State Waqf Board Orders Must Be Challenged Before Waqf Tribunal; High Court Can Be Approached Only If Tribunal Non-Functional: Kerala High Court

The Division Bench of Justice Anil K. Narendran and Justice Muralee Krishna S. added that writ jurisdiction of High Court can be invoked only in cases where there is no Tribunal established or the Tribunal is not functioning.

The Court observed:

“In view of the proviso to sub-section (2) of Section 83 of the 1995 Act, inserted by the Waqf (Amendment) Act, 2025, a challenge against an order made under the Act, or rules made thereunder, can be entertained by the High Court if there is no Tribunal constituted under sub-section (1) of Section 83 or the Tribunal is not functioning. Therefore, when the State Government, by notification in the Official Gazette, has constituted the Waqf Tribunal and the said Tribunal is functioning, a mutawalli interested in a waqf or any other person aggrieved by an order made under the Act, or rules made thereunder, has to invoke the statutory remedy provided under sub-section (2) of Section 83 of the 1995 Act, by approaching the Waqf Tribunal, instead of challenging the said order by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.”

The party respondents had preferred a petition before the State Waqf Board a alleging that Eriyad Mosque and Eriyad Mahallu Jama-ath (the waqf) is not being properly managed by the petitioners and proper accounts are not regularly submitted before the Board. The Board had passed three orders in the interlocutory applications in the plea, one of which directed the Division Waqf Officer to conduct an inquiry and submit a report.

In one of the orders, the respondents before the Board were restrained from conducting election to the Jama-ath committee without prior permission of the Board. Vide one order, the Board had directed the Division Waqf Officer to carry out audit of accounts of the Jama-aath from 2019-2025 through an empanelled auditor. The Officer was also directed to seek explanation and give necessary direction to cure the defects that the auditor may point out. Any amount recovered was to be placed before the Board on the administrative side.

These interim orders were challenged before the High Court alleging that these seriously affected the day-to-day management of the affairs of the waqf. The petitioners contended that they could have submitted the audited accounts if reasonable opportunity was given and convinced the Board that further audit was not needed. They also pointed out that all elections to the Managing Committee was properly conducted in accordance with the bye-laws of the waqf.

At the outset, the Court considered the question whether writ jurisdiction can be invoked to challenge the orders of the Waqf Board. It referred to various provisions of the Act, including Sections 32, 47, 63, 69, 70, and 83 as well as the Apex Court decision in West Bengal Wakf Board v. Anis Fatma Begum [(2010) 14 SCC 588].

The Court was of the view that High Courts should refrain from entertaining challenges to orders passed under the Act when there are Waqf Tribunals functioning. It then asked the petitioners to approach the Waqf Tribunal instead.

Thus, the Court dismissed the plea, finding that the same was not maintainable.

Case No: W.P.(C) No. 47612 of 2025

Case Title: Eriyad Palli @ Eriyad Mahallu Jama-Ath and Ors. v. Aboobacker K.M. and Ors.

Citation: 2026 LiveLaw (Ker) 267

Counsel for the petitioners: M.R. Mini, K.K. Mohamed Ravuf

Counsel for the respondents: T. Krishnanunni (Sr.), Jamsheed Hafiz – Standing Counsel – Waqf Board

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