THE STATE OF TAMIL NADU & ANR. versus K. FAZLUR RAHMAN & ANR. on 3 November 2020

SUPREME COURT REPORTS

[2020] 9 S.C.R.

ATHE STATE OF TAMIL NADU & ANR.

v.

K. FAZLUR RAHMAN & ANR.

(Civil Appeal Nos. 3603-3605 of 2020)

BNOVEMBER 03, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Waqf Act, 1995 – The Tamil Nadu Waqf Board constituted on10.10.2017 consisted of 11 Muslim members – One Muslim MemberCof Parliament; two Muslim Members of State Legislature; two seniorMuslim advocates; two Mutawallis; one person with professionalexperience; two recognized scholars of Shia and Sunni Islamictheology and one State Government Nominee – The State Governmentissued a notification dated 18.09.2019 in exercise of powerDu/s. 99(1) of the 1995 Act superseding the Waqf Board – The Statewas of the opinion that two senior advocates who were nominatedas members u/s. 14(1)(b)(iii) proviso cannot be treated as electedmembers hence the number of elected members are less thannominated members resultantly, the Board is unable to perform itswork as per the Waqf Act, 1995 – The process for reconstituting theEWaqf Board was initiated by order dated 14.07.2020 – Three writpetitions were filed – Two questioning the order dated 18.09.2019and one for quashing the press release dated 14.07.2020 – All thewrit petitions were decided by the High Court by the commonjudgment dated 17.08.2020 – Although, the High Court held thatFsupersession dated 18.09.2019 was not in accordance with law,however, the said order was set aside insofar as the election of twopersons under Mutawallis category alone – The High Court hadquashed the order dated 18.09.2019 insofar as two members of theboard of Mutawallis constituency was concerned, process forelecting/nominating other members of the Board was untouched andGwas completed – On appeal, held: s.22 is a clause which savesproceedings of the Board from invalidity due to reason only of theexistence of any vacancy or any defect in the constitution – Whenthe initially Board was constituted on 10.10.2017, the objective asenshrined in s.14 was not fulfilled even in the initial constitution, H

the Board has been superseded not due to any action, inaction oromission and misconduct on the part of the Board rather due tonumber of elected members becoming less than to the nominatedmembers – The order dated 18.09.2019 spells out the reason forsupersession, Member of Parliament whose term came to end inMay, 2019, other members of the Board as constituted on10.10.2017 were same, thus, the circumstance which has been takenas ground for supersession of the Board was not any action of theBoard – The event of cessation of membership of an elected memberis not under control of the Board – It was the duty of the StateGovernment to constitute the Board as per the objectives enshrinedin s.14(4) and any lapse there in cannot be a ground for supersedingthe Board – Further, the second proviso to s.99 contains aninjunction that the power of the State Government shall not beexercised unless there is a prima facie evidence of financialirregularity, misconduct or violation of the provisions of the Act –In view of the second proviso to s. 99, present was not a case whereState could have exercised its power of supersession of the Board –The High Court did not commit any error in holding supersessionas contrary to law – Insofar as setting aside the notification partiallyas regard to two elected members of the Mutawalli category isconcerned, only one category petitioners were before the HighCourt, it confined relief to that category – The High Court has notinterfered with the fresh constitution of the Board by election andnomination of other categories except the category u/s. 14(1)(b)(iv)– Thus, the order of the High Court is upheld.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The Waqf Act, 1995 enumerates various powersand functions of the Board. When the Board is constituted it isentitled to exercise its powers and functions as enumerated invarious Sections including Sections 32, 38, 39, 41, 48 and 53,etc. Section 22 is a clause which saves proceedings of the Boardfrom invalidity due to reason only of the existence of any vacancyor any defect in the constitution. [Para 21][921-E-F]

2. That in event there is vacancy in the Board or any defectthereof, the proceedings or act of the Board are not to beinvalidated which has been saved by Section 22. Thus, when the AB

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Ainitially Board was constituted on 10.10.2017, the objective asenshrined in Section 14 was not fulfilled even in the initialconstitution, the Board has been superseded not due to any action,inaction or omission and misconduct on the part of the Boardrather due to number of elected members becoming less than tothe nominated members. The order dated 18.09.2019 spells outBthe reason for supersession, i.e., a Member of Parliament whoseterm came to end in May, 2019, other members of the Board asconstituted on 10.10.2017 were same, thus, the circumstancewhich has been taken as ground for supersession of the Boardwas not any action of the Board. The event of cessation ofCmembership of an elected member is not under control of theBoard. It was the duty of the State Government to constitute theBoard as per the objectives enshrined in Section 14(4). The StateGovernment has ample power to conduct election for themembers as enumerated in Section 14(i)(b), (i) to (iv). [Para22][921-G-H; 922-A-B]D

