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IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ, and Vishal Mishra, J.
Aslam Mohammad Khan v. The State of Madhya Pradesh
& Others
Writ Appeals No. 1362 of 2022 and 360 of 2021, Writ Petitions No. 19024 of 2022, 20311 of 2022 and 19674 of 2022 (Jabalpur); Decided on 1.2.2023
(1) Waqf Act, 1995 -- S. 14 -- nomination -- to be done after due application of mind considering various material and other relevant factors -- State cannot nominate any person it chooses unless they conform to requirements of particular sub-section -- it must be reasonably satisfied that nomination is strictly in terms of S. 14 -- when issue is raised with regard to nomination of members by State, State would have to produce such material in order to defend nomination -- if there is no adequate material and State is unable to show reasons for nomination, then nomination would have to fail --it would be considered that nomination is arbitrary and vitiates legal provisions. [Para 18 (b)
(2) Waqf Act, 1995 -- S. 14 (1) (c) -- nomination -- professional experience -- nominee Graduate in Arts (Sociology) and Post Graduate in Arts (Sociology) -- holder of law degree and LL. M. degree -- has done Ph. D. in law -- participated in national workshop as research scholar -- has vast experience in social work and other related issues -- has substantial professional experience in categories mentioned in provision -- State has applied its mind and considered material while nominating him -- it cannot be said that nomination is either arbitrary or mala fide -- dispute between Waqf Board and his father regarding title of land -- nominee not party to said litigation -- no conclusion can be drawn with regard to encroachment or otherwise since matter is sub judice -- nomination upheld. [Paras 21 & 22
(3) Waqf Act, 1995 -- S. 14 (1) (d) -- nomination -- scholar in Shia and Sunni Islamic Theology -- merely producing certificate from institution which is claimed to be worldwide institution, may not satisfy requirement of classifying person as recognized scholar -- he has to have studied specific subjects of Shia and Sunni Islamic Theology -- no such subject forthcoming from certificate -- institute may have worldwide standing, but question is not with regard to standing of institution but whether concerned person can be considered to be recognized scholar in Shia and Sunni Islamic Theology -- Revenue Recovery Certificate issued against his community -- in terms of special power of attorney which is valid even as on date, it is his duty to protect interest of community -- function that he has to discharge as member of Board would run contrary to duty assigned to him as power of attorney holder -- his nomination does not adhere to requirements of S. 14 (1) (d) -- nomination set aside. Writ Petitions No. 34002 of 1998 and 34003 of 1998 decided on 1.6.2001 (Kar.) and Outlines of Islamic Culture (2nd Edition) by A. M. A. Shushtery relied on. [Paras 30 to 32
(4) Waqf Act, 1995 -- S. 14 (1) (e) -- nomination -- officer of State Government not below rank of Joint Secretary to State Government -- Professor of Law is equivalent to rank of Additional Secretary or Special Secretary to State Government, which is higher than rank of Joint Secretary -- pay-scale of Joint Secretary much lower than that of Professor -- he is officer of State Government -- no ground for interference in nomination. [Para 33 (b)
