Supreme Court declares Tamil Nadu Wakf Board illegal

These appeals have been filed against the common The Tamil Nadu Waqf Board is a statutory body dated 10.10.2017. The Board constituted on 10.10.2017 Two Senior Muslim Advocates as referred above were nominated by the State Government in exercise of power 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 State Government issued a notification dated 18.09.2019 in exercise of power under Section 99(1) of the Waqf Act 1995proviso cannot be treated as less than nominated members resultantly the Board is 8. And whereas the Tamil Nadu Waqf Board has been called upon to show cause within 7 days Waqf Act 1995. Further it has also been mentioned therein that in case no reply is 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 to the Government. They have stated that the Senior Advocates nominated as Members can be considered as elected members and requested this regard the Government had already received legal opinion that the Senior Advocates can be considered as nominated are less than the nominated members and the the Waqf Act 1995. Thiru A. Sirajudeed member Tamil Nadu Waqf Board without responding to the notice has submitted his The period of Waqf Board was further extended by another six months upto 07.09.2020 by order dated was initiated by order dated 14.07.2020. Writ Petition No.7661 of 2020 was filed challenging the order dated Single Judge of the High Court vide its judgment dated 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 was elected member of the Board reconstituted on quashing the press release dated 09.06.2020 and consequential press release dated 14.07.2020. The by way of Public Interest Litigation in which writ the interregnum shall be subject to the result of 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 paragraphs 22 and 23 following was held by the High 22. For these reasons we accordingly hold that the order passed by us including the also been told that the process is completed for all other constituencies except mutawalli 23. Accordingly the impugned order of supersession in G.O.(Ms.) No.58 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 Nos.8377 and 9557 of 2020 stand allowed Tamil Nadu Waqf Board was published in the Tamil Nadu Government Gazette dated 15.07.2020. The High Court by Mutawallis constituency are concerned process for electing nominating other members of the Board was untouched and was completed. In the SLP giving rise to respondent No.1 K. Fazlur Rahman as well as Syed Ali We have heard Shri C.S. Vaidhyanathan Senior Advocate appearing for the appellant Shri Ratnakar Dash Senior Advocate appearing for respondent No.1 and Shri Shri C.S. Vaidhyanathan learned senior counsel for its functions. Therefore in exercise of power under Section 99 of Act 1995 the Board was superseded vide hence the supersession was ordered. The supersession setting aside the notification dated 18.09.2019 supersession order. The validity of the supersession order was upheld by the High Court in Writ Petition High Court. It is not disputed that there are only 10 Parliament demitted office. The number of nominated process for constituting the Board. The validity of notification dated 15.07.2019 was upheld by the High petition proceedings initiated by the respondent is impugned judgment violated the principles of comity of the interim order passed by this Court on 28.08.2020 without prejudice to the outcome of the instant case and M. Mohamed Basheer declared elected subject to 10. Shri Ratnakar Dash learned senior counsel for 11. Shri Mehmood Pracha learned counsel appearing for respondent No.2 submits that present was not the case when there is a prima facie evidence of financial irregularity misconduct or violation of the provisions supersession in the order dated 18.09.2019 are not of elected members is not less than the nominated compliance of Section 14(4). He submits that under Section 14(2) in absence of any Muslim member of the State Bar Council ex­members shall constitute the void. It was State Government which had included two any violation committed by the Board. He submits that term of the members is five years which cannot be 12. Shri C.S. Vaidhyanathan in his rejoinder affidavit kind of mala fide on the part of the State Government 13. We have considered the submissions of the learned 14. We need to first consider the scheme of Section 14 of the Act 1995 regarding constitution Composition of “Section 14. Composition of Board.—(1) The Board for a State and the National Capital elected from each of the electoral i) Muslim Members of Parliament from the State or as the case may be 3Muslim Members of the State of the concerned State or Union territory: Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory the administration as the case may be may annual income of rupees one lakh and Explanation I.—For the removal of doubts it is hereby declared that the members from categories mentioned in sub­clauses to shall be elected from the electoral college Explanation II.—For the removal of doubts it is hereby declared that in case a Muslim member ceases to be a Member of Parliament from the State or National Capital Territory of Delhi as b) or ceases to be a Member of the State Legislative Assembly as required under sub­clause of clause such member shall be deemed to have Territory of Delhi as the case may be from the date from which such member Delhi or a Member of the State Legislative Assembly as the case may c) one person from amongst Muslims who has professional experience in town planning or business management social work finance or revenue agriculture and to be nominated by the State Government nominated by the State Government from amongst the officers of the State Government not below the rank of Joint or as the case may be a State Government shall be elected or nominated Central Government from categories clause or clauses to in sub­ Provided further that at least two Members appointed on the Board shall be the system of mutawalli exists there shall be one mutawalli as the member of 2) Election of the members specified in clause of sub­section shall be held in accordance with the system of proportional representation by means of a single transferable vote in such manner 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 Provided further that where there are mentioned in sub­clauses to of clause of sub­section the ex­ Muslim Members of Parliament the State Council as the case may be shall 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 sub­clauses to of clause of sub­section the State Government may