Prince Husain Imam v. State of Uttar Pradesh — 1986 DIGILAW 198 (ALL)

JUDGMENT K.S. Varma, J. - In this petition filed under Art.226 of the Constitution the petitioner has challenged the order by which his nomination paper for election to the committee of management for the administration and management of Husainabad and Allied Trusts has been rejected. 2. Section 2(2) of the Uttar Pradesh Muslim Wakfs Act, 1960 provides that the Apt shall apply to the endowments hitherto governed by the Husainabad Endowment Act, 1878. Under section 47 of the Act the State Government is empowered to settle the scheme of administration regarding the Waqfs, endowments and trusts referred to in section 2(2) of the Act. There is a Scheme of Management for the Husainabad and Allied Trusts duly settled by the State Government. The Scheme of Management provides that there shall be a Committee of Management for the administration and management of Husainabad and other Waqfs and Trusts affiliated to it from time to time. Clause 2 of the Scheme provides for the Constitution of the Committee of Management. Clause 2 in so far as it is relevant for the purpose of this case is reproduced below : "2. The Committee of Management shall consist of the following : Chairman : The Commissioner, Lucknow Division, Lucknow. Members : (a) one member to be elected by the Shia members of the State Legislature: (b) to (e) .......................... 3. The manner of election is provided in clause 13 of the Scheme. The said clause is reproduced below : "13.(i) For the purpose of filing the vacancies in membership under sub-clauses (a) and (b) of Clause 2 (illegible) shall he February, 1, 1961, in the first instance and thereafter within one month before the date on which the term of the members is to expire or whenever a vacancy occurs, within fifteen days of its occurrence, give a notice in writing to the bodies mentioned in these sub-clauses to elect their representative within one month of receipt of such notice." (ii) The notice under sub-clause (i) shall be given to the Secretary, Uttar Pradesh Legislative Assembly or Secretary, Uttar Pradesh Legislative Council, as the case may be for service upon the Shia members of the State Legislature and to the President of the Board of the Trustees of the Shia College, Lucknow for service upon that body. (iii) The election of the representative of the afore-mentioned bodies shall be governed by such procedure as is or may be prescribed by those bodies for electing their representative." 4. From the record it appears that on 5th August, 1985 the name of the petitioner was proposed by Dr. Z. A. Ahmad, M.L.C. and was seconded by Sri Akbar Husain Babar, M.L.A. There was another nomination of Sri Ikhlaq Rizvi. His nomination was proposed by Raha Mohammad Amir Mohammad Khan, M.L.A. and seconded by Sri Sibte Razi, M.L.C. By Annexure-2 the nominations of the petitioner and Sri Ikhlaq Rizvi were rejected on the ground that none of the persons proposed for election was member of the State Legislature. In the instant case we are concerned with the case of the petitioner and the question that awaits consideration of this Court is whether the nomination paper of the petitioner has been rightly rejected or not. The answer to this question will depend upon the interpretation of cl. 2(a) of the Scheme of Management which provides that one member has to be elected by the Shia members of the State Legislature. The contention advanced on behalf of the petitioner is that it is open to Shia members to elect a person who may not be a member of the State Legislature. Such a person may be a member of the State Legislature but the provision does not provide that the person to be elected should necessarily be a member of the State Legislature. On the other hand, it is contended on behalf of the opposite parties that on a correct interpretation of cl. 2(a), a member proposed to be elected should be a member of the State Legislature. 5. We have heard the learned counsel for the parties on this aspect of the matter at some length. 6. A preliminary objection has been raised on behalf of the opposite parties that under cl. 16 of the Scheme of Management the petitioner has an alternative remedy available to him by filing an election petition. It is contended that in view of the existence of an alternative remedy, this Court may refuse to exercise its discretion under Art. 226 of the Constitution. The preliminary objection on behalf of the opposite parties is not tenable. Clause 16 of the Scheme clearly provides that any candidate for an election under cl. It is contended that in view of the existence of an alternative remedy, this Court may refuse to exercise its discretion under Art. 226 of the Constitution. The preliminary objection on behalf of the opposite parties is not tenable. Clause 16 of the Scheme clearly provides that any candidate for an election under cl. 14 who is aggrieved by the result of the election, may file an election petition. Admittedly, the election in the instant case is one under cl. 13 for which special procedure has been provided. Since the instant case is not covered by cl. 16, the preliminary objection raised on behalf of the opposite parties fails. 