Kerala High Court
T.K.I. Ahamed Sherief vs The State Of Kerala on 17 March, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
W.P.(C) Nos.2839 & 3817/25 1
2025:KER:22251
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
WP(C) NO. 2839 OF 2025
PETITIONERS:
1 KERALA WAQF SAMRAKSHANA VEDHI (REGISTERED)
NO:EKM/TC/604/2012,
DOOR NO: SRA-114, CRASH LOAD,
THRIKKAKARA,
REPRESENTED BY ITS SECRETARY,
NAZIR MANAYIL, S/O. ABDULLA,
MANAYIL HOUSE,
WEST VELIYATHUNAD P.O.,
ERNAKULAM DISTRICT, PIN - 682021
2 T.M. ABDUL SALAM
AGED 58 YEARS, S/O. MOHAMMED,
PRESIDENT, KERALA WAKF SAMRAKSHANA VEDHI,
RESIDING AT THYKOOTTATHIL HOUSE,
THRIKKAKARA P.O., KAKKANAD,
KOCHI, PIN - 682021
BY ADVS.
SRI.T.U.ZIYAD
SRI.P.CHANDRASEKHAR
SRI.ANOOP KRISHNA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE COMMISSION OF INQUIRY
3B, BHAVANI APARTMENTS,
KUNNUMPURAM, KAKKANAD,
KOCHI, PIN - 682030
W.P.(C) Nos.2839 & 3817/25 2
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3 KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
KALOOR, KOCHI, PIN - 682017
4 FAROOQ COLLEGE MANAGING COMMITTEE
FAROOK COLLEGE, REPRESENTED BY ITS MANAGER,
FEROKE, KOZHIKODE DISTRICT, PIN - 673301
*5 JOSEPH ROCKEY,
S/O. ROCKEY, AGED 62 YEARS,
RESIDING AT PALAKKAL HOUSE,
BEACH ROAD, NEAR VELANKANNI CHURCH,
PALLIPPURAM, PALLIPORT P.O.,
ERNAKULAM DISTRICT, PIN - 683515
*(ADDL.R5 IS IMPLEADED AS PER ORDER DATED 06.02.2025 IN
I.A.2/2025 IN WP(C) NO.2839/2025)
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.), ADVOCATE GENERAL
SRI.MAYANKUTTY MATHER K.J. (SR.)
SRI.ANAND GEO
SRI.S.KANNAN, SENIOR GOVT. PLEADER
SRI.V.MANU, SENIOR GOVT. PLEADER
SHRI.M.H.HANIL KUMAR, SPL.G.P.(REVENUE)
SRI.JAMSHEED HAFIZ, SC
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.03.2025, ALONG WITH WP(C) NO.3817/2025, THE COURT ON 17.03.2025
DELIVERED THE FOLLOWING:
W.P.(C) Nos.2839 & 3817/25 3
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
WP(C) NO. 3817 OF 2025
PETITIONERS:
1 T.K.I. AHAMED SHERIEF
AGED 70 YEARS, S/O. T.K.A.IBRAHIM
THOTTATHIL HOUSE,
MARAMPPILLY P.O., MARAMPILLY VILLAGE,
KUNNATHUNADU THALUK,
ERNAKULAM, PIN - 683105
2 T.A. MUJEEB RAHMAN
AGED 48 YEARS, S/O. AHAMMED,
THACHAVALLATH HOUSE,
VENNALA P.O., EDAPPALLY SOUTH VILLAGE,
KANAYANNOOR THALUK,
ERNAKULAM, PIN - 682028
BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.ZEENATH P.K.
SMT.JABEENA K.M.
SRI.ANAZ BIN IBRAHIM
SRI.PRADEEP KUMAR A.
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE COMMISSION OF ENQUIRY
RTD. JUSTICE C.N. RAMACHANDRAN NAIR,
3B, BHAVANI APARTMENTS, KUNNUMPURAM,
KAKKANAD, KOCHI, PIN - 682030
W.P.(C) Nos.2839 & 3817/25 4
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3 KERALA STATE WAQF BOARD
VIP ROAD, KALOOR,
ERNAKULAM, PIN - 682017
REPRESENTED BY ITS CHIEF EXECUTIVE.
4 FAROOK COLLEGE MANAGING COMMITTEE,
FAROOK COLLEGE, FAROOKE,
KOZHIKODE DISTRICT, PIN - 673301
REPRESENTED BY ITS MANAGER.
*5 JOSEPH BENNY
S/O. K.B. GEORGE, AGED 53 YEARS
RESIDING AT KURUPPASSERY HOUSE,
MUNAMBAM BEACH, PALLIPURAM,
PALLIPORT P.O.,
ERNAKULAM DISTRICT, PIN - 683515
*(ADDL.R5 IS IMPLEADED AS PER ORDER DATED 06.02.2025 IN
IA NO.1/2025 IN WP(C) NO.3817/2025)
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.), ADVOCATE GENERAL
SMT.T.K.SREEKALA
SMT.NISHA GEORGE
SRI.JAMSHEED HAFIZ,SC
SRI.V.MANU, SENIOR GOVT. PLEADER
SRI.S.KANNAN, SENIOR GOVT. PLEADER
SRI.M.H.HANIL KUMAR, SPL.GOVT. PLEADER
SMT.S.PARVATHI
SMT.NIKITHA SUSAN PAULSON
SMT.UTHARA ASOKAN
SRI.MAYANKUTTY MATHER K.J. (SR.)
