Bombay High Court
Shri Asif S/O Shaukat Qureshi vs The State Of Maha., Through ... on 22 December, 2016
Bench: B.P. Dharmadhikari
Judgment 1 wp4343.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4343 OF 2016.
Shri Asif S/o. Shaukat Qureshi,
Aged about 50, Occupation : Lawyer,
R/o. "Armaan", 64/A, Rahatekarwadi,
Dasra Road, Mahal, Nagpur.
.... PETITIONER.
ig // VERSUS //
1. The State of Maharashtra,
through Secretary, Minorities
Development Department,
Mantralaya, Madam Kama Road,
Mumbai - 32.
2. The Maharashtra State Board of Wakf,
Aurangabad, through its Chief Executive
Officer, Panchakki, Aurangabad (M.S.)
....RESPONDENTS.
----------------------------------------------------------------------------------------------------------------
Shri Anand Jaiswal, Senior Advocate a/w Ms. Radhika Bajaj,
Advocate for petitioner.
Shri. M.G. Bhangde, Senior Advocate a/w. Shri V.P. Maldhure, A.G.P.
for Respondent No.1/ State.
Shri D.N. Mehta, Advocate for Respondent No.2.
Shri S.P. Bhandarkar, Advocate for Intervenor.
----------------------------------------------------------------------------------------------------------------
CORAM : B.P.DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATE OF RESERVING THE JUDGMENT : 25/11/2016.
DATE OF PRONOUNCING THE JUDGMENT : 22/12/2016.
ORAL JUDGMENT : (Per : Kum. Indira Jain, J)
Judgment 2 wp4343.16
RULE. Rule is made returnable forthwith. Heard finally
with the consent of learned counsel for the parties.
2. By the present writ petition petitioner who was a member
of Waqf Board seeks direction to quash and set aside the impugned
notification issued by respondent No.1 on 26/07/2016 declaring that
petitioner has deemed to have vacated the office of the member of
the Board w.e.f. 1st December, 2015 as he ceases to be the member
of Bar Council of Maharashtra and Goa from 1st December, 2015.
The facts giving rise to the petition may be stated in brief
as under :
3. The petitioner was Chairman of the Bar Council of
Maharashtra and Goa. He ceased to be the member of Bar Council
of Maharashtra and Goa as tenure of the body came to an end w.e.f.
1st December, 2015. As a member of Bar Council, petitioner was
appointed as member of Maharashtra State Board of Waqfs,
Aurangabad from the category of Muslim members of the Bar
Council of the State vide Government Notification dated 17/04/2012.
Judgment 3 wp4343.16
4. On 29/02/2016 one Mohd. Firdoz Ahmed preferred writ
petition No. 1801 of 2016 seeking declaration that tenure of the
petitioner as member of Waqf Board was co-terminus with his tenure
of the Member of Bar Council of Maharashtra and therefore, he
ceased to be the member of Waqf Board as tenure of Bar Council of
the State came to an end. In the said petition direction was also
sought against the petitioner that he had to vacate the office of the
Board as he had ceased to be the member of the Bar Council. Writ
Petition No. 1801 of 2016 came to be withdrawn on 20/06/2016 as the
proposal for removal of the petitioner was under consideration before
the State Government.
5. On 26/07/2016 respondent No.1 issued a notification
notifying that in view of the provisions of sub-clause (iii) of clause (b)
of sub-section (1) of Section 14 of the Waqf Act, 1995 petitioner was
not eligible to continue as member of the Board as he ceased to be
the member of Bar Council of Maharashtra and Goa and declared
that petitioner has deemed to have vacated the office of member of
the Board of Waqf on 01/12/2015. This notification was served on
petitioner vide letter dated 27/07/2016.
Judgment 4 wp4343.16
6. According to petitioner, he was very much interested in
contesting the elections for the post of Chairperson of the Board. The
elections were scheduled to be held on 3rd August, 2016. A
grievance is made that respondents deliberately issued election
programme one day before issuing notification dated 26/07/2016
removing him from the Board. It is submitted that entire exercise was
at the behest of interested persons just to prevent the petitioner from
contesting elections. A contention is raised that explanation II to
Section 14(1) of the Waqf Act, 1995 states that in case Muslim
member ceases to be a Member of Parliament or Member of State
Legislative Assembly, such member shall be deemed to have
vacated the office of the member of the Board from the date he/ she
ceases to be the Member of Parliament or Member of State
Legislative Assembly. Petitioner submits that Explanation-II to
Section 14 is not applicable to the member on the Waqf Board from
Muslim member of Bar Council of the State. In support thereof, a
decision in Writ Petition No. 8107 of 2014 by Aurangabad Bench is
placed into service. It is submitted that Explanation-II to Section 14
restricts the tenure of member of the Board in respect of a particular
category of Members i.e. Member of Parliament and Member of State
Legislature. It does not put any restriction in case of Muslim member
Judgment 5 wp4343.16
of the Bar Council of the State. The petitioner states that notification
dated 26/07/2016 is dehors the provisions of Waqf Act, 1995. It is
contended that even other provisions of the Act regarding
disqualification, removal of the member would not be attracted in
case of petitioner. It is submitted that notification was issued without
proper application of mind and respondent No.1 could not have
curtailed the prescribed tenure of the petitioner by issuing impugned
notification.
