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2017 DIGILAW 1610 (MAD)

K. S. Sharfudeen v. Tamil Nadu Wakf Board

2017-06-07

P.VELMURUGAN, T.S.SIVAGNANAM

body2017
ORDER : T.S. SIVAGNANAM, J. Since both the writ petitions pertain to appointment of Board of Trustees for M.K.N. Madarasa Trust, Adiramapattinam, Thanjavur, the matters were heard together and are disposed of by this common order. 2. The petitioner in W.P.(MD) No.9591 of 2017 is one K.S. Sharfudeen and he seeks for issuance of a writ of certiorari to quash the agenda of the Tamil Nadu Wakf Board, for the meeting scheduled to be conducted on 24.05.2017, insofar as it pertains to the subject in Serial No.4, which deals with appointment of trustees to M.K.N. Madarasa Trust. 3. W.P.(MD) No.10260 of 2017 has been filed by S.J. Abdul Hassan @ Abul Hassan praying for a direction upon the Tamil Nadu Wakf Board and its Chief Executive Officer to convene a meeting and finalize the selection of trustees for M.K.N. Trustees. 4. Thus, one of the petitioner seeks to prevent the Tamil Nadu Wakf Board from going ahead with the meeting and finalizing the selection of trustees, whereas, the other petitioner wants the meeting to be convened and selection to be finalized. 5. Mr. Veera Kathiravan, learned Senior Counsel, appearing for the petitioner in W.P.(MD) No.9591 of 2017, would contend that pursuant to the orders passed by the Division Bench, in W.A.(MD) No.1100 of 2015 etc., batch, dated 26.11.2015, the Board of Trustees had to be constituted by considering the applications, which are already submitted and scrupulously following the directions issued by the Division Bench more particularly in Paragraph No.25 of the Judgment. Pursuant thereto, an interview was conducted for all the candidates on 30.12.2015 and the arguments of the candidates, represented by their counsels, were heard and however, subsequently, the Board lost its quorum and no decision has been taken for the past two years and all of a sudden, the respondent - Board wants a decision to be taken in a hurried manner, when the term of the Board is to come to an end on 14.06.2017. Thus, it is submitted that if such a decision is permitted to be taken, then it would affect the purpose for which the larger body consisting of more number of members in the Board conducted the interview and heard the arguments and the smaller body will take a decision, which will not be conducive. Thus, it is submitted that if such a decision is permitted to be taken, then it would affect the purpose for which the larger body consisting of more number of members in the Board conducted the interview and heard the arguments and the smaller body will take a decision, which will not be conducive. Further, it is submitted that having waited from December, 2015, there is no immediate urgency for the Wakf Board to conduct the selection process. 6. It is further submitted that when a writ petition was filed by one A.M.S. Shihabuddin, in W.P.(MD) No.9751 of 2016, praying for a direction to conclude the selection process for appointment of the Board of Trustees of M.K.N. Madarasa Trust, the respondent - Wakf Board took a stand that the Board is yet to be constituted and in a public interest litigation petition, a direction has been issued to the Government to constitute the Wakf Board within a period of two months and by relying upon the said submission made on behalf of the Wakf Board, it is argued that as on date, there is no Board validly functioning and therefore, decision cannot be taken for selection of the trustees. Further, it is submitted that since there is no Chairman of the Board as required to be appointed in accordance with Section 14(8) of the Wakf Act, 1995 (hereinafter, may be referred to as "the Act"), the Wakf Board cannot exercise its jurisdiction. On the above grounds, the learned counsel submitted that direction should be issued first to the Wakf Board to be constituted and it is only thereafter, the Chairman to be elected and then only candidates can be selected. 7. Further, it is submitted that by efflux of time, two of the applicants, who were heard by the Board earlier had passed away and couple of the applicants have gone abroad for employment and therefore, decision need not be taken in such a hasty manner when the term of the office of the Board is to come to an end on 14.06.2017. 8. Mr. 8. Mr. K.K. Senthil, learned Standing Counsel appearing for the Wakf Board referred to the counter affidavit and after taking us through the earlier orders passed in the various proceedings, invited the attention of this Court to Section 14(4) of the Act, which states 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). 9. Further, in Paragraph Nos.7 and 8 of the counter affidavit, the respondent - Board has narrated as to how the number of elected members or nominated members kept fluctuating on account of various factors and it is submitted that as of now, there are seven members in the Board and out of the seven members, four of them are under the elected category and three of them are under the nominated category and the Board has adequate quorum and therefore, the Board conducted the meeting on 26.04.2017, 23.05.2017 and 24.05.2017 and one of the subjects is relating to appointment of trustees to M.K.N. Madarasa Trust and it is proposed to conduct the next meeting on 08.06.2017 and 09.06.2017. Therefore, it is submitted that the Board is competent to take a decision in the matter and it is not taking decision only in respect of M.K.N. Madarasa Trust, but several decisions have been taken in the earlier meetings. 