Madras High Court
Syed Ibrahim vs The Tamil Nadu Waqf Board on 18 July, 2023
W.P.(MD).No.5280 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.07.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.5280 of 2023
and
W.M.P.(MD).No.4956 of 2023
Syed Ibrahim ... Petitioner
Vs.
1.The Tamil Nadu Waqf Board,
Represented by its Chief Executive Officer,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai.
2.The Superintendent of Waqf,
Tamil Nadu Waqf Board,
Ramanathapuram Regional Office,
No.159/3, Therpasayanam Road,
Vellipattinam,
Ramanathapuram – 623 504. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, to call for the records relating to
the impugned election notification issued by the second respondent in
e.f.vz;.$p.v];.198&200/,uhk/njm/tf/,uhk/2023 dated 23.02.2023 and
quash the same as illegal.
1/10
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W.P.(MD).No.5280 of 2023
For Petitioner : Mr.M.Mahaboob Athiff
For Respondents : Mr.K.K.Senthil,
Standing Counsel.
ORDER
This Writ Petition is filed challenging the election notification dated
23.02.2023.
2. The contention of the petitioner is that the Waqf Board is not
empowered to conduct election and the said issue is already settled in W.P.
(MD) No.13695 of 2020 dated 19.04.2023. However, the respondents
submitted that the election process was started based on the order of this Court
passed in W.P.(MD)No.5312 of 2022. The said writ petition was filed for
Mandamus, directing the respondents to include and restore 80 family members
and removed 20 death persons from the voters list. The Learned Single Judge
vide order dated 25.03.2022 has held that considering the fact that no prejudice
would be caused to the respondent Board, if the petitioner's representation is
considered. Thereafter proceeded to direct the respondents to consider the
petitioner’s representation while preparing the voter list. Based on this order,
the Wakf Board has proceeded to conduct the election.
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W.P.(MD).No.5280 of 2023
3. The respondents relied on Notification No.1 dated 09.11.2022 and
submitted that the election process was stated by issuing the said notification.
The respondents further issued Notifications 2, 3 and 4 dated 10.01.2023,
17.02.2023, 21.02.2023 respectively. The learned counsel appearing for the
respondents further relied on judgment rendered by the Hon'ble Supreme Court
in the case of Supreme Court Bar Association Vs. B.D.Kaushik reported in
2011 13 SCC 774. The relevant paragraphs are extracted hereunder:
“43. It hardly needs to be emphasized that in any body governed by democratic
principles, no member has a right to claim an injunction so as to stall the
formation of the governing body of the Association. No such right exists in
election matters since exercise of a right conferred by a rule is always subject to
the qualifications prescribed and limitations imposed thereunder. The contention
of the respondents that the amendment to the Rule whereunder the right to be
eligible to contest for any post for the Association or the eligibility to cast the vote
at the election, takes away the right completely, is misconceived since by the
amendment the right is not taken away but is preserved subject to certain
restrictions on its exercise and this could always be done.
60.Further, the appellants had rightly pointed out to the learned Judge that
election process had already started and, therefore, injunction, as claimed, should
not be granted. Since 1952 this Court has authoritatively laid down that once
election process has started the courts should not ordinarily interfere with the said
process by way of granting injunction. The argument advanced by the appellants
that election process having started, the injunction should not be granted is dealt
with by the learned Judge by holding that in the present case the plaintiffs have
not prayed for injunction against the election process.
61.This Court has no doubt at all that the injunction granted by the learned Judge
has propensity to intervene and interfere with election process which had already
started. Apart from the prayers claimed in the applications filed under Order 39
Rules 1 and 2 read with Section 151 CPC the Court could not have ignored the
effect of granting an injunction. If the injunction granted by the learned Judge had
not been stayed by this Court, the office bearers of the SCBA would have been
required to prepare a new voters list as if unamended Rule 18 was in operation
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W.P.(MD).No.5280 of 2023
and the exercise undertaken by them for preparing voters list in the light of the
amended Rule 18 would have been of no consequence. Thus the injunction
claimed by the plaintiffs/respondents which had very wide repercussions on the
elections, which were to be held in the year 2003, should not have been granted
by the learned Judge.”
4. However, this contention of the respondents is refuted by the petitioner
by stating that the election process would start only from the date of issuance of
election notification and not from the notification issued for verification of
voters list. The petitioner further submitted that Notification No.1 is only for
preparation of voters list and the same cannot be stated that the election process
has started. All other notifications stated supra are only for verification of
voters list and for deletion and inclusion of voters.
