Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.36033605 Of 2020
(arising out of SLP(C)Nos.1029410296 of 2020)
The State of Tamil Nadu & Anr. ...APPELLANTS
VERSUS
K. FAZLUR RAHMAN & ANR. ...RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These appeals have been filed against the common
judgment of the High Court of Judicature at Madras dated
17.08.2020 in Writ Petition Nos.726 of 2020, 8377 of 2020
and 9557 of 2020. The Division Bench of the High Court by
the impugned judgment has allowed Writ Petition Nos. 8377
and 9557 of 2020. The State of Tamil Nadu aggrieved by
Signature Not Verified
Digitally signed by
ARJUN BISHT
the impugned judgment has come up in these appeals.
Date: 2020.11.03
16:46:59 IST
Reason:
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3. The brief facts of the case to be noted for deciding
these appeals are:
The Tamil Nadu Waqf Board is a statutory body
governed by the Waqf Act, 1995. The term of earlier Waqf
Board expired on 14.06.2017 and thereafter the State of
Tamil Nadu reconstituted Tamil Nadu Waqf Board by order
dated 10.10.2017. The Board constituted on 10.10.2017
consisted of 11 Muslim members to the following effect:
"Muslim Member of Parliament
Thiru A. Anwhar Raajhaa, M.P.
Muslim member of State Legislature
1. Thiru K.A.M. Muhammed Abubacker, M.L.A.
2. Thiru K.S. Masthan M.L.A.
Senior Muslim Advocates
1. Thiru A. Sirajudeen
2. Thiru M. Ajmal Khan
3
Mutawallis
1. Dr. Haja K. Majeed
2. Thiru Syed Ali Akbar
Person with professional experience
Thiru A. Tamilmahan Hussain
Recognized scholars Shia and Sunni Islamic
Theology
1. Tmt. Amatul Atifa, Scholar in Shia Islamic
Theology
2. Tmt. A.S. Fathima Muzaffer, Scholar in Sunni
Islamic Theology
State Government Nominee
Thiru M.A. Siddique, I.A.S.”
4. Two Senior Muslim Advocates as referred above were
nominated by the State Government in exercise of power
under proviso to Section 14(1)(b)(iii) of the Waqf Act,
1995. One Muslim Member of Parliament, two Muslim Members
of State Legislature and two Mutawallis were elected
members under Section 14(1)(b). The nomination of two
Senior Muslim Advocates was challenged before the High
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Court by a writ petition which was dismissed upholding
the nomination.
5. The State Government issued a notification dated
18.09.2019 in exercise of power under Section 99(1) of
the Waqf Act, 1995 (hereinafter referred to as the “Act,
1995”) superseding the Waqf Board. The notification dated
18.09.2019 was issued after issuance of show cause notice
to the 10 members of Waqf Board existing at that time.
The membership of A. Anwhar Raajhaa, Member of
Parliament ceased in May, 2019 reducing number of members
as 10. The State Government was of the opinion that two
Senior Advocates who were nominated as members under
Section 14(1)(b)(iii) proviso cannot be treated as
elected members hence the number of elected members are
less than nominated members resultantly the Board is
unable to perform its work as per the Waqf Act, 1995. The
ground of supersession is mentioned in paragraph 8 of the
notification 18.09.2019 which is to the following effect:
"8. And whereas, the Tamil Nadu Waqf Board has
been called upon to show cause within 7 days
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from the receipt of that notice as to why the
Tamil Nadu Waqf Board should not be superseded
by the State Government under Section 99 of the
Waqf Act, 1995. Further it has also been
mentioned therein that in case no reply is
received within stipulated time, action will be
pursued in accordance with law. The show cause
notice was served to all the present 10 members
of the Tamil Nadu Waqf Board. In response to
the show cause notice, out of 10 members 4
members namely, Thiruvalargal K.A.M. Muhammed
Abubacker, M.L.A., A.S. Fathima Muzaffer, Dr.
