Writ Petition (L) No. 1357 of 2016. Case: Ibrahim Gulam Nabi Shaikh Vs State of Maharashtra and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition (L) No. 1357 of 2016 |
| Counsel | For Appellant: Mr. Hiralal Thacker, Senior Counsel a/w. Mr. Chirag Mody, Mr. Joseph Fernandes, Advs. and For Respondents: Mr. Umashankar Upadhyay, AGP, Mr. Anil Singh, Additional Solicitor General a/w. Mr. Dhanesh R. Shah, Advs. |
| Judges | S.C. Dharmadhikari & Dr. Shalini Phansalkar-Joshi, JJ. |
| Issue | Haj Committee Act, 2002 - Sections 8(1), 8(2), 51; Press Council Act, 1978 - Section 6(7); Constitution of India - Article 226 |
| Judgement Date | July 28, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
Dr. Shalini Phansalkar-Joshi, J.
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Rule. Rule returnable forthwith. With the consent of both the parties, heard finally at the stage of admission itself.
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In this writ petition, filed under Article 226 of the Constitution of India, a very short question is raised for consideration relating to the interpretation of Section 8(2) of Haj Committee Act, 2002. The exact nature of controversy is centered around the question as to whether a member, who was elected for more than 2 terms, can be eligible for renomination on the Haj Committee, considering the wording of Section 8(2) of the Act that, "an outgoing member shall be eligible for renomination on the Committee for not more than two terms."
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For deciding this controversy, the relevant facts of the petition can be stated as follows:
The petitioner is a citizen of India and is elected Chairman of respondent No.4-the Maharashtra State Haj Committee and is nominated as a representative of respondent No.4 to respondent No.3-Haj Committee of India for the State of Maharashtra-respondent No.1 herein. As per the petitioner, the Government of Maharashtra, vide its Notification No. Haj.2010/C.R. 175/Desk-5, Minorities Development Department, dated 5th September, 2014 has reconstituted the Maharashtra State Haj Committee, Mumbai. The tenure of the said Committee was to expire on 6th May, 2016. Hence, under the provisions of Section 8(1) of the Haj Committee Act, 2002, (hereinafter referred to 'the Act' for short) the Committee was to be reconstituted.
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Accordingly, in the meeting of the Committee held on 9th February, 2016, the name of the petitioner was suggested for nomination as representative of Maharashtra State Haj Committee to Haj Committee of India. Two other members, present at the meeting, seconded the said motion. No other nomination was suggested by any other member and the motion was adopted unanimously. Since only one nomination of the petitioner came up for consideration, the question of taking formal election for this purpose did not arise and the petitioner was declared elected, unopposed, as a representative of Maharashtra State Haj Committee to Haj Committee of India. The said decision was accordingly communicated to the Joint Secretary of the State of Maharashtra along with the Minutes of Meeting, which were confirmed in the meeting dated 25.03.2016. The said decision was thereafter communicated to the Union of India through its Secretary (Haj).
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The Union of India, however, vide its communication dated 12th April 2016 directed Haj Committee of Maharashtra to elect the member other than the petitioner, in place of him, as a member of Haj Committee of India from the State of Maharashtra. The reason given for the same was that the petitioner was previously appointed as member of the Haj Committee of India for two tenures i.e. from 2008-2009 and 2010- 2013. Hence, as per the provisions of Section 8(2) of the Haj Committee Act, he was ineligible to be appointed as a member of the Haj Committee of India for more than two terms.
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It is this communication dated 12th April, 2016 of the Union of India (Haj Ministry), communicated to the petitioner by letter dated 6th May, 2016 by the Government of Maharashtra, which is challenged by the petitioner in this case by submitting that it is totally arbitrary, capricious, malafide and against the provisions of the Haj Committee Act, 2002.
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According to learned counsel for the petitioner, the disqualification laid down under Section 8 (2) of the Haj Committee Act pertains to "renomination" of "outgoing member" of Haj Committee of India and not for the new appointee, as in the case of the petitioner. It is urged that respondent No.2 has wrongly interpreted Section 8(2) of the Act, to the effect that the member of Haj Committee of India can be in office for maximum of two terms only. According to learned counsel for the petitioner, the words "two terms" have to be construed to mean, 'continuous two terms without a break'. Here in this case, the petitioner was elected as a member in the year 2008-09 and 2010-13, therefore, much earlier to the election in the year 2016. Hence, the petitioner is not at all an "outgoing member" of the Committee, the term of which has expired on 5th May, 2016.
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It is further submitted that under Section 51 of the Haj Committee Act, the Union of India-respondent No.2 had no right to issue such a direction invalidating the election of a member or disqualifying a particular member of the State Haj Committee. Hence a plea is made that a writ of mandamus or a writ in the nature of mandamus be issued declaring the communication, issued vide letter dated 6th May, 2016 by respondent No.1 on the basis of communication dated 12th April, 2016 received from respondent No.2 as illegal and bad in law, in consequence respondent Nos.1 to 4 be directed not to take any action as contemplated in the letter dated 6th May, 2016.
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On behalf of respondent No.1, affidavit of its Joint Secretary is filed on record stating...
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