10. Further, it is submitted that in terms of the orders passed by the Division Bench, the Wakf Board is required to proceed with the selection process and the reason for the matter having been kept pending is on account of the fluctuation in the number of elected and nominated members of the Board and other litigations, which arose during the interregnum. 11. Mr. V.K. Vijayaraghavan, learned Senior Counsel appearing for Mr. M.R.S. Prabhu, learned counsel for the petitioner in W.P.(MD) No.10260 of 2017 as well as Mr. Niranjan S. Kumar, learned counsel appearing for second respondent in W.P.(MD) No.9591 of 2017, would contend that the litigation initiated by Mr. K.S. Sharfudeen is only with a view to prevent the Wakf Board from taking a decision in the matter, which has been pending for over three years and periodically several writ petitions have been filed so as to prevent the Wakf Board from taking a decision in this matter. 12. K.S. Sharfudeen is only with a view to prevent the Wakf Board from taking a decision in the matter, which has been pending for over three years and periodically several writ petitions have been filed so as to prevent the Wakf Board from taking a decision in this matter. 12. It is further submitted that the Board has been validly constituted and it has got sufficient quorum, more particularly, in the ratio as mentioned in Section 14(4) of the Act and therefore, the Wakf Board should be permitted to take a decision on the applications, for which enquiry was completed during December, 2015. Therefore, it is submitted that necessary directions may be issued to the Wakf Board to proceed further with the matter. 13. We have elaborately heard the learned counsel appearing for the parties and perused the materials placed on record. 14. The first and foremost thing, which we wish to point out is that the prayer sought for in W.P.(MD) No.9591 of 2017 is thoroughly misconceived. What the petitioner seeks is to quash the agenda of the meeting. It is the elementary principle that agenda is only a subject index showing various subjects, which are proposed to be discussed in a meeting to be convened. Therefore, no writ of certiorari can be issued to quash the agenda. This would be sufficient to dismiss the writ petition. Nevertheless, as we have heard the learned counsel appearing for the parties for a considerable length of time, we propose to consider the contentions raised. 15. The Wakf Board is bound by directions issued by the Division Bench, dated 26.11.2015, the operative portion of which reads as follows: "We have already extracted paragraph 73 of the order passed on 19.06.2014 by the Division Bench of this Court. As per the said order, the Wakf Board shall proceed with the elections. We do not want to burden the Wakf Board with an obligation to publish a fresh advertisement. Since the advertisement has already been issued and also since the applications have already been received from all the three branches, no fresh applications need be entertained. On the applications already made, if Board shall conduct an enquiry after giving an opportunity of hearing to both objections as well as the persons whose applications are objected to their own innocence or other party's guilt. On the applications already made, if Board shall conduct an enquiry after giving an opportunity of hearing to both objections as well as the persons whose applications are objected to their own innocence or other party's guilt. Based upon such documents and the presentation made, the Wakf Board on or before 31.12.2015. If any party does not co-operate in the enquiry, they will forfeit the opportunity to challenge on the ground of violation of principles of natural justice. We also clarify that any decision taken whether accepting the application or challenging the same on the ground of disqualification will be open to the trustees. All parties having objections about the candidature of others will submit the same within a period of one week from the date of receipt of a copy of this order." 16. In due difference to the order passed by the Division Bench, the Wakf Board issued notice, dated 22.12.2015, calling upon the applicants to appear for enquiry on 30.12.2015. It is not in dispute that all the applicants, 53 in number, appeared in person / counsel, advanced their argument and they were fully heard. However, before a decision could be taken, apart from other litigations, which were initiated during the relevant time, the Wakf Board also faced difficulty in functioning on account of the embargo under Section 14(4) of the Act. 17. As noticed above, the number of elected members of the Board shall be more than the nominated members. At the time, when the interview was conducted on 30.12.2015, wherein 53 applicants, which include the writ petitioners, participated the quorum of the Board was in due compliance of Section 14(4) of the Act. The Chairman, who is a nominated member, resigned his post with an intention to contest in the Legislative Assembly and thereby, the number of