Kerala High Court Says Munambam Land Was Not Intended To Be Waqf

The Kerala High Court has held that the 1950 endowment deed executed by Mohammed Siddique Sait in favour of the Farooq College Managing Committee was not a waqf deed but a simple gift deed, never intended to create a permanent dedication of property in favour of Almighty God.A Division Bench comprising Justice Sushrut Arvind Dharmadhikari and Justice Syam Kumar V.M. observed thus while allowing two writ appeals filed by the State government against a Single Bench order that had quashed a government notification constituting a Commission of Inquiry to resolve the Munambam land dispute between residents and the Waqf board. The Court examined the nature of 1950 endowment deed by Mohammed Siddique Sait, and noted that 1950 endowment deed did not fulfil the essential requirement of “permanent dedication” under the Waqf Act of 1923, the Waqf Act, 1954, or the Central Waqf Act, 1995. The Court noted that the 'permanent dedication' implied creation of an absolute, inalienable interest in the property. “In all the enactments, the common feature about the definition of 'waqf' has been that there must be 'permanent dedication' by a person professing Islam of the property to be treated as waqf. 'Permanent dedication' implies creation of an absolute inalienable interest which is non-reversionary in nature, in the property by the donor in favour of the donee, so that the property may be utilised exclusively for the purposes of religious, pious or charitable in nature.” the bench noted. The court further noted that if the property transferred with intent of being treated as 'waqf' had the facet of being transferred or alienated to third parties, it ceases to possess the character of 'waqf' and instead possesses the character of a public charitable entity. Relying on Maharashtra State Board of Wakfs v Yusuf Bhai Chawla & Ors. [(2012) 6 SCC 328] and Nawab Zain Yar Jung & Ors. v Director of Endowments & Anr. [1962 SCC OnLine SC 270] , the bench emphasized that a waqf requires unconditional and perpetual dedication of property for religious, pious or charitable purposes, where ownership vests in God and alienation is impermissible. Since the 1950 document expressly permitted the donee- Farooq College Management, to sell, lease or otherwise transfer the property for educational or charitable purposes, the Court found it to be a gift for public charitable use, not a waqf.“...'Permanent dedication' was never reflected in the said endowment deed, wherein the beneficiary was not only entitled to sell the property, but also utilise the sale proceeds for themselves and there was a specific provision of reversion of the property to the donor or his successor in case any portion of the property still remains…. such recitals specifically the one providing for reversion of the property back to the donor or his successor cannot be treated as amounting to permanent dedication or tying up of the whole property to 'the Almighty God'. Thus in view of the law as discussed above, it can be inferred that there was a clear absence of permanent dedication or any inalienable feature in the endowment deed. Therefore, we deem to attribute it to the character of a gift deed and not a waqf deed.” the bench observed. The Bench also observed that for nearly seven decades after the execution of the deed, neither the donor's heirs nor the Farooq College authorities treated the property as waqf. The Kerala State Waqf Board's 2019 declaration of the property as waqf was therefore termed as a unilateral decision. The Court termed the action of Kerala Waqf Board as a "land-grabbing tactic". “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 observed.The Court refrained from quashing the order declaring the property as waqf property, observing that the purpose of the findings is to hold that the State was not bound by such declaration. The Court thus held that the endowment deed does not qualify as a waqf deed. “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 R5 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 Court held.It has also upheld the State Government's power to appoint a Commission of Inquiry to investigate the dispute and protect the interests of third-party purchasers, and set aside the Single Bench's earlier order. It concluded that the State was not bound by the ...

Kerala High Court Says Munambam Land Was Not Intended To Be Waqf

Anamika MJ

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