The State Of Maharashtra vs Shaikh Mahemud

2022 INSC 395 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2784 OF 2022 (arising out of Special Leave Petition (C) No.11652 of 2021)

THE STATE OF MAHARASHTRA … APPELLANT(S)

Versus SHAIKH MAHEMUD & ANR. … RESPONDENT(S)

ORDER

Leave granted.

2. The appointment of the first respondent herein as a Member of

the Maharashtra State Board of Waqfs, by a notification dated

13.09.2019, was cancelled by a subsequent notification dated

04.03.2022, but the said cancellation was set aside by the High Court

of Judicature at Bombay as arbitrary, in a writ petition filed by the

first respondent, forcing the State of Maharashtra to come up with the

above appeal.

3. We have heard Mr. Sachin Patil, learned standing counsel for the

State of Maharashtra, Mr. Nishant R. Katneshwarkar, learned counsel

appearing for the first respondent and Mr. Siddharth Bhatnagar,

learned senior counsel appearing for the second respondent who has

been appointed in the place of the first respondent. 2

4. The notification dated 13.09.2019 issued by the Minorities

Development Department of the State of Maharashtra appointing the

first respondent as a Member of the Maharashtra State Board of Waqfs

reads as follows:

“…In exercise of the powers conferred by sub­section (9) and clause

(c) sub­section (1) of section 14 of the Waqf Act, 1995 (43 of 1995), and in supersession of all earlier notifications issued in this behalf in so far as they related to the nomination of a person amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, the Government of Maharashtra hereby appoints from the category of “who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities”, Shri Mahemud Mahebub Shaikh as a Member on the Maharashtra State Boards of Waqfs, having its headquarters at Panchakki, Aurangabad for a period of five years from the date of publication of this notification or until further orders, whichever is earlier…”

5. The relevant part of the notification dated 4.03.2020 issued by

the State, cancelling the appointment of the first respondent reads as

follows:

“…And whereas, the Government of Maharashtra considers it expedient to cancel the appointment of Shri Mahemud Mahebud Shaikh as a Member of the said Board;

Now, therefore in exercise of the powers conferred by sub­ section (9) read with clause (c) of sub­section (1) of section 14 of the Waqf Act, 1995 (43 of 1995) and of all other powers enabling it in that behalf, the Government of Maharashtra hereby cancels the appointment of Shri Mahemud Mahebud Shaikh of the said Board…”

6. The High Court, by the order impugned in this appeal, set aside

the cancellation of appointment on the ground inter alia, (i) that

Section 15 of the Waqf Act, 1995 prescribes a fixed tenure of five

years, which can be curtailed only if the member is disqualified in 3

terms of Section 16 or removed in terms of Section 20; (ii) that there is

no place for the doctrine of pleasure and such appointments cannot be

cancelled at the whims and fancies of the Government; (iii) that the

reliance placed upon the State Government upon Rule 15 of the Rules

of Business in support of their contention that the appointment of the

respondent required the approval of the Chief Minister, but as a

matter of fact such approval was not obtained, cannot have any

application to the case since the position of the Member of the State

Waqf Board cannot be equated to that of a statutory tribunal; and (iv)

that the cancellation of appointment of the first respondent was

arbitrary, warranting the interference of the High Court.

7. At the outset we should point out that the High Court was right

in holding that the post of Member of the Waqf Board cannot be

equated to that of a Member of the Tribunal and that Item No.23

under Rule 15 of the Rules of Business of the Maharashtra

Government issued in terms of Article 166 of the Constitution has no

application to the case on hand.

8. But the findings of the High Court (i) that the term of office of a

Member of the Board stipulated under Section 15 of the Waqf Act

cannot be curtailed except in the case of disqualification under

Section 16 or removal under Section 20; and (ii) that the cancellation 4

of appointment was arbitrary, are incapable of being upheld. The

reasons are not difficult to be deciphered. While Section 13 of the Act

deals with the establishment of a Board of Waqfs (now the

nomenclature is changed as Board of ‘Auqaf’ under Amendment Act 27

of 2013), Section 14 deals with the composition of the Board, election

of members and the manner of election of the Chairperson of the

Board. Broadly, the appointment of the Members of the Board shall be

by two different methods namely, (i) election from each of the electoral

colleges as stipulated in clause (b) of sub­section (1) of Section 14; and

(ii) nominations by the State Government in terms of clauses (c), (d)

and (e) of sub­section (1) of Section 14.

