1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 35 of 2017 Federal Anjuman Islamia through their president Md. Nesar, S/o Late Abdul Rauf, R/o Dr. Fateullah Lane, Kalal Toli, Ranchi, P.O.- Church Road, P.S. Lower Bazar, Dist. Ranchi … … Petitioner Versus 1. The State of Jharkhand through the ministry of the Welfare Minority Government of Jharkhand, Project Building, P.O.Dhurwa, P.S. Jagarnathpur, Dist.- Ranchi 2.The Secretary, Ministry of the Welfare Minority, Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, Dist. Ranchi 3.Jharkhand State Sunni Wakf Board, through its Chairman having registered office at Audrey House, P.O. Ranchi University, P.S. Gonda, Dist. Ranchi 4.The Chief Executive Officer, Jharkhand State Sunni Wakf Board, Ranchi, Audrey House, P.O. Ranchi University, P.S. Gonda, Dist. Ranchi 5.The Deputy Commissioner, Ranchi, Office at Collectariat Building Kutchery Chowk, P.O. Kutchery, P.S. Kotwali, Dist. Ranchi 6.The S.D.O. Sadar, Ranchi Office at Collectariat Building Kutchery Chowk, P.O. Kutchery, P.S. Kotwali, Dist. Ranchi 7.The L.R.D.C. Ranchi, Office at Collectariat Building Kutchery Chowk, P.O. Kutchery, P.S. Kotwali, Dist. Ranchi 8.The President (Sri Ibrar Ahmad, S/o Late Md. Salimuddin), Anjuman Islamia, Ranchi, C/o Anjuman Plaza, Ranchi, P.O. + P.S. Lower Bazar, Dist. Ranchi 9. The Secretary, Adhoc Committee (Sri Mokhtar Ahmad, S/o Late Abdul Wahid), Anjuman Islamia, Ranchi, C/o Anjuman Plaza, Ranchi, P.O. +P.S.- Lower Bazar, Dist. Ranchi 10. The Chief Convener, (Sri Hasib Akhtar, S/o Md. Mohiusddin Ahmad) Anjuman Islamia, Ranchi, C/o Anjuman Plaza, Ranchi, P.O. + P.S. Lower Bazar, Dist. Ranchi … ... … … Respondents With W.P. (C) No. 6126 of 2017 Aquilur Rahman S/o Late Jamilur Rahman R/o nazir ali lane, church Road, P.O. + P.S. Lower Bazar, District-Ranchi … … Petitioner Versus 1.State of Jharkhand through the Ministry of Minority Welfare, Government of Jharkhand Project Building, P.O.-Dhurwa, P.S. Jagarnathpur, District-Ranchi 2. Chief Executive Officer, Jharkhand State Sunni Waqf Board Ranchi, Audrey House, P.O. Ranchi University, P.S. Gonda, Dist. Ranchi 3. The Deputy Commissioner Ranchi at Collectoriat Building, Kutchery Chowk, P.O. Kutchery, P.S. Kotwali, District-Ranchi 4.SDO Sadar Ranchi at Collectariat Building Kutchery Chowk, P.O. Kutchery, P.S. Kotwali, District-Ranchi 5.Chief Election Covener, Shri Hasib Akhtar S/o Md. Mohiuddin Ahmad, Anjuman Islamiya, Ranchi at Anjuman Plaza, Ranchi P.O. + P.S. Lower Bazar, Ranchi … … Respondents 2 --- CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR --- For the Petitioners : Mr. Anil Kr. Sinha, Sr. Advocate Mr. Md. Kaisar Alam, Mr. Shabbir Ahmed Mr. Sanjay Kumar, Mr. Sanjay Kumar Pandey (In 35/17) Mr. Mokhtar Khan, Mr. Faisal Khan, Mr. Abdullah, Mr.Vishal Kumar Rai (In 6126/17) For the Respondents-State : Mr. Atanu Banerjee, G.A. J.C. to A.G. For the Respondent nos. 3&4 Mr. Afaque Ahmed, (In 35/17) For the Respondent no. 2 Mr. Afaque Ahmed, (In 6126/17) For the respondent nos. 8&9 Mr. Indrajit Sinha, Advocate For the Respondent no. 10 : Mr. Delip Jerath, Mr. Amritansh Vats Mr. Gaurav Raj, Advocates C.A.V. On 25/11/2017 Pronounced On 13th December 2017 --- Rajesh Shankar, J.
