1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION No. 3415 OF 2009. 1. Qamber Jeevaji s/o Sk. Hatim Jeevaji, Aged about 70 years, 2. Rashida Jeevaji w/o Qamber Jeevaji, Aged about 64 years, 3. Abdullah Bhai s/o Sk. Yusuf Saheb, Aged about 76 years, 4. Zebun Bai w/o Abdullah Yusuf, Aged about 65 years, 5. Sayeed Hasan Patel s/o Sk. Hasan Saheb, Aged about 69 years, 6. Rafique Badar s/o Tasadduq Badar, Aged about 65 years, 7. Sadique Anil s/o Adam Ali, Aged about 71 years, 8. Hasan Liva s/o Gulam-E-Liva, Aged about 57 years, 9. Abid Vakil s/o Sk. Munnavar Vakil Saheb, Aged about 51 years, 10. Munnavar Hakim s/o Fida Hakim Bhai, Aged about 75 years, All residents of Mahdi Bagh Garden, Shantinagar, Nagpur. ....PETITIONERS. ::: Downloaded on - 09/06/2013 16:01:57 ::: 2 VERSUS 1.The State of Maharashtra, through its Secretary, Minorities Development Department, Mantralaya, Mumbai - 32. 2.The Maharashtra State Board of Wakfs, Aurangabad, through its Chief Executive Officer, "Panchakki" Aurangabad. 3.Ahmed Khan Usman Khan Pathan, Member, Maharashtra State Board of Wakfs, Bhonsale-Shinde Arched, Office Nos.20/21, Second Floor 629A-4, J.M.Road, Deccan Gymkhana, Shivaji Nagar, Pune - 411 004. 4. Shah Tarique Anwar, Member of Parliament and Member of the Maharashtra State Board of Wakfs, 10, Dr. Vhishambhar Das Marg, New Delhi - 110 001. 5.Maulana Gulam Vastanvi, Member, The Maharashtra State Board of Wakfs, Jamiya Islamia Ishatul-Ulum, Akkalkuwa, District Nandurbar. 6.Shaheen Sayed Kadri, Deputy Secretary, Minorities Development Department, Mantralaya, Mumbai - 32. ....RESPONDENTS. ----------------------------------- Mr. Z.A. Haq, Advocate for Petitioners. Mrs.B.H. Dangre, Additional Government Pleader for Respondent Nos.1. Mr. M.G. Bhangde, Senior Advocate with Mr. R.M. Bhangde, Advocate for Respondent No.2. ------------------------------------ ::: Downloaded on - 09/06/2013 16:01:57 ::: 3 CORAM : B.P. DHARMADHIKARI & P.B. VARALE, JJ.
Date of reserving the Judgment. - 04.05.2010. Date of Pronouncement.- 18.06.2010. JUDGEMENT. (Per B.P. DHARMADHIKARI, J)
1. This writ petition under Article 226 read with Article 227 of the Constitution of India, is before the Special Bench and in view of orders dated 8/4/2010 and 23/4/2010, it has been heard finally by consent of parties by making Rule returnable forthwith. Prayers in petition are to direct respondent no.1 State Government to constitute Wakf Board legally as per Section 14 of the Wakf Act,1995, to declare Board as functioning today to be bad and to restrain Board from performing any duties or functions under Wakf Act till it is validly constituted. Other prayer is to quash notification dated 21/9/2006 published in gazette on 25/9/2006 nominating respondent no.4 Shah Tarique Anwar as member of Board. Consequential interim reliefs are also sought. On 8/4/2010, this Court has permitted respondent no. 2 Board to complete the hearing but restrained it from passing any orders in pursuance thereof.
::: Downloaded on - 09/06/2013 16:01:57 ::: 42. 10 petitioners before this Court are Dawoodi Bohras and claim to be "beneficiaries" within meaning of Section 3(a) and "persons interested" as per Section 3(k) of the Wakf Act in relation to a wakf by name Mahdi Bagh Wakf formed by the shia muslims.
Respondent no.1 State Government has constituted respondent no.2- Wakf Board for State of Maharashtra in discharge of its obligation under Section 13 of the Wakf Act. Said Board exercises supervision and control on affairs of the Mahdi Bagh Wakf and at present Application No.6/1999 is pending before it for constituting a scheme to regulate the affairs of Mahdi Bagh Wakf. Petitioners no.1 to 5 are the applicants in said proceeding. Dispute regarding registration of said Wakf and its properties under the Wakf Act vide order dated 29/3/2003 is also pending before Wakf Board in case no. 66/2005. Petitioners no.6 to 10 are the non-applicants in this dispute. Notification dated 4/9/2008 nominating some members on respondent No.2 Board is already set aside by the Division Bench of this Court at Aurangabad on 28/7/2009 in Writ Petition No.7071/2008 reported at 2009(5) All M.R. 722--2009 (12) LJSOFT 133--Syed Jameel Ahmed s/o. Syed Janimiya Vs. State of ::: Downloaded on - 09/06/2013 16:01:57 ::: 5 Maharashtra through its Secretary, General Administration Department and ors. For convenience, We have referred to this judgment as Aurangabad judgment or Division Bench judgment.
There the challenge was to notification dated 4/9/2008 issued under Section 14(9) of the Wakf Act. Petitioners here challenge prior notification dated 25/9/2006 nominating respondent no.4 on respondent no. 2 Board as bad and ultra-vires.
3. We have heard Advocate Haq for petitioners, Additional Government Pleader Bharati Dangre for respondent no.1 State and Senior Adv. M.G. Bhangde with Adv. R.M. Bhangde for respondents no. 3 to 6. Gist of their respective contentions is mentioned below.
A) Shri Haq, learned counsel for petitioners. (i) Shri Haq, learned counsel for petitioners has stated that
all the petitioners are parties to proceedings pending before the respondent no. 2 Wakf-Board. They are shia muslims and beneficiaries under Sections 3(a) and 3(k) of the Wakf Act,1995.
As the proceedings are still pending and the dispute is being considered by respondent no.2 in quasijudicial capacity, its ::: Downloaded on - 09/06/2013 16:01:57 ::: 6 constitution has to be strictly as per Sections 13 and 14 of the Wakf Act. Section 13(2) contemplates a separate Board for shia muslims and when such independent Board is not feasible, Section 14(5) postulates a shia member on Board as constituted. No such shia member is on Board today though it is considering dispute involving a shia wakf.
(ii) He also invites attention to scheme of Section 14 to urge that it contemplates election of members on Board and as respondent nos.3 and 4 are not elected members but are nominated by State Government, constitution of Board is contrary to Section 14 of Wakf Act. The provision for electoral college and election therefrom is mandatory and always the strength of elected members on Board has to be more than the nominated members.
No steps to conduct elections from categories to which respondent nos.3 and 4 represent were initiated and hence, the composition or constitution of respondent no.2 Board is bad and object with which respondent no. 2 has been established is defeated. Even if notification dated 27/7/2006 declaring respondent no.3 to be elected as its member is presumed to be valid, still other 3 members ::: Downloaded on - 09/06/2013 16:01:57 ::: 7 out of total 4 are nominated one. Shri Haq, learned counsel states that there were at least 2 eligible candidates in constituency represented by respondent no.4 and there is nothing on record to show that the other name ie name of Shri A.R. Antule was even taken in consideration. The Government while taking the stand to justify nomination of respondent no.4 does not produce any document in support and the burden to support this contention was upon the State. Petitioners need not call for any records as the issue or facts stand concluded because of adjudication by Division Bench of this Court at Aurangabad in Syed Jameel Ahmed s/o. Syed Janimiya Vs. State of Maharashtra through its Secretary, General Administration Department and ors. (supra). There the challenge to government notification dated 4/9/2008 nominating members on respondent no.2 Board was challenged and findings recorded therein clinch the issue even in this petition. The provisions of Wakf Act do not disqualify Shri Antule, the Hon'ble Minister only because of his office as a minister in Central Government. No such reason is recorded in government file and hence, effort to substitute a new contention as a reason can not be countenanced in view of AIR 2005 SC 3520--"Hindustan Petroleum Corpn. Ltd. v. Darius Shapur ::: Downloaded on - 09/06/2013 16:01:57 ::: 8 Chenai", para 28. Hence notification dated 25/9/2006 nominating respondent no.4 as member is void and unsustainable.
(iii) Learned Counsel for petitioners further argues that after above Division Bench Aurangabad judgment of this Court the present respondents no.3 to 6 are the only members continuing on Board. Out of them only respondent no.3 can be at the most presumed to be elected while the other 3 are nominated and hence requirement of Section 14(4) has been observed in breach. State Government though aware of need of having a shia member on Board has not taken any steps to appoint shia member and its reply shows attitude of avoidance. Attention is invited to the statement of object and reasons behind enacting Wakf Act as it now stands to stress that that object is being defeated.
(iv) Reliance by defence upon Section 22 of Wakf Act is stated to be misconceived as the government cannot use it to perpetuate illegalities and said provision is not an enabling provision but a saving clause to be resorted to only in exceptional circumstances. Judgment of Hon'ble Apex Court at (1999) 6 SCC ::: Downloaded on - 09/06/2013 16:01:57 ::: 9 604-AIR 1999 S.C. 3223 "Davis v. Sebastian" is relied upon to buttress this stance.
(v) The Division Bench has ruled against State Government and Board on 29/7/2009 and quashed 5 nominations and still no effective steps to cure lacunae are being taken. Election to State assembly are over in October 2009 and hence electoral college u/s 14(1)(b)(ii) is available since then. Vacancy of shia member is also not filled in after 12/11/2008. Lastly Shri Haq, learned counsel for petitioners objects to any arguments in defence by respondent no.2 Board as according to him the Board has no interest and locus in dispute of present nature and it has to remain neutral.
B) Smt. B.H. Dangre, learned Additional Government Pleader .