Haja K. Majeed, Syed Ali Akbar, Members, Tamil
Nadu Waqf Board alone have sent their replies
to the Government. They have stated that the
Senior Advocates nominated as Members can be
considered as elected members and requested
that the superseding process may be dropped. In
this regard, the Government had already
received legal opinion that the Senior
Advocates can be considered as nominated
members. In view of above, the elected members
are less than the nominated members and the
Board is unable to perform its functions as per
the Waqf Act, 1995. Thiru A. Sirajudeed,
member, Tamil Nadu Waqf Board without
responding to the notice has submitted his
resignation as a member of the Tamil Nadu Waqf
Board, citing personal reasons vide his letter
dated 09.09.2019.”
6. The period of Waqf Board was further extended by
another six months upto 07.09.2020 by order dated
20.05.2020. The process for reconstituting the Waqf Board
was initiated by order dated 14.07.2020. Writ Petition
No.7661 of 2020 was filed challenging the order dated
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14.07.2020. The writ petition was dismissed by a learned
Single Judge of the High Court vide its judgment dated
24.07.2020 upholding the process of election initiated by
order dated 14.07.2020. Writ Petition No. 8377 of 2020
(Syed Ali Akbar vs. State of Tamil Nadu) was filed
questioning the order dated 18.09.2019 superseding the
Board as well as order dated 12.05.2020. Syed Ali Akbar
was elected member of the Board reconstituted on
10.10.2017 from the constituency of Mutawallis. Syed Ali
Akbar filed another Writ Petition No.9557 of 2020 before
the Madras High Court praying for issuances of writs for
quashing the press release dated 09.06.2020 and
consequential press release dated 14.07.2020. The
respondent, K. Fazlur Rahman filed Writ Petition No.726
of 2020 challenging the Government order dated 18.09.2019
by way of Public Interest Litigation in which writ
petition an interim order dated 18.03.2020 was passed by
the High Court to the effect that any action taken during
the interregnum shall be subject to the result of the
writ petition. All the writ petitions were decided by the
High Court by the common judgment dated 17.08.2020.
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Although, the High Court held that supersession dated
18.09.2019 was not in accordance with law, however, the
said order was set aside insofar as the election of two
persons Syed Ali Akbar and Dr. Haja K. Majeed alone. In
paragraphs 22 and 23 following was held by the High
Court:
"22.For these reasons, we accordingly hold
that the order passed by us including the
observation made on the impugned order would be
applicable to these two persons alone. We have
also been told that the process is completed
for all other constituencies except mutawalli
constituency.
23. Accordingly, the impugned order of
supersession in G.O.(Ms.) No.58 (Backward
Class, Most Backward Class and Minorities
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Welfare (T1) Department) dated 18 September
2019 and the consequential orders stand set
aside insofar as the election of two persons
viz.,.Syed Ali Akbar and Dr. Haja K. Majeed
alone are concerned. The writ petitions in W.P.
Nos.8377 and 9557 of 2020 stand allowed
accordingly.”
7. As per the election programme issued on 14.07.2020,
the date of polling was fixed on 19.08.2020. The schedule
of dates for various stages of election to constitute the
Tamil Nadu Waqf Board was published in the Tamil Nadu
Government Gazette dated 15.07.2020. The High Court by
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the impugned order dated 17.08.2020 had quashed the order
dated 18.09.2019 insofar as two members of the Board of
Mutawallis constituency are concerned, process for
electing/nominating other members of the Board was
untouched and was completed. In the SLP giving rise to
these appeals, an interim order was passed on 28.08.2020
staying of the operation of the impugned judgment dated
17.08.2020. The counteraffidavit has been filed both by
respondent No.1, K. Fazlur Rahman as well as Syed Ali
Akbar, respondent No.2.
8. We have heard Shri C.S. Vaidhyanathan, Senior
Advocate appearing for the appellant, Shri Ratnakar Dash,
Senior Advocate appearing for respondent No.1 and Shri
Mehmood Pracha, Advocate appearing for respondent No.2.
