Supreme Court Stays Kerala High Court's Declaration That Munambam Land Isn't Waqf; Orders Status Quo

The Supreme Court today(December 12) stayed the declaration of the Kerala High Court that the Munambam property is not a Waqf land and ordered status quo with respect to the land till January 27. 

A bench comprising Justice Manoj Misra and Justice Ujjal Bhuyan, however, clarified that it has not stayed the observation of the High Court, which upheld the State Government's decision to appoint a one-member Commission of Inquiry to examine the status and extent of a 404.76-acre property in Munambam.

The Court passed the interim order while issuing notice on a Special Leave Petition filed by the Kerala Waqf Samrakshana Vedi against the High Court's verdict.

At the outset, Senior Advocate Huzefa Ahmadi, assisted by AoR Abdulla Naseeh, for the petitioner, submitted that the High Court's observations regarding the validity of the Waqf deed were unwarranted as it was not the issue involved. The writ petition challenged only the State's constitution of the inquiry commission and the issues related to the validity of the Waqf deed, and the nature of the land are exclusively within the domain of the Waqf Tribunal. He also pointed out that proceedings are pending before the Waqf Tribunal challenging the notification of the land as Waqf. Hence, Ahmadi argued, the High Court erred in entering into those questions.

Ahmadi said: "I went to the writ Court challenging this inquiry by the Commissioner of Inquiry to say that by virtue of the Bar enacted under Sections 85, 83 read with 7 of the Waqf Act, it is only the Waqf Tribunal that has the jurisdiction to determine. What division bench does, it goes into my waqf deed and declares that it is not waqf but a gift."

Senior Advocate Jaideep Gupta, for the State, opposed the petitioner, saying that it was an organisation which was only a third party. He pointed out that the muttawalli of the concerned Waqf did not approach the High Court or was not aggrieved with the constitution of the inquiry commission, and that the petitioner was a stranger to the proceedings.

Gupta: " What my learned friend hasn't pointed out that it is a PIL. It is not the muttawalli who has come forward and said that it is a waqf property. He claims to be a person aggrieved."

Gupta further added that the inquiry commission has already submitted its report to the State Government. Regarding locus, Ahmadi submitted that the petitioner has a representative interest in the protection of Waqfs. He submitted that the muttawalli of the Waqf has sided with the opposite parties.

Senior Advocate V Chitambaresh, for the current residents of the land, submitted that the petition has become infructuous as the Commission has already tendered its report to the Government. He emphasised that the present residents are poor fishermen and they were not heard before their properties, which had been under their occupation for a long time, were suddenly notified as Waqfs in 2019.  Senior Advocate Maninder Singh, for another set of residents, submitted that there was a civil court decree holding that the land was not a waqf land.

During the hearing, the bench wondered if the High Court was the right forum to go into the question of the character of the land, as the proceedings are pending before the Tribunal. "You are left worse off than you were before filing the writ petition...The question here is, if the Court comes to a conclusion that the writ petition was not maintainable, he could have stopped there...He has gone much beyond its remit," Justice Misra told Ahmadi.

Justice Bhuyan also expressed a similar view, asking if the High Court could be the appropriate forum to decide these issues. He said: "Can the writ Court go into all this?...he could have set aside the order of the single judge instead of going into all this. Nobody has asked for this...he has gone much beyond. State Government should have challenged all this. This order has rendered your [plea] redundant."

The bench observed in the order as follows:

"The matter requires consideration. Issue notice returnable in week commencing 27 January. In the meantime, the declaration in the impugned judgment that the property in question is not subject matter of waqf shall remain stayed, and the status quo as regards the same shall be maintained."

Advocate Subhash Chandran K took notice for the Kerala State Waqf Board. Advocate CK Sasi, Kerala's standing counsel, accepted notice for the State.

Background

What does the petitioner argue?

The Waqf Samrakshana Vedhi, which was also the petitioner in the Kerala High Court challenging the Commission Inquiry, argues that the validity of the waqf registration was not an issue before the High Court in the writ appeals and that the State had not sought any such declaration. The only issue before the High Court was whether the State had the power to appoint a Judicial Commission on an issue which was sub-judice before the Waqf Tribunal. However, the High Court travelled beyond pleadings and ventured into factual determination regarding the nature of the 1950 endowment deed.

The SLP argues that examining the intention of the waqif, interpreting the endowment deed, and deciding whether it is a waqf or a gift are matters requiring trial and evidence, which lie exclusively within the domain of the Waqf Tribunal. It was also pointed out that proceedings are ongoing in the Waqf Tribunal, Kozhikode, challenging the Waqf Board's 2019 declaration registering the contested property as “Mohammed Sidhique Sait Waqf”.

The petitioner further states that the nature of the property had already been determined by a civil court in O.S. No. 53 of 1967, where the Sub Court, Paravur had held the 1950 document executed in favour of Farook College to be a waqf deed. This finding was affirmed by the Kerala High Court in appeal in 1973 and was never challenged by the Farook College authorities. The petitioner argues that this prior determination operates against the world and cannot be reopened through executive inquiry.

The petitioner also questions the High Court's validation of the Commission of Inquiry, by arguing that it creates an adjudicatory forum in parallel to the Waqf Tribunal, which has the exclusive jurisdiction to deal with the issue. It is argued that the Commissions of Inquiry Act, 1952 does not permit the ordering of a Commission inquiry into matters that are already sub-judice.