(i) Additional Government Pleader Smt. Dangre, on behalf of respondent no.1 State has taken preliminary objection on the ground of latches by pointing out that notification of respondent no.4 as Board member is dated 25/9/2006 and the same is being assailed in 2009. The Division Bench at Aurangabad was not ::: Downloaded on - 09/06/2013 16:01:57 ::: 10 required to look into validity of this notification and said judgment does not disturb appointment of respondent no.4 though the present controversy was very much open. In constituency represented by respondent no.4 there was only one person i.e., present respondent no.4 as Shri A.R. Antule being Hon'ble Minister for Minorities at Central Government needed to be excluded from zone of consideration due to scheme of Wakf Act. The State Government therefore rightly took recourse to its Section 14(3) and nominated respondent no.4. Attention is invited to reply affidavit disclosing this stand and to absence of any rejoinder by petitioners to counter it. She further points out the statement in reply affidavit that shia member is being appointed on Wakf Board.
By placing reliance upon the definition clause and other relevant provisions of Wakf Act, She has argued that once the Board is brought into existence as per Section 13, a legal person is born and by defects like vacancies or in constitution, its life is not taken away. As Board has to decide as per majority, the number of members available on Board may fluctuate but that does not effect its powers or adjudication. She therefore contends that even on merits there is no substance in writ petition.
::: Downloaded on - 09/06/2013 16:01:57 ::: 11C) Shri M.G. Bhangde, Senior Counsel for respondents.
(i) Shri M.G. Bhangde, Senior Counsel with Shri R.M.
Bhangde, learned counsel for respondents has also raised various preliminary objections on behalf of respondent no.2 Board and its members i.e., respondents no.3 to 6. Prayers made in writ petition are pointed out to urge that there is a prayer for mandamus but as it is not preceded by necessary demand, the mandamus to constitute the Board can not be issued. The legal notice served before filing of present petition is also shown to urge that there is material difference between the relief now sought and demand therein. (1974)2 SCC 630-AIR 1975 S.C. 460 "Saraswati Industrial Syndicate Ltd. v. Union of India" and 1998 (2) Mah. L.J. 205-
Shashikala Parashar vs. State of Goa are relied upon in support. He contends that in facts before this Court no legal right of petitioners is violated and at worst, Shri A.R. Antule, Hon'ble Minister could have made some grievance. (1977) 1 SCC 486-AIR 1977 S.C. 276-
Mani Subrat Jain etc. etc., v. State of Haryana and others, and (1973) 1 SCC 485- AIR 1973 S.C. 964 "Umakant Saran, Dr. v.
State ::: Downloaded on - 09/06/2013 16:01:57 ::: 12 of Bihar" are pressed in to service for this purpose. Further the challenge in writ petition is not only stale but only because of Division Bench view of this Court. The tenure of a Board member is of 5 years and petition is filed after 3 years of notification dated 25/9/2006. Judgment of Hon'ble Apex Court reported at (2005)13 SCC 207- AIR 2005 S.C. 4380 "Mohd. Siddiq Ali v. High Court of A.
P." is cited by him for this purpose. To further above stand, (2010) 3 SCALE 583--Sawaran Lata vs. State of Haryana, is relied with contention that petitioners continued to appear in proceedings registered as application 66/2005 before respondent 2 Board and thus also acquiesced in composition and are now estopped from assailing it.
(ii) Petitioners are alleged to be suppressing material facts by pointing out that before the Division Bench at Aurangabad they filed civil application seeking leave to intervene and supported the action/stand of State Government that Board as constituted was/is valid. Shia member on Wakf Board had term from 13/11/2003 till 12/11/2008 and petitioners made no grudge about his absence then. By legal notice they did call upon the State/Board to convene ::: Downloaded on - 09/06/2013 16:01:57 ::: 13 meeting of all Board Members for consideration of their case. The order passed by this Court (at Nagpur) on 17/2/2009 is also suppressed and efforts made by petitioners to have it implemented are also not disclosed. Petition deserves to be rejected for such suppression and (2008) 12 SCC 481- K.D.
Sharma Vs. Steel Authority Of India Limited and Others , is relied upon for this purpose.
(iii) Learned Senior Counsel contends that strength of elected members on Board has to be more than that of nominated members as per Section 14(4) but then this requirement is subject to Section 14(3) of Wakf Act and that Section 14(3) opens with non-obstante clause. Because of express exclusion in Section 14(4) and employment of non-obstante clause in Section 14(3), above requirement is exempted and an investigation in to facts of each case becomes must. He further draws support from words "not reasonably practicable" used in Sub-section (3) to argue that provision is not negatively worded but is permissive one.
(iv) (2008)2 SCC 321--2008(4) Mah.L.J. 365- Rahul ::: Downloaded on - 09/06/2013 16:01:57 ::: 14 Builders vs. Arihant Fertilizers and Chemicals and another, as also comments by Hon'ble Justice Shri G.P. Singh in his treatise on Principles of statutory interpretation at page 209 (12th Edt. ,2010) are relied upon to drive home the point.
(v) Position superior to member of Wakf Board envisaged for Hon'ble Minister Shri Antule by Section 9 of Wakf Act is pressed into service to point out that due to it, apart from respondent 4 there was no other member left in said constituency and hence, election was not reasonably practicable and possible. Ruling of Hon'ble Apex Court reported at (2001) 5 SCC 593- AIR 2001 S.C.
1772 "Union of India v. Harjeet Singh Sandhu" is relied upon to show how words "reasonably practicable" need to be construed. As the reasons disclosed by State Government for not conducting the elections are not in dispute , the stand of Government needs to be accepted.
(vi) About requirement of Section 14(5) the learned Counsel states that in the wake of directions of this Court dated 17/2/2009 the petitioners agreed to participate in proceedings before the ::: Downloaded on - 09/06/2013 16:01:57 ::: 15 Wakf Board as constituted during hearing at Aurangabad (Division Bench) and thus acquiesced in vacancy and its filling in by State Government in due course. Thus there is no legally enforceable right in favour of petitioners in this connection.
(vii) He further argues that this Court has already issued writ in the matter on 17/2/2009 and hence, no other writ including mandamus or any direction to the contrary can be issued by it now.
4 ingredients essential to issue writ of prohibition are pointed out through (2003) 8 SCC 134-AIR 2003 S.C. 3290 "Thirumala Tirupati Devasthanams v. Thallappaka Anantha Charyulu" with contention that none of them are satisfied here and prohibition can not be issued.
(viii) Heavy reliance is put on Section 22 of the Wakf Act to urge that said provision is not challenged and in its face, when action taken by Wakf Board with defects contemplated therein is protected, no order restraining Board from doing it or proceeding further can be passed. Judgments of Hon'ble Apex Court reported at (1996) 10 SCC 590-Gulzari Lal Agrwal vs. Accounts Officer, (2006) ::: Downloaded on - 09/06/2013 16:01:57 ::: 16 4 SCC 162-- Akhil Bharat Gosewa Sangha vs. State of A.P. and others and ILR 1983 Delhi 934-- Trilochan Singh Rana vs. Joginder Singh Bajwa are cited to explain and interpret Section 22. It is further argued that when very provisions are very clear and unambiguous, there is no need to look to "object and reasons clause" for their interpretation. Attention is invited to (1997) 8 SCC 522- AIR 1997 S.C. 3127 "S. S. Bola v. B. D. Sardana".
(ix) It is argued that all parties to 3 proceedings before the Wakf Board are bound to be affected by present adjudication and still they are not joined as parties. Therefore also present writ petition is liable to be dismissed.
D) Reply of Shri Haq, learned counsel for petitioners.
In reply, Shri Haq, learned counsel argues that till 12/11/2008 there was no cause for petitioners to invoke Section 14(5). He further points out that first notice was issued on 6/2/2009 as no meetings of Wakf Board were held for about one year and directions of this Court dated 17/2/2009, notice was immediately sent on 20/2/2009. State Government issued direction ::: Downloaded on - 09/06/2013 16:01:57 ::: 17 to hold meeting firstly thereafter on 24/12/2009 and first hearing was then conducted by Wakf Board on 9/1/2010. Present petitioners were only intervenors at Aurangabad and hence, were not entitled to any relief. Respondents no. 3 and 4 were not parties to that petition. He contends that maximum strength possible as per Section 14 is 13 while minimum is 7 but existing strength is 4 only. The aspect of "reasonably practicable" is gone into by Aurangabad Division Bench and those findings even on facts are not in dispute here. Section 16 of Wakf Act is pressed into service to plead that it does not disqualify any minister from being a member of the Wakf Board. He states that there is no suppression as all developments are known to everybody and petitioners have placed all material facts before this Court. AIR 2004 Sc 2421-- "S.J.S.
Business Enterprises (P) Ltd., M/s. v. State of Bihar" is relied upon to state that to deny the relief, suppression has to be of only material facts. All other alleged technical defects are stated to be either non-existent or irrelevant. It is urged that all parties before the Wakf Board had knowledge of this writ petition because of application/s moved therein from time to time.
::: Downloaded on - 09/06/2013 16:01:57 ::: 184. First preliminary objections raised by Senior Counsel need to be answered. But, before that contention of Shri Haq, learned counsel, that respondents no.2 to 6 can not have any say in the matter and they can not raise such objections also deserves attention. It is not in dispute that after State Government constituted respondent 2 Wakf Board in exercise of its powers under Section 13 of the Wakf Act, a legal person is born. Challenge in present matter is to its composition with stand that it is in violation of Section 14. Prayers are to set aside selection of respondent no.4 on Wakf Board and to restrain entire Board from functioning till its valid constitution. The members who will be affected or restrained are joined as party respondents by the petitioners themselves. Because of their nomination or election as Board Members, they occupy an office or position and if re-
constitution of Board is ordered, it is obvious that they loose that position or office. Even if it is to be ultimately found that no legal right vested in them is being violated, opportunity of hearing to them for that purpose is essential. Respondent 2 Board has definitely an interest in its existence and continuation or in protecting the actions/decisions taken by it. Thus it can not be held ::: Downloaded on - 09/06/2013 16:01:57 ::: 19 that respondents no.2 to 6 can not oppose the prayers made by petitioners or thereby they exhibit any bias in the matter. Assisting this Court in reaching right decision on facts and on law by party added as respondent can not be prohibited or avoided. We therefore do not find any substance in objection of Shri Haq, learned counsel.
