Shaikh Mahemud Shaikh Mahebub vs The State Of Maharashtra
2021 Latest Caselaw 3475 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 3983 OF 2020

 Shaikh Mahemud S/o Shaikh Mahebub
 Age : 60 years, Occu. Social Work,
 R/o. Marble House, Roshan Gate Road,
 Central Naka, Aurangabad,
 Tq. & Dist. Aurangabad                                               .. Petitioner

          Versus

 The State of Maharashtra
 Through its Secretary
 Minorities Development Department,
 Mumbai-32.                                                           .. Respondent

 Mr. V. J. Dixit, Senior Advocate i/by Mr. S. V. Dixit, Advocate for the
 Petitioner.
 Mr. S. B. Yawalkar, Addl. G. P. for sole Respondent.

                               CORAM :         S. V. GANGAPURWALA &
                                               SHRIKANT D. KULKARNI, JJ.


 Date on which reserved for order              : 22nd December, 2020.

 Date on which order pronounced                : 24th February, 2021.


 JUDGMENT (Per S. V. Gangapurwala, J.) :

1. Rule. Rule made returnable forthwith. With the consent of parties

taken up for final hearing.

2. The petitioner assails the notification dated 04.03.2020

cancelling his appointment as a member of the Waqf Board.

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3. Shorn of details the facts relevant for adjudicating the present

matter are culled out as under.

4. The petitioner was appointed as a member of the Waqf Board by

the respondent under notification dated 13.09.2019 by exercising its

powers conferred under sub section 9 and clause (C) of sub section 1 of

Section 14 of the Waqf Act, 1995 (for short 'Act of 1995) for a period of

five years from the date of publication of the notification or until

further orders whichever is earlier. Under the impugned notification

dated 04.03.2020 the appointment of the petitioner as a member of the

Waqf Board is cancelled purportedly in exercise of powers conferred by

sub section 9 r/w clause (C) of sub section 1 of section 14 of the Act of

1995.

5. Mr. V. J. Dixit, learned senior counsel for the petitioner

strenuously contends that the impugned notification is illegal. Section

14 of the Act of 1995 does not empower the respondent to cancel the

appointment of the member of the Waqf Board. None of the provisions

of the Waqf Act enables the respondent to cancel membership of the

member of the Waqf Board before completion of term of five years

except in the circumstances specified under Section 16, 19 and 20 of

the Act of 1995. To buttress his submission, the learned senior counsel

relies on the judgment of the Division Bench of this Court in Writ

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Petition No. 5566 of 2015 dated 07.08.2015. It is further contended by

the learned senior counsel that respondent has not exercised power

under Section 20 of the Act of 1995 and no procedure as required is

followed. The impugned notification does not assign any grounds for

cancellation of the membership. The impugned order is in excess of

powers of the respondent. Sub section 9 of section 14, nor clause (C) of

sub section 1 of section 14 of the Act of 1995 empowers respondent to

cancel the membership of the petitioner. The learned senior counsel

further submits that Section 15 of the Act of 1995 provides term of the

membership. The members are entitled to complete their term unless

member incurs disqualification under Section 16 or is removed under

Section 20 of the Act of 1995. The impugned notification is arbitrary

and without any reasons. It is also against the principles of natural

justice.

6. Mr. Yawalkar, learned Addl. G. P. strenuously contends that the

appointment of the petitioner is until further orders. The same is

specified in the notification dated 13.09.2019. The petitioner never

challenged the legality of the same. In view of such specific condition in

the order of appointment of the petitioner as a member, the

Government has taken decision and superseded its earlier notification

dated 13.09.2019 under notification dated 04.03.2020. The learned

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Addl. G. P. further submits that under Article 166 of the Constitution

r/w provisions made under Rules of Business and instructions issued

thereunder the allocations of the business of Government is made

amongst Ministers. The Rules of Business r/w instructions issued

thereunder provide for submission of certain matters to the Hon'ble

Chief Minister before issuing the orders. Item (23) under instruction

No. 15 issued under the Rules of Business provides that in respect of

the appointment of chairman and members of the statutory Tribunal,

the matter shall be submitted before the Hon'ble Chief Minister for

approval. As Maharashtra State Board of Waqf is a State level body and

some powers of quasi judicial in nature are vested with the members of

the Board, all matters relating to appointment of the members by

nomination by the State Government on Maharashtra State Board of

Waqf are submitted for approval to the Hon'ble Chief Minister through

Minister, Minorities Development Department and only on approval by

the Hon'ble Chief Minister the appointment orders are issued. The same

procedure was followed in respect of appointment of members of the

Board.

