The constitution of an inquiry commission by the State is valid despite challenges under the Waqf Act, 1995 when prior waqf declarations are arbitrary, devoid of proper procedure, and the property in question is deemed a gift deed, not waqf.

JUDGMENT :

SUSHRUT ARVIND DHARMADHIKARI, J.

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.

2. 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).

3. 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.

4. 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 effected 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.

A. NECESSARY AND ADMITTED FACTS-

5. The facts adumbrated herein briefly have been borrowed both from the pleadings before the Single Bench as well as before this Court. An extent of 404.76 Acres of property comprised in old Survey No. 18 of then Vadakkekara Village of erstwhile Travancore State was transferred to R5 Farooq Management vide Document No.2115/1950 through an endowment deed, executed on 01.11.1950 by Mohammed Siddique Sait also titled as ‘waqf endowment’. The aforesaid land originally measuring around 404.76 Acres was originally unregistered government land, which was assigned in favour of Shri. Abdul Sathar Haji Moosa Sait by the erstwhile Travancore Cochin Government