THE STATE OF TAMIL NADU & ANR.versusK. FAZLUR RAHMAN & ANR.

906                      [2020]REPORTS
               SUPREME COURT    9 S.C.R. 906              [2020] 9 S.C.R.


A                  THE STATE OF TAMIL NADU & ANR.
                                       v.
                       K. FAZLUR RAHMAN & ANR.
                     (Civil Appeal Nos. 3603-3605 of 2020)
B                            NOVEMBER 03, 2020
            [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                       M. R. SHAH, JJ.]
             Waqf Act, 1995 – The Tamil Nadu Waqf Board constituted on
      10.10.2017 consisted of 11 Muslim members – One Muslim Member
C
      of Parliament; two Muslim Members of State Legislature; two senior
      Muslim advocates; two Mutawallis; one person with professional
      experience; two recognized scholars of Shia and Sunni Islamic
      theology and one State Government Nominee – The State Government
      issued a notification dated 18.09.2019 in exercise of power
D     u/s. 99(1) of the 1995 Act superseding the Waqf Board – The State
      was of the opinion that two senior advocates who were nominated
      as members u/s. 14(1)(b)(iii) proviso cannot be treated as elected
      members hence the number of elected members are less than
      nominated members resultantly, the Board is unable to perform its
      work as per the Waqf Act, 1995 – The process for reconstituting the
E
      Waqf Board was initiated by order dated 14.07.2020 – Three writ
      petitions were filed – Two questioning the order dated 18.09.2019
      and one for quashing the press release dated 14.07.2020 – All the
      writ petitions were decided by the High Court by the common
      judgment dated 17.08.2020 – Although, the High Court held that
F     supersession dated 18.09.2019 was not in accordance with law,
      however, the said order was set aside insofar as the election of two
      persons under Mutawallis category alone – The High Court had
      quashed the order dated 18.09.2019 insofar as two members of the
      board of Mutawallis constituency was concerned, process for
      electing/nominating other members of the Board was untouched and
G
      was completed – On appeal, held: s.22 is a clause which saves
      proceedings of the Board from invalidity due to reason only of the
      existence of any vacancy or any defect in the constitution – When
      the initially Board was constituted on 10.10.2017, the objective as
      enshrined in s.14 was not fulfilled even in the initial constitution,
H
                                      906
      THE STATE OF TAMIL NADU & ANR. v. K. FAZLUR                          907
                    RAHMAN & ANR.

the Board has been superseded not due to any action, inaction or           A
omission and misconduct on the part of the Board rather due to
number of elected members becoming less than to the nominated
members – The order dated 18.09.2019 spells out the reason for
supersession, Member of Parliament whose term came to end in
May, 2019, other members of the Board as constituted on
                                                                           B
10.10.2017 were same, thus, the circumstance which has been taken
as ground for supersession of the Board was not any action of the
Board – The event of cessation of membership of an elected member
is not under control of the Board – It was the duty of the State
Government to constitute the Board as per the objectives enshrined
in s.14(4) and any lapse there in cannot be a ground for superseding       C
the Board – Further, the second proviso to s.99 contains an
injunction that the power of the State Government shall not be
exercised unless there is a prima facie evidence of financial
irregularity, misconduct or violation of the provisions of the Act –
In view of the second proviso to s. 99, present was not a case where
                                                                           D
State could have exercised its power of supersession of the Board –
The High Court did not commit any error in holding supersession
as contrary to law – Insofar as setting aside the notification partially
as regard to two elected members of the Mutawalli category is
concerned, only one category petitioners were before the High
Court, it confined relief to that category – The High Court has not        E
interfered with the fresh constitution of the Board by election and
nomination of other categories except the category u/s. 14(1)(b)(iv)
– Thus, the order of the High Court is upheld.
      Dismissing the appeals, the Court
       HELD: 1. The Waqf Act, 1995 enumerates various powers               F
and functions of the Board. When the Board is constituted it is
entitled to exercise its powers and functions as enumerated in
various Sections including Sections 32, 38, 39, 41, 48 and 53,
etc. Section 22 is a clause which saves proceedings of the Board
from invalidity due to reason only of the existence of any vacancy         G
or any defect in the constitution. [Para 21][921-E-F]
      2. That in event there is vacancy in the Board or any defect
thereof, the proceedings or act of the Board are not to be
invalidated which has been saved by Section 22. Thus, when the
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908           SUPREME COURT REPORTS                     [2020] 9 S.C.R.