7. The respondents raised a preliminary objection
regarding absence of territorial jurisdiction. On merits prayer in writ
petition is resisted on the ground that from the scheme of Section 14
Explanation-II of the Act it is apparent that appointment on Board of a
Member of Parliament or Member of State Legislative Assembly or of
a Bar Council is otherwise co-terminus with his tenure. It is
contended that Explanation-II to Section 14 is clarificatory in nature and
though the same does not mention Bar Councillor therein it is not
decisive.
8. It is submitted that petitioner is deemed to have
vacated the office as a member of Board as he ceased to be the
member of Bar Council and in this factual background notification
Judgment 6 wp4343.16
dated 26/07/2016 was rightly issued by respondent No.1. According
to respondents, Writ Petition No. 8107 of 2014 decided by
Aurangabad Bench was on entirely different set of facts and the
same would not be applicable in the facts in which notification came
to be issued by respondent No.1.
9. Having considered the arguments advanced on behalf of
the parties and having perused the record, we are of the considered
opinion that question of jurisdiction should be first decided by us
before going into the merits of the case in hand. On territorial
jurisdiction various judgments have been relied upon by the learned
counsel for the respondents.
10. In support of preliminary objection to the territorial
jurisdiction Shri Bhangde, learned Senior Advocate referred
paragraph No.18 of the petition, which reads thus :
"18. The Petitioner states that he is a permanent resident of the
city of Nagpur. The said notification was also received by the
Petitioner at Nagpur and hence, cause of action for filing this
Petition has arisen in District Nagpur and therefore this Hon'ble
Court has jurisdiction to entertain and try this Petition."
11. Based on the above submission in the petition the
learned Senior Advocate vehemently submits that residence of
Judgment 7 wp4343.16
petitioner and receipt of communication/ notification at Nagpur would
not give rise to the cause of action at Nagpur. According to the
learned Senior Advocate, it would be necessary for the petitioner to
show that cause of action has arisen within the jurisdiction of this
Court. On cause of action and the law relating to territorial
jurisdiction of the High Court in writ jurisdiction, learned Senior
Advocate for respondent No.1 relied upon the following authorities :
i)
State of Rajasthan & oth. Vs. M/s. Swaika Properties & anr.,
reported at (1985) 3 SCC 217;
ii) Oil and Natural Gas Commission Vs. Utpal Kumar Basu and oth.,
reported at (1994) 4 SCC 711;
iii) Navinchandra N. Majithia Vs. State of Maharashtra & oth., reported
at (2000) 7 SCC 640;
iv) Union of India & Oth. Vs. Adani Exports Ltd. and Another, reported
at (2002) 1 SCC 567;
v) Addl.General Manager-Human Resource, Bharat Heavy Electricals
Ltd. . Vs. Suresh Ramkrishna Burde, reported at (2007) 5 SCC
336;
vi) Alchemist Ltd. & anr. Vs. State Bank of Sikkim and others, reported
at (2007) 11 SCC 335;
vii) VSP Acqua Mist Fire Pvt.Ltd.,Nagpur Vs. Maharashtra State
Electricity Transmission Company Ltd., Mumbai, reported at 2010
(2) Mh.L.J. 575;
viii) Nawal Kishore Sharma ..vs.. Union of India and others, reported at
(2014) 9 SCC 329;
Judgment 8 wp4343.16
12. In reply to the said arguments learned Senior Advocate
Shri Jaiswal for the petitioner urged that the Waqf Board, though
having its seat at Aurangabad, exercises jurisdiction over the entire
State and Bar Council of Maharashtra also exercises jurisdiction
over the entire State of Maharashtra and also State of Goa.
According to him, in this situation, rights of the petitioner as a
representative of the Bar Council and as a member of Waqf Board,
identified all over the State have been prejudiced and hence, this
Court has territorial jurisdiction.
