Jyotirmay Bhattacharya, J. - (1.) THE legality and/or validity of the notification issued by the Lt. Governor, A & N Islands on 2nd June, 2010 whereby five persons were appointed as members of the Wakf Board in the Union Territory of A & N Islands with immediate effect, has been challenged by the petitioner herein in this writ petition.
(2.) THE petitioner claims that since the petitioner represents an eminent Muslim organization, the petitioner has every right to file the instant writ petition. THE petitioner has complained that the selection of members of the Wakf Board was made by the concerned authority arbitrarily and in violation of provisions contained in Articles 14, 15, 19 and 21 of the Constitution of India. THE petitioner further complains that the persons who were appointed as members of the said Board were not selected in accordance with the provisions of Wakf Act, 1995. Under such circumstances, the petitioner has filed this writ petition praying for quashing of the impugned notification. This writ petition was disposed of earlier at the Motion stage by Justice S.P. Talukdar, as His Lordship then was, on 15th June, 2010. After considering the legality and/or validity of the appointment of each member of the Wakf Board very meticulously His Lordship rejected this writ petition. However, the said order was not maintained in appeal as the Hon"ble Appeal Court, while considering the Appeal being MAT No.044 of 2010, was of the view that the dispute involved in this writ petition was required to be considered after exchange of affidavits between the parties. Accordingly, the order which was impugned in the said appeal was set aside. The parties were given liberty to file their respective affidavits in this writ petition. Pursuant to the aforesaid directions, passed in the said appeal, affidavits have been exchanged between the parties and thereafter this matter was placed for hearing before this Court for consideration afresh. Let me now consider the merit of this writ petition afresh in the light of the pleadings of the respective parties in their affidavits.
(3.) BEFORE considering the legality of such appointment of the members in the Wakf Board, this Court wants to consider the locus of the petitioner to maintain this writ petition. The petitioner has not stated in the writ petition that he was aspirant for appointment as a member of the said Board from any of the categories as mentioned in Section 14 of the Wakf Act, 1995. The petitioner has also not claimed that though he had the right to be considered for such appointment as a member of the said Board but he was ignored. He simply stated in the writ petition that he has right to maintain the writ petition as he represents an eminent Muslim organization. In my considered view this solitary statement made by the petitioner in the writ petition, is not sufficient enough to establish his locus to maintain the writ petition. Unless the petitioner establishes that he was aspirant for such appointment and he was not considered though he was an eligible candidate for such appointment, his right to challenge the legality of appointment of the members in the Wakf Board, cannot be held to have matured, particularly when this writ petition was not filed in the nature of Public Interest Litigation. Thus, this Court holds that the petitioner has failed to establish his locus to maintain this writ petition. Let me now consider the merit of this writ petition with regard to the challenge regarding the legality of appointment of the members of the said Board in the light of the provision contained in Section 14 of the Wakf Act, 1995. For convenient understanding of the problem involved in this writ petition, this Court feels that Section 14 of the said Act should be set out hereunder. Accordingly, the said provision is quoted:- "14. Composition of Board.___(1) The Board for a State and the Union territory of Delhi shall consist of__ (a) a Chairperson; (b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of__ (i) Muslim Members of Parliament from the State or, as the case may be, the Union territory of Delhi, (ii) Muslim Members of the State Legislature, (iii) Muslim Members of the Bar Council of the State, and (iv) mutawallis of the wakfs having an annual income of rupees one lakh and above; (c) one and not more than two members to be nominated by the State Government representing eminent Muslim organizations; (d) one and not more than two members to be nominated by the State Government, each from recognized scholars in Islamic Theology; (e) an officer of the State Government not below the rank of Deputy Secretary. (2) Election of the members specified in clause (b) of subsection (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed: Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further that where there are no Muslim Members in any of the categories mentioned in sub-clause (i) to (iii) of clause (b) of sub-section (1), the ex-Muslim Members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college. (3) Notwithstanding anything contained in this section, where the State Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of subsection (1), the State Government may nominate such persons as the members of the Board as it deems fit. (4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under sub-section (3). (5) Where there are Shia wakfs but no separate Shia Wakfs Board exists, at least one of the members from the categories listed in sub-section (1), shall be a Shia Muslim. (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia wakfs and Sunni wakfs and 6 Sunni wakfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. (7) In the case of the Union Territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in sub-section(1): Provided that there shall be one mutawalli as the member of the Board. (8) Whenever the Board is constituted or re-constituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette." Since this Court is presently dealing with this particular problem with reference to appointment of the members in the Wakf Board in A & N Islands, this Court holds that Subsection( 7) of Section 14 of the said Act is relevant for the present purpose. Section 14(7) of the said Act says that in the case of the Union Territory other than Delhi, the Board shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in sub-section(1): Provided that there shall be one mutawalli as the member of the Board. ;