Gujarat High Court
Abdul Vahab Mohammed Shabbir ... vs State Of Gujarat on 29 July, 2025
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Reserved On : 22/07/2025
Pronounced On : 29/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4967 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
✔
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ABDUL VAHAB MOHAMMED SHABBIR SOPARIWALA
Versus
STATE OF GUJARAT
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Appearance:
MR. ZAMIR Z SHAIKH(6857) for the Petitioner(s) No. 1
MR KAMAL TRIVEDI ADVOCATE GENERAL ASSISTED BY MR
GURSHARANSINGH H VIRK GOVERNMENT PLEADER WITH MS
DHARITRI PANCHOLI AGP WITH MR VINAY VISHEN AGP for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
[1] Since the issue involved in this petition is in a narrow
compass, at the request of the learned advocates appearing for the
respective parties, present petition is taken up for final hearing at
the admission stage.
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[2] By this petition under Article 226 of the Constitution of
India, the petitioner has approached this Court seeking writ,
direction or order to the respondent - State of Gujarat to
reconstitute the Committee with the fresh members those who are
having knowledge and experienced over the subject law and
further seeking directions upon the respondents to adopt a
consultative process involving all religious and cultural
communities before any move to the Uniform Civil Code.
[3] Brief facts giving rise to this petition can be stated as
under:
[3.1] The Hon'ble Chief Minister of the State of Gujarat, on
4th February 2025, in a Press Conference, has announced about
constitution of a Committee consisting of five members namely (i)
Smt. Ranjana Desai, Judge (Retired), Supreme Court of India; (ii)
Shri C. L. Meena, I.A.S. (Retired); (iii) Shri R. C. Kodekar,
Advocate; (iv) Shri Dakshesh Thakar, Ex-Vice Chancellor of Veer
Narmad South Gujarat University and (v) Ms. Gitaben Shroff,
Social Worker, with a view to consider whether a Uniform Civil
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Code is necessary for the citizens of the State of Gujarat. The said
Committee was to submit its report within a period of 45 days. The
said period of 45 days, thereafter, was extended from time to time.
[4] Being aggrieved and dissatisfied by the aforesaid
constitution of Committee by the respondent - State of Gujarat, the
petitioner has approached this Court by way of this petition under
Article 226 of the Constitution of India for the aforesaid reliefs.
[5] I have heard learned advocate Mr. Zamir Z. Shaikh for
the petitioner and learned Advocate General Mr. Kamal Trivedi
assisted by learned Government Pleader Mr. Gursharansingh H.
Virk with learned A.G.Ps. Ms. Dharitri Pancholi with Mr. Vinay
Vishen for the respondent - State of Gujarat.
[6] Learned advocate Zamir Shaikh for the petitioner, while
seeking reconstitution of Committee by way of Writ of Mandamus,
has fairly conceded that power of the State Government under
Article 162 of the Constitution of India is not disputed, however,
has made the following submissions:
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[6.1] Learned advocate Mr. Shaikh for the petitioner
submitted that the members of the Committee are not the experts
on the subject law and more so, they are the interested parties,
therefore, the members so selected for the Committee is against the
principles of fair play. Learned advocate Mr. Shaikh further
submitted that the object of the Committee is to see the necessity of
implementation of the Uniform Civil Code, which would cover
many personal laws like Hindu Law, Muslim Law, etc. and would
touch the many minorities such as Muslim, Christian, Parsi, Sikh,
etc. Learned advocate Mr. Shaikh further submitted that
admittedly, in the said Committee, there is no representation of any
minority communities. Thus, according to learned advocate Mr.
Shaikh, the Committee should have been reformed / reconstituted
by including representation from the minority communities so that
real purpose and object of the constitution of Committee can be
achieved.
[6.2] Learned advocate Mr. Shaikh further submitted that
implementation of the Uniform Civil Code in the State of Gujarat,
as stated hereinabove, would be materially affecting to the personal
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and religious laws of many minority communities and thereby, it is
for the State Government to have a consultative process involving
all minority communities whose personal laws are going to be
affected. Mr. Shaikh, thus, submitted that no such consultative
process has been adopted by the State and thereby, mere
constitution of the Committee, that too selecting members thereof,
in an unilateral manner, is against the basic fundamental of the
Constitution of India.
[7] By making above submissions, learned advocate Mr.
Shaikh for the petitioner has requested this Court to issue
appropriate writ, direction or order, as prayed for, in the larger
interest of justice.
[8] Per contra, learned Advocate General Mr. Kamal Trivedi
for the respondent - State of Gujarat, while opposing the present
petition, has made the following submissions:
[8.1] Learned Advocate General Mr. Kamal Trivedi for the
respondent - State of Gujarat, at the outset, submitted that in the
present case, when the petitioner has not challenged the power of
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the State Government to constitute the Committee under Article
162 of the Constitution of India, the petitioner, therefore, cannot
challenge the selection of members qua the Committee. According
to learned Advocate General Mr. Trivedi, the Writ of Mandamus
cannot be granted so far as appointment and / or selection of the
Committee members is concerned. Learned Advocate General Mr.