A     initially Board was constituted on 10.10.2017, the objective as
      enshrined in Section 14 was not fulfilled even in the initial
      constitution, the Board has been superseded not due to any action,
      inaction or omission and misconduct on the part of the Board
      rather due to number of elected members becoming less than to
      the nominated members. The order dated 18.09.2019 spells out
B
      the reason for supersession, i.e., a Member of Parliament whose
      term came to end in May, 2019, other members of the Board as
      constituted on 10.10.2017 were same, thus, the circumstance
      which has been taken as ground for supersession of the Board
      was not any action of the Board. The event of cessation of
C     membership of an elected member is not under control of the
      Board. It was the duty of the State Government to constitute the
      Board as per the objectives enshrined in Section 14(4). The State
      Government has ample power to conduct election for the
      members as enumerated in Section 14(i)(b), (i) to (iv). [Para
      22][921-G-H; 922-A-B]
D
            3. In the facts of the present case, the State Government
      could have very well complied with objective of Section 14(4) by
      conducting an election for members under Section 14(1)(b)(iii)
      by permitting nominated members to continue till the election is
      held. The State has further option to exercise power under Section
E     14(3) in event State was satisfied that it is not reasonably
      practicable to constitute an electoral college for any of the
      categories mentioned in sub-clauses (i) to (iii) of clause (b) of
      sub-section (1), the State could have then nominated under
      Section 14(3) which nomination shall have overriding effect on
F     the objective of Section 14(4) since sub-section (3) begins with
      non obstante clause “Notwithstanding anything contained in this
      section,”. The obligation on the State Government to constitute
      the Board in accordance with Section 14 keeping in view the
      objective under Section 14(4) was both right and duty of the State
      and any lapse therein cannot be a ground for superseding the
G     Board. [Para 23][922-C-E]
            4. The objective and purpose of the second proviso to
      Section 99 which has been inserted by Act 27 of 2013. Second
      proviso contains an injunction that the power of the State
      Government shall not be exercised unless there is a prima facie
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     THE STATE OF TAMIL NADU & ANR. v. K. FAZLUR                        909
                   RAHMAN & ANR.

evidence of financial irregularity, misconduct or violation of the      A
provisions of the Act. The present is not a case of any allegation
of any financial irregularity or misconduct on the part of the Board.
[Para 24][922-F-G]
      5. The second proviso has to be read in conjunction with
the main provision. The second proviso contains further                 B
restriction on the power of State Government to supersede the
Board, i.e., unless there is prima facie evidence. There can be
no dispute that prima facie evidence of financial irregularity,
misconduct has to be prima facie financial irregularity or
misconduct by the Board which is sought to be superseded. The
third expression that is “violation” of the provisions of this Act      C
has also to be read in the same manner that is violation of the
provisions of this Act by actions of the Board. Thus, the legislative
intendment as contained in second provision to Section 99, present
was not a case where State could have exercised its power of
supersession of the Board. In view of the foregoing discussion,         D
the High Court did not commit any error in holding supersession
as contrary to law. [Para 26][923-B-D]
       6. The submission that the High Court ought not to have
set aside the notification partially insofar as two elected members
of the Mutawalli category only. It is to be noted that the High         E
Court had categorically held that supersession order is not
sustainable in law but after holding that, the High Court had
moulded the relief in the facts of the present case and subsequent
events which had taken place. Two writ petitions being Writ
Petition No.8377 and 9557 of 2020 which have been allowed by
the High Court were filed by ‘S’ who was elected member from            F
the Mutawalli category. Since, only one category petitioners were
before the High Court, it confined the relief to that category.
This Court need not dwell into the question any further since
there is no further challenge on behalf of the writ petitioners that
supersession order ought to have been set aside in toto. It is          G
State which has come in the appeals against the judgment of the
High Court which has partially set aside the notification dated
18.09.2019 for Mutawalli category only. The High Court has not
interfered with the fresh constitution of the Board by election
and nomination of other categories except the category under
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910             SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A     Section 14(1)(b)(iv). In view of the foregoing discussion, this
      Court, thus, upheld the order of the High Court. [Para 27]
      [923-D-H]
             M.H. Jawahirullah and Others v. Government of Tamil
             Nadu and Others (2013) 3 MLJ 688 – referred to.
B           CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3603-
      3605 of 2020.
            From the Judgment and Order dated 17.08.2020 of the High Court
      of Judicature at Madras in Writ Petition Nos. 726 of 2020, 8377 of 2020
      and 9557 of 2020.
C
           C.S. Vaidhyanathan, Jayanth Muthraj, Ratnakar Dash, Sr. Advs.,
      M. Yogesh Kanna, Rajarajeswaran, G. Sivabalamurugan, H. Mohamed
      Ghouse, Mehmood Pracha, Ms. K. V. Bharathi Upadhyaya,
      Yashovardhan Oza, Sanawar, Jatin Bhatt, Advs. for the appearing parties.

