Kerala High Court refuses to stay State's reconstitution of Waqf Board

The Kerala High Court has refused to stay the State government's decision to reconstitute the Kerala State Waqf Board by replacing its existing members with nine newly nominated members. [KS Hamza v State of Keralam & ors and connected case]

Justice S Manu passed the order at a special sitting held on Saturday, October 17 to consider two petitions challenging the government's October 16 notification nominating new members to the board.

The Court examined whether the government had the authority to cancel the appointments of existing Waqf Board members and nominate new members in their place.

It also considered whether the government's decision to replace the existing members was consistent with what it had earlier submitted before a division bench about filling only vacancies on the Board.

The Court found that the State government had not acted contrary to the earlier Division Bench orders which had permitted the government to take appropriate steps to ensure that the Board was constituted in accordance with law.

"Prima facie, I do not find merit in the submissions made on behalf of the petitioners that reconstitution of the Board is not in accordance with the submissions made before the Division Bench and orders passed in the PILs," the Court observed.

On the question of the government's power to cancel existing appointments, the Court relied on the Supreme Court's judgement in The State of Maharashtra v Shaikh Mahemud & Another which held that the authority to appoint Waqf Board members also included the authority to cancel their appointments.

The petitions were filed by KS Hamza and CK Usman Haji, who were the chairperson and member of the Board before its reconstitution.

The dispute arose against the backdrop of earlier public interest litigation petitions challenging the composition of the State Waqf Board wherein a division bench had, among other directions, asked the government to fill vacancies in the Board as per law.

The petitioners submitted that the government had no authority to remove the existing members without following the procedure prescribed under Sections 20 and 99 of the newly amended Waqf Act i.e. Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 (UMEED Act), which deals with the removal of members and supersession of the Board.

However, the State government argued that the earlier board had been constituted without complying with Section 14 of the Act, particularly the requirements concerning representation of different Muslim communities.

The government explained that it had exercised its implied power to cancel the appointments made earlier and constituted the Board afresh in accordance with Section 14.

After hearing the submissions, the Court observed that there were several legal questions which required a detailed consideration including the validity of the Board's reconstitution at this stage.

Accordingly, it refused to stay the October 16 notification and referred both petitions to a division bench which is hearing related petitions.

Advocates P Chandrasekhar, Manu V, Anand Sankar, Farhana Kabeer, Sreejith A, Sunil Nair Palakkat, Rishi Varma TR, Rithik S Anand, MA Mohammed Siraj, Alfiya Shamsudheen and Teena M Ashok appeared for the petitioners.

Additional Advocate General Mohammed Shah PA represented the State, while Standing counsel Jamsheed Hafiz appeared for the Waqf Board.

[Read Order]