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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
Mr. M. Imam Hussain, Advocate - Petitioner
Versus
The Government of Tamil Nadu, Rep. by its Secretary, Backward Classes, Most Backward Classes and Minorities Welfare Department, Secretariat & Ors. - Respondents
W.P.(MD) No. 7661 of 2020 and W.M.P.(MD) Nos.7156 & 7157 of 2020
Decided On : 24-07-2020
Constitution of India – Article 226 – Waqf Act 1995 – Section 14(1)(b)(iii) – Writ petition is filed – Writ of Certiorarified Mandamus, calling for records relating to the impugned notification issued by the second respondent and quash the same as illegal and consequently direct the first respondent to nominate senior Muslim advocates to the Tamil Nadu Waqf Board in terms of proviso to Section 14(1)(b)(iii) of the Waqf Act 1995, within the time that may be stipulated by this Court –Held,cWhen the Bar Council of the State does not have a Muslim member, the electoral college will not fall vacant – It will then comprise the Muslim ex-members of the Bar Council – Only if there are no Muslim sitting or ex-members of the Bar Council and it is not possible to constitute the electoral college, the Government may nominate any senior Muslim advocate from the State to fill up the category contemplated – The expression “any senior Muslim advocate” occurring in the proviso to Section 14(1)(b)(iii) of the Act is not confined to designated senior counsel – It also includes those Muslim advocates who are 45 years of age and who are in practice for not less than 10 years preceding the date of consideration for nomination – Consequently, connected miscellaneous petitions also stand dismissed.
ORDER :
Prayer: Writ petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for records relating to the impugned notification issued by the second respondent dated 14.07.2020 and quash the same as illegal and consequently direct the first respondent to nominate senior Muslim advocates to the Tamil Nadu Waqf Board in terms of proviso to Section 14(1)(b)(iii) of the Waqf Act 1995, within the time that may be stipulated by this Court.
“Waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. To provide for the better administration of waqfs, the parliament enacted the Waqf Act, 1995 (hereinafter referred to as “the Act”). It provides for the establishment and constitution of Central Waqf Council by the Central Government. It also mandated the establishment of a Board of Waqf for each State and Union Territory. The Board is a body corporate having perpetual succession and a common seal. Section 14 of the Act sets out the composition of Board. It reads as follows :
(a) a Chairperson;
(b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of—
(i) Muslim Members of Parliament from the State or, as the case may be, [the National Capital Territory of Delhi],
(ii) Muslim Members of the State Legislature,
[(iii) Muslim members of the Bar Council of the concerned State or Union territory,
Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory, and]
(iv) mutawallis of the [auqafs] having an annual income of rupees one lakh and above.
[Explanation I.—For the removal of doubts, it is hereby declared that the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category.
Explanation II.—For the removal of doubts it is hereby declared that in case a Muslim member ceases to be a Member of Parliament from the State or National Capital Territory of Delhi as referred to in sub-clause (i) of clause (b) or ceases to be a Member of the State Legislative Assembly as required under sub-clause (ii) of clause (b), such member shall be deemed to have vacated the office of the member of the Board for the State or National Capital Territory of Delhi, as the case may be, from the date from which such member ceased to be a Member of Parliament from the State or National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case may be;]
[(c) one person from amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, to be nominated by the State Government;
(d) one person each from amongst Muslims, to be nominated by the State Government from recognised scholars in Shia and Sunni Islamic Theology;
(e) one person from amongst Muslims, to be nominated by the State Government from amongst the officers of the State Government not below the rank of Joint Secretary to the State Government;]
[(1-A) No Minister of the Central Government or, as the case may be, a State Government, shall be elected or nominated as a member of the Board:
Provided that in case of a Union territory, the Board shall consist of not less than five and not more than seven members to be appointed by the Central Government from categories specified under sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1):
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