Francis J. Pallan & Four Foods Hotel (P) Ltd. v. Haji Abdulla Haji Adam Sait Charitable Endowment, Mattanchery, Cochin & Kerala State Wakf Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 11TH DAY OF JANUARY 2018 / 21 ST POUSHA, 1939** **RSA.No. 1076 of 2017** **AGAINST THE JUDGMENT & DECREE DATED 18-07-2017 IN AS 164/2016 of II ADDL.DISTRICT COURT, ERNAKULAM** **AGAINST THE JUDGMENT & DECREE DATED 30-07-2016 IN OS 747/2011 of PRINCIPAL SUB COURT, ERNAKULAM** ## **APPELLANTS/APPELLANTS/DEFENDANT NO.1 & ADDITIONAL DEFENDANT NO.3** - **1 THE DIRECTOR, FRANCIS J. PALLAN AGED 64 YEARS, FOUR FOODS HOTEL (P) LTD., CC 28/3110, CHERUPARAMBATH ROAD, KADAVANTHRA, COCHIN-682020.** **2 FOUR FOODS HOTEL (P) LTD. CC 28/3110, CHERUPARAMBATH ROAD, KADAVANTHRA, COCHIN-682020, REPRESENTED BY ITS DIRECTOR, FRANCIS J.PALLAN** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.M.FAISAL (KALAMASSERY) SRI.P.U.VINOD KUMAR SMT.AMRIN FATHIMA** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANT NO.2:** **1. HAJI ABDULLA HAJI ADAM SAIT CHARITABLE ENDOWMENT MATTANCHERY, COCHIN-682002, REPRESENTED BY ITS MANAGING TRUSTEE MR.H.E.ABDUL RAZAK SAIT, S/O.HAJI ESHAK ABDL SATHAR SAIT, B1 HARBOUR CREST, KURUSHUPALLY ROAD, ERNAKULAM, PIN-682015.** **2. THE KERALA STATE WAKF BOARD REPRESENTED BY ITS EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR, KOCHI-682017.** ## **R1 BY ADVS. SRI.R..LAKSHMI NARAYAN (CAVEATOR) SMT.R.RANJINI** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2018, ALONG WITH RSA 1077/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** **------------------------------R.S.A.Nos.1076 & 1077 of 2017 ---------------------------------------------Dated this the 11[th ] day of January, 2018** ## **JUDGMENT** These two appeals are filed challenging the concurrent findings by the courts below that the appellants are liable to be evicted, from the tenanted premises. Suits were laid after issuing notices under Section 106 of the Transfer of Property Act, 1882 (in short, the T.P.Act). Appellants are defendants 1 and 3 in both the suits. O.S.No.747 of 2011, on the file of the Court of Subordinate Judge, Ernakulam, is in respect of eviction from the ground floor of a building and O.S.No.748 of 2011 is in respect of the first floor. 2. Relevant contentions, borne out from the pleadings, are as follows: Plaintiff/respondent is a Waqf, registered under the provisions of the Waqf Act, 1954, with the Kerala State Waqf Board (in short, the Board). It is represented by its managing **RSA No.1076 & 1077 of 2017** **2** trustee. Both the first floor and second floor of the building, belonging to the Waqf, were rented out to the 1[st] defendant for business purposes with effect from 1.4.1989 and 1.1.1999 respectively on the basis of rental agreements. Rent was enhanced from time to time. Plaintiff, being a charitable entity, is facing paucity of funds for its activities. 1[st] defendant is paying a low rent when compared to the prevailing rate in the locality. Further, the rent payments are irregular. Therefore, the plaintiff issued Exts.A3 and A13 notices under Section 106 of the T.P.Act to terminate the tenancies and proceedings were initiated. 3. The appellants raised following contentions in their written statement: Plaintiff is not a Waqf and the plaintiff is not owner of the buildings. The plaint schedule property is not eligible for any exemption from the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short, the BRC Act). Since the activities of the plaintiff does not include public charity, by no means, it can be treated to be outside the purview of the provisions of the BRC Act. As the plaintiff is not a **RSA No.1076 & 1077 of 2017** **3** properly constituted Waqf, the provisions of the Waqf Act, 1954 or 1995 are inapplicable in this case. 4. Plaint schedule properties were entrusted to the appellants by Sri.Abdulla Haji Adam Sait as his own property. The 2[nd] appellant (3[rd] defendant) is a company incorporated under the Companies Act, 1956. The company has not been properly represented and the suit has to fail on that score. Other factual contentions were also raised which may not be relevant for the purpose of adjudication at this stage. 