C.R.P.(Wakf) No.18 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 14[TH] DAY OF SEPTEMBER 2023 / 23TH BHADRA,** ## **1945** ## **CRP(WAKF) NO. 18 OF 2022** **AGAINST THE ORDER DATED 16.02.2022 IN WOA 29/2021 OF WAKF** ## **TRIBUNAL, KOZHIKODE** ## **REVISION PETITIONER/RESPONDENT NO.1:** **IBRAHIM P.H., AGED 50 YEARS, S/O. HASSAN, PUTHENPURA VEEDU, ATHANI, KUSUMAGIRI P.O, KAKKANAD, ERNAKULAM, PIN – 692 030.** **BY ADV T.M.ABDUL LATHEEF** ## **RESPONDENTS/APPLICANT/RESPONDENTS 2 AND 3:** - **1 CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD V.I.P. ROAD, KALOOR, KOCHI, ERNAKULAM DISTRICT, PIN – 682 017.** - **2 KUZHIKKATTU MOOLA MAHALLU MUSLIM JAMA - ATH PALLI,** - **REPRESENTED BY ITS INTERIM MUTHAWALLI ABDUL AZEES, KUSUMAGIRI P.O, KAKKANAD, ERNAKULAM DISTRICT, PIN – 682 030.** **3 E.K. HASSAINAR, AGED 56 YEARS, S/O. KUNJAMMU, PADANATTU, EDACHIRAKKAL HOUSE, KAKKANAD, KUSUMAGIRI P.O, ERNAKULAM, PIN – 682 030.** **BY ADVS. SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD BABU KARUKAPADATH** 2 C.R.P.(Wakf) No.18 of 2022 **VAHEEDA BABU P.U.VINOD KUMAR VAISAKHI V. T.M.MUHAMMED MUSTHAQ KARUKAPADATH WAZIM BABU AJWIN P LALSON AISWARYA ANN JACOB P.LAKSHMI ARYA RAGHUNATH M.A.VAHEEDA(V-2) AYSHA E.M.(K/001130/2022)** **THIS CRP (WAKF ACT) HAVING COME UP FOR FINAL HEARING ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** C.R.P.(Wakf) No.18 of 2022 3 ## **AMIT RAWAL & C.S.SUDHA, JJ.** ## **-------------------------------------------------------** ## **C.R.P.(Wakf) No.18 of 2022** **---------------------------------------------------Dated this the 14[th] day of September, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** This revision under Section 83 (9) of the Wakf Act, 1995 (the Act) has been filed by the first respondent in W.O.A.No. 29/2021 on the file of the Wakf Tribunal, Kozhikode against the order dated 16/02/2022. The respondents herein are the applicant and respondents 2 and 3 in the proceedings before the Wakf Tribunal. The parties in this proceedings will be referred to as described in the W.O.A. 2. W.O.A.No.29/2021 was filed under Section 54 (3) of the Act by the Chief Executive Officer (C.E.O), the Kerala State Wakf Board. In those proceeding, an application was submitted by the 3rd respondent before the C.E.O alleging that the first respondent is unauthorisedly and illegally occupying shop room bearing door no. 9/337 and an unnumbered room measuring 1500 square feet in Thrikkakkara C.R.P.(Wakf) No.18 of 2022 4 Municipality, allegedly owned by the second respondent, Kuzhikkattumoola Juma-ath Palli. The first respondent has been in occupation and possession of the shop rooms without any valid lease deed and for a meager rent. On receipt of the said application, notice as contemplated under Section 54(1) of the Act was issued by the C.E.O to the first respondent directing him to show cause as to why an order requiring him to remove the encroachment should not be passed against him. Thereafter the C.E.O, after complying with the formalities contemplated under Section 54(1) to 54(3) of the Act, and on being convinced that the first respondent is an encroacher, moved an application under Section 54(3) before the Wakf Tribunal for removal of the encroacher. The Wakf Tribunal as per the impugned order found the first respondent to be an encroacher and hence ordered his eviction. Aggrieved, the first respondent has come up in appeal. 3. The only point that arises for consideration is whether any illegality has been committed by the Wakf Tribunal calling for an interference by this Court? 4. It was argued on behalf of the first respondent that the Wakf Tribunal went wrong in confirming the order of the Wakf Board. C.R.P.