Indira Jain JUDGMENT
Indira Jain, J.
1. RULE. Rule is made returnable forthwith. Heard finally with the consent of learned counsel for the parties.
2. By the present writ petition petitioner who was a member of Waqf Board seeks direction to quash and set aside the impugned notification issued by respondent No. 1 on 26/07/2016 declaring that petitioner has deemed to have vacated the office of the member of the Board w.e.f. 1st December, 2015 as he ceases to be the member of Bar Council of Maharashtra and Goa from 1st December, 2015.
The facts giving rise to the petition may be stated in brief as under :
3. The petitioner was Chairman of the Bar Council of Maharashtra and Goa. He ceased to be the member of Bar Council of Maharashtra and Goa as tenure of the body came to an end w.e.f. 1st December, 2015. As a member of Bar Council, petitioner was appointed as member of Maharashtra State Board of Waqfs, Aurangabad from the category of Muslim members of the Bar Council of the State vide Government Notification dated 17/04/2012.
4. On 29/02/2016 one Mohd. Firdoz Ahmed preferred writ petition No. 1801 of 2016 seeking declaration that tenure of the petitioner as member of Waqf Board was co-terminus with his tenure of the Member of Bar Council of Maharashtra and therefore, he ceased to be the member of Waqf Board as tenure of Bar Council of the State came to an end. In the said petition direction was also sought against the petitioner that he had to vacate the office of the Board as he had ceased to be the member of the Bar Council. Writ Petition No. 1801 of 2016 came to be withdrawn on 20/06/2016 as the proposal for removal of the petitioner was under consideration before the State Government.
5. On 26/07/2016 respondent No. 1 issued a notification notifying that in view of the provisions of sub-clause (iii) of clause (b) of sub-section (1) of Section 14 of the Waqf Act, 1995 petitioner was not eligible to continue as member of the Board as he ceased to be the member of Bar Council of Maharashtra and Goa and declared that petitioner has deemed to have vacated the office of member of the Board of Waqf on 01/12/2015. This notification was served on petitioner vide letter dated 27/07/2016.
6. According to petitioner, he was very much interested in contesting the elections for the post of Chairperson of the Board. The elections were scheduled to be held on 3rd August, 2016. A grievance is made that respondents deliberately issued election programme one day before issuing notification dated 26/07/2016 removing him from the Board. It is submitted that entire exercise was at the behest of interested persons just to prevent the petitioner from contesting elections. A contention is raised that explanation II to Section 14(1) of the Waqf Act, 1995 states that in case Muslim member ceases to be a Member of Parliament or Member of State Legislative Assembly, such member shall be deemed to have vacated the office of the member of the Board from the date he/she ceases to be the Member of Parliament or Member of State Legislative Assembly. Petitioner submits that Explanation-II to Section 14 is not applicable to the member on the Waqf Board from Muslim member of Bar Council of the State. In support thereof, a decision in Writ Petition No. 8107 of 2014 by Aurangabad Bench is placed into service. It is submitted that Explanation-II to Section 14 restricts the tenure of member of the Board in respect of a particular category of Members i.e. Member of Parliament and Member of State Legislature. It does not put any restriction in case of Muslim member of the Bar Council of the State. The petitioner states that notification dated 26/07/2016 is dehors the provisions of Waqf Act, 1995. It is contended that even other provisions of the Act regarding disqualification, removal of the member would not be attracted in case of petitioner. It is submitted that notification was issued without proper application of mind and respondent No. 1 could not have curtailed the prescribed tenure of the petitioner by issuing impugned notification.
7. The respondents raised a preliminary objection regarding absence of territorial jurisdiction. On merits prayer in writ petition is resisted on the ground that from the scheme of Section 14 Explanation-II of the Act it is apparent that appointment on Board of a Member of Parliament or Member of State Legislative Assembly or of a Bar Council is otherwise co-terminus with his tenure. It is contended that Explanation-II to Section 14 is clarificatory in nature and though the same does not mention Bar Councillor therein it is not decisive.