5. Writ of Prohibition can be issued in contingencies explained by Hon'ble Apex Court in Thirumala Tirupati Devasthanams v. Thallappaka Anantha Charyulu (supra). As held therein, a writ of prohibition is normally issued only when the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. Hon'ble Apex Court emphasizes that the writ jurisdiction is original jurisdiction ::: Downloaded on - 09/06/2013 16:01:57 ::: 20 distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a clock of an appeal in disguise".
Hon'ble Apex Court states that lax use of such a power would impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate Court. It is noticed that total lack of jurisdiction in the civil Court was not even the stand. Hon'ble Cort mentions that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the A.P. (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act (37 of 1956) or on principles of res judicata/estoppel. Hence, the Apex Court holds that unless there was some very cogent or strong reason the High Court should not have prevented the Court of competent jurisdiction from deciding these questions. We find that thus the question of defective constitution of Civil Court was not involved and Hon'ble Apex Court lays down that High Court should not usurp the jurisdiction ::: Downloaded on - 09/06/2013 16:01:57 ::: 21 of the civil Court to decide such questions. Question before us is going to the root ie. competence of Wakf Board because of its alleged defective constitution in contravention of Section 14 of Wakf Act. The respondent no.2 Wakf Board can not decide that question. In AIR 1977 S.C. 456 "Geep Flashlight Industries Ltd. v.
Union of India", Hon'ble Apex Court has stated that the appellant's prayers for wits of certiorari and mandamus were misconceived as there was no order either judicial or quasi-judicial to attract certiorari. No mandamus could go because nothing was required to be done or forborne under the Act. The issue of the notice in the case before it required the parties to re-present their case. There was no scope for mandamus to do any duty or act under the statute.
A writ of prohibition was held not available as the Central Government had jurisdiction to revise. In AIR 1977 S. C. 237 "State of Haryana v. Haryana Co-operative Transport Ltd.", Hon'ble Apex Court states that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding. This principle is held to find concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally. There the 1st respondent ::: Downloaded on - 09/06/2013 16:01:57 ::: 22 against whom G gave the award, filed a writ petition challenging the award on the ground the G was not qualified to hold the office of a Judge of the labour Court under Section 7(3) (d) of the Industrial Disputes Act, 1947, and therefore the award given by him was without jurisdiction and G was added as party-respondent.
(2nd respondent). Hon'ble Court held that challenge to G's appointment was made directly in a substantive proceeding and not collaterally. The proceedings by way of a writ petition were held taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so-called judicial decision, but the proceeding was found principally and predominantly for challenging the appointment itself. The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto is held not to justify the argument that the appointment was being challenged collaterally in a proceeding taken to challenge the award. The facts necessary for challenging G's appointment were stated clearly in the writ petition and the challenge to his appointment was expressly made on the ground that he was not qualified to hold the post of a Judge of the Labour Court. Here in writ petition before us, there is express challenge on ::: Downloaded on - 09/06/2013 16:01:57 ::: 23 the ground of bad or defective composition of Wakf Board itself and hence, to its competence to decide. We therefore find that an appropriate relief can be given to present petitioners if any substance is found in his contentions. It can be noted here that the defence of estoppel or acquiescence may not be available against petitioners in present facts or at-least at this stage.
6. Respondents no.2 to 6 also urge that a writ of mandamus also can not be issued as there is no demand by the petitioners. Saraswati Industrial Syndicate Ltd. v. Union of India and Shashikala Parashar vs. State of Goa (supra) reveal normal rule that the powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-
recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty is found to apply. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by Supreme Court, as it is in England, when a writ of Mandamus is asked for, has been stated as set out in ::: Downloaded on - 09/06/2013 16:01:57 ::: 24 Halsbury's Laws of England (3rd edition, Vol. 13, p. 106): "As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the: mandamus desires to enforce, and that that demand was met by a refusal." However, here the defect in composition of respondent no.2 Board had come to knowledge of respondent no.1 when Aurangabad Division Bench in Syed Jameel Ahmed s/o. Syed Janimiya Vs. State of Maharashtra through its Secretary, General Administration Department and ors. (supra) quashed and set aside notification dated 4/9/2008. The petitioners gave a legal notice through their advocate on 20/2/2009 but then its purpose was to persuade State and Wakf Board to summon all Board Members to attend the meetings. It expressly makes a grievance that 7 members duly appointed on 4/9/2008 were not being summoned to attend the meeting. This notification dated 4/9/2008 is set aside on 29/7/2009 by the Aurangabad Division Bench. Thus respondents no.2 to 6 are right when they contend that there is drastic difference between this demand and prayers in writ petition. But ::: Downloaded on - 09/06/2013 16:01:57 ::: 25 then here main prayer is not to direct the State to constitute the Wakf Board afresh but to quash and set aside the Wakf Board as functioning on the ground of defects in its composition. Respondent
- State Government is aware of proceedings of quasijudicial nature pending with respondent no.2 Wakf Board and need of expeditious disposal thereof as per law by a legally composed Board.
Requirements of Section 14 of Wakf Act and steps taken by it to comply with them are within knowledge of respondent no.1 and hence, no previous demand to dissolve the defective Wakf Board was necessary. It is not the case where petitioners have approached this Court for directions to State Government to discharge its obligations under Section 13 r/w Section 14 of the Wakf Act for the first time. They are pointing out its erroneous discharge and seek amends. We find no merit even in this objection of respondents no.2 to 6. Respondent no.1 Government has rightly not raised any such ground in defence.
7. Now the objection of estoppel or acquiescence. The arguments about suppression of material facts or raising challenge by taking clue from Aurangabad verdict can also be scrutinized ::: Downloaded on - 09/06/2013 16:01:57 ::: 26 here. If the composition of respondent no.2 Wakf Board is not as per law and there is inherent defect in it, it is obvious that participation with knowledge in proceedings before Wakf Board will not clothe it with the legal status or jurisdiction. Order dated 17/2/2009 of learned Single Judge of this Court is alleged to be suppressed. Said order is a common order in Writ Petition Nos.1633/2008 and 2669/2008. Challenge in those writ petitions was to the order dated 26/3/2008 passed by then chief executive officer of respondent no.2 Wakf Board. All respective parties then agreed that the controversy involved in application no.66/2005 needed to be considered by Wakf Board itself and not by its chief executive officer. In view of the consent, this Court was not required to record any finding on merits and matter came to be disposed of by asking the Wakf Board to independently decide the controversy ignoring the order of chief executive officer. Time of six months was given to Wakf Board to decide 66/2005. The scheme proceedings vide 6/1999 were ordered to be considered thereafter with modification that period of 6 months given for its disposal in Second Appeal no.529/2005 would run after adjudication in 66/2005. Thus at that juncture the parties or present petitioners did ::: Downloaded on - 09/06/2013 16:01:57 ::: 27 not raise any challenge either to composition or competence of respondent no.2 Wakf Board. Advocate Badar's notice dated 19/2/2009 or identical notice dated 20/2/2009 by Advocate Kadu sent by group of petitioners is in this background. There petitioners point out that by notification dated 4/9/2008 published on 5/9/2008, 7 new members were added to the Wakf Board and as the controversies were to be looked into by the entire Board, it was obligatory to summon new members also to the meetings. Again the only anxiety expressed was to see that all board members attended the meetings and participate in decision making. The alleged suppression or the order dated 17/2/2009 and notices by advocates do not show any relinquishment of available challenge or readiness to proceed before Wakf Board ignoring its composition.
Civil Application stamp 4483/2009 filed on 25/2/2009 in Aurangabad matter on behalf of petitioners sought permission either to intervene or then to participate as respondents. They have pointed out the order dated 17/2/2009, two notices sent by advocates and stated that notification dated 4/9/2008 can not be declared bad. They also pleaded that only one member ie N.U.
Pathan was taking all important decisions for Wakf Board. They ::: Downloaded on - 09/06/2013 16:01:57 ::: 28 therefore sought to oppose that writ petition 7071/2008. What orders are passed on their civil application is not clear and in any case present respondents no. 3 and 4 were not parties there. The notification dated 25/9/2006 inducting respondent no.4 as member was not in issue there. There is nothing before this Court that at that time present petitioners were aware of defects in composition so far as respondent no.4 is concerned. K.D.
Sharma Vs. Steel Authority Of India Limited and Others , shows that the Hon'ble Apex Court there noticed in para 33 suppression of material facts in impression sought to be given to it by appellant that no notice was ever given to him nor was he informed about the consideration of cases of eligible and qualified bidders in pursuance of the order passed by the High Court in review and confirmed by Supreme Court. The truth was just contrary to what was sought to be placed before the Court. A notice was issued by SAIL to the appellant, he received the notice, intimated in writing to SAIL that he had authorised Ramesh of Rithwik Projects to appear on his behalf.
Ramesh had duly appeared at the time of consideration of bids. Bid of Respondent no.2 was found to be lowest and was accepted and the contract was given to him (under Tender Notice 4). The said ::: Downloaded on - 09/06/2013 16:01:58 ::: 29 contract had nothing to do with Tender Notice 5 and the contract thereunder had been given to the appellant and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Hon'ble Apex Court clearly, candidly and frankly. In this background ,it is observed that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary.
Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. We therefore find that if there is no candid disclosure of relevant and material facts or the petitioners are shown to be misleading this High Court, then only their petition may be dismissed at the threshold without considering the merits of the claim. However, We fail to note suppression of any such nature or effort to mislead in present matter. Writ issued on 17/2/2009 does not in any way militate with their prayers before us. In "S.J.S. Business Enterprises (P) Ltd., v.
