The Kerala High Court has declined interim relief against the State’s Waqf Board reconstitution while hearing appeals against a Single Judge’s order, and has directed notice to the newly appointed members.
Kochi: A Division Bench of the Kerala High Court on Friday declined to grant interim relief in appeals challenging a Single Judge’s refusal to stay the Kerala government’s order reconstituting the State Waqf Board, noting that the new Board has already been constituted, and ordered notice before admission to the respondents, including the new members [Writ appeals arising from W.P.(C) Nos. 36037 and 36041 of 2026].
The Bench of Justice Devan Ramachandran and Justice Basant Balaji permitted the appellants to serve notice through a single special messenger and posted the matter to next Thursday, 29 October, for further consideration and to verify whether notices have been served.
How the case reached here
The reconstitution has been before the High Court in several forms. Public interest litigations concerning the Board, including W.P.(PIL) No. 135 of 2026, are being heard by a Division Bench of Chief Justice Soumen Sen and Justice Syam Kumar V.M. On 19 August, that Bench adjourned the matter to 30 September after recording the Advocate General’s statement that the State had initiated the process of filling the vacancies on the Board. On 14 October, on the Advocate General’s request, it adjourned the matter by two weeks to enable completion of the reconstitution.
On 16 October, the State issued G.O.(P) No. 318/2026/RD nominating nine members in supersession of two earlier notifications, one of 4 February 2026 and one of 13 March 2026. The State’s stated reason, as recorded in the Single Judge’s order, was that the earlier notification had been issued without the determination required under Section 14(6) of the Waqf Act, and that the fresh order addressed the requirement relating to a Bohra member.
The State told the court that two statutory vacancies, one for a Member of Parliament and one for a Bar Council member, were being kept in abeyance pending a Supreme Court case on the requirement of non-Muslim members, and that it would nominate non-Muslim members if the Supreme Court upholds the provision.
The petitioners, K.S. Hamza and C.K. Usman Haji, challenged the order in writ petitions. They contended that only Sections 20 and 99 of the Act permit removal or supersession of Board members. The State contended that it relied on an implied power to cancel appointments and not on those provisions.
The Single Judge’s order
Justice S. Manu, sitting on Saturday, 17 October, declined to stay the order. Referring to the Supreme Court’s ruling in State of Maharashtra v. Shaikh Mahemud (2022), he observed that the power to appoint members would include the power to cancel an appointment. He held:
“Hence the request to stay the operation of Ext P9 is rejected. Nevertheless, as formidable contentions which would require elaborate reflection are raised in these writ petitions, I direct that reconstitution of the Board by Ext.P9 shall be subject to the outcome of these writ petitions.”
He also issued notice to the respondents and, invoking Section 3 of the Kerala High Court Act, adjourned the writ petitions for hearing and determination by the Division Bench hearing the connected public interest litigations.
What the Division Bench examined on Friday
The Division Bench noted that the questions before it were whether the Single Judge was right in referring the writ petitions to the Division Bench, and whether the Single Judge himself ought to have heard the pleas, which were filed as a miscellaneous matter challenging the reconstitution. Advocate General K. Jaju Babu pointed out that Hamza had moved an interim application in the public interest litigation seeking a direction not to reconstitute the Board, and that the Division Bench seized of those petitions had not permitted it.
Orally, the Bench told the Advocate General that it was requesting the parties to confine the arguments to the power of the Single Judge to refer the matters to the Division Bench, and that it would decide whether the Single Judge’s adjournment was right. The Bench remarked that if the adjournment was right, it would do nothing. It observed that the question of stay does not arise since the new Board has already been constituted. The Advocate General also pointed out that the public interest litigations are posted before the other Division Bench on Wednesday, 28 October.
The interim order
In its dictated order, the Bench recorded that the senior counsel appearing in one of the writ appeals had sought interim orders, and said it was unable to accede to the request because the Advocate General had told it that the impugned notification had been put into effect and that the new Board had already taken charge. The Court ordered notice before admission to the party respondents, including the new Board members, by special messenger.
Why the order matters
The Division Bench has so far confined itself to the procedural question of where the challenge should be heard, and has expressed no view on whether the reconstitution is valid under the Waqf Act. The Single Judge’s direction that the reconstitution remains subject to the outcome of the writ petitions continues to govern the position, and both the validity of the State’s power to supersede earlier appointments and the pending Supreme Court question on non-Muslim members remain open.
The contentions recorded above are those of the petitioners and the State, and the High Court has made no final finding on them.
Case Title: Writ appeals arising from K.S. Hamza and C.K. Usman Haji petitions [W.P.(C) Nos. 36037 and 36041 of 2026]
Bench: Justice Devan Ramachandran and Justice Basant Balaji, Kerala High Court
Date of Hearing: October 23, 2026 (Single Judge’s order: October 17, 2026)
Appearances: Advocate General K. Jaju Babu for the State