nominate such persons as 4) The number of elected members of the Board shall at all times be more than 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 State. Under Section 14(1)(c) and total four 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 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 composition of Board as provided under Section 14 consists of both “elected” and “nominated members” wherever the words nominated members have been used of elected members of the Board shall at all times be to an exception which is provided in sub­Section contemplates that where the State Government is satisfied for reasons to be recorded in writing that it is not reasonably practicable to mentioned in sub­clauses to of clause of 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 16. It is the State Government which is to establish a Board as per composition provided under Section 14 Section 14(4) is a provision which incorporates Legislature contemplates that Board is to be run by 17. From the facts as noted above there can be no notice as well as notification dated 18.09.2019 the number of elected members was less than the number of mandates that number of elected members of the Board shall at all times be more than the nominated members 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 objectives enshrined in Section 14(4). The State 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 of Board shall be such as to give effect to the 18. In this context we may also notice a Division Bench judgment of Madras High Court in M.H. Jawahirullah and MLJ 688 where the Madras High Court has correctly administration and supervision in Wakf Board 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 resort to nomination arbitrarily. The only exception is Section 14(3). In Section 14(3) power to nominate such persons as members of made default in the performance of the duty imposed on it by or under this Act or has 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 the Board’s continuance is likely to be State the State Government may by the Board for a period not exceeding six Provided that before issuing a Board to show cause why it should not be and objections if any of the Board: Government under this section shall not be exercised unless there is a prima facie imposed on it by or under this Act or has exceeded or Central Government under Section 96 or the State is satisfied on consideration of any report submitted after annual inspection that the Board s continuance is 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 21. Learned counsel for respondent No.2 has given a prima facie evidence of financial irregularity import. We may look into the scheme of supersession as contained in Section 99. The supersession is based on some action inaction omission or misconduct of the Board. The Act 1995 enumerates various powers and is entitled to exercise its powers and functions as enumerated in various Sections including Sections 32 38 39 41 48 and 53 etc. Section 22 is a clause which saves proceedings of the Board from invalidity due to “Section 22. Vacancies etc. not to proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its member or any defect in the Thus when the initially Board was constituted on has been superseded not due to any action inaction or due to number of elected members becoming less than to out the reason for supersession i.e. A. Anwhar Raajhaa Member of Parliament whose term came to end in May 2019 were same thus the circumstance which has been taken as as per the objectives enshrined in Section 14(4). The the members as enumerated in Section 14(i)(b) to 23. In the facts of the present case the State of Section 14(4) by conducting an election for members under Section 14(1)(b)(iii) by permitting nominated in event State was satisfied that it is not reasonably sub­section begins with non obstante clause “Notwithstanding anything contained in this section ” 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 the part of the Board. The proviso is sought to be explained by Shri C.S. Vaidhyanathan relying on the 25. The word violation is defined in the Black s Law An infraction or breach of the law a transgression. The act of breaking or dishonoring the law the contravention of a 26. The second proviso has to be read in conjunction with the main provision. The second proviso contains supersede the Board i.e. unless there is prima facie evidence. There can be no dispute that prima facie Board which is sought to be superseded. The third Act has also to be read in the same manner that is 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 the Board. In view of the foregoing discussion we are 27. Now we also need to consider the submission of Shri 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 member from the Mutawalli category. Since only one category petitioners were before the High Court it It is State which has come in the appeals against the only. The High Court has not interfered with the fresh b)(iv). In view of the foregoing discussion we thus 28. In result the fresh election of two members in

Summary: According to the Waqf Act, 1995, the number of members nominated cannot exceed the number of members elected. This rule was made in light of proper functioning of the board. The Supreme Court pronounced an order against the petition filed in the matter of  State of Tamil Nadu vs. K. FAZLUR RAHMAN, [CA NOS.3603­3605 Of 2020] which was headed by the three judge bench comprising of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah  The Waqf Board was constituted which consisted of two Senior Muslim Advocates, and their nomination was challenged before the High Court. 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. The petition was dismissed by the single judge bench of the High Court upholding the process of election. Further, the Division Bench allowed the writ appeal and held that the supersession order was not sustainable. “It is submitted that as per second proviso to Section 99(1) the power of the State Government can be exercised only when there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of this Act. It is submitted that the grounds given for supersession in the order dated 18.09.2019 are not covered by Section 99(1) especially second proviso. It is submitted that responsibility to constitute the Board is on the State Government hence it cannot take benefit of its own wrong. It was for the State to ensure that number of elected members is not less than the nominated members. It is submitted that State was obliged to ensure compliance of Section 14(4)”.