SRI.ANAND GEO
SRI.GEORGE POONTHOTTAM (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.03.2025, ALONG WITH WP(C)NO.2839/2025, THE COURT ON 17.03.2025
DELIVERED THE FOLLOWING:
W.P.(C) Nos.2839 & 3817/25 5
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"C.R."
BECHU KURIAN THOMAS, J.
------------------------------------------
W.P.(C) Nos. 2839 & 3817 of 2025
------------------------------------------
Dated this the 17th day of March, 2025
JUDGMENT
Petitioners challenge a Government Order appointing a Commission of
Inquiry under the Commissions of Inquiry Act, 1952 in relation to a property claimed
to have been dedicated as waqf. Since the issues involved in these two writ
petitions are almost identical, they are disposed of by this common judgment.
2. The Commissions of Inquiry Act, 1952, (for brevity 'the CoI Act')
confers power upon the appropriate Government to appoint a Commission to
inquire into 'definite matter of public importance'. In exercise of the said power,
Justice C.N. Ramachandran Nair, a former Judge of this Court, has been appointed
as per Ext.P1, to inquire into the issues referred to in the said Government Order.
3. Writ petitioners allege that the dispute now sought to be inquired into
by the Commission relates to a waqf property, situated in Survey No.18/1 of
Vadakkekara Village, which was the subject matter of O.S. No.53 of 1967 on the
files of the Sub Court, North Paravur. In a judgment dated 12.07.1971, the trial
court concluded that the document produced therein as Ext.P31 was not a gift deed
but a waqf deed. The appeal against the said judgment was dismissed by a
Division Bench of this Court in A.S. No.600/1971 on 30.09.1975. According to the
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petitioners, as a waqf property, the State Government is not the competent
authority to appoint a Commission of Inquiry.
4. Petitioners also allege that in violation of the provisions of the waqf
deed and the Waqf Act, 1995 (for short 'the Act') , the fourth respondent transferred
portions of the waqf property to various persons, and the State, instead of
protecting the said property, is now attempting to protect the trespassers by terming
them as bonafide occupants. Petitioners also contend that Ext.P1 was issued
without reference to the relevant factors, without any application of mind and in a
perverse manner. Petitioners have alleged that the unauthorised occupants of the
waqf property, who are rank trespassers and land grabbers, have been given the
colour of bonafide occupants and in the absence of any jurisdictional fact to appoint
a Commission of Inquiry, Ext.P1 has been issued. Petitioners have also pleaded
that the Waqf Board had, in exercise of the powers under section 40 of the Act,
declared the subject property to be a waqf property which is final and binding upon
all. Petitioners also plead that, since the appeal filed by the fourth respondent is
pending before the Waqf Tribunal, the Commission ought not to be permitted to
render any opinion and the very appointment of the Commission itself, is a non est.
5. In W.P.(C) No.3817 of 2025, it is further pleaded that once a property
has been declared to be a waqf property, the Government cannot issue any
directions contrary to the waqf deed or its usage and practice and therefore,
appointing a Commission of Inquiry contrary to the statutory provisions is without
authority. Petitioners further allege that if at all any sale deed has been executed in
favour of any person, the same can only be in contravention of the provisions of
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section 36A of the Wakf Act, 1954 and section 51(1-A) of the Act, and therefore, the
Government is, by appointing the Commission of Inquiry, attempting to protect
persons who are mere trespassers.
6. In the counter affidavit, the locus standi of the petitioners have been
questioned and the appointment of the Commission is justified in their capacity as
the appropriate Government as the subject is referable to entries in List-II and III of
the Seventh Schedule. According to the first respondent, the inquiry is neither a
judicial nor a quasi-judicial proceeding and that the Commission has no power of
adjudication of the question of title, but is intended only as a mechanism to
assimilate necessary information to apprise and enable the Government to decide
the future course of action. It is further pleaded that the question of title has not
been decided earlier by any Court and that the property was registered with the
Kerala State Waqf Board in the name "Mohammed Siddique Sait Waqf" only with
effect from 25.09.2019, after the Waqf Board conducted the enquiry culminating in
Ext.R1(a) which is now pending in appeal before the Waqf Tribunal. The first
respondent further pleaded that around 175 persons are reported to be in
possession of the subject property pursuant to registered documents executed prior
to the registration of the waqf, and that their occupation cannot be termed as
trespass.
7. It is further pleaded that, when the revenue authorities stopped the
collection of land tax, persons in occupation raised public protests and agitations,
thereby gaining public importance and it was in such circumstances that the
Government convened a high level meeting under the chairmanship of the Chief
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Minister. A consensus was arrived at in the meeting and its recommendations were
placed before the Council of Ministers on 27.11.2024, who, after considering
various aspects of the matter, decided to appoint the Commission of Inquiry to find
a permanent solution to the issues involved.
8. In the counter affidavit of the additional fifth respondent, apart from
raising contentions similar to that of the first respondent, it is stated that the
document titled as a waqf deed was essentially a gift deed and Sri. Mohammed
Siddique Sait had transferred his title over the entire extent of land to the fourth
respondent, who had the authority to alienate the property and in the absence of
any of the components of a valid waqf, as evident from the document, the
alienations cannot be said to be invalid.
9. A reply affidavit has also been filed by the petitioners reiterating their
contentions.
10. Since the second respondent is the Commission of Inquiry, being a
body appointed pursuant to Ext.P1, notice to the said Commission was dispensed
with.
11. Sri.P.Chandrasekhar and Sri.P.K.Ibrahim, the learned counsel for the
petitioners reiterated the contentions raised in the pleadings and asserted that
since the property has already been declared as a waqf property, the Government
could not have appointed a Commission of Inquiry to consider any claim of
ownership over the said property or even treat the occupants as bonafide.