8. It is submitted that petitioner is deemed to have vacated the office as a member of Board as he ceased to be the member of Bar Council and in this factual background notification dated 26/07/2016 was rightly issued by respondent No. 1. According to respondents, Writ Petition No. 8107 of 2014 decided by Aurangabad Bench was on entirely different set of facts and the same would not be applicable in the facts in which notification came to be issued by respondent No. 1.
9. Having considered the arguments advanced on behalf of the parties and having perused the record, we are of the considered opinion that question of jurisdiction should be first decided by us before going into the merits of the case in hand. On territorial jurisdiction various judgments have been relied upon by the learned counsel for the respondents.
10. In support of preliminary objection to the territorial jurisdiction Shri Bhangde, learned Senior Advocate referred paragraph No. 18 of the petition, which reads thus :
"18. The Petitioner states that he is a permanent resident of the city of Nagpur. The said notification was also received by the Petitioner at Nagpur and hence, cause of action for filing this Petition has arisen in District Nagpur and therefore this Hon'ble Court has jurisdiction to entertain and try this Petition."
11. Based on the above submission in the petition the learned Senior Advocate vehemently submits that residence of petitioner and receipt of communication/notification at Nagpur would not give rise to the cause of action at Nagpur. According to the learned Senior Advocate, it would be necessary for the petitioner to show that cause of action has arisen within the jurisdiction of this Court. On cause of action and the law relating to territorial jurisdiction of the High Court in writ jurisdiction, learned Senior Advocate for respondent No. 1 relied upon the following authorities :
"i) State of Rajasthan & Ors. v. M/s. Swaika Properties & anr., reported at MANU/SC/0304/1985 : (1985) 3 SCC 217;
ii) Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors., reported at MANU/SC/0759/1994 : (1994) 4 SCC 711;
iii) Navinchandra N. Majithia v. State of Maharashtra & Ors., reported at MANU/SC/0549/2000 : (2000) 7 SCC 640;
iv) Union of India & Ors. v. Adani Exports Ltd. and Another, reported at MANU/SC/0696/2001 : (2002) 1 SCC 567;
v) Addl. General Manager-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde, reported at MANU/SC/2274/2007 : (2007) 5 SCC 336;
vi) Alchemist Ltd. & anr. v. State Bank of Sikkim and others, reported at MANU/SC/1290/2007 : (2007) 11 SCC 335;
vii) VSP Acqua Mist Fire Pvt. Ltd., Nagpur v. Maharashtra State Electricity Transmission Company Ltd., Mumbai, reported at MANU/MH/1624/2010 : 2010 (2) Mh.L.J. 575;
viii) Nawal Kishore Sharma v. Union of India and others, reported at MANU/SC/0672/2014 : (2014) 9 SCC 329;"
12. In reply to the said arguments learned Senior Advocate Shri Jaiswal for the petitioner urged that the Waqf Board, though having its seat at Aurangabad, exercises jurisdiction over the entire State and Bar Council of Maharashtra also exercises jurisdiction over the entire State of Maharashtra and also State of Goa. According to him, in this situation, rights of the petitioner as a representative of the Bar Council and as a member of Waqf Board, identified all over the State have been prejudiced and hence, this Court has territorial jurisdiction.
13. Another contention raised on behalf of the petitioner is as stated in paragraph 18 of the petition that the petitioner is permanent resident of Nagpur and he received impugned notification at Nagpur. The learned Senior Advocate strenuously submitted that the facts stated in paragraph 18 of the petition and considering the extent of jurisdiction of State Bar Council and State Waqf Board, this Court has territorial jurisdiction to entertain and decide the controversy in writ jurisdiction. To substantiate his submissions, learned Senior Advocate Shri Jaiswal placed reliance on :
"a) Sanjay Baldeo Ramteke v. State of Maharashtra and ors., reported at MANU/MH/2358/2014 : 2015(3) Bom. C.R. 357, and
b) Kusum Ingots & Alloys Ltd., v. Union of India and another, reported at MANU/SC/0430/2004 : (2004) 6 SCC 254."
