Writ Petition No.7071 of 2008

29th July, 2009

Petitioner Counsel: Mr. S. B. TALEKAR
Respondent Counsel: Mr. S. K. KADAM,Mr. M.B.W. KHAN,Mr. A. D. SUGDARE,Mr. P. M. SHAH,Mr. M. SHOEB ALAM,Mr. J. R. SHAIKH,

Cases Cited:
R. S. Raghunath Vs. State of Karnataka, (1992)1 SCC 335 [Para 4,10]
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd., (2003)2 SCC 111 [Para 4]
Chandra Singh Vs. State of Rajasthan, (2003)6 SCC 545 [Para 4]
Bharat Petroleum Corporation Ltd. Vs. Madulla Ratanvally, (2007)6 SCC 81 [Para 4]
Bhikhubhai Vitthalbhai Patel Vs. State of Gujarat, 2008(3) ALL MR 816 (S.C.)=(2008)4 SCC 144 [Para 4,13,15]
Mansingh Vs. State of Haryana, (2008)12 SCC 331 [Para 4]
Charan Lal Sahu Vs. Nandkishore Bhatt, (1973)2 SCC 530 [Para 6]
Secretary, Indian Tea Association Vs. Ajit Kumar Barat, (2000)3 SCC 93 [Para 6]
Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel, 2006(6) ALL MR 6 (S.C.)=(2006)8 SCC 200 [Para 6]
H. B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority Vs. Gopinath and Sons, 1992 Supp (2) SCC 312 [Para 6]
Union of India Vs. K. G. Soni, (2006)6 SCC 592 [Para 6]
Syed T.A. Naqshbandi Vs. State of J. & K., (2003)9 SCC 592 [Para 6]
Swapan Kumar Pal Vs. Ashintya Kumar Nayak, (2008)1 SCC 379 [Para 6]
Sterling Computers Ltd. Vs. M & N. Publications Ltd., (1993)1 SCC 445 [Para 6]
Delhi Development Authority Vs. UEE Electricals Engg. (P) Ltd., 2004(5) ALL MR 1078 (S.C.)=(2004)11 SCC 213 [Para 6]
M. A. Rasheed Vs. State of Kerala, (1974)2 SCC 687 [Para 6]
Dwarkadas Marfitia and Sons Vs. Board of Trustees of Port of Bombay, (1989)3 SCC 293 [Para 6]
Union of India Vs. G. M. Kokil, 1984 (Supp) SCC 196 [Para 6]
Gazi Saduddin Vs. State of Maharashtra, 2003 ALL MR (Cri) 2075 (S.C.)=(2003)7 SCC 330 [Para 6]
State of U.P. Vs. Johri Mal, (2004)4 SCC 714 [Para 6]
Master Marine Service Vs. Metcalfe, 2005(5) ALL MR 657 (S.C.)=(2005)6 SCC 138 [Para 6]
Berrium Chemicals Ltd. Vs. Company Law Board, AIR 1967 SC 295 [Para 14]
Reserve Bank of India Vs. Peerless General Finance and Investment Company Ltd., (1987)1 SCC 424 [Para 22]

JUDGMENT

B. R. GAVAI, J.:- Though the petition is initially filed for a writ of Quowarranto and also for a Writ of Mandamus, the learned counsel for the petitioners, on instructions of the petitioners, does not press the petition in so far as the Writ of Quo-warranto is concerned and restricts the claim in the present petition only in so far as prayer clauses (C) and (D) are concerned.

2. Facts in nutshell, giving rise to the present petition are as under :-

In exercise of powers conferred by sub-clauses (i) to (iii) of clause (b) and clause (c) of sub-section 1 read with sub-section (3) of Section 14 of the Wakf Act, 1995 (hereinafter referred to as "the said Act" for the sake of brevity) the Maharashtra State Board of Wakf was constituted by the respondent No.1 herein, vide notification dated 4/1/2002.

It appears that on the said Board, Shri. Mohammad Abdul Aziz was appointed as Chairman, one Shri. Dhature Hafiz Hussain, was appointed as member of the State Legislature, One Shri. Harun Aadam Solkar was appointed as a representative of the Bar Council. One Shri. Chand Pasha Inamdar was appointed as a person representing the eminent Muslim Organization. Shri. Janab Ibrahimbhai Q Izuddin and Shri. Maulana Mohammad Assadulla were appointed as Scholars in Islamic Theology.

It appears that subsequently one Shri. Ahmadulla Usmanullah Pathan was appointed as representative of the Bar Council vide notification dated 27/7/2006 and one Shri. Shah Tarik Anwar was appointed as a member of Parliament from the State vide notification dated 27/9/2006.

