Ebrahim Gulam Nabi Vs. State of Maharashtra [Bombay High Court, 28-07-2016] - IndianCaselaw.comIndianCaselaw.com
Posted on :August 5, 2017 in Case Laws
Ibrahim Gulam Nabi Shaikh ] Age-59 years, Chairman, Maharashtra State Haj ] Committee, residing at Ayesha Apartment, ] 1st floor, 2nd Hasanabad Lane, Santacruz (West) ] Petitioner Mumbai â 400 054 and having his office at ] Sabu Siddick Musafirkhana, L. T. Marg, ] Mumbai â 400 001. ] Versus 1. State of Maharashtra ] through Principal Secretary, Minorities ] Development Department, Mantralaya, ] Mumbai â 400 032. ] 2. Union of India, through its Secretary (Haj) ] Ministry of External Affairs, Jawaharlal Nehru ] Bhavan, New Delhi 100 001. ] 3. Haj Committee of India ] Respondents a Committee duly constituted under the ] provision of Haj Committee Act, 2002, through ] its Chief Executive Officer, having its office at ] Haj House, 7A, M R A Marg, (Palton Road), ] Mumbai â 400 001. ] 4. The Maharashtra State Haj Committee ] through its Executive Officer having its office at ] Sabu Siddick Musafirkhana, Mumbai â 400 001. ] 2/18 WPL 1357-16 Mr. Hiralal Thacker, Senior Counsel a/w. Mr. Chirag Mody, Mr. Joseph Fernandes for the Petitioner. Mr. Umashankar Upadhyay, AGP for the Respondent No.1-State. Mr. Anil Singh, Additional Solicitor General a/w. Mr. Dhanesh R. Shah for respondent No.2.
2. In this writ petition, filed under Article 226 of the Constitution of India, a very short question is raised for consideration relating to the interpretation of Section 8(2) of Haj Committee Act, 2002. The exact nature of controversy is centered around the question as to whether a member, who was elected for more than 2 terms, can be eligible for renomination on the Haj Committee, considering the wording of Section 8(2) of the Act that, âan outgoing member shall be eligible for renomination on the Committee for not more than two terms.â
Section 8(1) of the Haj Committee Act, 2002
(hereinafter referred to âthe Actâ for short) the Committee was to be reconstituted.
7. According to learned counsel for the petitioner, thedisqualification laid down under Section 8 (2) of the Haj Committee Act pertains to ârenominationâ of âoutgoing memberâ of Haj Committee of India and not for the new appointee, as in the case of the petitioner. It is urged that respondent No.2 has wrongly interpreted Section 8(2) of the Act, to the effect that the member of Haj Committee of India can be in office for maximum of two terms only. According to learned counsel for the petitioner, the words âtwo termsâ have to be construed to mean, âcontinuous two terms without a breakâ. Here in this case, the petitioner was elected as a member in the year 2008-09 and 2010-13, therefore, much earlier to the election in the year 2016. Hence, the petitioner is not at all an âoutgoing memberâ of the Committee, the term of which has expired on 5th May, 2016.
14. It is in this context that we must note the submission of Mr. Singh the learned Additional Solicitor General. We have before us an Act to establish a Haj Committee of India and State Haj Committees for making arrangements for the pilgrimage of Muslims for Haj and for matters connected therewith. The term âCommitteeâ is defined in Chapter I in section 2 clause (c) to mean the Haj Committee of India constituted under section 3. The term âmemberâ means a member of the Haj Committee of India nominated under section 4 or of a State Haj Committee nominated under section 18, as the case may be, and includes the Chairperson and a Vice-Chairperson. The term âprescribedâ is defined in section 2(g) and term âState Committeeâ is defined in section 2(h). Chapter II is entitled as âHaj Committee of Indiaâ. This is a committee which is a body corporate having perpetual succession and a common seal with powers as are mentioned in section 2(3) and its headquarters are at Mumbai. Its composition is in terms ofsection 4 and it consists of three members of parliament in terms of clause (i) of section 4. Nine Muslim members of the committee shall be elected; three from those States sending largest number of pilgrims during last three years and one each from the zones as specified in the Schedule, in such manner as may be prescribed.
7. Chairperson and Vice-Chairpersons
(7) Any casual vacancy in the office of the Chairperson or a Vice-Chairperson shall be filled for the remainder of the term in accordance with Sub-section (1) or Sub-section (2), as the case may be.â
8. Reconstitution of Committee
Provided that not more than fifty per cent, of the members may be re-nominated for a second term in such manner as may be prescribed.â
16. A reading of the various sub-sections of this section and harmoniously would reveal that wherever the Legislature has in mind the term of office and to be co-terminus with the term of the Committee and no person shall hold office of the Chairperson or the Vice-Chairpersons, as the case may be, for more than two consecutive terms, then, the intent is spelt out. It is apparent that the office can be held, but not for more than two consecutive terms. In juxtaposition and comparison section 8 and when it talks of re-constitution of committee, at least four months before the expiry of the term or the extended term, as the case may be the Legislature has only stated that an outgoing member shall be eligible for re-nomination of the Committee for not more than two terms. By the proviso, not more than 50% of the members may be re-nominated for a second term in such manner as may be prescribed. The language of sub-section (2) of section 8 refers to âoutgoing memberâ. He shall be eligible for re-nomination to the committee for not more than two terms.
