Merely Being A Member Of Haj Committee Doesn't Confer Knowledge In Shia Islamic Theology: Calcutta HC Quashes Appointment To WB Waqf Board

The Calcutta High Court has quashed an order passed by the Secretary, Government of West Bengal, Minority Affairs, and Madrasah Education Department for the nomination of the respondent as a member of the Waqf Board upon finding that the respondent was not suitably qualified to occupy the post.

A single bench of Justice Sabyasachi Bhattacharya also directed the State to undertake a fresh nomination process for the selection of another member to fill up the vacant post in conformity with the Wakf Act, 1995.

It held: Not a single sentence discloses how respondent no. 2 qualifies as a recognized scholar from any perspective, let alone adverting to such scholasticism in Islamic Theology. Merely being the member of a Haj Committee appointed by the State or the nazir or mutawalli of a waqf estate does not, in any manner whatsoever, confer any proficiency on a person within the contemplation of scholasticism or scholarship in Shia Islamic theology, although it may indicate that the person is favoured by or is close to the State administration.

Petitioners who were members of the Shia Community claimed to play a role in the upkeep of Shia Imambaras and graveyards in West Bengal and were interested in the proper functioning of the Board of Waqf.

The petitioners thus sought a writ of quo warranto against the appointment of respondent no 2 as a member of the Board, under Section 14(1)(d) of the Wakf Act, 1995.

In holding that the writ was maintainable since the appointment to the Waqf Board could be considered an appointment to a public office, the Court delved into the legal questions. 

When statute provides a specific yardstick for appointment, State cannot whimsically appoint any person based on different criterion

In perusing the qualifications required for someone to be appointed to the Waqf board under the 1995 Act, the Court noted that it emphasized the appointment of a renowned scholar in Islamic Theology with a degree in the subject from a recognized educational institution. 

The Court noted that in the present case, the State had given a complete go-by to this requirement, which could be found in Section 14(1)(d) of the 1995 Act, under which the impugned appointee was nominated. 

"Where a specific yardstick has been provided in the statute itself for a particular nomination, the State cannot have an unfettered right to whimsically appoint any person on different yardsticks for such post. The tests to be applied have to be strictly in terms of the legal provision which is the very source which empowers the State to make the nomination and not otherwise," it held.

Member/mutawalli of waqf estate appointed to Waqf Board would have an obvious vested interest

Further, in observing that the present appointee was someone who earlier held posts as mutawali in other waqf estates, the Court noted that such a situation would lead to an obvious conflict of interest.

It noted that while the State reiterated that the eligibility of the appointee was due to the fact that he had working experience as mutawalli of different waqf estates, this would be a good ground to seek his disqualification due to obvious vested interests based on the nature of oversight done by the Waqf board over Waqf estates. It held:

The Board can undertake enquiries and investigations into allegations against the functioning of particular waqfs and also take steps if there is mismanagement of waqf estates or misappropriation of funds or other illegalities committed. Thus, obviously, the Mutawalli of certain waqf estates which function under the general administration and control of the Waqf Board and/or the member of trusts/committees administering such estates or a Nazir of a particular waqf estate, appointed by this Court or otherwise, is the worst possible person to be nominated as a recognized scholar in Shia Islamic Theology, since he has an obvious vested interest in the matter.

Accordingly, the plea was allowed.

Citation: 2023 LiveLaw (Cal) 16

Case: Professor Syed Haider Hassan Kazimi and others v The State of West Bengal and another

Case No: WPA 18735 of 2022

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