R. BANUMATHI, J. & K. RAVICHANDRABAABU, J.

1. The writ petitioners challenge the constitution of the Wakf Board in G.O.(2D) No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1) Department dated 31.8.2012 on the ground that requisite conditions for exercise of power by the State Government under Section 14 sub-section (3) are not satisfied and thereby challenging the appointment of members nominated under Section14(1)(b)(i) and (ii) and 14(1)(c) and 14(1)(d) and also challenging the vires of Section 14 sub-section (8) and the consequential election of Tamizhmahan Hussain as Chairperson of Tamil Nadu Wakf Board.

2. Since common issues are involved, all the writ petitions were heard together and shall stand disposed of by this Common Judgment. For conveniences, the respondents are referred to as per their array in W.P.No.27590 of 2012 or by their name.

3. Brief facts:- Section 14(1) of the Wakf Act deals with the composition of the Board. Section 14 Sub-section (2) deals with the election of members specified in Clause (b) of sub-section (1), which has to be held in accordance with system of proportional representation by means of a single transferable vote. Where, in the opinion of the State Government, it is not practicable to constitute an electoral college, Section 14 subsection (3) empowers the State Government to nominate such members as it deem fit.

4. In view of the resignation of the members of the previous Board, invoking Section 14 (3), Government by G.O.(2D) No.18, Backward Classes, Most Backward Classes and Minorities Welfare (T1), dated 15.06.2012, constituted the Tamil Nadu Wakf Board by nominating nine members - two members each from Members of Parliament, Members of Legislative Assembly and Muslim Organisations and Scholars in Islamic Theology and appointing one State Government nominee. In so far as the two vacancies in the Bar Council as well as the two vacancies in Mutawalli categories, election was held on 29.8.2012. Government constituted Tamil Nadu Wakf Board and notified the appointment of the nominated nine members and also the elected members (in the category of Bar Council Members and Mutawallis) in G.O.(2D) No.28, Backward Classes, Most Backward Classes and Minorities Welfare (T1), dated 31.08.2012. A. Tamilmahan Hussain, (7th respondent in W.P.No.27590 of 2012) has been unanimously elected as Chairman of the Tamil Nadu Wakf Board under Section 14(8) of the Wakf Act, 1995 and the same was notified in G.O. (2D) No.29, Backward Classes and Most Backward Classes and Minorities Welfare (T1) dated 11.09.2012.

5. Case of writ petitioners is that in the impugned G.Os, the Wakf Board constituted has nine nominated members and four elected members thereby violating Section 14(4), which stipulates that the number of elected members shall at all times be more than the nominated members, except as provided under sub-section (3). There was no practical difficulty in conducting the election for just handful of M.L.As and M.Ps i.e., 5 M.L.As and 3 M.Ps. According to the writ petitioners, for exercising the power under Section 14 (3), reasons are to be recorded and Government erred in not recording in writing any reason to show that it could not constitute an electoral college. The impugned G.Os are assailed contending that it is vitiated by malafide since the process and the 3rd respondent, who is a Minister for the 1st respondent Department, has nominated himself as a member of Tamil Nadu Wakf Board in the category of Member of Legislative Assembly and the Board so constituted illegally only to serve the purpose of the Government and in violation of the statute cannot function.

6. W.P.No.33785 of 2012 is filed for declaration that Section 14 sub-clause (8) of Wakf Act is unconstitutional and against fundamental rights guaranteed under Constitution of India and consequently to forbear Tamizhmahan Hussain from passing orders as Chairperson of the Tamil Nadu Wakf Board. W.P.No.3870