14. On going through the decision in State of Rajasthan & others v. M/s. Swaika Properties and another (supra) (i) it can be seen that question before the Hon'ble Supreme Court was whether the service of notice under Section 52(2) of the Rajasthan Urban Improvement Act, 1959 at the registered office of respondents was an integral part of cause of action and was sufficient to invest Calcutta High Court with jurisdiction to entertain the petition challenging the impugned notification of State of Rajasthan under Section 52(1) of the Act. The Hon'ble Supreme Court answered the same in the negative and held that service of notice must depend upon the nature of the impugned order giving rise to a cause of action.
The judgment in Oil and Natural Gas Commission v. Utpal Kumar Basu (supra) (ii) is on the same line in which the decision in State of Rajasthan and others v. M/s. Swaika Properties and another was referred by the Hon'ble Apex Court.
In Navinchandra N. Majithia v. State of Maharashtra (supra) (iii) the decisions in State of Rajasthan v. M/s. Swaika Properties and Oil and Natural Gas Commission v. Utpal Kumar Basu (supra) were relied upon and the Hon'ble Apex Court answered the issue of territorial jurisdiction in the negative.
In the case referred at (iv) above decision in Oil and Natural Gas Commission v. Utpal Kumar (supra) was followed and in Navinchandra N. Majithia (supra) was distinguished as in the said petition amongst other reliefs a Writ of Mandamus to the State of Meghalaya to transfer the investigation to Mumbai Police and also allegations of malafides were made as to the filing of the complaint at Shillong. It was observed that prayers in the writ petition gave raise to cause of action to move the High Court at Bombay for the relief and not before the Gujrat High Court. It was noticed that the judgment in Navinchandra Majithia (supra) was delivered in the matter involving criminal dispute and the consideration that arises in deciding the question of territorial jurisdiction in cases involving criminal offences may not always apply to the cases involving civil disputes.
The controversy in case of Addl. General Manager-Human Resource, Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde (supra) (v) was in respect of termination of service on the ground of non-fulfillment of eligibility conditions. The Scrutiny Committee at Nagpur invalidated the Caste Certificate of the petitioner. Initially two writ petitions were filed before Nagpur Bench of the Bombay High Court. In the third petition order under challenge was of termination of service passed at Hyderabad as the petitioner was serving at Hyderabad at the relevant time. In this background, the Hon'ble Supreme Court held that Nagpur Bench of the Bombay High Court had no jurisdiction to entertain the petition.
In later decision in Alchemist Ltd. and another v. State Bank of Sikkim and others (supra) (vi) previous decisions in (i),(ii) and (iv) were relied upon by the Hon'ble Supreme Court. The question involved was whether a part of cause of action had arisen within the territorial jurisdiction of High Court at C so as to entertain the writ petition under Article 226 of the Constitution filed by appellant company against the respondent. The Hon'ble Supreme Court held that the facts pleaded by the appellant were not essential integral or material facts so as to constitute a part of cause of action, hence, High Court was justified in dismissing the writ petition on the ground of territorial jurisdiction.
In Nawal Kishore Sharma v. Union of India and others (supra) (vii) appellant approached Patna High Court under Article 226 of the Constitution of India for grant of various reliefs including 100% disability compensation and pecuniary damages. An objection to the maintainability of the writ petition was raised on the ground that no cause of action or even fraction of cause of action arose within the territorial jurisdiction of Patna High Court. The appellant was appointed by the Corporation and he discharged his duty as Seaman for Offshore outside the territory of State of Bihar. The order declaring the appellant permanently unfit was passed by respondent corporation at Mumbai. The appellant being permanent resident of Bihar asserted his right in the State of Bihar. In this background the issue of territorial jurisdiction was considered by the Hon'ble Apex Court.
In the case of VSP Acqua Mist Fire Pvt. Ltd. Nagpur v. Maharashtra State Electricity Transmission Company Ltd., Mumbai (supra) (viii) challenge was to the award of contract to respondent No. 3. The dispute was pertaining to contractual obligation and in the facts of the case Division Bench of this Court held that merely because communications were received at Nagpur it could not be said that part of cause of action has arisen at Nagpur.
From the above, it is apparent that facts in the cases relied upon by respondent No. 1 are distinguishable and not identical to the facts in case on hand.
15. We have also gone through the decisions in Sanjay Baldeo Ramteke v. State of Maharashtra (supra) and Kusum Ingots & Alloys Ltd. v. Union of India and another (supra) relied upon by the learned Senior Advocate for the petitioner.