17. The word âoutgoingâ has been defined in the Advance Law Lexicon by P Ramanatha Aiyar, 3rd Edition Reprint 2007 as something that has gone out. The word is not, however, highly definite in this significance and has upon several occasions been characterised by the courts as large in scope and must always be construed with reference to context and circumstances. It denotes going outward, departing, a person who is laying down an office. The word âoutgoingâ has been defined in Websterâs Third New International Dictionary as going outward, departing, retiring or withdrawing from place or position, something that goes out.
18. If the argument of Mr. Singh is to be accepted, then, the word âoutgoingâ would mean not a member departing or laying down office, but a member who had at one time held the office. He could have held that office even in the remote past. He, then, need not be a member of the immediate past committee or the committee whose term has recently come to an end. If that had been the intent, the wording would have been different and to exclude from re-nomination any past member. The Legislature could have excluded any person who held this office not in a recent Committee but one of the past. Therefore, insertion of the word âoutgoingâ and before the words âmember shall be eligible for re-nominationâ would indicate that the same is a reference to the committee whose term or extended term has expired or is expiring.
19. It is in these circumstances that we are of the view that whenever the Legislature had in mind a embargo or prohibition, it has specifically carved out the same as in the sub-section (6) ofsection 7, where it states in no uncertain terms that the term of office of the Chairperson and the Vice-Chairperson, as the case may be, shall be co-terminus with the term of the Committee and no person shall hold office of the Chairperson or Vice-Chairperson, as the case may be, for more than two consecutive terms. Therefore, if such a person is holding office, his term is clear and the words âholding office for not more than two consecutive termsâ conveys that if a person holds office of Chairperson or Vice-Chairperson, he shall not hold it for more than two consecutive terms.
22. For arriving at this conclusion, we may and can also derive considerable force from the decision of the Honâble Supreme Court of India in the case of
Harbhajan Singh Vs. Press Council of India,(2002) 3 SCC 722
wherein the identical controversy was raised for consideration in respect of Section 6(7)of the Press Council Act, 1978. Section 6 of the Press Council Act provides that the Chairman and the other members of the Council shall hold office for a period of three years; while sub-section 7deals with the qualification or eligibility of its members by laying down that âretiring member shall be eligible for renomination for not more than one termâ.
24. While dealing with this controversy, the Honâble Supreme Court held that as the language used in sub-section 7 of Section 6 is plain and simple and having regard to the connotation of the words used therein i.e. âretiringâ and ârenominationâ, it has to be held that, the use of the word âretiringâ as qualifying âmemberâ, coupled with the use of the word ârenominationâ, clearly suggests that a member is disqualified for being a member for the third time in continuation, in view of his having the office of membership for more than two terms just preceding, one of which terms, the later one, was held on renomination. Such an interpretation does not lead to any hardship, inconvenience, absurdity or anomaly and, therefore, the rule of ordinary and natural meaning being followed cannot be departed from.
25. In the present case also, the wording of Section 8(2) of the Haj Committee Act is plain, simple and just identical to the wording of Section 6(7) of the Press Council Act, 1978. Only difference is that in Section 6(7) the word âretiringâ is used. Whereas in the instant case in Section 8(2) the word âoutgoingâ is used.
26. In this behalf, one can usefully refer to the meaning of the word âretireâ. The word, once again in Advance Law Lexicon by P Ramanatha Aiyar, 3rd Edition Reprint 2007 is defined to mean to withdraw from office, generally on superannuation, to withdraw from business, to withdraw to or into a place of seclusion, retire from service. It would take all forms of retirement in its fold.
27. The Honâble Supreme Court of India has made a very important distinction when such a word as âretiringâ has been employed. It has specifically held that the word âretireâ, âretiredâ and âretiringâ have definite connotation and meaning. The word âretiring directorâ or âretiring memberâ has been understood to mean, âretiring by rotation at the meetingâ, but not âretiredâ.
28. Both, in Section 6(7) of the Press Council Act and Section 8(2) of the Haj Committee Act, the words âretiringâ and âoutgoingâ respectively, are used inpresenteand coupled with the use of the word ârenominationâ, thereby clearly suggesting that, in the instant case also, if the petitioner was being considered for nomination for the third term, in continuation of his earlier two terms, he would not have been eligible. However, as the petitioner was holding the office of the membership in the past in the year 2008-09 and 2010-13, he is definitely not an âoutgoing memberâ at the time of nomination in the year 2016. His nomination was also not in continuation of his earlier terms, hence it is not ârenominationâ.
30. In consequence, the Writ Petition is allowed. The Rule is made absolute in the above said terms, holding the petitionerâs nomination as valid, being made in accordance with law.
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