The J&K&L High Court while disposing off a bunch of Writ Petitions under Article 226 ruled that neither the Board of Auqaf falls within the definition of ‘State’ under Article 12 of the Constitution, nor does it perform any public function or duty, as such, no Writ under Article 226 of the Constitution shall lie against it.

The Petitioners before the Court were licensees of Waqf properties, who had challenged ex-parte enhancement of rentals by the Waqf Board. However, the counsel appearing for the Waqf Board raised a preliminary objection to the maintainability of the Petition on the ground that under the Waqf Act, 1995, the Waqf Board is neither a State nor any person or authority amenable to the writ jurisdiction of the Court under Article 226.

The Court, while relying on the three tests laid down in the case of Pradeep Kumar Biswas vs Indian Institute of Chemical Biology reported in 2002(5) SCC 111 for determining whether an authority is ‘State’ under Article 12, i.e., the authority is financially, functionally and administratively controlled by the Government, evaluated the provisions of the Waqf Act, held that no doubt the Board of Auqaf constituted by the State Government under Section 13 of the Act is a statutory body but the same is not under direct, deep, and pervasive control of the Government, and as such does not qualify to be “State‟ as contained under Article 12 of the Constitution of India.

The Court noted that even though the Board of Auqaf does not fall within the definition of term “State‟ contained in Article 12, yet a writ under Article 226 would lie if it is found that the Board is performing public functions and the impugned action taken by it involves a public law element in it, however, the function of the Board of Auqaf entering into lease agreements with private individuals in respect of Waqf properties is more of a commercial/contractual nature rather than a public function, and the Board while issuing orders, directions or notices regulating the lease of properties vested in it to private individual(s) for generating funds, neither performs any public function/duty nor such order, direction or notice involves any public law element.

The High Court, further considered another important aspect of the matter that, in terms of Section 85 of the Act, jurisdiction of civil Courts, revenue Courts and any other authority is completely barred, while as, under Section 83 the Government is obliged to constitute Tribunal(s) which shall have jurisdiction to determine any dispute relating to Waqf property.

The Court, however, noted that in absence of any such Tribunal in the UT of J&K, not entertaining the Writ Petitions will make the Petitioners remediless. Nevertheless, the Court declined to entertain the Writ Petitions upon an observation that had the Court come to a conclusion that writ petition against the Board of Auqaf was amenable to writ jurisdiction, it would not have relegated the petitioners to the remedy before the Tribunal for the simple reason that the Tribunal does not exist. However, when the Board is not amenable to the Writ jurisdiction, the Court held, the question of entertaining of a petition under Article 226 despite availability of statutory alternative remedy would not arise. However, the Court, in order to protect the interests of the Petitioners, dismissed the Petitions with a direction to the Union Territory of J&K to constitute one or more Tribunals, as it may think fit, in terms of Section 83 of the Act within a period of two months from the date of the judgment, and till that time ordered maintenance of status quo with regard to the subject matter of the writ petitions.