It also appears to be the undisputed position that all the aforesaid members except Shri. A. U. Pathan and Shri. Tarik Anwar ceased to hold their office on various dates between 18th May, 2005 to 16th August, 2007 either on account of their resignation or end of the tenure. It thus appears to be a undisputed position that after 16th August, 2007, the Board consisted of only 2 members namely, Shri. A. U. Pathan and Shri. Shah Tarik Anwar. It appears that, subsequently, vide notification dated 4th September, 2008, the State Government has nominated the respondent Nos.4 to 8 herein alongwith one Shri. Maulana Gulam Vastanwi and Smt. Shahin Sayyad Kadri, Deputy Secretary Minorities Development Department, Mantralaya, Mumbai, on the said Board.

3. Being aggrieved by the aforesaid notification dated 4th September, 2008, issued by the State in exercise of powers under sub-section (3) of Section 14, the petitioner who claims to be a Mutawali and as such, entitled for a representation on the Board under Section 14(1)(b)(iv) of the said Act, has approached this court.

4. Shri. Talekar, learned counsel appearing on behalf of the petitioners submits that since the eligible persons, who could be elected to represent the categories as mentioned in Section 14(1)(b) (i) to (iii) were available, it was not permissible for the State Government to have taken recourse to sub-section (3) of Section 14, for nominating the members on the Wakf Board.

He further submits that power under sub-section(3) of Section 14 could be exercised by the State Government only if the 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 sub-section (1) of Section 14 of the said Act. He further submits that in view of sub-section (9) of Section 14, it is required that the members of the Board shall be appointed by the State Government by notification in the official Gazette. It is the submission of the learned counsel for the petitioner that as such, it is necessary that the reasons for exercising the powers under Section 14(3) of the Act should be reflected in the notification itself. The learned counsel submits that since no reasons are recorded in the notification, the exercise of power under sub-section (3) of Section 14 is vitiated and as a result of which the notification impugned in the present petition is required to be set aside.

It is the specific contention of the petitioner that when the number of Muslim Members of Parliament, State Legislature or the Bar Council of the State, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board.

The learned counsel submits that power exercised by the State Government under Section 14(3), has been exercised without there being any valid reason. The learned counsel further submits that when law requires a particular thing to be done in a particular manner, that thing has to be done in that manner alone or not at all. He, therefore, submits that since the power which is exercised by the State Government under Section 14(3) has not been exercised in the manner as stipulated under sub-section (3) of Section 14 of the said Act, such exercise of power would be vitiated thereby vitiating the notification itself. The learned counsel relies on the following judgments of the Apex Court :-

(1) R. S. Raghunath Vs. State of Karnataka and others, (1992)1 SCC 335.

(2) Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others, (2003)2 SCC 111.

(3) Chandra Singh and others Vs. State of Rajasthan and others, (2003)6 SCC 545.

(4) Bharat Petroleum Corporation Ltd. Vs. Madulla Ratanvally and others, (2007)6 SCC 81.

(5) Bhikhubhai Vitthalbhai Patel Vs. State of Gujarat and others, (2008)4 SCC 144 : [2008(3) ALL MR 816 (S.C.)].

(6) Mansingh Vs. State of Haryana and others, (2008)12 SCC 331.

5. Shri. Shah, the learned Senior Counsel who appears for the respondent Nos.1 and 2 and Shri. M. Shoeb Alam, learned Counsel for the respondent No.6, vehemently opposed the petition.

The contention advanced on behalf of the respondents is that the scope of judicial review of an executive action, while exercising jurisdiction under Article 226 of the Constitution is very limited. It is submitted that if it is found that the power exercised by the State is permissible within the limitations as prescribed by the Statute, then it is not permissible for this court to sit in an appeal over the decision of the decision maker. It is submitted that only if it is found that the decision making process is so unreasonable or so irrational, as has been commonly known as "Wednesbury's unreasonableness", then only it would be permissible for this court to exercise its powers of judicial review.

It is the further contention of the learned counsel for the respondents that this court, while exercising powers of judicial review under Article 226 of the Constitution does not sit in appeal over the decision of the decision maker. It is submitted that powers are only restricted to examine as to whether the process of the decision maker has been fair, reasonable, just and proper. It is further submitted that it is also equally not permissible for this court to take into consideration the reasons which weighed with the decision maker in taking the decision. It is also submitted that if it is found that the decision which has been taken is within the limits of the statute, which empowers the decision maker to take the decision, then no interference is permitted.

Shri. M. Shoeb Alam learned counsel submits that power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent.

He further submits that it is also not permissible for this court to upset the decision of the decision maker on the ground that it finds its view to be more probable than that of the decision maker.

The learned counsel further submits since the statutory provision under section 14(3) empowers the State Government to exercise the powers on it being satisfied regarding the necessity to exercise the said powers, it is not permissible for this court to sit in an appeal and easily come to the conclusion that the satisfaction has not been rightly arrived at. It is submitted that the presumption is in favour of the legality of the action and the person, who challenges the legality of the executive action is required to discharge the heavy burden.