7. The learned Addl. G. P. further contends that in the present case,

the proposal for appointment of the petitioner as a member of

Maharashtra State Board of Waqf was submitted on 31.08.2019 to the

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then Hon'ble Chief Minister for approval through the then Hon'ble

Cabinet Minister, Minorities Development Department. The then

Hon'ble Cabinet Minister approved the proposal and instructed to

appoint the petitioner as a member of Maharashtra State Board of

Waqfs and send the file to the then Hon'ble Chief Minister. The said

appointment was neither approved nor ratified by the Hon'ble Chief

Minister. The proposal for appointment of the petitioner as a member

of the Maharashtra State Board of Waqf was not approved by the

Hon'ble Chief Minister, so the appointment of the petitioner is rightly

cancelled under the impugned notification. The appointment was not

by a competent authority as such, the same was invalid.

8. The learned Addl. G. P. submits that the judgment of this Court in

Writ Petition No. 5566 of 2015 dated 07.08.2015 (supra) would not

assist the petitioner. The learned Addl. G. P. to substantiate his

contention that the Board performs quasi judicial functions and as

such, is required to be considered as a Tribunal relies upon the

following judgments.

(i) The Bharat Bank Ltd. Delhi Vs. Employees of Bharat Bank

Ltd., New Delhi reported in AIR 1950 SC 188.

(ii) Jaswant Sugar Mills Ltd., Meerut Vs. Laxmichand and others

reported in AIR 1963 SC 697

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(iii) Mohd. Riyazul Raheman Siddiqui Vs. Dy. Director of Health

Services reported in 2006 (6)MHLJ page no. 941 (Full Bench).

9. The learned Addl. G. P. further relies upon Section 40, 51, 52, 52

(A), 54, 55, 55(A), 64, 65, 67, 69, 71 of the Waqf Act to contend that

the Board performs quasi judicial functions and as such, has the

attributes of a Tribunal.

10. The Act of 1995 is a complete Code in itself. The composition of

the Board is detailed under Section 14 of the Act of 1995. The

petitioner is nominated as a member of the Maharashtra State Board of

Waqf referring to clause (C) of sub section 1 of section 14 of the Act of

1995. The petitioner is nominated as a member as possessing

professional experience in Town Planning or Business Management,

Social work, Finance or Revenue, Agriculture and Development

activities. Section 15 of the Act of 1995 provides for the term of the

member of the Board. According to Section 15 of the Act of 1995, 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 of the Act

of 1995. Section 16 of the Act of 1995 details the disqualifications for

being appointed, or for continuing as a member of the Board. Section

20 of the Act of 1995 prescribes for removal of a chairperson and the

member of the Board.

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11. The respondent do not contend that the petitioner is disqualified

for being appointed or for continuing as a member of the Board as

contemplated under Section 16 of the Act of 1995, nor is removed for

any of the acts specified in Section 20 of the Act of 1995.

12. The impugned notification cancelling the appointment of the

petitioner as a member of the Board also does not specify any reason

for cancellation of the membership. The stand of the respondent to

substantiate their action of cancelling the membership of the petitioner

under the impugned notification is pleaded in the affidavit in reply viz.

(i) the appointment of the petitioner was not approved or ratified by

the then Hon'ble Chief Minister as required under Rules of Business and

instructions issued thereunder (ii) the appointment of the petitioner

was for a period of five years from the date of publication of the

notification dated 13.09.2019 or until further orders whichever is

earlier.

13. Section 15 of the Act of 1995 provides for the term of the

member of the Board. The same is five years from the date of

publication of the notification. The respondent's contention that the

appointment of the petitioner was for a period of five years or until

further orders would not inure to the benefit of the respondent for the

following reasons (i) Section 15 of the Act of 1995 provides for the

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fixed term of the member of the Board viz. five years unless he is

disqualified under Section 16 of the Act of 1995 or removed under

Section 20 of the Act of 1995 for the reasons specified therein.

