S. Muralee Krishna, J.
1. Petitioners in W.O.A.No.194 of 2025 on the file of the Waqf Tribunal, Kozhikode (‘the Tribunal’ for short), filed this M.F.A.(WAQF) invoking the provisions under Section 83(9) of the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995, as amended by the Waqf (Amendment) Act, 2025 (‘the Waqf Act’ for short), challenging the order dated 14.01.2026 passed by the Tribunal in I.A.No.1 of 2025 filed in that W.O.A.
2. As per the pleadings in this M.F.A.(WAQF), the appellants are persons interested in Waqf and Waqf properties managed by Puttanikkadu Mahallu Juma Masjid Committee. They are the general body members and Mahallu members of the said Juma Masjid Committee, which is arrayed as the 2nd respondent in this M.F.A(WAQF). The appellants filed W.O.A.No.194 of 2025 before the Tribunal, challenging the order of the 1st respondent Waqf Board, whereby permission was granted to the 2nd respondent Committee to construct a Madrassa building in a property, which, according to the appellants, is not registered as a Waqf under the provisions of the Waqf Act. According to the appellants, the said order was passed by the Waqf Board by the proceedings dated 22.10.2025, without affording the appellants an effective opportunity of hearing and thereby violating the principles of natural justice. In W.O.A., the appellants filed I.A.No.1 of 2025 under Order XLI Rule 5 of the Code of Civil Procedure, 1908 (‘the CPC’ for short), to stay the aforesaid order dated 22.10.2025 passed by the Waqf Board granting permission to construct a new Madrassa in the property situated in Re.Sy.No.37/13 of Kottoppadam-III Village.
3. From the statements of facts of this M.F.A(WAQF) and from the impugned order, we could gather that the contentions of the appellants in the interlocutory application are that the Executive Committee of Puttanikkadu Mahallu Juma Masjid Committee in its meeting held on 18.12.2024 decided to renovate and construct the existing Madrassa situated in Re.Sy.No.37/1 of Kottoppadam Village with an estimated cost of Rs.36,75,000/-. However, without placing this proposal before the general body of the 2nd respondent Committee, the Executive Committee approached the 1st respondent Waqf Board for approval, altering the project for the construction of a new Madrassa in a different property bearing Re.Sy.No.37/13. The said property comprised in Re.Sy.No.37/13 is not registered as a Waqf property. Thereafter, the Waqf Board issued notice to the respondent Committee as well as the appellants on 23.08.2025 to hear the matter. The 4th appellant, on receipt of notice, appeared before the Waqf Board on 16.09.2025 and sought time to file a statement, and accordingly, the matter was posted to 14.10.2025. In the meanwhile, the appellants came to know that an officer had already been appointed by the Waqf Board in the said matter and that he had submitted a report. However, the copy of the aforesaid report was not furnished to the appellants and therefore, on 14.10.2025, the appellants sought further time to file their statement as the copy of the investigation report had not been served to them. But without heeding the said request and without hearing the appellants, the Chief Executive Officer of the Board issued the impugned proceedings on 22.10.2025.
4. Respondents 2 and 3 entered appearance before the Tribunal and filed a counter opposing the interlocutory application. According to the respondents, the appellants filed W.O.A. and the interlocutory application without any bona fides or legal grounds, only to stop the Madrassa construction based on a factional interest, which prevents the imparting of a religious education to the students.
4.1 Apart from denying the averments in the affidavit filed in support of the interlocutory application, it is further contended in the counter that one Mr.Bhasheer Cherumalayi, along with Kunjalavi and Mr.Ilyas Cherumalayil, had filed a petition before the Waqf Board with a dishonest intention to stop the construction of a Madrassa which is a part of Puttanikkadu Mahallu Juma Masjid. The Puttanikkadu Mahallu Juma Masjid is a registered, ancient Public Waqf in Mannarkkad, Palakkad district, with registration No.B5-2608/RA. The Puttanikkadu Mahallu Juma Masjid Committee is administering the said Waqf as per the registered bye-law. The present president is Mr.Koomencherry Avara, and the secretary is Moidheenkutty Cherumalayil. The Madrassa by name ‘Irshadussibivan Madrassa’ has been functioning from the inception of the Waqf. The Madrassa teaching the syllabus is being governed by the Samastha Kerala Islam Matha Vidhyabhyasa Board for decades. The recognition was in the year 1986. The Madrassa building was in a dilapidated condition, and the same was a threat to the life of the Madrassa students, as well as teachers in the Madrassa. It was under those circumstances that the Committee applied for the construction of a Madrassa building in the Waqf property before the Kottoppadam Grama Panchayat and obtained the building permit. On the complaint of the appellants, Waqf Inspector Sri.Shafeeq K.T. inspected the property and submitted an enquiry report.