The learned counsel further submits that the claim of the petitioners in the present petition is barely restricted to either right to vote or contest. It is submitted that since the power to vote or contest is a statutory right, it is also subject to the statutory restrictions and as such, the petitioners cannot claim to have any fundamental right to challenge the notification.

Both the learned counsel have also stressed on the issue that the pleadings are not sufficient so as to challenge the validity of the action under Section 14(3). It is submitted that since there is no specific pleading as to how the exercise of power under Section 14(3)is vitiated, it is not permissible for the petitioners to challenge the exercise of power under Section 14(3).

The learned counsel further submits that while arriving at satisfaction as contemplated under section 14(3), what is relevant is the eligibility and not the suitability.

The learned counsel further submits that the contention that the persons nominated from sub-clauses (i) to (iii) of clause (b) of sub-section (1) of Section 14 have to be from that category alone, is without substance. It is submitted that once power is exercised by the State Government under Section 14(3), it is the absolute discretion of the State Government to appoint any eligible candidate.

On merits, it is submitted by the learned Special Counsel appearing for the State that the Joint Parliamentary Committee had directed the State Government to establish the Wakf Board immediately, as the functioning of the Wakf Board had come to a stand-still. It is submitted that taking into consideration this aspect of the matter, the State Government had to come to a subjective satisfaction that it was necessary to do the nomination as contemplated under Section 14(3) of the said Act.

It is further submitted by the learned Special Counsel that the provisions of Section 14(3) have an overriding effect over the other parts of the said Section and when power under Section 14(3) is exercised by the State Government, the provisions in the other part of the statute will not come in its way.

Both the learned counsel have relied on a catena of judgments of the Supreme Court, which are as under :-

[1] Charan Lal Sahu Vs. Nandkishore Bhatt, (1973)2 SCC 530;

[2] Secretary, Indian Tea Association Vs. Ajit Kumar Barat, (2000)3 SCC 93;

[3] Jayrajbhai Jayantibhai Patel Vs. Anilbhai Nathubhai Patel, (2006)8 SCC 200 : [2006(6) ALL MR (S.C.) 6];

[4] H. B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority Vs. Gopinath and Sons, 1992 Supp (2) SCC 312;

[5] Union of India Vs. K. G. Soni, (2006)6 SCC 592;

[6] Syed T.A. Naqshbandi Vs. State of J. & K., (2003)9 SCC 592;

[7] Swapan Kumar Pal Vs. Ashintya Kumar Nayak, (2008)1 SCC 379;

[8] Sterling Computers Ltd. Vs. M & N. Publications Ltd., (1993)1 SCC 445;

[9] Delhi Development Authority Vs. UEE Electricals Engg. (P) Ltd., (2004)11 SCC 213;

[10] M. A. Rasheed Vs. State of Kerala, (1974)2 SCC 687;

[11] Dwarkadas Marfitia and Sons Vs. Board of Trustees of Port of Bombay, (1989)3 SCC 293;

[12] Union of India Vs. G. M. Kokil, 1984 (Supp) SCC 196;

[13] Gazi Saduddin Vs. State of Maharashtra and others, (2003)7 SCC 330 : [2003 ALL MR (Cri) 2075 (S.C.)];

[14] State of U.P. Vs. Johri Mal, (2004)4 SCC 714;

[15] Master Marine Service Vs. Metcalfe, (2005)6 SCC 138 : [2005(5) ALL MR (S.C.) 657].

6. For appreciating the rival submissions, it will be necessary for us to refer to section 14 of the said Act, which reads thus:

"Section 14 "Composition of Board" (1) The Board for a State and 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 maybe, 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 office of the State Government not below the rank of Deputy Secretary.

(2) Election of the members specified in clause (b) of sub-section (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-clauses (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 Sub-section (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 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 reconstituted, 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."

From the perusal of the sub-section (1) of Section 14 of the said Act, it could be seen that the Board shall consist of a Chairperson as required under clause (a). Clause (b) requires that one and not more than two members, as the State Government may think fit, are to be elected from each of the electoral colleges consisting of :

(i) Muslim Members of Parliament from the State or, as the case maybe, 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 more;

Clause (c) requires that one and not more than two members are to be nominated by the State Government who represent eminent Muslim organizations. Clause (d) requires that one and not more than two members are to be nominated by the State Government, each of whom is to be recognized Scholar in Islamic Theology. Clause (e) requires that an officer of the State Government not below the rank of Deputy Secretary shall be member on the Board.

Sub-section (2) requires that the Election of the members specified in clause (b) of sub-section (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. The first proviso to the said sub-section provides 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. The second proviso further provides that where there are no Muslim Members in any of the categories mentioned in sub-clauses (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.

Sub-section (3), which is most important for deciding the question involved in this petition, provides that 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 Sub-section (1), the State Government may nominate such persons as the members of the Board as it deems fit.

Sub-section (4) then provides that 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).

