CASE COMMENT

CASE COMMENT ON AQUILUR RAHMAN V. STATE OF JHARKHAND, 2017 

INTRODUCTION

Waqf means dedication in perpetuity of some specific property for a pious purpose or succession of pious purposes. According to the Waqf Act 1954, it means the permanent dedication by a person professing Islam, of any movable or immovable property recognized by the Muslim Law as pious, religious or charitable.

The case discussed below pertains to the topic of ‘Waqf Board’.

FACTS

The factual background of the case emerges from a writ petition which stated that the Anjuman Islamia Waqf is a registered body governed by its own rules and regulations.

According to the bye-laws of this Waqf, the election of the executive committee was to be held at the interval of every three years. The present committee expired in 2016 and after this amendments were made in the bye-laws by the President of the committee. Further it was directed that the election of the new committee has to be conducted in accordance with the old bye-laws and completed in 2016 itself. Due to default of not being able to verify the voter’s list, these elections could not be conducted. As a result of which the appointed Chief Election Convener resigned from the post and a new election convener was appointed consequently.

It was then decided that the elections will be held according to the old bye-laws and the amendment brought earlier will stand invalid hence a new voters list started getting scrutinized. Therefore, a new schedule was fixed and filling of the application form for membership was also extended.

During all this while, new complaints were arising and scarcity of time arose in order to resolve these disputes. It was decided that unless the voters list is not verified, it was neither feasible nor proper to conduct the elections. Keeping in view all these problems arising, it was discussed in a meeting held in 2017 that different organizations have raised objections regarding the election of the said Waqf on the voter list and other issues which were not being duly verified.

It was also determined that 4 members of the “Nigrani Committee” were constituted to monitor the election process to ensure that the same is conducted as per its bye-laws. Further, the election convener was also directed to constitute 5 members in “Election Aakshep Committee” in accordance with Section 21 of the bye-laws of Anjuman Islamia, Ranchi to dispose of all the complaints pertaining to election.

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After much havoc being caused, it was observed that there was no managing committee authorized to look after the affairs of the Waqf property. The Board appointed members and passed the order of conducting elections in the next 3 months. It was then ordered to the complainant to conduct elections without any verification of the voters list. Owing to the lack of coordination between the committee and the convener, a decision was made to ensure transparency in the voter list and complete the election process within one month after the end of Muharram on preparation of voter list and completion of all the required procedure hence 5 November 2017 was fixed as the date of polling.

MAIN LEGAL ISSUES

The following issues have been raised in the writ petition:-

  • The Anjuman Islamia Election 2016-17 which has been announced by the press conference dated 22.10.2017 and the date of polling has been fixed as 5 November 2017, is liable to be quashed or not.
  • The entire terms of election process 2016 of Waqf and directing the Board to supersede the Adhoc committee of Waqf and to take charge till the constitution of new Committee, is liable to be quashed or not.
  • The appointment of the Election Convener of the Waqf by the Adhoc Committee, is liable to be quashed or not.
  • The fake voter list and for a direction to the respondents to prepare fresh voter list and to conduct the election in fair and transparent manner, is liable to be quashed or not.
  • To constitute a high level committee under the provisions 3 of the bye-laws of the said waqf who will look after the dispute of voter list.

ARGUMENTS ADVANCED

  • PETITIONER

The Counsel for the Petitioner humbly submitted that the new voter list includes fake voters and names of many genuine voters have also been deleted. There is no power under the law to create the post of election convener. It is the deemed suppression of the Adhoc committee under section 67(2) of the Act 1995 and the said committee may not be allowed to conduct the election.

The election will not be held without the scrutiny of the voter list but the press release was communicated arbitrarily and announced the election. The Waqf Tribunal constituted under the Act 1995 is not functional due to lack of its member and infrastructure hence the write petition is maintainable.

  • RESPONDENT

The counsel submitted that there is no locus to file the writ petition as is neither the member of the General Body nor a voter of the Waqf. The petitioner had the intention to again grab the post of President of the Committee and as such he has leveled false allegation against the Adhoc managing committee and the respondent. But in reality it is the petitioner due to whose fault the election is getting delayed. No violation of the bye-laws has been made by the election convener in conducting the election.

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In addition to all this, the respondent is a man of integrity and an experienced person and as such there is no illegality in appointing him as election convener. Emphasis was laid on the judgment of Hon’ble Supreme Court in the case of Shaji K. Joseph v. Viswanth & Others[1]submitting that it is a settled law that the election process must start and the same should not be interfered with.

The allegations leveled against the respondent are baseless because as per Section 32 of the Waqf Act 1995 in which the Board is to ensure that the Waqf under its superintendence are properly maintained, controlled and administered and income thereof is duly applied to the object and the purpose for which such Waqf(s) are created or intended. Owing to the facts of the case, the Board took sincereefforts to conduct elections of the Waqf.

JUDGMENT

CORAM: Hon’ble Rajesh Shankar J.

For better understanding of the judgment, reliance was paid to the appropriate provisions of the Waqf Act 1995 such as Section 32 – Powers and functions of the Board; Section 67 – Supervision and suppression of committee of Management; Section 83 – Waqf Tribunal.

“11. All disputes pertaining to Waqf should be filed before the Waqf Tribunal constituted under Section 83 of the Act 1995 and at the first instance such dispute should not be entertained by the writ petition in exercised of powers under Article 226 of the Constitution of India. The High Courts in India are already tottering and reeling under the burden of massive arrears which have flooded the dockets of the Court, and if any liberal approach is taken to entertain any such dispute, the same will further burden the writ courts in resolving the inter-se-dispute of different factions of the Waqf’s Committees.”

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The Tribunal was not functioning in the State of Jharkhand due to lack of infrastructure hence the election of Waqf is pending since long due to tussle between two factions for their supremacy putting the affairs of the waqf in jeopardy.

“12. The court paid reliance on the case of Election Commission of India through Secretary v. Ashok Kumar & Ors.[2]From where it emerged that the High Court may interfere in such matters, if the said interference is to sub-serve the election, election process and not to interrupt or interfere with the election or the election process. Intervention of the writ court is required when the court’s assistance is sought merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein or to preserve a vital piece of evidence, if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.”

The main dispute in this case has been relating to the preparation of the proper voter list which if conducted without verifying the voter list will create law and order problem. In terms of provisions of Section 32 of the Act 1995, the Board has the power to supervise the affairs of the Waqf under its control.

The respondent has not been cooperative enough in handing over the documents to the committee for its proper verification and scrutiny and also in discharging his duty and assignment. Therefore, a new election convener is required to be appointed to maintain the fairness in the election process who should be a person of impartial image.

Sincere steps were to be taken to improvise the infrastructure of the Waqf Tribunal so as to enable it to discharge its statutory function in terms with the provisions of the Waqf Act 1995 in future.

 

[1] (2016) 4 SCC 429

[2] (2000) 8 SCC 216

Author: Shubhi Dhiman,
School of Law UPES Dehradun; 3rd year

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