Alhaj N. Noor Basha and Others vs State of Karnataka and Others

Anand Byrareddy, J.—These petitions are heard and disposed of by this common order as the challenge is to the nomination of the fifth respondent in writ petition in WP 48695/2014 to the Karnataka State Board of Wakfs.

The petitioner in WP 48695/2014 was said to have been notified as a member of the respondent No. 3 Karnataka State Wakf Board by a notification dated 20.8.2011, issued by respondent No. 1 by virtue of the power conferred under section 14(9) of the Wakf Act, 1995 (Hereinafter referred to as the ''Act'', for brevity) and under Rule 32 of the Karnataka Wakf Rules, 1997 (Hereinafter referred to as the ''Rules'', for brevity). He was nominated from an eminent Muslim organization.

It is stated that the nomination of the petitioner was challenged by respondent No. 4 along with one S. Moinuddin before this court in WP 43392-393/2011 on the ground that the two institutions, which he represented, were not eminent Muslim organizations.

This court, by its order dated 8.1.2014, was pleased to quash the nomination of the petitioner on the ground that his name for the said post was considered casually, without addressing whether the required qualification stipulated under the Act was satisfied. This court has also observed that the Act stood amended by the Amendment Act, 2013 wherein clauses (iii)(c) to (e) under Sub-section (1) of Section 14 were substituted. The Amendment Act had also received the assent of the President on 20.9.2013. Therefore, the State was directed to consider the nomination of the petitioner in accordance with the Amendment Act, 2013 within four weeks from the date of the order. Aggrieved by the said order, the petitioner had carried the same by way of appeals before a Division Bench of this Court in WA 238/2014 and WA 296/2014. The Division Bench had modified the order of the learned Single Judge, affirming that portion of the order of the learned Single Judge in so far as it related to setting aside the nomination of the petitioner and directed that reconsideration shall be without reference to the Amendment Act, 2013 and that it should be on the basis of the qualifications stipulated under the unamended Act. It is pursuant to this, that the State Government was required to consider the petitioner''s case vis-�-vis other candidates, who were in the race for nomination as members of the Board.

It is the case of the petitioner that respondent No. 2 had so far not considered the representation dated 25.6.2014 of the petitioner bringing to the attention of the said respondent the views expressed by this court and the manner in which nomination ought to be considered. Though the petitioner was always ready and willing to produce relevant documents to substantiate his case for such nomination, he was never called upon to furnish any such particulars. However, he was shocked to notice that without considering his representation and without adhering to the directions issued by the learned Single Judge or by the Division Bench, had thought it fit to appoint respondent No. 5 as a member of respondent No. 3 - Board, by a notification dated 12.9.2014. It is this action of the respondent which is sought to be questioned in the present petition.

Similarly in the connected petition, in WP 48669/2014, the challenge is made to the manner in which respondent No. 5 was nominated as a member of the Board.

It was particularly highlighted by the learned Senior Advocate, Shri Jayakumar S Patil, appearing for the Counsel for the petitioners that there was no indication of the respondent No. 5 being an aspirant for the nomination and that to his knowledge, there was no application or representation made by Khalid Ahmed, respondent No. 5, till the matter reached the Minister for Municipalities and Local Bodies, Public Enterprises, Minorities Welfare and Wakf Department and it is only thereafter that there has been a comparison of the relative merit of respondent No. 5 vis-�-vis the petitioner and two others. It is therefore not clear as to the application of mind in addressing the merit of each candidate with reference to the institutions they had represented or in which they were office bearers or had functioned in other capacities.

It is on a grave doubt as to there being manipulation of the record to accommodate respondent No. 5, that the learned Senior advocate had requested that the record be called for. Indeed, the record has been produced by the State Government which makes interesting reading.

It is noticed that, as rightly pointed out by the learned Senior Advocate, the name of respondent No. 5 is for the first time referred to by the Minister in Note Nos. 16 to 23 of the file, which are reproduced hereunder for ready reference:

"16. Perused para 4 and 8-12 n/f. In para 4 of the details about Sri Syed Shahid Ahmed has been perused and examined. Likewise, the information regarding Sri Noor Basha of Bellary and Sri Khalid Ahmed from Bangalore has been examined in detail as under:--

Sri. Syed Shahid Ahmed who has furnished his Bio-data as detailed in para-4 has not furnished any documentary proof to support that he belong to the institutions to which he has indicated. Therefore, his candidature for nomination under the category of "Eminent Muslim Organisation" cannot be considered.

