Delhi High Court
Rana Parween Siddiqui vs Union Of India And Ors. on 9 March, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.02.2018.
Date of Decision: 09.03.2018.
+ W.P.(C) 9980/2017 & C.M.No.40710/2017 (stay).
RANA PARWEEN SIDDIQUI ..... Petitioner
Through Mr.A.S.Chandhiok, Sr.Adv
with Mr.Sudarshan Rajan, Mr.Arjun
Gadhoke, Mr.Tejaswi Chaudhary,
Ms.Monika Tyagi, Mr.Ramesh Rawat &
Mr.Archit Arora, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondent
Through Mr.S.R.Windlesh, Advocate for
R-1.
Mr.Naushad Ahmed Khan, Advocate for R-
2&3.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
JUDGEMENT
REKHA PALLI (J)
1. The Petitioner, a practicing advocate, has approached this
Court vide the present petition under Article 226 of the
Constitution of India inter alia seeking a direction to the
Respondents to conduct the proposed elections for the
constitution of Delhi Waqf Board by taking into account the
mandate of Section 14 (1)(b)(iii) of the Waqf Act, 1995 and
thereby include the representation of a Muslim member of the
Bar Council of Delhi as one of the members of the electoral
colleges of the Board. For the sake of convenience it may be
appropriate to reproduce the prayers made by the Petitioner,
which read as under:-
"a. Direct Respondent no.3 to conduct the election for
constitution of the Board by taking into account the
mandate of Section 14(1)(b)(iii) of the Act by including in
the process the representation of the Muslim Member of
the Bar Council of Delhi as one of the Members of the
Board;
b. As a consequence of grant of prayer „a‟ direct the
Respondent no.3 to issue a corrigendum/addendum to the
public notice dated 28.09.2017 by including the post of
Member, Bar Council of Delhi in the same and
considering the Petitioner for the said post being the only
Muslim Member in the present Bar Council of Delhi;
c. In the alternate, direct the Respondents to consider
the Petitioner for the post of Member of the Board in the
category of Ex-Muslim member of the Bar Council of
Delhi under second proviso to section 14(2) of the Act as
per the mandate of the Act;
d. Pass such other further order or orders as this
Hon‟ble Court may deem fit and proper in the facts of the
case and in the interest of justice."
2. The Waqf Act, 1995 (hereinafter referred to as 'the Act')
was enacted for better administration of Waqf and matters
connected therewith. Chapter IV of the said Act, 1995, which
was amended in 2013, deals with the establishment of the Waqf
Board and its functions. While Section 14 deals with the
composition of the Board, Section 16 thereof prescribes the term
of its members to be five years as a result whereof, members of
the Waqf Board are appointed after every five years, partly by
election and partly by nomination.
3. On 27.12.2011, the Petitioner was elected as a member of
the Delhi Waqf Board under Section 14 (1)(b)(iii) of the Act by
virtue of her being a member of the Bar Council of Delhi. The
Petitioner claims that she was subsequently elected as the
Chairperson of Delhi Waqf Board, but on account of the failure
on part of Respondent no.3 to issue the requisite notification, the
Petitioner preferred a writ petition being W.P.(C)No.4226/2015
before this Court.
4. While her aforesaid writ petition was pending, an order
was issued by Respondent no.1 on 08.10.2015 superseding the
Delhi Waqf Board, which action was also challenged by the
Petitioner by way of W.P.(C)No.10047/2015, wherein this Court
vide its interim order dated 10.02.2016 directed that the vacancy
in respect of the muslim member of the Bar Council of Delhi
would not be filled up. While the aforesaid two petitions filed by
the Petitioner were pending before this Court, the tenure of the
Delhi Waqf Board was determined by efflux of time on
26.12.2016.
5. On 28.09.2017, the Respondent no.3 issued a Public
Notice displaying the electoral roll for the election of members of
Delhi Waqf Board. This electoral roll contained names of person
in categories under Sections 14(1)(b)(i), 14(1)(b)(ii) and 14
(1)(b)(iv) but did not include any name in the category under
Section 14 (1)(b)(iii) of the Act, in which category the Petitioner
claims to be the only eligible person.
6. Upon issuance of the public notice, the Petitioner being
aggrieved by the non-inclusion of her name in the electoral roll,
filed her objections thereto, which were rejected by the
Respondent no.3 on 30.10.2017. In view of the public notice
dated 28.09.2017, the Petitioner withdrew both her earlier writ
petitions with a liberty to file a fresh petition and in these
circumstances, preferred, the present petition.
