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Mohammad Sayeed v/s The State of Uttarakhand & Others

    Writ Petition (M/S) No. 2221 of 2018

    Decided On, 23 October 2021

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE MANOJ KUMAR TIWARI

    For the Petitioner: B.B. Sharma, Advocate. For the Respondents: R3, Vinod Nautiyal, Deputy Advocate General, T.A. Khan, Senior Advocate assisted by Ravi, Shankar Kandpal, holding brief of, Aditya Kumar Arya, R4, Neeraj Garg, Advocates, R5, Arvind Vashishtha, Senior Advocate, assisted by Vivek Pathak, R6, Siddhartha Sah, Advocates.



Judgment Text

1. Petitioner claims to be the Deputy Secretary of Management Committee of Jama Masjid, Haldwani (Nainital). According to him, respondent nos. 3 to 6 are not qualified for appointment as Member of Uttarakhand Waqf Board, constituted under Waqf Act, 1995 (hereinafter referred to as the “Act”). He asserts that this writ petition is being filed by him in his personal capacity as well as in representative capacity on behalf of Sunni Muslim Community.

2. During the course of argument, learned counsel for petitioner made a statement that petitioner is giving up challenge to appointment of respondent no.3, as respondent no.3 has now been appointed under a category different from the one, in which he was earlier appointed.

3. Since the controversy raised by the petitioner revolves around Section 14 of the Waqf Act, therefore, the same is reproduced below:-

“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 ca may be, [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.]

(iv) mutawallis of the waqfs having an annual income of rupees one lakh and above;[

Explanation I.-For the removal of doubts, it is hereby declared that the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category.

Explanation II-For the removal of doubts it is hereby declared that in case a Muslim member cease to be a Member of Parliament from the State of National Capital Territory of Delhi as referred to in sub-clause (i) of clause (b) or ceases to be a Member of the State Legislative Assembly as required under sub-clause (ii) of clause (b), such member shall be deemed to have vacated the office of the member of the Board for the State or National Capital Territory of Delhi, as the case may be, from the date from which such member ceased to be a Member of Parliament from the State or National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case may be;]

[(c) one person from amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, to be nominated by the State Government;

(d) one person each from amongst Muslims, to be nominated by the State Government from recognised scholars in Shia and Sunni Islamic Theology;

(e) one person from amongst Muslims, to be nominated by the State Government from amongst the officers of the State Government not below the rank of Joint Secretary to the State Government;]

[(1A) No Minister of the Central Government or, as the case may be, a State Government, shall be elected or nominated as a member of the Board:

Provided that in case of a Union territory, the Board shall consist of not less than five and not more than seven members to be appointed by the Central Government from categories specified under subclauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1):

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

Provided also that in every case where the system of mutawalli exists, there shall be one mutawalli as the member of the Board.]

(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 subclauses (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 subsection (3).

(5) [Omitted by Act No. 27 of 2013.]

(6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia waqfs and Sunni waqfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination.

(7) [Omitted by Act No. 27 of 2013.]

(8) Whenever the Board is constituted or reconstituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette.”

4. Respondent nos.3 and 4 have been appointed under Section 14 (1) (b) (i) of the Act. It is the contention of the petitioner that only Present/Ex-Member of Parliament can be appointed under the said provision; since respondent nos. 3 and 4 have never been Members of Parliament, therefore, their appointment, under Section 14 (1) (b) (i) of the Act, is bad. Regarding respondent no.5, petitioner contends that neither he is a recognized social worker nor he has the professional qualification/professional experience of social work, therefore, he is not qualified to be appointed under Section 14 (1) (c) of the Act. Petitioner has questioned appointment of respondent no.6, on the ground that he is not a recognized scholar in Shia or Sunni Islamic Theology.

5. Since petitioner has given-up challenge to the appointment of respondent no.3, therefore, this Court is not examining validity of appointment of respondent no.3.

6. The challenge thrown by petitioner to appointment of respondent no.4, is unsustainable in the eyes of law, in view of the provision contained in Section 14 (3) of the Act, which provides that 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 person as member of the Board, as it deems fit.

7. The impugned notification, whereby private respondents were appointed, is on record as Annexure No. 2 to the writ petition. In the said notification, reason for appointing respondent no.4 as Member, against the seat earmarked for Members of Parliament, has been indicated and it is mentioned that it is not possible to constitute an electoral college for Members of Parliament/Ex- Members of Parliament.

8. Learned Standing Counsel points out that since there is no Present/Ex-Member of Parliament available in State of Uttarakhand, therefore, it was not possible to constitute an electoral college for them, consequently, the State Government had to invoke Sub-Section 3 of Section 14 for making appointment. Since Section 14 (3) enables the State Government to nominate a person other than a sitting Member of Parliament or Ex-Member of Parliament, if the contingency provided in Sub- Section 3 of Section 14 is fulfilled, therefore, appointment of respondent no.4 cannot be faulted, even though he is not an Member of Parliament. Thus, there is no substance in the challenge thrown to appointment of respondent no.4.