Sub-section (8) then provides that 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. Sub-section (9) then provides that the members of the Board shall be appointed by the State Government by notification in the Official Gazette."

7. It would also be relevant to refer to certain rules which are published in the official Gazette vide notification dated 23rd June, 1999 and which are called as the Maharashtra State Board of Wakf (Conduct of Election) Rules, 2000.

Rule 2(1)(e) reads thus :-

"Electoral College" means the categories from which members are to be elected under clause (b) of sub-section (1) of Section 14 and the second proviso to sub-section (2) of Section 14.

Sub-rule (g) of the said section reads thus :

(g) "Electoral Roll" means a list of voters, of each of four electoral colleges specified in clauses (i), (ii), (iii) and (iv) of clause (b) of sub-section (14) of the Act, maintained under sub-rule (1) of rule (11).

Rule 6 of the said Rules reads thus :-

Obtaining list of Electoral Colleges by Electoral Registration Officer :-

(1) The Electoral Roll for the four categories of electoral colleges under clause (b) of sub-section (1) of Section 14 of the Act shall be prepared or revised by the Electoral Registration Officer before the date of notification of the election of the Board.

(2) The Electoral Registration Officer for preparation or Revision of Electoral Rolls to the four Electoral Colleges shall obtain the list of eligible voters in case of categories specified in clause (b) of sub-section (1) of Section 14 :-

(a) for sub-sections (i) and (ii) from the Secretary, Maharashtra State Legislature.

(b) for sub-clause (iii) thereof, from the Secretary, Maharashtra, Goa State Bar Council, Mumbai,

(c) for sub-clause (iv) from the Chief Executive Officer of the Board and where the new Board under the Act is not constituted, from the Secretary of the existing Board or from the Secretary of the Department dealing with wakf.

Rule 12 of the said Rules reads thus :-

12. Notification of Elections by the State Government : The State Government shall, by notification in the official Gazette, notify the schedule of Elections to the four electoral colleges consisting of two members each under clause(b) of sub-section (1) of Section 14 indicating the dates of commencement and completion of election which shall not be less than thirty days.

It could thus be seen from the said rules that the electoral college would mean a list of voters, of each of four electoral colleges specified in clauses (i), (ii), (iii) and (iv) of clause (b) of sub-section (14) of the Act, maintained under sub-rule (1) of rule (11).

Rule 6 of the said Rules provides that electoral rolls are required to be prepared for the four categories of electoral colleges under clause (b) of sub-section (1) of Section 14 of the Act or revised by the Electoral Registration Officer before the date of notification of the election is issued.

Sub-rule (2) of the said rule, provides that the Electoral Registration Officer, for preparation or Revision of Electoral Rolls to the four Electoral Colleges shall obtain the list of eligible voters in case of categories specified in clause (b) of sub-section (1) of Section 14 as under :-

(a) for sub-sections (i) and (ii) from the Secretary, Maharashtra State Legislature.

(b) for sub-clause (iii) thereof, from the Secretary, Maharashtra, Goa State Bar Council, Mumbai,

(c) for sub-clause (iv) from the Chief Executive Officer of the Board and where the new Board under the Act is not constituted, from the Secretary of the existing Board or from the Secretary of the Department dealing with wakf.

Sub-rule(12) of the said rules provides that the State Government is required to notify the schedule of elections of 4 Electoral colleges consisting of two members each under clause (b) of sub-section (1) of Section 14 indicating the dates of commencement and completion of election which shall not be less than thirty days.

8. We will first deal with the submission of the learned counsel for the respondents regarding insufficiency of pleadings challenging the action of the State Government under Section 14(3) of the said Act.

From the tenor of the paragraph 21 to 29 of the Memo of the petition, it would reveal that the petitioner has specifically pleaded that the eligible candidates are available to the elected from the categories as enumerated under sub-clauses (i) to (iii) of clause (b) of Section 14(1) of the Act. It has been contended that since the candidates are available from the categories to be elected in accordance with sub-clauses (i) to (iii) of clause (b) of sub-section (1) of Section 14, it is not permissible for the State Government to exercise the power under sub-section (3) of Section 14 of the said Act.

9. To test the submission of the respondents the question that would have to be answered is whether the pleadings stated above, were of such a nature as it could be said that the respondents were taken by surprise and were not in a position to counter the said submissions. We find that the averments in the petition were sufficient enough so as to make clear the grounds on which the petitioner has challenged the impugned notification. In that view of the matter, we do not find any force in the submission of the respondents with respect to the said contention.

10. Now, we will examine the submission of the respondents with respect to the over-riding effect of Section 14(3) on the ground of it being a non-obstante clause. It is settled law that ordinarily there is a close approximation between a non-obstante clause and enacting part of the section and that the non-obstante clause may throw light on the scope and ambit on the enacting part in case of ambiguity. It is also settled law that when enacting part is clear its scope cannot be cut down or enlarged by resorting to the non-obstante clause.

