In a strongly worded judgment on the Munambam waqf land dispute, the Kerala High Court on Friday cautioned against giving the judicial seal of approval to arbitrary declarations of property as waqf [State of Kerala v. Kerala Waqf Samrakshana Vedhi].

A Division Bench of Justices SA Dharmadhikari and Justice Syam Kumar VM said that doing so would enable any structure to be declared as waqf property, including the Taj Mahal, Red Fort, legislature buildings or even the Court's own building.

"If judicial seal of approval is placed on such an arbitrary declaration of waqf, tomorrow any random building or structure, including Taj Mahal, Red Fort, Niyama Sabha Mandiram (State Legislature Complex), or even this Court’s building would be vulnerable of being painted with the brush of a waqf property by the waqf board on the basis of any random document at any point of time," the Court said.

The Court added that permitting Waqf Boards to act in in arbitrary fashion would endanger the constitutionally guaranteed right to property under Article 300A, the right to do business under Article 19, and the right to life and livelihood under Article 21 of the Constitution of India.

"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. Acknowledging the existence of so much unaccounted power at the disposal of the waqf board would imperil the previously guarded constitutional right to property under Art. 300A guaranteed to every citizen of the country; it would throttle the right to freedom to do business and the right to life and livelihood under Arts. 19 and 21, respectively, to be trampled anytime by the waqf boards on a mere declaration / registration of property as a waqf without following the due process of law," the Court stated in its judgment.

The Munambam land dispute concerns land in Munambam, which originally measured 404.76 acres but has been reduced to around 135.11 acres due to sea erosion.

In 1950, the land was gifted to the Farook College by one Siddique Sait. However, the land was already home to several people, who continued occupying the land, leading to legal battles between the college and the long-time occupants.

Later, the college sold portions of the land to these occupants. These land sales did not mention that the property was waqf land.

In 2019, the Kerala Waqf Board formally registered the land as waqf property, making the earlier sales void.

In response to growing protests from around 600 families, the Kerala government appointed an inquiry commission in November 2024, led by retired Justice CN Ramachandran Nair to recommend solutions.

This came to be challenged before the High Court by members of the Waqf Samrakshana Samithi, who argued the government had no power to inquire into Waqf properties outside the statute.

On March 17, single-judge Bench of Justice Bechu Kurian Thomas quashed the order appointing the Commission, prompting the State to file the present appeal before a Division Bench of the Court.

The Division Bench held that the deed endowing the property to the Farooq Management was a gift deed, not a waqf deed. Previous court proceedings based on the deed had dealt with it as a gift deed and even the Farooq Management asserted that it was a gift deed, it said.

However, the Kerala Waqf Board (KWB) declared that it was a waqf deed merely based on it being titled as a waqf declaration, it went on to observe.

The Court noted that the KWB seemed to have merely gone by the fact that the document was titled waqf declaration even though it did not meet the necessary criteria to be one.

The Court also found that the KWB declaration came after undue delay, in 2019, over 69 years after the land was endowed to Farooq Management. The Court further observed that the KWB's order records no reasons for its declaration, and that it was passed without hearing any of the affected parties who had been occupying the land after purchasing it from the Farooq Management.

The Court said that it could not keep its eyes shut to such "palpable illegality and blatant arbitrariness" on the part of the KWB. It also took a dim view of the fact that KWB had started eviction proceedings against the occupants of the land. All this was done after the land value increased, the Court noted.

"The action of KWB clearly smacks of a foul action lacking bonafides, in the backdrop of land having assumed high commercial and business value. On the ground of delay and indolent conduct of the KWB itself, we are convinced that the declaration of property as a waqf is a desperate attempt to somehow wrest control, management and ownership of the entire subject property", the Court remarked.

One of the primary contentions raised by the original petitioners was that only a Waqf tribunal can decide the matter, not the Court in its writ jurisdiction or the State government.

However, the Court held that it is empowered to scrutinise whether the conditions to create or ordain a waqf and the statutorily mandated conditions to declare a property as waqf have been met.

"The Court can always scrutinise whether the procedure of survey and conducting quasi-judicial inquiry prior to declaration of any property as waqf has been diligently and sincerely observed by the authorities as it has the draconian consequence of depriving & displacing a large number of citizens of their fundamental and constitutional rights," the Court added.

The Division Bench, accordingly, set aside the single judge's order, effectively restoring the constitution of the Inquiry Commission. The Court, however, did not go to the extent of quashing the KWB orders as it was only concerned with the State's appeal.

The State government was represented by Advocate General (AG) K Gopalakrishna Kurup, Special Government Pleader (GP) Revenue MH Hanil Kumar, Senior GPs S Kannan and V Manu and Special GP to the AG, CE Unnikrishnan.

The State Waqf Board was represented by advocate Jasheed Hafiz.

The other respondents (original petitioners) were represented by advocates P Chandrasekhar, PK Ibrahim, KP Ambika, Zeenath PK, Jabeena KM, Anaz Bin Ibrahim, and Pradeep Kumar.

[Read Judgment]