Both these writ petitions have been filed with the following prayers:- (i) For quashing 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 5th November 2017. (ii) For quashing of the letter no. 309 dated 20.10.2016 and letter no. W.B. 05/2009 316 dated 28.10.2016 issued by the Chief Executive Officer (CEO), Jharkhand State Sunni Waqf Board (in short to be referred as 'the Board') whereby the outgoing committee of the Anjuman Islamia Waqf (in short to be referred as 'Waqf') has been appointed as an Adhoc Committee and has been empowered to look after the matter of term end election of waqf till 31.12.2016. (iii) For quashing of 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. (iv) For quashing the appointment of the Election Convener of the Waqf by the Adhoc Committee. (v) For quashing 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. (vi) 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.
2. The factual background of the case as emerges from the writ petition is that the Anjuman Islamia Waqf is a registered body governed by its own rule and regulations. As per the bye-laws of the said Waqf, the election of the executive committee is to be held at the interval of three years. The present committee of Waqf expired on 29.09.2016 which was headed by the President Shri Ibrar Ahmad. However, at the fag end of the committee, the President made amendment in the bye-laws and after calling a meeting of Mazlishe Aamla on 07.08.2016, appointed one Md. Alluddin Ansari as Chief Election Convener for 2016 election of Waqf, two Deputy Election Convener namely Md. Hasib Akhtar, Ex Deputy Development Commissioner and Md. Rizwan. The CEO of the Board vide letter no. 309 dated 20.10.2016 found that the amendment in the tenure of the working committee of Waqf from three years to five years is violative of section 67 of the Waqf Act, 1995 (Act, 1995), clause 52 of the Jharkhand Waqf Rules 2004 and also rule 58(1) of the Central Model Rules, 2016. It was further directed that the election of the Anjuman Islamia shall be conducted according to the old bye-laws and has to be completed till 31.09.2016. Since the voter list was not verified, the election was not held till 31.09.2016. The Chief Election Convener of Anjuman Islamia namely Alluddin Ansari resigned from the post and thereafter Hasib Akhtar (respondent no.10) was appointed as election convener. The Board vide letter no. 316 dated 28.10.2016 addressed to the Deputy Commissioner, Ranchi informed interalia that the new amendment of the bye-laws of Anjuman Islamia has been turned down and the election will be held under the old bye-laws. The Deputy Commissioner, Ranchi vide letter no. 2310 dated 10.11.2016 authorized the Sub Divisional Officer, Sadar and Land Reforms Deputy Collector, Ranchi for verification and scrutiny of voter list. Thereafter the respondent no. 10 vide letter no. 1966 dated 25.11.2016 informed the Board that a meeting was called by Sub Divisional Officer, Ranchi on 24.10.2016 at his office and a direction has been given to prepare fresh voter list and fixation of schedule of election of Anjuman Islamia, Ranchi. Accordingly, a fresh schedule of election was prepared and the last date of submission of application form for 4 voter list and membership for the year 2016 has been extended from 15.11.2016 to 30.11.2016 and the time for preparation of voter list has also been extended from 22.11.2016 to 22.12.2016. The respondent no. 10 also intimated the Board that several complaints have arrived and it is not possible to dispose of all the complaints within a short span of time. The Deputy Commissioner cum District Magistrate, Ranchi vide letter no. 25 dated 04.01.2017 intimated the CEO of the Board stating that till the voter list is not fully corrected, it is not proper to conduct the election. Thereafter, the CEO of the Board issued show cause to the respondent no. 10 who filed his reply on 04.01.2017 and in the Board's meeting dated 12.01.2017, it was noticed 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 and determined by the respondent no. 10 and as such four members “Nigrani Committee” was 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 five members “Election Aakshep Committee” as per section 21 of the bye-laws of the Anjuman Islamia, Ranchi to dispose of all the complaint relating to election. Thereafter, letter dated 01.02.2017 was sent by the respondent no. 10 to the CEO of the Board stating that in the meeting dated 20.01.2017 and 31.01.2017, four members of “Nigrani Committee” were present, but one member from the complainant's side remained absent and as such five member “Aakshep Committee” could not been constituted