State of Bihar", the Hon'ble Apex Court holds that the existence of ::: Downloaded on - 09/06/2013 16:01:58 ::: 30 an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court.
Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 227. Therefore the fact that a suit had already been filed by the appellant was found to be not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. This law clinches the controversy on the point before us.
::: Downloaded on - 09/06/2013 16:01:58 ::: 318. Respondents no.2 to 6 also urge that no legal right of petitioners is violated. In Mani Subrat Jain etc. etc., v. State of Haryana and others, (supra) Hon'ble Apex Court found that the initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.
Hence, it was held that the High Court rightly dismissed the petitions as no one can ask for a mandamus without a legal right.
There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. In "Umakant Saran, Dr. v. State of Bihar" (supra) appellant before the Hon'ble Apex Court viz. Dr. Saran was found not eligible for appointment as lecturer and hence, it is held that he was not an aggrieved person.
Here the pendency of proceedings in relation to Mahdi Bagh Wakf ::: Downloaded on - 09/06/2013 16:01:58 ::: 32 before Wakf Board is not in dispute. The fact that petitioners profess Dawoodi Bohra (shia) sect is also not in dispute at-least at this stage or as of now. Some proceedings to which they are parties are mentioned above. It appears that they are ventilating their grievances before various forums and also approached Aurangabad bench for the same. Genuineness of their claim as "beneficiaries"
under Section 3(a) and "persons interested" as per Section 3(k) of the Wakf Act is to be resolved by Wakf Board only. No allegations of any malafides or ulterior motive against them are pointed out to us. It is not the case that they have turned around with some oblique motive or are interested in delaying the decision. Facts above clearly show the genuine intention on their part to act in the interest of Wakf in their wisdom. We therefore can not accept argument of absence of any legal right in them as advanced by respondents 2 to 6. Adjudication by forum not legal in eyes of law will seriously prejudice Mahdi Bagh Wakf and petitioners and others also. There can not be any estoppel or acquiescence and waiver in such challenge. It is therefore appropriate that challenge of such nature is decided on merits. Argument of taking clue from Aurangabad judgment is equally misconcived. If the illegalities in ::: Downloaded on - 09/06/2013 16:01:58 ::: 33 composition exist, respondent no.1 State and respondents no.2 to 6 can not choose to ignore the same even after that judgment dated 29/7/2009. It is their bounden duty to take remedial steps instead of insisting upon continuing with alleged defects which, if correct, go to the root and contend that challenge is belated. Reliance on "Mohd. Siddiq Ali v. High Court of A. P." is misconceived in as much as there the challenge to notification issued on 23/10/1996 was made in 1998 after undergoing selection process of which results were declared on 18/3/1997 and also after some appointments were made on 7/4/1998. The challenge was found to be after noticing observations of High Court in its earlier judgment dated 31/8/1998 in Writ Petition No.18307/1998. Hence, in this background the said challenge is held belated and suffering from latches. Hon'ble Apex Court in "Sawaran Lata vs. State of Haryana", has considered challenge to notification issued under Land Acquisition Act after acquisition proceedings had become final ie situation had become irreversible. There is no question of delay here as the cases of petitioners are still pending before respondent no.2 Board and cause of action in their favour is continuous one.
Contention that petitioners continued to appear in proceedings ::: Downloaded on - 09/06/2013 16:01:58 ::: 34 registered as application 66/2005 before respondent no.2 Board and thus also acquiesced in composition and are now estopped from assailing it is not substantiated by these precedents. The respondent 2 Wakf Board has not decided the matters as yet and consequent to judgment of Aurangabad Bench dated 29/7/2009, total number of Board members is reduced to 4 only. Facts show that petitioners have been making efforts to have their matters decided by Wakf Board with all or maximum number of members.
We therefore find no substance in challenge by respondents no.2 to 6 to their locus or entitlement and petition being barred due to delay, latches etc. It is admitted position that opponents of present petitioners in proceedings before Wakf Board are not parties before us. However, there is no dispute that orders dated 8/4/2010 passed by us in the instant matter are produced before respondent 2 Wakf Board and hence, those opponents have knowledge of present writ petition. Petitioners have argued that an adjournment application was moved before Wakf Board on 8/2/2010 by them pointing out pendency of this writ petition and its copy was served on counsel for opponents. This is supported by affidavit and there is no counter to it by any of the respondents. Shri Haq, learned counsel for ::: Downloaded on - 09/06/2013 16:01:58 ::: 35 petitioners had pointed out that in Writ Petition No. 4439/ 2009 listed and clubbed along with present matter, those opponents are parties and that they were/are present in this Court on 4/5/2010 when this statement came to be made. An affidavit on these lines is also produced on 4/5/2010 itself by petitioners. It is also stated on oath that members of Mahadi Bagh Jamaat had filed Writ Petition No.3038/2009 and Writ Petition No. 3240/2009, and both petitions were ordered to be heard with present writ petition.
Orders of this Court dated 25/2/2010 in this matter shows that it is common order recorded in Writ Petition Nos. 3415 and 4439 of 2009. Order dated 21/11/2009 in Writ Petition No.4439/2009 shows a court direction to list it with Writ Petition No. 3415/2009.
Both the petitions were then listed together but then there is nothing to show consolidation or clubbing for joint consideration.
Office note dated 6/4/2010 for constitution of special bench and orders on it reveal that this Bench is constituted for hearing Writ Petition No. 3415/2009 only. Parties have not addressed us on Writ Petition No. 4439/2009 at all. Looking to the nature of dispute between parties and controversy raised before us, We find that parties necessary for its effective and binding adjudication are not ::: Downloaded on - 09/06/2013 16:01:58 ::: 36 joined as respondents before us. It also appears that opponents are aware of Aurangabad judgment and have accepted it though they were not parties to it. We are satisfied that those opponents are aware of the present writ petition also and but then as they are not parties, may have chosen not to appear. Adjudication by us can not bind them as they are not made parties here and hence, are under no legal obligation to appear. Reasons recorded by us to find locus in petitioners also necessitate that those opponents be heard before any final and binding view is reached as such view affects the consideration of the matters by Wakf Board in which they are interested. We can not anticipate their line of arguments and indulge in conjectural exercise on reasons for their not appearing here. In order to force them to appear and to enable us to proceed ex-parte against them, the petitioners ought to have joined them as respondents. The petitioners could have moved us till 4/5/2010 and sought leave to implead them. But then they have attempted to justify such non-joinder by pointing out indirect knowledge to those opponents. Opportunity to rectify was not availed of till end. Non-
joinder of said opponents as party respondents in Writ Petition No.3415/2009 therefore does not permit us to pass any orders ::: Downloaded on - 09/06/2013 16:01:58 ::: 37 governing or affecting the disposal of matters pending before respondent no.2. Their non-joinder is fatal to the present writ petition. But then in the circumstances and position at hand, We find it appropriate to consider the controversy on merits in the light of their arguments so far as parties before us are concerned.
9. Absence of Shia member on Wakf Board, requirement of more number of elected members than nominated one on it and validity of nomination of respondent no.4 by avoiding the election are the contentions on merit which can be looked into now.
Provisions of Sections 13 and 14 are interpreted by Division Bench of this Court at Auragabad in Syed Jameel Ahmed s/o. Syed Janimiya Vs. State of Maharashtra through its Secretary, General Administration Department and ors. (supra) and that interpretation is not even whispered to be not proper by any respondent. Facts there show that vide notification dated 4/1/2002, the respondent no.1 State constituted respondent no.2 Wakf Board for State of Maharashtra. Present respondent no.3 came to be appointed as muslim representative from Bar Council Of Maharashtra as per Section 14(1)(b)(iii) of the Wakf Act on ::: Downloaded on - 09/06/2013 16:01:58 ::: 38 27/7/2006 while present respondent no.4 is nominated on on 27/9/2006 under Section 14(1)(b)(ii) as muslim member of parliament from State of Maharashtra. Other members on Wakf Board ceased to hold office either due to expiry of their tenure or resignation and present respondents no.3 and 4 were only two members on Wakf Board. On 4/9/2008, State Government u/Section 14(3) appointed respondents no.4 to 8 before Aurangabad Bench as members and those nominations were impugned by a mutawalli claiming to be entitled to office as member under Section 14(1)(b)(iv). Division Bench then considered the non-obstante clause in the shape of Section 14(3) and in para 10 of its judgment found that there was no conflict between Section 14(1) and Section 14(3). In para 11 of the judgment, the Division Bench has noted that members representing 4 categories specified in Section 14(1)(b) are to be elected form electoral college consisting of eligible persons from respective categories. System of proportional representation by single transferable vote is required to be followed. If muslim member on parliament or state bar council happens to be only one, such member is deemed to be elected on Wakf Board. List of voters is ::: Downloaded on - 09/06/2013 16:01:58 ::: 39 required to be procured by electoral registration officer from secretary of Legislature for election under clauses (i) and (ii), from secretary of Bar Council for clause (iii) and from CEO or Secretary of Board or of Wakf Department of State for election under S ection 14(1)(b)(iv) of Wakf Act. Election can be dispensed with and nomination can be resorted to only if for reasons to be recorded in writing, State Government is satisfied that it is not reasonably practicable to constitute electoral college for any of the categories in Section 14(1)(b)(i) to (iii). At the end of para 14, the Division Bench has concluded that opinion subjectively reached by State Government in this respect can be judicially examined only to find out whether it is based on the circumstances relevant under the statutory scheme. Then the Division Bench has proceeded to scrutinize whether any such subjective satisfaction is recorded before effecting nominations on 4/9/2008 and has concluded in end of para 16 that there was no such mention or discussion and State Government was not even aware of need recording such satisfaction. It therefore found that recourse to Section 14(3) was not legal. However, the Bench did not stop there and also perused the government files to find out whether any material to indicate ::: Downloaded on - 09/06/2013 16:01:58 ::: 40 possibility of reaching or sustain such " not reasonably practicable"
opinion existed and in para 20 held that it was impossible for State Government to derive such conclusion. Its findings in para 18 show that list of eligible members of legislative assembly and council and members of parliament was very much with State. There were 2 members from clause (b)(i), 11 members from clause (b)(ii) and election from said categories was possible. Secretary, Bar Council of Maharashtra did communicate on 29/7/2008 name of only muslim representative on State Bar Council. In para 25, Division Bench has held that special provision for constitution of Wakf Board by nomination is made to meet peculiar situation in which it is not reasonably practicable to constitute electoral college from these 3 categories. The Division Bench has therefore upheld the challenge to notification dated 4/9/2008.
