Kerala High Court Refuses To Stay Reconstitution Of State Waqf Board, Says New Members Have Already Assumed Office

The Kerala High Court on Friday (October 23) issued notice before admission on the appeals challenging a Single Bench order refusing to stay a government order (GO) reconstituting the State Waqf Board.

The Division Bench of Justice Devan Ramachandran and Justice Basant Balaji today heard detailed arguments by Senior Advocate S. Sreekumar and Advocate P. Chandrasekhar for the appellants, and Advocate General K. Jaju Babu for the State. It then issued notice by special messenger to the members of the reconstituted Board and posted the case to Thursday (October 29).

The Bench declined an interim stay and remarked that the question of stay of the GO would not even arise since it has already been implemented and the new Board members have taken office:

"Sri. S. Sreekumar, the senior counsel appearing in one of the writ appeals has sought interim orders. We are afraid that we cannot accede to that request because we are told by the learned Advocate General that the impugned notification has been put into effect and the new Waqf Board has taken office."

The appeals are moved by C.K. Usman Haji, who was a member of the Board prior to the reconstitution and former Board chairman K.S. Hamza. They had moved two separate writ petitions before the Single Bench challenging the State Government's order dated October 16 reconstituting the State Waqf Board and appointing 9 new members. The order under challenge had superseded two earlier GOs that appointed the chairperson and members of the Board.

However, the Single Bench refused to stay the October 16 order but made it clear that the Board's reconstitution would be subject to the outcome of the two writ petitions challenging the order. The Single Bench had also referred the writ petitions before the Division Bench, which is presently hearing four separate public interest litigations having similar issues. Challenging the Single Bench order, the two have now approached the Division Bench in appeal.

Notably, Hamza had also moved an interim application (IA) before the Bench hearing the PILs, seeking a direction to the State not to reconstitute the Board. Today, the AG pointed out that no direction as requested was given and that the Bench had directed that the Board be reconstituted. Addressing the argument, the Court today said:

"The Division Bench did not say reconstitute. They said we are recording your submission that you are reconstituting...The Division Bench was aware of it. It only means that the learned Division Bench was appraised of the factum of the government contemplating a reconstitution...The Division Bench could never have allowed this IA. Because this was not the issue....The Division Bench was only concerned whether the Board before it was as per the Act. Or the worst the Division Bench could have said, or can say in the future, in the PIL would be to either say that the Board is okay or that the Board is bad. If it is okay, the PILs will be dismissed. If it is bad, the PILs will have to be allowed with directions. Here, both have not happened. Because, interveningly, you have now decided to reconstitute, on your own."

The AG clarified that the permission granted was not a simple direction, the matter was argued for several days, and the Division Bench was monitoring the matter.

While hearing the appeals today, the Bench orally added that the question to be considered is whether the Single Bench was right in referring the writ petitions to the Division Bench or the Single Bench ought to have heard the pleas itself.

Counsel for the appellant: Sunil Nair Palakkat, Rishi Varma T.R., Rithik S.Anand, M.A.Mohammed Siraj, Alfiya Shamsudheen, Teena M. Ashok

Counsel for the respondents: K. Jaju Babu