Land Grabbing Tactics By Kerala Waqf Board: Kerala High Court Holds That Munambam Land Is Not Waqf Property

The Kerala High Court has held that Munambam land is not a Waqf property under the Waqf Act, 1995.

A batch of Writ Appeals filed by the State challenged the Judgment of the Single Bench by which a notification issued under the provisions of Commissions of Inquiry Act, 1952 (COI Act) was quashed.

A Division Bench comprising Justice Sushrut Arvind Dharmadhikari and Justice Syam Kumar V.M. observed, “The manner in which the KWB has acted is nothing more than land-grabbing tactics after almost 7 decades, affecting fundamental rights, and the livelihood of hundreds of helpless citizens, who have been left with no choice, but to come down on the roads to launch protests, stage dharnas and agitations, which is what compelled the State Government to take the drastic step of setting up an IC. The brazen manner in which the KWB has acted in the case at hand shows reckless disregard of not only the provisions of the Waqf Act, but also the fundamental rights of a large number of citizens whose livelihood is dependent as bona fide purchasers and occupants on land under dispute.”

The Bench remarked that if judicial seal of approval is placed on such an arbitrary declaration of Waqf, tomorrow any random building or structure, including Taj Mahal, Red Fort, Niyama Sabha Mandiram (State Legislature Complex), or even this Court’s building would be vulnerable of being painted with the brush of a waqf property by the Waqf Board on the basis of any random document at any point of time.

“The Court obligated to act under the Constitution, especially in a secular country like India cannot permit such a belated and fanciful exercise of power. Acknowledging the existence of so much unaccounted power at the disposal of the waqf board would imperil the previously guarded constitutional right to property under Art. 300A guaranteed to every citizen of the country; it would throttle the right to freedom to do business and the right to life and livelihood under Arts. 19 and 21 respectively, to be trampled anytime by the waqf boards on a mere declaration / registration of property as a waqf without following the due process of law”, it added.

Advocate General (AG) K. Gopalakrishna Kurup and Senior Government Pleader (SGP) S. Kannan appeared for the Appellant/State, while Advocate (Standing Counsel) Jamsheed Hafiz appeared for the Respondents.

Factual Background

Vide the impugned Judgment, the Single Bench quashed the 2024 notification under COI Act, constituting an Inquiry Commission headed by a former Judge of the High Court to inquire into certain issues mentioned thereunder relating to property situated in Vadakkekara village, Kozhikode District. The Bench had held that since the subject property has been declared as a Waqf property by the Kerala Waqf Board (KWB), the Inquiry Commission could not have been constituted at the threshold for carrying out any inquiry touching the nature of the said Waqf property.

The said property was gifted to Farooq College Management Committee and the Single Bench had held that the State Government acted ultra vires its powers available in the province of COI Act and acted contrary to provisions of Waqf Act. In 2019, the KWB had declared the property as Waqf which led to legal disputes and large-scale protests by local inhabitants who had settled there for almost two to three decades by then.

Court’s Observations

The High Court in the above context of the case, said, “The declaration dated 20th May 2019 (Exhibit P8) is therefore a completely nonspeaking, unilateral declaration having been passed only after hearing the R5 Farooq management within the four walls of the board. The question is, therefore, whether the Court can keep its eyes shut to such a palpable illegality and blatant arbitrariness on the part of KWB of having woke from deep slumber after 69 years and declaring entire parcel of property as waqf, that too without conducting a proper inquiry with the involvement of all the persons interested and aggrieved. The answer is clearly ‘NO’, as it appears nothing, but a sheer exercise of land grabbing on the part of KWB without following the due procedure under the applicable statutes.”

The Court noted that the mere availability of power with the authority doesn't automatically imply that it can be resorted to at any point of time; rather it must be exercised promptly, timely and within a reasonable period.

