Court holds government has implied power to revoke earlier appointments; reconstitution subject to final outcome of pending writ petitions and PILs
In a significant judgment dated October 17, 2026, the Kerala High Court, through Justice S. Manu, declined to grant an interim stay on the Government of Kerala's order reconstituting the Kerala State Waqf Board. The government had issued Government Order (G.O.) No. 318/2026/RD dated October 16, 2026, nominating nine members to the Waqf Board, superseding earlier notifications. The move was challenged by petitioners who contended that the government lacked authority to reconstitute the Board except in strict compliance with Sections 14, 20, and 99 of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 (the Waqf Act).
The petitioners argued that the government's action violated prior interim orders passed by a Division Bench of the Kerala High Court in four pending Public Interest Litigations (PILs). They further contended that the government had acted malafidely by issuing the new notification during a court recess, circumventing judicial scrutiny, and without following the mandatory procedures under the Waqf Act, including the principles of natural justice.
The State, represented by the Additional Advocate General, countered these claims by asserting that the earlier notification nominating members was issued in violation of Section 14 of the Waqf Act, particularly as no determination under Section 14(6) was conducted before the earlier appointments. The government affirmed it had complied with the Division Bench's directions to reconstitute the Board in accordance with law, including filling vacancies and ensuring representation from the Bohra community. The government also cited the Supreme Court's ruling in State of Maharashtra v. Shaikh Mahemud (2022), which recognized that the power to appoint members to the Waqf Board necessarily includes the power to cancel such appointments.
In its detailed order, the Single Judge observed that the Division Bench had not restrained the State Government from taking appropriate steps to ensure the constitution of the Board aligned with the statutory provisions. The Court referred to the Division Bench's order dated August 19, 2026, which explicitly permitted the government to either fill vacancies or take any other decision deemed fit regarding the Board's constitution. Additionally, the order dated October 14, 2026, allowed a two-week adjournment to enable completion of the reconstitution.
Crucially, the Court held that the government's power to appoint members carries an implied power to revoke earlier appointments, following the Supreme Court precedent. Therefore, the Court found no prima facie reason to stay the operation of the impugned government order.
However, recognizing the serious and complex issues raised-including the legality of the reconstitution, compliance with the Waqf Act's requirements, and the pending PILs-the Court directed that the reconstitution under the impugned notification would remain subject to the final outcome of the writ petitions. Furthermore, the Court exercised its power under Section 3 of the Kerala High Court Act to transfer these writ petitions for hearing and determination by the Division Bench, as the matters are intricately connected with the pending PILs before it.
The judgment clarifies the scope of governmental powers in managing Waqf Boards, balancing statutory mandates with administrative necessities. It also underscores the judiciary's cautious approach in granting interim relief when substantial questions of law require thorough examination.
Bottom Line:
Waqf Act/Waqf Board - Challenge to Government Order reconstituting Kerala State Waqf Board in supersession of earlier notifications - Interim stay refused - Prima facie, Division Bench orders in pending PILs did not restrain State from reconstituting Board and power to appoint includes implied power to cancel appointments - Reconstitution made subject to final outcome of writ petitions and matters directed to be placed before Division Bench.
Statutory provision(s):
Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995 - Sections 14, 15, 16, 20, 99; Constitution of India, Article 226
K.S.Hamza v. State of Keralam, (Kerala) : Law Finder Doc Id # 2999278