till date. The Board through show cause dated 27.03.2017 asked explanation from the Ad-hoc committee of Anjuman Islamia for superseding the said committee as per the provisions of section 67(2) of the Act, 1995. The Board vide letter dated 11.04.2017 observed that presently no managing committee has been authorized to look after the affairs of the Waqf property. However, in the meeting of the Board dated 05.05.2017, five members “Aakshep committee” was constituted headed by Mr. Humayoon Rashid, Advocate. Md. Faizi and Mr. Gulam Sarwar were nominated from the side of complainant and Mr. Sadique Latif and Mr. Abbas Salem were nominated by the election convener. The Board further directed the Committee to conduct election within three months and the said order was communicated to the 5 respondent no. 10 vide letter dated 08.05.2017. The head of the “Aakshep Committee” Mr. Humayoo Rasheed, Advocate Informed the CEO of the Board vide letter dated 30.08.2017 that no scrutiny of the voter list has been done due to non-co-operation of the respondent no. 10 and thereafter the CEO of the Board informed the respondent no. 10 that no election will be conducted without the scrutiny of the voter list as well as the fact of tendering resignation by Mr. Humayoo Rasheed, Advocate on 26.08.2017 through e.mail. Thereafter, on 20.09.2017, in the meeting of the Board, it was found that there is lack of coordination between the election convener and the members of the “Aakshep Committee” and as such a decision was taken to ensure transparency in the voter list and to complete the election process within one month after the end of Muharram on preparation of voter list and completion of all the required procedure. The said order was communicated to the respondent no. 10 on 26.09.2017. The respondent no. 10, thereafter, released the press communique dated 22.10.2017 and fixed the date of polling as 5th November 2017.
3. Mr. Anil Kumar Sinha, learned Senior Counsel appearing on behalf of the petitioner-Federal Anjuman Islamia submits that the new voter list includes fake voters and many genuine voters of past election have been deleted from the voter list. The outgoing committee without having power under the law has created the post of election convener and others to fulfill its own interest. The Board without any jurisdiction, took decision vide letter dated 20.10.2016 that the outgoing committee shall work till 31.12.2016 as an Adhoc Committee and look after all the election process of the Anjuman Islamia, Ranchi. Moreover, the Adhoc committee has already lost its force after 31.12.2016, as there is no provision to extend the period. It is further submitted that as per clause 16 of the Bye- laws of the Anjuman Islamia Ranchi, in case of delay in election of the Waqf due to any problem in the executive committee, the present executive committee and Mazlish-e-Muntazima have to work under the direction of the Mazlish-e-Nigran till the completion of further election of the committee. No power has been vested with the Board to convert the Outgoing Committee into the Ad-hoc Committee to allow it to function till new Executive Committee comes into existence through the general 6 term-end election. Though the CEO of the Board, in response to the letter of Mr. Humayoon Rasheed, Advocate directed the respondent no. 10 that no election would be conducted without the scrutiny of the voter list, he arbitrarily released the press communique dated 22.10.2017 for conducting the election. It is further submitted that the Deputy Commissioner, Ranchi vide letter no. 25 dated 04.01.2017 had also suggested the Board that it would not be safe to conduct election without the scrutiny and correction of the voter list. It is also submitted that the Board had directed the respondent no. 10 to scrutinize the fake voters from the voter list before conducting the election, but the respondent no. 10 called the meetings on several dates and decided himself to conduct election by 30th July 2017 without the coram of the “Aakshep Committee” and in absence of the committees' two members, thus the respondent no. 10 also violated the order of the Board. It is further submitted that the letter of the Board dated 09.05.2017 is the deemed supersession of the Adhoc committee under section 67(2) of the Act 1995 and as such the said committee may not be allowed to conduct the election.
4. Mr. Mokhtar Khan, learned counsel appearing on behalf of the petitioner-Aquilur Rahman submits that Mr. Humayoon Rasheed, Advocate vide his letter dated 30.08.2017 informed to the CEO of the Board that no security of the voter list has been done due to non- cooperation of the respondent no.
