The Supreme Court has held that the supersession of Tamil Nadu Wakf Board was illegal.
The bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah upheld the Madras High Court which had held thus while dismissing the appeals filed by the State.
The Government had passed the supersession order on the ground that there are only 10 members in the Board at the relevant time after Member of Parliament demitted office and that the number of nominated members being more than the elected members the State had no option except to supersede the Board. It was stated that the Senior Advocates can only be considered as nominated members. Therefore, the elected members are less than the nominated members and the Board is unable to perform its functions as per the Waqf Act, 1995, the supersession order stated. This order was challenged before the High Court. Though the single bench dismissed the writ petition, the Division Bench allowed the writ appeal and held that the supersession order was not sustainable.
While agreeing with views of the High Court, the Apex Court bench observed that lapse of the Goverment cannot be a ground for superseding the Board. It said:
In the facts of the present case, the State Government could have very well complied with objective of Section 14(4) by conducting an election for members 25 under Section 14(1)(b)(iii) by permitting nominated members to continue till the election is held. The State has further option to exercise power under Section 14(3) in event State was satisfied that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in subclauses (i) to (iii) of clause (b) of subsection (1), the State could have then nominated under Section 14(3) which nomination shall have overriding effect on the objective of Section 14(4) since subsection (3) begins with non obstante clause "Notwithstanding anything contained in this section,". The obligation on the State Government to constitute the Board in accordance with Section 14 keeping in view the objective under Section 14(4) was both right and duty of the State and any lapse therein cannot be a ground for superseding the Board.
The court also noted that Second proviso to Section 99 contains an injunction that the power of the State Government shall not be exercised unless there is a prima facie evidence of financial irregularity, misconduct or violation of the provisions of the Act. The present is not a case of any allegation of any financial irregularity or misconduct on the part of the Board, the bench noted. It said:
"The second proviso has to be read in conjunction with the main provision. The second proviso contains further restriction on the power of State Government to supersede the Board, i.e., unless there is prima facie evidence. There can be no dispute that prima facie evidence of financial irregularity, misconduct has to be prima facie financial irregularity or misconduct by the Board which is sought to be superseded. The third expression that is "violation" of the provisions of this Act has also to be read in the same manner that is violation of the provisions of this Act by actions of the Board. We, thus, are also of the opinion that in view of the legislative intendment as contained in second provision to Section 99, present was not a case where State could have exercised its power of supersession of the Board. In view of the foregoing discussion, we are satisfied that the High Court did not commit any error in holding supersession as contrary to law."
The court also held that the fresh election of two members in category under Section 14(1)(b)(iv) held in the year 2020 shall become non est and Syed Ali Akbar and Dr. Haja K. Majeed shall continue to occupy their office till their normal tenure of five years from 10.10.2017.
Case: State of Tamil Nadu vs. K. FAZLUR RAHMAN [CA NOS.36033605 Of 2020 ]
Coram: Justices Ashok Bhushan, R. Subhash Reddy and MR Shah
Counsel: Sr. Adv C.S. Vaidhyanathan, Sr.Adv Ratnakar Dash, Advocate Mehmood Pracha