4.2 The respondents 2 and 3 further contended in their counter that the appellants are running another Madrassa, namely ‘Yehiyavu Sunnah Secondary Madrassa’ near the Madrassa of Puttanikkadu Mahallu Juma Masjid and as a part of rival factionary issues, they attempt to stop the construction of the Madrassa by raising untenable objections. The Waqf Board and the Local Self Government Authority granted permission for constructing the Madrassa in accordance with the law. Moreover, several persons have offered their contributions for constructing the Madrassa as well. The delay in the construction of a Madrassa will be a denial of Madrassa education to the students, and the persons who offered money for constructing the Madrassa may withdraw their offer or demand to use their contribution for some other religious purposes. The appellants neither have a prima facie case nor a balance of convenience in their favour.
5. Before the Tribunal, from the side of the appellants, Exts.A1 to A9 documents were marked, and from the side of the respondents 2 and 3, Exts.B1 to B10 documents were marked for reference in the interlocutory application. After hearing both sides, the Tribunal, by the impugned order, dismissed the interlocutory application. Being aggrieved, the appellants are now before this Court with this M.F.A.(WAQF).
6. On 26.02.2026, when this M.F.A.(WAQF) came up for admission, the same was admitted on file. The learned Standing Counsel for the Kerala State Waqf Board and the learned counsel for respondents 2 and 3 entered appearance. Urgent notice by special messenger was ordered to respondents 4 to 15. Regarding the interim relief sought for in I.A.No.1 of 2026 filed in this M.F.A.(WAQF), the learned counsel for respondents 2 and 3, on instructions, submitted that the construction of the building for the Madrassa had already commenced in December 2025. The learned Standing Counsel for the Kerala State Waqf Board sought time to get instructions.
7. To I.A.No.1 of 2026 filed by the appellants seeking stay of the operation of the further proceedings of the Waqf Board as per the proceedings dated 22.10.2025, the respondents 2 to 5, 9 and 12 to 14 filed counter affidavit dated 05.03.2026, producing therewith Annexures R2(a) to R2(m) documents. Along with I.A.No.3 of 2026, the appellants have produced Annexure A1, a true copy of the enquiry report dated 15.03.2025.
8. Heard the learned counsel for the appellants, the learned counsel for respondents 2 to 5, 9 and 12 to 14 and the learned Standing Counsel for the Kerala State Waqf Board.
9. The learned Counsel for the appellants by relying on the provisions, such as Sections 3(r), 3(B), 36 and 37 of the Waqf Act would argue that in order to treat the property in question situated in Re.Sy.No.37/13, after 05.04.2025, the date on which the new Waqf Act came into operation, it has to be mandatorily registered at the office of the Waqf Board. In the instant case, admittedly, there is no Waqf deed without which a Waqf cannot be created after 05.04.2025. A Waqf by user cannot be created after the coming into force of the Waqf (amendment) Act, 2025, on 05.04.2025 and without registration, the permission cannot be granted by the Waqf Board to start the construction in the property using the Waqf fund. From Annexure A1 enquiry report submitted along with I.A.No.3 of 2026, it is clear that the property in Re.Sy.No.37/13 is not included in the register of Waqf. The effect of the permission now granted by the Waqf Board for the construction of the Madrassa is that a private committee is getting the Waqf fund, and the Tribunal failed to consider these aspects in their proper perspective.
10. On the other hand, the learned counsel for the contesting respondents would submit that in Annexure R2(j) complaint filed by the appellants before the Divisional Waqf Board Officer, Malappuram, on 20.01.2025, it was admitted that the property is a Waqf property. Similar is the case of a police complaint filed by the appellants against the construction. By relying on Section 36 of the Waqf Act, the learned counsel argued that the bar for creation of a new Waqf without any Waqf deed is applicable only to the Waqf that would be created after the coming into force of the new Act on 05.04.2025 and not for the Waqfs that were created by user prior to the coming into force of the new Act.
The time period stipulated for registration of the auqafs as per Section 36(8) of the new Act is extended for five more months from 06.12.2025 by the Tribunal.
11. The learned Standing Counsel for the Kerala State Waqf Board would submit that before the Police, the appellants filed a complaint raising objection in constructing the Madrassa building in Re.Sy.No.37/1, and they raised no objection in respect of the property in Re.Sy.No.37/13 and instead requested that the construction should be strictly in the property situated in Re.Sy.No.37/13. Now the construction has reached its lintel level, and after the general body decision to seek permission and effect construction of a Madrassa building till reaching this level of construction, the appellants did not raise any objection and therefore, the prima facie case, balance of convenience and the injury aspects are in favour of the respondents.