According to the learned counsel, the Government had omitted to consider the
basic facts necessary to appoint the Commission and without any application of
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mind, issued Ext.P1 order. It was also submitted that the basic jurisdictional facts
were non-existent to order an inquiry and further that when the Waqf Tribunal is
considering the question, any observation by a Commission will have far reaching
implications.
12. Sri. K. Gopalakrishna Kurup, learned Advocate General instructed by
Adv. S. Kannan, learned Senior Government Pleader, questioned the locus standi
of the petitioners and also argued that the issue has been the subject matter of
public protests and agitations over the attempt of the Waqf Board to evict the
occupants and therefore it is a definite matter of public importance. According to
the learned Advocate General, the Government is required to identify measures
that can be adopted to diffuse the worrying situation and an inquiry by a former
Judge of this Court into the issues can suggest remedial measures. It was also
argued that, faced with issues of public importance, which can even go out of
control, the Government has the power to elicit a report from a competent authority
to recommend measures. It was also submitted that the decision taken at a high
level meeting, cannot be termed to be arbitrary or malafide.
13. Sri. Mayankutty Mather K.J., the learned Senior Counsel instructed by
Sri.Anand Geo, the learned counsel for the fourth respondent, and Sri. George
Poonthottam, the learned Senior Counsel instructed by Smt. Nisha George, the
learned counsel for the fifth respondent, while supporting the contentions of the
learned Advocate General, submitted that the deed in question cannot be regarded
as a waqf deed as the recitals only indicate it to be a gift deed and therefore, the
contentions built on that premise, are without any basis. It was also submitted that
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the civil court judgment is not conclusive as no issue on title was framed and hence
the transfers effected till registration of the wakf, cannot even be vitiated. It was
thus contended that the present occupants are all persons who had purchased the
property under valid documents of title and are hence bonafide occupants.
14. Sri. Jamsheed Hafiz, the learned Standing Counsel for the Waqf
Board after traversing the history of the Waqf Act, submitted that the first term of
reference is essential as identification of property is required, while the second term
of reference is unnecessary. It was submitted that the Waqf Board had already
declared the property to be a waqf property and hence the Board is bound to
recover all properties of the waqf including those that were alienated contrary to the
waqf deed or the Waqf Act. It was also argued that the action of the Board cannot
be the subject matter of the Commission of Inquiry.
15. On an appreciation of the rival contentions, the following issues are
identified as arising for resolution:
(i) Whether the petitioners have locus standi to file this writ petition?
(ii) Whether the State Government is the appropriate authority for appointing
the Commission of Inquiry as per Ext.P1? and
(iii) Whether the appointment of the Inquiry Commission is valid in law?
16. Before addressing the three issues, it is relevant to mention the
background of the dispute. Sri. Mohammed Siddique Sait who was incidentally, one
of the members of the first Waqf Board constituted after the coming into force of the
Wakf Act 1954, had, in the year 1950, transferred an extent of 404.76 Acres of
property by a registered deed No.2115/1950 of Edappally Sub Registrar's Office,
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titled as a 'Waqf deed' in favour of the Farook College Managing Committee. Out of
the total extent of the property, around 300 Acres are stated to be lost due to sea
erosion and what remains is only about 135.11 Acres situated in Survey No.18/1 of
Kuzhuppilly (erstwhile Vadakkekara) VIllage. In O.S. No.53/1967 instituted by the
fourth respondent Farook College as plaintiff, the Sub Court, Paravur had rendered
a finding that the document executed by Sri. Mohammed Siddique Sait was a waqf
deed and not a gift deed. The said finding was not challenged by the fourth
respondent. It is also noticed from an affidavit filed in the said suit (produced as
Ext.P10 in W.P.(C) No. 2839/2025) that the plaintiff therein had affirmed that the
document is a waqf deed. However, the fact remains that there was no issue raised
in the said suit regarding the nature of the deed.
17. Be that as it may, taking into consideration various complaints and
irregularities relating to the Kerala State Waqf Board and its institutions,
Government appointed Sri. M.A. Nissar, a retired District Judge, as the Chairman of
a Commission of Inquiry under the CoI Act, to report on various aspects relating to
waqfs. The Waqf Board had, in the meantime, initiated an enquiry as E.P
No.685/2008 relating to the waqf property dedicated by Sri Mohammed Siddique
Sait based on a complaint given by his legal heirs who had requested the Board to
repossess the properties alienated contrary to the deed. The aforesaid complaint
was also, inter-alia, considered by the said Commission and a report dated
26.6.2009, was submitted stating that:-
"7. Of course, for the limited purpose, this Commission has to ascertain whether this property
covered by the registered document No.2115/1950 of Edappally Sub Registrar's Office (styled as a Waqf
deed in the document) is a 'Waqf' or not. Since the Farook College Managing Committee is disputing
its alleged Waqf Character, this Commission is to conduct an enquiry as to whether this property is a
Waqf or not and the consequential matters. But we do not propose to conduct an enquiry on this matter
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as the Waqf Board is seized of the matter. The Waqf Board is the competent authority under the Waqf
Act to decide the question whether a property is Waqf property or not. The Chief Executive Officer
of the Waqf Board placed before this Commission the order he has pronounced on 24.06.2009 in this
matter. The Chief Executive Officer ordered that it is a Waqf property and that this Waqf can be
registered with the Waqf Board. The Chief Executive Officer ordered to place the matter before the
Waqf Board for action under Rule 95 of the Kerala Waqf Rules.
