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Synopsis

The Kerala High Court recently quashed the State Government’s appointment of a Commission of Inquiry tasked with resolving ownership disputes between local residents and the Waqf Board, ruling that such commission lacked legal validity as only the Waqf Board could make a determination regarding the waqf status of a property, and such a decision could only be reviewed by the Tribunal.

The court, presided over by Justice Bechu Kurian Thomas, observed: “This Court cannot be oblivious of the scheme of the Waqf Act, 1995. As per the said statute, when a question on the waqf character of a property arises, only the Waqf Board and no other authority can decide the said question. As per Section 40(2) of the Act, the decision of the Waqf Board in that regard is final and can be revoked or modified only by the Tribunal…A Commission of Inquiry appointed under the CoI Act (Commissions of Inquiry Act, 1952), cannot consider the nature of the document or even whether it is a waqf property or not.”

The court was hearing a batch of writ petitions, challenging a Government Order appointing Justice C.N. Ramachandran Nair, a former Judge of the Kerala High Court, as the Commission of Inquiry to examine issues related to a property claimed to be dedicated as waqf. The property in question, was the subject of litigation, where the Sub Court, North Paravur, held that the relevant document was a waqf deed. This decision was upheld by a Division Bench of the High Court.

According to the petitioners, as a waqf property, the State Government is not the competent authority to appoint a Commission of Inquiry. It was argued that the Commission's appointment was arbitrary and aimed at legitimizing unauthorized occupants of the waqf land. The petitioners further pointed out that the Waqf Tribunal was already considering an appeal regarding the property. Moreover, it was alleged that once a property has been declared to be a waqf property, the Government cannot issue any directions contrary to the waqf deed or its usage and practice, making the Commission's inquiry was contrary to the statutory provisions.

The State Government, defended the appointment, asserting that the issue was of public importance, given the protests and unrest over eviction proceedings by the Waqf Board. The government claimed that the inquiry was not judicial but aimed at gathering information to guide future actions. It was also argued that the Commission was necessary to address the concerns of approximately 175 individuals who had occupied the land before its registration as waqf in 2019.

The additional respondents, including the fourth respondent, contended that the deed in question was a gift deed rather than a waqf deed, asserting that the original owner had full authority to transfer the land. They argued that the Sub Court’s 1971 judgment was not conclusive on ownership, as no specific issue on title had been framed.

The court noted that the subject matter of the inquiry related to property rights, including land and trust-related matters, falling under Entry 18 of List II and Entries 6 and 10 of List III. Referring to Express Hotels (P) Ltd v. State of Gujarat (1989), the court emphasised that legislative entries must be interpreted in a broad and expansive manner. Accordingly, it was held that the State Government was the appropriate authority for appointing the Commission of Inquiry.

However, despite the competence of the State Government, the court found that the appointment of the Commission of Inquiry was legally unsustainable, as waqf-related disputes fall exclusively under the jurisdiction of the Waqf Board and Tribunal.

Notably, under Section 3 of the CoI Act, a commission may be appointed by the ‘appropriate Government’ as defined under Section 2(a)(i) and (ii). The Central Government is deemed appropriate in matters concerning any of the entries in the Seventh Schedule, while the State Government is competent if the inquiry pertains to entries in List II or List III.

The court also noted that the issue of ownership of the land in question was already under adjudication before the Waqf Tribunal. It highlighted that, “Section 85 of the Act (Waqf Act, 1995) is an express prohibition for any authority to consider the question relating to a waqf or a waqf property. Further, if the deed under consideration is a waqf deed, even the Government is prohibited from issuing any directions contrary to such a deed as per the proviso to section 97 of the Act.”

The court, thus, held: “no other authority of any nature whatsoever, deal with issues that can have a direct or indirect impact on such a pending matter. A contrary view would render sections 40 and 85 of the Act otiose.”

Conclusively, quashing the Government Order, the court held that “the Government acted mechanically and without proper application of mind in appointing the Commission of Inquiry.”

The court directed the State to refrain from any interference in matters within the exclusive jurisdiction of the Waqf Board and the Waqf Tribunal, stating that the “order appointing the Commission of Inquiry was issued without any application of mind and fails the test of law.”

 

Cause Title: Kerala Waqf Samrakshana Vedhi and Ors. v State of Kerala v Anr. [W.P.(C) Nos.2839 & 3817/25]

Appearance: For the Petitioners- Advocates T.U. Ziyad, P. Chandrasekhar, Anoop Krishna, P.K. Ibrahim, K.P. Ambika, Smt. Zeenath P.K., Jabeena K.M., Anaz Bin Ibrahim, Pradeep Kumar A.; For the Respondents- K. Gopalakrishna Kurup (Advocate General), Senior Advocates Mayankutty Mather K.J., George Poonthottam, Senior Government Pleaders S. Kannan, and V. Manu, Special Government Pleader (Revenue) M.H. Hanil Kumar, Standing Counsel Jamsheed Hafiz, and Advocates Anand Geo, Nisha George, T.K. Sreekala, S. Parvathi, Nikitha Susan Paulson, Uthara Asokan.