"Under Which Authority Of Law Shia Waqf Board-Administrator Appointed When Waqf Act Doesn't Permit So?": Allahabad High Court To Govt.

Further noting that an administrator was appointed only on 16^th March 2021, the Bench of Justice Devendra Kumar Upadhyaya and Justice Manish Kumar found it 'disturbing' as it observed that under the scheme of Waqf Act 1995, there is no authority vested in the State Government to appoint an administrator.

State submissions before the Court

The Court was apprised by the State Government that the Shia Waqf Board was last constituted by notification dated 19^th May 2015 as per the provisions contained in the Waqf Act, 1995.

It was also submitted that the term of Waqf Board as described in Section 15 of the Act is five years and the term of members of the Waqf Board had come to an end on 19^th May 2020.

It was further stated before the Court that since the election to constitute Shia Waqf Board could not take place on account of COVID-19, the Government appointed the administrator on 16^th March 2021.

Court's observations

At the outset, the Court observed that it was understandable that because of the pandemic, the elections could not take place, however, it did express displeasure with the fact that Government went ahead to appoint the administrator.

The Court observed,

"The affairs of the Waqf in the State of U.P. are to be governed by the statutory provisions contained in the Waqf Act, 1995 enacted by the 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."

Significantly, underling that the scheme of Waqf Act 1995 does not provide for the appointment of an administrator, the Court also observed,

"From the date the expiry of the term of members of the Waqf Board till yesterday there was a complete vacuum and such inaction on the part of State Government or its authorities in getting the election of Waqf Board conducted is in complete derogation and contravention of the provision of the aforementioned legislation."

The Court also expressed its disappointment with the fact that since the term of members of the Waqf Board had come to an end, a period of about 10 months had elapsed, but there was no efforts or endeavor made by the Election Authority to conduct the election for constituting the Board.

"Such an inaction on the part of the State Government and the Election Authority can't be appreciated as the same goes, as observed above, against the mandate of the legislature", the Court added.

Further, the Court also remarked that 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, the very spirit of the legislature in making the functioning of the Board democratic gets withered away.

"It is the responsibility of all concerned including the executive not only to ensure statutory compliances as mandated by the legislature but also to strengthen the democratic functioning of all institutions including Waqf Board," the Court concluded while asking the State Government to apprise the Court as to when the election process for constituting the Shia Waqf Board will be initiated.

Lastly, the Additional Chief Secretary/Principal Secretary of the State Government in the Department of Minority Welfare and Waqf was directed to depute an officer not below the rank of Special Secretary to be present before the Court for its assistance.

The matter has been listed for further hearing on 25^th March 2021.

Case title - Asad Ali Khan v. State Of U.P. Thru. Prin. Secy. Minority Welfare/Waqf, Lko. & Anr. [Misc. Bench No. - 6591 of 2021]

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