10. The Deputy Commissioner, Ranchi vide letter no. 25 dated 04.01.2017 had also informed the Board that the election cannot be held without the scrutiny and correction of the voter list. Moreover, the Board after receiving the letter of Mr. Humayoon Rashid, Advocate directed the respondent no. 10 that no election would be held without the scrutiny of the voter list, but the respondent no. 10 arbitrarily released the press communique and announced the election. It is further submitted that the Waqf Tribunal constituted under the Act, 1995 is not functional due to lack of its member and infrastructure, hence the present writ petition is maintainable.
5. Per contra, Mr. Indrajeet Sinha, learned counsel appearing on behalf of the respondent nos. 8 and 9 in W.P. (C) No. 35/17 submits that the petitioner has no locus to file the present writ petition, as he is neither the member of the General Body nor a voter of the Waqf. The petitioner 7 Md. Nesar was earlier the President of Anjuman Islamia and after being found indulged in the financial irregularities, he was removed from the Waqf by the Board itself. It is further submitted that election dispute cannot be raised by way of filing a writ petition. Earlier, a PIL being W.P. (PIL) No. 5986 of 2013 was also filed by raising election dispute of the Waqf, however the same was dismissed having found that the Tribunal has already been constituted. It is also submitted that the process of election was started in the month of August 2016 itself, as the term of the committee was going to expire in the month of October 2016, but the election was delayed due to non-finalization of the voter list. The petitioner has the intention to again grab the post of President of the Committee and as such he has levelled false allegation against the Ad-hoc managing committee and the respondent no.
10. It is further submitted that the respondent no. 10 is acting as per the direction of the Board and 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. It is further submitted that the respondent no. 10 is a man of integrity and an experienced person and as such there is no illegality in appointing him as election convener.
6. Mr. Dilip Jerath, learned counsel appearing on behalf of the respondent no. 10 submits that Anjumal Islamia is working under the guidance of the Board having its own bye-laws. The respondent no. 10 has been appointed as election convener by a duly constituted committee which has been confirmed by the Board and as such, his appointment cannot be questioned. It is further submitted that all the procedures for conducting the election have been completed in proper and transparent manner as per the bye laws under the supervision of the Board. Before finalizing the voter list, all the grievances were heard, but the main complainant of voter list remained absent. As per the direction of the Board, objections were invited through notices circulated through Masjid, newspaper and social media and thereafter few objections were received which were immediately resolved and necessary amendment in the voter list were made. Mr. Delip Jerath puts reliance on the judgment of Hon’ble Supreme Court in the case of Shaji K. Joseph Vs. V. Viswanth & Others reported in (2016) 4 SCC429and submits that it is a settled law that once 8 the election process starts, the same should not be interfered.
7. Mr. Afaque Ahmad, learned counsel appearing on behalf of the respondent no. 3 and 4 submits that the allegations levelled against these respondents are baseless. As per section 32 of the Waqf Act, 1995, 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. It is further submitted that the CEO of the Board, vide letter dated 28.10.2016 asked the Deputy Commissioner, Ranchi to depute an observer for conducting election of Anjuman Islamia and thereafter Sub Divisional Officer Ranchi was deputed to conduct the election and accordingly the Sub Divisional Officer called meeting and took decision that a voter list should be prepared for conducting fair and peaceful election and then the respondent no. 10 was directed to prepare the voter list afresh. The respondent no. 10 intimated the Board that since, several applications have been received, it is not possible to dispose of all the applications within a short span of time. The Deputy Commissioner cum District Magistrate Ranchi vide letter no. 25 dated 04/01/2017 informed the CEO of the Board that till the voter list is not fully corrected, it is not safe to conduct the election. Thereafter, the CEO issued show cause to the respondent no. 10 who filed his reply on 04.01.2017. The Board in its meeting dated 12.01.2017 found that different organizations have raised objection regarding the election of Anjuman Islamia Ranchi with respect to voter list and other issues which is not being duly verified and determined by the respondent no. 10 and as such four members “Nigrani Committee” was constituted to monitor the election to ensure that the same is conducted as per its bye-laws. Moreover, the respondent no. 10 was also directed to constitute five members “election Aakshep committee” as per clause 21 of the Anjuman Islamia's bye-laws to dispose of all the election related complaints. Thereafter a letter dated 01.02.2017 was sent by the respondent no. 10 to the CEO of the Board stating that in the meeting dated 20.01.2017 and 31.01.2017 held in the election office, four members of “Nigrani Committee” were present, but one member from the side of the complainant remained absent and as such no decision could be taken. Thereafter the Board, vide show cause notice dated 9 27.03.2017 sought reply from the Adhoc Committee of Anjuman Islamia for superseding the said committee as per section 67(2) of the Act, 1995. The Board vide letter dated 11.04.2017 also informed that at present no managing committee has been authorized to look after the affairs of the Waqf property. The Board in the meeting dated 05.05.2017 however took a decision that instead of taking over management of the committee, it is necessary to get the election conducted and as such vide another letter dated 08.05.2017, the respondent no. 10 was directed to conduct election within three months. The CEO of the Board, vide his letter no. W.B.