CRP(WAKF).No. 698 of 2018

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** ## **CRP(WAKF).No. 698 of 2018** **AGAINST THE ORDER/JUDGMENT IN OA 108/2017 of WAKF TRIBUNAL, KOZHIKODE DATED 21-04-2018** ## **REVISION PETITIONER/FIRST RESPONDENT:** **MANOJ KUMAR, AGED 57 YEARS, S/O.CHANDRAN, RESIDING AT PUTHIYOTTIL THODIYIL HOUSE, MAKKADA.P.O., KOZHIKODE DISTRICT-673 611. PROPRIETOR M/S. CHANDRAN SONS, DOOR NO.VII/221, P.M.MAMMU HAJI WAKF BUILDING, COURT ROAD, KOZHIKODE.** **BY ADV. SRI.T.MADHU** ## **RESPONDENTS/APPLICANT & SECOND RESPONDENTS:** **1 THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, KOCHI - 682 017. 2 SHABEER AHAMMED K.M., SECRETARY, PUTHIYARA MALIAKKAL MAMMU HAJI WAKF, JASEENA NIVAS, CHERUVANNUR, NALLALAM.P.O., KOZHIKODE.** **BY ADVS. R2 BY SRI.P.A.ABDUL JABBAR R1 BY T.P.SAJID, STANDING COUNSEL** **THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRP(WAKF).No. 698 of 2018** **2** ## **“CR”** ## **ORDER** ## **Harilal, J** The revision petitioner is the first respondent in O.A.No.108/2017 on the files of the Wakf Tribunal, Kozhikode. The aforesaid application was one filed by the Chief Executive Officer [for short, 'CEO'], Kerala State Wakf Board, under Section 54(3) of the Wakf Act, 1995 for removing the encroachment. (Parties are referred to as in the original application). 2. According to the averments in the application, the application schedule building is a Wakf property registered with the Wakf Board in the year 1961 and the property details are entered into the Wakf register also. The said **CRP(WAKF).No. 698 of 2018** **3** property was being managed by the Mutawalli of the Wakf. The CEO of the Wakf board has initiated proceedings, on the basis of a complaint filed by the Mutawalli, to the effect that the first respondent is illegally occupying the above said property. On the basis of the said report, a notice was issued to the first respondent and the same was served on the first respondent. In the notice, the first respondent was directed to show cause as to why an order requiring him to remove the encroachment should not be passed against him. Consequently, he appeared and filed a written objection contending that the application schedule property in question is not a Wakf property. The CEO has considered the said objection and satisfied that the building in **CRP(WAKF).No. 698 of 2018** **4** question is a Wakf property and the first respondent is an 'encroacher' as defined under Section 3(ee) of the Wakf Act. Hence, the CEO directed the to remove the respondent encroachment on the Wakf property, vide order No.A14-6474/2015. The above order was also served to the first respondent, but he continued his occupation in the Wakf property as an encroacher, despite the receipt of the said order. Hence the CEO filed an application before the Tribunal seeking an order directing the first respondent to give vacant possession of the application schedule building to the second respondent within a specified time. 3. The first respondent filed a counter denying all the averments in the application. **CRP(WAKF).No. 698 of 2018** **5** According to him, the application schedule building is not a Wakf property. At the same time, he contended that the shop room was taken on rent initially by his father, namely, Chandran, from 1964 onwards on the basis of the execution of a lease deed and he admitted that he is in occupation of the shop room after the expiry of the said lease deed. According to him, he is not an encroacher as alleged in the and the Wakf Tribunal has no application jurisdiction to try the matter. Only the Civil court alone has jurisdiction to decide the dispute. Further, he contended that he is entitled to get protection under the Kerala Buildings (Lease and Rent Control) Act, 1965 [for short, the Act, 1965]. The second respondent also filed a statement **CRP(WAKF).No. 698 of 2018** **6** supporting the case of the applicant. 4. On the rival pleadings, Exts. A1 and A2 were marked from the side of the applicant and no evidence, either oral or documentary, was produced by the first respondent. 5. After considering the rival pleadings, the Tribunal found that the application schedule building is a Wakf property and the first respondent is an 'encroacher' falling under Section 3(ee) of the Wakf Act and thereby he is liable to vacate the application schedule building. The legality and propriety of the aforesaid findings are under challenge in this revision petition. 6. Heard Sri.T.Madhu, the learned counsel appearing for the revision petitioner/respondent **CRP(WAKF).No. 698 of 2018** **7** and Sri.P.A.Abdul Jabbar, the learned counsel appearing for the respondent/petitioner. 