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2014 DIGILAW 565 (MP)

Sayed Faroq Ali v. State of M. P.

2014-05-08

A.M.KHANWILKAR, K.K.TRIVEDI

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ORDER 1. By this petition under Article 226 of the Constitution of India, notification issued by the State Government dated 26.2.2014 in exercise of powers under section 13(1) read with section 14(1)(c) of the Wakf Act, 1995, has been assailed on the ground that it infringes the mandate of section 14 of the Act. In the context of this grievance, it is pointed out that by notification dated 4.12.2013 issued in exercise of powers under section 13(1) read with section 14(9), the State Government not only notified the names of the elected three representatives representing contituencies specified by section 14(1)(b)(i), (ii) and (iv), and also nominated two members on the Board which was constituted by the same notification in exercise of powers under section 14(9) of the Act. It was argued that the Board once constituted in terms of notification dated 4.12.2013 cannot be reconstituted, as has been done vide notification dated 26.2.2014. Further, the attempt of the State Government was to supersede the duly constituted Board in absence of the grounds specified under section 99 of the Act of 1995 for reasons best known to the concerned Authority. It was further argued that the attempt of the State Government to infuse new members was to affect the impending election process which has already commenced in terms of programme announced on 5.12.2013 and has been ordered to be taken to its logical end by this Court while disposing of W.P.No.18085/2013 vide order dated 13.1.2014. It is submitted that the nomination of member of the Board by the State Government is also in contravention of section 15 of the Act. 2. Having considered the rival submissions prima facie were are of the opinion that the notification dated 26.2.2014 impinges upon the mandate of section 14(4) of the Act. That provision predicates that 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 sub section (3). Notably, the notification issued on 26.2.2014 has not been issued in exercise of powers under section 14(3) of the Act. In that case the madate of section 14(4) obliges the State Government to ensure that the number of elected members of the Board and in contrast, the number of nominated members of the Board should remain unequal. Notably, the notification issued on 26.2.2014 has not been issued in exercise of powers under section 14(3) of the Act. In that case the madate of section 14(4) obliges the State Government to ensure that the number of elected members of the Board and in contrast, the number of nominated members of the Board should remain unequal. By appointing respondent No.4 vide notification dated 26.2.2014, admittedly, the number of elected members and also the nominated members would be equal in number, i.e. three each. The cannot be considered “more than”, as is specified by section 14(4) of the Act. On that count alone, we stay the operation of the notification dated 26.2.2014. 3. Prima facie, we are not inclined to accede to the extreme argument of the petitioner that the State Government was not competent to nominate new members once having exhausted that power by issuing notification dated 4.12.2013. We are also not impressed by the submission of the respondents/State that election of the Bar Council of the State have recently concluded and the Muslim member of the Bar Council of the State will be empanelled as elected member of the Board and in which case the nomination of the respondent No.4 vide notification dated 26.2.2014 would be permissible. 4. If that contention were to be accepted, it would be whittling down the efficacy of the expression “at all times” occurring in sub section (4) of section 14 of the Act. It would also mean that the State Government in anticipation of increase in the number of elected members can nominate commensurate number of members on the Board. The contention cannot be countenanced. 5. We are also not impressed by the argument that the appointment/nomination of new member by issuing successive notification amounts to supersession of the already constituted Board. The expression “supersession” of the already constituted Board. The expression “supersession occurring the section 99 has different connotation. By issuance of notification under section 13(1) of the Act, the Board is already constituted and successive notification issued to nominate member would be withinn the scope of section 14, in particular, section 14(3), which opens with non-obstante clause and also section 14(9) of the Act. 6. The expression “supersession occurring the section 99 has different connotation. By issuance of notification under section 13(1) of the Act, the Board is already constituted and successive notification issued to nominate member would be withinn the scope of section 14, in particular, section 14(3), which opens with non-obstante clause and also section 14(9) of the Act. 6. Suffice it to observe that for the reasons already recorded, notification issued by the State Government dated 26.2.2014, Annexure P/1, cannot be given effect to during the pendency of this petition and until further orders to be passed by this Court. 7. At the same time, we may have to once again reiterate the opinion recorded in the decision of the Division Bench of this Court dated 13.1.2014 while disposing of Writ Petition No.18085/2013 that the State Government is obliged to take election process already commenced in terms of programme announced on 5.12.2013 to its logical end on the basis of eligible electoral roll as on that date. 8. That be concluded as expeditiously as possible by 30.5.2014. 9. Writ petition is admitted. To proceed for hearing under caption “Election (other laws)/High Court Expedited Cases”, whichever is earlier.