13. Another contention raised on behalf of the petitioner is
as stated in paragraph 18 of the petition that the petitioner is
permanent resident of Nagpur and he received impugned notification
at Nagpur. The learned Senior Advocate strenuously submitted that
the facts stated in paragraph 18 of the petition and considering the
extent of jurisdiction of State Bar Council and State Waqf Board, this
Court has territorial jurisdiction to entertain and decide the
controversy in writ jurisdiction. To substantiate his submissions,
learned Senior Advocate Shri Jaiswal placed reliance on :
a) Sanjay Baldeo Ramteke Vs. State of Maharashtra and ors.,
reported at 2015(3) Bom. C.R. 357, and
b) Kusum Ingots & Alloys Ltd., Vs. Union of India and another,
reported at (2004) 6 SCC 254.
Judgment 9 wp4343.16
14. On going through the decision in State of Rajasthan &
others ..Vs.. M/s. Swaika Properties and another (supra) (i) it can be seen that
question before the Hon'ble Supreme Court was whether the service
of notice under Section 52(2) of the Rajasthan Urban Improvement
Act, 1959 at the registered office of respondents was an integral part
of cause of action and was sufficient to invest Calcutta High Court
with jurisdiction to entertain the petition challenging the impugned
notification of State of Rajasthan under Section 52(1) of the Act. The
Hon'ble Supreme Court answered the same in the negative and held
that service of notice must depend upon the nature of the impugned
order giving rise to a cause of action.
The judgment in Oil and Natural Gas Commission Vs. Utpal
Kumar Basu (supra) (ii) is on the same line in which the decision in
State of Rajasthan and others Vs. M/s. Swaika Properties and
another was referred by the Hon'ble Apex Court.
In Navinchandra N. Majithia Vs. State of Maharashtra (supra) (iii)
the decisions in State of Rajasthan vs. M/s. Swaika Properties and Oil and
Natural Gas Commission Vs. Utpal Kumar Basu (supra) were relied upon and
the Hon'ble Apex Court answered the issue of territorial jurisdiction in
the negative.
Judgment 10 wp4343.16
In the case referred at (iv) above decision in Oil and
Natural Gas Commission Vs. Utpal Kumar (supra) was followed and in
Navinchandra N. Majithia (supra) was distinguished as in the said petition
amongst other reliefs a Writ of Mandamus to the State of Meghalaya
to transfer the investigation to Mumbai Police and also allegations of
malafides were made as to the filing of the complaint at Shillong. It
was observed that prayers in the writ petition gave raise to cause of
action to move the High Court at Bombay for the relief and not before
the Gujrat High Court. It was noticed that the judgment in
Navinchandra Majithia (supra) was delivered in the matter involving
criminal dispute and the consideration that arises in deciding the
question of territorial jurisdiction in cases involving criminal offences
may not always apply to the cases involving civil disputes.
The controversy in case of Addl. General Manager-Human
Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde (supra) (v)
was in respect of termination of service on the ground of non-
fulfillment of eligibility conditions. The Scrutiny Committee at Nagpur
invalidated the Caste Certificate of the petitioner. Initially two writ
petitions were filed before Nagpur Bench of the Bombay High Court.
In the third petition order under challenge was of termination of
service passed at Hyderabad as the petitioner was serving at
Judgment 11 wp4343.16
Hyderabad at the relevant time. In this background, the Hon'ble
Supreme Court held that Nagpur Bench of the Bombay High Court
had no jurisdiction to entertain the petition.
In later decision in Alchemist Ltd. and another Vs. State Bank of
Sikkim and others (supra) (vi) previous decisions in (i),(ii) and (iv) were
relied upon by the Hon'ble Supreme Court. The question involved
was whether a part of cause of action had arisen within the territorial
jurisdiction of High Court at C so as to entertain the writ petition
under Article 226 of the Constitution filed by appellant company
against the respondent. The Hon'ble Supreme Court held that the
facts pleaded by the appellant were not essential integral or material
facts so as to constitute a part of cause of action, hence, High Court
was justified in dismissing the writ petition on the ground of territorial
jurisdiction.
In Nawal Kishore Sharma Vs. Union of India and others (supra)
(vii) appellant approached Patna High Court under Article 226 of the
Constitution of India for grant of various reliefs including 100%
disability compensation and pecuniary damages. An objection to the
maintainability of the writ petition was raised on the ground that no
cause of action or even fraction of cause of action arose within the
Judgment 12 wp4343.16
territorial jurisdiction of Patna High Court. The appellant was
appointed by the Corporation and he discharged his duty as Seaman
for Offshore outside the territory of State of Bihar. The order
declaring the appellant permanently unfit was passed by respondent
corporation at Mumbai. The appellant being permanent resident of
Bihar asserted his right in the State of Bihar. In this background the
issue of territorial jurisdiction was considered by the Hon'ble Apex
Court.