D            The Judgment of the Court was delivered by
             ASHOK BHUSHAN, J.
             1. Leave granted.
             2. These appeals have been filed against the common judgment
      of the High Court of Judicature at Madras dated 17.08.2020 in Writ
E     Petition Nos.726 of 2020, 8377 of 2020 and 9557 of 2020. The Division
      Bench of the High Court by the impugned judgment has allowed Writ
      Petition Nos. 8377 and 9557 of 2020. The State of Tamil Nadu aggrieved
      by the impugned judgment has come up in these appeals.
             3. The brief facts of the case to be noted for deciding these appeals
F     are:
            The Tamil Nadu Waqf Board is a statutory body governed by the
      Waqf Act, 1995. The term of earlier Waqf Board expired on 14.06.2017
      and thereafter the State of Tamil Nadu reconstituted Tamil Nadu Waqf
      Board by order dated 10.10.2017. The Board constituted on 10.10.2017
G     consisted of 11 Muslim members to the following effect:
             “Muslim Member of Parliament
             Thiru A. Anwhar Raajhaa, M.P.

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     THE STATE OF TAMIL NADU & ANR. v. K. FAZLUR                           911
         RAHMAN & ANR. [ASHOK BHUSHAN, J.]

      Muslim member of State Legislature                                   A
      1. Thiru K.A.M. Muhammed Abubacker, M.L.A.
      2. Thiru K.S. Masthan M.L.A.
      Senior Muslim Advocates
      1. Thiru A. Sirajudeen                                               B
      2. Thiru M. Ajmal Khan
      Mutawallis
      1. Dr. Haja K. Majeed
      2. Thiru Syed Ali Akbar
                                                                           C
      Person with professional experience
      Thiru A. Tamilmahan Hussain
      Recognized scholars Shia and Sunni Islamic
      Theology
      1. Tmt. Amatul Atifa, Scholar in Shia Islamic                        D

      Theology
      2. Tmt. A.S. Fathima Muzaffer, Scholar in Sunni
      Islamic Theology
      State Government Nominee                                             E
      Thiru M.A. Siddique, I.A.S.”
      4. Two Senior Muslim Advocates as referred above were
nominated by the State Government in exercise of power under proviso
to Section 14(1)(b)(iii) of the Waqf Act, 1995. One Muslim Member of
Parliament, two Muslim Members of State Legislature and two                F
Mutawallis were elected members under Section 14(1)(b). The
nomination of two Senior Muslim Advocates was challenged before the
High Court by a writ petition which was dismissed upholding the
nomination.
      5. The State Government issued a notification dated 18.09.2019       G
in exercise of power under Section 99(1) of the Waqf Act, 1995
(hereinafter referred to as the “Act, 1995”) superseding the Waqf Board.
The notification dated 18.09.2019 was issued after issuance of show
cause notice to the 10 members of Waqf Board existing at that time.
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912            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A     The membership of A. Anwhar Raajhaa, Member of Parliament ceased
      in May, 2019 reducing number of members as 10. The State Government
      was of the opinion that two Senior Advocates who were nominated as
      members under Section 14(1)(b)(iii) proviso cannot be treated as elected
      members hence the number of elected members are less than nominated
      members resultantly the Board is unable to perform its work as per the
B
      Waqf Act, 1995. The ground of supersession is mentioned in paragraph
      8 of the notification 18.09.2019 which is to the following effect:
            “8. And whereas, the Tamil Nadu Waqf Board has been called
            upon to show cause within 7 days from the receipt of that notice
            as to why the Tamil Nadu Waqf Board should not be superseded
C           by the State Government under Section 99 of the Waqf Act, 1995.
            Further it has also been mentioned therein that in case no reply is
            received within stipulated time, action will be pursued in accordance
            with law. The show cause notice was served to all the present 10
            members of the Tamil Nadu Waqf Board. In response to the show
D           cause notice, out of 10 members 4 members namely, Thiruvalargal
            K.A.M. Muhammed Abubacker, M.L.A., A.S. Fathima Muzaffer,
            Dr. Haja K. Majeed, Syed Ali Akbar, Members, Tamil Nadu Waqf
            Board alone have sent their replies to the Government. They have
            stated that the Senior Advocates nominated as Members can be
            considered as elected members and requested that the superseding
E           process may be dropped. In this regard, the Government had
            already received legal opinion that the Senior Advocates can be
            considered as nominated members. In view of above, the elected
            members are less than the nominated members and the Board is
            unable to perform its functions as per the Waqf Act, 1995. Thiru
F           A. Sirajudeed, member, Tamil Nadu Waqf Board without
            responding to the notice has submitted his resignation as a member
            of the Tamil Nadu Waqf Board, citing personal reasons vide his
            letter dated 09.09.2019.”
             6. The period of Waqf Board was further extended by another six
G     months upto 07.09.2020 by order dated 20.05.2020. The process for
      reconstituting the Waqf Board was initiated by order dated 14.07.2020.
      Writ Petition No.7661 of 2020 was filed challenging the order dated
      14.07.2020. The writ petition was dismissed by a learned Single Judge
      of the High Court vide its judgment dated 24.07.2020 upholding the
      process of election initiated by order dated 14.07.2020. Writ Petition
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     THE STATE OF TAMIL NADU & ANR. v. K. FAZLUR                             913
         RAHMAN & ANR. [ASHOK BHUSHAN, J.]