(Wakf) No.18 of 2022 5 The first respondent is not an encroacher, but a tenant holding over and hence without resorting to the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, he cannot be evicted. It was also pointed out that the C.E.O, was not empowered to refer or submit application to the Wakf Tribunal. No application or complaint was submitted by the second respondent/lessor for eviction of the first respondent/tenant. The third respondent, a third party had no _locus standi_ to move the Wakf Board and the CEO in turn had no authority to move the Board seeking eviction. ## 5. Heard both sides. ## 6. Section 54 of the Act reads thus: _“54. Removal of encroachment from wakf property.—_ _(1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli._ _(2) The notice referred to in sub-section (1) shall be served in such manner as may be prescribed._ _(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order, require_ C.R.P.(Wakf) No.18 of 2022 6 _the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf. (4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property: PROVIDED that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf.”_ Section 54(1) of the Act which deals with removal of encroachment from wakf property, says that whenever the CEO considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and registered as such under the Act, shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the mutawalli concerned. Therefore, going by sub-section (1) to Section 54 of the Act, the CEO either on his own motion or on receiving any complaint can take necessary action as contemplated under Section 54 of the Act. In the instant case the premises C.R.P.(Wakf) No.18 of 2022 7 in question is wakf property and registration under the Act is not disputed. The fact that the 3[rd] respondent had given a complaint before the CEO is also not disputed. That being the position, we find that the CEO does have the authority to proceed under Section 54(1) to (3) of the Act and competent to move an application before the Tribunal seeking eviction. (See **Nambidi Prakasan v. Daruthaqva Islamic Cultural Centre, represented by its Secretary, 2022(4) KHC 307** ). 7. According to the first respondent, he is a tenant of the building belonging to the second respondent. However, he admits that after the expiry of the lease period mentioned in rent deed executed on 25/03/2018, no further extension has been given. As per Section 3(ee) of the Act, an “encroacher” means any person or institution, public or private, occupying waqf property, in whole or in part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board. Rule 24 of the Wakf Properties Lease Rules, 2014 dealing with surrender of leased property, says that on expiration or termination of the lease, the lessee shall immediately surrender possession of the leased premises and all leasehold improvements in substantially the condition in which the lessee C.R.P.(Wakf) No.18 of 2022 8 is required to maintain the leased premises excepting only reasonable wear and tear, and upon surrender, all right, title, and interest of the lessee in the leased premises shall cease. Admittedly, after the expiry of the lease deed executed on 25/03/2018, there has been no further extension of the lease agreement. That being so, it is quite clear that the first respondent is an encroacher liable to be evicted as per the provisions of the Act. We find no infirmity in the findings of the Wakf Tribunal calling for an interference by this Court. In the result, the CRP is dismissed. Interlocutory applications, pending if any, shall stand closed. **Sd/-** **AMIT RAWAL JUDGE** **Sd/C.S.SUDHA JUDGE** ak C.R.P.(Wakf) No.18 of 2022 9 ## **APPENDIX OF CRP(WAKF) 18/2022** ## **' - PETITIONER S ANNEXURES:** |**Annexure A1**|**THE TRUE COPY OF THE ORDER DATED**| |---|---| ||**20.04.2021 ISSUED BY THE 1ST RESPONDENT**| ||**TO THE PETITIONER.**| |**Annexure A2**|**THE TRUE COPY OF THE RENT DEED DATED**| ||**1.1.2011.**| |**Annexure A3**|**THE TRUE COPY OF THE RENT DEED DATED**| ||**17.07.2013.**| |**Annexure A4**|**THE TRUE COPY OF THE RENT RECEIPT DATED**| ||**21.03.2022.**| |**Annexure A5**|**THE TRUE COPY OF THE NOTICE DATED**| ||**29.03.2022 ISSUED BY 1ST RESPONDENT.**| |**Annexure A6**|**THE TRUE COPY OF THE APPEAL MEMORANDUM**| ||**WOA NO. 59/2021 BEFORE THE WAKF**| ||**TRIBUNAL KOZHIKODE DATED 14.06.2021.**|