The Apex Court in the case of "R. S. Raghunath Vs. State of Karnataka and another" reported in (1992)1 SCC 335, after considering the earlier pronouncement on the point has observed thus :-

"On a conspectus of the above authorities it emerges that the non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the on-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words, the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases, the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules."

Upon conjoint reading of the provisions of Sections 14(1)and 14(3), we are unable to see any conflict between the two provisions. We are of the considered view that sections 14(1) and 14(3) exist in harmony and there is no conflict in them, as envisaged by the learned counsel for the respondents. We will elaborate our reasoning for this finding in the paragraphs to follow.

11. We are in full agreement with the learned counsel appearing on behalf of the respondents that the scope of judicial review of an executive action while exercising our powers under Article 226 is limited. We are also in agreement with the learned counsel for the respondents that unless it is found that the decision maker has travelled beyond the scope of the power as conferred by the statute, or unless it is found that the exercise of power is so arbitrary or unreasonable or irrational that it cannot withstand the test of Wednesbury's reasonableness, it will not be permissible for this court to sit in appeal over the decision of the decision maker. We are also equally in agreement with the learned counsel for the respondents that while exercising power of judicial review under Article 226 of the Constitution, what we are concerned with is the decision making process and not the ultimate decision. In the background of this legal position, let us examine the scheme of Section 14 of the Act.

As already discussed hereinabove, sub-clause (b) of sub-section (1) of section 14 deals with the election of members to the Board. It may not be necessary to refer to clauses (c), (d) and (e) of sub-section (1) of section 14, inasmuch, the said clauses itself empower the State Government to nominate members from the categories to represent eminent Muslim organizations, recognized scholars in Islamic Theology and officer of the State Government.

However, it can be seen from clause(b) of section 14(1) that the members representing the 4 categories are required to be elected from the electoral college consisting of the eligible persons from that category.

It could further be seen from sub-section (2) that the election of the members as specified in clause (b) of section 14(1) shall be held in accordance with the system of proportional representation by means of a single transferable vote in such a manner as may be prescribed. As already discussed hereinbove, Rules have already been framed by the State of Maharashtra for conducting the elections, so far as the members in the aforesaid categories are concerned.

It could further be seen 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. It is further provided that where there are no Muslim Members in any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of Sub-section (1) of Section 14, 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.

Perusal of the Rules as already discussed hereinabove, would reveal that in so far as the aforesaid 4 categories are concerned, the list of eligible voters is required to be called by the Electoral Registration Officer from the Secretary of the Legislature in so far as sub-clauses (i) and (ii) are concerned , from the Secretary of the Bar Council in so far as sub-clause (iii) is concerned. And from the Chief Executive Officer of the Board or the Secretary of the Board or Secretary of the wakf Department of the State Government in so far as sub-clause (iv) is concerned.

13. Now, let us examine in what situation, the powers under section 14(3) can be exercised by the State Government. The scope of power, upon bare reading of the section itself, is very clear. It is a solitary principle of interpretation of statutes that a statute has to be given a plain and literary meaning, unless it leads to ambiguity. We find no ambiguity in section 14(3). No doubt, that the State Government is given a discretion to exercise power to nominate such persons as members of the Board. However, such exercise of powers is circumscribed by 3 conditions, i.e. :-

(i) The State is required to arrive at a satisfaction;

(ii) Reasons are to be recorded in writing for arriving at the satisfaction;

(iii) The satisfaction which is to be arrived at is to the effect that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clause (I) to (iii) of clause (b) of sub-section (1) of Section 14.

We may usefully refer to the judgment of the Apex Court in the matter of "Bhikhubhai Patel Vs. State of Gujarat" (cited supra) in this respect. The Apex Court, in the said case was considering the provisions of Section 21 r/w. section 17 of the Maharashtra Regional Town Planning Act, vide which the State Government was empowered to publish modifications in the draft development plan, provided it was of the opinion that substantial modification of the draft development plan were necessary. The question regarding formation of opinion arose for consideration before the Apex Court in the aforesaid case. The Apex Court observed thus :-

"20. The State Government is entitled to publish the modifications provided it is of opinion that substantial modifications in the draft development plan are necessary. The expression " 'is of opinion' that substantial modifications in the draft development plan are necessary" is of crucial importance. Is there any material available on record which enabled the State Government to form its opinion that substantial modifications in the draft development plan were necessary ? The State Government's jurisdiction to make substantial modifications in the draft development plan is inter-twined with the formation of its opinion that such substantial modifications are necessary in the draft development plan. The State Government without forming any such opinion cannot publish the modifications considered necessary along with notice inviting suggestions or objections. We have already noticed that as on the day when the Minister concerned took the decision proposing to designate the land for educational use the material available on record were :

(a) the opinion of the Chief Town Planner;

(b) Note dated 23rd April, 2004 prepared on the basis of the record providing the entire background of the previous litigation together with the suggestion that the land should no more be reserved for the purpose of South Gujarat University and after releasing the lands from reservation, the same should be placed under the residential zone.

