The State of Tamil Nadu & Anr. vs K. Fazlur Rahman & Anr.

Dismissing the appeals, the Court

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

2. That in event there is vacancy in the Board or any defect thereof, the proceedings or act of the Board are not to be invalidated which has been saved by Section 22. Thus, when the initially Board was constituted on 10.10.2017, the objective as enshrined in Section 14 was not fulfilled even in the initial constitution, the Board has been superseded not due to any action, inaction or omission and misconduct on the part of the Board rather due to number of elected members becoming less than to the nominated members. The order dated 18.09.2019 spells out the reason for supersession, i.e., a Member of Parliament whose term came to end in May, 2019, other members of the Board as constituted on 10.10.2017 were same, thus, the circumstance which has been taken as ground for supersession of the Board was not any action of the Board. The event of cessation of membership of an elected member is not under control of the Board. It was the duty of the State Government to constitute the Board as per the objectives enshrined in Section 14(4). The State Government has ample power to conduct election for the members as enumerated in Section 14(i)(b), (i) to (iv). [Para 22][921-G-H; 922-A-B]

3. In the facts of the present case, the State Government could have very well complied with objective of Section 14(4) by conducting an election for members under Section 14(1)(b)(iii) by permitting nominated members to continue till the election is held. The State has further option to exercise power under Section 14(3) in event State was satisfied 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 could have then nominated under Section 14(3) which nomination shall have overriding effect on the objective of Section 14(4) since sub-section (3) begins with non obstante clause “Notwithstanding anything contained in this section,”. The obligation on the State Government to constitute the Board in accordance with Section 14 keeping in view the objective under Section 14(4) was both right and duty of the State and any lapse therein cannot be a ground for superseding the Board. [Para 23][922-C-E]

4. The objective and purpose of the second proviso to Section 99 which has been inserted by Act 27 of 2013. Second proviso contains an injunction that the power of the State Government shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of the Act. The present is not a case of any allegation of 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 with the main provision. The second proviso contains further restriction on the power of State Government to supersede the Board, i.e., unless there is prima facie evidence. There can be no dispute that prima facie evidence of financial irregularity, misconduct has to be prima facie financial irregularity or misconduct by the Board which is sought to be superseded. The third expression that is “violation” of the provisions of this Act has also to be read in the same manner that is violation of the provisions of this Act by actions of the Board. Thus, the legislative intendment as contained in second provision to Section 99, present was not a case where State could have exercised its power of supersession of the Board. In view of the foregoing discussion, the High Court did not commit any error in holding supersession as contrary to law. [Para 26][923-B-D]

6. The submission that the High Court ought not to have set aside the notification partially insofar as two elected members of the Mutawalli category only. It is to be noted that the High Court had categorically held that supersession order is not sustainable in law but after holding that, the High Court had moulded the relief in the facts of the present case and subsequent events which had taken place. Two writ petitions being Writ Petition No.8377 and 9557 of 2020 which have been allowed by the High Court were filed by ‘S’ who was elected member from the Mutawalli category. Since, only one category petitioners were before the High Court, it confined the relief to that category. This Court need not dwell into the question any further since there is no further challenge on behalf of the writ petitioners that supersession order ought to have been set aside in toto. It is State which has come in the appeals against the judgment of the High Court which has partially set aside the notification dated 18.09.2019 for Mutawalli category only. The High Court has not interfered with the fresh constitution of the Board by election and nomination of other categories except the category under Section 14(1)(b)(iv). In view of the foregoing discussion, this Court, thus, upheld the order of the High Court. [Para 27] [923-D-H]

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