It is most extremely significant to note that none other than the Kerala High Court itself in a most learned, laudable, landmark, logical and latest judgment titled The State of Kerala vs TKI Ahamed Sherief & Ors in W.A.Nos.603 of 2025 & 606 of 2025 and cited in Neutral Citation No.: 2025:KER:74409 that was pronounced as recently as on October 10, 2025 on Munambam Waqf land dispute involving over 400 acres of land in Ernakulam district cautioned against giving the judicial seal of approval to arbitrary declarations of property as waqf. It must be noted that the Division Bench of Kerala High Court comprising of Hon’ble Mr Justice Sushrut Arvind Dharmadhikari and Hon’ble Mr Justice Syam Kumar VM was most unequivocal in holding that 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. It is a no-brainer that the Kerala High Court’s judgment in this leading case clarifying that the Munambam property in Ernakulam district is not Waqf land is expected to usher in relief to so many people across the country who are facing similar such disputes!
To recapitulate, the Munambam land originally measured 404.76 acres, later reduced to 135.11 acres due to sea erosion. In 1950, one Siddique Sait had gifted the land to Farook College. At that time, several families were already residing on the land. In 1950, one Siddique Sait had gifted the land to Farook College. At that time, several families were already residing on the land. Over time, the college sold parts of the land to these occupants.
For decades, no mention of waqf ownership appeared in any of these transactions. However, in 2019, the Kerala Waqf Board (KWB) suddenly declared the land as waqf property, thereby rendering earlier land sales void. This led to protests by around 600 families, prompting the Kerala government to appoint an Inquiry Commission in November 2024, headed by Justice C.N. Ramachandran Nair (Retd.). The move was challenged by the Kerala Waqf Samrakshana Samithi, claiming the governmenthadno authority to probe into waqf matters. Asingle-judge bench (Justice Bechu Kurian Thomas) quashed the Commission’s appointment in March 2025, which led to the Kerala State’s appeal before a Division Bench. Very rightly so!
We must note that a batch of Writ Appeals had been filed by the State challenged the judgment of the Single Bench by which a notification issued under the provisions of Commissions of Inquiry Act, 1952 was quashed. We also need to note here that the Kerala High Court rapped on the knuckles the Kerala Waqf Board for blatantly disregarding the fundamental rights of those residing on or owning disputed land. It said the Waqf Board’s move to declare Munambam land as Waqf amounted to an attempt to usurp private property. It also merits attention that the Division Bench reversed the Single Bench’s order and restored Inquiry Commission.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sushrut Arvind Dharmadhikari for a Division Bench of Kerala High Court comprising of himself and Hon’ble Mr Justice Syam Kumar VM sets the ball in motion by first and foremost putting forth in para 1 that, “The writ appeals at hand take exception to the final judgment dated 17.03.2025 passed by the Single Bench of this Court in batch of writ petitions, with the lead one being WP(C) No. 2839/2025 and other connected matters. Vide the impugned judgment, the learned Single Bench through reasoned findings quashed the notification dated 27.11.2024 issued under the provisions of Commissions of Inquiry Act, 1952 (for short, ‘the COI Act’), constituting an Inquiry Commission headed by a former Judge of this Court to inquire into certain issues mentioned there under relating to property situated in Survey No. 18/1 of the Vadakkekara village (hereinafter called ‘the subject property’), Kozhikode district. The learned Single Bench held that since the subject property has been declared as a waqf property by the Kerala Waqf Board (for short, KWB), therefore in view of the specific statutory bar under the provisions of the Waqf Act, 1995 (for short, ‘Act of 1995’), specifically Section 83(1), the Inquiry Commission (for short, ‘IC’) under the COI Act could not have been constituted at the threshold for carrying out any inquiry touching the nature of the said waqf property. Since the IC inevitably would be delving into the contours of the endowment deed through which the said property was gifted to R5, Farooq College Management Committee (for short, ‘R5 Farooq Management’), therefore the State Government has acted ultra vires its powers available in the province of COI Act and acted contrary to provisions of Waqf Act, 1995.”
As we see, the Division Bench then observes in para 2 that, “The learned Single Bench also held that since the issue is already pending consideration before the Waqf Tribunal, Kozhikode, which is sought to be inquired into by the IC, recourse to the provisions of COI Act by the State Government was still born and could not have been ever resorted to. The IC has been appointed without any application of mind, which resultantly fails the test of law and consequentially quashed the impugned notification dated 27.11.2024 (Exhibit P1 before the Writ Court).”