In Kusum Ingots & Alloys Ltd. v. Union of India (supra) the Hon'ble Apex Court elaborately discussed clause (2) of Article 226 of the Constitution, particularly the meaning of the word "cause of action" with reference to Section 20(c) and Section 141 of the Code of Civil Procedure and observed :
"9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.
10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter."
Their Lordships in paragraphs 29 & 30 further observed as under :
"29. In view of clause (2) of Article 226 of the Constitution of India, now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh has, thus, no application.
30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens."
In Sanjay Baldeo Ramteke v. State of Maharashtra (supra) appellant was suffering from serious heart muscles disease (Dilated Cardiomyopathy) and breathing problem which forced him to stay in native place, wherefrom he had been making all correspondence with regard to his disability compensation. Prima-facie, therefore, considering all the facts together the Hon'ble Supreme Court held that a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.
16. Needless to state that Article 226(2) of the Constitution of India speaks of the territorial jurisdiction of the High Court. It reads thus :
"The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any high Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
It is clear from the above constitutional provision that a High Court can exercise the jurisdiction within the territories within which the cause of action, wholly or in part, arises.
In the present controversy it would not be out of place to mention here provisions of Section 41 of the Bombay Reorganisation Act, 1960 and Rule 1 of chapter XXXI of the Bombay High Court Appellate Side Rules which deals with presentation of proceedings in the offices at Nagpur, Aurangabad and Goa. The provisions of section 41 of the Bombay Reorganisation Act, 1960 read with Chapter XXXI of the Bombay High Court Appellate Side Rules cannot abridge the writ jurisdiction and basically designed to meet administrative requirements and administrative convenience. This provision is in respect of any case arising in the jurisdiction of the High Court Benches at Nagpur, Aurangabad and High Court of Bombay at Goa. In the present case petitioner is prevented from exercising his rights and carrying his activities within the jurisdiction of this High Court also and therefore, in our view, this Court does have territorial jurisdiction to decide the controversy between the parties.
Under Article 226 High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. The expression cause of action means bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court.
17. In determining the objection of lack of territorial jurisdiction this Court has to take into consideration the facts pleaded in support of the cause of action albit without embarking upon an enquiry as to the correctness or otherwise of the said facts. It is a settled law that question of territorial jurisdiction needs to be decided on the facts pleaded in the petition and the truth or otherwise of the averments made in the petition would be immaterial.
18. In the instant case, it is not in dispute that jurisdiction of Bar Council of Maharashtra and Goa is all over the State. It is also not seriously disputed that the jurisdiction of Waqf Board functioning under the Waqf Act, 1995 is of the entire State. Petitioner received impugned communication at Nagpur declaring that petitioner has deemed to have vacated the office of the Member of the Board w.e.f. 1st December, 2015 at Nagpur.
19. In view of these uncontroverted facts pleaded in the petition, we are satisfied that those facts do constitute a cause so as to empower this Court to decide a dispute. Based on the facts pleaded in the petition we find that objection regarding absence of territorial jurisdiction is not sustainable in law.
20. Before proceeding to decide the challenge to the impugned notification dated 26/07/2016, it would be necessary to reproduce here the relevant provisions of Sections 14 and 15 of the Waqf Act, 1995, which read as under :
"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, [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 [auqafs] 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 sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category.
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 sub-clause (i) of clause (b) or ceases to be a Member of the State Legislative Assembly as required under sub-clause (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 or National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case may be;]
15. Term of office. - The members of the Board shall hold office for a term of five years [from the date of notification referred to in sub-section 9 of section 14]."
From Section 14 it is apparent that it deals with composition of Board whereas Section 15 relates to the term of office of the members of the Board. No where in the Act "term" or "tenure" of the Board is prescribed. It means, Board has to go on functioning whereas members would hold the office as per the term prescribed in Section 15 of the Act.
