At the special sitting on Saturday (October 17) Justice S Manu passed the above order after considering two petitions challenging the action of the Government.

Kerala HC refuses to stay the decision of the State govt to reconstitute the Kerala State Waqf Board with 9 new nominees in place of existing members.

At the special sitting on Saturday (October 17) to hear two petitions questioning the Government notification dated October 16 naming new members to the board, Justice S Manu passed the above order.

The court considered whether the Government can cancel the appointment of members of the Waqf Board and name new members.

Whether the Government action in naming new members was in accordance with their previous submission before division bench that the vacancies in the board will be filled.

The Court was of the view that the State Govt did not violate any of the earlier Division Bench orders which directed the Government to take steps to constitute the Board as per law.

"I find prima facie that the contentions raised on behalf of the petitioners that the reconstitution of the board is not as per the submission made before the Division Bench and orders passed in the PILs is not tenable", said the court.

With respect to cancellation of appointment of existing members the Court noted the decision of the Supreme Court in the case of The State of Maharashtra v Shaikh Mahemud & Another where it was held that the power to appoint members of the Waqf Board is also implied the power to cancel such appointments.

KS Hamza who was the chairperson of the Board prior to its reconstitution and CK Usman Haji who was a member filed the petition.

This matter came up on the backdrop of PILs challenging the constitution of the State Waqf Board where a division bench had ordered the Government to fill the vacancies in the board in accordance with law among others.

It was contended on behalf of the petitioners that the Government cannot cancel the appointment of existing members without going through the procedure provided under Sections 20 and 99 of the newly amended Waqf Act i.e. the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 (UMEED Act) which provides for removal of members and supersession of the Board.

The State on the other hand stated that the earlier board was not constituted as per Section 14 of the Act with due regard to various denominations of Muslims.

The Government used its implied power to cancel the earlier appointed members and reconstituted the board in accordance with Section 14.

After hearing the parties the Court felt that many issues need to be addressed in detail including the reconstitution of the board at this point of time.

Hence, it refused to stay the notification dated October 16 and remanded both the petitions before the division bench which has the petitions pending.