9. Shri C.S. Vaidhyanathan, learned senior counsel for
the appellant submits that Section 14(4) of the Act, 1995
provides that elected members of the Board shall at, all
time, be more than the nominated members of the Board. In
May, 2019 the number of elected members became four with
six nominated members, making the Board unable to perform
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its functions. Therefore, in exercise of power under
Section 99 of Act, 1995, the Board was superseded vide
G.O. dated 18.09.2019. The State Government has rightly
exercised the power under Section 99 and the Government
formed the opinion that the Board is “unable to perform”,
hence the supersession was ordered. The supersession
dated 18.09.2019 was extended by subsequent notification
dated 16.03.2020. The Division Bench committed error in
setting aside the notification dated 18.09.2019
partially. There can be no partial setting aside of the
supersession order. The validity of the supersession
order was upheld by the High Court in Writ Petition
No.20417 of 2019 vide its judgment dated 12.11.2019. The
supersession order was challenged by Syed Ali Akbar only
in July, 2020 with delay and laches. The election process
having once started could not have been interfered by the
High Court. It is not disputed that there are only 10
members in the Board at the relevant time after Member of
Parliament demitted office. The number of nominated
members being more than the elected members the State had
no option except to supersede the Board and start fresh
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process for constituting the Board. The validity of
notification dated 15.07.2019 was upheld by the High
Court in Writ Petition No.20085 of 2019 by its judgment
dated 12.11.2019 which issue had become final. The writ
petition proceedings initiated by the respondent is
barred by constructive res judicata. The High Court vide
impugned judgment violated the principles of comity of
Court as different benches of the High Court had upheld
the validity of the notification dated 15.07.2020. After
the interim order passed by this Court on 28.08.2020,
without prejudice to the outcome of the instant case,
election was held on 09.09.2020 by secret ballot and the
votes polled were counted on 10.09.2020. A. Abdul Rahman
and M. Mohamed Basheer declared elected subject to
further orders.
10. Shri Ratnakar Dash, learned senior counsel for
respondent No.1 submits that provision of Section 14(4)
was not violated since two Senior Advocates who have been
nominated under Section 14(1)(b)(iii) proviso should have
been declared as elected members in which case numbers of
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elected members shall not be less than nominated members.
Shri Dash submits that there was no ground for invoking
Section 99 in the facts of the present case.
11. Shri Mehmood Pracha, learned counsel appearing for
respondent No.2, submits that present was not the case
where power under Section 99 could have been invoked. It
is submitted that as per second proviso to Section 99(1)
the power of the State Government can be exercised only
when there is a prima facie evidence of financial
irregularity, misconduct or violation of the provisions
of this Act. It is submitted that the grounds given for
supersession in the order dated 18.09.2019 are not
covered by Section 99(1) especially second proviso. It is
submitted that responsibility to constitute the Board is
on the State Government hence it cannot take benefit of
its own wrong. It was for the State to ensure that number
of elected members is not less than the nominated
members. It is submitted that State was obliged to ensure
compliance of Section 14(4). He submits that under
Section 14(2) in absence of any Muslim member of the
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State Bar Council exmembers shall constitute the
electoral college, hence election ought to be conducted
under Section 14(1)(b)(iii). He submitted that nomination
of two Senior Advocates under Section 14(1)(b)(iii) was
void. It was State Government which had included two
Senior Lawyers in the Board which cannot be said to be
any violation committed by the Board. He submits that
term of the members is five years which cannot be
curtailed.
12. Shri C.S. Vaidhyanathan, in his rejoinder affidavit,
submits that there are no findings or allegation of any
kind of mala fide on the part of the State Government
which submission cannot be raised by the respondents in
these appeals. He submits that the High Court ought not
to have set aside the notification dated 18.09.2019.
13. We have considered the submissions of the learned
counsel for the parties and perused the records.
14. We need to first consider the scheme of Section 14
of the Act, 1995 regarding constitution/Composition of
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Board which provision is as follows:
“Section 14. Composition of Board.—(1) The
Board for a State and the National Capital
Territory of Delhi] shall consist of—
(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, 3 [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 auqaf 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
subclauses (i) to (iv), shall be
elected from the electoral college
constituted for each category.
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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 subclause (i) of clause
(b) or ceases to be a Member of the
State Legislative Assembly as required
under subclause (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 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;
(1A) No Minister of the Central Government
or, as the case may be, a State
Government, shall be elected or nominated
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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 subclauses (i) to (iv) of
clause (b) or clauses (c) to (e) in sub
section (1):
Provided further that at least two
Members appointed on the Board shall be
women:
Provided also that in every case where
the system of mutawalli exists, there
shall be one mutawalli as the member of
the Board.