21. The learned Senior Advocate for the petitioner in his extensive arguments also referred to the provisions of Sections 16 and 20 of the Waqf Act, 1995. Section 20 confers powers on the State Government to remove Chairperson and member of the Board by notification in the Official Gazette and Section 16 lays down grounds of disqualification for being appointed or for continuing as a member of the Board. Sections 20 and 16 of the Act read, thus :
"20. Removal of Chairperson and member.- (1) The State Government may, by notification in the Official Gazette, remove the Chairperson of the Board or any member thereof if he -
(a) is or becomes subject to any disqualifications specified in section 16; or
(b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he may offer considers to be prejudicial to the interests of the auqafs; or
(c) fails in the opinion of the Board, to attend three consecutive meetings of the Board, without sufficient excuse.
(2) Where the Chairperson of the Board is removed under Sub-section (1), he shall also cease to be a member of the Board."
"16. Disqualification for being appointed, or for continuing as, a member of the Board. - A person shall be disqualified for being appointed, or for continuing as, a member, of the Board if -
(a) he is not a Muslim and is less than twenty-one years of age;
(b) he is found to be a person of unsound mind;
(c) he is an undischarged insolvent;
(d) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;
(da) he has been held guilty of encroachment on any waqf property;
(e) he has been on a previous occasion-
(i) removed from his office as a member or as a mutawalli, or
(ii) removed by an order of a competent Court or tribunal from any position of trust either for mismanagement or for corruption."
22. It is not in dispute that removal of the petitioner is not under Section 20 or due to disqualification in Section 16. As is apparent from the notification dated 26/07/2016, it is under sub-clause (iii) of Clause (b) of sub-section 1 of Section 14 of the Act of 1995 and it declares that petitioner is deemed to have vacated the office of the Board as he ceased to be the member of the Bar Council of the State.
23. Section 14(1)(b) (iii) of the Act is in respect of Muslim members of the Bar Council of the State and proviso mentions that in case there is no Muslim member of the Bar Council of the State, the State Government may nominate any Senior Muslim Advocate from the State.
Explanation II has been added by amendment w.e.f. 01/11/2013. It reflects the tenure of the member of the Board in respect of the Member of Parliament and Member of the State Legislative Assembly appointed on the Board. If Member of Parliament or Member of State Legislative Assembly ceases to be the Member of Parliament or State Legislative Assembly as the case may be Explanation II introduces deeming provision that such member shall be deemed to have vacated the office of the Board from the date from which such member ceases to be the Member of Parliament or the State Legislative Assembly, as the case may be. The learned Senior Advocate for the petitioner submits that Explanation II makes it abundantly clear that for the other categories it is not applicable and so Explanation- II cannot be invoked for removal of the petitioner. Alternate submission on behalf of the petitioner is that Explanation II has been introduced w.e.f. 01/11/2013. It would not have retrospective effect and cannot be invoked in case of petitioner appointed in the year 2012.
24. It is submitted that Explanation to section should normally be read to harmonise with main provision and not to widen its ambit. In support of the submission reliance is place on :
"c) Zakiya Begum and others v. Shanaz Ali and others,, reported at MANU/SC/0574/2010 : (2010)9 SCC 280.
d) Government of Andhra Pradesh and another v. Corporation Bank, reported at MANU/SC/7262/2007 : (2007) 9 SCC 55.
e) S. Sundaram Pillai and others v. V.R. Pattabiraman & others, reported at MANU/SC/0387/1985 : (1985) 1 SCC 591.
f) Sedco Forex International Drill. In and others. Sundaram Pillai and others v. Commissioner of Income Tax, Dehradun & another, reported at MANU/SC/2079/2005 : (2005) 12 SCC 717.
g) Union of India and others v. Martin Lottery Agencies Limited, reported at MANU/SC/0739/2009 : (2009) 12 SCC 209.
h) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and others, reported at MANU/SC/0794/2014 : (2015) 3 SCC 353.
i) Singareni Collieries Company Limited v. Vemuganti Ramakrishnan Rao and others, reported at MANU/SC/0879/2013 : (2013) 8 SCC 789.
j) Padma Sundara Rao (Dead) and others v. State of T.N. & others, reported at MANU/SC/0182/2002 : (2002) 3 SCC 533.
k) Union of India and another v. Shardindu, reported at MANU/SC/7667/2007 : (2007) 6 SCC 276."