21. It is true the State Government is not bound by such opinion and is entitled to take its own decision in the matter provided there is material available on record to form opinion that substantial modifications in the draft development plan were necessary. Formation of opinion is a condition precedent for setting the law in motion proposing substantial modifications in the draft development plan.

22. Any opinion of the Government to be formed is not subject to objective test. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming its opinion. But there must be material based on which alone the State Government could form its opinion that it has become necessary to make substantial modification in the draft development plan.

23. The power conferred by Section 17(1)(a)(ii) read with proviso is a conditional power. It is not an absolute power to be exercised in the discretion of the State Government. The condition is formation of opinion - subjective, no doubt - that it had become necessary to make substantial modifications in the draft development plan. This opinion may be formed on the basis of material sent along with the draft development plan or on the basis of relevant information that may be available with the State Government. The existence of relevant material is a pre-condition to the formation of opinion. The use of word "may" indicates not only a discretion but an obligation to consider that a necessity has arisen to make substantial modifications in the draft development plan. It also involves an obligation to consider which of the several steps specified in sub-clauses (i), (ii) and (iii) should be taken.

24. The Proviso opens with the words "where the State Government is of opinion that substantial modifications in the draft development plan and regulations are necessary....". These words are indicative of the satisfaction being subjective one but there must exist circumstances stated in the proviso which are conditions precedent for the formation of the opinion. Opinion to be formed by the State Government cannot be on imaginary grounds, wishful thinking, however, laudable that may be. Such a course is impermissible in law. The formation of the opinion, though subjective, must be based on the material disclosing that a necessity had arisen to make substantial modifications in the draft development plan.

25. The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression : "as considered necessary" is again of crucial importance.

The term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite; indispensably requisite, useful, incidental or conducive; essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The word "necessary" must be construed in the connection in which it is used.

(See-Advanced Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)

26. The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan."

It could thus be seen that the Apex Court has held that the formation of opinion is a condition precedent for setting the law in motion proposing substantial modification in the draft development Plan. It has further been held by the Apex Court that the condition of formation of opinion was subjective, the said opinion was required to be formed on the basis of the material to be sent alongwith the draft development plan or on the basis of relevant information that may be available with the State Government. It has been further held that the existence of relevant material is a pre-condition for formation of opinion. It has been further held that the formation of opinion by the State Government should reflect intense application of mind with reference to the material available that it has become necessary to propose substantial modification to the draft development plan.

14. The Apex Court in the case of "Berrium Chemicals Ltd. Vs. Company Law Board" reported in AIR 1967 SC 295, had an occasion to consider the import of the phrases "is satisfied", "is of the opinion" and "has reasonable cause to believe". We may gainfully refer to some observations in the case which are as follows :-

"64. The object of S.237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. Clause (a) does not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the court where a judicial process intervenes. Clause (b), on the other hand, leaves directing an investigation to the subjective opinion of the government or the Board. Since the legislature enacted S.637(i)(a) it knew that government would entrust to the Board its power under S.237(b). Could the legislature have left without any restraints or limitations the entire power of ordering an investigation to the subjective decision of the Government or the Board ? There is no doubt that the formation of opinion by the Central Government is a purely subjective process.

There can also be no doubt that since the legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist ? The legislature no doubt has used the expression "circumstances suggesting". But that expression means that the circumstances need not be such as would conclusively establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation. But the expression "circumstances suggesting" cannot support the construction that even the existence of circumstances is a matter of subjective opinion. That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the legislature could have abandoned even the small safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigation can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process. These analysis finds support in Gower's Modern Company Law (2nd Ed.) p.547 where the learned author, while dealing with S.165(b) of the English Act observes that "the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion" and that "they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality". There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub-clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute."

It could thus clearly be seen that though the formation of opinion by the State Government is purely subjective process and it will not be permissible for this court to challenge the same on the ground of propriety, reasonableness or sufficiency, but, at the same time, it will be the duty of the Court to examine, whether the satisfaction arrived at by the authority is on the basis of the circumstances suggested in the statutory provision itself.

15. We may also refer to para.33 in the judgment of the Apex Court "Bhikhubhai's case" (supra) which reads thus:-

"33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute."

16. We are, therefore, of the considered view that this court would be entitled to examine, as to whether there has been any material available with the State Government, to arrive at a subjective satisfaction that it is required in law and whether the reasons which weighed in the formation of the opinion are recorded in writing.

With the assistance of the learned Special counsel we have examined the original file.