(2) Election of the members specified in
clause (b) of subsection (1) shall be
held in accordance with the system of
proportional representation by means of a
single transferable vote, in such manner
as may be prescribed:
Provided that where the number of
Muslim Members of Parliament, the State
Legislature or the State Bar Council, as
the case may be, is only one, such Muslim
Member shall be declared to have been
elected on the Board:
Provided further that where there are
no Muslim Members in any of the categories
mentioned in subclauses (i) to (iii) of
clause (b) of subsection (1) the ex
Muslim Members of Parliament, the State
Legislature or exmember of the State Bar
Council, as the case may be, shall
constitute the electoral college.
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(3) Notwithstanding anything contained in
this section, where the State Government
is satisfied, for reasons to be recorded
in writing, that it is not reasonably
practicable to constitute an electoral
college for any of the categories
mentioned in subclauses (i) to (iii) of
clause (b) of subsection (1), the State
Government may nominate such persons as
the members of the Board as it deems fit.
(4) The number of elected members of the
Board shall, at all times, be more than
the nominated members of the Board except
as provided under subsection (3).
..................”
15. As noted above when the Board was constituted
initially on 10.10.2017 there was one elected member
under Section 14(1)(b)(i), two elected members under
Section 14(1)(b)(ii) and two elected members under
Section 14(1)(b)iv). Thus, there were five elected
members. The State Government had nominated two Senior
Advocates under Section 14(1)(b)(iii) proviso, since,
there was no Muslim member from the Bar Council of the
State. Under Section 14(1)(c), (d) and (e) total four
members were nominated. Initially the stand of the State
was that two members nominated under Section 14(1)(b)
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(iii) are to be treated as elected members, thus, due to
which State claimed composition of Board in accordance
with Section 14(4). On receipt of the legal advice that
members under Section 14(1)(b)(iii) proviso cannot be
treated as elected members of the Board, Government
formed the opinion that number of elected members are
less than nominated members. Consequently, proceeded to
supersede the Board by notification dated 18.09.2019. The
composition of Board as provided under Section 14
consists of both “elected” and “nominated members”,
wherever the words 'nominated members' have been used,
there can be no circumstances that they can be treated as
elected members. Section 14(4) which provides that number
of elected members of the Board shall at, all times, be
more than the nominated members of the Board, is subject
to an exception which is provided in subSection (3).
Subsection (3) contemplates that where the State
Government is satisfied, for reasons to be recorded in
writing, that it is not reasonably practicable to
constitute an electoral college for any of the categories
mentioned in subclauses (i) to (iii) of clause (b) of
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subsection (1), the State Government may nominate such
persons. If nomination is made under Section 14(3), in
such situation mandate of Section 14(4) shall not be
applicable, thus, Section 14 itself contemplates
situation where there may be more nominated members than
the elected members.
16. It is the State Government which is to establish a
Board as per composition provided under Section 14.
Section 14(4) is a provision which incorporates
democratic principles in constitution of the Board. The
Legislature contemplates that Board is to be run by
majority of elected members which is to ensure democratic
principle and make the voice of elected representatives a
determining factor in the decisions of the Board.
17. From the facts as noted above, there can be no
dispute that at the time when the Board issued show cause
notice as well as notification dated 18.09.2019, the
number of elected members was less than the number of
nominated members. The provision of Section 14(4) which
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mandates that number of elected members of the Board
shall at, all times, be more than the nominated members
of the Board is a provision compliance of which has to be
ensured by the State which is authorised to constitute
the Board. While constituting the Board, the State
Government has to be conscious of the fact that the
composition of Board shall be such which may fulfill the
objectives enshrined in Section 14(4). The State
Government when makes nomination of two Senior Advocates
under Section 14(1)(b)(iii), the said nomination was
bound to have adverse effect on requirement of Section
14(4). While constituting the Board as per Section 14,
the State has to keep in mind the principles and
objectives as enshrined in Section 14(4) and constitution
of Board shall be such as to give effect to the
democratic principle which is to guide the Board in its
functions.
