The Madras High Court has ordered notice to the state minorities’ welfare department to file response to the Public Interest Litigation filed by a lawyer challenging the extraordinary order issued by the state dated 18th September, 2019 to take over the administration of Waqf Board.
Brief facts:
According to Section 14 of the Waqf Act, 1995 the board shall comprise of one chairperson, one or not more than two members to be elected from the electoral college which shall consist of Muslim Members of the Parliament, Muslim members of State Legislatures and Muslim Members of bar council of Tamil Nadu. In case there are no Muslim members in the bar council, the state government has to appoint two Muslim senior advocates.
Apart from the above members the state shall nominate one Muslim member who has a professional experience, one Muslim member who is a scholar in shia theology, one Muslim member who is a scholar in sunni theology and one Muslim who is the officer of the state government as members of the board. It is mandatory that the elected members should always be more in number than the nominated members failing which it shall be the violation of the act.
In the present case the election of the board was notified by the state minorities welfare department on 6th September, 2017. Through election one Muslim Member of the parliament, Two Muslim member of state legislature and two mutawalis were elected. Since there were no Muslim members in the bar council, Senior Advocates A.Sirajudeen and M.Ajmal Khan were appointed by the state government.
Thus the board consists of K.A.M. Mohamed Abubacker, Member of State Legislature, K.S.Masthan, Member of State Legislature, Kaja K Majeed and Syed Ali Akbar as mutawalis and senior advocates A.Sirajudeen and M Ajamal Khan as elected members of the board.
The state nominated Officer of the state M.A.Siddique, professional worker Tamil Mahan Hussain, Scholar in shia theology Amutul Athifa and Scholar in sunni theology A.S.Fathima Muzzaffa as nominated members of the board.
It is to be noted that Anwhar Raajha, Member of the parliament was appointed as the Chairperson of the board. He discontinued being the member of the Parliament after the parliamentary election conducted during May, 2018. Hence the post of Chairman was vacant for which MLA Abubacker who is also the member of the board approached the High Court of Madras for the appointment of chairman to the board.
Such being the case, on 18th September, 2019 based on the legal opinion obtained from experts, the government issued extraordinary order which states that considering the two senior advocates as nominated by the government, the nominated members of the board are more in number than the elected members of the board which is in violation of the act and the board is unable to perform its function. Hence the state government exercising its power conferred under Section 99 of the act superseded the administration of the waqf board for a period of six months. The state appointed M.A.Siddique, IAS as the special officer of the state to look after the administration of waqf board for a period of six months. Challenging the said order Public interest litigation is filed.
Key features
1. Section 14(4) of the act provides that at all times, the elected members should be more in number than the state nominated members.
2. The state obtains a legal opinion from experts which stated that the two senior advocates who were appointed by the state government can be considered as the state nominated members of the board.
3. Based on the legal opinion, the state issued show cause notice as per section 99 of the act to all the 10 members of the board regarding the dissolution of the board. The state called upon the members to respond to the notice within 7 days from the date of receipt of the notice.
4. Only 4 members of the board responded to the notice stating that the government cannot dissolve the board as the appointed senior advocates represent the elected members and they could not be considered as the state nominated members of the board.
5. Senior Advocate A.Sirajudeen instead of responding to the notice, submitted resignation letter stating personal reasons.
6. Under section 99 of the waqf Act, the state government is empowered to supersede the board if the board is unable to perform its functions. Exercising this power, the state superseded the waqf board for a period of 6 months.
7. The state as per section 99(2) of the act, appointed M.A.Siddique, IAS, principal secretary to government (expenditure) Finance department as special officer to look after the daily affairs of the board during the period of supersession.
Challenging the government order dated 20th September, 2019, Mr. Fazlur Rahman, Advocate filed a Public Interest Litigation in Madras High Court. The said case was listed before the division bench comprising Justice M.Sathyanaryanan and Justice Hemalatha.
The plea was duly admitted and the bench ordered notice to the respondent, the State Minorities Welfare board and further posted the case to be listed on 28th February, 2020 for the government to file its response to the plea.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
Reference:
1. Times of India, Tamil Nadu Government takeover of waqf Board Challenged, HC orders Notice,https://timesofindia.indiatimes.com/city/chennai/tamil-nadu-government-takeover-of waqf-board-challenged-hc-orders-notice/articleshow/73268948.cms (last visited on 17th January, 2020)
2. The Hindu, TN Governor supersedes Waqf Board, appoints special officer, https://www.thehindu.com/news/national/tamil-nadu/governor-supersedes-waqf-board-appoints-special-officer/article29462882.ece (last visited on 17th January, 2020)
3. DT Next, Waqf Board dissolved, Siddique made in-charge, https://www.dtnext.in/News/TamilNadu/2019/09/20040947/1178113/Waqf-Board-dissolved-Siddique-made-incharge.vpf (last visited on 17th January, 2020)
4. Deccan chronicle, Tamil Nadu Waqf board superseded, IAS officer to take charge, https://www.deccanchronicle.com/nation/current-affairs/200919/tamil-nadu-waqf-board-superseded-ias-officer-to-take-charge.html (last visited on 17th January, 2020)
5. The Waqf Act,1995
