Munambam Land Dispute| 'Issue Before Waqf Tribunal' : Kerala High Court Sets Aside Appointment Of Inquiry Commission

The Kerala High Court on Monday(17th March) allowed the petition challenging the appointment of Inquiry Commission to find a permanent solution in the dispute between the Munambam residents and the Waqf Board. Justice Bechu Kurian Thomas observed that the order of appointment has to be set aside as the matter was still pending before the Waqf Tribunal.

"However, as the issue is in consideration before the Waqf Tribunal, even if the dispute creates any issues of public order, still recourse to the Provisions of the Commission of Inquiry Act could not have been resorted to at this stage. As the relevant facts which ought to have been borne in mind while appointing a commission of inquiry were not concerned by the government, Exhibit P1 order appointing the commission of inquiry was issued without any application of mind, and fails the test of law. Hence Exhibit P1 order is quashed."

The Court pointed out that the Government failed to show what was the matter of "public importance" in the order appointing the commission. As per the Commission of Inquiry Act, an Inquiry Commission can be appointed only in 'a definite matter of public importance'. The State had explained to the Court that the matter attained public importance because of the public protest and consequential agitation. The Court said that the validity of the order has to be judged by its contents and not by any reasons supplemented later.

The Court however said that the Government has the right to collect necessary materials to decide on what course of action is to be taken when an issue can have effect on the public order. However, the court said that since this issue is before the Waqf tribunal, even if the dispute create any issues of public order, the government could not resort to the provisions of the Commissions of Inquiry Act, at this stage.

The Court also observed that the Government appointed the Commission without considering relevant facts.

"....it is evident that when the commission of inquiry was appointed, the government had not considered the significance of the observations and findings of the Waqf Board, or the provisions of the Waqf Act, or the earlier report of the Commission of Inquiry, followed by its approval by the government itself, the judgment of this court in Writ Appeal No. 2001/ 2022 and above all, the pending proceedings before the Waqf Tribunal. The finality prescribed by section 40 of the (Waqf) Act, the bar of jurisdiction under Section 85 of the Act and even the implications of section 51(1)(a) of the Act were also not borne in mind by the government. The government acted mechanically and without proper application of mind in appointing the Commission of Inquiry. Thus relevant facts which would have had a bearing on the appointment of the commission of inquiry were not concerned by the government while issuing Exhibit P1."

The Court also observed that even though the Commission is not empowered to decide on whether the property is waqf or not, any observation by the Commission in this respect has the potential of prejudicing the rights of the contesting party.

The petition was filed by Waqf Samrakshana Vedhi challenging the appointment of the Commission headed by former HC judge Justice CN Ramachandran Nair. The petitioner had argued that the rights over the land have been crystallized through multiple rounds of litigation. However, the respondents opposed this claim and pointed out that the matter is still being contested before the Waqf Tribunal, Kozhikkode.