8. In the result, we recommend to the Government to direct the Waqf Board under section 97
of the Waqf Act to expedite the proceedings pending before it under Rule 95 of the Kerala Waqf Rules,
1996 and to consider as to whether any action to be taken against the persons responsible for sale
of the Waqf property, styling it as gifted property in the sale deed and that too without the sanction
of the Waqf Board. The Waqf Board may also be directed to report to the Government the action
taken in this matter."
18. The Government accepted the above report by Ext.P9 order dated
11.05.2010 (produced in W.P.(C) No.2839 of 2025), and directed further action to
be initiated pursuant to the said report. Thereafter, the Waqf Board, by order dated
20.05.2019 in E.P No.685/2008, declared that the property covered by deed
No.2115/1950, was a waqf property and directed its registration as a waqf property
under section 36 of the Act. Action was also directed to be initiated under section
52 or 54 of the Act to recover the waqf properties.
19. While so, by a communication dated 07.10.2022, the Tahsildar, Kochi,
directed the Village Officer, Kuzhuppilly, to accept land tax from the occupants of
the property which was declared as a waqf property. The second petitioner herein,
along with the representative of the first petitioner, challenged the said direction of
the Tahsildar in W.P(C) No. 36063/2022, and a status quo was directed to be
maintained initially which was later, by order dated 12.12.2022, clarified that the
revenue officers can issue certificates, effect mutation and accept tax with regard to
the properties that are claimed to be waqf properties. Aggrieved by the said order,
the writ petitioners therein, filed W.A No. 2001/2022. In the appeal, the order of the
learned Single Judge was stayed, which was, later, by judgement dated 19.01.2023
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made absolute till the disposal of the writ petition. W.P.(C) No.36063/2022 is still
pending. Thus, the direction not to issue any revenue certificates or effect mutation
is still in force. After the aforesaid order, dispute exists between those occupying
the land and the Waqf Board.
20. The Government has appointed the Commission of Inquiry against
this backdrop. The issues mentioned earlier will have to be resolved in light of the
above circumstances.
Issue No. (i). Whether the petitioners have locus standi to file this writ petition?
21. The writ petitioners in W.P.(C) No.2839/2025 have pleaded that the
first petitioner is an organization formed to protect waqfs and waqf properties in
Kerala. Second petitioner is its President while the signatory to the first petitioner is
its Secretary. The second petitioner in the writ petition, along with the
representative of the first petitioner, had already approached this Court in W.P.(C)
No.26893/2012 and again in W.P.(C) No.36063/2022. Both of them had also filed
W.A No.2001/2022. In the reply affidavit, it is also averred that as followers of
Islam, they are beneficiaries of waqf and they seek to protect a waqf, which
according to them is the subject matter of the litigation. The writ petitioners in W.P.
(C) No.3817/2025 have also pleaded that they are beneficiaries of waqf property
and that they are the Chairman and General Convenor of a forum for the
beneficiaries of waqf. The said petitioners have also pleaded that they have a claim
to enjoy a property dedicated as a waqf.
22. Normally, writ petitions under Article 226 of the Constitution of India
can be filed only by a person aggrieved, unless it is a public interest litigation.
However, the meaning of the term 'person aggrieved' has undergone sweeping
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changes in the last three decades. From a restricted and conservative interpretation
of the said term, constitutional courts have adopted an expansive meaning to
embrace within its fold not only factual grievances, but also legal grievances or
sufficient interest in appropriate cases, to open the doors of justice. While
exercising jurisdiction under Article 226 of the Constitution of India, it is a matter of
discretion also for the court to give a broader meaning to the term 'aggrieved' while
considering the question of locus standi. The discretion can be exercised taking into
account the nature of the petitioners, extent of its interest in the issue raised,
remedy sought to be achieved and even the possibility of the petitioners being
directly or indirectly affected by the subject matter.
23. When the nature of the writ petitioners and the cause pleaded in the
writ petitions are viewed in the above perspective, it is explicit that petitioners have
sufficient locus standi to maintain this writ petition as their legal rights can be
affected. Further, the earlier two writ petitions as well the writ appeal filed by the
petitioners, the nature of issues raised for consideration in the instant two cases
and the absence of any malafides, also persuade this Court to lean in favour of
finding sufficient interest on the petitioners to file these writ petitions. Taking into
consideration the pleadings and circumstances arising in these two cases, this
Court is of the view that petitioners have sufficient locus standi to maintain this writ
petition under Article 226 of the Constitution of India.
Issue No. (ii). Whether the State Government is the appropriate authority for
appointing the Commission of Inquiry as per Ext.P1?
24. As per section 3 of the CoI Act, a Commission of Inquiry can be
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appointed by the appropriate Government. Section 2(a)(i) of the CoI Act defines the
term 'appropriate Government'. The said provision stipulates that the Central
Government can be the appropriate Government in respect of any of the matters in
the three lists of the Seventh Schedule to the Constitution of India. Under section
2(a)(ii) of the CoI Act, State Government can be the appropriate Government, if the
inquiry relates to a matter relatable to any of the entries in List II or List III of the
Seventh Schedule. Hence the question regarding the competence of the State
Government can be answered by identifying whether the subject matter of inquiry
falls within any of the entries in List II or List III, especially since none have a case
that the Central Government has appointed any Commission for an inquiry into the
same issue.
