Back
2018 Supreme(Del) 299
IN THE HIGH COURT OF DELHI AT NEW DELHI
REKHA PALLI, J.
RANA PARWEEN SIDDIQUI - Petitioner
Versus
UNION OF INDIA AND ORS - Respondent
W.P.(C) 9980 of 2017 & C.M.No.40710 of 2017
Decided On : 09-03-2018
For the Petitioner:Mr.A.S.Chandhiok, Sr.Adv with Mr.Sudarshan Rajan, Mr.Arjun Gadhoke, Mr.Tejaswi Chaudhary, Ms.Monika Tyagi, Mr.Ramesh Rawat & Mr.Archit Arora, Advocates.
For the Respondent:Mr.S.R.Windlesh, Advocate, Mr.Naushad Ahmed Khan, Advocate.
The main legal point established in the judgment is that the power to nominate a Senior Muslim Advocate can be exercised only if there is no existing Muslim member or ex-member of the State Bar Council, as provided in the Waqf Act, 1995.
Headnote:
Waqf Act - Representation - Section 14(1)(b)(iii) - Summary of Acts and Sections: The court discussed the provisions of Section 14(1)(b)(iii) of the Waqf Act, 1995 and its interpretation, emphasizing the mandatory inclusion of members from all four categories under Section 14(1)(b) and the preference for election over nomination. The court held that the power to nominate a Senior Muslim Advocate can be exercised only if there is no existing Muslim member or ex-member of the State Bar Council, as provided in the Act.
Fact of the Case:
The Petitioner sought inclusion in the electoral roll for the election of members of the Delhi Waqf Board under Section 14(1)(b)(iii) of the Waqf Act, 1995, claiming to be the only eligible person in that category. The Respondents failed to include the Petitioner's name in the electoral roll, leading to the present petition.
Finding of the Court:
The court found that the Respondents' failure to include the Petitioner in the electoral roll was illegal and contrary to the Act's provisions. The court held that the Petitioner, being an ex-member of the Bar Council of Delhi, should have been included in the electoral roll as per the mandatory provisions of the Act.
Issues: The main issue revolved around the interpretation and application of Section 14(1)(b)(iii) of the Waqf Act, 1995, and whether the Petitioner should have been included in the electoral roll for the election of members of the Delhi Waqf Board.
Ratio Decidendi: The court held that the electoral college should comprise members from all four categories under Section 14(1)(b) of the Act, and the power to nominate a Senior Muslim Advocate can be exercised only if there is no existing Muslim member or ex-member of the State Bar Council, as provided in the Act.
Final Decision: The court allowed the petition and directed the Respondents to issue a corrigendum to the public notice dated 28.09.2017 by including the Petitioner's name in the electoral roll for the election of members of the Delhi Waqf Board.
REKHA PALLI, J.
1. The Petitioner, a practicing advocate, has approached this Court vide the present petition under Article 226 of the Constitution of India inter alia seeking a direction to the Respondents to conduct the proposed elections for the constitution of Delhi Waqf Board by taking into account the mandate of Section 14 (1)(b)(iii) of the Waqf Act, 1995 and thereby include the representation of a Muslim member of the Bar Council of Delhi as one of the members of the electoral colleges of the Board. For the sake of convenience it may be appropriate to reproduce the prayers made by the Petitioner, which read as under:-
“a. Direct Respondent no.3 to conduct the election for constitution of the Board by taking into account the mandate of Section 14(1)(b)(iii) of the Act by including in the process the representation of the Muslim Member of the Bar Council of Delhi as one of the Members of the Board;
b. As a consequence of grant of prayer “a” direct the Respondent no.3 to issue a corrigendum/addendum to the public notice dated 28.09.2017 by including the post of Member, Bar Council of Delhi in the same and considering the Petitioner for the said post being the only Muslim Member in the present Bar Council of Delhi;
c. In the alternate, direct the Respondents to consider the Petitioner for the post of Member of the Board in the category of Ex-Muslim member of the Bar Council of Delhi under second proviso to section 14(2) of the Act as per the mandate of the Act;
d. Pass such other further order or orders as this Hon?ble Court may deem fit and proper in the facts of the case and in the interest of justice.”
2. The Waqf Act, 1995 (hereinafter referred to as ‘the Act’) was enacted for better administration of Waqf and matters connected therewith. Chapter IV of the said Act, 1995, which was amended in 2013, deals with the establishment of the Waqf Board and its functions. While Section 14 deals with the composition of the Board, Section 16 thereof prescribes the term of its members to be five years as a result whereof, members of the Waqf Board are appointed after every five years, partly by election and partly by nomination.
3. On 27.12.2011, the Petitioner was elected as a member of the Delhi Waqf Board under Section 14 (1)(b)(iii) of the Act by virtue of her being a member of the Bar Council of Delhi. The Petitioner claims that she was subsequently elected as the Chairperson of Delhi Waqf Board, but on account of the failure on part of Respondent no.3 to issue the requisite notification, the Petitioner preferred a writ petition being W.P.(C)No.4226/2015 before this Court.
4. While her aforesaid writ petition was pending, an order was issued by Respondent no.1 on 08.10.2015 superseding the Delhi Waqf Board, which action was also challenged by the Petitioner by way of W.P.(C)No.10047/2015, wherein this Court vide its interim order dated 10.02.2016 directed that the vacancy in respect of the muslim member of the Bar Council of Delhi would not be filled up. While the aforesaid two petitions filed by the Petitioner were pending before this Court, the tenure of the Delhi Waqf Board was determined by efflux of time on 26.12.2016.
5. On 28.09.2017, the Respondent no.3 issued a Public Notice displaying the electoral roll for the election of members of Delhi Waqf Board. This electoral roll contained names of person in categories under Sections 14(1)(b)(i), 14(1)(b)(ii) and 14 (1)(b)(iv) but did not include any name in the category under Section 14 (1)(b)(iii) of the Act, in which category the Petitioner claims to be the only eligible person.
6. Upon issuance of the public notice, the Petitioner being aggrieved by the non-inclusion of her name in the electoral roll, filed her objections thereto, which were rejected by the Respondent no.3 on 30.10.2017. In view of the public notice dated 28.09.2017, the Petitioner withdrew both her earlier writ petitions with a liberty to file a fresh petition and in these circumstances, preferred, the