7. The main question involved in the petition relates to the interpretation of cl. 2(a) of the Scheme of Management. We are of the view that the words "one member to be elected by the Shia members of the State Legislature" clearly indicate that it is open to the Shia members of the State Legislature to elect any one whom they consider fit. Such person may be a member of the State Legislature or may not be a member of the State Legislature but if the election is made of a person who is not a member of the State Legislature, such an election cannot be said to be invalid. 8. On behalf of the opposite parties reliance has been placed on cl. 4(q) of the Scheme of Management. The said clause is reproduced below : "4. A person shall be disqualified for being appointed or for continuing as a member of the Committee, if (a) to (f) ........................... (g) a person who is a member of the committee in his capacity as a member of the State Legislature or as an Advocate shall cease to be member of the Committee of his ceasing to hold that capacity." 9. By reference to clause(g) it is submitted that if a person who is a member of the Committee loses his membership of the State Legislature then he ceases to be a member of the Committee. In our opinion this argument is unsustainable. The relevant clause, that has to be interpreted, is cl. 2(a) and under cl. 2(a) there is no limitation that the person to be elected should also be a member of the State Legislature. 10. There is another aspect of the matter which deserves to be noticed. In our opinion this argument is unsustainable. The relevant clause, that has to be interpreted, is cl. 2(a) and under cl. 2(a) there is no limitation that the person to be elected should also be a member of the State Legislature. 10. There is another aspect of the matter which deserves to be noticed. A perusal of cl. 2(a) would indicate that a person becomes a member of the committee of management by virtue of being elected as a member of the committee and not by virtue of being member of the State Legislature. We accordingly hold that clause 4(g) will not apply to a member elected under cl. 2(a). 11. There is yet another way of examining the argument advanced on behalf of the opposite parties. Section 12(1)(i), U.P. Muslim Waqfs Act 1960 provides that the Shia Central Board shall consist of the Shia Muslim elected or co-opted as indicated therein. Section 12(1)(i) has to be examined in the light of section 22-A. Section 12(1)(i) provides that all Shia members of the State Legislature, shall be members of the Shia Central Board. Section 22-A provides that a person who is a member of the Board in his capacity as a member of the State Legislature, shall cease to be a member of the Board on his ceasing to be a member of the State Legislature. A perusal of the two sections indicates that the Shia members of the State Legislature are members of the Shia Central Board not on the basis of the election but by reason of being members of the State Legislature. It is apparent that if a person ceases to be a member of the Legislature, he ceases to be a member of the Shia Central Board of Waqf. It is thus obvious that the Muslim Waqfs Act clearly indicates the consequence that would follow from a person ceasing to be a member of the State Legislature but such an interpretation is not to be placed on cl. 2(a) under which an election intervenes and it is by virtue of that election that a person becomes a member of the Committee of Management. 12. 2(a) under which an election intervenes and it is by virtue of that election that a person becomes a member of the Committee of Management. 12. It may be stated that section 12(1)(i) prior to its amendment by the U.P. Muslim Waqfs (Amendment) Act No. 18 of 1972 provided as under : "I. Five members to be elected, not necessarily from amongst themselves, by the Shia members of the Legislature of the State." 13. After amendment the clause provides that all Shia members of the State Legislature shall be the members of the Shia Central Board of Waqfs. Section 22A was introduced in the Act by U.P. Act No. 11 of 1974. The provisions contained in section 22A which lay down that a person, who is a member of the Board in his capacity as a member of the State Legislature, shall cease to be a member of the Board on his ceasing to hold that capacity, was not on the statute book when a person under cl. 1 of section 11(1) used to become a member of the Board by virtue of his election. If the wisdom of the Legislature is to be read in cl. 4(g) of the Scheme it will have to be held that it would not apply to an election under cl. 2(a) read with cl. 13 of the Scheme. It will be noticed that clause 2(a) does not say that the candidate to be elected by the voters specified in clause 2(a) namely, Shia members of the State Legislature must himself be a member of the State Legislature. The Clause does not say that a member has to be elected from amongst themselves by the Shia members of the State Legislature. So long as this provision is not amended, the interpretation will not be different than what has been expressed above. 14. For the reasons stated herein above the writ petition is allowed. Annexure-2, which rejects the nomination of the petitioner, is set aside and the opposite parties are directed to hold election on the basis of the nomination paper submitted by the petitioner earlier. The opposite parties are directed to complete the election within one month of the receipt of this order. The parties shall bear their own costs.