7. The basic grievance as articulated by the learned Senior
Counsel for the Petitioner is, that the Respondent nos.2 & 3,
while displaying the electoral roll for the election of members of
Delhi Waqf Board vide public notice dated 28.09.2017, have
failed to act in accordance with the mandate of Section
14(1)(b)(iii) of the Act as they have totally ignored the category
of a muslim member of the Delhi Bar Council. The Petitioner
claims that she being the only muslim member of the Bar
Council of Delhi or atleast an ex- member (muslim) of the Bar
Council of Delhi, was statutorily entitled to be a part of the
electoral roll.
8. Learned Senior Counsel for the Petitioner submits that
Section 14 of the Act while laying down the composition of the
Board, first lays down the electoral roll for election of members
of the Board vide Section 14(1)(b) of the Act and thereafter vide
Section 14(2) prescribes the manner in which election of the
members in Section 14(1)(b) has to be held. The contention of
the learned Senior Counsel for the Petitioner thus is, that it was
incumbent upon the Respondents to first prepare the electoral roll
in accordance with the criteria and procedure prescribed in
Section 14(1)(b) & 14(2) of the Act and it is only in case where
there is no muslim person available to constitute the electoral
college in category of 14(1)(b)(iii) meaning thereby that there is
no existing muslim member of State Bar Council or ex-member
of the State Bar Council, that the power to nominate any Senior
Muslim Advocate from the State or Union Territory, can be
exercised by the Government.
Mr.Chandhiok, further submits that in view of the
admitted position that the Petitioner was an elected member of
the Bar Council of Delhi and fresh elections for the Bar Council
of Delhi are yet to be held, the Petitioner continues to be a
member of the Bar Council of Delhi.
9. Mr. Chandhiok, places reliance on the letter dated
26.06.2015 issued by the Bar Council of India in support of his
contention that after the expiry of the extended tenure of Bar
Council of Delhi on 29.06.2015, even though a special three
member committee had been appointed under Section 8A of the
Advocates Act, 1961, all the elected members of the Delhi State
Bar Council including the Petitioner had been directed to
continue to function under the special committee and directed to
discharge the routine functions of the Council.
10. However without prejudice to his submission, that the
Petitioner continues to be treated as a muslim member of the Bar
Council of Delhi, Mr. Chandhiok submits that even if the
Petitioner is treated only as an ex-member (muslim) of the Delhi
State Bar Council, she would still be entitled to be a part of the
electoral roll by the application of the second proviso to Section
14 (2) of the Act. He further submits that in view of the
mandatory provisions of Section 14 (1)(b)(iii) & 14(2) of the
Act, it was incumbent upon the Respondents to notify the
electoral roll by including the member from the category of Delhi
Bar Council in terms of the mandate of Section 14 (1)(b)(iii) of
the Act and in any case, in view of the second proviso to 14(2) of
the Act which provides that in case there is no muslim member in
the State Bar Council, the ex-member of the State Bar Council,
shall constitute the electoral college. The plea, thus, is that in
the absence of any muslim member in the State Bar Council, the
Respondents have to first consider whether an ex-member of the
State Bar Council is available and only if no such ex- member is
available, can the Respondents resort to nominating a Senior
Muslim Advocate.
11. On the other hand, Mr.Naushad Ahmed Khan, learned
counsel for the Respondent nos.2 & 3 opposes the writ petition as
being pre-mature on the ground that till date no member under
the category envisaged under Section 14(1)(b)(iii) had been
nominated. He also contends that the tenure of the Petitioner as
member of the Bar Council of Delhi having been expired and
fresh elections having been announced, she cannot be treated as
member of the Bar Council of Delhi and states that "as per the
knowledge and understanding of Respondent no.3", presently
there is no muslim member of Delhi Bar Council.
12. Mr.Naushad Ahmed Khan, thus disputes the very
eligibility of the Petitioner to be notified as a part of the electoral
roll for election of members of the Delhi Waqf Board in the
category envisaged under Section 14(1)(b)(iii) of the Act and
contends that the Respondents would exercise their right to
nominate any Senior Muslim Advocate in terms of proviso to
Section 14(1)(b)(iii) of the Act. He submits that the application
of the second proviso to Section 14(2) of the Act to include an
ex-member of Delhi Bar Council in the electoral college, comes
into operation only post exhaustion of its right to nominate a
Senior Muslim Advocate under the proviso to Section
14(1)(b)(iii) of the Act.
13. Having heard the learned counsel for the parties and
considered their rival contentions, I find that the only issue which
arises for consideration, revolves around the provisions of
Section 14(1)(b) and 14(2) of the Act and, therefore, before
dealing with the rival contentions, it would be appropriate to
refer to Section 14 (1),(2), (3) and (4) of the Act, which reads 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, 1 [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 1 3[auqaf] having an annual
income of rupees one lakh and above.