25. Entry 6 of List III of the Seventh Schedule deal with transfer of
property other than agricultural lands; registration of deeds and documents and
Entry 10 of the same list deals with Trust and Trustees. Entry 18 of List II on the
other hand deals with land and rights over land. The heads of legislation in the
various lists of the Seventh Schedule must be interpreted widely in a manner to
take in all matters which are of a character incidental to the topics mentioned
therein.
26. In the decision in Express Hotels (P) Ltd v. State of Gujarat and
Another [(1989) 3 SCC 677], it was observed by the Supreme Court that the
entries should not be read in a narrow or pedantic sense but must be given the
fullest meaning and the widest amplitude and be held to extent to all ancillary and
subsidiary matters which can fairly and reasonably be said to be included in them.
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Though the above interpretation is for identifying whether the source of a legislation
can be traced to any of the entries, such a manner of interpretation has to be
adopted while identifying the appropriate Government as well. Viewed in the above
perspective, it is evident that irrespective of the rival contentions, as the subject
matter of the enquiry is the right in a land and can even be a transfer of property, it
can fall either in entry 18 of List II or at least entry 6 of List III of the Seventh
Schedule. In such circumstances, the State Government can be an appropriate
Government. Thus the competence of the State Government to appoint a
Commission of Inquiry in respect of the subject matter of Ext.P1 has to be upheld.
Issue No. (iii). Whether the appointment of the Inquiry Commission as per Exhibit
P1 is valid in law?
27. For the purpose of easier comprehension, the relevant portion of the
notification appointing the Commission as per Ext.P1, is extracted below:
" WHEREAS. the Government of Kerala is of the opinion that it is
necessary to appoint a "Commission of Inquiry" for the purpose of making
an inquiry into a definite matter of public importance, namely, to
recommend measures to be taken by the Government to find a
permanent solution with respect to the ownership in the matter of
ongoing dispute for right of ownership between the citizens residing in
Munambam at Ernakulam District and the Waqf Board:
............(omitted as not relevant)
The terms of reference of the Commission of Inquiry shall be as follows;
1. To identify the present lie, nature and extent of property
comprised in old survey number 18/1 of the then Vadakkekara Village of
the erstwhile Travancore State.
2. To enquire and report as to how to protect the rights and
interests of the bonafide occupants of the said land and to recommend
the measures to be taken by the government in that regard.
Explanatory Note
In the Munambam area of Ernakulam District, there is a situation
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that the revenue authorities could not accept the land tax of those who
have been holding land for many years, based on the letter issued by the
Waqf Board and court direction. In a high level meeting chaired by the
Chief Minister on 22nd November, 2024 regarding this matter, it was
agreed to appoint a Judicial Commission to investigate and submit
recommendation for finding a permanent solution to the issue of Waqf
property. For this, the Government decided to appoint a commission of
inquiry under the Commissions of Inquiry Act, 1952.
The notification is intended to achieve the above object."
28. On a reading of the above extracted portion from Ext.P1, it is evident
that, what prompted the Government to appoint the Commission was the restriction
on the revenue authorities to accept tax from the occupants of the property due to
orders of Court and that of the Waqf Board. It is also evident that the Commission
has been called upon to inquire into a dispute and recommend measures to be
taken by the Government to solve an ongoing dispute for right of ownership
between the residents of an area and the Waqf Board. Thus the Commission has
been appointed to give its recommendations regarding the ownership of certain
persons over a property which is projected by the Waqf Board as its property.
29. In this context, it needs to be observed that the Court direction
mentioned in Ext.P1 can only be the direction in W.A No. 2001/2022 (Ext.P7), while
the letter referred to therein, can only be the communication issued by the Kerala
State Waqf Board pursuant to its decision in E.P. No. 685 of 2008 (Ext.R1(a)).
Concededly, the said order of the Waqf Board has been challenged by the fourth
respondent before the Waqf Tribunal, Kozhikode, and is pending consideration as
W.O.A No.38/2023. Thus, the question whether the property situated in old survey
number 18/1 of Vadakkekara Village of the erstwhile Travancore State is a waqf
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property or not, is under consideration before the Waqf Tribunal. The question
whether there are any occupants on the said land and whether they are bonafide
occupants or not and even the requirement of identifying measures to protect a
bona fide occupant on such a land are issues that may arise after a decision is
arrived at by the Waqf Tribunal.
30. This Court cannot be oblivious of the scheme of the Waqf Act, 1995.
As per the said statute, when a question on the waqf character of a property arises,
only the Waqf Board and no other authority can decide the said question. As per
Section 40(2) of the Act, the decision of the Waqf Board in that regard is final and
can be revoked or modified only by the Tribunal. The statute further envisages in
section 85 that no suit or other legal proceeding shall lie not only in any civil or
revenue courts but also even before any other authority, in respect of any dispute,
question or other matter relating to any waqf, waqf property or other matter which is
required by or under the Act to be determined by the Tribunal. Therefore, since the
Waqf Board has already declared by Ext.R1(a) that the deed No. 2115/1950
executed by Mohammed Siddique Sait is a waqf deed and the property is a waqf
property, only the Tribunal can revoke or modify such a decision. 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. Section 85 of the Act is an express
prohibition for any authority to consider the question relating to a waqf or a waqf
property. Further, if the deed under consideration is a waqf deed, even the
Government is prohibited from issuing any directions contrary to such a deed as
per the proviso to section 97 of the Act.
2025:KER:22251
31. Since, the Waqf Tribunal is seized of the question relating to the
nature of the property situated in Survey No. 18/1 of the erstwhile Vadakkekara
Village, including the character of the deed relating to the said property, 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. A contrary view
would render sections 40 and 85 of the Act otiose.