¼1½ oDQ vf/kfu;e] 1995 &&/kkjk 14 && ukefunsZ'ku && fofHkUu lkexzh rFkk vU; lqlaxr dkjdksa ij fopkj dj] lE;d~ euksfu;ksx ds mijkar fd;k tkuk gksrk gS && jkT; viuh ilan ds fdlh Hkh O;fDr dk ukefunsZ'ku ugha dj ldrk] tc rd fd og ml fof'k"V mi/kkjk dh vis{kkvksa ds vuq:i ugha gks && mldk ;g ;qfDr;qDr lek/kku gksuk vko';d gS fd ukefunsZ'ku vfrfu;efu"Br%/kkjk 14 ds fuca/kukuqlkj gS && tc jkT; }kjk lnL;ksa ukefunsZ'ku ds ckjs esa iz'u mBk;k tk, rc jkT; dks ukefunsZ'ku ds leFkZu esa ,slh lkexzh is'k djuk gksxh && ;fn i;kZIr lkexzh ugha gS rFkk ukefunsZ'ku ds fy, dkj.k n'kkZus esa jkT; vlQy jgrk gS] rks ukefunsZ'ku vlQy gksuk gksxk && le>k tk,xk fd ukefunsZ'ku euekuk gS rFkk mlls fof/kd mica/k nwf"kr gksrs gSaA ¼iSjk 18¼ch½
¼2½ oDQ vf/kfu;e] 1995 &&/kkjk 14¼1½ ¼x½ && ukefunsZ'ku && o`fÙkd vuqHko && ukefunsZf'krh dyk&Lukrd ¼lekt 'kkL=½ rFkk LukrdksÙkj dyk fo'kkjn ¼lekt 'kkL=½ && fof/k dh mikf/k rFkk ,y,y-,e- mikf/k dk/kkjd && fof/k esa ih,p-Mh- dh && 'kks/kkFkhZ ds :i esa jk"Vªh; dk;Z'kkyk esa Hkkx fy;k && lkekftd dk;Z rFkk vU; lacaf/kr ekeyksa esa O;kid vuqHko && mica/k esa mfYyf[kr izoxks± esa lkjoku~ o`fÙkd vuqHko && mldk ukefunsZ'ku djrs le; jkT; us euksfu;ksx fd;k gS rFkk lkexzh ij fopkj fd;k gS && ;g ugha dgk tk ldrk fd ukefunZs'ku euekuk ;k vln~Hkkfod gS && oDQ cksMZ rFkk mlds firk ds eè; Hkwfe ds gd ds laca/k esa fookn && ukefunsZf'krh mDr eqdnesckth esa i{kdkj ugha && ekeyk U;k;k/khu gS blfy, vf/kØe.k ;k vU;Fkk ds ckjs esa dksbZ fu"d"kZ ugha fudkyk tk ldrk && ukefunsZ'ku ekU;A ¼iSjk 21 ,oa 22
¼3½ oDQ vf/kfu;e] 1995 &&/kkjk 14¼1½ ¼?k½ && ukefunsZ'ku && f'k;k ;k lqUuh bLyke/keZ fo|k dk fo}ku && ,sls laLFkku dk] ftlds fo'oO;kih laLFkku gksus ds nkok fd;k tk jgk gS] izek.ki= is'k djus ek= ls O;fDr dks ekU;rkizkIr fo}ku ds :i esa oxhZÑr djus dh vis{kkvksa dh iwfrZ ugha Hkh gks ldrh gS && mlds }kjk f'k;k vkSj lqUuh bLyke/keZ fo|k ds fofufnZ"V fo"k;ksa dk v/;;u fd;k tkuk vko';d && izek.ki= ls ,slk dksbZ fo"k; izdV ugha && laLFkku dh fo'oO;kih izfr"Bk gks ldrh gS ijarq iz'u laLFkku dh izfr"Bk ls lacaf/kr ugha gS] vfirq ;g gS fd D;k lacaf/kr O;fDr dks f'k;k vkSj lqUuh bLyke/keZ fo|k dk ekU;rkizkIr fo}ku le>k tk ldrk gS && mlds leqnk; ds fo#) jktLo olwyh izek.ki= tkjh && fo'ks"k eq[rkjukek ds vuqlkj] tks vkt fnukad rd fofèkekU; gS] leqnk; ds fgr dk laj{k.k djuk mldk drZO; && cksMZ ds lnL; ds :i esa mls ftl ÑR; dk fuoZgu djuk gS og eq[rkjukek/kkjd ds :i esa mls lkSais x, drZO; ds izfrdwy gksxk && mldk ukefunsZ'ku/kkjk 14¼1½¼?k½ dh vis{kkvksa ds vuq:i ugha && ukefunsZ'ku vikLrA fjV ;kfpdk,¡ Ø- 34002 lu~ 1998 rFkk 34003 lu~ 1998 fu.khZr fnukad 1-6-2001 ¼dukZ-½ rFkk ,-,e-,- 'kq'rjs Ñr vkmVykbUl vkWQ bLykfed dYpj ¼f}rh; laLdj.k½ voyafcrA ¼iSjk 30 ls 32
¼4½ oDQ vf/kfu;e] 1995 &&/kkjk 14¼1½ ¼M-½ && ukefunsZ'ku && jkT; ljdkj dk ,slk vf/kdkjh tks jkT; ljdkj ds la;qDr lfpo dh iafDr ls uhps dh iafDr dk ugha gks && fof/k dk vkpk;Z jkT; ljdkj ds vij lfpo ;k fo'ks"k lfpo dh iafDr ds lerqY; gksrk gS] tks la;qDr lfpo dh iafDr ls mPprj gS && la;qDr lfpo dk osrueku vkpk;Z ds osrueku ls dgha de&og jkT; ljdkj dk vfèkdkjh gksrk gS &&ukefunsZ'ku esa gLr{ksi ds fy, dksbZ vk/kkj ughA ¼iSjk 33¼ch½
ORDER
1. In the appeals and the petitions, the challenge is to the nomination made by the State in exercise of the powers conferred under sections 14(1)(c)(d)(e), 14 (1)(b)(ii) and 14 (3) of the Waqf Act, 1995 (for short “the Act”). The nominations of Dr. Sanwar Patel, Shri Mahboob Hussain and Dr. Inaur Rehman (Dr. Inamur Rehman) are under challenge.