In the case of VSP Acqua Mist Fire Pvt. Ltd. Nagpur Vs.
Maharashtra State Electricity Transmission Company Ltd., Mumbai (supra) (viii)
challenge was to the award of contract to respondent No.3. The
dispute was pertaining to contractual obligation and in the facts of the
case Division Bench of this Court held that merely because
communications were received at Nagpur it could not be said that
part of cause of action has arisen at Nagpur.
From the above, it is apparent that facts in the cases
relied upon by respondent No.1 are distinguishable and not identical
to the facts in case on hand.
Judgment 13 wp4343.16
15. We have also gone through the decisions in Sanjay Baldeo
Ramteke Vs. State of Maharashtra (supra) and Kusum Ingots & Alloys Ltd. Vs.
Union of India and another (supra) relied upon by the learned Senior
Advocate for the petitioner.
In Kusum Ingots & Alloys Ltd. Vs. Union of India (supra) the
Hon'ble Apex Court elaborately discussed clause (2) of Article 226 of
the Constitution, particularly the meaning of the word "cause of
action" with reference to Section 20(c) and Section 141 of the Code
of Civil Procedure and observed :
"9. Although in view of Section 141 of the Code of Civil
Procedure the provisions thereof would not apply to writ
proceedings, the phraseology used in Section 20(c) of the Code
of Civil Procedure and clause (2) of Article 226, being in pari
materia, the decisions of this Court rendered on interpretation of
Section 20(c) CPC shall apply to the writ proceedings also.
Before proceeding to discuss the matter further it may be
pointed out that the entire bundle of facts pleaded need not
constitute a cause of action as what is necessary to be proved
before the petitioner can obtain a decree is the material facts.
The expression material facts is also known as integral facts.
10. Keeping in view the expressions used in clause (2) of Article
226 of the Constitution of India, indisputably even if a small
fraction of cause of action accrues within the jurisdiction of the
Court, the Court will have jurisdiction in the matter."
Their Lordships in paragraphs 29 & 30 further observed as under :
"29. In view of clause (2) of Article 226 of the Constitution of
India, now if a part of cause of action arises outside the
jurisdiction of the High Court, it would have jurisdiction to issue
a writ. The decision in Khajoor Singh has, thus, no application.
Judgment 14 wp4343.16
30. We must, however, remind ourselves that even if a small
part of cause of action arises within the territorial jurisdiction of
the High Court, the same by itself may not be considered to be
a determinative factor compelling the High Court to decide the
matter on merit. In appropriate cases, the Court may refuse to
exercise its discretionary jurisdiction by invoking the doctrine of
forum conveniens."
In Sanjay Baldeo Ramteke Vs. State of Maharashtra (supra)
appellant was suffering from serious heart muscles disease (Dilated
Cardiomyopathy) and breathing problem which forced him to stay in
native place, wherefrom he had been making all correspondence
with regard to his disability compensation. Prima-facie, therefore,
considering all the facts together the Hon'ble Supreme Court held
that a part or fraction of cause of action arose within the jurisdiction
of the Patna High Court where he received a letter of refusal
disentitling him from disability compensation.
16. Needless to state that Article 226 (2) of the Constitution
of India speaks of the territorial jurisdiction of the High Court. It reads
thus :
"The power conferred by clause (1) to issue directions, orders or
writs to any Government, authority or person may also be
exercised by any high Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the
seat of such Government or authority or the residence of such
person is not within those territories."
Judgment 15 wp4343.16
It is clear from the above constitutional provision that a
High Court can exercise the jurisdiction within the territories within
which the cause of action, wholly or in part, arises.
In the present controversy it would not be out of place to
mention here provisions of Section 41 of the Bombay Reorganisation
Act, 1960 and Rule 1 of chapter XXXI of the Bombay High Court
Appellate Side Rules which deals with presentation of proceedings in
the offices at Nagpur, Aurangabad and Goa. The provisions of
section 41 of the Bombay Reorganisation Act, 1960 read with Chapter
XXXI of the Bombay High Court Appellate Side Rules cannot abridge
the writ jurisdiction and basically designed to meet administrative
requirements and administrative convenience. This provision is in
respect of any case arising in the jurisdiction of the High Court
Benches at Nagpur, Aurangabad and High Court of Bombay at Goa.