32. Apart from the above, it needs to be mentioned that, 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. The Mutawalli is also empowered
to seek to set aside any transfer of a waqf property made by a previous Mutawalli
without the sanction of the Board as per section 86 of the Act.
33. The above view is fortified by the decision in Rashid Wali Beg v.
Farid Pindari and Others [(2022) 4 SCC 414]. In the said decision, it was clarified,
after referring to various divergent views, 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 was further
observed in the said decision that "Section 83(1) provides for the determination of
any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a
waqf property."
34. Thus, the Waqf Act is a complete code in itself with respect to waqf
properties. The decisions of the Waqf Board or the Tribunal, as the case may be,
are final and they are the only authorities who can decide whether a property is a
waqf or not. Interconnected with the aforesaid question would include that relating
2025:KER:22251
to the nature of the deed as well. No other authority can decide these questions.
35. In the light of the express restriction on any authority to consider any
question relating to a waqf and as the Waqf Board had already found the property
to be a waqf, the Commission of Inquiry is estopped from considering such a
question. Needless to mention, when the law is specific and clear, its
consequences must necessarily follow.
36. Notwithstanding the above, as admitted in the counter affidavit of the
State, a Commission of Inquiry has no power of adjudication on any question of title
and is neither a judicial nor a quasi-judicial inquiry. The terms of reference also do
not enable the Commission to decide the question whether the property is a waqf or
not. Even otherwise, the Commission has no power to enforce its recommendations
and its report is not even binding upon the Government. Nevertheless, as the
Commission is composed of a former Judge of this Court, any observation by the
Commission in respect of a matter that is pending before the Waqf Tribunal, can
have repercussions. The findings of the Commission may have a propensity to
prejudice the rights of the contesting parties before the said Tribunal. Even an
observation regarding the nature of occupation of the persons in possession, the
character of their occupation including that of the property even indirectly, can have
a tendency to impede the fair consideration of the questions before the Tribunal.
37. The Commission is, according to the Government as well as on
principles of law, only a fact finding body intended to furnish the Government with
material to act upon. Reference to the decision in Mohammed Haneefa v. State of
Kerala (1988 (2) KLT 919) is relevant in this context. However, it fails the
2025:KER:22251
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. Even the Commission
will be restricted in its inquiry, as the question whether the subject property is a
waqf property or not is pending adjudication before the Tribunal.
38. At this juncture it is relevant to mention that the power of the
Government to appoint a Commission of Inquiry when 'a definite matter of public
importance' arises, needs no elaboration. As observed in the decision in Ram
Krishna Dalmia v. Justice S.R. Tendolkar and Others [AIR 1958 SC 538], 'a
definite matter of public importance' can at times include, even the conduct of an
individual or a group of individual persons, when it can have a prejudicial effect on
the public well-being. Thus the decision to appoint a commission of enquiry is within
the discretion of the Government and normally, such exercise of discretion ought
not to be interfered with by courts of law.
39. Nevertheless, judicial interpretations are emphatic that there is no
absolute or unfettered discretion, even in the matter of appointment of a
Commission of Inquiry. Unrestrained discretion leads to arbitrariness which is the
antithesis to the principles of equality under Article 14 of the Constitution of India.
No action or decision of a public authority can be immune from judicial scrutiny.
Hence, despite the discretion available with the Government to appoint a
Commission of Inquiry, it is open for the court to judicially review the proceedings to
identify whether there was proper application of mind or whether due care and
caution were exercised by the Government while appointing the Commission. The
2025:KER:22251
power of judicial review allows the Court to assess whether relevant facts were
considered before appointing the Commission or whether any irrelevant facts
influenced the decision and also whether the order appointing the Commission was
unreasonable or not. Reference to the observations in the decision in Balakrishna
Pillai v. State of Kerala (1988 (2) KLT 1039), are relevant in this context.
40. While appreciating Ext.P1 order, in the light of the above legal
principles, it is evident that, when the Commission of Inquiry was appointed, the
Government had not considered the significance of the observations and findings of
the Waqf Board or the provisions of the Waqf Act or the earlier report of
Commission of Inquiry followed by its approval by the Government itself, the
judgment of this Court in W.A No. 2001/2022 and above all, the pending
proceeding before the Waqf Tribunal. The finality prescribed by section 40 of the
Act, the bar of jurisdiction under section 85 of the Act and even the implication of
section 51(1A) of the Act, were also not borne in mind by the Government. The
Government acted mechanically and without proper application of mind in
appointing the Commission of Inquiry. Thus, relevant factors which would have a
bearing on the appointment of the Commission of Inquiry were not considered by
the Government while issuing Ext.P1.
41. Apart from the above, neither the explanatory note nor the recitals in
Ext.P1 order appointing the Commission of Inquiry, explain or narrate how a
question relating to the right of ownership of certain properties assume the
character of 'a definite matter of public importance'. No doubt, in the counter
affidavit it is pleaded that, "because of the public protest and consequential
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agitation the issue has gained public importance". Curiously, there is no such
reference in Ext.P1 about any agitation or protests. 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. As
observed by the Supreme Court in Commissioner of Police Bombay v.
Gordhandas Bhanji [AIR 1952 SC 16] and in Mohindhr Singh Gill and Another
v. Chief Election Commissioner, New Delhi and Others [(1978) 1 SCC 405], the
validity of an order of a public functionary must be judged by the reasons
mentioned in the order and not those supplemented by affidavits.
42. Notwithstanding the above, when an issue that can have an effect on
public order arises, the Government is entitled to collect necessary materials to
decide on what course of action should be adopted. However, 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.
