High Court Under which authority of law, an administrator was appointed...

Under which authority of law, an administrator was appointed to Shia Waqf Board: Allahabad HC asks UP govt

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Lucknow, Mar 19 (ILNS) The Lucknow bench of the Allahabad High Court issued a notice to the Uttar Pradesh government on appointing an administrator to the Shia Waqf Board, asking “Under which authority of law, an administrator has been appointed on the board on March 16?”

A division bench of Justices DK Upadhyaya and Manish Kumar asked the government when would it initiate the process of election to constitute the board. The Court further directed that the Additional Chief Secretary/Principal Secretary of the State Government in the Department of Minority Welfare and Waqf shall depute an officer not below the rank of Special Secretary to be present before this Court for reply and fixed the next date of hearing to March 25.

The Court passed the order on a writ petition moved by Asad Ali Khan, through his lawyer Abhinab Singh, who pleaded that there was no provision under the Waqf Act, 1955 and the rules framed under it for the appointment of an administrator in the board, in case the elections could not be held on time.

In the course of the hearing, the bench found out that the last election of the board was held on May 19, 2015 for a term of five years and the term of the elected body expired on May 19, 2020.

“We can understand that at the time when the term of outgoing members of the Waqf Board came to an end on account of situation created because of the pandemic caused by COVID-19, the elections could not have been possible”, the Court said.

The court observed, “However, what we find disturbing is that under the scheme of Waqf Act 1995, there is no authority vested in the State Government to appoint an administrator. It is noticeable that the administrator has been appointed only on March 16, 2021.

“The affairs of the Waqf in the State of UP are to be governed by the statutory provisions contained in the Waqf Act, 1995 enacted by Parliament. Any legislation passed or enacted by the Central or State Legislature is, in effect, an expression of the people of the country or the State, as the case may be,” added the Bench.

For conducting elections of the Waqf Board, the state government has framed statutory Rules known as the “Uttar Pradesh Shia Central Waqf Board and Uttar Pradesh Sunni Central Waqf Board Conduct of Election Rules, 1997.”

In Rule 2 (e) of the Rules, 1997, the Election Authority has been defined to mean the Secretary of Government in the Department of Minority Welfare and Waqf. Rule 3 provides a complete administrative machinery for conduct of elections which inter alia provides that the superintendence, direction, control and conduct of election of members of Waqf Board shall be the responsibility of the Election Authority.

The Court stated that the term of members of the Waqf Board had come to an end, a period of about 10 months has elapsed, but there does not appear to be in sight any efforts or endeavour made by the Election Authority to conduct the election for constituting the Board, though it is under legislative mandate to get the election conducted. Such an inaction on the part of the State Government and the Election Authority can not be appreciated as the same goes, against the mandate of the legislature, it added.

Even in the instructions contained in the letter dated March 16, 2021, it has only been stated that the matter relating to conduct of election is under consideration at a higher level. In view of the clear mandate as contained in the Waqf Act 1995 and the Rules, 1997, a legislative endeavour has been made to make the functioning of the Waqf Board democratic and that is how the provision for constitution of Waqf Board through nomination as also by election of members has been made, said the Bench.

In case the Waqf Board is not constituted and elections are not held for a long period and in the meantime, an administrator is appointed (though such appointment is not supported by any provision of Waqf Act, 1995), the very spirit of legislature in making functioning of Board democratic gets withered away. It is the responsibility of all concerned, including the executive, not only to ensure statutory compliance’s as mandated by the legislature, but also strengthen the democratic functioning of all institutions, including the Waqf Board, it noted.

The Court directed that by the next date of listing, the State Government shall explain as to under which authority of law the administrator has been appointed vide its order dated  March 16, 2021. The State Government shall also apprise the Court as to when the election process for constituting the Shia Waqf Board will be initiated.

The Court expect and hope that in tune with the legislative mandate contained in Waqf Act 1995 and the 1997 Rules, the election process to constitute Shia Waqf Board shall be initiated at the earliest, the Bench observed. ILNS/SNG/RJ

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