Moreover, reliance on the 'doctrine of pleasure' would not assist the

respondent. The appointment cannot be cancelled at the whims and

fancies of the respondent. For invoking the doctrine of pleasure some

reasons should exist. During the course of argument, the respondent

did not give much emphasis on the doctrine of pleasure but the

substratum of the contention was that the appointment of the

petitioner was not approved or ratified by the Hon'ble Chief Minister as

required under item 23 under instruction No. 15 under the Rules of

Business. It will be relevant to reproduce the same. The same is in a

regional language. It reads thus :

HkkjrkP;k lafo/kkukP;k vuqPNsn 166 }kjk r;kj dsysY;k egkjk'Vª "kklu dk;Zfu;ekoyhP;k fu;e

15 vUo;s ns.;kr vkysY;k "kklukP;k dkedktklaca/kh vuqns"k

Hkkx 1 1- &&&&&& 2- &&&&&& 3- &&&&&& Hkkx 2

4- &&&&&& 5- &&&&&& 6- &&&&&&

15- ¼1½ vkns"k dk<.;kiwohZ izdj.kkaps iq<hy izdkj eq[; ea«;kdMs lknj djkosr] rs Eg.kts&

¼,d½ f"k{kk oxSjs ekQ dj.ks] f"k{kk rgdwc dj.ks] f"k{ksph rgdqch fdaok ekQh ;klkBh

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izLrko fdaok vuqPNsn 161 vuqlkj f"k{ksps fuyacu lwV fdaok rh lkSE; dj.ks ;klkBh

izLrko]

¼nksu½ fu;ekoyhP;k nqlÚ;k vuqlwph}kjs ;k vk/kh lekfo'V u dsysY;k /kksj.kkpk iz"u

mifLFkr dj.kkjh izdj.ks vkf.k iz"kklfudn`'V;k egRokph izdj.ks]

¼rhu½ izdj.ks] T;keqGs jkT;kP;k "kkarrsyk vkf.k fLFkjrsyk ck/kk iksgprs fdaok ck/kk

iksgpo.;kpk laHko vkgs] v"kh izdj.ks]

¼pkj½ &&&&&&

¼ikp½ &&&&&

¼rsfol½ fofo/k lkafof/kd U;k;kf/kdj.kkP;k v/;{k o lnL; ;kaP;k use.kqdhckcrps izLrko]

¼"kklu vkns"k] lkekU; iz"kklu foHkkx] dz- "kkdkfu&[email protected] [email protected]@18¼j-o-dk-½]

fnukad 02 ekpZ 1998 vUo;s lekfo'V dj.;kr vkys½-

14. The Maharashtra State Board of Waqf is the Board of Waqf as

incorporated under Section 13 of the Act of 1995. Sub section 3 of

section 13 of the Act of 1995 provides that the Board shall be a body

corporate having perpetual succession and a common seal with power

to acquire and hold property and to transfer any such property subject

to such conditions and restrictions as may be prescribed and shall by

the said name sue and be sued. The Tribunal is also constituted under

the Act of 1995. Section 7 of the Act of 1995 defends the jurisdiction of

the Tribunal to determine disputes regarding auqafs. Reading

instruction No. 15 (23) as relied by the learned Addl. G. P. the proposal

for appointment of chairperson and the member of the statutory

tribunal is to be submitted to the Hon'ble Chief Minister before issuing

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appointment order. The question would be whether the Maharashtra

State Board of Waqf can be equated with the statutory Tribunal

contemplated as under instruction No. 15 (23).

15. As observed above, the Board is a body corporate having a

perpetual succession and a common seal. The Tribunals are constituted

for resolving the disputes. The phrase Tribunal may not have trappings

of a Court, but includes within its realm the adjudicating bodies,

provided they are constituted by the State and are having judicial as

distinguished from purely administrative or executive functions. They

are established under the Statute. It is a seat of justice or a judicial

body with jurisdiction to render justice. The Tribunal according to the

dictionary meaning is a seat of justice and in the discharge of its

functions, it shares the characteristics of the Court. The Tribunals are

normally clothed with some of the powers of the Court. They can

compel witnesses to appear, they can administer oath, they are required

to follow certain rules of procedure. They have to decide on evidence

before them. They have to act judicially and reach their decision in an

objective manner and they cannot go ahead purely administratively or

base their conclusions on subjective tests or inclinations. The

procedural rules which regulate the proceedings before the Tribunals

and the powers available with them in dealing with matters brought

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before them, are sometimes described as the trappings of a Court and