nominated members reduced to four. Two other members, who were members of the Board, on account of they being members of the Legislative Assembly, had lost their tenure because, they have resigned their post, consequently the number of elected members was reduced to four. Thus, the ratio was four elected members and four nominated members. This being not in compliance of Section 14(4) of the Act, obviously the Board could not have transacted any business. Subsequently, one of the nominated members submitted his resignation and it was accepted by the Government on 07.04.2017. Thus, the ratio was four elected members and four nominated members. This being not in compliance of Section 14(4) of the Act, obviously the Board could not have transacted any business. Subsequently, one of the nominated members submitted his resignation and it was accepted by the Government on 07.04.2017. This changed the balance and the number of elected members as on date is four and the number of nominated members is three. If this is the position, then it is in due compliance of Section 14(4) of the Act and the Board would be entitled to transact business. 18. An argument was advanced by the learned Senior Counsel appearing for the petitioner in W.P.(MD) No.9591 of 2017 that in the earlier writ petition, a stand was taken that the Board has not been constituted and a direction has been issued in a public interest litigation petition to constitute a Board. Recording the said submission, a direction was issued in W.P.(MD) No.9751 of 2016, dated 11.04.2017, by this Bench. What is relevant to note is that Paragraph No.2 of the said order is the submission of the learned counsel. It is not the stand taken by way of counter affidavit as the writ petition was disposed of at the admission stage. Nevertheless, this Court did not take the cognizance of the same and the writ petition was closed giving liberty to the petitioner therein to renew his request as and when Wakf Board is constituted. However, the fact remains that the Wakf Board is in place as on date and the question of constituting and reconstituting of Board would arise only after the term of the Board expires. Therefore, the word "constitute" used in Paragraph No.2 of the earlier order cannot be read similar to the expression "constitute and reconstitute" used in Section 14(8) of the Act. 19. It is the further argument of the learned Senior Counsel that when the interview was conducted, the Board was a larger body and as of now, the strength is reduced, therefore, the rights of the applicants would be affected. We find from the counter affidavit that the number of members, who conducted the enquiry was 11 and as of now, the strength is seven. We find from the counter affidavit that the number of members, who conducted the enquiry was 11 and as of now, the strength is seven. In any event, the minimum number of members to constitute a valid Board has not been stipulated by the statute and in terms of Section 17, the Board is entitled to choose one of its members among themselves as a Chairman to preside over the meeting of the Board. 20. Reliance was placed on Section 14(8) of the Act by the learned Senior Counsel to the effect that there is no Chairman elected. This submission does not merit consideration, since the said provision stands attracted only whenever the Board is constituted or reconstituted. Furthermore, if any order is passed as sought for by the petitioner in W.P.(MD) No.9591 of 2017, it would amount to indirectly making the Judgment of the Division Bench in W.A.(MD) No.1100 of 2015 etc., batch, dated 26.11.2015, as unworkable and the same cannot be permitted to be done, more so, when that was the substantial litigation, where the Court tested the various contentions raised with regard to the constitution of the Board of Trustees. 21. One more submission, which was made by the learned Senior Counsel was by contending that couple of applicants, who had attended the enquiry are no more and some of them have left abroad. This would have no impact on the decision making process as the Division Bench in its Judgment, dated 26.11.2015, made it clear that the Board is under no obligation to publish fresh advertisement and since the applications have already been received from all the three branches, no fresh applications need be entertained. Therefore, even assuming that some of the applicants have left abroad, it would have no bearing on the absence of the applicants, who had already attended the enquiry. Thus, for all the above reasons, we are of the considered view that the prayer sought for in W.P.(MD) No.9591 of 2017 is thoroughly misconceived and no relief can be granted to the petitioner therein. 22. Accordingly, the writ petition in W.P.(MD) No.9591 of 2017 is dismissed. The order of interim injunction granted on 24.05.2017 is dismissed. Consequently, connected miscellaneous petitions are dismissed. 23. 22. Accordingly, the writ petition in W.P.(MD) No.9591 of 2017 is dismissed. The order of interim injunction granted on 24.05.2017 is dismissed. Consequently, connected miscellaneous petitions are dismissed. 23. In the light of the above order, W.P.(MD) No.10260 of 2017 is disposed of with a direction to the respondent - Board to proceed with the matter as per the schedule fixed in their agenda. No costs.