IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 15TH DAY OF SEPTEMBER 2003

BEFORE

THE HON'BLE MR. JUSTICE K. BHAKTHAVATSALA

WRIT PETITION NO. 24803/2003 (GM-Res)

BETWEEN:

Khasim Sab Bapu Sab Sirgupi, Age: 47 years, S/o Bapu Sab Siruguppi, Age: Major. Mutawalli, Gardenpet Mosque, Hubli.

Pettioner

(By Sri Jayakumar S Patil, Adv., for Sri Deviprasad Shetty, Adv., for Petr.)

AND:

1. The State of Karnataka. Rep. by its Secretary, Dept., of Revenue, M.S. Building, Bangalore-1.

2. The Under Secretary to Government, Revenue Department (Wakf & Haj), Dept. of Revenue, $M$ S Building, Bangalore-1.

$3.$ The Karnataka State Board of Wakf. Having its Office at No.6, Cunningham Road, Bangalore-06, Rep. by its Chief Executive Officer.

$4.$ Jabbar Khan Honali, S/o Hayath Khan Honali, Age: major, $R/o$ Anjuman-E-Islam, Hubli. Dist: Dharwad.

Respondents.

(By Sri Deshraj, AGA, for R-1) $(R-2 \text{ served, but absent})$ (By Sri Prabhuling K Navadgi, Adv., for R-3 (By Sri K Lakshminarayana Rao, Adv., for R-4)

This Writ Petition is filed under Articles 226 227 of the Constitution of India, praying to quash $\mathbf{a} =$ the order dated 30.4.2003 passed by R-2 by which $R-4$ has been nominated as the member of $R-3$ -Board vide Annexure-A, in so far as it relates to R-2.

This Petition coming on for hearing this day, the Court made the following:-

ORDER

The Petitioner, who is one of the Voters in the Electoral College constituted for the purpose of electing Muthawalli to the Board is before this Court challenging the Government order dated 30.4.2003 bearing No.RD/07/WES/2003 (Annexure-A) in so far as the Government nominating the 4th Respondent $a$ _S member of the 3rd Respondent-Board.

The brief facts of the $2.$ case of the Petitioner may be stated as under:-

The Petitioner is one of the Voters as per the electoral college of Muthawal Ri prepared $\mathbf{b}\mathbf{y}$ the $No. 24$ Government in Form No.6D (vide S1. $As$ $per$ Government notification bearing No.RD 49 WES 98 dated 26.9.1988, the Government notified and appointed in all 13 persons as members of the Karnataka State Board of Wakfs. Out of the 13 members posts, five. persons were nominated by the Government as $per$ Sec.14 of the Wakf Act, 1995 (in short, the Act). Out of 13 members of the Board, 7 persons are elected from the respective electoral college and the $13^th$ was appointed as an Officer of the State member

Government as per Sec. 14 of the Act, to hold Office for a period of 5 years as per Sec. 15 of the Act. Lateron, due to the demise of the elected member, Sri F M Kittur, from the Muthawallis of the Wakfs, the Government $\mathbf{b}\mathbf{y}^{\top}$ notification at Annexure-A dated 30.4.2003 nominated the 4th Respondent in lieu of the This is challenged in said Muthawalli's vacancy. this Writ Petition.

$\overline{3}$ . During the course of argument, the learned Sr. Counsel, Sri Jayakumar S Patil, submitted that in view of Sec. 14 of the Act, the nomination of the 4th Respondent is ex-facie illegal as the Government lacks the power to nominate any person as a member of the Board from the category of Muthawallis.

On the other hand, the learned Counsel for $4.$ the Respondent No.4, Sri Lakshminarayana Rao, submitted that keeping in view the provisions of Part-IX of Representation of People Act, 1951 and repealed Wakf Act, 1954 and the Rules framed under the present Wakf Act, the notification in question is valid and the Government had the power to nominate the 4th Respondent to the Board from the category of Muthawallis.

.3.

Whether the Government had the power to $5.$ nominate the 4th Respondent to the Board of the 3rd Respondent will have to be examined with reference to Sec.14 of the Act. Hence, it is necessary to excerpt Sec.14 of the Act.

Sec.14 of the Act dealing with composition 6. . of the Board reads as under:-

"Composition of Board. $-(1)$ The board for a State and the Union territory of Delhi shall consists of-

(a) a Chairperson;

(b) one and not more than two members, as the State Government may think fit, to be each of the electoral elected from colleges consisting of -

(i) Muslim Members of Parliament from the State or, as the case may be, the Union territory of Delhi,

(ii)Muslim Members State $\mathbf{of}$ the Legislature.