3. In the facts of the present case, the State Governmentcould have very well complied with objective of Section 14(4) byconducting an election for members under Section 14(1)(b)(iii)by permitting nominated members to continue till the election isheld. The State has further option to exercise power under SectionE14(3) in event State was satisfied that it is not reasonablypracticable to constitute an electoral college for any of thecategories mentioned in sub-clauses (i) to (iii) of clause (b) ofsub-section (1), the State could have then nominated underSection 14(3) which nomination shall have overriding effect on Fthe objective of Section 14(4) since sub-section (3) begins withnon obstante clause “Notwithstanding anything contained in thissection,”. The obligation on the State Government to constitutethe Board in accordance with Section 14 keeping in view theobjective under Section 14(4) was both right and duty of the State and any lapse therein cannot be a ground for superseding theGBoard. [Para 23][922-C-E]

4. The objective and purpose of the second proviso toSection 99 which has been inserted by Act 27 of 2013. Secondproviso contains an injunction that the power of the StateGovernment shall not be exercised unless there is a prima facieH

evidence of financial irregularity, misconduct or violation of theprovisions of the Act. The present is not a case of any allegationof any financial irregularity or misconduct on the part of the Board.[Para 24][922-F-G]

5. The second proviso has to be read in conjunction withthe main provision. The second proviso contains furtherrestriction on the power of State Government to supersede theBoard, i.e., unless there is prima facie evidence. There can beno dispute that prima facie evidence of financial irregularity,misconduct has to be prima facie financial irregularity ormisconduct by the Board which is sought to be superseded. Thethird expression that is “violation” of the provisions of this Acthas also to be read in the same manner that is violation of theprovisions of this Act by actions of the Board. Thus, the legislativeintendment as contained in second provision to Section 99, presentwas not a case where State could have exercised its power ofsupersession of the Board. In view of the foregoing discussion,the High Court did not commit any error in holding supersessionas contrary to law. [Para 26][923-B-D]

6. The submission that the High Court ought not to haveset aside the notification partially insofar as two elected membersof the Mutawalli category only. It is to be noted that the HighCourt had categorically held that supersession order is notsustainable in law but after holding that, the High Court hadmoulded the relief in the facts of the present case and subsequentevents which had taken place. Two writ petitions being WritPetition No.8377 and 9557 of 2020 which have been allowed bythe High Court were filed by ‘S’ who was elected member fromthe Mutawalli category. Since, only one category petitioners werebefore the High Court, it confined the relief to that category.This Court need not dwell into the question any further sincethere is no further challenge on behalf of the writ petitioners thatsupersession order ought to have been set aside in toto. It isState which has come in the appeals against the judgment of theHigh Court which has partially set aside the notification dated18.09.2019 for Mutawalli category only. The High Court has notinterfered with the fresh constitution of the Board by electionand nomination of other categories except the category under AB

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ASection 14(1)(b)(iv). In view of the foregoing discussion, thisCourt, thus, upheld the order of the High Court. [Para 27][923-D-H]

M.H. Jawahirullah and Others v. Government of TamilNadu and Others (2013) 3 MLJ 688 – referred to.

BCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3603-3605 of 2020.

From the Judgment and Order dated 17.08.2020 of the High Courtof Judicature at Madras in Writ Petition Nos. 726 of 2020, 8377 of 2020and 9557 of 2020.C

C.S. Vaidhyanathan, Jayanth Muthraj, Ratnakar Dash, Sr. Advs.,M. Yogesh Kanna, Rajarajeswaran, G. Sivabalamurugan, H. MohamedGhouse, Mehmood Pracha, Ms. K. V. Bharathi Upadhyaya,Yashovardhan Oza, Sanawar, Jatin Bhatt, Advs. for the appearing parties.