Based on the above decisions, learned Senior Advocate for the petitioner urged that Explanation II does not include Muslim members from the Bar Council of the State and question of supplying Casus Omissus would not arise when the language of Explanation II is plain and unambiguous. In this background, further submission is that the impugned notification is illegal and needs to be set aside.
25. The learned Senior Advocate for respondent No. 1 states that reliance on explanation II is not at all placed as notification is issued under Clause (iii) of Section 14(1)(b) of the Act. The learned Senior Advocate submits that new Bar Councilors have taken over the office and law cannot take away their rights. Efforts of the learned Senior Advocate are to demonstrate that proviso to Clause (iii) of sub-section (1)(b) of Section 14 permits the State Government to nominate any senior Muslim Advocate in case there is no Muslim member of the Bar Council of the State. He submits that in case of Member of Parliament and Member of Legislative Assembly, such power to nominate is not given to the State. It is pointed out that proviso is to be strictly construed and if not it would be violative of Article 14 of the Constitution of India. To substantiate the contentions learned Senior Advocate for respondent No. 1 placed reliance on :
"x) Afjal Imam v. State of Bihar and others, reported at MANU/SC/0433/2011 : (2011) 5 SCC 729.
xi) Ishwar Nagar Co-operative Housing Building Society v. Parma Nand Sharma and others, reported at MANU/SC/0950/2010 : (2010) 14 SCC 230."
26. On behalf of the intervener, learned counsel Shri Bhandarkar submitted that once there is ouster from Bar Council there would be automatic cessation of membership of the Waqf Board. He adds that amendment to Section 14 and Explanation II is added just to remove the confusion. The learned counsel points out that in case of doubt limited interpretation is available as explanation nowhere says that the post held as a member of the Board by the petitioner is not co-terminus with his term of Bar Council. He supports the contention raised by the learned Senior Advocate for respondent No. 1 that explanation is clarificatory and cannot take away the rights accrued to the newly elected members of the Bar Council of the State. The learned counsel for the intervener placed reliance on the decision in Shaik Subhani v. The Government of Andhra Pradesh, [MANU/AP/2813/2013].
We have perused the record and also the reply affidavit of respondent No. 1. It is apparent from reply affidavit that impugned notification is issued on the basis of Section 14(1)(b)(iii) and newly added Explanation II in 2013.
27. We find from the pleadings and the extensive submissions advanced on behalf of the parties that entire controversy revolves around Explanation II to Section 14(1)(b) added in 2013 by amendment. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. The very opening of Explanation II "For the removal of doubts it is hereby declared" is self explanatory to indicate it's purpose and object.
Needless to mention that the object of an Explanation to a statutory provision is -
"a) to explain the meaning and intendment of the Act itself.
b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment and right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same."
A. Further it is a cardinal principle of interpretation of statute that the words of statute must be understood in their natural, original or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. Golden Rule is that words of statute must be given their original meaning when words are clear, plain and unambiguous. The effect to that meaning derived from the words needs to be given irrespective of the consequences. Needless to state that the words themselves best declare the intention of law givers. True, the object of legislation is to be ascertained before interpreting the provisions of the statute.
B. In construing Explanation II inserted by Act of 2013 the first and foremost rule of construction which would apply is literal construction. On careful perusal of Explanation II it is apparent that the language is plain, clear and unambiguous and legislative intent is loud and explicit.
C. It is well known that the Court cannot enlarge the scope of legislation or intention when the language of provision is plain, clear and unambiguous. It cannot add or subtract the words of a statute or read something into it which is not there. It cannot re-write or recast legislation. The real intention of the law givers must be gathered from the language used in statute.
D. If we see statement of objects and reasons of the Waqf Act, 1995 majority of members of Waqf Board of the State shall comprise such persons as are elected from amongst Muslim members of Parliament, Muslim members of State Legislature, Muslim Members of Bar Council in a State and Mutawallis of Waqfs. Nominated members are from Muslim Organizations of the State and representatives of the State Government. Section 13, as indicated above, deals with establishment of Boards and their functions. Section 14 is in respect of composition of the Board. The joint reading of Sections 13 and 14 makes it abundantly clear that the Waqf Board is not a conglomeration of individuals. It is a statutory body pure and simple.