Trivedi submitted that constitution of Committee under Article 162
of the Constitution of India is purely an administrative action and
has nothing to do with any statutory duty of the State Government.
Learned Advocate General Mr. Trivedi further submitted that
constitution of Committee is not under any statute. According to
learned Advocate General Mr. Trivedi, therefore, there is no legal
requirement prescribed by any statute for and how such Committee
can be constituted, thereby, constitution of Committee by the State
is not a statutory duty and accordingly, it cannot be said that the
Committee so constituted by the State is in breach of any statutory
legal duties, for which, this Court would issue its prerogative writ
i.e. the Writ of Mandamus by exercising its extraordinary powers
under Article 226 of the Constitution of India. Learned Advocate
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General Mr. Trivedi, therefore, prayed this Court to dismiss the
present petition with cost.
[8.2] To substantiate the aforesaid contentions, learned
Advocate General Mr. Trivedi has placed heavy reliance on the
decisions of the Hon'ble Supreme Court in the case of Asif Hameed
and others vs. State of Jammu and Kashmir reported in 1989
Supp (2) SCC 364 and in the case of Anoop Baranwal and others
vs. Union of India and others [Writ Petition (Civil) No.1086 of
2022 decided on 9th January 2023].
[9] By making above submissions, learned Advocate
General Mr. Trivedi for the respondent - State of Gujarat has
prayed this Court to dismiss the present petition in the interest of
justice.
[10] I have heard learned advocates appearing for the
respective parties and have gone through the material produced on
record. No other and further submissions have been canvassed by
the learned advocates appearing for the respective parties, except
what are stated hereinabove.
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[11] Having heard the learned advocates appearing for the
respective parties and having considered the material produced on
record, a short question that falls for consideration of this Court is
whether, in the facts of the present case, a Writ of Mandamus can
be issued to the State Government under Article 226 of the
Constitution of India for its action constituting and / or selecting
members of the Committee, which has been constituted with a view
to consider the necessity of Uniform Civil Code for the citizens of
the State of Gujarat?
[12] So as to decide the aforesaid question, first of all, one
has to keep in mind the scope and ambit of Article 226 of the
Constitution of India in the matter of issuance of Writ of
Mandamus. Under what circumstances, the Constitutional Court
can exercise its extraordinary jurisdiction under Article 226 of the
Constitution of India. A Writ of Mandamus is the tool in the hand
of the Constitutional Court, by which the Court can keep check and
balance on the executive functions of the State, more particularly,
those are prescribed under the statute. By a Writ of Mandamus, the
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Court can issue directions upon the State authorities for having
neglected to perform statutory duties and / or against performance
of the statutory duties not in consonance with the provisions of
law. The issuance of Writ of Mandamus is regarded as prerogative
powers of the Constitutional Court. Thus, exercise of such
prerogative powers shall have to be with utmost care and
circumspection so that by virtue of such exercise of powers, routine
and general administration of the State authorities is not interfered
with. Under Article 226 of the Constitution of India, the
Constitutional Courts are having wide powers, however, such
powers are expected to be exercised in a case where the
fundamental rights of the citizens are violated and / or against the
State actions where the statutory duties are not performed. Thus, it
is the duty of the Court to satisfy itself with regard to the facts and
circumstances which justifies exercising powers under Article 226
of the Constitution of India.
[13] Keeping in mind the aforesaid basic concept, if the facts
of the present case are considered, admittedly, it appears that
constitution of Committee is not by way of any provisions of
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statute. The said Committee is not having any character of statutory
in nature. As a matter of fact, the constitution of the said
Committee is purely an administrative decision. Thus, in absence of
any statutory provisions, the authority cannot be expected and / or
directed to act in a particular manner. In other words, when the
constitution of Committee is not back by any statutory force, in that
event, selection of members of the Committee cannot be subjected
to challenge under Article 226 of the Constitution of India. The
Court, by exercising powers under Article 226 of the Constitution of
India, cannot direct the State authorities to select members in a
particular manner. Any direction and / or order, in that regard,
would be said to be unjustified and unwarranted interference in a
purely administrative affairs of the State authorities, and thereby,
this Court would not like to go in the area, which is absolutely
within the domain of the State Government on its administrative
side. More so, Article 162 of the Constitution of India permits the
State Government to take administrative decisions and thus, there
shall not be any judicial review of purely administrative decisions
taken under Article 162 of the Constitution of India by the State
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authorities. By constituting a Committee, it cannot be said that
prejudice is caused to any class of people when more particularly it
is always open for any class of people to make representation
espousing their views on the Uniform Civil Code to the Committee
so constituted. Under the circumstances, I see no good reason to
exercise extraordinary jurisdiction under Article 226 of the
Constitution of India in a realm of administrative decisions taken
under Article 162 of the Constitution of India by the State of
Gujarat.