DThe Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. These appeals have been filed against the common judgmentof the High Court of Judicature at Madras dated 17.08.2020 in WritEPetition Nos.726 of 2020, 8377 of 2020 and 9557 of 2020. The DivisionBench of the High Court by the impugned judgment has allowed WritPetition Nos. 8377 and 9557 of 2020. The State of Tamil Nadu aggrievedby the impugned judgment has come up in these appeals.

3. The brief facts of the case to be noted for deciding these appeals Fare:

The Tamil Nadu Waqf Board is a statutory body governed by theWaqf Act, 1995. The term of earlier Waqf Board expired on 14.06.2017and thereafter the State of Tamil Nadu reconstituted Tamil Nadu WaqfBoard by order dated 10.10.2017. The Board constituted on 10.10.2017Gconsisted of 11 Muslim members to the following effect:

“Muslim Member of Parliament

Thiru A. Anwhar Raajhaa, M.P.

THE STATE OF TAMIL NADU & ANR. v. K. FAZLURRAHMAN & ANR. [ASHOK BHUSHAN, J.]

Muslim member of State Legislature

1. Thiru K.A.M. Muhammed Abubacker, M.L.A.

2. Thiru K.S. Masthan M.L.A.

Senior Muslim Advocates

1. Thiru A. Sirajudeen

2. Thiru M. Ajmal Khan

Mutawallis

1. Dr. Haja K. Majeed

2. Thiru Syed Ali Akbar

Person with professional experience

Thiru A. Tamilmahan Hussain

Recognized scholars Shia and Sunni Islamic Theology

1. Tmt. Amatul Atifa, Scholar in Shia Islamic Theology

2. Tmt. A.S. Fathima Muzaffer, Scholar in Sunni Islamic Theology State Government Nominee Thiru M.A. Siddique, I.A.S.”

4. Two Senior Muslim Advocates as referred above werenominated by the State Government in exercise of power under provisoto Section 14(1)(b)(iii) of the Waqf Act, 1995. One Muslim Member ofParliament, two Muslim Members of State Legislature and twoMutawallis were elected members under Section 14(1)(b). Thenomination of two Senior Muslim Advocates was challenged before theHigh Court by a writ petition which was dismissed upholding thenomination.

5. The State Government issued a notification dated 18.09.2019in exercise of power under Section 99(1) of the Waqf Act, 1995(hereinafter referred to as the “Act, 1995”) superseding the Waqf Board.The notification dated 18.09.2019 was issued after issuance of showcause notice to the 10 members of Waqf Board existing at that time.

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AThe membership of A. Anwhar Raajhaa, Member of Parliament ceasedin May, 2019 reducing number of members as 10. The State Governmentwas of the opinion that two Senior Advocates who were nominated asmembers under Section 14(1)(b)(iii) proviso cannot be treated as electedmembers hence the number of elected members are less than nominatedmembers resultantly the Board is unable to perform its work as per theBWaqf Act, 1995. The ground of supersession is mentioned in paragraph8 of the notification 18.09.2019 which is to the following effect:

“8. And whereas, the Tamil Nadu Waqf Board has been calledupon to show cause within 7 days from the receipt of that noticeas to why the Tamil Nadu Waqf Board should not be supersededCby the State Government under Section 99 of the Waqf Act, 1995.Further it has also been mentioned therein that in case no reply isreceived within stipulated time, action will be pursued in accordancewith law. The show cause notice was served to all the present 10members of the Tamil Nadu Waqf Board. In response to the showDcause notice, out of 10 members 4 members namely, ThiruvalargalK.A.M. Muhammed Abubacker, M.L.A., A.S. Fathima Muzaffer,Dr. Haja K. Majeed, Syed Ali Akbar, Members, Tamil Nadu WaqfBoard alone have sent their replies to the Government. They havestated that the Senior Advocates nominated as Members can beconsidered as elected members and requested that the supersedingEprocess may be dropped. In this regard, the Government hadalready received legal opinion that the Senior Advocates can beconsidered as nominated members. In view of above, the electedmembers are less than the nominated members and the Board isunable to perform its functions as per the Waqf Act, 1995. ThiruFA. Sirajudeed, member, Tamil Nadu Waqf Board withoutresponding to the notice has submitted his resignation as a memberof the Tamil Nadu Waqf Board, citing personal reasons vide hisletter dated 09.09.2019.”