5. The substantial questions of law, common to both cases, raised in the memoranda of appeal, are as follows: - a. Whether, in view of the specific exclusion of jurisdiction of the civil courts under Section 85 of the Waqf Act, r/w Section 83 thereof, the findings of the court below that, the civil court has jurisdiction to entertain the suit for eviction of the tenants from the wakf property is correct ? - b. When Section 83 of the Waqf Act, 1995, specifically provides that the suit for eviction of tenants or to decide the rights and obligations of the lessor and lessee of such properties shall be instituted in Wakf Tribunals, is not the finding of **RSA No.1076 & 1077 of 2017** **4** the courts below that, such suits are maintainable before the civil court erroneous ? - c. Can a civil court entertain the disputed question whether a property is a wakf property or not ? - d. Is not the decision in Fazeela M.V. vs. Muneerul Islam Madrassa Committee reported in AIR 2014 SC (Civil) 1404 = AIR 2014 SC 2064 per incurrium, in view of the amendment to Section 83 of the Waqf Act, 1995, which was brought into force with effect from 01.11.2013 ? 6. Heard the learned counsel for the appellants and contesting respondent. 7. Learned counsel for the appellants raised mainly three points. The first point is that the property in dispute was leased out to the appellants by Abdulla Haji Adam Sait in his individual capacity. The documents produced to show that the property belonged to a Waqf, are not legally acceptable. Second contention raised is that the civil court has no jurisdiction going by the relevant statutory provisions as well as the pleadings in the case. Thirdly, it is contended that notice under Section 106 of the T.P.Act is bad in law. 8. In order to buttress the first point, learned counsel for **RSA No.1076 & 1077 of 2017** **5** the appellants contended that the plaintiff has failed to establish that the property in question is a Waqf property. In order to claim exemption under Section 25 of BRC Act, it must be established that the property belongs to a Waqf. Learned counsel for the contesting respondent, relying on Ext.A1, contended that the register of Waqf would clearly show that the plaint schedule property is a part and parcel of Waqf properties enlisted therein. Ext.A1 shows the list of properties registered in the year 1961-1962 under the Waqf Act, 1954, including the property in Survey No.621/1. Learned counsel for the appellants strongly contended that except the survey number, no other particulars required under Section 5 of the Waqf Act, 1954 or the Rules prescribed thereunder are mentioned in Ext.A1. It is therefore argued that the finding of the courts below that the disputed property is a Waqf property, is legally incorrect. 9. Per contra, learned counsel for the contesting respondent contended that in the reply notice, the appellants have not raised any contention that the plaintiff, charitable endowment, represented by its managing trustee is not the **RSA No.1076 & 1077 of 2017** **6** landlord of the appellants. Relying on Section 116 of the Evidence Act, it is contended that a tenant is estopped from denying the title of the landlord. It is also submitted by the learned counsel for the contesting respondent that the plaint schedule property, along with other items, were treated as Waqf properties by the Board right from its registration. In this context, it is relevant to note that the Board is the 2[nd] defendant in the suit. In the written statement filed by the Board, they have expressly contended that the property in dispute is a Waqf property. Hence this contention of the appellant cannot be sustained. 10. Another contention raised by the appellants to resist the suit is that a civil court has no jurisdiction, even if it is assumed that the disputed property is a Waqf property, by virtue of the provisions of Section 83 of the amended Waqf Act. It is pertinent to note that the Waqf Act, 1985 was amended as per Act 27 of 2013. Sub Section (1) of Section 83, in its amended form, reads as follows: “The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may **RSA No.1076 & 1077 of 2017** **7** think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. 11. It is forcefully argued by the learned counsel for the appellants that after amendment, the question relating to eviction of a tenant or determination of rights and obligations of the lessor and lessee of such property shall be decided by the Tribunal and a civil court has no jurisdiction to decide such questions. It is trite, Section 9 CPC says that any suit of a civil nature can be entertained by a civil court, unless its jurisdiction is expressly or impliedly barred. According to the learned counsel for the appellants, Section 83, in its amended form, read with Section 85 constitute an express ouster of jurisdiction and therefore, the courts below wrongly took cognizance of the suits. 