IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 2473 of 2024 ==========================================================

SAIYED AMIR SAIYED HUSSAIN KADRI Versus STATE OF GUJARAT ==========================================================

Appearance:

MR RASESH H PARIKH with MR KR KOSHTI(1092) for Petitioner(s) No. 1 for the Respondent(s) No. 2 MS MANISHA LAVKUMAR, LD. ADDITIONAL ADVOCATE GENERAL with MS. HETAL PATEL AGP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Date : 15/02/2024

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) 1. This is a wholly misconceived petition filed by a person, who seeks to contest the election for a member of the Waqf Board as Mutawali of the Waqf, as per the composition of the Board under Section 14(1)(b)(iv) of the Waqf Act, 1995. The challenge in the Writ Petition is on the allegation of illegality and impropriety in relation to preparation of Electoral Roll as per the relevant rules. To substantiate the challenge to the election process, which is underway, the validity of Rule 12 of the Gujarat State Waqf Rules, 2023 has been challenged with the assertion that the condition in the second proviso to Rule 12 about payment of annual contribution under Section 72 of the Act as a condition precedent to become eligible as electorate and to be included in the Electoral Roll as per Rule 11 of the Rules is ultra vires and is to be declared null and void. The further relief sought in the writ petition is for quashing and setting aside the electoral roll dated 03.02.2024 and the notice dated 02.02.2024 notifying the election programme published by the respondents in relation to the election of member of the Gujarat State Waqf Board as per Section 14(1)(b)(iv) of the Act, and further to include the name of the petitioner as on one of the electorates in the list published by the respondents on 03.02.2024.

2. It is submitted by Mr. Rasesh H. Parikh, the learned counsel appearing for the petitioner that the added condition in the second proviso to Rule 12 of the Rules, 2023 cannot have any backing of any of the enabling provisions of the Waqf Act, 1995. The only condition put in Section 14(1)(b)(iv) of the Mutawali of the Waqf having annual income of Rs.1,00,000/- which cannot be enlarged by adding the requirement of payment of annual contribution to the Board in accordance with the Section 72 up to the preceding year.

3. We do not find any substance in the submissions of the learned counsel for the petitioner for the simple reason that the requirement of payment of annul contribution by the Waqf has been incorporated in Section 72 in order to see that the payment is received by the Board for the services rendered by the Board to the Waqf. The Rules are framed in exercise of powers conferred under Section 109 of the Waqf Act, 1995, in order to see that the object and purpose of the Act is carried out, which confers powers on the State Government to frame the rules for election of members of the Board as specified in clause (b) of sub section (1) of Section 14 and under sub section (2) of Section 14 of the Waqf Act, 1995. The provision serving purpose of the Act cannot be said to be a result of any excessive delegation. The contention of the learned counsel for the petitioner in this regard is found misconceived. However, as to the issue raised with regard to the illegality and impropriety in the electoral college dated 03.02.2024, it is open for the petitioner to raise the said issue by filing an election petition before the appropriate forum after the election process is completed, in as much as, during continuance of the election process, the challenge cannot be sustained.

4. With the above observations, the petition stands dismissed.

(SUNITA AGARWAL, CJ )

(ANIRUDDHA P. MAYEE, J.)

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