6. The period of Waqf Board was further extended by another sixGmonths upto 07.09.2020 by order dated 20.05.2020. The process forreconstituting the Waqf Board was initiated by order dated 14.07.2020.Writ Petition No.7661 of 2020 was filed challenging the order dated14.07.2020. The writ petition was dismissed by a learned Single Judgeof the High Court vide its judgment dated 24.07.2020 upholding theprocess of election initiated by order dated 14.07.2020. Writ PetitionH

No. 8377 of 2020 (Syed Ali Akbar vs. State of Tamil Nadu) was filedquestioning the order dated 18.09.2019 superseding the Board as wellas order dated 12.05.2020. Syed Ali Akbar was elected member of theBoard reconstituted on 10.10.2017 from the constituency of Mutawallis.Syed Ali Akbar filed another Writ Petition No.9557 of 2020 before theMadras High Court praying for issuances of writs for quashing the pressrelease dated 09.06.2020 and consequential press release dated14.07.2020. The respondent, K. Fazlur Rahman filed Writ Petition No.726of 2020 challenging the Government order dated 18.09.2019 by way ofPublic Interest Litigation in which writ petition an interim order dated18.03.2020 was passed by the High Court to the effect that any actiontaken during the interregnum shall be subject to the result of the writpetition. All the writ petitions were decided by the High Court by thecommon judgment dated 17.08.2020. Although, the High Court held thatsupersession dated 18.09.2019 was not in accordance with law, however,the said order was set aside insofar as the election of two persons SyedAli Akbar and Dr. Haja K. Majeed alone. In paragraphs 22 and 23following was held by the High Court:

“22. For these reasons, we accordingly hold that the orderpassed by us including the observation made on the impugnedorder would be applicable to these two persons alone. We havealso been told that the process is completed for all otherconstituencies except mutawalli constituency.

23. Accordingly, the impugned order of supersession inG.O.(Ms.) No.58 (Backward Class, Most Backward Class andMinorities Welfare (T1) Department) dated 18[th] September 2019and the consequential orders stand set aside insofar as the electionof two persons viz.,.Syed Ali Akbar and Dr. Haja K. Majeed aloneare concerned. The writ petitions in W.P. Nos.8377 and 9557 of2020 stand allowed accordingly.”

7. As per the election programme issued on 14.07.2020, the dateof polling was fixed on 19.08.2020. The schedule of dates for variousstages of election to constitute the Tamil Nadu Waqf Board was publishedin the Tamil Nadu Government Gazette dated 15.07.2020. The HighCourt by the impugned order dated 17.08.2020 had quashed the orderdated 18.09.2019 insofar as two members of the Board of Mutawallisconstituency are concerned, process for electing/nominating othermembers of the Board was untouched and was completed. In the SLP

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Agiving rise to these appeals, an interim order was passed on 28.08.2020staying of the operation of the impugned judgment dated 17.08.2020.The counter-affidavit has been filed both by respondent No.1, K. FazlurRahman as well as Syed Ali Akbar, respondent No.2.

8. We have heard Shri C.S. Vaidhyanathan, Senior AdvocateBappearing for the appellant, Shri Ratnakar Dash, Senior Advocateappearing for respondent No.1 and Shri Mehmood Pracha, Advocateappearing for respondent No.2.

9. Shri C.S. Vaidhyanathan, learned senior counsel for theappellant submits that Section 14(4) of the Act, 1995 provides that electedCmembers of the Board shall at, all time, be more than the nominatedmembers of the Board. In May, 2019 the number of elected membersbecame four with six nominated members, making the Board unable toperform its functions. Therefore, in exercise of power under Section 99of Act, 1995, the Board was superseded vide G.O. dated 18.09.2019.The State Government has rightly exercised the power under Section 99Dand the Government formed the opinion that the Board is “unable toperform”, hence the supersession was ordered. The supersession dated18.09.2019 was extended by subsequent notification dated 16.03.2020.The Division Bench committed error in setting aside the notification dated18.09.2019 partially. There can be no partial setting aside of theEsupersession order. The validity of the supersession order was upheldby the High Court in Writ Petition No.20417 of 2019 vide its judgmentdated 12.11.2019. The supersession order was challenged by Syed AliAkbar only in July, 2020 with delay and laches. The election processhaving once started could not have been interfered by the High Court. Itis not disputed that there are only 10 members in the Board at the relevantFtime after Member of Parliament demitted office. The number ofnominated members being more than the elected members the Statehad no option except to supersede the Board and start fresh process forconstituting the Board. The validity of notification dated 15.07.2019 wasupheld by the High Court in Writ Petition No.20085 of 2019 by its judgmentGdated 12.11.2019 which issue had become final. The writ petitionproceedings initiated by the respondent is barred by constructive resjudicata. The High Court vide impugned judgment violated the principlesof comity of Court as different benches of the High Court had upheldthe validity of the notification dated 15.07.2020. After the interim orderpassed by this Court on 28.08.2020, without prejudice to the outcome ofH