No. 8377 of 2020 (Syed Ali Akbar vs. State of Tamil Nadu) was filed          A
questioning the order dated 18.09.2019 superseding the Board as well
as order dated 12.05.2020. Syed Ali Akbar was elected member of the
Board reconstituted on 10.10.2017 from the constituency of Mutawallis.
Syed Ali Akbar filed another Writ Petition No.9557 of 2020 before the
Madras High Court praying for issuances of writs for quashing the press
                                                                             B
release dated 09.06.2020 and consequential press release dated
14.07.2020. The respondent, K. Fazlur Rahman filed Writ Petition No.726
of 2020 challenging the Government order dated 18.09.2019 by way of
Public Interest Litigation in which writ petition an interim order dated
18.03.2020 was passed by the High Court to the effect that any action
taken during the interregnum shall be subject to the result of the writ      C
petition. All the writ petitions were decided by the High Court by the
common judgment dated 17.08.2020. Although, the High Court held that
supersession dated 18.09.2019 was not in accordance with law, however,
the said order was set aside insofar as the election of two persons Syed
Ali Akbar and Dr. Haja K. Majeed alone. In paragraphs 22 and 23
                                                                             D
following was held by the High Court:
             “22. For these reasons, we accordingly hold that the order
      passed by us including the observation made on the impugned
      order would be applicable to these two persons alone. We have
      also been told that the process is completed for all other
      constituencies except mutawalli constituency.                          E

            23. Accordingly, the impugned order of supersession in
      G.O.(Ms.) No.58 (Backward Class, Most Backward Class and
      Minorities Welfare (T1) Department) dated 18th September 2019
      and the consequential orders stand set aside insofar as the election
      of two persons viz.,.Syed Ali Akbar and Dr. Haja K. Majeed alone       F
      are concerned. The writ petitions in W.P. Nos.8377 and 9557 of
      2020 stand allowed accordingly.”
       7. As per the election programme issued on 14.07.2020, the date
of polling was fixed on 19.08.2020. The schedule of dates for various
stages of election to constitute the Tamil Nadu Waqf Board was published     G
in the Tamil Nadu Government Gazette dated 15.07.2020. The High
Court by the impugned order dated 17.08.2020 had quashed the order
dated 18.09.2019 insofar as two members of the Board of Mutawallis
constituency are concerned, process for electing/nominating other
members of the Board was untouched and was completed. In the SLP             H
914            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A     giving rise to these appeals, an interim order was passed on 28.08.2020
      staying of the operation of the impugned judgment dated 17.08.2020.
      The counter-affidavit has been filed both by respondent No.1, K. Fazlur
      Rahman as well as Syed Ali Akbar, respondent No.2.
            8. We have heard Shri C.S. Vaidhyanathan, Senior Advocate
B     appearing for the appellant, Shri Ratnakar Dash, Senior Advocate
      appearing for respondent No.1 and Shri Mehmood Pracha, Advocate
      appearing for respondent No.2.
              9. Shri C.S. Vaidhyanathan, learned senior counsel for the
      appellant submits that Section 14(4) of the Act, 1995 provides that elected
C     members of the Board shall at, all time, be more than the nominated
      members of the Board. In May, 2019 the number of elected members
      became four with six nominated members, making the Board unable to
      perform its functions. Therefore, in exercise of power under Section 99
      of Act, 1995, the Board was superseded vide G.O. dated 18.09.2019.
      The State Government has rightly exercised the power under Section 99
D     and the Government formed the opinion that the Board is “unable to
      perform”, hence the supersession was ordered. The supersession dated
      18.09.2019 was extended by subsequent notification dated 16.03.2020.
      The Division Bench committed error in setting aside the notification dated
      18.09.2019 partially. There can be no partial setting aside of the
E     supersession order. The validity of the supersession order was upheld
      by the High Court in Writ Petition No.20417 of 2019 vide its judgment
      dated 12.11.2019. The supersession order was challenged by Syed Ali
      Akbar only in July, 2020 with delay and laches. The election process
      having once started could not have been interfered by the High Court. It
      is not disputed that there are only 10 members in the Board at the relevant
F     time after Member of Parliament demitted office. The number of
      nominated members being more than the elected members the State
      had no option except to supersede the Board and start fresh process for
      constituting the Board. The validity of notification dated 15.07.2019 was
      upheld by the High Court in Writ Petition No.20085 of 2019 by its judgment
G     dated 12.11.2019 which issue had become final. The writ petition
      proceedings initiated by the respondent is barred by constructive res
      judicata. The High Court vide impugned judgment violated the principles
      of comity of Court as different benches of the High Court had upheld
      the validity of the notification dated 15.07.2020. After the interim order
      passed by this Court on 28.08.2020, without prejudice to the outcome of
H
      THE STATE OF TAMIL NADU & ANR. v. K. FAZLUR                              915
          RAHMAN & ANR. [ASHOK BHUSHAN, J.]

