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Asif v. The State of Maharashtra & Anr. - (High Court of Bombay) (22 Dec 2016)

Post held as a member of Waqf Board not co-terminus to post as member of Bar Council of State



By present writ petition, Petitioner, a member of Waqf Board seeks direction to quash and set aside impugned Notification issued by Respondent No.1 on 26th July, 2016 declaring that Petitioner has deemed to have vacated office of member of Board w.e.f. 1st December, 2015 as he ceases to be member of Bar Council of Maharashtra and Goa from 1st December, 2015.

A High Court can exercise jurisdiction within territories within which cause of action, wholly or in part, arises. Provisions of Section 41 of Bombay Reorganisation Act, 1960 read with Chapter XXXI of Bombay High Court Appellate Side Rules cannot abridge writ jurisdiction and basically designed to meet administrative requirements and administrative convenience. This provision is in respect of any case arising in jurisdiction of High Court Benches at Nagpur, Aurangabad and High Court of Bombay at Goa. In present case, Petitioner is prevented from exercising his rights and carrying his activities within jurisdiction of this High Court also and therefore, this Court does have territorial jurisdiction to decide the controversy between the parties.

In instant case, it is not in dispute that jurisdiction of Bar Council of Maharashtra and Goa is all over State. It was also disputed that, jurisdiction of Waqf Board functioning under Waqf Act, 1995 is of entire State. Petitioner received impugned communication at Nagpur declaring that Petitioner has deemed to have vacated office of Member of Board w.e.f. 1st December, 2015 at Nagpur. In view of uncontroverted facts pleaded in petition, objection regarding absence of territorial jurisdiction is not sustainable.

Entire controversy revolves around Explanation II to Section 14(1)(b) of Act, 1955 added in 2013 by amendment. An Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in statutory provision.

Statement of objects and reasons of Waqf Act, 1995 makes it clear that, majority of members of Waqf Board of 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 State and representatives of State Government. Joint reading of Sections 13 and 14 of Act, 1955 provides that, Waqf Board is not a conglomeration of individuals. It is a statutory body pure and simple. Section 14 of Act, 1955, 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, Parliament found it wise to prescribe term of a member. Board is constituted under Section 13 of Act, 1955, once for all as ever continuing body and its constituent members come and go as directed by Parliament. While effecting the amendment by Act 27 of 2013, Parliament was aware of this scheme and only to cater to tenure of holders of the constitutional posts, a limited deviation has been made by making 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 of Act, 1955, by very same amending Act, words “from the date of notification referred to in sub-section (9) of Section 14” are added.

Entire Section 14 of Act, 1955, as amended, when read with Section 13 and Section 15 of Act, 1955 make a coherent consistent scheme complete in itself not resulting in any absurdity. Submission of Senior Advocate cannot be accepted, that post held by Petitioner as a member of Waqf Board is co-terminus to his post as a member of Bar Council of State. In view of legislative intent in excluding Muslim members of Bar Council of State from Explanation II, Petitioner is eligible to continue as a member of the Board for the period of five years as prescribed in Section 15 of Act, 1955. Impugned notification being unsustainable in law quashed and set aside.

Relevant : Section 14, 15, 16 of Waqf Act, 1995


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