the instant case, election was held on 09.09.2020 by secret ballot andthe votes polled were counted on 10.09.2020. A. Abdul Rahman and M.Mohamed Basheer declared elected subject to further orders.

10. Shri Ratnakar Dash, learned senior counsel for respondentNo.1 submits that provision of Section 14(4) was not violated since twoSenior Advocates who have been nominated under Section 14(1)(b)(iii)proviso should have been declared as elected members in which casenumbers of elected members shall not be less than nominated members.Shri Dash submits that there was no ground for invoking Section 99 inthe facts of the present case.

11. Shri Mehmood Pracha, learned counsel appearing forrespondent No.2, submits that present was not the case where powerunder Section 99 could have been invoked. It is submitted that as persecond proviso to Section 99(1) the power of the State Government canbe exercised only when there is a prima facie evidence of financialirregularity, misconduct or violation of the provisions of this Act. It issubmitted that the grounds given for supersession in the order dated18.09.2019 are not covered by Section 99(1) especially second proviso.It is submitted that responsibility to constitute the Board is on the StateGovernment hence it cannot take benefit of its own wrong. It was forthe State to ensure that number of elected members is not less than thenominated members. It is submitted that State was obliged to ensurecompliance of Section 14(4). He submits that under Section 14(2) inabsence of any Muslim member of the State Bar Council ex-membersshall constitute the electoral college, hence election ought to be conductedunder Section 14(1)(b)(iii). He submitted that nomination of two SeniorAdvocates under Section 14(1)(b)(iii) was void. It was State Governmentwhich had included two Senior Lawyers in the Board which cannot besaid to be any violation committed by the Board. He submits that term ofthe members is five years which cannot be curtailed.

12. Shri C.S. Vaidhyanathan, in his rejoinder affidavit, submitsthat there are no findings or allegation of any kind of mala fide on thepart of the State Government which submission cannot be raised by therespondents in these appeals. He submits that the High Court ought notto have set aside the notification dated 18.09.2019.

13. We have considered the submissions of the learned counselfor the parties and perused the records.

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14. We need to first consider the scheme of Section 14 of the Act,1995 regarding constitution/Composition of Board which provision is asfollows:

“Section 14. Composition of Board.—(1) The Board for a Stateand the National Capital Territory of Delhi] shall consist of—

(a) a Chairperson;

(b) one and not more than two members, as the StateGovernment may think fit, to be elected from each of theelectoral colleges consisting of—

(i) Muslim Members of Parliament from the State or, asthe case may be, 3 [the National Capital Territory of Delhi];

(ii) Muslim Members of the State Legislature;

(iii) Muslim members of the Bar Council of the concernedState or Union territory: Provided that in case there is noMuslim member of the Bar Council of a State or a Unionterritory, the State Government or the Union territoryadministration, as the case may be, may nominate any seniorMuslim advocate from that State or the Union territory, and

(iv) mutawallis of the auqaf having an annual income ofrupees one lakh and above.

Explanation I.—For the removal of doubts, it is herebydeclared that the members from categories mentioned insub-clauses (i) to (iv), shall be elected from the electoralcollege constituted for each category.

Explanation II.—For the removal of doubts it ishereby declared that in case a Muslim member ceases tobe a Member of Parliament from the State or NationalCapital Territory of Delhi as referred to in sub-clause (i) ofclause (b) or ceases to be a Member of the State LegislativeAssembly as required under sub-clause (ii) of clause (b),such member shall be deemed to have vacated the officeof the member of the Board for the State or National CapitalTerritory of Delhi, as the case may be, from the date fromwhich such member ceased to be a Member of Parliamentfrom the State National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case maybe;]