“The brazenness of the KWB proceeding for eviction against such permanent settlers is premised upon the said illegally issued order and declaration of waqf. … this Court is of the opinion that where ex-facie the substantive conditions of creation or ordainment of waqf itself are not made out and the statutorily mandated procedure has not been followed for the declaration of any property as a waqf, there the Writ Court cannot sit idly and wash off its hands”, it further observed.

The Court enunciated that it is always permitted constitutionally to examine whether essential attributes of declaration of waqf have been made out or not and whether the document/deed in question qualifies the definition of a waqf deed under the Act.

“This Court also finds that unjustified and unexplained delay of 69 years (around 7 decades) in declaring the property as a waqf property itself makes the decision unreasonable and resultantly arbitrary. Though the Waqf Act 1954, 1984, and 1995 clearly provided for timelines of registration of the waqfs, even then the KWB failed to act in time. The exercise of statutory power must be resorted to and executed within a reasonable time and what would be the reasonable time is to be decided in the facts and circumstances of the act under challenge”, it also remarked.

The Court was of the view that the action of KWB clearly smacks of a foul action lacking bonafides, in the backdrop of land having assumed high commercial and business value.

“We also whilst making the interim order dated 07.04.2025 permanent, direct the State to proceed with and act upon the report, if any, filed by the Sole Member IC constituted in pursuance of the impugned notification. The State Government shall be at liberty to issue necessary directions under Section 97 of the Act of 1995, as also in the capacity of custodian of the fundamental rights of its citizens, who are prejudicially affected by the declaration of the subject property as a waqf by the KWB”, it directed.

Conclusion

The Court, therefore, concluded the following points –

• The OWP’s do not possess the locus standi to have instituted the Writ Petition before the Single Bench, which clearly ought not to have been entertained at their instance.

• The endowment deed of 1950 never intended to create any ‘permanent dedication in favour of the Almighty God’, but was simpliciter a gift deed in favour of Farooq Management and therefore could have never qualified as a ‘waqf deed’ under any of the enactments of the Waqf Act 1954, 1984, or 1995.

• The Writ Court can always examine on the basis of unimpeachable and admitted documents as to whether a deed/document or a property classifies as a waqf deed or not on the basis of its recitals and clauses. Merely because the nomenclature of the subject deed of 1950 was a waqf endowment, will not clothe it with the said character, in view of the express authorization of absolute transfer and ownership; and in view of the absolute vesting of rights of transfer/sale and ownership in the hands of Farooq Management.

• The Writ Court can go into the questions of ascertaining whether the KWB has as a statutory body acted fairly, reasonably, and in compliance of the statutory provisions and even hold its action illegal, despite the availability of an alternative remedy before the Waqf Tribunal under the provisions of the Waqf Act, 1995 in the application moved by the State Government for surcharge purposes; with the rider that no disputed facts are on record which are to be proved only on the basis of evidence.

• The action of the KWB of declaring/registering the subject property as a waqf property through its declarations and orders issued in September and October 2019 are bad in law on the grounds of being unreasonably delayed and having been issued in palpable violation of the provisions of the Waqf Acts 1954, 1984, and 1995 and resultantly non-enforceable.

• The subject property could never have been classified as a waqf property and it cannot bind the State Government restraining it from constituting any IC for conducting inquiry and submitting a report.

Accordingly, the High Court allowed the Appeals and issued necessary directions.

Cause Title- The State of Kerala v. T.K.I. Ahamed Sherief & Ors. (Neutral Citation: 2025:KER:74409)

Appearance:

Appellant: AG K. Gopalakrishna Kurup, SGP S. Kannan, Spl. GPs M.H. Hanil Kumar, V. Manu, and C.E. Unnikrishnan.

Respondents: Advocates Jamsheed Hafiz, P.K.Ibrahim, K.P.Ambika, Zeenath P.K., Jabeena K.M., Anaz Bin Ibrahim, Pradeep Kumar A, and P. Chandrasekhar.

Click here to read/download the Judgment