In this situation, legislative intent in introducing Explanation-II only to include Member of Parliament and Member of the State Legislative Assembly being expressed from the words employed therein cannot be overlooked and departure from the rule of literal construction in such a case, in our view, would lead to unwarranted expression against the express intention of the legislature in inserting Explanation-II by way of an amendment. As indicated above, perusal of the Waqf Act, 1995 prior to its amendment by the Amendment Act 27 of 2013 reveals that even then the scheme of the Act was very clear. Section 14 itself shows that elections to all the constituent bodies or agencies cannot be held at one time and therefore, instead of prescribing the tenure of the Board, the Parliament found it wise to prescribe the term of a member. Board is constituted under Section 13 once for all as ever continuing body and its constituent members come and go as directed by the Parliament. This parliamentary wisdom is not assailed before us. While effecting the amendment by Act 27 of 2013, the Parliament was aware of this scheme and only to cater to tenure of the holders of the constitutional posts, a limited deviation has been made by making the term of holders of such post co-terminus with their constitutional post. The basic scheme has not been disturbed and to make it emphatic, in Section 15, by very same amending Act, words "from the date of notification referred to in sub-section (9) of Section 14" are added. We cannot presume that the Parliament was not aware of what it was doing. Entire Section 14, as amended, when read with Section 13 and Section 15 make a coherent consistent scheme complete in itself not resulting in any absurdity. Literal interpretation of these provisions therefore, needs to be accepted and implemented. There is no "casus omissus" and there is no question of attempting to provide for it. Recourse to such or any other interpretative exercise is not warranted at all. We, therefore, cannot accept the submission of the learned Senior Advocate that the post held by the petitioner as a member of the Waqf Board is co-terminus to his post as a member of the Bar Council of the State.
28. Another grievance of the petitioner is in respect of absence of bonafides on the part of respondent No. 1 in issuing the impugned notification. In this connection it is submitted that the petitioner was very much interested in contesting the elections for the post of Chairperson of the Board. The elections were scheduled to be held on 3rd August, 2016. It is submitted that deliberately to prevent the petitioner from contesting elections, election programme was issued one day before issuing notification dated 26/07/2016 and the entire exercise was at the behest of the interested persons. It is pointed out that last meeting of the Board was convened on 05/02/2014 and thereafter all of a sudden meeting was called and election programme was declared. The petitioner submits that the Board became very active declaring the elections just to ensure that the petitioner is not allowed to contest the elections and in this background also the impugned notification being issued in malafide manner would not stand in law.
29. In our view, the question of malafides, as alleged by the petitioner would not be relevant as it is a case of absence of power or authority in issuing impugned notification.
However, keeping in view the legislative intent in excluding Muslim members of the Bar Council of the State from Explanation II, we hold that petitioner is eligible to continue as a member of the Board for the period of five years as prescribed in Section 15 of the Act of 1995 and for the reasons stated herein before impugned notification being unsustainable in law, needs to be quashed and set aside.
30. By order dated 2nd August, 2016 we permitted the elections to go on as scheduled on 3rd August, 2016 and made it clear that its fate shall depend upon further orders of this Court in the matter. In consequence thereof we find it appropriate to set aside the elections of Chairman of Maharashtra State Waqf Board held in August, 2016.
In the above premise, we pass the following order :
"a) Writ Petition No. 4343 of 2016 is partly allowed.
b) Impugned notification dated 26/07/2016 (Annexure-E) issued by respondent No. 1 is quashed and set aside.
c) Elections of Chairman of Maharashtra State Board of Waqf, held in August, 2016, are also set aside.
(d) Rule is made absolute in the aforesaid terms.
(e) Pending Civil Application stands disposed of.
(f) No order to costs."
At this stage learned Advocate Shri Bhandarkar appearing for elected Chairperson seeks suspension of this order for period of four weeks.
The request is being strongly opposed by learned Advocate Shri Padhye who submits that earlier orders of this Court have been given effect to while setting aside said election of Chairman.
Respective Counsel appearing for other respondents submit that Court may consider all events and pass suitable orders.
In this situation we stay the judgment and order for period of four weeks. This interim order shall cease to operate automatically thereafter.
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