9. It is relevant to point out that the appointment of the first

respondent was by the method of nomination by the State Government

in terms of clause (c) of sub­section (1) of Section 14. The appointment

under both categories (election or nomination) should be by a

notification issued by the State Government and published in the

official Gazette. This is by virtue of sub­section (9) of Section 14. Sub­

section (9) of Section 14 reads as follows:­

“14. Composition of Board.— xxx xxx xxx (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette.” 5

10. It is true that Section 15 prescribes a term of office of five years

for the members of the Board, from the date of the notification issued

under Section 14(9). This Section 15 reads as follows:­

“15. Term of office. —The members of the Board shall hold office for a term of five years from the date of notification referred to in sub­section 9 of section 14.”

11. Though Section 14(9) is common to the appointment under both

categories and though Section 15 speaks about the term of office of

members appointed by a notification under Section 14(9), nomination

always stands on a slightly different footing than election. Perhaps, as

per the scheme of the Act, it may not be possible for the State

Government to breach the process of election from each of the

electoral colleges under clause (b) of sub­section (1) of Section 14, by

curtailing the term of office of such elected members. But the same

logic cannot be extended to nominated members. In other words, it

may not be possible to hold that there is no elbow space for the State

Government in the cases of nomination covered by clauses (c), (d) or

(e).

12. It must be noted that under clause (e) of sub­section (1) of

Section 14, an officer of the State Government not below the rank of

Joint Secretary to Government may be nominated to the Board. If

Section 15 is construed in the manner in which the High Court has 6

construed, such a nominated officer of the State Government may

have to be allowed to continue, even if he reaches superannuation

before completing five years of tenure. Therefore, it is not possible to

accept the view of the High Court that the term of office prescribed

under Section 15 cannot be curtailed. This is so at least in respect of

a nominated member.

13. For holding that the cancellation of appointment of the first

respondent was arbitrary, the High Court did not really have any

material. The only reason why the High court held it to be arbitrary is

that the order of cancellation of appointment did not contain any

reason and that the cancellation went against Section 15. For holding

the action of the Executive to be arbitrary, there must be a factual

basis. It did not exist in this case.

14. It was contended by the learned counsel for the first respondent

that the notification of cancellation of appointment was issued in

exercise of the powers conferred by sub­section (9) read with clause (c)

of sub­section (1) of Section 14. Since these provisions deals only with

appointment and not with removal, it was contended by the learned

counsel for the first respondent that the notification of cancellation

was not in accordance with law.

15. But the above contention loses sight of the fact that the power to 7

appoint would include the power of cancellation of appointment.

Therefore, the said contention is liable to be rejected.

16. It was next contended by the learned counsel for the first

respondent that the procedure prescribed under Section 20 of the Act

for the removal of the respondent was not followed. But this

contention is unsustainable, in view of the fact that the respondent

was not removed from the office of membership of the Waqf Board. His

appointment was cancelled by the notification impugned in the writ

petition. Therefore, Section 20 has no application to the case.

17. In view of the above, we find that the order of the High Court is

unsustainable. Therefore, the appeal is allowed and the impugned

order of the High Court is set aside. The writ petition filed by the

respondent before the High Court shall stand dismissed.

…..…………....................J (Hemant Gupta)

.…..………......................J (V. Ramasubramanian)

New Delhi April 06, 2022 8

ITEM NO.8 COURT NO.11 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 11652/2021

(Arising out of impugned final judgment and order dated 24-02-2021 in WP No. 3983/2020 passed by the High Court Of Judicature At Bombay At Aurangabad)

THE STATE OF MAHARASHTRA Petitioner(s)

VERSUS

SHAIKH MAHEMUD AND ANR. Respondent(s)

(I.R. and IA No.90225/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.90226/2021-EXEMPTION FROM FILING O.T. and IA No.90227/2021-APPLICATION FOR EXEMPTION FROM FILING ORIGINAL VAKALATNAMA/OTHER DOCUMENT) (IA No. 90227/2021 - APPLICATION FOR EXEMPTION FROM FILING ORIGINAL VAKALATNAMA/OTHER DOCUMENT)