18. In this context, we may also notice a Division Bench
judgment of Madras High Court in M.H. Jawahirullah and
others vs. Government of Tamil Nadu and others, (2013) 3
20
MLJ 688, where the Madras High Court has correctly
noticed the legislative intendment while constituting the
Board under Section 14 of the Act. Following observation
had been made in paragraph 27:
"27......Primacy given to democratic process of
administration and supervision in Wakf Board
Management is apparent. In fact, the Statement
of Objects and reasons shows this composition
and election is an important feature of the
Wakf Act. Since the intention of the
Legislature is to have democratic process of
administration and supervision in Wakf Board
Management, the State cannot avoid election and
resort to nomination arbitrarily. The only
exception is Section 14(3). In Section 14(3),
the Government is given discretion to exercise
power to nominate such persons as members of
the Board.”
19. After noticing the scheme of Section 14 now we come
to Section 99 which has been invoked by the Government in
superseding the Board constituted on 10.10.2017. Section
99 of the Act, 1995 provides:
“ Section 99. Power to supersede Board .—(1)
If the State Government is of opinion that the
Board is unable to perform or has persistently
made default in the performance of, the duty
imposed on it by or under this Act or has
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exceeded or abused its powers, or has wilfully
and without sufficient cause failed to comply
with any direction issued by the Central
Government under section 96 or the State
Government under section 97, or if the State
Government is satisfied on consideration of any
report submitted after annual inspection, that
the Board’s continuance is likely to be
injurious to the interests of the auqaf in the
State, the State Government may, by
notification in the Official Gazette, supersede
the Board for a period not exceeding six
months:
Provided that before issuing a
notification under this subsection, the State
Government shall give a reasonable time to the
Board to show cause why it should not be
superseded and shall consider the explanations
and objections, if any, of the Board:
Provided further that the power of the State
Government under this section shall not be
exercised unless there is a prima facie
evidence of financial irregularity, misconduct
or violation of the provisions of this Act.
(2)....................
(3)....................”
20. Section 99 (1) provides that if the State Government
is of opinion that the Board is unable to perform or has
persistently made default in the performance of, the duty
imposed on it by or under this Act or has exceeded or
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abused its powers, or has wilfully and without sufficient
cause failed to comply with any direction issued by the
Central Government under Section 96 or the State
Government under Section 97, or if the State Government
is satisfied on consideration of any report submitted
after annual inspection, that the Board's continuance is
likely to be injurious to the interests of the auqaf in
the State, the Government may supersede the Board. The
ground for superseding the Board in the notification
dated 18.09.2019 is that Board is unable to perform
which is due to the fact that number of nominated members
has become more than elected members.
21. Learned counsel for respondent No.2 has given
emphasis on second proviso to Section 99(1) which reads:
“Provided further that the power of the State Government
under this section shall not be exercised unless there is
a prima facie evidence of financial irregularity,
misconduct or violation of the provisions of this Act”.
The expression unable to perform is an expression of wide
import. We may look into the scheme of supersession as
23
contained in Section 99. The supersession is based on
some action, inaction, omission or misconduct of the
Board. The Act, 1995 enumerates various powers and
functions of the Board. When the Board is constituted it
is entitled to exercise its powers and functions as
enumerated in various Sections including Sections 32, 38,
39, 41, 48 and 53, etc. Section 22 is a clause which
saves proceedings of the Board from invalidity due to
reason only of the existence of any vacancy or any defect
in the constitution. Section 22 is as follows:
“ Section 22. Vacancies, etc., not to
invalidate proceedings of the Board. —No act or
proceeding of the Board shall be invalid by
reason only of the existence of any vacancy
amongst its member or any defect in the
constitution thereof.”
22. That in event there is vacancy in the Board or any
defect thereof, the proceedings or act of the Board are
not to be invalidated which has been saved by Section 22.
Thus, when the initially Board was constituted on
10.10.2017, the objective as enshrined in Section 14 was
24
not fulfilled even in the initial constitution, the Board
has been superseded not due to any action, inaction or
omission and misconduct on the part of the Board rather
due to number of elected members becoming less than to
the nominated members. The order dated 18.09.2019 spells
out the reason for supersession, i.e., A. Anwhar Raajhaa,
Member of Parliament whose term came to end in May, 2019,
other members of the Board as constituted on 10.10.2017
were same, thus, the circumstance which has been taken as
ground for supersession of the Board was not any action
of the Board. The event of cessation of membership of an
elected member is not under control of the Board. It was
the duty of the State Government to constitute the Board
as per the objectives enshrined in Section 14(4). The
State Government has ample power to conduct election for
the members as enumerated in Section 14(i)(b), (i) to
(iv).