As it turned out, the Division Bench enunciates in para 3 that, “For the elaborate reasons and detailed findings to follow, we express our inability to agree with the findings of the learned single Judge, which in our opinion are ex facie erroneous, having been passed in ignorance of Mussalman Waqf Act, 1923, Waqf Act, 1954, Waqf Act, 1995 as also the pronouncements of the Supreme Court from time to time.”
Do note, the Division Bench notes in para 4 that, “We shall be holding that the notification dated 25.09.2019 notifying the subject property as waqf is ultra vires the provisions of The Waqf Act, 1954, as also The Central Waqf Act, 1995 and nothing less than a land grabbing tactics of KWB which has affected the bread and butter, livelihood of hundreds of families and bonafide occupants who had purchased tranches of land decades prior to the notification of the waqf property. Whilst affirming the validity of Exhibit P1 notification constituting the IC, we shall also be holding that the State Government is not bound by the waqf declaration/registration affected by KWB, being simply an eye wash to paint the subject property as a waqf property and Govt. possess widely conferred statutory powers to issue directions under Section 97 of the Waqf Act, 1995 post the conclusion of and submission of the report by the IC under challenge.”
It cannot be glossed over that the Division Bench observes in para 70 that, “We have referred to the various statutory provisions in extenso, wherein right from 1954 till 2013, there was a mandatory obligation of the waqf board to carry out surveys through its designated competent officers and include properties in the register, whichever possessed the character of a waqf. The provisions fixed timelines of three to six months at every stage in 1954, 1969, 1984 and thereafter in 1995 for registration of waqfs existing from prior to the commencement of the concerned enactment/amending act, but however the waqf board never chose or bothered to move its eyeballs over the subject property. There’s no explanation appearing from the records as what kept the KWB adopt a Himalayan silence for 69 years regarding the status of the subject property. Various provisions of both 1954 Act and 1984 Amendment Act also specifically stipulated for notification of the registered waqf property in the official gazette, but admittedly in the present case no such publication in the official gazette has taken place till 2019. There was no categorical answer forthcoming or any document filed on record, which would even remotely show that as on date the land in question has been notified in the official gazette as a waqf property after declaration by the KWB in October 2019. This is yet another indicia for us to be convinced that the subject property cannot be attributed the nature of being a waqf property. Sections 55E and 87 under the Act of 1954 and the Act of 1995 respectively clearly stipulated that no suit or proceedings could be instituted against unregistered waqfs, after the particular time limit stipulated under the enactment. Despite this what kept KWB in deep slumber for decades together is not explainable at all.”
It would be instructive to note that the Division Bench hastens to add in para 71 noting that, “So much so that there were penalties and punishments prescribed for responsible persons (mutawallis) of the waqf in question for failing to get it registered as waqf within the statutorily fixed time period. However neither all these facts were inquired into as to why and what restrained R5 Farooq Management from getting the property registered as a waqf; nor the responsibility fixed upon any person despite a stringent statutory framework for punishing the same; nobody took any serious and sincere step to get the subject property registered as a waqf for 70 years. This all is a clear pointer towards the understanding of the R5 Farooq Management that the deed was not meant to be a waqf one, but a ‘gift deed’. The mere availability of power with the authority doesn’t automatically imply that it can be resorted to at any point of time; rather it must be exercised promptly, timely and within a reasonable period. Thus, there was no reason for the KWB to have waited for 70 years to issue the declaration all of a sudden by conducting a unilateral inquiry, classifying the subject property as a waqf. The inordinate delay in itself is sufficient enough a reason to taint the whole exercise of KWB as unreasonable and arbitrary.”
Most forthrightly, the Division Bench then propounds in para 72 holding that, “Also as stated supra, the endowment deed of 1950 never intended to create any permanent dedication in favour of Almighty the God (Allah), but was a transfer inter vivos by way of gift. Merely on the basis of a title/nomenclature, as a waqf endowment, it could not have been treated as a waqf deed. The KWB unfortunately failed to examine this vital aspect of the waqf deed and mechanically declared the property as a waqf property. The manner in which the KWB has acted is nothing more than land-grabbing tactics after almost 7 decades, affecting fundamental rights, and the livelihood of hundreds of helpless citizens, who have been left with no choice, but to come down on the roads to launch protests, stage dharnas and agitations, which is what compelled the State Government to take the drastic step of setting up an IC. The brazen manner in which the KWB has acted in the case at hand shows reckless disregard of not only the provisions of the Waqf Act, but also the fundamental rights of a large number of citizens whose livelihood is dependent as bona fide purchasers and occupants on land under dispute. 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 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 was also apprised by the AG that not only the collection of land revenue been stopped, but also eviction proceedings of all the bona fide occupants, as illegally and unauthorized encroachers on the subject property have been initiated by the KWB and consequently hundreds of people face eviction who had purchased properties and had settled permanently on the subject land two-three decades ago. The brazenness of the KWB proceeding for eviction against such permanent settlers is premised upon the said illegally issued order and declaration of waqf. Therefore, we were left with no choice, but to record a finding that the declaration/registration of waqf is an exercise completely untenable in law which cannot bind the appellant State before us.”
