New Delhi: Terming as “bad in law” the state waqf board’s declaration of nearly 400 acres of disputed land as waqf property, seven decades after it was privately gifted, the Kerala High Court observed Friday that it cannot permit a “belated and fanciful exercise of power”.
The high court described the board’s move as a “land-grabbing” tactic, and observed that the state government has the power to investigate its actions.
“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,” the division bench of Justices S.A. Dharmadhikari and Syam Kumar V.M. said, refusing approval to arbitrary declaration of land as waqf.
Under Islamic law, waqf refers to permanent dedication of property for religious or charitable use. Once declared as waqf, the land ceases to be privately owned and cannot be sold, inherited or transferred. In India, the creation, administration, and supervision of waqf properties is governed by the Waqf Act.
The bench was hearing an appeal against an earlier single-judge decision that quashed a 2024 one-member inquiry commission set up to examine the Kerala Waqf Board’s action in the case.
The court said the inquiry, led by retired HC judge C.N. Ramachandran Nair, was within the government’s supervisory powers under Section 97 of the Waqf Act and did not infringe on the powers of the waqf board.
ThePrint explains the dispute and how the court expounded on the state’s powers under the Waqf Act.
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Case at hand
The matter centres around a 400-acre tract of land in Vadakkekara village in Kerala’s Ernakulam district. In 1950, a businessman named Mohammed Siddique Sait gifted this land to Farook College Management Committee through an “endowment deed”.
Though labelled a charitable endowment, the deed document allowed the college to sell or transfer portions of the land. The transfer rights were contested in the case as incompatible with a true waqf, which requires permanent dedication to a religious or charitable purpose.
This principle is commonly referred to as “once a waqf, always a waqf”, implying the permanent nature of the religious endowment, where waqf land cannot be transferred or alienated.
For over seven decades, the property was treated as a private endowment. During this period, parcels of the land were sold, several homes were built, and the Kerala government collected land tax.
Then, in 2008, a commission headed by former district judge M.A. Nissar made an observation that the land appeared to be waqf, though the issue was outside its terms of reference.
A decade later, in 2019, the Kerala Waqf Board relied on that remark and an inquiry to declare and register the entire tract as waqf land in the name of “Mohammed Siddique Sait Waqf”. This meant the waqf board said the businessman had actually created waqf land, and it could not have been transferred or alienated in the interim.
The declaration triggered large-scale protests from long-term residents of the land in the villages of Cherai and Munambam in Ernakulam district who faced eviction. In response, the state government decided to examine the legality of the waqf board’s action and last year appointed Justice Nair for inquiry under the Commissions of Inquiry Act, 1952.
Kerala Waqf Samrakshana Vedhi, a registered organisation claiming to protect waqf assets, challenged the order, arguing that once a property is declared waqf, only the Waqf Tribunal can review it. A single judge of the HC had agreed with Vedhi and quashed the state’s move to form an inquiry commission. The Kerala government subsequently challenged the order before the division bench of the high court.
Court observations
The HC Friday upheld that the state holds sufficient authority to regulate waqf administration, tracing its powers to Section 97 of the Waqf Act, which provides for powers of the state government to issue directions to the waqf board.
“Subject to any directions issued by the Central Government under section 96, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with such directions,” the provision reads.
The HC held that this provision provided the state government with real supervisory power and not merely ceremonial control.
“The upshot of the above discussion is that this court is not precluded from examining the sustainability of the declaration/registration of the subject property as a waqf in writ proceedings, especially when the state government itself as the custodian of the fundamental and constitutional rights of its citizens has come in appeal before us,” the HC observed.
The court found the Kerala Waqf Board’s 2019 declaration of the land in question as waqf arbitrary, procedurally defective, and impermissible in a secular state. It noted that the board had failed to conduct a mandatory survey, issue public notice, or publish the decision in the official gazette before classifying the land as waqf.
“For want of compliance with mandatory procedure… especially the carrying out of a survey, the conducting of quasi-judicial inquiry, followed by a reasoned comprehensive report being forwarded to the state government and for want of publication in the official gazette clearly, the subject property could never have been classified as a waqf property,” it said.
To support its view, the HC referred to a catena of decisions, including a 2017 Supreme Court case which had said that survey and inquiry are “indispensable statutory requirements” before declaring any property as waqf.
The judges also said that the 1950 deed was a simple gift deed and not a waqf, because the deed did not intend to create a “permanent dedication in favour of the Almighty God”, which is essential for waqf.
The HC also clarified that the government’s inquiry was fact-finding and not adjudicatory in nature. The commission was not deciding who owned the land or whether the property was legitimately waqf, but examining the actions of the waqf board.
The HC further said the state was not intruding on religious freedom under Article 26 of the Constitution, which gives religious denominations the right to manage their own affairs.
A waqf board, the court pointed out, is not a religious denomination but a statutory body created by a secular law to administer religious endowments. The decisions of such bodies are therefore subject to scrutiny like that of any other public authority.
The court said it was restraining itself from issuing a formal order of quashing the waqf board’s declaration “since the purpose of returning all the above findings is just to hold that the state government is not bound by such highly belated declaration by the KWB after 7 decades”.
(Edited by Nida Fatima Siddiqui)
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