43. As the relevant facts which ought to have been borne in mind while
appointing a Commission of Inquiry were not considered by the Government,
Ext.P1 order appointing the Commission of Inquiry was issued without any
application of mind and fails the test of law. Hence Ext.P1 order is quashed.
The writ petitions are allowed to the above extent.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
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APPENDIX OF WP(C) 2839/2025
PETITIONER'S/S' EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER NO.HOME-
SSA2/249/2024-HOME DATED 27-11-2024 OF THE
GOVERNMENT OF KERALA
Exhibit P2 A TRUE COPY OF THE JUDGMENT IN OS NO. 53 OF
1967 DATED 12.7.1971 OF THE SUB COURT PARUR
WITH TYPED COPY
Exhibit P3 A TRUE COPY OF JUDGMENT IN AS NO. 600 OF 1971
OF THIS HON'BLE COURT DATED 30.9.1975
Exhibit P4 A TRUE COPY OF THE REGISTRATION CERTIFICATE
NO. EKM/TC/604/2012 DATED 19.09.2012 OF 1ST
PETITIONER
Exhibit P5 A TRUE COPY OF THE MEMORANDUM OF ASSOCIATION
OF THE 1ST PETITIONER
Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED
05-12-2024 OF THE 1ST PETITIONER TO THE 1ST
RESPONDENT
Exhibit P7 A TRUE COPY OF THE JUDGMENT DATED 19-01-2023
IN WA NO. 2001/2022 OF THIS HON'BLE COURT
Exhibit P8 A TRUE COPY OF THE 15TH REPORT OF THE WAKF
INQUIRY COMMISSION DATED 26-06-2009
Exhibit P9 A TRUE COPY OF GO (MS) NO: 166/10/RD DATED
11-05-2010
Exhibit P10 A TRUE COPY OF THE AFFIDAVIT FILED BY FAROOQ
COLLEGE MANAGING COMMITTEE IN OS 53/1967
BEFORE SUB COURT, NORTH PARAVUR
Exhibit P11 A TRUE COPY OF THE NOTIFICATION DATED
2025:KER:22251
29.9.1956 OF GOVERNMENT OF TRAVANCORE COCHIN
CONSTITUTING TRAVANCORE COCHIN WAKF BOARD
Exhibit P12 A TRUE COPY OF THE WRITTEN OBJECTION DATED
29-12-2024 SUBMITTED BY THE PETITIONERS
BEFORE THE 2ND RESPONDENT
Exhibit P13 A TRUE COPY OF THE JUDGMENT DATED 24.11.2016
IN WP(C) NO.26893/2012 OF THE DIVISION BENCH
OF THIS HON'BLE COURT
Exhibit P14 A TRUE COPY OF THE LETTER NO. REV-
F1/312/2017-REV DATED 08.11.2017 OF THE 1ST
RESPONDENT ALONG WITH ACTION TAKEN REPORT
Exhibit P15 A TRUE COPY OF THE ORDER DATED 10.11.2022 IN
WP(C) NO. 36063/2022 OF THIS HON'BLE COURT
RESPONDENT'S/S' ANNEXURES
Annexure R1(a) A TRUE COPY OF ORDER DATED 20.05.2019 IN EP
NO. 685/2008 PASSED BY THE KERALA STATE WAQF
BOARD
Annexure R1(b) A TRUE COPY OF THE RELEVANT PAGES OF THE WAQF
REGISTER MAINTAINED BY THE KERALA STATE WAQF
BOARD
Annexure R1(c) A TRUE COPY OF THE ORIGINAL APPLICATION IN OA
NO. 7/2023 ON THE FILES OF THE WAQF TRIBUNAL,
KOZHIKODE
Exhibit R1(d) A TRUE COPY OF THE ORIGINAL APPLICATION IN OA
NO. 38/2023 ON THE FILES OF THE WAQF
TRIBUNAL, KOZHIKODE
Exhibit R5(a) THE TRUE COPY OF RESOLUTION NO. III(III) OF
THE MEETING OF MANAGING COMMITTEE OF THE 4TH
RESPONDENT FAROOQ COLLEGE MANAGING COMMITTEE
DATED 19.12.1988
Exhibit R5(b) THE TRUE COPY OF DOCUMENT NO. 1657/90 OF
KUZHIPPILLY SUB-REGISTRAR OFFICE DATED
21.06.1990
Exhibit R5(c) THE TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE APPLICANT TO THE REVENUE MINISTER
2025:KER:22251
DATED NIL.
Exhibit R5(d) THE TRUE COPY OF THE ORDER DATED 20.05.2019
PASSED BY THE 3RD RESPONDENT KERALA STATE
WAQF BOARD
Exhibit-R5(e) TRUE COPY OF THE PRESS RELEASE DATED
05.02.2025 ISSUED BY WAQF SAMRAKSHANA SAMITHI
WHICH IS IN NO WAY DIFFERENT FROM WAKF
SAMRAKSHANA SAMITHI.
Exhibit-R5(f) THE TRUE COPY OF DOCUMENT NO. 2115/1950 DATED
01.11.1950 OF KUZHIPPILLY SUB-REGISTRAR
OFFICE ALONG WITH ITS TYPED COPY AND ENGLISH
TRANSLATION.