- 05/2009/153 dated 26.09.2017 directed to respondent no. 10 to verify the voter list at the earliest and prepare list of genuine voters deleting the fake voters from the earlier list. The respondent no. 10 vide his letter dated 05.10.2017 informed the Board regarding publication of the voter list in the newspaper. Thereafter a copy of the letter dated 09.10.2017 issued by respondent no. 10 addressed to the Sub Divisional Officer, Ranchi was also received in the office of the Board on 16.10.2017 whereby it was informed that the election would be held on 05.11.2017. It is thus submitted that the Board has taken sincere efforts to conduct a fair election of the Waqf.
8. Heard the learned counsel for the parties and perused the materials available on record. It appears that the tenure of the last elected managing committee expired in the month of October 2016 and thereafter on the direction of the Board, the Outgoing committee was allowed to continue till next election and also for conducting the election, the respondent no. 10 was appointed as the Election Convener. It also appears that the matter of election has remained pending primarily due to dispute in the finalization of the voter list. The petitioners have strongly objected the decision of the Board whereby the outgoing managing committee was directed to continue till the election of the Waqf. Under the said circumstance, it would be appropriate to discuss the relevant provisions of the Act, 1995, which are reproduced as under for better appreciation:- Section 32. Powers and functions of the Board.—(1) Subject to any rules that may be made under this Act, the general superintendence of all auqaf in a State shall vest in the Board established or the State; and it shall be the duty of the Board 10 so to exercise its powers under this Act as to ensure that the auqaf under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such auqaf were created or intended: Provided that in exercising its powers under this Act in respect of any waqf, the Board shall act in conformity with the directions of the waqif, the purposes of the waqf and any usage or custom of the waqf sanctioned by the school of Muslim law to which the waqf belongs. Explanation.—For the removal of doubts, it is hereby declared that in this sub-section, “ waqf” includes a waqf in relation to which any scheme has been made by any court of law, whether before or after the commencement of this Act. (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be— (a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every waqf; (b) to ensure that the income and other property of auqaf are applied to the objects and for the purposes for which such auqaf were intended or created; (c) to give directions for the administration of auqaf; (d) to settle schemes of management for a waqf: Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; ------------ (3) Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the waqf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final.
67. Supervision and supersession of committee of Management ---------- (2) Notwithstanding anything contained in this Act, and in the deed of the waqf, the Board may, if it is satisfied, for reasons to be recorded in writing, that a committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the waqf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the waqf, in so far as it relates to the constitution of the committee, shall cease to have any force: Provided that the Board shall, before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken. (3) Every order made by the Board under sub-section (2) shall 11 be published in the prescribed manner and on such publication shall be binding on the mutawalli and all persons having any interest in the waqf. (4) Any order made by the Board under sub-section (2) shall be final: Provided that any person aggrieved by the order made under sub-section (2) may, within sixty days from the date of the order, appeal to the Tribunal: Provided further that the Tribunal shall have no power to suspend the operation of the order made by the Board pending such appeal. (5) The Board shall, whenever it supersedes any committee under sub-section (2), constitute a new committee of management simultaneously with the order made by it under sub-section (2). (6) Notwithstanding anything contained in the foregoing sub- sections, the Board may, instead of superseding any committee under sub-section (2), remove any member thereof if it is satisfied that such member has abused his position as such member or had knowingly acted in a manner prejudicial to the interests of the waqf, and every such order for the removal of any member shall be served upon him by registered post: Provided that no order for the removal of the member shall be made unless he has been given a reasonable opportunity of showing cause against the proposed action: Provided further that any member aggrieved by any order for his removal from the membership of the committee may, within a period of thirty days from the date of service of the order on him, prefer an appeal against such order to the Tribunal and Tribunal may, after giving a reasonable opportunity to the appellant and the Board of being heard, confirm, modify or reverse the order made by the Board and the order made by the Tribunal in such appeal shall be final.
