Haj Committee; Ebrahim Gulam Nabi Vs. State of Maharashtra [Bombay High Court, 28-07-2016]

Haj Committee Act, 2002 – Section 8(2) – Interpretation of – Reconstitution of Committee – 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.” Held,¬†the words “retiring” and “outgoing” respectively, are used in presente and coupled with the use of the word “renomination”, thereby clearly suggesting that, in the instant case also, if the petitioner was being considered for nomination for the third term, in continuation of his earlier two terms, he would not have been eligible. However, as the petitioner was holding the office of the membership in the past in the year 2008-09 and 2010-13, he is definitely not an “outgoing member” at the time of nomination in the year 2016. His nomination was also not in continuation of his earlier terms, hence it is not “renomination”.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CORAM : S.C. DHARMADHIKARI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

Judgment Pronounced on : 28.07.2016

WRIT PETITION (L) NO. 1357 OF 2016

Ibrahim Gulam Nabi Shaikh ] Age-59 years, Chairman, Maharashtra State Haj ] Committee, residing at Ayesha Apartment, ] 1st floor, 2nd Hasanabad Lane, Santacruz (West) ] Petitioner Mumbai – 400 054 and having his office at ] Sabu Siddick Musafirkhana, L. T. Marg, ] Mumbai – 400 001. ] Versus 1. State of Maharashtra ] through Principal Secretary, Minorities ] Development Department, Mantralaya, ] Mumbai – 400 032. ] 2. Union of India, through its Secretary (Haj) ] Ministry of External Affairs, Jawaharlal Nehru ] Bhavan, New Delhi 100 001. ] 3. Haj Committee of India ] Respondents a Committee duly constituted under the ] provision of Haj Committee Act, 2002, through ] its Chief Executive Officer, having its office at ] Haj House, 7A, M R A Marg, (Palton Road), ] Mumbai – 400 001. ] 4. The Maharashtra State Haj Committee ] through its Executive Officer having its office at ] Sabu Siddick Musafirkhana, Mumbai – 400 001. ] 2/18 WPL 1357-16 Mr. Hiralal Thacker, Senior Counsel a/w. Mr. Chirag Mody, Mr. Joseph Fernandes for the Petitioner. Mr. Umashankar Upadhyay, AGP for the Respondent No.1-State. Mr. Anil Singh, Additional Solicitor General a/w. Mr. Dhanesh R. Shah for respondent No.2.

JUDGMENT

(Per Dr. Shalini Phansalkar-Joshi, J.)

1. Rule. Rule returnable forthwith. With the consent of both the parties, heard finally at the stage of admission itself.

2. 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.”

3. For deciding this controversy, the relevant facts of the petition 3/18 WPL 1357-16 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.

4. 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 4/18 WPL 1357-16 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).

5. 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.

6. 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.

7. 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.

8. 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.

9. On behalf of respondent No.1, affidavit of its Joint Secretary is filed on record stating that the action taken against the petitioner is perfectly according to law, considering the very object behind Section 8(2) of the Haj Committee Act. It is submitted that, in view of the said provision, an outgoing member is not eligible for renomination for more than two tenures. In the instant case, the nomination of the petitioner, which is for the third time, being in violation of the provision under Section 8(2), his nomination was rightly not accepted by respondent No.2.Section 51 of the Act is implicit with the powers in the Union of India of giving such direction, in exercise of its powers and performance of its function under the Act, to the Committee or the State Government or the State Committee, as the case may be and such Committee shall be bound to comply with such directions.

10. The learned Additional Solicitor General, while countering the submissions of Mr. Thacker appearing for the petitioner contended that we must not ignore the object and purpose in inserting the provisions like section 8(2) of the Act. If the intent and purpose is that a person who has already held the office as a member of Haj Committee should not again be nominated, he having held this office twice in the past and for nearly four years, such a person should not be renominated. It is immaterial whether he was a member or not in the past. The intent is to give an opportunity to other eligible candidates and persons for nomination and repetition of the nominee would defeat the purpose. The object is also to suppress a mischief of the same person re-entering the office after some gap.

Therefore, an interpretation, which would advance this object and purpose and suppress the mischief should be placed on the provision.

11. According to learned Additional Solicitor General, considering the fact that Section 8(2) of the Act holds a very salutary object, which is, the same member not being reappointed or renominated again and again for more than two terms, allowing the petitioner to continue as a member for the third time will be in violation of the express embargo laid down in Section 8(2) of the Act. Hence, according to learned Additional Solicitor General, the Central Government was perfectly within its right, powers and discretion to reject the nomination of the petitioner as representative of the State of Maharashtra to the Haj Committee of India. The said action being legal and valid, no interference is warranted therein.

12. In the instant case, it is undisputed that the petitioner was elected as member in the year 2008-09 and 2010-13.

13. Now the petitioner is nominated as representative of Maharashtra State Haj Committee on the Haj Committee of India after his nomination was accepted and adopted unanimously. He is the only nominee. Therefore, he was elected in terms of the minutes of the meeting of the Maharashtra State Haj Committee held on 13th February, 2016.

14. It is in this context that we must note the submission of Mr. Singh the learned Additional Solicitor General. We have before us an Act to establish a Haj Committee of India and State Haj Committees for making arrangements for the pilgrimage of Muslims for Haj and for matters connected therewith. The term “Committee” is defined in Chapter I in section 2 clause (c) to mean the Haj Committee of India constituted under section 3. The term “member” means a member of the Haj Committee of India nominated under section 4 or of a State Haj Committee nominated under section 18, as the case may be, and includes the Chairperson and a Vice-Chairperson. The term “prescribed” is defined in section 2(g) and term “State Committee” is defined in section 2(h). Chapter II is entitled as “Haj Committee of India”. This is a committee which is a body corporate having perpetual succession and a common seal with powers as are mentioned in section 2(3) and its headquarters are at Mumbai. Its composition is in terms ofsection 4 and it consists of three members of parliament in terms of clause (i) of section 4. Nine Muslim members of the committee shall be elected; three from those States sending largest number of pilgrims during last three years and one each from the zones as specified in the Schedule, in such manner as may be prescribed.

Thereafter, there are four persons not below the rank of Joint Secretary to the Government of India nominated by that Government to represent the Ministries of External Affairs, Home, Finance and Civil Aviation and shall be ex officio members and seven Muslim members; two members who have special knowledge of public administration, finance, education, culture or social work and out of whom one shall be a Shia Muslim; two women members, out of them one shall be Shia Muslim and three members who have special knowledge of Muslim theology and law, out of them one shall be a Shia Muslim. Therefore, this committee consists of members of Parliament nominated by the Speaker and the Chairman of the Council of States and nine elected Muslim members as specified in section 4(ii) and ex officio members and such Muslim members who possess expertise and special knowledge in terms of section 4(iv). The notification of their nomination is to be published in terms of section 5.

Their term of office is specified by section 6 and by the proviso to sub-section (1), the term can be extended by the Central Government for the period specified in the proviso. Then comes the office of Chairperson and Vice-Chairperson. Section 7 in that regard reads thus:-