the instant case, election was held on 09.09.2020 by secret ballot and         A
the votes polled were counted on 10.09.2020. A. Abdul Rahman and M.
Mohamed Basheer declared elected subject to further orders.
       10. Shri Ratnakar Dash, learned senior counsel for respondent
No.1 submits that provision of Section 14(4) was not violated since two
Senior Advocates who have been nominated under Section 14(1)(b)(iii)           B
proviso should have been declared as elected members in which case
numbers of elected members shall not be less than nominated members.
Shri Dash submits that there was no ground for invoking Section 99 in
the facts of the present case.
        11. Shri Mehmood Pracha, learned counsel appearing for                 C
respondent No.2, submits that present was not the case where power
under Section 99 could have been invoked. It is submitted that as per
second proviso to Section 99(1) the power of the State Government can
be exercised only when there is a prima facie evidence of financial
irregularity, misconduct or violation of the provisions of this Act. It is
submitted that the grounds given for supersession in the order dated           D
18.09.2019 are not covered by Section 99(1) especially second proviso.
It is submitted that responsibility to constitute the Board is on the State
Government hence it cannot take benefit of its own wrong. It was for
the State to ensure that number of elected members is not less than the
nominated members. It is submitted that State was obliged to ensure            E
compliance of Section 14(4). He submits that under Section 14(2) in
absence of any Muslim member of the State Bar Council ex-members
shall constitute the electoral college, hence election ought to be conducted
under Section 14(1)(b)(iii). He submitted that nomination of two Senior
Advocates under Section 14(1)(b)(iii) was void. It was State Government
which had included two Senior Lawyers in the Board which cannot be             F
said to be any violation committed by the Board. He submits that term of
the members is five years which cannot be curtailed.
       12. Shri C.S. Vaidhyanathan, in his rejoinder affidavit, submits
that there are no findings or allegation of any kind of mala fide on the
part of the State Government which submission cannot be raised by the          G
respondents in these appeals. He submits that the High Court ought not
to have set aside the notification dated 18.09.2019.
       13. We have considered the submissions of the learned counsel
for the parties and perused the records.
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916            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A           14. We need to first consider the scheme of Section 14 of the Act,
      1995 regarding constitution/Composition of Board which provision is as
      follows:
            “Section 14. Composition of Board.—(1) The Board for a State
            and the National Capital Territory of Delhi] shall consist of—
B              (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—

C                  (i) Muslim Members of Parliament from the State or, as
                   the case may be, 3 [the National Capital Territory of Delhi];
                   (ii) Muslim Members of the State Legislature;
                   (iii) Muslim members of the Bar Council of the concerned
                   State or Union territory: Provided that in case there is no
D                  Muslim member of the Bar Council of a State or a Union
                   territory, the State Government or the Union territory
                   administration, as the case may be, may nominate any senior
                   Muslim advocate from that State or the Union territory, and
                   (iv) mutawallis of the auqaf having an annual income of
E                  rupees one lakh and above.
                         Explanation I.—For the removal of doubts, it is hereby
                   declared that the members from categories mentioned in
                   sub-clauses (i) to (iv), shall be elected from the electoral
                   college constituted for each category.
F                         Explanation II.—For the removal of doubts it is
                   hereby declared that in case a Muslim member ceases to
                   be a Member of Parliament from the State or National
                   Capital Territory of Delhi as referred to in sub-clause (i) of
                   clause (b) or ceases to be a Member of the State Legislative
G                  Assembly as required under sub-clause (ii) of clause (b),
                   such member shall be deemed to have vacated the office
                   of the member of the Board for the State or National Capital
                   Territory of Delhi, as the case may be, from the date from
                   which such member ceased to be a Member of Parliament
                   from the State National Capital Territory of Delhi, or a
H
THE STATE OF TAMIL NADU & ANR. v. K. FAZLUR                           917
    RAHMAN & ANR. [ASHOK BHUSHAN, J.]

