Kerala High Court refuses to stay State decision to reconstitute Waqf Board

The Kerala High Court on Friday declined to stay State government's decision to reconstitute the Kerala State Waqf Board, observing that the newly appointed board has already assumed office [CK Usman Haji v Union of India & ors and connected case]

A bench of Justice Devan Ramachandran and Justice Basant Balaji was considering the appeals challenging a single-bench‘s order refusing to stay the government notification nominating new members to the board.

"We are afraid that we cannot accede to it. Because we are told by the AG that the impugned notification has been put into effect and the new Waqf Board has taken office," Justice Ramachandran said while refusing to grant the interim relief in the matter

The Court directed the appellants to serve notice on the newly appointed board members and posted the matter for further consideration on October 29.

Earlier, a single judge had prima facie found that the government's decision was not contrary to earlier Division Bench orders concerning the board's composition.

The judge had referred both petitions to the division bench which is hearing related petitions for consideration of the larger legal issues involved in this matter.

The order was challenged by KS Hamza and CK Usman Haji, the former chairperson and member of the board, respectively.

During the hearing, the Court today asked the government whether the division bench considering the PILs concerning the composition of the Waqf Board had expressly directed the government to reconstitute it.

Advocate General Jaju Babu submitted that the government had informed the division bench about the proposed reconstitution.

Justice Ramachandran said the bench had only recorded the submission.

"Then the bench did not say reconstitute, they said we are recording your submission that you reconstitute. That only means the Division Bench was apprised of the fact of the government contemplating a reconstitution," the Court said.

The dispute in the present case is connected to public interest litigation petitions challenging the composition of the State Waqf Board.

A division bench, among other directions, had asked the government to fill vacancies in the board as per law.

After the government reconstituted the board, it was challenged by the appellants.

They have argued that the government removed the existing members barely eight months into their statutory five-year tenure without following the procedure prescribed under law.

The appeals states that Section 15 of the newly amended Waqf Act i.e. Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 (UMEED Act), provides a five-year tenure for board members, while Sections 20 and 99 prescribe the procedure for removing members and superseding the board.

According to the appellants, the government cannot bypass these provisions by invoking its implied power to cancel appointments.

Advocate General Jaju Babu represented the State, while Standing counsel Jamsheed Hafiz appeared for the Waqf Board.

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 appellants.

Senior counsel S Sreekumar appeared for the Union of India.

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