arbitrarily. The only exception is Section 14(3). In Section 14(3), the Government is given discretion to exercise power to nominate such persons as members of the Board.20. Section 99 (1) provides that if the State Government is of opinion that the Board is unable to perform or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, or has wilfully and without sufficient cause failed to comply with any direction issued by the Central Government under Section 96 or the State Government under Section 97, or if the State Government is satisfied on consideration of any report submitted after annual inspection, that the Boards continuance is likely to be injurious to the interests of the auqaf in the State, the Government may supersede the Board. The ground for superseding the Board in the notification dated 18.09.2019 is that Board is unable to perform which is due to the fact that number of nominated members has become more than elected members.22. That in event there is vacancy in the Board or any defect thereof, the proceedings or act of the Board are not to be invalidated which has been saved by Section 22. Thus, when the initially Board was constituted on 10.10.2017, the objective as enshrined in Section 14 was not fulfilled even in the initial constitution, the Board has been superseded not due to any action, inaction or omission and misconduct on the part of the Board rather due to number of elected members becoming less than to the nominated members. The order dated 18.09.2019 spells out the reason for supersession, i.e., A. Anwhar Raajhaa, Member of Parliament whose term came to end in May, 2019, other members of the Board as constituted on 10.10.2017 were same, thus, the circumstance which has been taken as ground for supersession of the Board was not any action of the Board. The event of cessation of membership of an elected member is not under control of the Board. It was the duty of the State Government to constitute the Board as per the objectives enshrined in Section 14(4). The State Government has ample power to conduct election for the members as enumerated in Section 14(i)(b), (i) to (iv).23. 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 sub-clauses (i) to (iii) of clause (b) of sub-section (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 sub-section (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.24. We may also notice the objective and purpose of the second proviso to Section 99 which has been inserted by Act 27 of 2013. Second proviso contains an injunction that the power of the State Government shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of the Act. The present is not a case of any allegation of any financial irregularity or misconduct on the part of the Board. The proviso is sought to be explained by Shri C.S. Vaidhyanathan relying on the violation of the provisions of this Act.26. 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.27. Now, we also need to consider 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. It is to be noted that the High Court had categorically held that supersession order is not sustainable in law but after holding that, the High Court had moulded the relief in the facts of the present case and subsequent events which had taken place. Two writ petitions being Writ Petition No.8377 and 9557 of 2020 which have been allowed by the High Court were filed by Syed Ali Akbar who was elected member from the Mutawalli category. Since, only one category petitioners were before the High Court, it confined the relief to that category. 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).