     Member of the State Legislative Assembly, as the case may        A
     be;]
  (c) one person from amongst Muslims, who has professional
  experience in town planning or business management, social
  work, finance or revenue, agriculture and development activities,
  to be nominated by the State Government;                            B
  (d) one person each from amongst Muslims, to be nominated
  by the State Government from recognised scholars in Shia and
  Sunni Islamic Theology;
  (e) one person from amongst Muslims, to be nominated by the
  State Government from amongst the officers of the State             C
  Government not below the rank of Joint Secretary to the State
  Government;
  (1A) No Minister of the Central Government or, as the case
  may be, a State Government, shall be elected or nominated as
  a member of the Board: Provided that in case of a Union             D
  territory, the Board shall consist of not less than five and not
  more than seven members to be appointed by the Central
  Government from categories specified under sub-clauses (i)
  to (iv) of clause (b) or clauses (c) to (e) in sub-section (1):
         Provided further that at least two Members appointed         E
  on the Board shall be women:
         Provided also that in every case where the system of
  mutawalli exists, there shall be one mutawalli as the member
  of the Board.
                                                                      F
  (2) Election of the members specified in clause (b) of sub-
  section (1) shall be held in accordance with the system of
  proportional representation by means of a single transferable
  vote, in such manner as may be prescribed:
          Provided that where the number of Muslim Members
  of Parliament, the State Legislature or the State Bar Council,      G
  as the case may be, is only one, such Muslim Member shall be
  declared to have been elected on the Board:
      Provided further that where there are no Muslim
  Members in any of the categories mentioned in sub-clauses (i)
                                                                      H
918            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A              to (iii) of clause (b) of sub-section (1) the ex-Muslim Members
               of Parliament, the State Legislature or ex-member of the State
               Bar Council, as the case may be, shall constitute the electoral
               college.
               (3) Notwithstanding anything contained in this section, where
B              the State Government is satisfied, for reasons to be recorded
               in writing, that it is not reasonably practicable to constitute an
               electoral college for any of the categories mentioned in sub-
               clauses (i) to (iii) of clause (b) of sub-section (1), the State
               Government may nominate such persons as the members of
               the Board as it deems fit.
C
               (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).
               ..................”
D            15. As noted above when the Board was constituted initially on
      10.10.2017 there was one elected member under Section 14(1)(b)(i),
      two elected members under Section 14(1)(b)(ii) and two elected members
      under Section 14(1)(b)iv). Thus, there were five elected members. The
      State Government had nominated two Senior Advocates under Section
E     14(1)(b)(iii) proviso, since, there was no Muslim member from the Bar
      Council of the State. Under Section 14(1)(c), (d) and (e) total four
      members were nominated. Initially the stand of the State was that two
      members nominated under Section 14(1)(b)(iii) are to be treated as
      elected members, thus, due to which State claimed composition of Board
      in accordance with Section 14(4). On receipt of the legal advice that
F     members under Section 14(1)(b)(iii) proviso cannot be treated as elected
      members of the Board, Government formed the opinion that number of
      elected members are less than nominated members. Consequently,
      proceeded to supersede the Board by notification dated 18.09.2019. The
      composition of Board as provided under Section 14 consists of both
G     “elected” and “nominated members”, wherever the words ‘nominated
      members’ have been used, there can be no circumstances that they can
      be treated as elected members. Section 14(4) which provides that number
      of elected members of the Board shall at, all times, be more than the
      nominated members of the Board, is subject to an exception which is
      provided in sub-Section (3). Sub-section (3) contemplates that where
H
      THE STATE OF TAMIL NADU & ANR. v. K. PAZLUR                              919
          RAHMAN & ANR. [ASHOK BHUSHAN, J.]