23. In the facts of the present case, the State
Government could have very well complied with objective
of Section 14(4) by conducting an election for members
25
under Section 14(1)(b)(iii) by permitting nominated
members to continue till the election is held. The State
has further option to exercise power under Section 14(3)
in event State was satisfied that it is not reasonably
practicable to constitute an electoral college for any of
the categories mentioned in subclauses (i) to (iii) of
clause (b) of subsection (1), the State could have then
nominated under Section 14(3) which nomination shall have
overriding effect on the objective of Section 14(4) since
subsection (3) begins with non obstante clause
“Notwithstanding anything contained in this section,”.
The obligation on the State Government to constitute the
Board in accordance with Section 14 keeping in view the
objective under Section 14(4) was both right and duty of
the State and any lapse therein cannot be a ground for
superseding the Board.
24. We may also notice the objective and purpose of the
second proviso to Section 99 which has been inserted by
Act 27 of 2013. Second proviso contains an injunction
that the power of the State Government shall not be
26
exercised unless there is a prima facie evidence of
financial irregularity, misconduct or violation of the
provisions of the Act. The present is not a case of any
allegation of any financial irregularity or misconduct on
the part of the Board. The proviso is sought to be
explained by Shri C.S. Vaidhyanathan relying on the
“violation of the provisions of this Act”.
25. The word 'violation' is defined in the Black's Law
Dictionary Tenth Edition to the following effect:
"An infraction or breach of the law; a
transgression. The act of breaking or
dishonoring the law; the contravention of a
right or duty.”
26. The second proviso has to be read in conjunction
with the main provision. The second proviso contains
further restriction on the power of State Government to
supersede the Board, i.e., unless there is prima facie
evidence. There can be no dispute that prima facie
evidence of financial irregularity, misconduct has to be
prima facie financial irregularity or misconduct by the
27
Board which is sought to be superseded. The third
expression that is “violation” of the provisions of this
Act has also to be read in the same manner that is
violation of the provisions of this Act by actions of the
Board. We, thus, are also of the opinion that in view of
the legislative intendment as contained in second
provision to Section 99, present was not a case where
State could have exercised its power of supersession of
the Board. In view of the foregoing discussion, we are
satisfied that the High Court did not commit any error in
holding supersession as contrary to law.
27. Now, we also need to consider the submission of Shri
Vaidhyanathan that the High Court ought not to have set
aside the notification partially insofar as two elected
members of the Mutawalli category only. It is to be noted
that the High Court had categorically held that
supersession order is not sustainable in law but after
holding that, the High Court had moulded the relief in
the facts of the present case and subsequent events which
had taken place. Two writ petitions being Writ Petition
28
No.8377 and 9557 of 2020 which have been allowed by the
High Court were filed by Syed Ali Akbar who was elected
member from the Mutawalli category. Since, only one
category petitioners were before the High Court, it
confined the relief to that category. We need not dwell
into the question any further since before us there is no
further challenge on behalf of the writ petitioners that
supersession order ought to have been set aside in toto.
It is State which has come in the appeals against the
judgment of the High Court which has partially set aside
the notification dated 18.09.2019 for Mutawalli category
only. The High Court has not interfered with the fresh
constitution of the Board by election and nomination of
other categories except the category under Section 14(1)
(b)(iv). In view of the foregoing discussion, we, thus,
upheld the order of the High Court.
28. In result, the fresh election of two members in
category under Section 14(1)(b)(iv) held in the year 2020
shall become non est and Syed Ali Akbar and Dr. Haja K.
Majeed shall continue to occupy their office till their
29
normal tenure of five years from 10.10.2017.
29. All the appeals are dismissed.
..........................J.
( ASHOK BHUSHAN )
..........................J.
( R. SUBHASH REDDY )
..........................J.
( M.R. SHAH )
NEW DELHI,
November 03, 2020.