10. In this judgment Syed Jameel Ahmed s/o. Syed Janimiya Vs. State of Maharashtra through its Secretary, General Administration Department and ors. (supra), as noted by the Auragabad Bench, writ of quo-warranto as also mandamus was prayed for but then the quo-warranto was not pressed and relief in ::: Downloaded on - 09/06/2013 16:01:58 ::: 41 terms of prayer clauses "C" and "D" was only sought. After perusal of files the finding of need of election from categories under Section 14(1)(b)(i) and (iii) is also reached with further conclusion that on the strength of material available on record, it was impossible for State Government to reach a finding that holding of election was not reasonably practicable. Though nomination of respondents no.3 and 4 was not in challenge before Aurangabad Bench, said finding reached after perusal of original records has attained finality. State Government has not produced any records to show otherwise.
Respondents no.2 to 6 have urged that scope of judicial interference in such matters is very narrow. It is not necessary for us to dilate more on this issue as it is subjective satisfaction of respondent no.1 State which is relevant and this Court in its Aurangabad judgment has decided said aspect. Respondents have attempted to show to this Court the superior position statutorily enjoyed by Hon'ble Minister A.R. Antule with stand that as only respondent no.4 fell in that category, the election was not possible. It is further stated that as respondent no.3 was/is the only eligible muslim State Bar Council Member, election there was also not reasonably practicable.
Shri Haq, learned counsel has not raised any dispute as far as ::: Downloaded on - 09/06/2013 16:01:58 ::: 42 respondent no.3 is concerned. However, he argued that alleged superior position of respondent no.4 is no where recorded as reason to invoke S.14(3). Further, even if respondent no.3 is accepted as elected representative, the proportion of elected and nominated members becomes equal in Wakf Board. We find that reply filed by State and notification dated 27/7/2006 issued by it reveals that respondent 3, being only muslim member on State Bar Council was appointed as Board member as per Section 14(2). Fact of his being only muslim bar council member is not in dispute. The first proviso to Section 14(2) of Wakf Act is very clear and such sole member is declared to be elected as Board member. Hence for the purposes of Section 14(4) he is to be counted as elected member because of this statutory fiction.
11. Government as also other respondents have disclosed that Shri A.R. Antule was Cabinet Minister in charge of Minorities Welfare at Center and hence, only one muslim member of parliament viz. respondent no.4 was available. Position or status of Shri Antule is not disputed by petitioners. They contend that Section 16 of the Wakf Act which prescribes disqualifications does ::: Downloaded on - 09/06/2013 16:01:58 ::: 43 not debar a Minister from being a member of Wakf Board. State Wakf Board ie respondent no.2 is constituted by State Government of Maharashtra as per Section 13 of the Wakf Act. The Wakf Act casts obligation on State to establish such Boards at state level.
Section 9 deals with establishment and constitution of Central Wakf Council. Central Government has to establish and constitute it for advising it on matters concerning the working of State Wakf Board or Common Wakf Board and the administration of wakfs.
Section 9(2)(a) stipulates that Union Minister in charge of wakfs is ex officio chairperson of the Central Wakf Council. It is not in dispute that as a Cabinet Minister Shri Antule was in charge of wakfs at relevant time and hence, by operation of law, he was the Chairperson of Central Wakf Council. Chairpersons of three Boards ie State Wakf Boards or Common Boards are the members of Central Wakf Council by rotation. Particulars of organization, functions and duties of ministry of minority affairs show that it has an independent wing called administration and wakf wing. Main function of Central Wakf Council is to advise Central Government on matters pertaining to working of wakf boards and proper administration of wakfs in country. It considers important matters ::: Downloaded on - 09/06/2013 16:01:58 ::: 44 concerning community, religious matters like administration of mosques,durgahs and proper management of properties. This shows supervision and some control by Central Wakf Council on respondent no.2. The status of Shri Antule as Cabinet Minister statutorily made him Chairperson of Central Wakf Council. His position therefore was superior and as a guardian of all wakf boards in country in general. Section 14(1)(b)(i) speaks of muslim member of parliament from State and Section 16 which lays down disqualifications for being or for continuing as member of Wakf Board also does not expressly disqualify a Chairperson of Central Wakf Council. From the scheme of the Wakf Act itself it is apparent that Section 14 and Section 16 both are subject to Section 9(2)(a).
Statutory arrangement laid down by Parliament in Section 9(2)(a) can not be allowed to be defeated by recourse to Section 14 or Section 16. Section 9(2)(a) can not be rendered otiose or superfluous and harmonious interpretation of all these provisions show that a cabinet minister who becomes or continues as Chairperson of Central Wakf Council is automatically excluded from becoming member of Wakf Board. Also it is apparent that person who holds influential post like cabinet minister and therefore as ::: Downloaded on - 09/06/2013 16:01:58 ::: 45 chairperson of Central Wakf Council, can not compromise his position in any manner or place himself in a situation leading to conflict of interests. Oath of office obliges Hon'ble Minister to discharge his duties faithfully and conscientiously and to do right to all manner of people in accordance with the Constitution and the Law, without fear or favour, affection or ill-will. Possibility of his remote interests in State Wakf Board if he happens to be its member militates with his duty to advise and assist Central Government. It may expose him to charges of favour and bias.
Observations in Aurangabad judgment show that name of respondent no.4 and Shri Antule both were on records before the State Government. In this situation, when State Government finds him not available for post of member of wakf board, the view of State can not be held as wrong or perverse. In any case, grievance in this connection could have been made by Shri Antule himself or then by respondent no.4. Perusal of notification dated 21/9/2006 issued by State Government shows that respondent no.4 has been nominated under Section 14(3) of Wakf Act by it and thus after noticing that holding of election for category under Section 14(1)
(b)(i) was not reasonably practicable. The position occupied by Shri ::: Downloaded on - 09/06/2013 16:01:58 ::: 46 Antule was not required to be examined by Aurangabad Bench of this Court and in any case, there was no challenge to notification dated 21/9/2006 issued in favour of present respondent 4 before it.
Statutory scheme and Section 9 of Wakf Act was not pointed out to this Court in that matter. Hence finding recorded there that 2 members of parliament were available in category u/S 14(1)(b)(i) or about possibility of constituting electoral college for conducting election from said category delivered without noticing the role and position of Shri Antule in Central Wakf Council is not determinative of the issue raised before this Court now. In Aurangabad matter, this Court has made effort to find out whether it was really not reasonably practicable to hold elections and after perusal of records concluded that it was impossible for State Government to reach such subjective satisfaction. It also shows that names of Shri Antule and respondent 4 were before State Government when it chose to nominate later by invoking Section 14(3). Even if it is presumed that the relevant files (not produced before us) did not contain any noting to sustain such plea of constitution of an electoral college not being reasonably practicable in this category, still as the material facts are not in dispute, the exercise as apparent from ::: Downloaded on - 09/06/2013 16:01:58 ::: 47 impugned notification itself can not be said to be without jurisdiction or justification. Absence of reasons separately recorded to support subjective satisfaction on such constitution not being reasonably practicable is not fatal in present facts. Observations of Hon'ble Apex Court in "Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai" show that "When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit de'hors the order or for that matter de'hors the records". Name of Hon'ble Minister ie Chairperson of Central Wakf Council could not have been put in electoral college for election to the post of State Wakf Board Member. Impugned notification itself contains reasons sufficient to legally support that exercise. But then it also implies that State has not found that as Shri Antule was not available, only one muslim member of parliament ie respondent no.4 should be declared to be elected by taking recourse to first proviso to S.14(2) of the Wakf Act. This very S.14(2) is used by it for appointing respondent 3 as Board member on 27/7/2006 only. Thus respondent no.4 can not ::: Downloaded on - 09/06/2013 16:01:58 ::: 48 be treated as elected member for the purposes of Section 14(4) thereof as he is expressly nominated under Section 14(3).
12. Union of India v. Harjeet Singh Sandhu" (supra) has been relied upon to show how words "reasonably practicable" or other synonymous words are to be construed. Here Hon'ble Apex Court considers Army Act (46 of 1950), S.19 in the light of Army Rules (1954), Rule 14(2) which uses the the words 'impracticable'.
The Hon'ble Bench consisting of two Hon'ble Judges had given this word a particular meaning in case of Major Radha Krishan vs. Union Of India--(1996) 3 SCC 507 and it had then no occasion to notice view expressed by Hon'ble 3 Judges in Chief of Army Staff vs. Major Dharam Pal Kukrety--(1985) 2 SCC 412. The Hon'ble Court here holds that merely because trial by Court martial became impracticable due to expiration of period of limitation prescribed by Section 122, it does not take away power under Section 19 to issue show cause notice calling upon delinquent why his services should not be terminated and that such an exercise of administrative powers under Section 19 read with Rule 14(7) is open to judicial review. Here, Hon'ble Apex Court in para 33 of its judgment notices ::: Downloaded on - 09/06/2013 16:01:58 ::: 49 that as the term used in sub-rule (2) of Rule 14 is 'impracticable' and not 'not reasonably practicable', there is more an element of subjectivity sought to be introduced by this provision in the process of arriving at the satisfaction, obviously because the rule is dealing with the satisfaction arrived at by the Central Government or the Chief of the Army Staff, in the matter of disciplinary action on account of misconduct committed by an officer of Army which decision would have been arrived at by taking into consideration the then prevailing fact situation warranting such decision after considering the reports on officer's misconduct.
