Court No. - 29
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 483 of 2021
Petitioner :- Mohd. Ayaz Khan
Respondent :- Union of India
Counsel for Petitioner :- Javed Husain Khan,Gulrez Khan,Sr. Advocate Sri W.H Khan
Counsel for Respondent :- A.S.G.I.,Ajay Singh
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Vivek Agarwal,J.
Heard Sri Ajay Singh, learned counsel appearing for Union of India.
By this writ petition, constitutional validity of Section 14(1)(b) (iv) of the Waqf Act, 1995 has been challenged. For the ready reference, provision of Section 14(1)(b) is quoted herein-:
"14. Composition of Board-: (1) The Board for a State and the National Capital Territory of Delhi shall consist of— (a)......
(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 National Capital Territory of Delhi,
(ii) Muslim Members of the State Legislature,
(iii) Muslim Members of the Bar Council of the concerned State or Union Territory, [Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory, and]
(iv) mutawallis of the wakfs having an annual income of rupees one lakh and above;"
Learned counsel for the petitioner submits that condition of income of Rs. 1 lakh for mutawallis under sub-clause (iv) is discriminatory in nature depriving other mutawallis to participate in the election to elect two members to be the part of the Waqf Board.
In view of the above, the provision deserves to be struck down being violative of Articles 14 and 26 of the Constitution.
A reference of the judgment of Patna High Court in the case of Labh Chandra Reisurana and others Vs. State, 1968 SCC Online Pat 52 has been given.
We have considered the submissions of learned counsel for the petitioner and find that the very same challenge to Section 14(1) (b)(iv) did not sustain before the Madras High Court so as the Karnataka High Court in the cases of P.A.G. Hussain Moulana Vs. Union of India and others, 2004 SCC Online Mad 697 and Syed Shah Muhammad Al Hussaini Vs. Union of India and others, 1998 SCC OnLine Kar 623 respectively. The relevant paras of both the judgments are quoted herein-:
(P.A.G. Hussain Moulana Vs. Union of India and others, 2004 SCC Online Mad 697) "2. According to the learned counsel appearing for the petitioner Section 14(1)(b)(iv) of the Wakf Act is unconstitutional because a mere annual income of rupees one lakh and above cannot be a reasonable qualification to consider the mutawalli, who could be a member of the Board for a State. According to him, the qualification such as education in degree and post graduation alone be a consideration.
3. I am not able to appreciate the said contention. As per Section 3(r) of the Wakf Act, 'Wakf' means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-
i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
ii) grants, including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable and 'wakf' means any person making such dedication.
4. It is therefore, clear that the object of the very registration itself is with reference to the value of movable or immovable property dedicated for pious, religious and charitable purposes, which is nothing to do with educational qualification. In that view of the matter, prescribing a qualification based on annual income of rupees one lakh and above cannot be an arbitrary and irrational consideration while selecting mutawalli, who could be a member of the Board."
(Syed Shah Muhammad Al Hussaini Vs. Union of India and others, 1998 SCC Online Kar 623) "10. The learned Counsel for the petitioner further submitted that as Mutawallis of the wakf having an annual income of rupees one lakh or above are only held eligible to be members of the Board, the provision to that effect is discriminatory and violative of Article 14 of the Constitution. This argument also is more theoretical in concept rather than practical in implementation. When the purpose of the Board is to provide better administration to the wakf property, it has rightly thought to afford only such Mutawallis an opportunity of being the member of the Board, who have some experience in the Management of the wakf property, which has been tried to be ascertained and measured on the yardstick of income of the wakfs.
11. The principle of equality does not mean the universal application of laws for all persons who are not by nature, attainment or circumstances in the same position. The Mutawallis of wakfs having an annual income of more than rupees one lakh constitute a class in themselves and cannot be equated with such Mutawallis, who do not have any annual income from the wakf or any experience of dealing with the management of the property. If a law is shown to be dealing equally with the members of a well defined class, it cannot be held to be discriminatory on the ground of not providing equal protection being allegedly not applicable to the other persons. It cannot be forgotten that the presumption is in favour of constitutionality of a law since it is presumed that the legislature understands and correctly appreciates the needs of the people and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. The burden to prove the discrimination is always upon the person who alleges it. In this regard, the Supreme Court in Ajoy Kumar Mukherjee v Local Board of Barpeta, (AIR 1965 SC 1561) held (para 7):
"As to that it is well settled that it is for the person who alleges that equality before law has been infringed to show that such really is the case. It was therefore for the appellant to produce facts and figures from which it can be inferred that the tax imposed in the present case is hit by Article 14 of the Constitution".
To the same effect is the judgment of the Apex Court in M/s. East India Tobacco Company v State of Andhra Pradesh (AIR 1962 SC 1733) and in State of Uttar Pradesh v Kartar Singh (AIR 1964 SC 1135).
12. The petitioner has not placed anything on record to show that the Act is intended to discriminate or has actually discriminated or that the classification made was arbitrary and not reasonable. The aforesaid section therefore cannot be held to be violative of the guarantee of equality as enshrined in Articles 14 and 15 of the Constitution of India."
The Madras High Court has discussed the argument on challenge to Section 14(1)(b)(iv) and recorded a finding that the mutawallis having income of Rs. 1 lakh or above constitute a class themselves and cannot be equated with others who do not have annual income from the Waqf or any experience in dealing with the management.
Considering the aforesaid, we cannot apply the judgment of the Patna High Court (supra). In that case, the issue was altogether different than raised in this petition.
In our opinion, the judgments of the Madras High Court so as the Karnataka High Court, referred to above, covers the issue and accordingly, the writ petition fails and is dismissed.
Order Date :- 24.9.2021 Nirmal Sinha
(Vivek Agarwal, J.) (Munishwar Nath Bhandari, A.C.J.)