2025:KER:22251
APPENDIX OF WP(C) 3817/2025
PETITIONER'S/S' EXHIBITS
Exhibit-P1 TRUE COPY OF THE GOVERNMENT ORDER PUBLISHED
IN THE KERALA GAZETTE (EXTRAORDINARY) DATED
28.11.2024
Exhibit-P2 TRUE COPY OF THE WAQF DEED DATED 01.11.1950
REGISTERED AS DOCUMENT NO.2115/1950 AT SRO,
EDAPPALLY
Exhibit-P2(a) ENGLISH TRANSLATION OF EXT.P2
Exhibit-P3 TRUE COPY OF THE STATEMENT OF THE HOME
MINISTER P.T.CHACKO PUBLISHED IN THE LIBRARY
ARCHIVES OF KERALA LEGISLATIVE ASSEMBLY DATED
03.03.1961 AT PAGE 484
Exhibit-P4 TRUE COPY OF THE AFFIDAVIT DATED 14.02.1970
FILED BY THE MANAGING COMMITTEE OF FAROOK
COLLEGE, THE PLAINTIFF IN O.S.NO.53 OF 1967
Exhibit-P5 TRUE COPY OF THE JUDGMENT DATED 30.09.1975 IN
A.S. NO. 600 OF 1971 OF THIS HON'BLE COURT
Exhibit-P6 TRUE COPY OF THE NOTIFICATION PUBLISHED IN
KERALA GAZETTE EXTRAORDINARY DATED 07.11.2008
APPOINTING M.A.NISAR ENQUIRY COMMISSION
Exhibit-P7 TRUE COPY OF THE REPORT NO.15 DATED
26.06.2009 OF M.A.NISAR WAQF ENQUIRY
COMMISSION SUBMITTED TO THE GOVERNMENT
Exhibit-P7(a) TRUE COPY OF THE GOVERNMENT ORDER G.O.
(MS)166/10/RD DATED 11.05.2010 APPROVING THE
RECOMMENDATIONS OF THE COMMISSION
Exhibit-P8 TRUE COPY OF THE ORDER OF THE WAKF BOARD
DATED 20.5.2019 DECLARING THE PROPERTY
COVERED UNDER WAQF DEED NO.2115/1950 OF SRO,
EDAPPALLY AS 'WAQF'
Exhibit-P8(a) TRUE COPY OF THE CERTIFICATE OF REGISTRATION
DATED 11.10.2019
Exhibit-P9 TRUE COPY OF THE WRITTEN SUBMISSION DATED
20.01.2025 FILED BEFORE THE 2ND RESPONDENT
2025:KER:22251
WITHOUT ITS ENCLOSURES
Exhibit-P10 TRUE COPY OF THE JUDGMENT DATED 19-01-2023 IN
RESPONDENT'S/S' EXHIBITS
Exhibit R4(a) TRUE COPY OF THE GIFT DEED NO. 2115/1950
DATED 01.11.1950
Exhibit R4(b) TRUE COPY OF THE PROPERTY TAX RECEIPT DATED
11.02.1998 REMITTED BY FAROOK COLLEGE
MANAGING COMMITTEE
Exhibit R4(c) TRUE COPY OF THE PLAINT IN O.S. NO. 35 OF
1962 (RENUMBERED AS O.S. NO.53 OF 1967) FILED
BEFORE THE ADDL. DISTRICT COURT, PARAVUR
ALONG WITH TYPED COPY
Exhibit R4(d) TRUE COPY OF THE JUDGMENT DATED 12.07.1971 IN
OS NO. 53/1967 OF THE SUB COURT PARAVUR ALONG
WITH TYPED COPY
Exhibit R4(e) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH
COURT OF KERALA, ERNAKULAM IN A.S. NO.600 OF
1971 DATED 30.09.1975
Exhibit R4(f) TRUE COPY OF OA NO.7 OF 2023 FILED BY THE
FAROOK COLLEGE MANAGEMENT COMMITTEE
Exhibit R4(g) TRUE COPY OF OA NO.38 OF 2023 FILED BY THE
FAROOK COLLEGE MANAGEMENT COMMITTEE
Exhibit R4(h) TRUE COPY OF THE CONSTITUTION ADOPTED BY THE
COMMITTEE ON 10.05.1958
Exhibit R4(i) TRUE COPY OF THE AFFIDAVIT DATED 14.02.1970
SWORN BY MR. KALANTHAN
Exhibit R4(j) TRUE COPY OF THE AFFIDAVIT DATED 14.02.1970
SWORN BY MR. KALANTHAN
Exhibit R4(k) TRUE COPY OF THE AFFIDAVIT DATED 14.02.1970
SWORN BY MR. KALANTHAN
Exhibit R5(a) A COPY OF THE ORDER PASSED BY THE HON'BLE
WAQF TRIBUNAL, KOZHIKODE IN I.A.NO.1/2024 IN
2025:KER:22251
W.O.A. NO.38/2023 DATED 07.02.2025 DISMISSING
THE APPLICATION FOR IMPLEADING.
Exhibit R1(a) A TRUE COPY OF ORDER DATED 20.05.2019 IN EP
NO. 685/2008 PASSED BY THE KERALA STATE WAQF
BOARD
Exhibit R1(b) A TRUE COPY OF THE RELEVANT PAGES OF THE WAQF
REGISTER MAINTAINED BY THE KERALA STATE WAQF
BOARD
Exhibit R1(c) A TRUE COPY OF THE ORIGINAL APPLICATION IN OA
NO. 7/2023 ON THE FILES OF THE WAQF TRIBUNAL,
KOZHIKODE
Exhibit R1(d) A TRUE COPY OF THE ORIGINAL APPLICATION IN OA
NO. 38/2023 ON THE FILES OF THE WAQF
TRIBUNAL, KOZHIKODE
