IMPORTANT POINT
Non-compliance with mandatory provisions of the Waqf Act, 1995 does not necessarily vitiate the constitution of the Waqf Board if the non-compliance is due to genuine inability to fulfill the requirements.

JUDGMENT

1. Heard Mr.Anjan Prasad Sahu, learned counsel appearing for the petitioners, Mr. Lenin Hijam, learned Addl. AG, appearing for the respondents No. 1 & 2, Mr. HS. Paonam, learned senior counsel appearing for the respondents No. 5, 8, 9,11& 12 and Md. Rabi Khan, respondent No. 7 appearing in-person.

The present writ petition has been filed assailing the entire process for constitution of the 7th Waqf Board, Manipur, as well as the election of the Chairperson of the Board coupled with a prayer for directing the State respondents to constitute the Waqf Board afresh as per law.

2. It has been pleaded by the petitioners in their writ petition that the entire process of constitution of the Board and the appointment of the members of the 7th Waqf Board including the Chairman is liable to be quashed and set aside on the following grounds:-

'(a) constitution of the 7th Waqf Board, Manipur was not published in the official gazette which is mandatory as per Section 14 (9) of the Waqf Act, 1995.

'(b) Two members of the Board should be women which is also not included in the formation of the Board. There is no exception to this requirement which is mandatory.

'(c) The appointment of Respondent No. 5 is also not justified as he is an Ex-MLA who is appointed under NGO category. Moreover, 5 N.G.Os/candidates had applied for the said post under NGO category including the petitioner No. 2 and election is mandatory whenever more candidates than the seats available, have applied under the same category. In the case in hand no election was held for the said category, it was appointed on the 'pick and choose' policy with malafide intention of the present Govt.

'(d) The appointment of Respondent No. 10 is also illegal as notification for election was never published for the said category. As per Rule 8 (Conduct of Election) Rules, 1997 notification should be published which is mandatory. It was also done in the 'pick and choose' policy.

'(e) The respondents No. 11 & 12 were also appointed in the category of Muslim Members of Parliament from the State. Here, the respondent No. 11 is the Ex-MLA of the State Legislature who is not qualified under the said category. Hence, their appointments are also illegal.'

3. At the time of hearing of the present writ petition, it has been submitted by Mr.Anjan Prasad Sahu, learned counsel appearing for the petitioners that he will advance his arguments in respect of only two grounds and that he is not pressing the other remaining grounds pleaded by the petitioners in their writ petition.The first ground raised by the counsel appearing for the petitioners is that no women members were appointed in the 7th Waqf Board in total contravention of the mandatory provisions under second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995 and as such, the constitution of the 7th Waqf Board is null and void and deserves to be quashed and set aside.

4. In connection with the the first ground, it has been submitted by the learned counsel appearing for the petitioners that under the second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995, it is provided that at least two members appointed on the Board shall be woman. However, in the present case, no woman have been included in the impugned notification dated 31.03.2021 issued by the Secretary (Minority Affairs), Government of Manipur, appointing the members of the 7th Waqf Board, Manipur w.e.f. 1st April, 2021.It has been submitted that the word 'Shall' used by the Legislature in the second proviso to Sub-Section (1 A) of Section 14 of the Waqf Act, 1995, clearly connotes the mandatory nature of the aforesaid provisions without any exception and as such, the constitution of the 7th Waqf Board without at least two women members deserves to be quashed and set aside as null and void. In support of his contentions, the learned counsel relied on the judgment dated 30.06.2021 passed by the Hon'ble Supreme Court in WP(C) No. 554 of 2021 and WP(C) No. 539 of 2