The central legal point established in the judgment is the importance of adhering to the specific criteria for the nomination of recognized scholars in Shia and Sunni Islamic Theology to the Board of Waqf under Section 14(1)(d) of the Wakf Act, 1995.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The writ petitioners are all Shia Mohammedans professing Islam. All of them claim to be actively associated with the welfare and upkeep of several Shia Immambaras/grave-yards in West Bengal.

2. They claim to be “persons interested in a Waqf” under Section 3(k) of the Wakf Act, 1995 (hereinafter referred to as, “the 1995 Act”). Their grievance is against the appointment of respondent no. 2 as a member of the Board of Waqf established under Section 13 of the 1995 Act. Such appointment was done under Section 14(1)(d), on the premise that the respondent no. 2 is a recognized scholar in Shia Islamic Theology.

3. The said provision contemplates that out of the several Board-members, one person each is nominated by the State Government from amongst Muslims, from recognized scholars in Shia and Sunni Islamic Theology. The respondent no. 2 comes in under the Shia head.

4. It is contended by learned counsel for the petitioners that the private respondent no. 2 is totally unqualified for being appointed under the said provision, not being a scholar in Shia Islamic Theology.

5. There was a previous round of litigation, since the petitioners representation against such appointment was not looked into. By a previous order of a Co-ordinate Bench dated June 29, 2022, The Secretary, Ministry of Minority Affairs and Madrasah Education Department was directed to consider the representations made by the petitioners and dispose of the same by passing a reasoned order within a period of three weeks from the date of communication of the order, after hearing all necessary parties including the petitioners.

6. Thereafter, vide order dated July 27, 2022, the Secretary reiterated the nomination of respondent no. 2, which had originally taken place vide Notification dated January 28, 2022.

7. It is argued by the petitioners that, even as per the said order, the respondent no. 2 is a Nazir of Basravi Waqf Estate appointed by this Court to look after the biggest Shia Community Mosque in Kolkata and is a member of the West Bengal State Haj Committee under the Haj Committee Act, 2002, apart from being a member/mutawalli of several other Committees/trusts/waqf estates. Working experience in administration of waqf matters has been highlighted as an important aspect while considering such nomination.

8. It is argued that none of the said tests are pertinent to being a scholar in Islamic Theology. Learned counsel appearing for the petitioners contends that Theology is a specific science and branch of academics taught in certain Universities. Learned counsel for the petitioners also refers to a particular University, the Alia University, where the degree course offered on Islamic Theology has certain specific stages. It is submitted that the respondent no. 2 neither has an academic degree in Theology, nor is he a recognized Islamic scholar at all. Thus, the basic criteria of Section 14(1)(d) are not satisfied.

9. While controverting the objection as to the writ not being maintainable, learned counsel for the petitioners places reliance on an Order dated June 14, 2023 passed by a Co-ordinate Bench of this Court while allowing an amendment to the writ petition at the behest of the petitioners whereby, apart from Certiorari, a prayer for Quo Warranto was incorporated in the writ. It was observed in the said judgment that the amendment was formal in nature where the petitioners have sought to mend the constitutional loopholes even though the Court was of the view that the fabric of the original writ petition was resilient enough to hold the prayers of both Certiorari and Quo Warranto in its weave. The learned Single Judge also held that the decisions referred to therein not only make technicalities irrelevant but also focus on the broader objective of Article 226(1) of the Constitution which is to correct injustice. The reliefs of Certiorari and Quo Warranto were held not to be mutually destructive. Hence, it is contended that the sai