With regard to the testimonials furnished by Mr. N. Noor Basha to the Hon''ble High Court, it is revealed that Anwarul Haq Minority Education Society (R), Bellary, of which Mr. Noor Basha is the Vice-President, is not a eminent organization as certified by Block Education Officer, Public Instructions Department, Bellary East Zone. Secondly Ghousia Educational Minority Society (R), Bellary, also seems to be not an eminent organization. As such his candidature for nomination under the category of "Eminent Muslim Organisation" cannot be considered.

Regarding the information furnished by Mr. Khalid Ahmed, Bangalore, it was verified from the District Wakf Officer of Kolar about the credentials of Noori Educational and Cultural Trust (R), K.G.F. It was revealed by the Wakf Officer that Noori Educational and Cultural Trust is a renowned Educational and Cultural Trust which is managing General Nursing, B.Sc. Nursing, M.Sc. Nursing, B.Ed., D.Ed., Colleges, besides imparting education in job oriented courses and thereby this institution is considered as a eminent Muslim organization.

Besides the other institutions namely Al-Iqra Charitable Trust at Davanagere and Tippu Welfare Trust at Shidlaghatta, Kolar District, to which Sri. Khalid Ahmed is associated are also the Institutions which are extending educational and social services to the Muslim Community.

Incidentally, Sri. Khalid Ahmed was earlier nominated as Member of Karnataka State Board of Wakfs under the category of eminent Muslim Organisation and later on in his second term he was elected as Member of the Karnataka State Board of Wakfs under the category of Muthavallies of Wakfs under the provisions of Wakf Act 1995. Thereby he has served as a Member for 5 years and as a Chairman for another 5 years. As such continuously he has served for 2 terms as Member and Chairman of Karnataka State Board of Wakfs.

In view of Mr. Khalid Ahmed being a Trustees and office bearer of various eminent Muslim organizations and also possess rich experience as a Member and Chairman of Karnataka State Board of Wakfs, his candidature for nomination as Member under the category of "Eminent Muslim Organisation" would be more appropriate and useful for the functioning of Karnataka State Board of Wakfs. Therefore, his candidature is considered for nomination as Member of Karnataka State Board of Wakfs under Section 21 of Wakf Act, 1995.

I have discussed with the Hon''ble Chief Minister regarding the above nomination under the "Eminent Muslim Organisation" and he has directed to issue Notification nominating Mr. Khalid Ahmed under "Eminent Muslim Organisation" immediately. Hence, notification be issued accordingly."

It may be noticed that the Minister has listed in a tabular form the institutions said to have been represented by the present petitioner in WP 48695/2014 and the institutions said to have been represented by the fifth respondent. He has then proceeded to eliminate one Syed Shahid Ahmed, on the footing that he had not produced any documentary proof in support of his bio-data. And in so far as the petitioner is concerned, there is a passing reference to the institutions that he may have represented and it is expressed that they may not be eminent Muslim organizations. The Minister has thereafter proceeded to appreciate the several organizations which the fifth respondent has represented and has also opined that the Chief Minister of the State has also been consulted and that he was in favour of the nomination of the fifth respondent and has accordingly issued directions to issue a Notification nominating the fifth respondent. This, the learned Senior Advocate would point out, appears to be contrived. In that, note Nos. 1 to 15 are found to be made on paper, which is different from the paper containing note Nos. 16 to 23 of the Minister. Therefore, there has been a concerted effort to accommodate respondent No. 5 and to eliminate the petitioner and others.