9. On perusal of the aforesaid provisions, it would be evident that the Board has all the powers of the superintendence of all the Waqf to ensure that the Waqf is properly maintained, controlled and administered and the income thereof is applied to the object and purpose for which the Waqf is constituted. In terms of Section 32(2)(d) of the Act, 1995 it is the power of the Board to settle the schemes of a Waqf's management and if such scheme is framed, any person who is aggrieved by said scheme may file a suit before the Tribunal for setting aside such settlement. Further, section 67(2) of the Act, 1995 provides that if the Board is satisfied that any committee of a Waqf is not functioning properly and satisfactorily or that the Waqf is being mismanaged, the Board may supersede such 12 committee and as per section 67(5), at the time of such supersession, it is mandatory for the Board to constitute a new committee simultaneously. First proviso of sub section 4 of section 67 provides that any person aggrieved by an order of supersession passed under sub section 2 may file an appeal before the Tribunal. Sub section 2 of section 67 starts with non-obstante clause and as such irrespective of anything contained in the Act, 1995 or the deed of the Waqf, the power conferrred to the Board under sub section 2 can be exercised. It thus emerges that the Board has the full power to constitute any committee for management of any Waqf or take the management of the Waqf if so required and any person having objection to the decision of the Board, may challenge the same before the Tribunal constituted under section 83 of the Act, 1995.
10. In the said factual context of the present case, the Board, after having taken into consideration that the election was not held within time and it is required to constitute an ad-hoc committee, formed the same for the said Waqf which was within its jurisdiction of the Board and as such the same cannot be questioned by the petitioners on the ground that the action of the Board is beyond the provisions of the bye-laws of the Waqf. The petitioners have also sought intervention of this court in the election process of the Waqf contending that many fake voters have been included in the voter list. The respondents on the other hand have put reliance on the judgment of Hon'ble Division Bench of this court rendered in W.P. PIL No. 5986 of 2013 wherein the election dispute of the Waqf was raised, but the same was dismissed having found that the matter did not relate to public interest and also keeping in view that the tribunal has already been constituted.
11. In my considered opinion also, 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 court in exercise 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. 13 However, the petitioner has stated on affidavit that at present the Tribunal is not functioning in the State of Jharkhand due to lack of infrastructure and the said statement of the petitioner has not been denied by the respondents. Moreover, at the time of argument, all the learned counsel for the parties stated at Bar that though the Constitution of the tribunal has been notified by the Government of Jharkhand, the same is presently not functional due to lack of infrastructure. Thus, the situation is such that the Tribunal is not functional in the State of Jharkhand at pressent and 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. It is further revealed from the letter dated 04.01.2017 issued by the Deputy Commissioner cum District Magistrate Ranchi to the CEO of the Bord that if the election is conducted without verifying the voter list, it will create law and order problem and as such under the said exceptional circumstance, the intervention of this court is required to facilitate the progress of election so that the dispute is resolved and the election of the Waqf is conducted at the earliest. In the case of Election Commission of India though Secretary vs. Ashok Kumar & Ors. reported in (2000) 8 SCC216 the Hon’ble Supreme Court held thus:- 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-
1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary 14 exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for 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.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.
12. On perusal of the aforesaid judgment, it would emerge 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. In the case of Shaji K. Joseph (Supra.) as has been cited on behalf of the respondent no. 10, the issue was that the nomination paper of a candidate was rejected which was challenged before the writ court and the Hon’ble Supreme Court held that it would not be proper for the courts to entertain election dispute when the election process has started. However, in the present case, the issue is that primarily due to the obstacle regarding finalisation of voter list, there has been tussle between two factions of the waqf committee due to which law and order problem 15 is likely to arise.