7. Though the first respondent has contended that the application schedule building is not a Wakf property, subsequently, he himself admitted that his father was a tenant in occupation of the application schedule building, which belongs to the Wakf. He has no case that the application schedule building belongs to any other person. Going by the impugned order, it could be seen that the Wakf Tribunal has considered the status of the first respondent as an 'encroacher', in view of the definition under Section 3 (ee) of the Wakf Act, which was inserted in the Act, by Act 27 of 2013. The finding of the Tribunal is that the first **CRP(WAKF).No. 698 of 2018** **8** respondent is an encroacher as defined under Section 3(ee) of the Act and thereby he is liable to be evicted, invoking the power under Section 54(4) of the Wakf Act. 8. Therefore, the questions that arise for consideration in this revision petition are thus: _1. Can the Wakf Tribunal entertain an application to enforce an order passed by the Board, directing the tenant who is in occupation of the building, owned by the Wakf, after the expiry of the period of lease, without renewal of lease, to vacate the tenanted premises._ _2. Whether the Wakf Board is liable to file a_ _Rent Control Petition invoking the provisions under the Kerala Building Lease and Rent Control Act 1965, for evicting the_ **CRP(WAKF).No. 698 of 2018** **9** _tenants in occupation of the building, owned by the Wakf, after the expiry of the period of lease, without renewal._ 9. The answers to the aforesaid questions arise out of the status of the tenant, after the expiry of the term of lease or licence as the case may be. Hence Section 3(ee) of the Wakf Act assumes relevance and significance. Section 3(ee) of the Wakf Act reads as follows: _'Encroacher' means any person or institution, public or private, occupying wakf property, in whole or part, without the authority of law and includes a person_ _whose tenancy, lease or licence has or has been terminated expired by Mutawalli or the Board. [emphasis supplied]_ **CRP(WAKF).No. 698 of 2018** **10** 10. In view of the aforesaid definition, it can be held that a tenant, who is in occupation of the tenanted premises, owned by the Wakf, after the expiry of the lease period, is an encroacher only, not a tenant. The legislature has consciously included the tenants in occupation of the Wakf property, after the expiry of the term of lease, in holding over, within the ambit of 'encroacher' as contemplated under Section 3(ee) of the Wakf Act. The Wakf Board can pass an order directing such tenants to vacate the tenanted premises, after considering the objection to the show cause notice issued to him under Section 54(1) of the Wakf Act. In case of refusal from the part of the tenant, the Wakf Board can approach the Wakf Tribunal for **CRP(WAKF).No. 698 of 2018** **11** enforcing such orders against such tenant. Section 54(1) of the Wakf Act confers power to proceed against the tenant, who occupies the building after the expiry of the lease period, as an encroacher and not as a tenant. In short, the Wakf board can obtain an order from the Tribunal, directing the tenant who occupies the building, after expiry of the term of lease, to vacate the tenanted premises, without resorting to the provisions under the Kerala Buildings Lease and Rent Control Act. This is the aim and object of Section 3(ee) of the Act introduced by Act 27 of 2013. Hence the Wakf board is not liable to file a suit/rent control petition, invoking the provisions under the Kerala Buildings Lease and Rent Control Act, for evicting a tenant, who **CRP(WAKF).No. 698 of 2018** **12** is in occupation of the building, owned by the Wakf, after the expiry of the period of lease, without renewal of lease. 11. In the instant case, it stands admitted that he is in occupation of the building owned by the Wakf and he is continuing in occupation as successor of his father, without renewal of the lease. In other words, the first respondent is an encroacher continuing in occupation of the Wakf property, after the expiry of the lease period. In the above view, we find that there is no illegality or impropriety in the findings, whereby the Tribunal allowed the application directing the first respondent to give vacant possession of the building. 12. The learned counsel appearing for the **CRP(WAKF).No. 698 of 2018** **13** revision petitioner/first respondent has relied on the decision in _**Faseela M. v. Munnerul Islam Madrasa Committee and another**_ [2014 KHC 4405] and vehemently contented that the Tribunal has no jurisdiction to decide the application filed by the CEO, Wakf Board, as the matter in issue would fall under the jurisdiction of the rent control court, constituted under Act 2 of 1965. We have gone through the said judgment and find that the facts involved in that case was entirely different and that was an application filed in the year 2010 before the amendment seeking eviction of a tenant, whereas the present application, in the instant case, is one filed by the Wakf board, for enforcing an order passed by the Wakf board, in **CRP(WAKF).No. 698 of 2018** **14** view of the amendment to Section 3(ee) of the Wakf Act. The application itself was filed before the Tribunal under Section 3(ee) of the Wakf Act. Thus, the facts and circumstances involved in both cases are entirely different. More importantly, in _Faseela's case_ (Supra), the Supreme Court had no opportunity to consider the legal effect and impact of Section 3(ee) of the Wakf Act, which was inserted by Act 27 of 2013. The aforesaid decision is not applicable to the facts of the instant case. Therefore, this revision petition fails and it is dismissed. ## **sd/-K.HARILAL, JUDGE** ## **sd/-ANNIE JOHN, JUDGE** AMV/19/02/2019 **CRP(WAKF).No. 698 of 2018** **15**