(iii)Muslim Members of the Bar Council of the State, and

(iv)mutawallis of the wakfs having an annual income of rupees one lakh and above:

(c) one and not more than two members to be nominated by the State Government representing eminent Muslim organisations;

(d) one and not more than two members to be nominated by the State Government, each from recognised scholars in Islamic Theology:

(e) an officer of the State Government not below the rank of Deputy Secretary.

(2) Election of the members specified in clause (b) of sub-section (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 sub-clauses (i) to (iii) of $(1)$ clause $(b)$ of sub-section the Members of Parliament. $ex$ -Muslim the State Legislature or ex-member of $\verb|the|$ State Bar Council, as the case may be, shall constitute the electoral college.

(3) Notwithstanding anything contained in. this section, where the State Government satisfied, for reasons to be recorded is. in writing, that it is not reasonably practicable to constitute an electoral<br>college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (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 sub-section (3).

(5) Where there are Shia wakfs but $n_0$ separate Shia Wakfs Board exists, $\boldsymbol{\mathsf{at}}$ least one of the members from the categories listed in sub-section $(1)$ . shall be a Shia Muslim.

(6) In determining the number of Shia. Sunni members of the Board, members or the State Government shall have regard to the number and value of Shia wakfs and Sunn i wakfs to be administered by the and appointment of the members Board shall be made, so far as may be, in accordance with such determination.

(7) In the case of the Union territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the. Central Government. from amongst the categories of persons specified in sub-section $(1)$ :

there shall $\quad\quad\mathbf{be}\quad\quad$ $one$ Provided Provided that. mutawalli as the member of the Board.

(8) Whenever the Board is constituted $\alpha$ r re-constituted, the members of the Board present at a meeting convened $\quad \textbf{for} \quad \textbf{the}$ purpose shall $\texttt{elect}$ one from amongst the Chairperson $of$ themselves the $\mathbf{a}\mathbf{s}$ Board.

The members of the Board shall be $(9)$ appointed by the State Government by notification in the Official Gazette.

$\boldsymbol{7}$ From the reading of Sec.14, it is crystal clear that the State Government can nominate minimum 3 persons maximum six persons as per clause(b) of sub-Sec. $(1)$ of Sec. 14 of the Act. According to sub-Sec. (3) of Sec. 14 of the Act, notwithstanding anything contained in Sec. 14, where State $\mathbf{the} =$ 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 sub-clauses (i) to (iii) - of clause (b) of sub-Sec. (1), the State Government may nominate such persons as the members of the Board as it deems fit.

Admittedly, the State Government 8. has $not$ reasons as required under sub-Sec. (3) of recorded Sec.14 to nominate the 4th Respondent herein to the 3rd Respondent-Board. Further, sub-Sec.4 of Sec.14 clarifies that the number of elected members of the Board shall, at all times, be more than the nominated members $of$ $-{\bf the}$ Board except $\mathbf{a}\mathbf{s}$ provided under Sub-Secs. $(1)$ , $(3)$ and $(4)$ of Sec. 14 sub-Section (3). of the Act shall be read in conjunction. Now, I

$.6.$

refer to the Government notification at Annexure-C As per Annexure-C, the Government dated 26.9.1998. has appointed 13 members to the 3rd Respondent-Board for a period of 5 years, out of that, five members were nominated by the Government as against 7 elected members from the respective electoral college. Therefore, there is no impediment to hold that the notification at Annexure-C is in accordance with Sec. 14 of the Act.

Now, I refer to the impugned order at 9. Annexure-A. As per Annexure-A, three persons including the Respondent No.4 have been nominated in view of the vacancies fell due to demise of the members of the Board to the category of Muslim Legislature, members of members of the ${\tt State}$ Muthawallis of Wakf and category of Muslim scholars, respectively. If Annexure-A is allowed to take effect, there will be seven State Government nominees against five elected members, which is quite $\mathbf{a}\mathbf{s}$ mandatory provisions $\verb|the|$ viz.. contrary to sub-Sec. (4) of Sec. 14 of the Act. In other words, as sub-Sec.4 of Sec.14 of the Act, the number of per. elected members of the Board, shall, at all times, be more than the nominated members of the Board except as provided under sub-Sec. (3). Therefore, entire Annexure-A is liable to be quashed, but the Petitioner has challenged the Annexure-A in so far as nomination $No.4$ $\mathbf{a}$ member of $3rd$ $of$ Respondent $\mathbf{a}\mathbf{s}$ t.he Respondent-Board.

$.7.$

Hence, I pass the following order_ 10.

The Writ Petition is allowed. The impugned order dated 30.4.2003 issued by the 2nd Respondent at Annexure-A, nominating the 4th Respondent as member of the 3rd Respondent-Board is quashed. No costs.

Rule made absolute.

$\mathbf{B},\mathbf{j},\mathbf{s}$

The learned Government Advocate is permitted to file memo of appearance within four weeks.

$Sd/-$ <br>Judge