(c) one person from amongst Muslims, who has professionalexperience in town planning or business management, socialwork, finance or revenue, agriculture and development activities,to be nominated by the State Government; (d) one person each from amongst Muslims, to be nominatedby the State Government from recognised scholars in Shia andSunni Islamic Theology; (e) one person from amongst Muslims, to be nominated by theState Government from amongst the officers of the StateGovernment not below the rank of Joint Secretary to the StateGovernment; (1A) No Minister of the Central Government or, as the casemay be, a State Government, shall be elected or nominated asa member of the Board: Provided that in case of a Unionterritory, the Board shall consist of not less than five and notmore than seven members to be appointed by the CentralGovernment from categories specified under sub-clauses (i)to (iv) of clause (b) or clauses (c) to (e) in sub-section (1):

Provided further that at least two Members appointedon the Board shall be women:

Provided also that in every case where the system ofmutawalli exists, there shall be one mutawalli as the memberof the Board.

(2) Election of the members specified in clause (b) of sub-section (1) shall be held in accordance with the system ofproportional representation by means of a single transferablevote, in such manner as may be prescribed:

Provided that where the number of Muslim Membersof Parliament, the State Legislature or the State Bar Council,as the case may be, is only one, such Muslim Member shall bedeclared to have been elected on the Board:

Provided further that where there are no MuslimMembers in any of the categories mentioned in sub-clauses (i)

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to (iii) of clause (b) of sub-section (1) the ex-Muslim Membersof Parliament, the State Legislature or ex-member of the StateBar Council, as the case may be, shall constitute the electoralcollege.

(3) Notwithstanding anything contained in this section, whereBthe State Government is satisfied, for reasons to be recordedin writing, that it is not reasonably practicable to constitute anelectoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the StateGovernment may nominate such persons as the members ofthe Board as it deems fit.

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(4) The number of elected members of the Board shall, at alltimes, be more than the nominated members of the Board exceptas provided under sub-section (3).

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15. As noted above when the Board was constituted initially on10.10.2017 there was one elected member under Section 14(1)(b)(i),two elected members under Section 14(1)(b)(ii) and two elected membersunder Section 14(1)(b)iv). Thus, there were five elected members. TheState Government had nominated two Senior Advocates under SectionE14(1)(b)(iii) proviso, since, there was no Muslim member from the BarCouncil of the State. Under Section 14(1)(c), (d) and (e) total fourmembers were nominated. Initially the stand of the State was that twomembers nominated under Section 14(1)(b)(iii) are to be treated aselected members, thus, due to which State claimed composition of Boardin accordance with Section 14(4). On receipt of the legal advice thatFmembers under Section 14(1)(b)(iii) proviso cannot be treated as electedmembers of the Board, Government formed the opinion that number ofelected members are less than nominated members. Consequently,proceeded to supersede the Board by notification dated 18.09.2019. Thecomposition of Board as provided under Section 14 consists of bothG“elected” and “nominated members”, wherever the words ‘nominatedmembers’ have been used, there can be no circumstances that they canbe treated as elected members. Section 14(4) which provides that numberof elected members of the Board shall at, all times, be more than thenominated members of the Board, is subject to an exception which isprovided in sub-Section (3). Sub-section (3) contemplates that whereH

the State Government is satisfied, for reasons to be recorded in writing,that it is not reasonably practicable to constitute an electoral college forany of the categories mentioned in sub-clauses (i) to (iii) of clause (b) ofsub-section (1), the State Government may nominate such persons. Ifnomination is made under Section 14(3), in such situation mandate ofSection 14(4) shall not be applicable, thus, Section 14 itself contemplatessituation where there may be more nominated members than the electedmembers.

16. It is the State Government which is to establish a Board asper composition provided under Section 14. Section 14(4) is a provisionwhich incorporates democratic principles in constitution of the Board.The Legislature contemplates that Board is to be run by majority ofelected members which is to ensure democratic principle and make thevoice of elected representatives a determining factor in the decisions ofthe Board.

17. From the facts as noted above, there can be no dispute that atthe time when the Board issued show cause notice as well as notificationdated 18.09.2019, the number of elected members was less than thenumber of nominated members. The provision of Section 14(4) whichmandates that number of elected members of the Board shall at, alltimes, be more than the nominated members of the Board is a provisioncompliance of which has to be ensured by the State which is authorisedto constitute the Board. While constituting the Board, the StateGovernment has to be conscious of the fact that the composition ofBoard shall be such which may fulfill the objectives enshrined in Section14(4). The State Government when makes nomination of two SeniorAdvocates under Section 14(1)(b)(iii), the said nomination was bound tohave adverse effect on requirement of Section 14(4). While constitutingthe Board as per Section 14, the State has to keep in mind the principlesand objectives as enshrined in Section 14(4) and constitution of Boardshall be such as to give effect to the democratic principle which is toguide the Board in its functions.