It is also pointed out that there is a curious history of the relationship between the fifth respondent and the Minister concerned. On a previous occasion, when there was a challenge to such nomination of the very respondent No. 5, in a public interest petition, a Division Bench of this court while considering the nomination of the very fifth respondent in WP 34002-003/1998, had noticed that the very fifth respondent had claimed to represent certain Muslim Organisations and it was seen from the record that was perused in those proceedings, that the present respondent No. 6, (in WP 48695/2014), who also coincidentally happens to be the Minister concerned presently, and was the respondent in that petition (WP 34002-003/1998), had manipulated the record to indicate that respondent No. 5 herein, was an office-bearer of certain organizations. It was on that unpleasant note that the Division Bench had struck down the appointment of the said fifth respondent. It was specifically observed by the Division Bench while referring to such entries made to benefit the fifth respondent, who was the third respondent in the said petition before the Division Bench, as follows:--

"A perusal of the proceedings book would give a prima facie impression that the resolutions were written simultaneously. The writings seem to be fresh. But, it is not possible for us to come to a definite conclusion on this factual aspect. Suffice it to observe that the circumstances pointed out by the petitioners together with state of Minute Book would create a reasonable doubt whether the 3rd respondent was in fact nominated either as a Trustee or Vice-President on the relevant dates. We have already pointed out that the Government, before appointing 3rd respondent on the State Board of Wakfs, did not cause any verification to be made as regards the fulfillment of criteria in clause (c) of Section 14(1). In other words, there was no material before the Government to come to the conclusion that the 3rd respondent represented the Trust. In these circumstances, the Court cannot uphold the appointment of 3rd respondent. The nomination and appointment of 3rd respondent as Member of State Board of Wakfs is therefore set aside and the State Government is directed to take a decision afresh on the question whether the 3rd respondent had become a Trustee by virtue of the alleged resolution dated 19.1.1996."

However, the respondent therein appears to have challenged the finding of the Division Bench before the Supreme Court in a Special Leave Petition. But during the pendency of the Special Leave Petition, the term for which such nomination was sought, had expired and the petition stood dismissed as having become infructuous. In other words, the prima face finding of the Division Bench of this court of mischief played by the fifth respondent and the sixth respondent herein is on record and does not stand effaced by any challenge before the Supreme Court.

In that view of the matter and having regard to the significant circumstance that even as on date, the State Government has not prescribed any bench mark to consider a particular institution as an eminent Muslim organization, the arbitrary opinion expressed either by the District Wakf Officer or the Block Education Officer, as is the case in the present scenario, where the minister has referred to such opinions expressed by those officers to either decide whether the organization is an eminent Muslim Organization or not, is not a welcome practice. In fact, a learned Single Judge of this court had already observed that the State would do well to maintain a list of organizations, which could be considered as eminent Muslim organisations and the principles on which such institutions are characterized as eminent Muslim Organisations be spelt out, in order that such other organisations could be added to the list and also to prescribe when such institutions would lose such status of being considered as eminent Muslim Organisations, in order that it can address the qualifications that are required to be met by candidates to be nominated on the Board of Wakfs. This exercise has not been carried out. Therefore, as a prelude the State Government shall first determine as to which of the Muslim Organisations in the State can be considered as eminent Muslim Organisations and the basic criteria for being adjudged as an eminent Muslim Organisation shall also be prescribed. Therefore, there would be a guideline generally to be applied while making nominations on the basis of such qualifications. Therefore, the State Government would do well to redo the process of addressing the merit of each candidate including the petitioner and others in making a nomination. It is stated at the bar that the term for the present Wakf Board would expire some time in the year 2016. Therefore, it would be necessary for the state to address the issue and nominate a merited candidate with expedition, in terms as aforesaid.

Insofar as respondent No. 5 is concerned, as already observed, this court has found his bona fides to be suspect. Though respondent No. 5 had challenged the same by way of a Special Leave Petition, the observations made by the Division Bench do not stand effaced. In that view of the matter, the State Government would have to keep the same in view in addressing whether he would stand disqualified for nomination in terms of Section 16 of the Act. Hence, his candidature shall be subject to such consideration by the State government. The State Government shall also not be influenced by the fact that the Chief Minister of the State has approved his candidature earlier. It would also be appropriate for the present Minister for the Wakf Department to recuse himself from the process of nomination if the candidature of respondent No. 5 is to be considered.

The writ petitions are allowed. The nomination of respondent No. 5 to the Board of Wakfs is quashed. The State Government is directed to carry out a fresh exercise of making a nomination in terms as aforesaid, which shall be done at the earliest, in any event, within a period of eight weeks, if not earlier, from the date of receipt of a copy of this order.