This writ petition under Article 226 read with Article 227 of the Constitution of India, is before the Special Bench and in view of orders dated 8/4/2010 and 23/4/2010, it has been heard finally by consent of parties by making Rule returnable forthwith. Prayers in petition are to direct respondent no. 1 State Government to constitute Wakf Board legally as per Section 14 of the Wakf Act, 1995, to declare Board as functioning today to be bad and to restrain Board from performing any duties or functions under Wakf Act till it is validly constituted. Other prayer is to quash notification dated 21/9/2006 published in gazette on 25/9/2006 nominating respondent no.4 Shah Tarique Anwar as member of Board. Consequential interim reliefs are also sought. On 8/4/2010, this Court has permitted respondent no.2 Board to complete the hearing but restrained it from passing any orders in pursuance thereof.

2. 10 petitioners before this Court are Dawoodi Bohras and claim to be "beneficiaries" within meaning of Section 3(a) and "persons interested" as per Section 3(k) of the Wakf Act in relation to a wakf by name Mahdi Bagh Wakf formed by the shia muslims. Respondent no. 1 State Government has constituted respondent no.2 - Wakf Board for State of Maharashtra in discharge of its obligation under Section 13 of the Wakf Act. Said Board exercises supervision and control on affairs of the Mahdi Bagh Wakf and at present Application No.6/1999 is pending before it for constituting a scheme to regulate the affairs of Mahdi Bagh Wakf. Petitioners no. 1 to 5 are the applicants in said proceeding. Dispute regarding registration of said Wakf and its properties under the Wakf Act vide order dated 29/3/2003 is also pending before Wakf Board in case no.66/2005. Petitioners no.6 to 10 are the non-applicants in this dispute. Notification dated 4/9/2008 nominating some members on respondent No.2 Board is already set aside by the Division Bench of this Court at Aurangabad on 28/7/2009 in Writ Petition No.7071/2008 reported at 2009(5) ALL MR 722 : 2009(12) LJSOFT 133 - Syed Jameel Ahmed s/o. Syed Janimiya V s. State of Maharashtra through its Secretary, General Administration Department and ors.. For convenience, we have referred to this judgment as Aurangabad judgment or Division Bench judgment. There the challenge was to notification dated 4/9/2008 issued under Section 14(9) of the Wakf Act. Petitioners here challenge prior notification dated 25/9/2006 nominating respondent no.4 on respondent no.2 Board as bad and ultra-vires.

3. We have heard Advocate Hag for petitioners, Additional Government Pleader Bharati Dangre for respondent no. 1 State and Senior Adv. M. G. Bhangde with Adv. R. M. Bhangde for respondents no.3 to 6. Gist of their respective contentions is mentioned below.

A) Shri. Haq, learned counsel for petitioners.

(i) Shri. Haq, learned counsel for petitioners has stated that all the petitioners are parties to proceedings pending before the respondent no.2 Wakf-Board. They are shia muslims and beneficiaries under Sections 3(a) and 3(k) of the Wakf Act, 1995. As the proceedings are still pending and the dispute is being considered by respondent no.2 in quasi-judicial capacity, its constitution has to be strictly as per Sections 13 and 14 of the Wakf Act. Section 13(2) contemplates a separate Board for shia muslims and when such independent Board is not feasible, Section 14(5) postulates a shia member on Board as constituted. No such shia member is on Board today though it is considering dispute involving a shia wakf.

(ii) He also invites attention to scheme of Section 14 to urge that it contemplates election of members on Board and as respondent nos.3 and 4 are not elected members but are nominated by State Government, constitution of Board is contrary to Section 14 of Wakf Act. The provision for electoral college and election therefrom is mandatory and always the strength of elected members on Board has to be more than the nominated members. No ste