2. Since the subject matter is one and the same with reference to the question of law namely the powers to the State under section 14 of the Act, we have heard and considered all matters together.
3. The Waqf Board issued an election program on 12.7.2022 in exercise of the powers under section 13(1) read with section 14(1) of the Act. In order to constitute the Board, as contemplated under section 13 of the Act, the State intended to make nominations as provided under section 14 of the Act. In terms whereof, respondents - Dr. Sanwar Patel, Shri Mahboob Hussain and Dr. Inaur Rehman were nominated in exercise of the powers vested with the State under section 14(1)(c)(d) and (e) of the Act. Questioning the same, the aforesaid writ petitions have been filed.
4. The prayer sought for by the petitioner in Writ Petition No.19024 of 2022 is as follows :--
“(1) To issue a writ in the nature of certiorari quashing the Gazette Notification dated 5.8.2022 Annexure P-1, being illegal and arbitrary.
(2) To issue a writ in the nature of Quo warranto quashing the Gazette Notification dated 5.8.2022 Annexure P-1, declaring that the Respondent No.4 and 5 are not qualified to be nominated under the Act.
(3) To issue a writ in the nature of certiorari quashing the Gazette Notification dated 22.7.2022 Annexure P-1, being illegal and arbitrary.
(4) To issue any other suitable directions/orders along with the cost of the petition.”
5. So far as Annexure P/1 is concerned, it is a Gazette Notification dated 5.8.2022, which pertains to various subject matters. Therefore, the question of quashing the entire Gazette Notification would not arise for consideration. Hence, the prayer No.1 is dismissed as being misconceived. We understand prayer No.2 to mean that what is challenged in the writ petition is the Gazette Notification dated 5.8.2022 only with reference to the notification of the State dated 29.7.2022. Therefore, it is that order of the Government which is published in the Gazette Notification dated 5.8.2022 alone which is under challenge. Petitioner's counsel submits that the prayer No.3 to quash the Gazette Notification dated 22.7.2022 would not survive for consideration in view of the subsequent events. Hence, the said prayer is rejected.
6. So far as the nomination of respondent No.4 - Dr. Sanwar Patel is concerned, it is contended by the learned counsel that he does not possess any professional experience in town planning or business management etc. as provided under section 14(1)(c) of the Act. That, in order to be nominated under Clause (c) the requirements therein had to be fulfilled. Dr. Sanwar Patel does not fulfill any one of the requirements. Only because he possesses certain certificates does not indicate that he has any professional experience in the subject as mentioned therein. The only ground urged so far as respondent No.4 - Dr. Sanwar Patel is concerned, is that he does not fit into the definition of section 14(1)(c) of the Act.
7. So far as it relates to Shri Mahboob Hussain, we do not find any ground has been raised to question the validity of his nomination.
8. In Writ Petition No.20311 of 2022, the petitioner seeks for a prayer to quash the impugned notification dated 29.7.2022 so far as it restricts itself to the nomination of respondent No.4 - Dr. Sanwar Patel alone. It is pleaded in the grounds that he does not satisfy the requirements as contemplated under section 14(1)(c) of the Act. That he lacks professional experience in the fields as mentioned therein. That i
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