Only the Waqf Board can determine the Waqf character of a property – Kerala HC on Waqf property dispute, Read Judgment

The petitioners challenged a Government Order appointing a Commission of Inquiry under the Commissions of Inquiry Act, 1952, to investigate matters related to a property alleged to be dedicated as waqf. The dispute involves land in Vadakkekara Village, which was previously the subject of a civil suit (O.S. No.53 of 1967) where the trial court recognized the property as waqf. The petitioners argued that the government lacks the authority to appoint such a commission since waqf matters fall under the exclusive jurisdiction of the Waqf Board and Tribunal. The Commission was appointed after public protests arose regarding land possession issues, and the government sought an independent inquiry to determine a resolution.

The petitioners argued that the property in question has already been declared as waqf by the civil court and later affirmed by the Waqf Board under Section 40 of the Waqf Act. They contended that the State Government has no jurisdiction to interfere in waqf matters or appoint a Commission to investigate ownership claims. Additionally, they claimed that portions of the waqf land were illegally transferred, and instead of protecting the property, the government is attempting to legitimize trespassers by terming them as bonafide occupants. They asserted that the appointment of the Commission is arbitrary, lacks jurisdictional facts, and violates statutory provisions. They also argued that since an appeal regarding the waqf status is pending before the Waqf Tribunal, the Commission’s findings would have undue influence on judicial proceedings.

Contentions of the Respondent:

The government, defending its decision, argued that the Commission is not a judicial body but a fact-finding mechanism to assess issues of public importance. The government contended that the matter involved large-scale public protests, requiring an impartial inquiry to recommend solutions. The respondents also challenged the petitioners’ locus standi and argued that the Waqf Board only registered the property as waqf in 2019, and an appeal on this decision is still pending. They claimed that nearly 175 individuals, holding registered documents before 2019, have been in possession of the land, and they cannot be classified as trespassers. The Advocate General asserted that the government’s intervention is necessary to prevent further disputes and maintain public order.

The additional respondents argued that the alleged waqf deed is, in fact, a gift deed and that the original owner had validly transferred ownership. They contended that the civil court judgment did not conclusively decide the title of the property and that the transfers made before the waqf registration cannot be invalidated. The Waqf Board, however, maintained that it has the legal duty to reclaim any alienated waqf property, and the government cannot intervene in waqf matters by appointing an independent Commission.

The Court acknowledged that under the Waqf Act, 1995, "only the Waqf Board can determine the waqf character of a property." As per Section 40(2), "the decision of the Waqf Board in that regard is final and can be revoked or modified only by the Tribunal."

Section 85 explicitly bars any civil or revenue court or authority from adjudicating on waqf matters. The Court stated, "A Commission of Inquiry appointed under the CoI Act, cannot consider the nature of the document or even whether it is a waqf property or not."

Since the Waqf Tribunal is already considering the matter, "it is imperative that no other authority of any nature whatsoever, deal with issues that can have a direct or indirect impact on such a pending matter."

The Court affirmed the Waqf Board’s power to challenge unauthorized transfers: "If a property is a waqf, the Waqf Board is even empowered to initiate proceedings to set aside any transfer made without the sanction of the Board."

Citing Rashid Wali Beg v. Farid Pindari [(2022), the Court reiterated that "the words ‘any dispute, question or other matter relating to any Waqf or Waqf property’ are sufficient to cover any dispute, question or other matter relating to a waqf property." It emphasized that "the Waqf Act is a complete code in itself with respect to waqf properties," and only the Waqf Board or Tribunal can decide such matters.

Since the Waqf Board had already declared the property as waqf, the Court held, "the Commission of Inquiry is estopped from considering such a question." Further, it clarified, "A Commission of Inquiry has no power of adjudication on any question of title and is neither a judicial nor a quasi-judicial inquiry."

Though the Commission is a fact-finding body, the Court warned that "any observation by the Commission in respect of a matter that is pending before the Waqf Tribunal, can have repercussions." It questioned the necessity of the Commission, stating, "It fails the comprehension of this Court as to what action can the Government initiate at this stage, when, by operation of the Waqf Act, it is precluded from initiating any action relating to the property covered by the terms of reference."

The Court acknowledged the Government’s discretion in appointing a Commission but stressed, "no action or decision of a public authority can be immune from judicial scrutiny." It found that "the Government had not considered the significance of the observations and findings of the Waqf Board or the provisions of the Waqf Act" and had acted "mechanically and without proper application of mind in appointing the Commission of Inquiry."

Noting the absence of justification in Ext.P1 for classifying the matter as of ‘definite public importance,’ the Court stated, "An order issued in exercise of a statutory power must withstand a challenge against its validity not on the basis of any explanation offered subsequently, but by the merit of the order alone."

The Court held that "as the issue is pending consideration before the Waqf Tribunal, even if the disputes create any issues of public order, still, recourse to the provisions of CoI Act could not have been resorted to, at this stage."

The Court observed that the relevant facts, which should have been considered while appointing the Commission of Inquiry, had been overlooked by the Government. As a result, Ext.P1 order was issued without proper application of mind and failed the test of law. Consequently, Ext.P1 order was quashed, and the writ petitions were allowed to the above extent.

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