- (1.) THIS is an application under Section 226 of the Constitution. The applicant All India Shia conference is a registered Society under the Societies Registration Act 21 of 1860. It is a representative body of the Shias of India. It has been given representation on the Shia Central waqf Board, formed under the U. P. Muslim Waqfs Act 13 of 1936. That Act created two bodies, the Shia Central Waqf Board and the Sunni Central Waqf Board to look after and manage Shia and Sunni Waqfs respectively. Section 8 provided for the constitution of the Shia Central Board which shall consist of (i) five members to be elected in the manner prescribed by the Shia members of the local legislature; (ii) one member to be elected in the manner prescribed by the Executive Committee of the All india Shia Conference; (iii) one member to be elected in the manner prescribed by the Board of Trustees of the Shia college, Lucknow; (iv) three members to be co-opted by the above seven members from persons whom they regard as ulemas; and (v) the President, if he is not one of the above ten members.
(2.) SECTION 9 then provided: " (1) If at any election of members of a Central Board the full number of five members is not elected by the local legislature, the deficiency shall be made up by election of the requisite number of members by the Provincial Muslim Educational Conference in the case of Sunni Central Board, and by the Executive Committee of the All India Shia conference in the case of Shia Central Board. In case of the failure of the Provincial Muslim educational Conference or the All-India Shia Conference to make up the deficiency, the same shall be made up by nomination by the State Government. " Section 12 then went on to say "after the formation of legislative bodies under the Government of India Act, 1935, the five members of the local legislature referred to in Sections 7 and 8 shall be elected as follows: (i) four members by the Sunni or Shia members as the case may be, of the Provincial Legislative assembly. (ii) one member by the Sunni or Shia members, as the case may be, of the Provincial Legislative council. "
(3.) IT will be observed that Section 8 (1) (i) directed five members to be elected by the Shia members of the local Legislature not necessarily from amongst themselves, but in Section 12 the five members referred to in Section 8 were described as members of the local Legislature. There was, therefore, an ambiguity and a certain amount of conflict between Section 8 (1) (i) and section 12. After the formation of the first Shia Central Waqf Board the practice in the past is alleged to have been that whenever there were less than five Shia members of the local legislature the deficiency was made up by calling upon the All India Shia Conference to elect the requisite number of members under Section 9. But in the middle of July 1952, in a fresh election to the Shia Central Waqf Board when the Shia members of the State Legislature were only three, namely Syed Taqi Hadi, Syed Mohammad wasi and Syed Aii Zaheer, opposite parties Nos. 1 to 3, they elected besides themselves two more members, namely Raja Syed Ahmad Mehdi and Nawab Hamid Hussain, opposite parties nos. 4 and 5, who were not members of the Legislature. The applicant's grievance is that this could not be done under the law by the opposite parties Nos. 1 to 3, that since the members of the local Legislature were only three, the applicant had the right to elect the remaining two members and that this right could not be taken away by the opposite parties Nos. 1 to 3. The applicant, therefore, moved this Court by means of the present writ petition on 1-8-1952, to direct the opposite parties Nos. 4 and 5 not to participate in the proceedings of the Shia Central waqf Board as its members and further to direct opposite parties Nos. 1 to 3 to cause the deficiency in the membership of the Shia Central Waqf Board to be made up by the applicant as contemplated by Section 9 of the Act.;