in determining the questions as to whether a particular body or

authority is a Tribunal or not, some times a rough and ready test is

applied by requiring whether the said body or authority is clothed with

the trappings of a Court. The Tribunal may have two distinct

characteristics (1) the trappings of a Court and (2) it should be

constituted by the State, should be invested with such inherent judicial

powers as distinct with administrative or executive functions. They are

adjudicating bodies and deal with and finally decide disputes between

the parties, which are entrusted to their jurisdiction. The Tribunal is a

creature of a statute and can only exercise such powers specifically

conferred upon it. The Waqf Tribunal is constituted U/Sec. 83 of the

Waqf Act, 1995. The Waqf Tribunal is constituted by the State

Government by notification in the official Gazette for determination of

any dispute, question or other matters relating to a waqf or waqf

property. All the matters relating to the determination of any dispute,

question or other matter relating to waqf are dealt by Tribunal

constituted U/Sec. 83 of the Waqf Act. The proceedings before the

Tribunal are termed as judicial proceedings. Even orders passed by the

board can be appealed and/or challenged before the Tribunal.

 16.              The      Waqf    board        performs   administrative         functions


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essential for the safeguard of the Waqf property and Waqf and for that

purpose may conduct enquiry about the Waqf property. The Waqf board

discharges an effective role in the overall superintendence of Waqf

particularly laying down policies and acting as a watch dog and

recommending the State Government for providing necessary facilities

for Waqf administration. Removal of Mutawalis, the supervision and

supersession of the committee of management of Waqf by the board, is

an act in furtherance of its administrative and supervisory function. The

same cannot be equated with the adjudicatory powers of the Tribunal.

17. The judgments relied by the learned Addl. G. P. may not inure to

the benefit of the petitioner.

18. In a case of The Bharat Bank Ltd. Delhi (supra) the matter in

issue was whether the functions and duties of the Industrial Tribunal

are very much like those of a body discharging judicial functions,

although it is not a Court in the technical sense of the word. The Apex

Court in that case held that the word Tribunal in Article 136 of the

Constitution of India has to be construed liberally and not in a narrow

sense. An Industrial Tribunal in as much as it discharges functions of a

judicial nature in accordance with law comes within the ambit of

Article 136 of the Constitution of India.

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19. In a case of Jaswant Sugar Mills Ltd., (supra) also the Apex Court

observed that there are tribunals with many of the trappings of a Court

which nevertheless are not Courts in the strict sense for exercising

judicial power. The intention of the constitution by the use of the word

Tribunal in the article seems to have been to include within the scope

of Article 136 of the Constitution of India the tribunals alone with

similar trappings as Court, but strictly coming within that definition.

20. In the case in hand, the issue before us is different. The member

of the Waqf board cannot be equated with the member of a statutory

tribunal. The Maharashtra State Board of Waqf performs purely

administrative and executive functions. The appointment of Mutawalis,

registration of Waqf properties, removal of Mutawalis, appointment of

managing committees are administrative functions for the proper

management of the Waqf as discussed supra.

21. The irresistible conclusion of the aforesaid discussion is that the

appointment of a person as a member of the Waqf board cannot be on

the same pedestal as a member of the Tribunal. The Waqf board does

not possess the trappings of the Tribunal. Reliance on the instruction

no. 15 (23) of the Rules of Business to justify removal of the petitioner

without assigning reason is misplaced and arbitrary.

22. An arbitrary action has no place in the society governed by rule

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of law. Arbitrariness is antitheses to the rule of law, justice, equity, fair

play and good conscience. An arbitrary action cannot be sustained.

23. The impugned notification revoking the membership of the

petitioner as a member of the Waqf board is arbitrary necessitating

invocation of the plenary powers of the Court under Article 226 of the

Constitution of India. The impugned notification is quashed and set

aside.

Rule is made absolute accordingly. No costs.

 ( SHRIKANT D. KULKARNI )                      ( S. V. GANGAPURWALA )
        JUDGE                                            JUDGE




 P.S.B.




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