18. In this context, we may also notice a Division Bench judgmentof Madras High Court in M.H. Jawahirullah and others vs.Government of Tamil Nadu and others, (2013) 3 MLJ 688, wherethe Madras High Court has correctly noticed the legislative intendmentwhile constituting the Board under Section 14 of the Act. Followingobservation had been made in paragraph 27:

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A“27......Primacy given to democratic process of administration andsupervision in Wakf Board Management is apparent. In fact, theStatement of Objects and reasons shows this composition andelection is an important feature of the Wakf Act. Since the intentionof the Legislature is to have democratic process of administrationand supervision in Wakf Board Management, the State cannotBavoid election and resort to nomination arbitrarily. The onlyexception is Section 14(3). In Section 14(3), the Government isgiven discretion to exercise power to nominate such persons asmembers of the Board.”

19. After noticing the scheme of Section 14 now we come toCSection 99 which has been invoked by the Government in supersedingthe Board constituted on 10.10.2017. Section 99 of the Act, 1995 provides:

“Section 99. Power to supersede Board.—(1) If theState Government is of opinion that the Board is unable to performor has persistently made default in the performance of, the dutyDimposed on it by or under this Act or has exceeded or abused itspowers, or has wilfully and without sufficient cause failed tocomply with any direction issued by the Central Government undersection 96 or the State Government under section 97, or if theState Government is satisfied on consideration of any reportEsubmitted after annual inspection, that the Board’s continuance islikely to be injurious to the interests of the auqaf in the State, theState Government may, by notification in the Official Gazette,supersede the Board for a period not exceeding six months:

Provided that before issuing a notification under this sub-Fsection, the State Government shall give a reasonable time to theBoard to show cause why it should not be superseded and shallconsider the explanations and objections, if any, of the Board:

Provided further that the power of the State Government underthis section shall not be exercised unless there is a prima facieGevidence of financial irregularity, misconduct or violation of theprovisions of this Act.

(2)....................

(3)....................”

20. Section 99 (1) provides that if the State Government is ofopinion that the Board is unable to perform or has persistently madedefault in the performance of, the duty imposed on it by or under this Actor has exceeded or abused its powers, or has wilfully and withoutsufficient cause failed to comply with any direction issued by the CentralGovernment under Section 96 or the State Government under Section97, or if the State Government is satisfied on consideration of any reportsubmitted after annual inspection, that the Board’s continuance is likelyto be injurious to the interests of the auqaf in the State, the Governmentmay supersede the Board. The ground for superseding the Board in thenotification dated 18.09.2019 is that Board is unable to perform whichis due to the fact that number of nominated members has become morethan elected members.

21. Learned counsel for respondent No.2 has given emphasis onsecond proviso to Section 99(1) which reads: “Provided further that thepower of the State Government under this section shall not be exercisedunless there is a prima facie evidence of financial irregularity, misconductor violation of the provisions of this Act”. The expression unable toperform is an expression of wide import. We may look into the schemeof supersession as contained in Section 99. The supersession is basedon some action, inaction, omission or misconduct of the Board. The Act,1995 enumerates various powers and functions of the Board. When theBoard is constituted it is entitled to exercise its powers and functions asenumerated in various Sections including Sections 32, 38, 39, 41, 48 and53, etc. Section 22 is a clause which saves proceedings of the Boardfrom invalidity due to reason only of the existence of any vacancy orany defect in the constitution. Section 22 is as follows:

“Section 22. Vacancies, etc., not to invalidateproceedings of the Board.—No act or proceeding of the Boardshall be invalid by reason only of the existence of any vacancyamongst its member or any defect in the constitution thereof.”