12. From the pleadings on record and from the submissions made at the Bar, we notice that the main contention of the appellants is that the permission for construction was granted by the Waqf Board, as per the order dated 22.10.2025 is on a property that is not registered at the office of the Waqf Board. There are no serious contentions for the appellants that the property in question, situated in Re.Sy.No.37/13 is not a Waqf property; but according to them, no Waqf can be created after 05.04.2025, i.e., the date on which the new Act came into force, without execution of a Waqf deed. Since such a Waqf deed is absent in the present case, it is not possible to register the property at the office of the Waqf Board. In order to appreciate this argument of the learned counsel for the appellants, it would be appropriate to extract Sections 3(r), 3(B), 36 and 37 of the Waqf Act hereunder:
Section 3 Definitions.-
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(r) “waqf” means the permanent dedication by any person showing or demonstrating that he is practising Islam for at least five years, of any movable or immovable property, having ownership of such property and that there is no contrivance involved in the dedication of such property, for any purpose recognised by the Muslim law as pious, religious or charitable and includes—
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(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;
(iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare, or maintenance of widow, divorced woman and orphan, if waqif so intends, in such manner, as may be prescribed by the Central Government, and such other purposes as recognised by Muslim law, and “waqif” means any such person making such dedication;
Provided that the existing waqf by user properties registered on or before the commencement of the Waqf (Amendment) Act, 2025 as waqf by user will remain as waqf properties except that the property, wholly or in part, is in dispute or is a government property;
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3-B. Filing of details of waqf on portal and database.—
(1) Every waqf registered under this Act, prior to the commencement of the Waqf (Amendment) Act, 2025, shall file the details of the waqf and the property dedicated to the waqf on the portal and database, within a period of six months from such commencement:
Provided that the Tribunal may, on an application made to it by the mutawalli, extend such period of six months under this section for a further period not exceeding six months as it may consider appropriate, if he satisfies the Tribunal that he had sufficient cause for not filing the details of the waqf on the portal within such period.
(2) The details of the waqf under sub-section (1), amongst other information, shall include the following, namely:—
(a) the identification and boundaries of waqf properties, their use and occupier;
(b) the name and address of the creator of the waqf, mode and date of such creation;
(c) the deed of waqf, if available;
(d) the present mutawalli and its management;
(e) the gross annual income from such waqf properties;
(f) the amount of land-revenue, cesses, rates and taxes annually payable in respect of the waqf properties;
(g) an estimate of the expenses annually incurred in the realisation of the income of the waqf properties;
(h) the amount set apart under the waqf for—
(i) the salary of the mutawalli and allowances to the individuals;
(ii) purely religious purposes;
(iii) charitable purposes; and
(iv) any other purposes;
(i) details of court cases, if any, involving such waqf property;
(j) any other particular as may be prescribed by the Central Government.
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36. Registration.—(1) Every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Board.
(1-A) On and from the commencement of the Waqf (Amendment) Act, 2025, no waqf shall be created without execution of a waqf deed.
(2) Application for registration shall be made by the mutawalli:
Provided that such applications may be made by the waqf or his descendants or a beneficiary of the waqf or any Muslim belonging to the sect to which the waqf belongs.
(3) An application for registration shall be made to the Board through the portal and database and shall contain the following particulars:—
(a) a description of the waqf properties sufficient for the identification thereof;
(b) the gross annual income from such properties;
(c) the amount of land revenue, cesses, rates and taxes annually payable in respect of the waqf properties;
(d) an estimate of the expenses annually incurred in the realisation of the income of the waqf properties;
(e) the amount set apart under the waqf for—
(i) the salary of the mutawalli and allowances to the individuals;
(ii) purely religious purposes;
(iii) charitable purposes; and
(iv) any other purposes;
(f) any other particulars as may be prescribed by the Central Government.
(4) Every such application shall be accompanied by a copy of the waqf deed or [xxx]
(5) Every application made under sub-section (2) shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of pleadings.
(6) The Board may require the applicant to supply any further particulars or information that it may consider necessary.
(7) On receipt of an application for registration, the Board shall forward the application to the Collector having jurisdiction to inquire the genuineness and validity of the application and correctness of any particulars therein and submit a report to the Board: Provided that if the application is made by any person other than the person administering the waqf, the Board shall, before registering the waqf, give notice of the application to the person administering the waqf and shall hear him if he desires to be heard.
