Kochi, Mar 17 (PTI) The Kerala High Court on Monday quashed the state government's order appointing a judicial commission to investigate the Munambam land dispute, saying it had not applied due consideration.
The court observed that the state government had issued the order appointing the commission, headed by former acting Chief Justice of the Kerala High Court Justice C N Ramachandran Nair, without applying its mind and had acted mechanically.
"As the relevant facts which ought to have been borne in mind while appointing a Commission of Inquiry were not considered by the government, order appointing the Commission of Inquiry was issued without any application of mind and fails the test of law. Hence order is quashed," the order said.
Justice Bechu Kurian Thomas, in the order, said 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 Commission of Inquiry followed by its approval by the government itself and above all, the pending proceeding before the Waqf Tribunal.
The court ruled that neither the explanatory note nor the recitals in the order appointing the Commission of Inquiry, explain or narrate how a question relating to the right of ownership of certain properties assumes the character of 'a definite matter of public importance'.
"No doubt, in the counter affidavit it is pleaded that, because of the public protest and consequential agitation the issue has gained public importance."
Curiously, there is no such reference about any agitation or protests. An order issued in exercise of a statutory power must withstand a challenge against its validity not on the basis of any explanation offered subsequently, but by the merit of the order alone," it said.
In November last year, the state government set up the judicial commission to ascertain land ownership in the disputed area.
The Kerala Waqf Samrakshana Vedhi, Ernakulam, challenged the state's order in the High Court.
The state government submitted that the Commission is only a fact finding body intended to furnish the government with material to act upon.
"When an issue that can have an effect on public order arises, the government is entitled to collect necessary materials to decide on what course of action should be adopted. However, as the issue is pending consideration before the Waqf Tribunal, even if the disputes create any issues of public order, still, recourse to the provisions of Commission of Inquiry Act could not have been resorted to, at this stage," the order said.
Meanwhile, Leader of Opposition V D Satheesan criticised the state government for its handling of the Munambam issue.
"The government has intentionally delayed a matter that could have been resolved in 10 minutes to create tension between two communities," he told reporters in Thiruvananthapuram.
Following the HC order, the BJP stated that a permanent solution to the issue would be possible only by amending the Waqf Bill.
BJP leader and former Union Minister V Muraleedharan urged the opposition UDF and CPI(M)-led LDF to support the Waqf Bill amendment in Parliament if they stood with the residents of Munambam.
In the villages of Cherai and Munambam in Ernakulam district, residents have alleged that the Waqf Board was unlawfully claiming their land and properties, despite them holding registered deeds and land tax payment receipts.