Then it proceeds to find out the position in para 34 in the light of examples placed by the learned Additional Solicitor General in which the trial by court martial may be rendered 'impracticable', Conclusions reached by Hon'ble Apex Court reveal that in the scheme of the Act and the purpose sought to be achieved by Section 19 read with Rule 14, there is no reason to place a narrow construction on the term 'impracticable' and therefore on availability or happening of such events as render trial by court-
martial impermissible or legally impossible or not practicable, the situation would be covered by the expression - the trial by court ::: Downloaded on - 09/06/2013 16:01:58 ::: 50 martial having become 'impracticable'. Scope of jurisdiction available in such cases is explained in paragraph 41 of the report as under :--
"41. Exercise of power under Section 19 read with Rule 14 is open to judicial review on well settled parameters of administrative law governing judicial review of administrative action such as when the exercise of power is shown to have been vitiated by mala fides or is found to be based wholly on extraneous and/or irrelevant grounds or is found to be a clear case of colourable exercise of/or abuse of power or what is sometimes called fraud on power, i.e. where the power is exercised for achieving an oblique end. The truth or correctness or the adequacy of the material available before the authority exercising the power cannot be revalued or weighed by the Court while exercising power of judicial review. Even if some of the material, on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some relevant material available on which the action can be sustained. The court would presume the validity ::: Downloaded on - 09/06/2013 16:01:58 ::: 51 of the exercise of power but shall not hesitate to interfere if the invalidity or unconstitutionality is clearly demonstrated. If two views are possible, the Court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power. "
The significance attached to degree of difference in 'impracticable' and not 'not reasonably practicable' by Hon'ble Apex Court is not very relevant here. The discussion by us above shows that justification pressed into service by State Government for invoking its powers under Section 14(3) of the Wakf Act is based on facts which can not be fabricated and are relevant to sustain it.
There are no allegations of any malafides or ulterior motive and actually petitioners continued to participate in proceedings before respondent 2 with respondent no.4 as its member till adjudication by Aurangabad Bench. Above findings of Hon'ble Apex Court are therefore decisive. Hence, We do not find any merit in challenge to nomination of respondent no.4 under Section 14(3) of the Wakf Act.
::: Downloaded on - 09/06/2013 16:01:58 ::: 5213. Section 14(4) of the Wakf Act requires that number of elected members of respondent no.2 Wakf Board has to be more than its nominated members "at all times". It also carves out an exception by stating that when power u/s 14(3) is resorted to, it may not be so. Section 14(3) opens with non-obstante clause and dispenses with holding of election if State Government is subjectively satisfied for reasons recorded in writing that it is not reasonably practicable to constitute an electoral college for any of the categories in Section 14(1)(b) (I) to (iii). Said subsections are part of scheme in Section 14 and Section 14 itself has to be construed in its entirety in consonance with the spirit of Wakf Act.
"Rahul Builders vs. Arihant Fertilizers and Chemicals and another", shows that there the Hon'ble Apex Court has dealt with proviso (b) and (c ) of Section 138 of Negotiable Instruments Act, 1881 and found that when proviso applied, main section 138 did not apply. Wording of said proviso - "Provided that nothing contained in this section shall apply unless -" are important and decisive. Hon'ble Justice Shri G.P. Singh in "Principles of statutory interpretation" at page 209 (12th Edt., 2010) quotes Hon'ble Apex Court on purpose of proviso. It either qualifies or excepts certain ::: Downloaded on - 09/06/2013 16:01:58 ::: 53 provisions from main enactment. It may prescribe certain mandatory conditions to be fulfilled in order to make the enactment workable. It may also be so embedded in the Act itself so as to become an integral part of the enactment and thus acquire the tenor or colour of the substantive enactment itself. It can also be used as an optional addenda to the enactment with object of explaining the real intendment of statutory provision. It is clarified by the learned authour that this enumeration of the purpose of proviso is not exhaustive and ultimately, like any other enactment, a proviso needs to be construed on its terms. It is also stated that "exception" is intended to restrict enacting part to particular cases while "proviso" is used to remove particular cases from general enactment and provide for it specially. As already found above, exception part at the end of Section 14(4) avoids enacting part therein only when there is recourse to Section 14(3). But then such recourse must be legal, valid and ratio contemplated by enacting part must get disturbed thereby. Thus only when the constitution of electoral college for three categories specified in Section 14(1)(b) of Wakf Act is found not possible and hence, power to nominate is used in terms of its Section 14(3) by State Government and such ::: Downloaded on - 09/06/2013 16:01:58 ::: 54 nomination results in more number of nominated members, the enacting part is not applicable. Here there is only one nomination ie of respondent no.4 and equation did not get disturbed due to it. As is found elsewhere, the unreasonable and undue insistence of State Government to continue with vacancies has given rise to this position. Hence, said exception is not attracted in present facts.
14. Section 13 of the Wakf Act provides for incorporation of Wakf Board by State by notification in official gazette from such date as may be specified therein. As per its sub section 3, the Board is a body corporate having perpetual succession, common seal with power to acquire,hold, transfer property. Section 14 prescribes composition of such Board and it employs the words "shall consist of" and then gives various categories from which its members can be either elected or nominated . Its relevant part reads as under:--
"Section 14 - "Composition of Board" (1) The Board for a State and Union Territory of Delhi shall consist of :-::: Downloaded on - 09/06/2013 16:01:58 ::: 55
(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 maybe, the Union territory of Delhi,
(ii)Muslim Members of the State 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 organizations;
(d) one and not more than two members to be nominated by the State Government, each from recognized Scholars in Islamic Theology;
(e) an office of the State Government not below the rank of Deputy Secretary."
The above part clearly shows that Board is to consist of minimum 7 and maximum 13 members. Sub-section (8) contemplates election of one from amongst themselves by members as Chairperson of Board. Number varies because of discretion given ::: Downloaded on - 09/06/2013 16:01:58 ::: 56 to State to provide for election or nomination of one or two members. If one member each is permitted under Section 14(1), the total strength of Board becomes 7 and due to mandate of Section 14(4), out of them 4 members will be elected while 3 will be nominated. If, on uniform basis, 2 members are asked to be elected and nominated under Section 14(1), total strength counts to 13 and out of it 8 will be elected and 5 will be nominated. Statement of object and reasons also shows this composition as an important feature of the Wakf Act. The desire to have popular representation on Wakf Board can also be gathered from sub section (2) which prescribes electoral colleges, election by system of proportional representation by means of a single transferable vote. By virtue of its first proviso if there is single muslim member in electoral colleges under Section 14(1)(b)(i) to (iii), enactment itself declares him to be elected on Board. In absence of any muslim member in electoral colleges under Section 14(1)(b)(i) to (iii), the ex-Muslim Members of Parliament, the State Legislature or muslim ex-
members of the State Bar Council constitute the electoral colleges.
Primacy given to democratic process of administration and supervision even in wakf board management is therefore apparent.
::: Downloaded on - 09/06/2013 16:01:58 ::: 5715. The power to nominate given to State Government is in this background. The State can not avoid elections and resort to nomination arbitrarily. Procedural safe-guards laid down by the parliament for said purpose are mandatory and State is obliged to fulfill the same before effecting nominations. Reaching of a subjective satisfaction by State that it is not reasonably practicable to constitute an electoral college for any one or more of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of Sub-
section (1) of Section 14 and recording of reasons therefor is sine qua non. Further, persons to be so nominated have to be such as State deems fit for the post of member on Wakf Board. Hence the State is duty bound to consider even background and status of person being chosen by it. Thus there are rigourous requirements and filters; and nomination also has to be keeping in mind the importance given to elective process. Justiciability of this exercise is already commented upon by us above and has been considered in detail by this Court in its Aurangabad judgment. Thus nomination against posts to be filled in by election is only an exception. S.14 ::: Downloaded on - 09/06/2013 16:01:58 ::: 58 itself warrants more than 50% of total strength of Members to be democratically elected. Sub-section (4) appears in statute book in this light and it reads :-
"(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)".
It is therefore apparent that parliament has provided "exception" in said sub-section to take care of exceptional or peculiar situation arising under Section 14(3) and that provision is not made to derogate from mandatory obligation flowing from its main part. This obligation is consistent with entire enactment itself. Parliament has highlighted it by deliberate use of words "at all times" in sub section (4). Thus only when in circumstances sustainable under Section 14(3), State Government effects nominations that the rule of elected members being in majority is relaxed. Such nomination instead of election is permissible also in exceptional circumstances. Thus such arrangement made to meet the rare situations can not be used to argue that rule of elected ::: Downloaded on - 09/06/2013 16:01:58 ::: 59 members being in majority is not mandatory. "Exception" carved out in Section 14(4) proves the rule meant by parliament to operate in normal circumstances and it can not be used to elevate said exception itself to the status of such rule.
16. At present respondent no.2 Board consists of only 4 members and all of them are before us as respondents no.3 to 6.
Present respondents no.5 and 6 are nominated by State Government on 4/9/2008 and very same notification was in dispute before this Court at Aurangabad. It is admitted position that present respondent no.3 is declared elected under Section 14(2) of the Wakf Act. Respondent no.4 can not be treated as elected member of Wakf Board. Thus out of total 4 members of Wakf Board as on today, 3 members are nominated and one only is elected one.
As nomination of respondent no.4 is found valid under Section 14(3), because of exception at the end of Section 14(4) above, the said strength or proportion between elected and nominated members at the most may become equal. Recourse to Section 14(3) to fill in other vacancies by nominations vide notification dated 4/9/2008 is already quashed by Aurangabad Bench. Nomination is ::: Downloaded on - 09/06/2013 16:01:58 ::: 60 possible for categories under Section 14(1)(b)(i) to (iii) only and admittedly respondents no.5 and 6 are not nominees therefrom. 5 vacancies in Wakf Board which result from Aurangabad judgment are still not filled in. Appointment of respondents no.3 and 4 as Board member is prior to even 4/9/2008. Thus excess of nominated members here is not occasioned due to exercise of powers under Section 14(3) and hence, is not saved by Section 14(4). When State Government can find that constitution of electoral college is not reasonably practicable as laid down in Section 14(3) then only exception in Section 14(4) will get attracted and the rule of elected members being in majority can be ignored if it is breached due to such nominations and to that extent only. Here, We have an express finding by Aurangabad Bench that recourse to Section 14(3) was impossible and thus, effort of respondents to take shelter of Section 14(4) to sustain majority of nominated members must fail. In fact, after Auragabad verdict, State Government has not even resorted to Section 14(3) again as mechanism to fill in the existing vacancies.