22. That in event there is vacancy in the Board or any defectthereof, the proceedings or act of the Board are not to be invalidatedwhich has been saved by Section 22. Thus, when the initially Board wasconstituted on 10.10.2017, the objective as enshrined in Section 14 wasnot fulfilled even in the initial constitution, the Board has been supersedednot due to any action, inaction or omission and misconduct on the part ofthe Board rather due to number of elected members becoming less than A

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Ato the nominated members. The order dated 18.09.2019 spells out thereason for supersession, i.e., A. Anwhar Raajhaa, Member of Parliamentwhose term came to end in May, 2019, other members of the Board asconstituted on 10.10.2017 were same, thus, the circumstance which hasbeen taken as ground for supersession of the Board was not any actionof the Board. The event of cessation of membership of an elected memberBis not under control of the Board. It was the duty of the State Governmentto constitute the Board as per the objectives enshrined in Section 14(4).The State Government has ample power to conduct election for themembers as enumerated in Section 14(i)(b), (i) to (iv).

23. In the facts of the present case, the State Government couldChave very well complied with objective of Section 14(4) by conductingan election for members under Section 14(1)(b)(iii) by permittingnominated members to continue till the election is held. The State hasfurther option to exercise power under Section 14(3) in event State wassatisfied that it is not reasonably practicable to constitute an electoralDcollege for any of the categories mentioned in sub-clauses (i) to (iii) ofclause (b) of sub-section (1), the State could have then nominated underSection 14(3) which nomination shall have overriding effect on theobjective of Section 14(4) since sub-section (3) begins with non obstanteclause “Notwithstanding anything contained in this section,”. Theobligation on the State Government to constitute the Board in accordanceEwith Section 14 keeping in view the objective under Section 14(4) wasboth right and duty of the State and any lapse therein cannot be a groundfor superseding the Board.

24. We may also notice the objective and purpose of the secondproviso to Section 99 which has been inserted by Act 27 of 2013. SecondFproviso contains an injunction that the power of the State Governmentshall not be exercised unless there is a prima facie evidence of financialirregularity, misconduct or violation of the provisions of the Act. Thepresent is not a case of any allegation of any financial irregularity ormisconduct on the part of the Board. The proviso is sought to be explainedGby Shri C.S. Vaidhyanathan relying on the “violation of the provisions ofthis Act”.

25. The word ‘violation’ is defined in the Black’s Law DictionaryTenth Edition to the following effect:

“An infraction or breach of the law; a transgression. The act ofbreaking or dishonoring the law; the contravention of a right orduty.”

26. The second proviso has to be read in conjunction with themain provision. The second proviso contains further restriction on thepower of State Government to supersede the Board, i.e., unless there isprima facie evidence. There can be no dispute that prima facie evidenceof financial irregularity, misconduct has to be prima facie financialirregularity or misconduct by the Board which is sought to be superseded.The third expression that is “violation” of the provisions of this Act hasalso to be read in the same manner that is violation of the provisions ofthis Act by actions of the Board. We, thus, are also of the opinion that inview of the legislative intendment as contained in second provision toSection 99, present was not a case where State could have exercised itspower of supersession of the Board. In view of the foregoing discussion,we are satisfied that the High Court did not commit any error in holdingsupersession as contrary to law.

27. Now, we also need to consider the submission of ShriVaidhyanathan that the High Court ought not to have set aside thenotification partially insofar as two elected members of the Mutawallicategory only. It is to be noted that the High Court had categorically heldthat supersession order is not sustainable in law but after holding that,the High Court had moulded the relief in the facts of the present caseand subsequent events which had taken place. Two writ petitions beingWrit Petition No.8377 and 9557 of 2020 which have been allowed by theHigh Court were filed by Syed Ali Akbar who was elected memberfrom the Mutawalli category. Since, only one category petitioners werebefore the High Court, it confined the relief to that category. We neednot dwell into the question any further since before us there is no furtherchallenge on behalf of the writ petitioners that supersession order oughtto have been set aside in toto. It is State which has come in the appealsagainst the judgment of the High Court which has partially set aside thenotification dated 18.09.2019 for Mutawalli category only. The High Courthas not interfered with the fresh constitution of the Board by electionand nomination of other categories except the category under Section14(1)(b)(iv). In view of the foregoing discussion, we, thus, upheld theorder of the High Court.

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924SUPREME COURT REPORTS

[2020] 9 S.C.R.

A28. In result, the fresh election of two members in category underSection 14(1)(b)(iv) held in the year 2020 shall become non est andSyed Ali Akbar and Dr. Haja K. Majeed shall continue to occupy theiroffice till their normal tenure of five years from 10.10.2017.

29. All the appeals are dismissed.

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Ankit Gyan

Appeals dismissed.

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