[Explanation I.-- xxxxx]
[Explanation II.-- xxxxx]
(c) xxxxx
(d) xxxxx
(e xxxxx
(1A) xxxxx
(2) Election of the members specified in clause (b) of
sub-section (1) shall be held in accordance with the system
of proportional representation by means of a single
transferable vote, in such manner as may be prescribed:
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 elected on the
Board:
Provided further that where there are no Muslim
Members in any of the categories mentioned in sub-clauses
(i) to (iii) of clause (b) of sub-section (1) the ex-Muslim
Members of Parliament, the State Legislature or ex-member
of the State Bar Council, as the case may be, shall constitute
the electoral college"
(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 sub-clauses (i) to (iii) of clause (b) of sub-
section (1), the State Government may nominate such
persons as the members of the Board as it deems fit.
(4) The number of elected members of the Board shall,
at all times, be more than the nominated members of the
Board except as provided under sub-section (3)."
14. The basic and in fact, the only plea, of the learned Senior
Counsel for the Petitioner is that as per the Scheme of the Act, it
is first essential for the Respondent to issue the electoral roll
under Section 14(1)(b) by including members from all the four
categories envisaged in Section 14(1)(b)(i) to 14(1)(b)(iv) and
then proceed to elect one or two members from the said list in
accordance with provisions of Section 14(2) of the Act. The
contention thus is that it is mandatory to correctly issue the
electoral roll in accordance with Section 14(1)(b) of the Act and
there is no discretion with the Respondent to exclude persons
from any of the four categories i.e. Section 14(1)(b)(i) to (iv) of
the Act.
15. Mr.Chandhiok's contention is that by deliberately failing
to include a person from category under Section 14 (1)(b)(iii) of
the Act, the Respondent have acted illegally and dehors the
Scheme of the Act, especially when it cannot be denied that the
Petitioner is a muslim member of the Delhi Bar Council or
atleast an ex-member(muslim) of the Delhi Bar Council and,
therefore, is qualified to be included in the category under
Section 14(1)(b)(iii) of the Act. He contends that the power to
nominate a Senior Muslim Advocate can be exercised only if it is
found that there is no present muslim member or an ex-member
of the State Bar Council.
16. On the other hand, the plea of the learned counsel for the
Respondents is that since there is no existing muslim member of
the Delhi Bar Council, the Respondents would have to resort to
the proviso to Section 14(1)(b)(iii) of the Act, which provides for
nomination of any Senior Muslim Advocate and, therefore,
merely because the Petitioner is an ex-member (muslim) of the
Delhi Bar Council, she cannot claim to be a part of the electoral
roll. His contention, thus, is that the second proviso to Section
14(2) of the Act comes into play only when the Respondents are
unable to nominate any Senior Muslim Advocate in terms of the
proviso to Section 14(1)(b)(iii) to the Act.
17. Having considered the scheme for appointment of
members of the Waqf Board under the
Act, I find that there are two modes for appointing members of
the Delhi Waqf Board, one by election and the other by
nomination, though there is a plenary power also under Section
14(3), where the Government has the power to make nominations
provided, it is satisfied for reasons to be recorded in writing, that
it is reasonable to constitute an electoral college for any of three
categories in clause (i) to (iii) of Section 14(1)(b) of the Act.
However, since no such plea of resort to Section 14 (3) has been
raised by the respondents, it is not necessary for me to examine
this provision in the present case.
18. In my considered opinion, a conjunct reading of Section
14(1)(b)(i) to (iv) and the Section 14(2) makes the intent of the
Legislature absolutely clear that the electoral college would
comprise of persons from each of the following four categories:-
"(i) Muslim Members of Parliament from the State or, as
the case may be,1[ 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:
(iv) mutawallis of the 3 [auqaf] having an annual income of
rupees one lakh and above."
The proviso to Section 14 (2) of the Act clearly states that
where there is no muslim member in category (iii) of Section
14(1) (b) of the Act, the ex-member of the State Bar Council of
Delhi of „shall‟ constitute the electoral college. It thus becomes
evident that the Scheme of appointment under the Act provides
for inclusion of an existing muslim member of Delhi Bar Council
to form part of the electoral college and in case of there is no
existing muslim member, the ex-member of the State Bar
Council shall form part of the electoral college. It is only in the
event none of them is available, that resort to the proviso to
Section 14(1)(b)(iii), providing for nomination of a Senior
Muslim Advocate, can be made.