::: Downloaded on - 09/06/2013 16:01:58 ::: 6117. When notification dated 4/9/2008 issued by State nominating 5 persons on Wakf Board came to be issued, Board consisted of total 9 members including present respondents no.3 to
6. After said notification in relation to 5 persons is set aside on 29/7/2009, the Wakf Board is continuing with only 4 members and hence, there are 5 vacancies. Under Section 14 Wakf Board has to consist of minimum 7 and maximum 13 members. These members elect one of them as Chairperson under Section 14(8). As per Section 17, Wakf Board has to decide the questions/issues before it by majority of members present at its meeting. Chairperson or person presiding over the meeting has been given right to vote in case of equality of votes amongst others. No minimum number of members is prescribed as quorum for any meeting. This position therefore shows that number of elected members of Board has always to be more than nominated members and existence of vacancies is not contemplated as an excuse for it by parliament.
Only exception is Section 14(3) and the same is not attracted here.
On 4/9/2008 when there were 9 members on Wakf Board, number of elected members should have been five. This Court in Aurangabad judgment has already concluded that then it was ::: Downloaded on - 09/06/2013 16:01:58 ::: 62 reasonably practicable to constitute electoral colleges. Hence, even if We make an allowance for respondents no.3 and 4 before us, still there is short fall of three elected members and State has given no justification for not having these 3 elected members. 5 vacancies are in existence on Wakf Board as 5 nominations done on 4/9/2008 are quashed and set aside by Aurangabad Bench. It is not the case of State Government that after Aurangabad decision, it has applied mind afresh and found it not reasonably practicable to constitute electoral colleges to fill in any vacancy out of those five. In any case there is no recourse to Section 14(3) again. Thus effort made by the respondents to save situation by pointing out exception part of Section 14(4) is of no help. It needs to be noted that present respondents no.3 and 4 exist on Wakf Board since 2006 ie prior to 4/9/2008. No arguments are advanced before us about the mode and manner of conducting hearing of quasi-judicial matters by or on behalf of Wakf Board, about need of particular number of members to attend such adjudication and reach decision therein by majority, about the compliances necessary, if hearing continues on different dates, if decision is reserved and pronounced later, about the issue whether number of elected members has to exceed ::: Downloaded on - 09/06/2013 16:01:58 ::: 63 nominated members present at each such hearing or at decision, and about implications which may arise therefrom.
18. Petitioners admittedly belong to shia sect and Mahdi Bagh Wakf is also a shia wakf. Following sub-sections of Section 14 are therefore important :-
"(5) Where there are Shia wakfs but no separate Shia Wakfs Board exists, 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 members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia Wakfs and Sunni wakfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination".
This provision assumes importance in the background of Section 13(2) of the Wakf Act which enables State Government to constitute separately wakf boards for Shia and Sunni wakfs. If number of Shia wakfs exceeds 15% of total number of all wakfs or ::: Downloaded on - 09/06/2013 16:01:58 ::: 64 if income of properties of Shia wakfs exceeds 15% of total income from properties of all the wakfs in State, such separate Wakf Boards are permitted by parliament. Same intention and arrangement is indicated as distinctive feature in aims and objects of Wakf Act. Section 13(2) uses the word "may" and therefore gives some discretion to State Government in the matter of constitution of separate Shia Wakf Board. Section 14(5) on the other hand uses the word "shall" and therefore mandates that at least one member on respondent 2 Wakf Board must be a shia.
There is no separate Wakf Board for shia muslims in State of Maharashtra. Thus element of popular participation is further advanced through these measures by enabling a representative of shia wakf on Wakf Board in stipulated circumstances. Such representation inspires the confidence of such community in democratic process and also assures necessary religious freedom as per Constitutional goals. These provisions are mandatory and purpose behind it can not be allowed to be defeated. The respondents also admit that such shia representation existed on respondent no.2 Wakf Board from 13/11/2003 till 12/11/2008.
Even in reply affidavit State Government accepts the need to have a ::: Downloaded on - 09/06/2013 16:01:58 ::: 65 shia member on Wakf Board and asserts that it is going to appoint or nominate one when vacancies will be filled in. Admitted facts and legal provisions enacted by parliament show entitlement of petitioners to have a shia member on Wakf Board which is considering the matters of Mahdi Bagh Wakf. Petitioners can therefore oppose consideration of their matters by a Wakf Board not having a shia muslim as its member and insist for such appointment as per law. Section 21 of the Wakf Act mandates filling in of any vacancy immediately. Neither any reasons are assigned by State Government for not filling in the vacancy till date nor any time schedule has been produced to show its bona-fides. The Aurangabad Bench of this Court has noticed that some private individual was consulted by State and remarked that it was unable to understand the purpose of seeking comments/recommendations by the State from a private individual. Said Bench clarified that though it was not allowing the petition on that ground, it referred to this aspect only in order to point out how irrelevant and irrational material entered the decision making process of the State Government. The power given to State government to fill in vacancy can not be abused by it to defeat the mandatory scheme of ::: Downloaded on - 09/06/2013 16:01:58 ::: 66 the Wakf Act by indefinitely postponing that exercise and it has to act promptly as constitutional custodian of rights of such community.
19. It has been further argued that when very statutory provisions are very clear and unambiguous, there is no need to look to "object and reasons clause" for their interpretation.
Attention is invited to "S. S. Bola v. B. D. Sardana"(supra).
Observations relevant therein are :-
"178. If these materials are alone considered then one may be persuaded to accept the submission of Mr. Sachhar, the learned senior counsel appearing for the direct recruits - Writ Petitioners, that the Act in question was merely to declare the earlier decisions of this Court in Sehgal, (AIR 1991 SC 1406) (supra) and in Chopra, (1991 AIR SCW 1028) (supra) as invalid and as such is usurpation of the judicial power by the legislature. But it is a cardinal rule of interpretation that Objects and Reasons of a statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the statute by its ordinary ::: Downloaded on - 09/06/2013 16:01:58 ::: 67 language is obscure or ambiguous. But if the words used in a statute are clear and unambiguous then the statute itself declares the intention of the legislature and in such a case it would not be permissible for a Court to interpret the Statute by examining the Object and Reasons for the Statute question".
Here we have pointed out statement of object and reasons only to show that same is consistent with legal provisions and in fact explain the need of having Wakf Act in its present form.
The statement of aims and objects here points out the history and clarifies the need felt by legislature to replace earlier Statute on Wakf and to enact Wakf Act,1995. As held in "Davis v. Sebastian"
(supra), it is a well-settled principle of interpretation that words in a statute need to be given their natural, ordinary meaning; and nothing should be added to them nor should any word be treated as otiose.
20. State Government however permits Wakf Board to proceed further with consideration of petitioners' matters and respondent no.2 Board as also its members respondents no.3 to 6 ::: Downloaded on - 09/06/2013 16:01:59 ::: 68 also intend to decide the same. They rely upon Section 22 of Wakf Act to urge that no defect in constitution or existence of vacancy in Wakf Board can invalidate its proceedings. Shri Bhangde, learned Senior Counsel has during arguments submitted papers containing similar provisions from other enactments with stand that this arrangement in Statute is a standard practice. However question before us is not about invalidation of proceedings already concluded but pertains to pending one. Section 22 reads as under:--
"22. Vacancies, etc., not to invalidate proceedings of the Board.--No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof."
It is obvious that said section is not an enabling provision but a saving one. It can not and does not mean that Wakf Board with defective composition and vacancies is allowed to proceed to decide and parliament has given it a license to do so.
