P.V.KRISHNAN v. The Chief Executive Officer, Kerala State Wakf Board & The President Kanhangad Muslim Orphanage

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939 CRP(WAKF).No. 395 of 2013 () ----------------------------AGAINST THE ORDER IN OA 20/2010 of WAKF TRIBUNAL, KOZHIKODE DATED 20-11-2010 ## REIVISION PETITIONER(S)/PETITIONER: ----------------------------------------- P.V.KRISHNAN S/O.CHINDAN, TAILOR'S SHOP, MADIYAN, PALAKKI, MANIKKOTH , MANIKKOTH P O, HOSDURG AMSOM, DESOM, HOSDURG TALUK, KASARAGOD DISTRICT BY ADVS.SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD REGIONAL OFFICE, EROTH CENTRE, BANK ROAD, CALICUT-1 2. THE PRESIDENT KANHANGAD MUSLIM ORPHANAGE, KOTTACHERI, BALLA VILLAGE P O KANHANGAD, KASARAGOD-671321 R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R2 BY ADV. SRI.P.GOPINATH R2 BY ADV. SRI.P.BENNY THOMAS R2 BY ADV. SRI.K.JOHN MATHAI R1 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR & SHIRCY V., JJ. ========================== C.R.P.(Wakf) No.395 OF 2013** **==========================** Dated this the 8[th] day of November, 2017 ## **ORDER** _Ravikumar, J._ This revision petition is directed against the order dated 20.11.2010 in O.A.No.20 of 2010 passed by the Wakf Tribunal, Kozhikode. The revision petitioner was the petitioner therein. He filed the said original application under section 83(2) of the Wakf Act against the order passed by the Chief Executive Officer of the Wakf Board as per proceedings No.F2 5572/2009 dated 7.6.2010. The application which culminated in the said order dated 7.6.2010 was moved by the second respondent herein. In the said application, it was specifically stated that the revision petitioner herein is the tenant in building No.AP-W- II 314 which originally belonged to Koolikkad Andu Mayi Haji and he was conducting a tailoring shop therein. As **C.R.P.(Wakf).No.395/2013** 2 per document No.1706/2001 of SRO, Hosdurg, it was dedicated as a wakf. In the said property, the petitioner continued to conduct the tailoring shop. But, he failed to pay the rent promptly. In such circumstances, notice terminating the lease was issued by the second respondent to surrender vacant possession of the tenanted premises. Even after the receipt of notice, the revision petitioner continued in possession and enjoyment of the tenanted property and it was in such circumstances that the Muthavalli approached the Wakf Board by filing an application under section 54 of the Wakf act. Admittedly, the revision petitioner herein obtained notice from the Wakf Board and after hearing objection, order dated 7.6.2010 was passed. As per the said order, the Chief Executive Officer found that the continuance of the revision petitioner in the said property is virtually an encroachment on the property. It was also found that the Wakf was registered with the Wakf Board and the properties owned by the Wakf Board are also wakf properties. The Chief Executive Officer took note of the provision under section 56 of the Wakf Act and held that a tenant is not entitled to occupy a wakf property beyond the period of **C.R.P.(Wakf).No.395/2013** 3 one year and in the case on hand, the revision petitioner did occupy the property much in excess of one year. Ultimately, it was found that the petitioner is an encroacher and consequently, he was directed to deliver possession of the property to the Muthavalli of the wakf. Further, in case of his failure to remove the encroachment and to hand over the possession of the property to the Muthavalli on or before 30.7.2010, the Muthavalli was granted liberty to resort to the remedies available under section 56 of the Wakf Act. Essentially, it is challenging the said order dated 7.6.2010 that the O.A was filed before the Tribunal. 2. Based on the rival pleadings, the following points were framed for determination by the Tribunal.:- 1. Whether the order passed by the Board is sustainable either on facts or in law? 2. Order to be passed? 3. Before the Tribunal, the second respondent herein took up the contention that the original application is not maintainable in terms of the provisions under section 83(2) of the Wakf Act. **C.R.P.