the State Government is satisfied, for reasons to be recorded in writing,      A
that it is not reasonably practicable to constitute an electoral college for
any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of
sub-section (1), the State Government may nominate such persons. If
nomination is made under Section 14(3), in such situation mandate of
Section 14(4) shall not be applicable, thus, Section 14 itself contemplates
                                                                               B
situation where there may be more nominated members than the elected
members.
      16. It is the State Government which is to establish a Board as
per composition provided under Section 14. Section 14(4) is a provision
which incorporates democratic principles in constitution of the Board.
The Legislature contemplates that Board is to be run by majority of            C
elected members which is to ensure democratic principle and make the
voice of elected representatives a determining factor in the decisions of
the Board.
       17. From the facts as noted above, there can be no dispute that at
the time when the Board issued show cause notice as well as notification       D
dated 18.09.2019, the number of elected members was less than the
number of nominated members. The provision of Section 14(4) which
mandates that number of elected members of the Board shall at, all
times, be more than the nominated members of the Board is a provision
compliance of which has to be ensured by the State which is authorised         E
to constitute the Board. While constituting the Board, the State
Government has to be conscious of the fact that the composition of
Board shall be such which may fulfill the objectives enshrined in Section
14(4). The State Government when makes nomination of two Senior
Advocates under Section 14(1)(b)(iii), the said nomination was bound to
have adverse effect on requirement of Section 14(4). While constituting        F
the Board as per Section 14, the State has to keep in mind the principles
and objectives as enshrined in Section 14(4) and constitution of Board
shall be such as to give effect to the democratic principle which is to
guide the Board in its functions.
      18. In this context, we may also notice a Division Bench judgment        G
of Madras High Court in M.H. Jawahirullah and others vs.
Government of Tamil Nadu and others, (2013) 3 MLJ 688, where
the Madras High Court has correctly noticed the legislative intendment
while constituting the Board under Section 14 of the Act. Following
observation had been made in paragraph 27:                                     H
920            SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A           “27......Primacy given to democratic process of administration and
            supervision in Wakf Board Management is apparent. In fact, the
            Statement of Objects and reasons shows this composition and
            election is an important feature of the Wakf Act. Since the intention
            of the Legislature is to have democratic process of administration
            and supervision in Wakf Board Management, the State cannot
B
            avoid election and resort to nomination arbitrarily. The only
            exception is Section 14(3). In Section 14(3), the Government is
            given discretion to exercise power to nominate such persons as
            members of the Board.”
            19. After noticing the scheme of Section 14 now we come to
C     Section 99 which has been invoked by the Government in superseding
      the Board constituted on 10.10.2017. Section 99 of the Act, 1995 provides:
                   “Section 99. Power to supersede Board.—(1) If the
            State Government is of opinion that the Board is unable to perform
            or has persistently made default in the performance of, the duty
D           imposed on it by or under this Act or has exceeded or abused its
            powers, or has wilfully and without sufficient cause failed to
            comply with any direction issued by the Central Government under
            section 96 or the State Government under section 97, or if the
            State Government is satisfied on consideration of any report
E           submitted after annual inspection, that the Board’s continuance is
            likely to be injurious to the interests of the auqaf in the State, the
            State Government may, by notification in the Official Gazette,
            supersede the Board for a period not exceeding six months:
                  Provided that before issuing a notification under this sub-
F           section, the State Government shall give a reasonable time to the
            Board to show cause why it should not be superseded and shall
            consider the explanations and objections, if any, of the Board:
            Provided further that the power of the State Government under
            this section shall not be exercised unless there is a prima facie
G           evidence of financial irregularity, misconduct or violation of the
            provisions of this Act.
              (2)....................
              (3)....................”

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      THE STATE OF TAMIL NADU & ANR. v. K. PAZLUR                               921
          RAHMAN & ANR. [ASHOK BHUSHAN, J.]

       20. Section 99 (1) provides that if the State Government is of           A
opinion that the Board is unable to perform or has persistently made
default in the performance of, the duty imposed on it by or under this Act
or has exceeded or abused its powers, or has wilfully and without
sufficient cause failed to comply with any direction issued by the Central
Government under Section 96 or the State Government under Section
                                                                                B
97, or if the State Government is satisfied on consideration of any report
submitted after annual inspection, that the Board’s continuance is likely
to be injurious to the interests of the auqaf in the State, the Government
may supersede the Board. The ground for superseding the Board in the
notification dated 18.09.2019 is that Board is unable to perform which
is due to the fact that number of nominated members has become more             C
than elected members.
       21. Learned counsel for respondent No.2 has given emphasis on
second proviso to Section 99(1) which reads: “Provided further that the
power of the State Government under this section shall not be exercised
unless there is a prima facie evidence of financial irregularity, misconduct    D
or violation of the provisions of this Act”. The expression unable to
perform is an expression of wide import. We may look into the scheme
of supersession as contained in Section 99. The supersession is based
on some action, inaction, omission or misconduct of the Board. The Act,
1995 enumerates various powers and functions of the Board. When the
Board is constituted it is entitled to exercise its powers and functions as     E
enumerated in various Sections including Sections 32, 38, 39, 41, 48 and
53, etc. Section 22 is a clause which saves proceedings of the Board
from invalidity due to reason only of the existence of any vacancy or
any defect in the constitution. Section 22 is as follows:
             “Section 22. Vacancies, etc., not to invalidate                    F
      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 member or any defect in the constitution thereof.”
       22. That in event there is vacancy in the Board or any defect
thereof, the proceedings or act of the Board are not to be invalidated          G
which has been saved by Section 22. Thus, when the initially Board was
constituted on 10.10.2017, the objective as enshrined in Section 14 was
not fulfilled even in the initial constitution, the Board has been superseded
not due to any action, inaction or omission and misconduct on the part of
the Board rather due to number of elected members becoming less than            H
922            SUPREME COURT REPORTS                          [2020] 9 S.C.R.