12. In answer to these contentions, learned counsel for the contesting respondent, relying on **Faseela M. v. Munnerul** ## **Islam Madrasa Committee [2014 (16) SCC 38]** contended that after considering all the relevant decisions on the point and **RSA No.1076 & 1077 of 2017** **8** the amended Section 83 of the Waqf Act, the Supreme Court declared the law in the following terms: The suit for eviction against the tenant relating to a wakf property is exclusively triable by the civil court as such suit is not covered by the disputes specified in Sections 6 and 7 of the 1995 Act. 13. It is also contended that in the light of a binding pronouncement, this Court cannot take a different view. 14. Learned counsel for the appellants contended that the Constitution Bench comprising of seven learned Judges in **A.R.Antulay v. R.S.Nayak [1988 SC 1531]** , has clearly held that per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the court concerned. It is further observed that such decisions can be ignored. Learned counsel for the appellants strongly urged this Court to ignore the ratio in **Faseela's case** in deference to the principle in **Antulay's case** . Reliance is also placed on by the learned counsel in **Mamleshwar v. Kanahaiya Lal [AIR 1975 SC 907]** , a threeJudge Bench decision reads as follows: **RSA No.1076 & 1077 of 2017** **9** Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obstructive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam. 15. Based on **Punjab University v. Vijay Singh [AIR** **1976 SC 1441]** , it is contended that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and therefore, Judges ought to employ an intelligent technique in use of precedents. Relying on **Rattiram v. State of M.P. [2012 (4) SCC 516]** , it is contended that the principle laid down in **Antulay's case** has been repeatedly followed by the apex court. 16. The question whether this Court is competent to declare the decision in **Faseela's case** per incuriam is no more **RSA No.1076 & 1077 of 2017** **10** res integra. The answer can only be in negative. In **Faseela's case** , Section 83 of the Waqf Act, as it stands after the amendment, was considered. Further, precedents therein were also considered. Learned counsel for the contesting respondent, relying on **Suganthi Suresh Kumar v. Jagdeeshan [AIR 2002 SC 681]** and **South Central Railway Employees Coop. Credit Society Employees Union v. B.Yashodabai [2015 (2) SCC 727]** contended that it is impermissible for the High Court to overrule the decision of the apex court. Quotation in paragraph 9 from **Suganthi** will be profitable: It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India. It is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme **RSA No.1076 & 1077 of 2017** **11** ## Court. 17. In **Central Railway Employees's case** , the said principle has been reinstated. Therefore, this Court cannot hold that the view taken in **Faseela's case** goes against Section 83 and therefore it is per incuriam. 18. Learned counsel for the appellants, relying on **Kuruvilla Abraham v. John [1995 (1) KLT 161]** , contended that once the court finds that it has no jurisdiction on account of ouster, any judgment passed thereafter will be invalid and liable to be set aside. But, considering the facts and circumstances of this case, I find no reason to hold that the judgments and decrees were passed by the courts below without jurisdiction. Therefore, the principle in **Kuruvilla's case** is not applicable. 19. Learned counsel for the respondent, relying on **Bhanwar Lal v. Rajasthan Board of Muslim Waqf [2014 (16) SC 51]** , contended that exclusion of civil courts' jurisdiction shall not be readily inferred. This principle is indubitable. This Court cannot but follow **Faseela's case** . Therefore, the substantial questions of law raised are **RSA No.1076 & 1077 of 2017** **12** decided against the appellants and the appeals are found to be devoid of merits. They are dismissed. All pending interlocutory applications will stand dismissed. Sd/- **A. HARIPRASAD JUDGE** JV