Though the learned Special Counsel has stated that only after deliberations before the Joint Parliamentary Committee in its meeting dated 24th July, 2008, it was found necessary that the Board should be constituted and nominations be made to the Board under Section 14(3), upon perusal of the file it is clear that the proposal for nomination of the members, as contemplated under sub-clauses (i) to (iii) of Section 14(1)(b) was initiated in the month of August, 2007 itself. Perusal of the file would reveal that in so far as the respondent Nos.4, 8 and one Maulana Gulam Bastanwi, who is also nominated under the impugned notification, are concerned, their nomination were approved by the Honourable Minister for Wakf in the month of September, 2007 itself. It can thus be seen that though the respondent State has boldly stated that only after the Joint Parliamentary Committee directed it to constitute the Board, it was found necessary to exercise the extraordinary power under Section 14(3), the proposal for nominating the persons was initiated much prior, at least a year back.

As We have already discussed hereinabove, the powers under Section 14(3) could be exercised only on the 3 conditions mentioned earlier being satisfied i.e. unless the State Government comes to a subjective satisfaction that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of Section 14(1)(b) and record reasons therefor, it cannot take recourse to the extraordinary power under Section 14(3).

Though Shri. Talekar, has strenuously urged that the notification should also reflect the reasons, since we have called the original file to examine the reasons, we do not think it necessary to go into that question.

From the perusal of the entire file, leave apart there being any discussion, as to how it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of Section 14(1)(b), there is not even a mention in the noting of the Principal Secretary, dated 12th August, 2008 that it is found expedient to take recourse to Section 14(3), as the State Government is satisfied that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of Section 14(1)(b).

17. It can thus be seen that leave apart recording reasons, there is not even a mention in the file that the State Government has arrived at a subjective satisfaction as contemplated under section 14(3) so as to invoke the powers of nomination. As has been held by the Apex Court, though we do not sit in appeal over the decision of the State Government but it would be permissible for us to examine as to whether there existed material based on which alone the State Government could form its opinion.

As already discussed hereinabove, the power under section 14(3) would be permitted to be exercised by the State Government only in the event it comes to a subjective satisfaction that the conditions as stipulated therein exists. The condition is very specific that it is not reasonable practicable to constitute the electoral college for any of the categories in sub-clauses (i) to (iii) of Section 14(1)(b). Though we are aware of our limitations, however, in order to examine the reasonableness or the rationality of the decision making process it will be necessary to refer to the requirements regarding electoral colleges and the material in the file.

18. As already discussed hereinabove, in so far as categories Nos.(i) and (ii) are concerned, the information is required to be sought from the Secretary of the State Legislature. We have perused the file. From the file, it is clear that a list of members of the Maharashtra Legislative Council and Maharashtra Legislative Assembly, so also, members of Parliament is very much available. In so far as category (i) is concerned, there are 2 members. In so far as category; (ii) is concerned, there are 11 members from the Maharashtra Legislative Assembly, 7 members from the Maharashtra Legislative Council, which lists are very much available on record. In so far as category; (iii) is concerned, the Secretary of the Maharashtra Bar Council vide her communication dated 29/7/2008, has communicated the name of the only Muslim Member on the Bar Council and ex-members of the Bar Council from Muslim Community.

19. Though we are not concerned with the category (iv) in the present petition, inasmuch, as the State Government is not empowered to nominate a person from that category, the list of Mutawalis whose annual income is more than 1 Lakh is also very much available on record.

As already discussed hereinabove, the exercise of power under section 14(3) is permissible only if the State Government arrives at a subjective satisfaction that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of section 14(1)(b).

However, it is clear from the file itself that, the names of the eligible voters from all these categories were very much available with the State Government, at the time of issuance of impugned notification.

20. It could thus be seen that since the names of the eligible voters from all these categories were very much available with the State Government, it was impossible for the State Government to have arrived at a subjective satisfaction that it is not reasonably practicable to constitute the electoral college for the aforesaid 3 categories. It could therefore be seen that the State Government has rightly not stated in the file that it has arrived at a subjective satisfaction that it is not reasonably practicable to constitute an electoral college for the aforesaid 3 categories.

21. In so far as the contention raised by the learned Senior Counsel appearing for the State Government that the impugned notification was issued in pursuance to the directions issued by the Joint Parliamentary Committee is concerned, the same is also devoid of substance. From the perusal of the minutes of the meeting of the members of the JPC and the Principal Secretary of Wakf Department of the State Government, it would appear that the JPC has sought explanation from the State Government as to why the vacancies on the Board were not filled in. The JPC has found that the reasons given by the State Government were not proper. The JPC has directed the vacancies to be filled in at the earliest. However, there is no direction that the vacancies should be filled dehors the provisions of the statute. In any case, we are of the considered view that even the JPC could not have issued direction to the State Government to do something which is contrary to the statutory provision. Apart from that, as already discussed hereinabove, the relevant data for constitution of the Electoral College of the 4 categories mentioned in sub-clauses (i) to (iv) of clause (b) of sub-section (1) of Section 14, was very much available with the State Government and the State Government could have within the minimum possible time, filled the vacancies in the aforesaid 4 categories by holding elections in accordance with the said Act and the Rules.