A     to the nominated members. The order dated 18.09.2019 spells out the
      reason for supersession, i.e., A. Anwhar Raajhaa, Member of Parliament
      whose term came to end in May, 2019, other members of the Board as
      constituted on 10.10.2017 were same, thus, the circumstance which has
      been taken as ground for supersession of the Board was not any action
      of the Board. The event of cessation of membership of an elected member
B
      is not under control of the Board. It was the duty of the State Government
      to constitute the Board as per the objectives enshrined in Section 14(4).
      The State Government has ample power to conduct election for the
      members as enumerated in Section 14(i)(b), (i) to (iv).
             23. In the facts of the present case, the State Government could
C     have very well complied with objective of Section 14(4) by conducting
      an election for members under Section 14(1)(b)(iii) by permitting
      nominated members to continue till the election is held. The State has
      further option to exercise power under Section 14(3) in event State was
      satisfied that it is not reasonably practicable to constitute an electoral
D     college for any of the categories mentioned in sub-clauses (i) to (iii) of
      clause (b) of sub-section (1), the State could have then nominated under
      Section 14(3) which nomination shall have overriding effect on the
      objective of Section 14(4) since sub-section (3) begins with non obstante
      clause “Notwithstanding anything contained in this section,”. The
      obligation on the State Government to constitute the Board in accordance
E     with Section 14 keeping in view the objective under Section 14(4) was
      both right and duty of the State and any lapse therein cannot be a ground
      for superseding the Board.
             24. We may also notice the objective and purpose of the second
      proviso to Section 99 which has been inserted by Act 27 of 2013. Second
F     proviso contains an injunction that the power of the State Government
      shall not be exercised unless there is a prima facie evidence of financial
      irregularity, misconduct or violation of the provisions of the Act. The
      present is not a case of any allegation of any financial irregularity or
      misconduct on the part of the Board. The proviso is sought to be explained
G     by Shri C.S. Vaidhyanathan relying on the “violation of the provisions of
      this Act”.
            25. The word ‘violation’ is defined in the Black’s Law Dictionary
      Tenth Edition to the following effect:

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      THE STATE OF TAMIL NADU & ANR. v. K. PAZLUR                             923
          RAHMAN & ANR. [ASHOK BHUSHAN, J.]

      “An infraction or breach of the law; a transgression. The act of        A
      breaking or dishonoring the law; the contravention of a right or
      duty.”
       26. The second proviso has to be read in conjunction with the
main provision. The second proviso contains further restriction on the
power of State Government to supersede the Board, i.e., unless there is       B
prima facie evidence. There can be no dispute that prima facie evidence
of financial irregularity, misconduct has to be prima facie financial
irregularity or misconduct by the Board which is sought to be superseded.
The third expression that is “violation” of the provisions of this Act has
also to be read in the same manner that is violation of the provisions of
this Act by actions of the Board. We, thus, are also of the opinion that in   C
view of the legislative intendment as contained in second provision to
Section 99, present was not a case where State could have exercised its
power of supersession of the Board. In view of the foregoing discussion,
we are satisfied that the High Court did not commit any error in holding
supersession as contrary to law.                                              D
       27. Now, we also need to consider the submission of Shri
Vaidhyanathan that the High Court ought not to have set aside the
notification partially insofar as two elected members of the Mutawalli
category only. It is to be noted that the High Court had categorically held
that supersession order is not sustainable in law but after holding that,     E
the High Court had moulded the relief in the facts of the present case
and subsequent events which had taken place. Two writ petitions being
Writ Petition No.8377 and 9557 of 2020 which have been allowed by the
High Court were filed by Syed Ali Akbar who was elected member
from the Mutawalli category. Since, only one category petitioners were
before the High Court, it confined the relief to that category. We need       F
not dwell into the question any further since before us there is no further
challenge on behalf of the writ petitioners that supersession order ought
to have been set aside in toto. It is State which has come in the appeals
against the judgment of the High Court which has partially set aside the
notification dated 18.09.2019 for Mutawalli category only. The High Court     G
has not interfered with the fresh constitution of the Board by election
and nomination of other categories except the category under Section
14(1)(b)(iv). In view of the foregoing discussion, we, thus, upheld the
order of the High Court.

                                                                              H
924                SUPREME COURT REPORTS                      [2020] 9 S.C.R.


A            28. In result, the fresh election of two members in category under
      Section 14(1)(b)(iv) held in the year 2020 shall become non est and
      Syed Ali Akbar and Dr. Haja K. Majeed shall continue to occupy their
      office till their normal tenure of five years from 10.10.2017.
            29. All the appeals are dismissed.
B

      Ankit Gyan                                               Appeals dismissed.




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