In the present case petitioner is prevented from exercising his rights
and carrying his activities within the jurisdiction of this High Court
also and therefore, in our view, this Court does have territorial
jurisdiction to decide the controversy between the parties.
Under Article 226 High Court can exercise the power to
issue directions, orders or writs for the enforcement of any of the
fundamental rights conferred by Part III of the Constitution or for any
other purpose if the cause of action, wholly or in part, had arisen
Judgment 16 wp4343.16
within the territories in relation to which it exercises jurisdiction,
notwithstanding that the seat of the Government or authority or the
residence of the person against whom the direction, order or writ is
issued is not within the said territories. The expression cause of
action means bundle of facts which the petitioner must prove, if
traversed, to entitle him to a judgment in his favour by the Court.
17.
In determining the objection of lack of territorial
jurisdiction this Court has to take into consideration the facts pleaded
in support of the cause of action albit without embarking upon an
enquiry as to the correctness or otherwise of the said facts. It is a
settled law that question of territorial jurisdiction needs to be decided
on the facts pleaded in the petition and the truth or otherwise of the
averments made in the petition would be immaterial.
18. In the instant case, it is not in dispute that jurisdiction of
Bar Council of Maharashtra and Goa is all over the State. It is also
not seriously disputed that the jurisdiction of Waqf Board functioning
under the Waqf Act, 1995 is of the entire State. Petitioner received
impugned communication at Nagpur declaring that petitioner has
deemed to have vacated the office of the Member of the Board w.e.f.
1st December, 2015 at Nagpur.
Judgment 17 wp4343.16
19. In view of these uncontroverted facts pleaded in the
petition, we are satisfied that those facts do constitute a cause so as
to empower this Court to decide a dispute. Based on the facts
pleaded in the petition we find that objection regarding absence of
territorial jurisdiction is not sustainable in law.
20. Before proceeding to decide the challenge to the
impugned notification dated 26/07/2016, it would be necessary to
reproduce here the relevant provisions of Sections 14 and 15 of the
Waqf Act, 1995, which read as under :
"14. Composition of Board. - (1) The Board for a State and (the
National Capital 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
may be, [the National Capital Territory of Delhi],
(ii) Muslim Members of the State Legislature,
(iii) Muslim members of the Bar Council 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 State Government
or the Union territory administration, as the case may be, may
nominate any senior Muslim advocate from that State or the Union
territory, and]
(iv) mutawallis of the [auqafs] having an annual income of
rupees one lakh and above;
Explanation- I. For the removal of doubts it is hereby
declared that the members from categories mentioned in sub-
clauses (i) to (iv), shall be elected from the electroal college
constituted for each category.
Judgment 18 wp4343.16
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
referred to in sub-clause (i) of clause (b) or ceases to be a
Member of the State Legislative Assembly as required under sub-
clause (ii) of clause (b), such member shall be deemed to have
vacated the office of the member of the Board for the State or
National Capital Territory of Delhi, as the case may be, from the
date from which such member ceased to be a Member of
Parliament from the State or National Capital Territory of Delhi, or
a Member of the State Legislative Assembly, as the case may be;]
15. Term of office. - The members of the Board shall hold office
for a term of five years [from the date of notification referred to in
sub-section 9 of section 14]."
From Section 14 it is apparent that it deals with
composition of Board whereas Section 15 relates to the term of office
of the members of the Board. No where in the Act "term" or "tenure"
of the Board is prescribed. It means, Board has to go on functioning
whereas members would hold the office as per the term prescribed in
Section 15 of the Act.
21. The learned Senior Advocate for the petitioner in his
extensive arguments also referred to the provisions of Sections 16
and 20 of the Waqf Act, 1995. Section 20 confers powers on the
State Government to remove Chairperson and member of the Board
by notification in the Official Gazette and Section 16 lays down
grounds of disqualification for being appointed or for continuing as a
member of the Board. Sections 20 and 16 of the Act read, thus :
Judgment 19 wp4343.16
"20. Removal of Chairperson and member.- (1) The State
Government may, by notification in the Official Gazette, remove
the Chairperson of the Board or any member thereof if he -
(a) is or becomes subject to any disqualifications specified in
section 16; or
(b) refuses to act or is incapable of acting or acts in a manner
which the State Government, after hearing any explanation that
he may offer considers to be prejudicial to the interests of the
auqafs; or
(c) fails in the opinion of the Board, to attend three consecutive
meetings of the Board, without sufficient excuse.
(2) Where the Chairperson of the Board is removed under sub-
section (1), he shall also cease to be a member of the Board."
