JUDGMENT :

ASHOK BHUSHAN, J.

1. Leave granted.

2. These appeals have been filed against the common judgment of the High Court of Judicature at Madras dated 17.08.2020 in Writ Petition Nos. 726 of 2020, 8377 of 2020 and 9557 of 2020. The Division Bench of the High Court by the impugned judgment has allowed Writ Petition Nos. 8377 and 9557 of 2020. The State of Tamil Nadu aggrieved by the impugned judgment has come up in these appeals.

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

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

“Muslim Member of Parliament

1. Thiru A. Anwhar Raajhaa, M.P.

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

1. 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

1. Thiru M.A. Siddique, I.A.S.”

4. Two Senior Muslim Advocates as referred above were nominated by the State Government in exercise of power under proviso to Section 14(1)(b)(iii) of the Waqf Act, 1995. One Muslim Member of Parliament, two Muslim Members of State Legislature and two Mutawallis were elected members under Section 14(1)(b). The nomination of two Senior Muslim Advocates was challenged before the High Court by a writ petition which was dismissed upholding the nomination.

5. The State Government issued a notification dated 18.09.2019 in 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 show cause notice to the 10 members of Waqf Board existing at that time. The membership of A. Anwhar Raajhaa, Member of Parliament ceased in May, 2019 reducing number of members as 10. The State Government was of the opinion that two Senior Advocates who were nominated as members under Section 14(1)(b)(iii) proviso cannot be treated as elected members hence the number of elected members are less than nominated members resultantly the Board is unable to perform its work as per the Waqf Act, 1995. The ground of super-session is mentioned in paragraph 8 of the notification 18.09.2019 which is to the following effect:

“8. And whereas, the Tamil Nadu Waqf Board has been called upon to show cause within 7 days from the receipt of that notice as to why the Tamil Nadu Waqf Board should not be superseded by the State Government under Section 99 of the Waqf Act, 1995. Further it has also been mentioned therein that in case no reply is received within stipulated time, action will be pursued in accordance with law. The show cause notice was served to all the present 10 members of the Tamil Nadu Waqf Board. In response to the show cause notice, out of 10 members 4 members namely, Thiruvalargal K.A.M. Muhammed Abubacker, M.L.A., A.S. Fathima Muzaffer, Dr. Haja K. Majeed, Syed Ali Akbar, Members, Tamil Nadu Waqf Board alone have sent their replies to the Government. They have stated that the Senior Advocates nominated as Members can be considered as elected members and requested that the superseding process may be dropped. In this regard, the Government had already received legal opinion that the Senior Advocates can be considered as nominated members. In view of above, the elected members are less than the nominated members and the Board is unable to perform its functions as per the Waqf Act, 1995. Thiru A. Sirajudeed, member, Tamil Nadu Waqf Board without