9. Regarding appointment of respondent no.5, learned counsel for the petitioner submits that since respondent no.5 is neither a recognized social worker nor he is a Member of an N.G.O., registered society or trust etc. and moreover he has no professional qualification/experience of social work, therefore, he is not eligible for appointment under Section 14 (1) (c) of the Act.

10. Mr. Arvind Vashishtha, Senior Advocate appearing for respondent no.5 however submits that respondent no.5 has vast experience of social work and he has held the Office of Chairman of Nagar Palika Parishad, Ramnagar for three terms. He further submits that respondent no.5 is very active in social life and he is well-known social worker. He further submits that respondent no.5 is continuing as President of Waqf No. 9, Jama Masjid, Ramnagar, since 08.06.1999; he has performed last rites of hundreds of unclaimed bodies at his own expense; he was thrice elected as Chairman of Nagar Palika Parishad, Ramnagar, in the years 1988, 2008 and 2013 and has held the said office for three complete term of five years. Beside this, according to him, respondent no.5 is engaged in various other social activities, therefore, the challenge thrown to appointment of respondent no.5, is without any force.

11. This Court finds substance in the submission made on behalf of respondent no.5. Having regard to the various social activities in which respondent no.5 was engaged and also the public offices held by him from time to time, it cannot be said that he is not qualified to be nominated under Section 14 (1) (c) of the Act.

12. Learned counsel for the petitioner submits that respondent no.5 is not educationally qualified for nomination under Section 14 (1) (c) of the Act. However, in the said provision, what is required is ‘professional experience’ and not ‘professional qualification’. The expression ‘social work’ has not been defined in the Act. In the absence of any statutory definition, social work comprehends various activities of an individual, which includes charitable activities. Petitioner, who has been performing last rites of unclaimed bodies of persons belonging to different religion by meeting out the expenses from his own pocket and has been active in other various other fields, cannot be said to be disqualified for nomination under Section 14 (1) (c), merely because he does not possess any educational qualification for social work. Under the Municipalities Act, 1916, a municipality is required to discharge multifarious functions and a person, holding the Office of Chairman of a Municipality, is at the helm of affairs, therefore, he has to remain active in public life, meet people from all walks of life and address their various problems. Since petitioner has held the Office of Chairman of Nagar Palika Parishad, Ramnagar for three terms of five years each, therefore, in the humble opinion of this Court, challenge to the qualification of respondent no.5 for nomination as a social worker, is without any substance.

13. Regarding respondent no.6, it is the contention of learned counsel for the petitioner that she has knowledge of Urdu language only, but she is not a Maulvi or Mufti, therefore, she cannot be treated as recognized scholar of Sunni Islamic Theology. The challenge to nomination of respondent no.6 under Section 14 (1) (d), is also unsustainable for the simple reason that what is required is that one should be a recognized scholar in Shia or Sunni Islamic Theology. There is no requirement that one should be an eminent or distinguished scholar in Shia or Sunni Islamic Theology.

14. Learned counsel for respondent no.6 submits that his client possesses Adeeb Mahir, Adeeb Kamil and Muallim Urdu qualification from Jamia Urdu, Aligarh, besides High School Qualification from U.P. Board, Allahabad. He further submits that respondent no.6 is recognized in society for her knowledge regarding tenets of Islam.

15. Learned counsel for the petitioner submits that respondent no.6 canno

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t be treated as a recognized scholar. Since there is no body or institution for recognizing a person as a scholar in Shia/Sunni Islamic Theology, therefore, a recognized scholar would mean a person, who has been recognized as such by the members of the community to which he belongs. Thus, it would not be an institutional recognition but a recognition by the members of the society. 16. The expression ‘Recognized’ has not been defined in Waqf Act, 1995, therefore, in the absence of any objective yardstick for assessing the scholastic qualities of an individual, element of subjectivity would always be there. 17. In such view of the matter, the subjective satisfaction of the State Government, in treating respondent no.6 as a recognized scholar, cannot be interfered with while exercising power of judicial review. 18. Learned counsel for the respondent no.6 further points out that, in view of second proviso to Section 14 (1) (A) of the Act, at least two Members appointed on the Waqf Board should be women, thus, according to him, State Government was justified in appointing her as a Member. 19. In view of the aforesaid discussion, this Court does not find any reason to interfere with the appointment of private respondents. 20. Accordingly, the writ petition fails and is hereby dismissed. 21. Let a certified copy of this order be issued by 25.10.2021.
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