"16. Disqualification for being appointed, or for continuing
as, a member of the Board. - A person shall be disqualified
for being appointed, or for continuing as, a member, of the
Board if -
(a) he is not a Muslim and is less than twenty-one years of age;
(b) he is found to be a person of unsound mind;
(c) he is an undischarged insolvent;
(d) he has been convicted of an offence involving moral
turpitude and such conviction has not been reversed or he has
not been granted full pardon in respect of such offence;
(da) he has been held guilty of encroachment on any waqf
property;
(e) he has been on a previous occasion-
(i) removed from his office as a member or as a mutawalli, or
(ii) removed by an order of a competent Court or tribunal from
any position of trust either for mismanagement or for
corruption."
22. It is not in dispute that removal of the petitioner is not
under Section 20 or due to disqualification in Section 16. As is
apparent from the notification dated 26/07/2016, it is under sub-
clause (iii) of Clause (b) of sub-section 1 of Section 14 of the Act of
1995 and it declares that petitioner is deemed to have vacated the
Judgment 20 wp4343.16
office of the Board as he ceased to be the member of the Bar Council
of the State.
23. Section 14(1)(b) (iii) of the Act is in respect of Muslim
members of the Bar Council of the State and proviso mentions that in
case there is no Muslim member of the Bar Council of the State, the
State Government may nominate any Senior Muslim Advocate from
the State.
Explanation II has been added by amendment w.e.f.
01/11/2013. It reflects the tenure of the member of the Board in
respect of the Member of Parliament and Member of the State
Legislative Assembly appointed on the Board. If Member of
Parliament or Member of State Legislative Assembly ceases to be
the Member of Parliament or State Legislative Assembly as the case
may be Explanation II introduces deeming provision that such
member shall be deemed to have vacated the office of the Board
from the date from which such member ceases to be the Member of
Parliament or the State Legislative Assembly, as the case may be.
The learned Senior Advocate for the petitioner submits that
Explanation II makes it abundantly clear that for the other categories
it is not applicable and so Explanation- II cannot be invoked for
removal of the petitioner. Alternate submission on behalf of the
Judgment 21 wp4343.16
petitioner is that Explanation II has been introduced w.e.f. 01/11/2013.
It would not have retrospective effect and cannot be invoked in case
of petitioner appointed in the year 2012.
24. It is submitted that Explanation to section should
normally be read to harmonise with main provision and not to widen
its ambit. In support of the submission reliance is place on :
c)
Zakiya Begum and others Vs.. Shanaz Ali and others,, reported at
(2010)9 SCC 280.
d) Government of Andhra Pradesh and another ..Vs... Corporation
Bank, reported at (2007) 9 SCC 55.
e) S. Sundaram Pillai and others..Vs...V.R.Pattabiraman & others,
reported at (1985) 1 SCC 591.
f) Sedco Forex International Drill.In. And others. Sundaram Pillai and
others..Vs...Commissioner of Income Tax, Deharadun & another,
reported at (2005) 12 SCC 717.
g) Union of India and others..Vs...Martin Lottery Agencies Limited,
reported at (2009) 12 SCC 209.
h) Sree Balaji Nagar Residential Association..Vs...State of Tamil Nadu
and others, reported at (2015) 3 SCC 353.
i) Singareni Collieries Company Limited..Vs...Vemuganti Ramakrishnan
Rao and others, reported at (2013) 8 SCC 789.
j) Padma Sundara Rao (Dead) and others..Vs...State of T.N. & others,
reported at (2002) 3 SCC 533.
k) Union of India and another..Vs...Shardindu, reported at (2007) 6
SCC 276.
Judgment 22 wp4343.16
Based on the above decisions, learned Senior Advocate
for the petitioner urged that Explanation II does not include Muslim
members from the Bar Council of the State and question of supplying
Casus Omissus would not arise when the language of Explanation II is
plain and unambiguous. In this background, further submission is
that the impugned notification is illegal and needs to be set aside.
25. The learned Senior Advocate for respondent No.1 states
that reliance on explanation II is not at all placed as notification is
issued under Clause (iii) of Section 14(1)(b) of the Act. The learned
Senior Advocate submits that new Bar Councillors have taken over
the office and law cannot take away their rights. Efforts of the
learned Senior Advocate are to demonstrate that proviso to Clause
(iii) of sub-section (1)(b) of Section 14 permits the State Government
to nominate any senior Muslim Advocate in case there is no Muslim
member of the Bar Council of the State. He submits that in case of
Member of Parliament and Member of Legislative Assembly, such
power to nominate is not given to the State. It is pointed out that
proviso is to be strictly construed and if not it would be violative of
Article 14 of the Constitution of India. To substantiate the contentions
learned Senior Advocate for respondent No.1 placed reliance on :
Judgment 23 wp4343.16
x) Afjal Imam .Vs...State of Bihar and others, reported at (2011) 5
SCC 729.
xi) Ishwar Nagar Co-operative Housing Building Society ..Vs...Parma
Nand Sharma and others, reported at (2010) 14 SCC 230.