13. It has already been discussed hereinabove that the main obstacle in this case appears to be the preparation/finalization of proper voter list. All the learned counsel for the parties have fairly submitted at Bar that they want that the election of the Waqf should be conducted in fair and transparent manner. The petitioners have alleged that the voter list prepared by the respondent no. 10 contains the name of many fake voters and several genuine voters have been deleted from the said list. On the other hand the respondent no. 10 has tried to justify the voter list prepared by him. The Board from the very beginning has been monitoring/supervising the election affairs of the Waqf, but no purposeful action could be taken by the Board in this regard. Earlier, when the Board noticed that several complaints were received regarding the voter list, it took decision to constitute five members “Aakshep Committee” to dispose of the complaints filed relating to the voter list. However, the letter dated 30.08.17 of Mr. Humayoon Rasheed, Advocate who was the head and an independent member of the said “Aakshep committee” would indicate that the voter list has not been finalized due to allegations and counter allegation by both the factions. Mr. Humayoon Rasheed, Advocate finally resigned from the committee on 26.08.2017 and also suggested the Board to constitute new committee to verify the voter list. However, no new committee has been formed as yet and the dispute regarding the finalization of the voter list still persists. The Board also, in its meeting dated 20.09.2017 discussed with all the five members of the “Aakshep Committee” and came to the conclusion that there is no co-ordination between the election convener and the members of the Aakshep Committee and they are alleging against each other. However, the Board without constituting a new committee, vide letter dated 26.09.2017 directed the respondent no.10 to publish the voter list, invite objections and further to deal with the said objections, finally prepare the voter list and conduct the election of the Waqf. The said decision of the Board appears to have been taken in haste without resolving the main dispute relating to preparation of proper voter list. The Board also ignored the fact that the Deputy Commissioner vide letter dated 04.01.2017 informed to CEO of the Board that if the election is conducted 16 without verifying the voter list, it will create law and order problem. Moreover, in terms of the provisions of section 32 of the Act, 1995, the Board has the power to supervise the affairs of the Waqf under its control. Last election of the Waqf's Committee held in the year 2013 was also supervised by the Board and the said Waqf was then superseded by it u/s 67(2) of the Act, 1995. However, on this occasion, though the Board has not superseded the Waqf, yet the affairs of the present election have regularly been supervised by it. Thus, it would be appropriate that the process of present election should also be properly supervised by the Board. The neutrality of the respondent no. 10 also appears to be under cloud as Mr. Humayoon Rasheed, Advocate in his letter written to the Board has inter alia stated that when the election convener was requested to supply all the documents of intending voters for its verification, he refused to hand over the same. Such event is also suggestive of the fact that the respondent no.10 has not been co-operating the “Aakshep Committee” in discharging his duty and assignment. It is also noticed by this court that several allegations have been levelled against him by the petitioners which is well within the knowledge of the Board and as such it would be appropriate that the post of election convener should be given to a person of impartial image. Thus, without making any further comment upon the conduct of the respondent no. 10, it is observed that a new election convener is required to be appointed to maintain the fairness in the election process.
14. Considering the totality of the facts and circumstances of the case, the order of this Court is summarized as under:- (i) The Jharkhand State Sunni Waqf Board is directed to supervise the entire election process of Anjuman Islamia Waqf so as to ensure a fair and transparent election. (ii) The Jharkhand State Sunni Waqf Board is directed to constitute fresh five members “Aakshep Committee” who will prepare/finalize the final voter list after inviting and disposing of the objection, if any. (iii) The four member Nigrani Committee which is already in existence will continue to function to ensure that the election is conducted as per the bye-laws of the Waqf. 17 (iv) The Jharkhand State Sunni Waqf Board is directed to appoint a new election convener is place of respondent no.
10. (v) During the entire process of election, the Ranchi District Administration shall provide due assistance to the Board as and when required by it. (vi) The entire exercise of election shall be completed within three months from the date of the passing of this order.
15. Before parting with the case, it is also observed that the respondent no. 1 is required to take sincere step to provide appropriate infrastructure to 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.
16. The writ petitions are accordingly disposed of with aforesaid observation and direction. Consequently, I.A. No. 9079 of 2017 in W.P. (C) No. 35 of 2017 also stands disposed of. (Rajesh Shankar, J.) Binit/A.F.R.