Supreme Courtroom Halts Kerala HC Ruling on Munambam Land Standing as Waqf

The Supreme Courtroom at present(December 12) stayed the declaration of the Kerala Excessive Courtroom that the Munambam property will not be a Waqf land and ordered establishment with respect to the land until January 27.

A bench comprising Justice Manoj Misra and Justice Ujjal Bhuyan, nonetheless, clarified that it has not stayed the statement of the Excessive Courtroom, which upheld the State Authorities’s choice to nominate a one-member Fee of Inquiry to look at the standing and extent of a 404.76-acre property in Munambam.

The Courtroom handed the interim order whereas issuing discover on a Particular Go away Petition filed by the Kerala Waqf Samrakshana Vedi towards the Excessive Courtroom’s verdict.

On the outset, Senior Advocate Huzefa Ahmadi, assisted by AoR Abdulla Naseeh, for the petitioner, submitted that the Excessive Courtroom’s observations concerning the validity of the Waqf deed had been unwarranted because it was not the problem concerned. The writ petition challenged solely the State’s structure of the inquiry fee and the problems associated to the validity of the Waqf deed, and the character of the land are completely throughout the area of the Waqf Tribunal. He additionally identified that proceedings are pending earlier than the Waqf Tribunal difficult the notification of the land as Waqf. Therefore, Ahmadi argued, the Excessive Courtroom erred in coming into into these questions.

Ahmadi stated: “I went to the writ Courtroom difficult this inquiry by the Commissioner of Inquiry to say that by advantage of the Bar enacted underneath Sections 85, 83 learn with 7 of the Waqf Act, it’s only the Waqf Tribunal that has the jurisdiction to find out. What division bench does, it goes into my waqf deed and declares that it isn’t waqf however a present.“

Senior Advocate Jaideep Gupta, for the State, opposed the petitioner, saying that it was an organisation which was solely a 3rd occasion. He identified that the muttawalli of the involved Waqf didn’t strategy the Excessive Courtroom or was not aggrieved with the structure of the inquiry fee, and that the petitioner was a stranger to the proceedings.

Gupta: ” What my discovered good friend hasn’t identified that it’s a PIL. It’s not the muttawalli who has come ahead and stated that it’s a waqf property. He claims to be an individual aggrieved.”

Gupta additional added that the inquiry fee has already submitted its report back to the State Authorities. Relating to locus, Ahmadi submitted that the petitioner has a consultant curiosity within the safety of Waqfs. He submitted that the muttawalli of the Waqf has sided with the other events.

Senior Advocate V Chitambaresh, for the present residents of the land, submitted that the petition has turn into infructuous because the Fee has already tendered its report back to the Authorities. He emphasised that the current residents are poor fishermen and so they weren’t heard earlier than their properties, which had been underneath their occupation for a very long time, had been instantly notified as Waqfs in 2019. Senior Advocate Maninder Singh, for one more set of residents, submitted that there was a civil court docket decree holding that the land was not a waqf land.

Through the listening to, the bench puzzled if the Excessive Courtroom was the proper discussion board to enter the query of the character of the land, because the proceedings are pending earlier than the Tribunal. “You might be left worse off than you had been earlier than submitting the writ petition…The query right here is, if the Courtroom involves a conclusion that the writ petition was not maintainable, he may have stopped there…He has gone a lot past its remit,” Justice Misra instructed Ahmadi.

Justice Bhuyan additionally expressed an analogous view, asking if the Excessive Courtroom could possibly be the suitable discussion board to resolve these points. He stated: “Can the writ Courtroom go into all this?…he may have put aside the order of the only decide as a substitute of going into all this. No person has requested for this…he has gone a lot past. State Authorities ought to have challenged all this. This order has rendered your [plea] redundant.”

The bench noticed within the order as follows:

“The matter requires consideration. Concern discover returnable in week commencing 27 January. Within the meantime, the declaration within the impugned judgment that the property in query will not be subject material of waqf shall stay stayed, and the established order as regards the identical shall be maintained.”

Advocate Subhash Chandran Ok took discover for the Kerala State Waqf Board. Advocate CK Sasi, Kerala’s standing counsel, accepted discover for the State.

Background

What does the petitioner argue?

The Waqf Samrakshana Vedhi, which was additionally the petitioner within the Kerala Excessive Courtroom difficult the Fee Inquiry, argues that the validity of the waqf registration was not a difficulty earlier than the Excessive Courtroom within the writ appeals and that the State had not sought any such declaration. The one subject earlier than the Excessive Courtroom was whether or not the State had the ability to nominate a Judicial Fee on a difficulty which was sub-judice earlier than the Waqf Tribunal. Nonetheless, the Excessive Courtroom travelled past pleadings and ventured into factual willpower concerning the character of the 1950 endowment deed.

The SLP argues that inspecting the intention of the waqif, deciphering the endowment deed, and deciding whether or not it’s a waqf or a present are issues requiring trial and proof, which lie completely throughout the area of the Waqf Tribunal. It was additionally identified that proceedings are ongoing within the Waqf Tribunal, Kozhikode, difficult the Waqf Board’s 2019 declaration registering the contested property as “Mohammed Sidhique Sait Waqf”.

The petitioner additional states that the character of the property had already been decided by a civil court docket in O.S. No. 53 of 1967, the place the Sub Courtroom, Paravur had held the 1950 doc executed in favour of Farook School to be a waqf deed. This discovering was affirmed by the Kerala Excessive Courtroom in enchantment in 1973 and was by no means challenged by the Farook School authorities. The petitioner argues that this prior willpower operates towards the world and can’t be reopened by means of govt inquiry.

The petitioner additionally questions the Excessive Courtroom’s validation of the Fee of Inquiry, by arguing that it creates an adjudicatory discussion board in parallel to the Waqf Tribunal, which has the unique jurisdiction to cope with the problem. It’s argued that the Commissions of Inquiry Act, 1952 doesn’t allow the ordering of a Fee inquiry into issues which might be already sub-judice.