(7-A) Where the Collector in his report mentions that the property, wholly or in part, is in dispute or is a Government property, the waqf in relation to such part of property shall not be registered, unless the dispute is decided by a competent court.
(8) In the case of auqafs created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of auqafs created after such commencement, within three months from the date of the creation of the waqf.
(9) The Board, on registering a waqf, shall issue the certificate of registration to the waqf through the portal and database.
(10) No suit, appeal or other legal proceeding for the enforcement of any right on behalf of any waqf which have not been registered in accordance with the provisions of this Act, shall be instituted or commenced or heard, tried or decided by any court after expiry of a period of six months from the commencement of the Waqf (Amendment) Act, 2025:
Provided that an application may be entertained by the court in respect of such suit, appeal or other legal proceedings after the period of six months specified under this sub-section, if the applicant satisfies the court that he has sufficient cause for not making the application within such period.
37. Register of auqafs.— (1) The Board shall maintain a register of auqafs which shall contain in respect of each waqf copies of the waqf deeds, when available and the following particulars in such manner as prescribed by the Central Government, namely:—
(a) the class of the waqf;
(b) the name of the mutawalli;
(c) the rule of succession to the office of mutawalli under the waqf deed or by custom or by usage;
(d) particulars of all waqf properties and all title deeds and documents relating thereto;
(e) particulars of the scheme of administration and the scheme of expenditure at the time of registration;
(f) such other particulars as may be prescribed by the Central Government.
(2) The Board shall forward the details of the properties entered in the register of auqaf to the concerned land record office having jurisdiction of the waqf property.
(3) On receipt of the details as mentioned in sub-section (2), the land record office shall before deciding mutation in the land records, in accordance with revenue laws in force, shall give a public notice of ninety days, in two daily newspapers circulating in the localities of such area of which one shall be in the regional language and give the affected persons an opportunity of being heard, then, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of waqf property under section 36, its objections to the Board.”
(Underline supplied)
13. Under Section 61, certain penalties are also provided, if the Mutawalli fails to apply for a registration of a auqafs, etc.
14. From the reading of Section 36(1) of the Waqf Act, it is clear that every Waqf created before or after the commencement of the new Act shall be registered at the office of the Waqf Board. That means the Waqf already created shall also be registered at the office of the Waqf Board. As per Section 36(8) of the Waqf Act, in case of auqafs created before the commencement of the Act, the application for registration shall be made within three months from the commencement and in the case of auqafs created after such commencement, within three months from the date of creation of the Waqf. But this period is now admittedly extended by the Tribunal for five more months from 06.12.2025. The reading of Section 36(1A) would show that after the commencement of the new Act, no Waqf shall be created without the execution of a Waqf deed. The creation of Waqf by user is removed from the Act with effect from 05.04.2025.
15. As noted above, the documents produced from the side of the contesting respondents as well as from the submissions made at the Bar, we notice that the appellants have no contention that the property in question, situated Re.Sy.No.37/13 is not a Waqf, but their contention is that it is not registered at the office of the Waqf Board. But the reading of Section 36(1) and 36(1A) would make it clear that the bar for creation of a Waqf, without execution of a Waqf deed, is applicable only in the case of the creation of a new Waqf after the commencement of the new Act. The Waqf by user already created will not be hit by the removal of the said provision by the new Act.
16. Though the appellants sought stay of the order of the Waqf Board dated 22.10.2025, granting permission to construct a new Madrassa in the property in dispute, and not a temporary injunction, the nature of the stay sought for would show that, in effect, the said stay will have the force of an order of injunction. Therefore, while granting any such order, the Court has to look into prima facie case, balance of convenience and the injury aspects, as in the case of an order of injunction. The materials placed on record would show that the prima facie case is in favour of the respondents since the general body of the 2nd respondent, Juma Masjid, in which the appellants are also members, took a decision to construct a Madrassa building, though there is a dispute pertaining to the property in which it was decided to be constructed, which can be decided only after a full fledged trial. Moreover, the photographs produced along with the counter affidavit filed by the contesting respondents in I.A.No.1 of 2026 as Annexure R2(m) would show that construction of the Madrassa building has now reached the stage of lintel level. Therefore, the balance of convenience and injury aspects is also in favour of the contesting respondents.
17. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no illegality, impropriety or incorrectness in the impugned order of the Tribunal, which warrants interference by exercising appellate jurisdiction.
In the result, this M.F.A.(Waqf) stands dismissed. The pending interlocutory applications, if any, stand closed.
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