After 4/9/2008 notification there were 9 members on Wakf Board and at present its strength is only 4. Precedents cited by learned ::: Downloaded on - 09/06/2013 16:01:59 ::: 69 Senior counsel, in this regard does not show any such leave to decide despite knowledge of defect. Hon'ble Apex Court in Gulzari Lal Agrwal vs. Accounts Officer, (supra) found that National Commission functioning under Consumer Protection Act,1986 set aside concurrent orders of District Forum and State Commission on the ground of jurisdiction as president of Commission was not party to decision and it was passes by only two members. In para 11, Section 29-A of that Act worded like Section 22 of Wakf Act is noticed and then in para 17, Hon'ble Apex Court has gathered intention of legislature not to to render State Commission non-
functional in absence of president and it is found that in his absence, senior-most member is to function as president. Facts in Akhil Bharat Gosewa Sangha vs. State of A.P. and others (supra) reveal that the Chairman and Member-Secretary of A.P. Pollution control board (APPCB) did not posses necessary qualifications and Hon'ble Apex Court noticed that High Court did not address specific breach of statutory requirements in this respect though it noticed that some of its members were scientific experts. In this background the Hon'ble Apex Court considers Section 11 of the Water Act, which provides in terms that "No act or proceeding of a Board or any ::: Downloaded on - 09/06/2013 16:01:59 ::: 70 committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of, the Board or such committee, as the case may be." Therefore, applying Section 11 of the Act which clearly provides that no act or proceeding of APPCB or any committee thereof shall be called in question, Hon'ble Apex Court concluded that even if there was some defect in the composition of the APPCB, that would not invalidate the consent order issued by it. Observations of Learned Single Judge of Hon'ble Delhi High Court in Trilochan Singh Rana vs. Joginder Singh Bajwa (supra) are cited to explain interpretation of Section 22 of Delhi Sikh Gurudwaras Act,1971. That Section is in same words as Section 22 of the Wakf Act. The act of manging committee in co-opting a person to fill up vacancy of co-opted member without first filling in vacancy of elected member is found to be saved by Section 22 of said Delhi Act, 1971. All these judgments consider challenge to completed actions or decisions and aggrieved parties there did not try to stop the process midway as is attempted by petitioners before us. It is clear in present facts that Section 22 can not be invoked by State Government to urge that it can not be asked to fill in vacancy of shia member. Such provision ::: Downloaded on - 09/06/2013 16:01:59 ::: 71 also does not help it to argue that respondent 2 Board can decide with its existing composition when number of elected members is less than nominated one and such decision will be valid. Section 22 of the Wakf Act carries with it an important rider that invalidation is not possible "by reason only of " existence of vacancy or defect in constitution. Hence, if invalidation is sought only on one ground the protection under Section 22 will be available to completed actions. But when more number of elected members is mandated by parliament with idea of infusing more democratic element or shia member on Wakf Board is prescribed to give the people of that sect an effective voice in Wakf Board affairs, the omission to have such more elected members or a shia member may prejudice the decision of Wakf Board. It can not be ignored that Wakf Board has to decide by majority and presently more than 50% of its posts are vacant. The object of parliament behind providing such type of arrangement and representation stands defeated. It is equally important to note that State Government is not coming up with any explanation or reason for not filling in these vacancies or for permitting the Wakf Board as it is. If interpretation of respondents is accepted, there can not be any challenge at any time ::: Downloaded on - 09/06/2013 16:01:59 ::: 72 to composition of Wakf Board and State would be free to violate scheme of Section 14 of Wakf Act. Section 22 is not intended as license to it to perpetuate such defects in composition or continue with such vacancies and thereby render other provisions of Wakf Act nugatory and irrelevant. We are not in position to accept the arguments of Shri Bhangde, learned Senior Counsel at least in present writ petition that purpose of Section 22 is dual ie to validated the acts and proceedings of Board and to keep the Wakf Board functional despite defects in composition or vacancies in it.
21. In the light of respective arguments and our findings thereon, We find substance in the contention of petitioners that present Wakf Board which does not have a shia member or the elected members more in number than nominated one is not legal and can not be permitted to adjudicate the matters relating to Mahdi Bagh Wakf to which petitioners are parties. We do not find any thing wrong with nomination of respondent 4 as Wakf Board Member from Section 14(1)(b)(i) category. However as necessary parties are not joined as respondents before us, We are not in ::: Downloaded on - 09/06/2013 16:01:59 ::: 73 position to deliver any final and binding verdict in this regard or to issue any writs or directions for compliances in the matter. Petition therefore deserves to be dismissed. Rule is accordingly discharged with no orders as to costs.
JUDGE JUDGE At this stage, learned counsel for the petitioners states that interim order operating in the matter should be continued till 31st July, 2010, to enable them to take further appropriate steps in the matter.
Mr. Bhangde, learned Counsel for respondent Nos. 2 to 6 is opposing the request.
However, looking to the controversy involved, we are inclined to continue interim order. Accordingly, the said order granted on 8th April 2010, is continued till 31.07.2010. It shall cease to operate automatically thereafter.
JUDGE JUDGE
Rgd.
::: Downloaded on - 09/06/2013 16:01:59 :::


Complete and up-to-date info about every release of Electron.
This package:
latest
and beta
.electron
.sh
npm i electron-releases
The module exports an array of release objects:
```js const releases = require(‘electron-releases’)
// find newest version: releases[0].tag_name // => ‘v1.8.2-beta.3’
// find latest
on npm, which is not necessarily the most recent release:
releases.find(release => release.npm_dist_tag === ‘latest’)
// find beta
on npm:
releases.find(release => release.npm_dist_tag === ‘beta’)
```
Each release contains all the data returned by the GitHub Releases API, plus some extra properties:
version
(String) - the same thing as dist_tag
, but without the v
for convenient semver comparisons.npm_dist_tag
(String) - an npm dist-tag like latest
or beta
. Most releases will not have this property.npm_package_name
(String) - For packages published to npm, this will be electron
or electron-prebuilt
. For packages not published to npm, this property will not exist.total_downloads
(Number) - Total downloads of all assets in the release that
have a detectable platform in their
filename like .zip
, .dmg
, .exe
, .rpm
, .deb
, etc.deps
(Object) - version numbers for Electron dependencies.
v8
(String)chromium
(String)node
(String)This module is self-publishing. It runs in a Heroku Scheduler process every ten minutes. A new version of this module is published if any of the following change:
electron@beta
versionelectron@latest
versionIf none of these has changed, the build process aborts and runs again ten minutes later. For more detail, see script/release.sh
The Heroku app is also synced to the GitHub repo, so every push to the
master
branch will automatically deploy a new version of this app.
sh
npm install
npm test
None
MIT


Neumorphic Darkness
Created by:
Juan Camilo Auriti
Square Button
Submit Button / Input label
Confirm
Confirm
Send


It is described as a creature with a human body and the head of a wolf or dog. Derived from the French word "loup-garou," it common legend across French Louisiana linked to European notions of the werewolf.
 It was reportedly seen in the Point Pleasant area of West Virginia from November 12, 1966, to December 15, 1967.


VNCNT.tk
About
Socials
Blog
Github talk by Titus
Interesting subjects
The history of Github
IBM involvement
Licenses, my god
Suprised about the behaviour of some starters of the open source movement


Person folding napkin in half. Caption reads: For instance, I usually start by using one side of the napkin, leaving the other side clean so that I can hold the napkin. Then I fold the napkin in half, exposing all the remaining unused surface area, like so.
Person folding napkin in half again. Caption reads: Then, repeat this process as many times as we can possibly fold the paper.* Use half of the remaining surface area, fold, repeat. *we'll get back to this later.
Person folding origami. Caption: BUT WAIT: @rogue_oftime suggested using a hexaflexagon, where you can expose various faces of the shape! (Thanks, Matthew.) Vi Hart's using a trihexaflexagon here-- it has three faces. I'll work with this type of hexaflexagon, but Wikipedia says there's many, many types of flexagons in the world. Those might be worth exploring.
Person continues folding origami. Caption: BUT WAIT: @rogue_oftime suggested using a hexaflexagon, where you can expose various faces of the shape! (Thanks, Matthew.) Vi Hart's using a trihexaflexagon here-- it has three faces. I'll work with this type of hexaflexagon, but Wikipedia says there's many, many types of flexagons in the world. Those might be worth exploring.
Person folding triangles. Caption: So! I've got 9 equilateral triangles on this strip, and I'm going to fold them accordion-style like so.
Person continues folding triangles. Caption: So! I've got 9 equilateral triangles on this strip, and I'm going to fold them accordion-style like so.
Person bends triangular paper into a hexagon. Caption: Finessing it into a trihexaflexagon. (Do you like my makeshift phone holder, by the way? This is exactly 3 mason jars tall, laughing cat emoji.
Person flips through paper hexagon. Caption: So far, so good.
Person shows partially colored hexagon. Caption: And with that, I think we've hit our limit. We can use 2 out of 3 faces before we run out of a clean face to hold the napkin with.
Person unfolds hexagon into strip of paper. Caption: Once I unfold it, we can see that we've used 12/18 triangles total (remember, there's 9 triangles on each side of the strip), leaving 6 triangles clean for us to use. That comes out to a 67% usage of the whole surface area. But wait!
Person folds over the corner of half a hexagon.
Person folds hexagon segnment into a triangle.
(Note: a good next step would be to figure out where on the graph is the best place to start/end for optimal napkin usage.)


An overall sentiment of a given script with a score. Categorize a script into a hierarchy that is 5 levels deep with a relevance score.
Important keywords in script sized by relevance.
Relationship of all characters in a script visualized as a force-directed graph. Each vertex is a character. Top three main characters are of orange, top ten main characters are of light blue, and peripheral characters are of dark blue. Each edge is assigned a force indicator, calculated using the Natural Language Processing API, symbolizing the relationship between two roles.
Names of main characters sized by their occurrences.


[gecode-users] Programming with Gecode
Peter Vanhee
peter.vanhee at gmail.com
Fri Jan 15 10:37:32 CET 2010
Hi all,
As mentioned at http://www.gecode.org/documentation.html, a document describing Programming
with Gecode is under prepartion, similar to the existing Modeling with Gecode document. I would
be very interested to read this document, do you have an idea when it will be released to the
community?
I am struggling to understand how I can define my own variables (like Int etc) and constraints to
plug them into the Gecode interface. Is there any other information besides the documented code?
Thanks very much for this amazing library!
Best,
Peter
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We use eth0 for the management and the rest of the network is connected to eth1. Configuration for eth0 is shown below.
For IP address enter the address you want to set for the web interface for the ACM it will be 172.16.2.***, change the last three digits to an unused port. For Netmask and Gateway enter the routes you obtained in the last step
After network setting, the next window prompts user for the password for root which can access the CLI of OSSIM server
Select your time zone in the next step which is important in the logging system
After setting time zone; wizard automatically perform the partition and start installing the base system.
This process can take 15-20 min
Now the vm will load the CLI where you will need to login with the information you set up during the install to turn on the Web Client
Once you are logged it that CLI will have the IP address of the web client at the top of the terminal, go to that page to access the web client


--- layout: archive title: "SourceCrypto Directory and Archive" permalink: /archive/ redirect_from: "/discolog/" header: image: /images/source-crypto-disco.png teaser: /images/SourceCrypto-DiscoLog-teaser.png caption: "[SourceCrypto Discord Chat](https://discord.gg/ahTuPMY)" classes: wide share: true --- {% capture written_label %}'None'{% endcapture %} {% for collection in site.collections %} {% unless collection.output == false or collection.label == "posts" %} {% capture label %}{{ collection.label }}{% endcapture %} {% if label != written_label %}