Kerala HC Curbs Waqf Board Power, Brands Belated Land Claim 'Land-Grabbing'

In a landmark judgment with significant implications for property law and the administration of religious endowments, the Kerala High Court has strongly rebuked the Kerala Waqf Board (KWB) for its "belated and fanciful exercise of power" in declaring a 400-acre tract of land as waqf property nearly seven decades after its initial transfer. The Division Bench described the Board's 2019 action as a "sheer exercise of land grabbing" and upheld the state government's authority to investigate the statutory body's conduct.

The ruling, delivered by Justices S.A. Dharmadhikari and Syam Kumar V.M., provides critical judicial scrutiny of the procedural requirements for waqf declarations and reinforces the state's supervisory role over Waqf Boards under the Waqf Act. While refraining from formally quashing the Board's declaration, the Court held that the state government is not bound by it, effectively neutralizing its impact on hundreds of families residing on the disputed land.

Background of the Dispute: A 70-Year Journey from Gift to Waqf

The case revolves around approximately 400 acres in Vadakkekara village, Ernakulam district, originally gifted by businessman Mohammed Siddique Sait to the Farook College Management Committee via an "endowment deed" in 1950. For over 69 years, the land was treated as a private endowment. The college committee sold parcels of the land to numerous individuals, who built homes and paid land taxes to the state, creating a settled community.

The legal status of the land remained unchallenged until 2019 when the Kerala Waqf Board, reportedly acting on a decade-old observation by an unrelated commission, declared the entire tract as waqf property. This declaration, registering the land as the "Mohammed Siddique Sait Waqf," was premised on the principle of "once a waqf, always a waqf," implying the property's dedication was permanent and inalienable from its inception.

The Board's move triggered widespread protests from residents facing potential eviction and legal uncertainty. In response, the Kerala government appointed a one-member commission of inquiry, headed by retired High Court Judge C.N. Ramachandran Nair, to examine the legality of the KWB's actions. This inquiry was challenged by the Kerala Waqf Samrakshana Vedhi, an organization for the protection of waqf assets. A single-judge bench initially quashed the government's inquiry, leading to the state's appeal before the Division Bench.

Core Legal Findings: Distinguishing a 'Gift' from a 'Waqf'

The Division Bench’s judgment hinged on a meticulous examination of the 1950 endowment deed and the fundamental legal requirements of a waqf.

1. The Absence of "Permanent Dedication"

The court found that the deed did not constitute a waqf because it lacked the essential element of "permanent dedication" to God. Under Islamic law and various iterations of the Waqf Act, a waqf requires the unconditional and perpetual dedication of property for religious or charitable purposes, with ownership vesting in the Almighty.

The Bench observed that the 1950 document explicitly permitted the Farooq College Management to sell, lease, or transfer the property. Critically, it also included a reversion clause, allowing any unsold portions to return to the donor or his successors. The court noted: “Permanent dedication was never reflected in the endowment deed, wherein the beneficiary was not only entitled to sell the property, but also utilise the sale proceeds for themselves and there was a specific provision of reversion of the property… such recitals cannot be treated as amounting to permanent dedication.”

Consequently, the court concluded that the document was "a simple gift deed in favour of Farooq Management" and could not be retroactively classified as a waqf deed.

2. Inordinate Delay and Arbitrary Exercise of Power

The court heavily criticized the KWB's decision to act after a 69-year delay, during which significant third-party rights had been established. The Bench characterized this inaction followed by a sudden declaration as arbitrary, lacking in bona fides, and contrary to the legal principle that statutory powers must be exercised within a reasonable 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,” the Bench remarked, questioning the Board's motives, especially given the substantial increase in the land's commercial value over the decades.

Procedural Lapses and Statutory Non-Compliance

The High Court identified several fatal procedural flaws in the KWB's 2019 declaration, rendering it legally unenforceable.

• Lack of Mandatory Survey: The Court highlighted that no survey under Section 4 of the Waqf Act was conducted before the declaration. Citing a 2017 Supreme Court precedent, it reiterated that a survey and a quasi-judicial inquiry are "indispensable statutory requirements."
• Failure to Notify: The property was never listed in the 1962 gazette notification of waqf properties under Section 5 of the Act. The law required any aggrieved party to challenge such an omission within one year, a recourse that was not utilized.
• Absence of Public Notice: The KWB failed to issue public notice or publish its decision in the official gazette, denying affected stakeholders an opportunity to be heard.

The judgment states: “For want of compliance with mandatory procedure… 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.”

Upholding State's Supervisory Authority

A crucial aspect of the ruling is its robust affirmation of the state government's supervisory powers over the Waqf Board. The court overturned the single judge’s order and upheld the legality of the Justice Nair Commission.

The Bench held that Section 97 of the Waqf Act grants the state government "real supervisory power and not merely ceremonial control." This power allows the government to issue directions to the Board to ensure it functions within the bounds of the law and the Constitution.

The court clarified that the inquiry commission was a fact-finding body, not an adjudicatory one. Its purpose was not to decide property titles but to investigate the Board's administrative actions, especially since they had created a potential law-and-order situation affecting hundreds of families. The court noted that the state, as the "custodian of the fundamental and constitutional rights of its citizens," was justified in intervening.

Furthermore, the court dismissed arguments that the state’s action infringed on religious freedom under Article 26. It astutely pointed out that a Waqf Board is a statutory body created by secular law, not a religious denomination. As such, its decisions are subject to the same judicial and administrative scrutiny as any other public authority.

Implications for Legal Practitioners and Future Disputes

This judgment serves as a significant precedent in waqf-related property litigation:

• Heightened Scrutiny on Delayed Claims: It establishes a strong judicial precedent against Waqf Boards making belated claims on properties, especially where third-party rights have crystallized over decades.
• Strict Adherence to Procedure: The ruling underscores that procedural mandates under the Waqf Act—such as survey, inquiry, and notification—are not mere formalities but are indispensable for a valid waqf declaration.
• Clarity on State's Role: It empowers state governments to exercise their supervisory jurisdiction under Section 97 of the Waqf Act to scrutinize and regulate the administrative actions of state Waqf Boards.
• Evidentiary Standard for Waqf Deeds: The case reinforces the strict definition of a waqf, emphasizing that deeds containing clauses for alienation or reversion cannot be construed as creating a permanent dedication.

For legal professionals, this decision provides a clear framework for challenging arbitrary declarations by Waqf Boards and defending the rights of bona fide property owners. It reaffirms that the actions of statutory bodies, even those administering religious endowments, are not immune from constitutional principles of fairness, reason, and procedural justice.