22. It is a settled law that each and every word used by the legislature is to be given its complete meaning. It is presumed that the legislature has used each and every word of the statute with same meaning and, therefore, every word of the statute in its context has to be interpreted. In this respect, we may refer to the observations made by the Apex Court in the matter of "Reserve Bank of India Vs. Peerless General Finance and Investment Company Ltd." Reported in (1987)1 SCC 424.

"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."

Applying the aforesaid solitary principle of statutory interpretation, we are of the considered view that there is no conflict between sub-sections (1) and (3) of Section 14 of the said Act. As a rule, the candidates from categories (i) to (iii) have to be elected from the Electoral Colleges as provided under the Act and the Rules. The departure from the normal rule of having elected representative from categories (i) to (iii) and nominating persons by the State Government, would be permissible only on the conditions stated in Section 14(3) being satisfied i.e. the State has to come to a subjective satisfaction for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for the aforesaid 3 categories.

23. We find that if the aforesaid interpretation is not accepted, it will make the provisions of Sections 14(1)(b)(i) to (iii) redundant. Applying the principle laid down in the aforesaid case by the Apex court that the statute is best interpreted when we know why it is enacted and then it is to be read first as a whole and then by sections by sections, clause by clause, phrase by phrase and word by word, we find that no other interpretation would be permissible.

24. As already discussed hereinabove, unless the State Government arrives at a subjective satisfaction, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for the aforesaid 3 categories, it is not permissible for the State Government to invoke the powers of Section 14(3). It could clearly be seen that, firstly, there is nothing in the file which would show that the subjective satisfaction, is arrived at by the State Government that it is not reasonably practicable to constitute an electoral college for the aforesaid 3 categories; secondly, no reasons are recorded in the file for arriving at a subjective satisfaction, if any; and thirdly, even on the basis of the material on record, no such satisfaction could have been arrived at inasmuch as data for preparation of electoral rolls for all the 3 categories was very much available in the file which was produced before us.

25. We are of the considered view that the legislature has made special provision for the constitution of the Board by nominations so as to meet the peculiar circumstance that is when it is not reasonably practicable to constitute an electoral college for the aforesaid 3 categories. Though not exhaustive, we may give some illustrations. It could be that in a particular State there may not be even a single member of Parliament belonging to the Muslim community. May be, in some State, there would not be even a single member in the State Legislature or there may not be even a single member on the State Bar Council belonging to Muslim community. In such a situation, the State Government would be fully justified in invoking the powers under Section 14(3). We make it clear that we have not given any exhaustive list of situations, but we have only given few illustrations, wherein, exercise of the exceptional power of nomination would be permissible for the State Government.

26. One more glaring factor has come to our notice, while we were examining the file. From the file it appears that there is a noting in the file at Page 19 under the signature of Shri. S. S. Kadri, Deputy Secretary, at the instance of the principal secretary to the Honourable Chief Minister. The said endorsement in the file states that as per the directions, the names of the members proposed to be appointed on the Board are being sent to one Smt. Fatema Zakaria for her comments and also for her instructions and recommendations, if any. Not only this, but a letter is addressed by the said Shri. S. S. Kadri, to said Smt. Fatema Zakaria dated 28/7/2009,which states that as per the directions of the Principal Secretary, Chief Minister's Secretariat, she has been requested to communicate her recommendations, comments, if any, in respect of the proposed names. It is further stated in the letter that she may also recommend names which she would think fit other than those appearing in the enclosed list.

Accordingly, vide letter dated 31/7/2008, Smt. Fatema Zakaria has recommended certain names. Coincidently, some of the names recommended by Smt. Zakaria including the name of the respondent No.6 find place in the impugned notification.

27. We are unable to understand, as to what was the purpose of seeking comments/recommendations by the State from a private individual. Though we are allowing the petition on the ground that the power exercised by the State Government was beyond the scope of sub-section (3) of Section 14, we have referred to this aspect only in order to point out as to how irrelevant and irrational material has gone with the decision making process of the State Government.

28. Since we are of the considered view that the conditions precedent for invoking the powers by the State Government under Sub-section (3) of Section 14 were not satisfied and as such, the exercise of power in issuance of the impugned notification was dehors the provisions of Sub-section (3) of Section 14 of the Act, we do not find it necessary to go into the other issues raised by the petitioners or the respondents.

29. In that view of the matter, Rule is made absolute in terms of prayer clause (C).

At this stage, the learned counsel for the respondent No.6 prays for stay to the judgment and order delivered by us for a period of 4 weeks. However, since we have held that the power exercised by the State Government itself is beyond the scope of Section 14(3) and that the State Government has acted dehors the powers of the statute, we are not inclined to grant stay. The said prayer is, therefore, rejected.

Ordered accordingly.