[14] At this stage, it is profitable to take notice of the
decision of the Hon'ble Apex Court in the case of Asif Hameed
(supra). The relevant observations, in para 27, are quoted thus as
under:
"27. We may now examine the submissions. It is an admitted
fact that Mr. J.P. Kesar never functioned as part of competent
authority. The scrutiny and compilation of the selections was
done by two members namely Dr. Aga Ashraf Ali and Prof.
Satish Raina. The three member authority was not a statutory
authority. It was entrusted with the functions of executive
nature. The mere fact that one member did not participate in
the selection does not ipso facto render the selections illegal. Mr.
Anil Dev Singh disputed the validity of selection placing reliance
on the United Commercial Bank Ltd. v. Their workmen,
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[1951] SCR 380. In this case Central Government had
constituted an Industrial Tribunal for the adjudication of
industrial disputes in banking companies in exercise of its
powers under Section 7 of the Industrial disputes Act, 1947. The
tribunal was to consist of three members. One of the members
did not function on the tribunal for a period of about three
months. By a majority judgment this Court held that the two
remaining members were not a duly constituted tribunal and
any proceedings in the absence of the third member without
reconstituting the tribunal were without jurisdiction. This
Court, construing the provisions of Sections 7 and 8 of
Industrial disputes Act, 1947 read with Rule 5 of the Industrial
Disputes Rules, 1949, came to the conclusion that when a
vacancy occurred it was obligatory on the Government to notify
its decision as to whether it intended to fill up the vacancy or
not, and if the Government decided not to fill up the vacancy, a
notification under Section 7 of the Act was essential to
reconstitute the remaining members of the tribunal. The
decision was rendered on the construction of the relevant
statutory provisions and keeping in view the fact that the
tribunal was to perform quasi-judicial functions. The ratio of
this decision is inapplicable to the committee constituted by
executive order for performing purely administrative functions.
Selection of candidates for admission to medical colleges does
not involve performance of any judicial or quasi-judicial
functions. Mr. Anil Dev Singh then relied upon Avadh Bihari
Sinha v. University of Bihar, Civil Appeal No.1650 of 1967
decided by this Court on 4th January, 1968. In this case
Bihar University Regulations framed under the Bihar State
Universities Act, 1960 provided that a Board of moderators
must consist of five members of whom two must be external
experts. Two external experts were invited to join the Board but
they declined. The appointment of members to the Board was to
be completed only after they were designated and had accepted
their appointment. Three members without the two external
experts moderated an award which was set aside by this Court.
This was a case where interpreting the statutory provisions of
the regulations this Court came to the conclusion that the
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constitution of the Board of moderators was not complete
without the designation and acceptance of the appointment by
the external experts. The ratio cannot be attracted to the facts of
the present case. In the present case competent authority with
three members was constituted by an executive action. In the
absence of any statutory provision to the contrary, it was
perfectly legitimate for the authority to function with two
members. Even otherwise the written test and viva voce having
already taken place, the selection process was almost complete
and nothing much was left for the competent authority to do. It
had only to scrutinize and finalise the selection. No arguments
were addressed and not a single circumstance was pointed out
to show any prejudice to any candidate in the scrutiny and
finalisation of the selection by the authority. Mr. Altar Ahmed
fairly made all the records available in the Court. The learned
counsel for the unsuccessful candidates could not point out any
prejudice or injustice to any of them. We have, therefore, no
hesitation in rejecting this contention of the learned counsel."
[14.1] In the aforesaid decision of Asif Hameed
(supra), the Hon'ble Apex Court had an occasion to deal with the
decision in the case of United Commercial Bank Ltd. vs. Workmen
reported in 1951 SCR 380, wherein, an Industrial Tribunal was
constituted by the Central Government in exercise of powers under
Section 7 of the Industrial Disputes Act, 1947. The Tribunal was to
consist of three members. One of the members did not function on
the Tribunal for a period of about three months. Therefore, the
Hon'ble Apex Court held that two remaining members were not a
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duly constituted Tribunal and any proceedings in the absence of the
third member without reconstituting the Tribunal were without
jurisdiction. The said decision was rendered on the construction of
the relevant statutory provisions and keeping in view the fact that
the Tribunal was to perform quasi-judicial functions. The Hon'ble
Apex Court, in that context, in no uncertain terms, held that the
ratio of the said decision cannot be applicable to the Committee
constituted by the executive order for performing purely
administrative functions. So is the case here in the present case.
The Committee has neither been constituted under any statutory
provisions nor it is going to perform judicial or quasi-judicial
functions. Thus, the decision of the Hon'ble Supreme Court of India
will squarely be applicable to the present case.
[15] In view of the aforesaid discussion, this Court is of the
firm opinion that once the Committee has been constituted purely
by executive order under Article 162 of the Constitution of India, in
absence of any statutory provisions to the contrary, selection of
particular members for constitution of Committee would be within
the absolute domain of the State Government and thereby, it is
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perfectly justified for the State authorities to select the members of
the Committee and for which, Writ of Mandamus cannot be issued.
I answer the question accordingly.
[16] For the foregoing reasons, present petition is devoid of
any merit and is hereby rejected accordingly.
(NIRAL R. MEHTA,J)
CHANDRESH