26. On behalf of the intervener, learned counsel Shri
Bhandarkar submitted that once there is ouster from Bar Council
there would be automatic cessation of membership of the Waqf
Board. He adds that amendment to Section 14 and Explanation II is
added just to remove the confusion. The learned counsel points out
that in case of doubt limited interpretation is available as explanation
no where says that the post held as a member of the Board by the
petitioner is not co-terminus with his term of Bar Council. He supports
the contention raised by the learned Senior Advocate for respondent
No.1 that explanation is clarificatory and cannot take away the rights
accrued to the newly elected members of the Bar Council of the
State. The learned counsel for the intervener placed reliance on the
decision in Shaik Subhani Vs. The Government of Andhra Pradesh, [ (2013) SCC
Online AP 249].
We have perused the record and also the reply affidavit
of respondent No.1. It is apparent from reply affidavit that impugned
notification is issued on the basis of Section 14(1)(b)(iii) and newly
added Explanation II in 2013.
Judgment 24 wp4343.16
27. We find from the pleadings and the extensive
submissions advanced on behalf of the parties that entire controversy
revolves around Explanation II to Section 14(1)(b) added in 2013 by
amendment. It is now well settled that an Explanation added to a
statutory provision is not a substantive provision in any sense of the
term but as the plain meaning of the word itself shows it is merely
meant to explain or clarify certain ambiguities which may have crept
in the statutory provision. The very opening of Explanation II "For the
removal of doubts it is hereby declared" is self explanatory to indicate it's
purpose and object.
Needless to mention that the object of an Explanation to
a statutory provision is -
a) to explain the meaning and intendment of the Act itself.
b) where there is any obscurity or vagueness in the main
enactment, to clarify the same so as to make it consistent
with the dominant object which it seems to subserve,
c) to provide an additional support to the dominant object of
the Act in order to make it meaningful and purposeful,
d) an Explanation cannot in any way interfere with or change
the enactment or any part thereof but where some gap is
Judgment 25 wp4343.16
left which is relevant for the purpose of the Explanation, in
order to suppress the mischief and advance the object of
the Act it can help or assist the Court in interpreting the
true purport and intendment of the enactment and right
with which any person under a statute has been clothed
or set at naught the working of an Act by becoming an
hindrance in the interpretation of the same.
A. Further it is a cardinal principle of interpretation of statute
that the words of statute must be understood in their natural, original
or popular sense and construed according to their grammatical
meaning unless such construction leads to some absurdity or unless
there is something in the context or in the object of the statute to the
contrary. Golden Rule is that words of statute must be given their
original meaning when words are clear, plain and unambiguous. The
effect to that meaning derived from the words needs to be given
irrespective of the consequences. Needless to state that the words
themselves best declare the intention of law givers. True, the object
of legislation is to be ascertained before interpreting the provisions of
the statute.
B. In construing Explanation II inserted by Act of 2013 the
first and foremost rule of construction which would apply is literal
construction. On careful perusal of Explanation II it is apparent that
Judgment 26 wp4343.16
the language is plain, clear and unambiguous and legislative intent is
loud and explicit.
C. It is well known that the Court cannot enlarge the scope
of legislation or intention when the language of provision is plain,
clear and unambiguous. It cannot add or substract the words of a
statute or read something into it which is not there. It cannot re-write
or recast legislation. The real intention of the law givers must be
gathered from the language used in statute.
D. If we see statement of objects and reasons of the Waqf
Act, 1995 majority of members of Waqf Board of the State shall
comprise such persons as are elected from amongst Muslim
members of Parliament, Muslim members of State Legislature,
Muslim Members of Bar Council in a State and Mutawallis of Waqfs.
Nominated members are from Muslim Organizations of the State and
representatives of the State Government. Section 13, as indicated
above, deals with establishment of Boards and their functions.
Section 14 is in respect of composition of the Board. The joint
reading of Sections 13 and 14 makes it abundantly clear that the
Waqf Board is not a conglomeration of individuals. It is a statutory
body pure and simple.
