SYED JAMEEL AHMED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Though the petition is initially filed for a writ of Quowarranto and also for a Writ of Mandamus, the learned counsel for the petitioners, on instructions of the petitioners, does not press the petition in so far as the Writ of Quo-warranto is concerned and restricts the claim in the present petition only in so far as prayer clauses (C) and (D) are concerned.

(2.) Facts in nutshell, giving rise to the present petition are as under :-In exercise of powers conferred by subclauses (i) to (iii) of clause (b) and clause (c)of sub-section 1 read with sub-section (3) of section 14 of the Wakf Act, 1995 (hereinafter referred to as "the said Act" for the sake of brevity) the Maharashtra State Board of Wakf was constituted by the respondent No. 1 herein, vide notification dated 4/1/2002. It appears that on the said Board, Shri. Mohammad Abdul Aziz was appointed as chairman, one Shri. Dhature Hafiz Hussain, was appointed as member of the State legislature, One Shri. Harun Aadam Solkar was appointed as a representative of the Bar council. One Shri. Chand Pasha Inamdar was appointed as a person representing the eminent muslim Organization. Shri. Janab Ibrahimbhai izuddin and Shri. Maulana Mohammad assadulla were appointed as Scholars in islamic Theology. It appears that subsequently one Shri. Ahmadulla Usmanullah Pathan was appointed as representative of the Bar Council vide notification dated 27/7/2006 and one Shri. Shah Tarik Anwar was appointed as a member of Parliament from the State vide notification dated 27/9/2006. It also appears to be the undisputed position that all the aforesaid members except shri. A. U. Pathan and Shri. Tarik Anwar ceased to hold their office on various dates between 18th May, 2005 to 16th August, 2007 either on account of their resignation or end of the tenure. It thus appears to be a undisputed position that after 16th August, 2007, the Board consisted of only 2 members namely, Shri. A. U. Pathan and Shri. Shah Tarik Anwar. It appears that, subsequently, vide notification dated 4th September, 2008, the State government has nominated the respondent nos. 4 to 8 herein alongwith one Shri. Maulana gulam Vastanwi and Smt. Shahin Sayyad kadri, Deputy Secretary Minorities development Department, Mantralaya, mumbai, on the said Board.

(3.) Shri. Shah, the learned Senior counsel who appears for the respondent Nos. 1 and 2 and Shri. M. Shoeb Alam, learned counsel for the respondent No. 6, vehemently opposed the petition. The contention advanced on behalf of the respondents is that the scope of judicial review of an executive action, while exercising jurisdiction under Article 226 of the constitution is very limited. It is submitted that if it is found that the power exercised by the state is permissible within the limitations as prescribed by the Statute, then it is not permissible for this court to sit in an appeal over the decision of the decision maker. It is submitted that only if it is found that the decision making process is so unreasonable or so irrational, as has been commonly known as "wednesbury's unreasonableness", then only it would be permissible for this court to exercise its powers of judicial review. It is the further contention of the learned counsel for the respondents that this court, while exercising powers of judicial review under Article 226 of the Constitution does not sit in appeal over the decision of the decision maker. It is submitted that powers are only restricted to examine as to whether the process of the decision maker has been fair, reasonable, just and proper. It is further submitted that it is also equally not permissible for this court to take into consideration the reasons which weighed with the decision maker in taking the decision. It is also submitted that if it is found that the decision which has been taken is within the limits of the statute, which empowers the decision maker to take the decision, then no interference is permitted. Shri. M. Shoeb Alam learned counsel submits that power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. He further submits that it is also not permissible for this court to upset the decision of the decision maker on the ground that it finds its view to be more probable than that of the decision maker. The learned counsel further submits since the statutory provision under section 14 (3) empowers the State Government to exercise the powers on it being satisfied regarding the necessity to exercise the said powers, it is not permissible for this court to sit in an appeal and easily come to the conclusion that the satisfaction has not been rightly arrived at. It is submitted that the presumption is in favour of the legality of the action and the person, who challenges the legality of the executive action is required to discharge the heavy burden. The learned counsel further submits that the claim of the petitioners in the present petition is barely restricted to either right to vote or contest. It is submitted that since the power to vote or contest is a statutory right, it is also subject to the statutory restrictions and as such, the petitioners cannot claim to have any fundamental right to challenge the notification. Both the learned counsel have also stressed on the issue that the pleadings are not sufficient so as to challenge the validity of the action under Section 14 (3 ). It is submitted that since there is no specific pleading as to how the exercise of power under Section 14 (3)is vitiated, it is not permissible for the petitioners to challenge the exercise of power under section 14 (3 ). The learned counsel further submits that while arriving at satisfaction as contemplated under section 14 (3), what is relevant is the eligibility and not the suitability. The learned counsel further submits that the contention that the persons nominated from sub-clauses (i) to (iii) of clause (b) of subsection (1) of Section 14 have to be from that category alone, is without substance. It is submitted that once power is exercised by the state Government under Section 14 (3), it is the absolute discretion of the State Government to appoint any eligible candidate. On merits, it is submitted by the learned special Counsel appearing for the State that the Joint Parliamentary Committee had directed the State Government to establish the wakf Board immediately, as the functioning of the Wakf Board had come to a stand-still. It is submitted that taking into consideration this aspect of the matter, the State Government had to come to a subjective satisfaction that it was necessary to do the nomination as contemplated under Section 14 (3) of the said act. It is further submitted by the learned special Counsel that the provisions of Section 14 (3) have an overriding effect over the other parts of the said Section and when power under section 14 (3) is exercised by the State government, the provisions in the other part of the statute will not come in its way. Both the learned counsel have relied on a catena of judgments of the Supreme Court, which are as under :-[1] Charan Lal Sahu Vs. Nandkishore bhatt, 1973 2 SCC 530; [2] Secretary, Indian Tea Association Vs. Ajit Kumar Barat, 2000 3 SCC 93; [3] Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel, 2006 8 SCC 200 [4] H. B. Gandhi, Excise and Taxation officer-cum-Assessing Authority Vs. Gopinath and Sons, 1992 Supp2 SCC 312; [5] Union of India Vs. K. G. Soni, 2006 6 SCC 794; [6] Syed T. A. Naqshbandi Vs. State of J. and K., 2003 9 SCC 592; [7] Swapan Kumar Pal Vs. Ashintya kumar Nayak, 2008 1 SCC 379; [8] Sterling Computers Ltd. Vs. M and N. Publications Ltd., 1993 1 SCC 445; [9] Delhi Development Authority Vs. UEE Electricals Engg. (P) Ltd., 2004 11 SCC 213; [10] M. A. Rasheed Vs. State of Kerala, 1974 2 SCC 687; [11] Dwarkadas Marfitia and Sons Vs. Board of Trustees of Port of Bombay, 1989 3 SCC 293; [12] Union of India Vs. G. M. Kokil, 1984 Supp1 SCC 196; [13] Gazi Saduddin Vs. State of maharashtra and others, 2003 7 SCC 330 ; [14] State of U. P. Vs. Johri Mal, 2004 4 SCC 714; [15] Master Marine Service Vs. Metcalfe, 2005 6 SCC 138 .