Quite significantly, the Division Bench points out in para 79 that, “In the case at hand, the delay and inaction on the part of KWB is far more glaring of initiating the action of declaring the disputed land as waqf after 69 years, when admittedly large number of third party ownership and occupancy rights had already been created by the R5 Committee. 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 rest control, management and ownership of the entire subject property.”
It is worth noting that the Division Bench then notes in para 81 that, “The upshot of the above discussion is that this Court is not precluded from examining the sustainability of the declaration/registration of the subject property as a waqf in writ proceedings, especially when the State Government itself as the custodian of the fundamental and constitutional rights of its citizens has come in appeal before us. Though we have held the action of KWB declaring/registering the subject property as waqf as illegal and unsustainable on very many grounds, however we restrain ourselves from quashing the same, since the solitary purpose of undertaking the whole discussion and returning the findings as afore stated was to hold simply that such a legally unsound declaration will not be binding upon the State Government, nor would it create any hindrance for the State in constituting an IC for hearing and suggesting measures about redressal of affected and aggrieved bona fide purchasers and occupants on the subject property. The validity of the impugned notification is accordingly affirmed, while setting aside the judgement of the learned Single Bench as being erroneous and having been passed in ignorance of admitted documents and material on record before this Court. We also whilst making the interim order dated 07.04.2025 permanent, direct the State to proceed with and act upon the report, if any, filed by the Sole Member IC constituted in pursuance of the impugned notification. The State Government shall be at liberty to issue necessary directions under Section 97 of the Act of 1995, as also in the capacity of custodian of the fundamental rights of its citizens, who are prejudicially affected by the declaration of the subject property as a waqf by the KWB.”
Finally and far most significantly, the Division Bench then concludes by encapsulating in para 87 what constitutes the actual cornerstone of this notable judgment postulating precisely that, “In view of the discussion and the findings recorded above, this Court, therefore, returns the following conclusions:
a. The judgment of the learned Single Judge is set aside, whilst affirming the legality and validity of the impugned notification issued under the provisions of the COI Act, being notification dated 27.11.2024 issued by the GOK/State Government, if it deems so would be at liberty to proceed with the implementation of the recommendations and report of the said IC in accordance with law;
b. The OWP’s do not possess the locus standi to have instituted the writ petition before the Single Bench, which clearly ought not to have been entertained at their instance.
c. 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.
d. The Writ Court can always examine on the basis of unimpeachable and admitted documents as to whether a deed/document or a property classifies as a waqf deed or not on the basis of its recitals and clauses. Merely because the nomenclature of the subject deed of 1950 was a waqf endowment, will not clothe it with the said character, in view of the express authorization of absolute transfer and ownership; and in view of the absolute vesting of rights of transfer/sale and ownership in the hands of R5 Farooq Management;
e. The Writ Court can go into the questions of ascertaining whether the KWB has as a statutory body acted fairly, reasonably, and in compliance of the statutory provisions and even hold its action illegal, despite the availability of an alternative remedy before the Waqf Tribunal under the provisions of the Waqf Act, 1995 in the application moved by the State Government for surcharge purposes; with the rider that no disputed facts are on record which are to be proved only on the basis of evidence.
f. The action of the KWB of declaring/registering the subject property as a waqf property through its declarations and orders issued in September and October 2019 are bad in law on the grounds of being unreasonably delayed and having been issued in palpable violation of the provisions of the Waqf Acts 1954, 1984, and 1995 and resultantly non-enforceable. However, we restrain ourselves from issuing a formal order of quashing them, since the purpose of returning all the above findings is just to hold that the State Government is not bound by such highly belatedly issued declaration by the KWB after 7 decades (69 years);
g. For want of compliance with mandatory procedure and provisions of the Waqf Act, 1954 and 1995, especially the carrying out of a survey, the conducting of quasi-judicial inquiry, followed by a reasoned comprehensive report being forwarded to the State Government and for want of publication in the official gazette clearly, the subject property could never have been classified as a waqf property and it cannot bind the State Government restraining it from constituting any IC for conducting inquiry and submitting a report;
Both the appeals are accordingly allowed in terms of the aforesaid conclusions and directions.”
Sanjeev Sirohi