5. On perusal of the Notification No.1, it is seen the said notification is a
notice to the eligible members above 18 to enroll their names, if are not found
in the voter list within the prescribed time, the Notification No.2 is issued for
extension of prescribed time. Notification No.3 is issued to include 17 persons
in the voter list and 183 persons applications was rejected and a list is annexed
with the same. Notification No.4 was issued to include 14 persons in the voter
list. Notification No.5 dated 23.02.2023 is issued stating the time schedule for
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W.P.(MD).No.5280 of 2023
election, which indicates that on 23.02.2023 the final voter list would be issued,
nomination form would be issued etc. Notification No.7 dated 01.03.2023 was
issued listing the name of persons against the post they are contesting.
Notification No.8 issued indicating the persons who were elected unopposed.
Notification No.9 issued stating due to interim order in W.P.(MD)No.5053 of
2023, as per the Notification No.5 and Notification No.8 the scheduled election
to be conducted on 12.03.2023, would not be conducted.
6. From the above narration, it clearly indicates that the Notification 1 to
4 is issued only for addition, deletion of names and inclusion of new names in
the voter list. Therefore, this Court is of the considered opinion by issuing the
said notifications it cannot be stated that election process was started and the
election process would start only from the date of issuance of election
notification and not from the date of preliminary process of finalizing the voter
list.
7. The election time schedule is stated by issuing the Notification No.5
dated 23.02.2023. It also indicates that the model nomination form would be
issued on 23.02.2023 and other related instructions would be issued. The
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W.P.(MD).No.5280 of 2023
notification also indicates that the voting is on 12.03.2023. This Notification
No.5 was challenged in W.P.(MD)No. 5053 of 2023 and this Court by taking
note of date of voting, has granted an interim order dated 09.03.2023. Then
W.P.(MD)No.5280 of 2023 was filed, wherein the stay is granted on 13.03.2023
and both the writ petitions were tagged.
8. In the meanwhile, the petitioner has challenged the election
notification and this Court has granted an interim order dated 09.03.2023.
However, the respondents submitted that the election process was started.
Therefore, the interim order is not binding on the respondents, for which the
respondents relied on the Election Notification No.7 dated 01.03.2023. In this
notification, the respondents stated the list containing names of the contesting
candidates. The respondents have further issued another notification No.8 dated
04.03.2023. It states that some of the posts are elected unopposed. Therefore,
the respondents submitted that the election process is going on and impugned
election notification cannot be quashed.
9. This Court is not accepting the said contention for the reasons that
when the Wakf Board is not empowered to conduct election, the notification
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W.P.(MD).No.5280 of 2023
dated 01.03.2023 and 04.03.2023 are issued without jurisdiction and without
power. Moreover, this Court in W.P.(MD)No.5312 of 2022 has directed the
respondents to consider the petitioner’s representation and prepare the voter
list, but has not considered the root of the issue of jurisdiction. Hence, the said
order cannot be relied on, since any order or any consent cannot confer
jurisdiction. Therefore, this Court is inclined to quash the election notification
dated 23.02.2023 on the question of jurisdiction. Hence, the impugned order is
quashed.
10. Both the learned counsel appearing for the petitioner and the
respondent suggested that a retired Judge of this Court may be appointed to
conduct and monitor the election process. Considering the nature of issues
involved, this Court deems it fit to nominate Hon'ble Mr. Justice
D.Hariparanthaman (Retired), to conduct and to monitor the election process.
Remuneration is fixed at Rs.1,00,000/- per month (Rupees one lakh only). Both
the petitioner and the respondents shall share the remuneration amount. Also
the petitioner and the respondents shall bear the travelling and other expenses
of the Judge Commissioner.
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W.P.(MD).No.5280 of 2023
11. In addition to the above, necessary arrangements shall be made, for
the conduct of the Extraordinary General Body Meeting, Ballot papers, Box,
etc., for voting by Secret Ballot, and for such other incidental works. Both
parties shall bear the expenses for the above, and for transportation and other
incidental expenses, equally. The election process shall be completed within a
period of three (3) months from the date of receipt of a copy of this order as per
the law.
12. In view of the above, this Writ Petition is allowed in above terms.
There shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
18.07.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
Nsr
Note: Registry is directed to mark a copy to Hon'ble
Justice.Mr.D.Hariparanthaman (Retired).
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W.P.(MD).No.5280 of 2023
To
1.The Chief Executive Officer,
The Tamil Nadu Waqf Board,
No.1, Jaffar Syrang Street,
Vallal Seethakathi Nagar,
Chennai.
2.The Superintendent of Waqf,
Tamil Nadu Waqf Board,
Ramanathapuram Regional Office,
No.159/3, Therpasayanam Road,
Vellipattinam,
Ramanathapuram – 623 504.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.5280 of 2023
S.SRIMATHY, J.
Nsr
W.P.(MD).No.5280 of 2023
18.07.2023
https://www.mhc.tn.gov.in/judis
