calcutta high court

Calcutta High Court: In a writ petition involving a dispute over the appointment of a member to the Board of Waqf under the Wakf Act, 1995 (the Act) and challenging the qualifications of the appointed individual and seeking remedies, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., held that the appointment is arbitrary, as the State failed to adhere to the legal provision and nominated an individual with a conflict of interest. The Court set aside and quashed the appointment and directed the State to make a fresh nomination under Section 14(1)(d) of the Act adhering to the rule of law and principles of transparency within two months.

Factual Matrix

In the instant matter, the petitioners, Shia Mohammedans actively involved in the upkeep of Shia Immambaras and graveyards in West Bengal, claimed to be “persons interested in a Waqf” under Section 3(k) of the Act, challenged the appointment of respondent 2 as a member of the Board of Waqf, alleging that he does not meet the qualification criteria for being a recognized scholar in Shia Islamic Theology as required under Section 14(1)(d) of the Act. The petitioners had previously represented their objections, but the Secretary, Ministry of Minority Affairs and Madrasah Education Department, reaffirmed the nomination of respondent 2.

Parties’ Contentions

The petitioners contended that the respondent 2 lacks qualifications to be considered a recognized scholar in Shia Islamic Theology, as he does not possess an academic degree in Theology. It was contended that the previous litigation resulted in a directive for the Secretary to reconsider the appointment, but the nomination was reiterated without addressing the petitioners’ concerns. The petitioners emphasised the importance of academic qualifications in Islamic Theology and asserted that the respondent 2 does not fulfill the basic criteria outlined in Section 14(1)(d). The petitioners, having added a Quo Warranto prayer through an amendment, argued that the question of maintainability was settled by a Co-ordinate Bench’s order. The petitioners argued that the Board membership constitutes a public office, subject to Quo Warranto, as duties of a public nature are involved.

The respondents contended that the petitioners lack locus standi to challenge the appointment, and the writ petition is not maintainable. It was contended that the composition of the Board and the purpose of the Act is for better administration of Waqf Estates, not for preaching Islam, and the qualifications are not explicitly defined. It was further contended that the respondent 2 has sufficient experience in waqf estate administration, making him a suitable nominee despite the absence of formal academic qualifications.

Moot Point

  1. Whether the appointment of respondent 2 as a member of the Board of Waqf complies with the qualification criteria specified in Section 14(1)(d) of the Act?

  2. Whether the writ petition maintainable, especially in light of the previous round of litigation and the amendments made to the petition?

Court’s Assessment

Maintainability of the Writ Petition

The Court highlighted two key observations from the previous order, emphasising the formal nature of the amendment and the dilution of the issue of locus standi in a writ of Quo Warranto. The Court emphasised the need to abide by the principles of Comity of Courts but acknowledged that the earlier order was limited to specific aspects of the case, and the petition remains maintainable. The Court held that the writ petition is maintainable, rejecting the argument that the prior order closed the chapter.

Qualifications for Waqf Board Membership

The Court examined the functions of the Waqf Board and highlighted the significant powers vested in it for the control, maintenance, and superintendence of Auqaf. The Court emphasised that the nature of functions exercised by the Waqf Board members constitutes a public duty and is subject to judicial scrutiny. The Court observed that the appointment of each member is justiciable due to the significant powers vested in the Board concerning waqf properties and related matters.

Compliance with Section 14(1)(d)

The Court emphasised the specific criteria laid down in Section 14(1)(d) for the nomination of recognized scholars in Shia Islamic Theology. The Court noted that the State’s reliance on administrative experience alone was misplaced, as other clauses of Section 14(1) already covered appointments based on administrative expertise. The Court highlighted the conflict of interest arising from respondent 2’s involvement in the administration of waqf estates, making him unsuitable for the position. The Court considered the lack of evidence regarding respondent 2’s recognition as a scholar in Shia Islamic Theology as a crucial flaw in the appointment process. The Court found the appointment of Respondent 2 to be flawed.

The Court held that the nomination of respondent 2 as a recognized scholar of Shia Islamic Theology under Section 14(1)(d) of the Waqf Act was arbitrary and against the law. The court set aside the appointment, quashed relevant orders, and directed the authorities to undertake a fresh nomination adhering to the law and principles outlined in the judgment.

Court’s Decision

The Court allowed the writ petition, setting aside the appointment of respondent 2 and directed the authorities to make a fresh nomination within two months, considering the observations and principles outlined in the judgment. The operation of the order was stayed for three weeks from the date of the decision.

[Syed Haider Hassan Kazimi v. State of W.B., 2024 SCC OnLine Cal 393, order dated 17-01-2024]

*Judgment by Justice Sabyasachi Bhattacharyya

Advocates who appeared in this case :

Mr. Rauf Rahim, Mr. Sayantan Bose, Mr. Ali Asghar Rahim, Mr. Sattik Rout, Counsel for the Petitioners

Mr. T.M. Siddiqui, Mr. Suddhadev Adak, Counsel for the State

Mr. Arif Ali, Ms. Ujjaini Chatterjee, Mr. Yusuf Ali Mirza, Counsel for the Respondent 2

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