IA No. 129111/2021 - APPLICATION FOR VACATION OF INTERIM ORDER IA No. 157872/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 152921/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 159950/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 90225/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 90226/2021 - EXEMPTION FROM FILING O.T. IA No. 152925/2021 - EXEMPTION FROM FILING O.T. IA No. 170308/2021 - EXEMPTION FROM FILING O.T. IA No. 159952/2021 - EXEMPTION FROM FILING O.T. IA No. 112764/2021 - EXEMPTION FROM FILING O.T. IA No. 157873/2021 - EXEMPTION FROM FILING O.T. IA No. 152922/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 5677/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 159951/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 112763/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 06-04-2022 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

For Petitioner(s) Mr. Sachin Patil, AOR

For Respondent(s) Mr. Nishant R. Katneshwarkar, Adv.

Mr. Ravindra Keshavrao Adsure, AOR 9

Mr. Siddharth Bhatnagar, Sr. Adv.

Mr. Gaurav Nair, Adv.

Ms Pranati Bhatnagar, Adv.

Ms. Anne Mathew, AOR Mr. Aaditya S., Adv.

Ms. Pracheta Kar, Adv.

Mr. Nadeem Afroz, Adv.

UPON hearing the counsel the Court made the following O R D E R

Heard the learned counsel for the parties.

Arguments concluded.

Leave granted.

Appeal is allowed.

Reasons to follow.

(JAYANT KUMAR ARORA) (RENU BALA GAMBHIR) COURT MASTER COURT MASTER 10

ITEM NO.8 COURT NO.11 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 11652/2021

(Arising out of impugned final judgment and order dated 24-02-2021 in WP No. 3983/2020 passed by the High Court Of Judicature At Bombay At Aurangabad)

THE STATE OF MAHARASHTRA Petitioner(s)

VERSUS

SHAIKH MAHEMUD AND ANR. Respondent(s)

(I.R. and IA No.90225/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.90226/2021-EXEMPTION FROM FILING O.T. and IA No.90227/2021-APPLICATION FOR EXEMPTION FROM FILING ORIGINAL VAKALATNAMA/OTHER DOCUMENT) (IA No. 90227/2021 - APPLICATION FOR EXEMPTION FROM FILING ORIGINAL VAKALATNAMA/OTHER DOCUMENT)

IA No. 129111/2021 - APPLICATION FOR VACATION OF INTERIM ORDER IA No. 157872/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 152921/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 159950/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 90225/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 90226/2021 - EXEMPTION FROM FILING O.T. IA No. 152925/2021 - EXEMPTION FROM FILING O.T. IA No. 170308/2021 - EXEMPTION FROM FILING O.T. IA No. 159952/2021 - EXEMPTION FROM FILING O.T. IA No. 112764/2021 - EXEMPTION FROM FILING O.T. IA No. 157873/2021 - EXEMPTION FROM FILING O.T. IA No. 152922/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 5677/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 159951/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 112763/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

Date : 06-04-2022 This matter was called on for hearing today.

[THE REASONED ORDER IS UPLOADED ON 09.04.2022]

CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE V. RAMASUBRAMANIAN

For Petitioner(s) Mr. Sachin Patil, AOR 11

For Respondent(s) Mr. Nishant R. Katneshwarkar, Adv.

Mr. Ravindra Keshavrao Adsure, AOR

Mr. Siddharth Bhatnagar, Sr. Adv.

Mr. Gaurav Nair, Adv.

Ms Pranati Bhatnagar, Adv.

Ms. Anne Mathew, AOR Mr. Aaditya S., Adv.

Ms. Pracheta Kar, Adv.

Mr. Nadeem Afroz, Adv.

UPON hearing the counsel the Court made the following O R D E R

On 06.04.2022, the following order was passed :-

“Heard the learned counsel for the parties. Arguments concluded.

Leave granted.

Appeal is allowed.

Reasons to follow.”

The reasoned order is being uploaded today i.e. on 09.04.2022.

Pending interlocutory application(s), if any, is/are disposed

of.

(JAYANT KUMAR ARORA) (RENU BALA GAMBHIR) COURT MASTER COURT MASTER

(Signed order is placed on the file)