‘Matter requires consideration’: SC stays Kerala High Court’s verdict declaring Munambam land not Waqf property

“The matter requires consideration. Issue notice returnable in the week commencing January 27. In the meantime, the declaration in the impugned judgment that the property in question is not the subject matter of waqf shall remain stayed, and the status quo as regards the same shall be maintained,” the bench ordered.

‘Can the writ court go into all this?’

The bench clarified that it was not staying the High Court observation upholding the Kerala Government’s decision to appoint a one-member Commission of Inquiry to examine the status and extent of a 404.76-acre property.

When informed that the proceedings are pending before a Tribunal, Justice Misra remarked orally, “The question here is, if the court comes to a conclusion that the writ petition was not maintainable, he could have stopped there…He has gone much beyond its remit.”

Justice Bhuyan also asked, “Can the writ court go into all this?… He could have set aside the single judge’s order instead of going into all this. Nobody has asked for this… He has gone much beyond. The state government should have challenged all this.”

Appearing for the appellant, Kerala Waqf Samrakshana Vedhi, Senior Advocate Huzefa Ahmadi said the original petition by the Vedhi challenged only the constitution of the state’s inquiry commission, but the HC went further.

“I went to the writ court challenging this inquiry by the Commissioner of Inquiry to say that by virtue of the Bar enacted under sections 85 and 83 read with Section 7 of the Waqf Act, it is only the Waqf Tribunal that has the jurisdiction to determine. What division bench does, it goes into my waqf deed and declares that it is not waqf but a gift,” Ahmadi said.

Senior Advocate Jaideep Gupta, representing the Kerala Government, said the petitioner had no stake in the proceedings related to the Munambam land and was a third party. “What my learned friend hasn’t pointed out is that it is a PIL. It is not the mutawalli who has come forward, and said that it is a waqf property. He claims to be a person aggrieved,” Gupta said.

However, Ahmadi said the Vedhi has a representative interest in protecting Waqfs.

Senior Advocate V Chitambaresh, who appeared for the residents of the place, pointed out that the Commission had already submitted its report to the Government. The senior counsel said that the poor fisherfolk who inhabit the place were not heard before their properties were notified as Waqfs in 2019.

A single judge of the Kerala High Court initially quashed the inquiry, saying it fell within the jurisdiction of the Waqf Tribunal. However, on writ appeal by the state government, a division bench set aside the single bench order, saying the property cannot be classified as Waqf land.