'No Emergent Situation To Extend Tenure': Allahabad High Court Directs Govt To Hold Fresh Elections To UP Sunni Central Waqf Board

A bench comprising of Chief Justice Govind Mathur and Justice SS Shamshery appointed Principal Secretary to the Department of Minority Welfare & Waqf of the UP Government, as an Administrator of the Board until such period.

The Court ordered,

"The Principal Secretary, Government of U.P., Department of Minority Welfare and Waqf is appointed as an Administrator of the Sunni Central Waqf Board to manage day today affairs of the Board, He would, however, not be eligible to take any policy decision relating to Sunni Central Waqf Board. The Administrator shall also ensure holding of the elections and to give charge to an elected Board on or before 28^th February, 2021."

The order was passed while hearing two petitions against Government orders dated July 1, 2020, and September 30, 2020, extending the tenure of the Board by six months each.

Background

The term of the UP Sunni Central Waqf Board was to expire on 1st April, 2020. Citing Covid-19 pandemic, the Government on July 1, 2020 extended the term of the Board by six months. Thereafter, on September 30, 2020, the tenure was once again extended for six months.

The Petitioners had challenged these orders, stating that the Waqf Act, 1995 does not empower State of Uttar Pradesh to extend the term of an elected Board. In absence of any such authority the extension of the term of the Board vide office memorandum impugned is bad, argued Senior Advocate SFA Naqvi.

The Government on the other hand argued that in the month of April, 2020 the pandemic was at peak and the entire country was facing a lockdown. In this period, the provisions of the Disaster Management Act, 2005 were also in application. Hence, it was not possible to hold elections of the Board and, therefore, term of that was extended. The pandemic was in its full swing even in the month of September and subsequent thereto. Hence, the term of the Board was further extended for six months.

Findings

The Division Bench observed that since the tenure of the Board was to expire in April 2020, the Government should have been vigilant enough to initiate the process of holding elections in the month of February, 2020 itself.

Be that as it may, the Bench observed,

"True it is, the term of the Board came to be expired at 00 hours on 1 st April, 2020 but for all practical purposes it was working and the government on 1st July, 2020 looking to the necessity extended the term. No one can deny that upto 31st May, 2020 entire nation was facing stringent checks pertaining to lockdown. In that period, no election could have taken place and even prior to 1st April, 2020 at least subsequent to 24th March, 2020 the elections could have not been taken place. In such circumstances, the necessity demanded extension of the term of U.P. Sunni Central Waqf Board."

Thus, the Court did not deem it fit to interfere with the July order.

Coming to the order passed on September 30, 2020, the Bench opined that necessity as available to the State during the lockdown and first phase of unlocking was not available on 30th September, 2020.

"The State Government, if would have been vigilant enough could have hold the elections in the months of August and September, 2020. It would also be appropriate to state that the number of voters for electing Wqaf Board is too less and voting of such number of voters could have been controlled with application of COVID-19 protocol including social distancing. In the month of September, 2020 elections of several other bodies including legislative assembly were notified in the country. We failed to understand as to why the respondents did not chose to hold timely elections," the Bench remarked.

It held that no reason was available to the Government for not holding the elections and for further extension of the term of Waqf Board subsequent to 1st October, 2020. Thus, the order dated 30th September, 2020 was set aside as "beyond authority" and as "not founded on any emergent necessity".

The Court added,

"Elections for a democratically elected body are sine qua non for application of democratic values and working of the institution accordingly. Such functioning should have not been compromised at any -5- cost. Election of such body could be deferred only in most emergent and extraordinary circumstances."

In this backdrop, the Administrator is appointed with directions to hold elections and ensure that a new elected Board takes charge by February 28.

It is clarified that the Administrator shall not be eligible to take any policy decision relating to Sunni Central Waqf Board. Further, the administrative decisions taken by the UP Sunni Central Waqf Board during its extended term shall not be invalidated on the count of setting aside of the order dated 30th September, 2020.

Case Title: Wasim Uddin & Anr. v. State of UP & Anr.

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