19. The fact that, election is the preferred mode for
appointment of members, in the categories stipulated in Section
14 (1)(b)(i) to (iv) of the Act, is also fortified by the provisions of
Section 14 (3) of the Act, which clearly provides that only if it is
found to be not reasonably practicable to constitute the Electoral
College for any of categories under Section 14(1)(b) (i) to (iii) of
the Act, can the State Government make a resort to the process of
nomination. As observed hereinabove, it is not the Respondents'
case either in their rejection letter or in their counter affidavit that
it was not reasonably practicable for them to constitute the
Electoral College for the category provided under Section
14(1)(b)(iii) of the Act. The plea of the Respondents that they
have to first exhaust their right of nomination of a Senior Muslim
Advocate as per proviso to Section 14(1)(b)(iii) before including
an ex-member of the State Bar Council in terms of proviso to
Section 14(2) of the Act, runs contrary to the intent and scheme
of the Act, which is based on the underlying principle that an
elected representative must preferably represent each of the
categories in Section 14(1)(b)(i) to (iv) in the Waqf Board.
20. The plea of the Respondents that in the absence of a
present muslim member of the State Bar Council, they have to
resort to exercise of their power to nominate a Senior Muslim
Advocate qua category Section 14(1)(b)(iii), also runs contrary to
the mandate of Section 14(4) of the Act as it would increase the
number of nominated members of the Delhi Waqf Board to four,
the remaining three nominated coming from sub-section 14(1)(c)
to (e) which provides for 'nomination'. Once the statute makes
two distinct categories and provides for four elected members
and three nominated members with a specific rider in Section
14(4) of the Act which provides that "elected members of the
Board shall, at all times, be more than the nominated members of
the Board, except as provided under sub-section(3)", the
Respondents cannot be allowed to circumvent the intent of the
Legislature by resorting to nomination of Senior Muslim
Advocate even when an ex-member of the Delhi Bar Council i.e.
the Petitioner is very much available.
21. In my considered opinion, the power to nominate in terms
of the proviso to Section 14(1)(b)(iii) of the Act, would come
into play only when there is no existing muslim member or an
ex-member (muslim) of the State Bar Council. Any other
interpretation thereof, would make the second proviso of Section
14(2) of the Act absolutely redundant.
22. In every case, where there is no existing muslim member
in the State Bar Council, if it were held that the Respondents
would have the power to resort to nominate a Senior Muslim
Advocate by invoking the proviso to Section 14(1)(b)(iii), the
second proviso to Section 14(2) which specifically states that
"provided further that where there are no Muslim Members in
any of the categories mentioned in sub-clauses (i) to (iii) of
clause (b) of sub-section (1), the ex-Muslim Members of
Parliament, the State Legislature or ex-member of the State Bar
Council, as the case may be, shall constitute the electoral
college", will virtually become meaningless and despite the use
of the words "shall constitute the electoral college" for an ex-
member of the State Bar Council in the Act, an ex-member of the
State Bar Council would be easily ousted by nominating a Senior
Muslim Advocate. This certainly cannot be permitted.
23. I am fortified in my aforesaid conclusion by the
observations of the Hon'ble Supreme Court in para 21 of
Commissioner of Income Tax v. Hindustan Bulk Carriers
reported as (2003) 3 SCC 57, which read as under:
"21. The provisions of one section of the statute cannot
be used to defeat those of another unless it is
impossible to effect reconciliation between them. Thus
a construction that reduces one of the provisions to a
"useless lumber" or "dead letter" is not a harmonised
construction. To harmonise is not to destroy."
24. In the light of the conclusion at which I have arrived, by
holding that the power to nominate a Senior Muslim Advocate
can be exercised only if there is neither any existing muslim
member or an ex-member of the State Bar Council, I have
refrained from examining the question as to whether the
Petitioner can be treated as an existing muslim member of the
Delhi Bar Council, since there is no denial to the fact that the
Petitioner has been a member of the Delhi Bar Council and
would be covered atleast in the category of Muslim Member of
Delhi Bar Council.
25. For all the aforesaid reasons, the petition is entitled to
succeed and the action of the Respondents in not including the
available ex-member of the Bar Council of Delhi in the electoral
roll issued on 28.09.2017, cannot be sustained.
26. Since the Respondents have not denied the fact that the
Petitioner is the only ex-member (muslim) of Delhi Bar Council,
the Respondents are directed to issue a corrigendum to the public
notice dated 28.09.2017 by including name of the Petitioner, as a
part of the electoral roll for the election of members of Delhi
Waqf Board.
27. The writ petition is allowed in the above terms with no
order as to costs.
(REKHA PALLI)
JUDGE
MARCH 09, 2018
sr