Judgment 27 wp4343.16
In this situation, legislative intent in introducing
Explanation-II only to include Member of Parliament and Member of
the State Legislative Assembly being expressed from the words
employed therein cannot be overlooked and departure from the rule
of literal construction in such a case, in our view, would lead to
unwarranted expression against the express intention of the
legislature in inserting Explanation-II by way of an amendment. As
indicated above, perusal of the Waqf Act, 1995 prior to its
amendment by the Amendment Act 27 of 2013 reveals that even then
the scheme of the Act was very clear. Section 14 itself shows that
elections to all the constituent bodies or agencies cannot be held at
one time and therefore, instead of prescribing the tenure of the
Board, the Parliament found it wise to prescribe the term of a
member. Board is constituted under Section 13 once for all as ever
continuing body and its constituent members come and go as
directed by the Parliament. This parliamentary wisdom is not assailed
before us. While effecting the amendment by Act 27 of 2013, the
Parliament was aware of this scheme and only to cater to tenure of
the holders of the constitutional posts, a limited deviation has been
made by making the term of holders of such post co-terminus with
their constitutional post. The basic scheme has not been disturbed
and to make it emphatic, in Section 15, by very same amending Act,
Judgment 28 wp4343.16
words "from the date of notification referred to in sub-section (9) of Section 14" are
added. We cannot presume that the Parliament was not aware of
what it was doing. Entire Section 14, as amended, when read with
Section 13 and Section 15 make a coherent consistent scheme
complete in itself not resulting in any absurdity. Literal interpretation
of these provisions therefore, needs to be accepted and
implemented. There is no "casus omissus" and there is no question of
attempting to provide for it. Recourse to such or any other
interpretative exercise is not warranted at all. We, therefore, cannot
accept the submission of the learned Senior Advocate that the post
held by the petitioner as a member of the Waqf Board is co-terminus
to his post as a member of the Bar Council of the State.
28. Another grievance of the petitioner is in respect of
absence of bonafides on the part of respondent No.1 in issuing the
impugned notification. In this connection it is submitted that the
petitioner was very much interested in contesting the elections for the
post of Chairperson of the Board. The elections were scheduled to
be held on 3rd August, 2016. It is submitted that deliberately to
prevent the petitioner from contesting elections, election programme
was issued one day before issuing notification dated 26/07/2016 and
the entire exercise was at the behest of the interested persons. It is
Judgment 29 wp4343.16
pointed out that last meeting of the Board was convened on
05/02/2014 and thereafter all of a sudden meeting was called and
election programme was declared. The petitioner submits that the
Board became very active declaring the elections just to ensure that
the petitioner is not allowed to contest the elections and in this
background also the impugned notification being issued in malafide
manner would not stand in law.
29.
In our view, the question of malafides, as alleged by the
petitioner would not be relevant as it is a case of absence of power or
authority in issuing impugned notification.
However, keeping in view the legislative intent in
excluding Muslim members of the Bar Council of the State from
Explanation II, we hold that petitioner is eligible to continue as a
member of the Board for the period of five years as prescribed in
Section 15 of the Act of 1995 and for the reasons stated herein
before impugned notification being unsustainable in law, needs to be
quashed and set aside.
30. By order dated 2nd August, 2016 we permitted the
elections to go on as scheduled on 3rd August, 2016 and made it
Judgment 30 wp4343.16
clear that its fate shall depend upon further orders of this Court in the
matter. In consequence thereof we find it appropriate to set aside the
elections of Chairman of Maharashtra State Waqf Board held in
August, 2016.
In the above premise, we pass the following order :
a) Writ Petition No. 4343 of 2016 is partly allowed.
b)
Impugned notification dated 26/07/2016 (Annexure-
E) issued by respondent No.1 is quashed and set
aside.
c) Elections of Chairman of Maharashtra State Board
of Waqf, held in August, 2016, are also set aside.
(d) Rule is made absolute in the aforesaid terms.
(e) Pending Civil Application stands disposed of.
(f) No order to costs.
JUDGE JUDGE
At this stage learned Advocate Shri Bhandarkar
appearing for elected Chairperson seeks suspension of this order for
period of four weeks.
Judgment 31 wp4343.16
The request is being strongly opposed by learned
Advocate Shri Padhye who submits that earlier orders of this Court
have been given effect to while setting aside said election of
Chairman.
Respective Counsel appearing for other respondents
submit that Court may consider all events and pass suitable orders.
In this situation we stay the judgment and order for
period of four weeks. This interim order shall cease to operate
automatically thereafter.
JUDGE JUDGE
RRaut.
