SC Deletes Part of Kerala HC Order Asking State Waqf Board to Function Under Joint Secretary

In a significant move, the Supreme Court on Tuesday directed deletion of a part of an interim order of the Kerala High Court which had asked the state Waqf Board to function under the supervision of a joint secretary.

Restoring the autonomy, a bench comprising Chief Justice Surya Kant and justices Joymalya Bagchi and Vipul M Pancholi modified the high court order and disposed of the appeals filed against the high court order.

"In view of the opening line of para 6 (of the high court order), whereunder the Board has been directed to not undertake any capital expenditure etc. without leave of the court, we are satisfied that there is no necessity for retention of last line of para 6 of the order.

"Consequently, the direction that the Board shall function under supervision of a joint secretary of the government is hereby deleted. The joint secretary being a member of the Board should continue to function in that capacity. Matter coming up before the High Court tomorrow. We ask the High Court to expeditiously decide the case after giving a fair opportunity to the parties to file claims/counter-claims…," the bench said in the order.

In its interim order on July 15, the Kerala High Court restrained the state Waqf Board from taking any major decision without its permission.

It had also directed that the Board shall not incur any capital expenditure or make any policy decision without the express leave of the court, a senior advocate associated with the case said.

The high court had passed the interim directions while hearing a batch of PILs alleging that the Board was functioning illegally as it did not include two non-Muslim members, as required under the Unified Waqf Management, Empowerment, Efficiency and Development Act.

Appearing for the Waqf Board, senior advocate Huzefa Ahmadi assailed the high court's order, submitting that the Board members had not even been served with copies of the petitions before such an "extraordinary order" was passed.

During the hearing, Justice Bagchi questioned the necessity of paralysing the functioning of the Board over the issue relating to the composition of its membership, observing, "Why should the Board be halted just because of this aspect only? Let us stay paragraph 6 (of the high court order)." Senior advocate Jaideep Gupta, appearing for the Kerala government, informed the bench that the matter was already listed before the high court for hearing.

Ahmadi alleged that the state was supporting the petitioners challenging the Board, saying, "Why are you supporting the petitioner? It is apparent to anyone with an ounce of common sense that you are supporting the petitioner." The bench held that there was no justification for retaining the portion of paragraph 6 of the high court's interim order that directed the Waqf Board to function under the supervision of the joint secretary of the state government dealing with Waqf matters.

The bench, however, clarified that the joint secretary may continue to function as a member of the Board, but not in any supervisory capacity.