The Gujarat High Court converted one public interest litigation (PIL) into ‘Suo Motu Public Interest Litigation’ In re : Selection of one member of the Waqf Tribunal under Section 83 (4) (c) of the Waqf Act, 1995, and directed the office to register the same, accordingly.
The Division Bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi noted that in the affidavit dated 26.06.2024 filed by the Joint Secretary, Legal Department, State of Gujarat, Gandhinagar, assertion has been made to the effect that it is admitted that four criminal proceedings are pending against the respondent no. 2 who has been selected as Member of the Waqf Tribunal under Sections 83 (4) (c) of the Waqf Act, 1995 and there is a detailed description about the procedure adopted by the concerned department in making selection by inviting applications for eligible candidates as a Member within the meaning of Sections 83(4) (c) of the Waqf Act, 1995.
It is admitted that the respondent no. 2 did not mention the factum of pendency of the criminal proceedings against him in his application dated 12.09.2023.
The Court noted that out of four criminal cases lodged against respondent no. 2, namely Criminal Case of 2005, charge-sheet has been filed on 28.04.2004 and a warrant under Section 70 of the Code of Criminal Procedure has been issued by the competent Court. In another Criminal Case of 2004, also charge sheet was filed on 26.12.2004 and summons to witnesses have been issued under Sections 61 and 244 of Cr.P.C. The third Criminal Case of 2004, wherein charge sheet has been submitted, the matter is at stage of summoning of the witnesses under Sections 61 and 244 of the Code of Criminal Procedure.
Similarly, two more cases have been filed against the respondent no. 2 by his first wife for maintenance which are registered as Criminal Misc. Application of 2013 and Criminal Misc. Application of 2019 pending before the Family Court at Godhra. It is brought on record that against the order dated 11.11.2019 passed by the 3rd Additional District Judge, Godhra at Panchmahals, a Special Criminal Misc. Application of 2019 has been filed before the Court which is stated to be pending.
The stand of the Joint Secretary, Legal Department, in the affidavit filed on 26.06.2024 about the said criminal cases that the trials are not completed though charge sheets have been filed against the respondent no. 2, shows that an effort is being made by the State – respondents to sideline the issue, which is essentially of selection of a person as a Member of the Tribunal in the category of Sections 83(4) (c) of the Waqf Act, as the person having knowledge of Muslim Law Jurisprudence.
“We have serious doubts about the manner in which the selection has taken place and, moreover, there is no decision of the competent authority about the date of selection of the respondent no. 2 after the factum of three criminal cases lodged against him have been brought to its notice, more so, when there was no disclosure by the respondent no. 2 in the application filed by him for seeking appointment.”
The High Court , therefore, directed the Legal Secretary, Legal Department, Government of Gujarat to file his personal affidavit to disclose as to what decision has been taken by the competent authority after receipt of the information against the respondent no.2 about the criminal cases pending in the Courts concerned. The Legal Secretary, Government of Gujarat, is also required to explain as to how a person who has not disclosed his credentials at the time of seeking appointment can continue to occupy the position of a Member of Waqf Tribunal.
The complete information regarding the stages of the criminal cases along with the order-sheets shall also be brought on record along with the affidavit of the Legal Secretary. The entire record of the cases pertaining to the two applications for maintenance filed by the wife of the respondent no. 2 shall also be placed on record, the Court further directed.
Further referring to the affidavit filed by the respondent no. 2, advocate JT Trivedi raised vehement assertions with regard to the locus of the petition, with the contention that the certificate issued by the Gujarat State Waqf Board dated 16.02.2024 filed along with the affidavit dated 21.02.2024 filed by the petitioners, contains the information which is incorrect, inasmuch as, two of the persons who are shown as Mutawallis therein, have expired much earlier. The submission is that the statement of the petitioners that they are Mutawallis of Gujarat State Waqf Board is, thus, unbelievable.
The counsel for the petitioners on the other hand, submits that this statement is misconceived, inasmuch as, the petitioners have filed a change report before the Gujarat State Waqf Board, which is pending.
Having heard Brijesh Trivedi, advocate for the respondent no. 2, who is raising serious objections about the locus of the petitioners to maintain petition, having gone through the affidavit of the Joint Secretary, Legal Department, about admission of the factum of the pendency of the criminal cases against the respondent no. 2 and the fact of non-disclosure of the same in the application moved by the said respondent, the Bench finds that the issue is of public importance and cannot be sidelined on the ground of locus of the petitioners .