(Wakf).No.395/2013** 4 Evidently, the said contention taken up by the second respondent was repelled by the Tribunal. The question whether the Chief Executive Officer got power to order for removal of the encroachment from a wakf property was considered by the Tribunal. After referring to the relevant provisions, the Tribunal came to the conclusion that the Chief Executive Officer got ample power to order for removal of encroachment in invocation of the power under section 54 of the Wakf Act. Consequently, the original application was dismissed affirming the order passed by the Chief Executive Officer. It is in the said circumstances that the captioned revision petition has been filed. 4. We have heard the learned counsel for the revision petitioner and the learned counsel for the second respondent and also the learned standing counsel for the first respondent. 5. The learned counsel for the revision petitioner assails the order, inter alia, contending that the finding of the Tribunal that the revision petitioner is an encroacher is illegal. The contention is that Rule 2(ha) of the Kerala Wakf Rules, 1996 (for short 'the Rules') ought not have been construed to describe the petitioner as an **C.R.P.(Wakf).No.395/2013** 5 encroacher. It is contended by the learned counsel that the petitioner was not actually in occupation of the property. But, he was in possession of the property in question under a lease. Rule 2(ha) of the Rules virtually deals with licence, it is contended. In that view of the matter, it is further contended that the decision of the Division Bench of this Court in CRP(Wakf) No.92 of 2015 dated 4.3.2015 is inapplicable. The learned counsel for the second respondent submitted that for argument sake, even if the said contention is accepted, in the light of the Division Bench decision of this Court in **Raphimon v. Kerala State Wakf Board (2016 (4) KLT 509),** the continuation of the property beyond the period of lease has to be construed as an encroachment and therefore, in terms of the provisions under section 3(ee) of the Wakf Act, his status is only that of an encroacher. It is also submitted that in the light of the dictum laid down by this Court in **Raphimon** 's case, the encroachment of the revision petitioner is liable to be removed. It is contended that order dated 7.6.2010 passed by the Chief Executive Officer warrants no interference, in such circumstances. **C.R.P.(Wakf).No.395/2013** 6 6. The learned counsel for the revision petitioner contended that the order in O.A.No.20/2010 was passed prior to the introduction of section 3(ee) in the statute by Act 27 of 2013 with effect from 1.11.2013 and the said decision is also not applicable in this case. We are of the considered view that it is absolutely unessential and unwarranted for us to consider the tenability of such contentions to consider whether the order in O.A. 20/2010 was sustainable before the Tribunal. In the light of the unamended section 56 of the Wakf Act, leasing out the property beyond one year is void. Any document or any law permitting a lease beyond such a period is void in view of the said provision. A careful scanning of the impugned order would reveal that the CEO has virtually relied on section 56 of the Wakf Act and the Tribunal had also adverted to the said provision. The case of the revision petitioner is that he has been in possession of the property in question right from 1974. In the light of the aforesaid provisions under section 56 of the Wakf Act, the continuation of the petitioner can only be construed as encroachment. It is a fact that the original lease deed is not at all produced by the revision petitioner either **C.R.P.(Wakf).No.395/2013** 7 before the CEO or before the Tribunal as also before this Court. Nothing is available on record to show what exactly was the original period. If it is taken that no such period was prescribed under the original deed, by the operation of the Transfer of Property Act, it should be deemed as lease on month to month basis. Thus, viewing this question on any angle,we find no reason at all to hold that the finding of the Tribunal that the petitioner was an encroacher in respect of the property in question is incorrect or illegal. When once it is found that the petitioner is an encroacher in respect of the property in question, in the light of the provisions under section 54 of the Act, it can only be held that that it empowers the CEO of the Wakf Board to remove such encroachment from the wakf property. That essentially was the ultimate finding by the CEO under order dated 7.6.2010 as also by the Tribunal. The long and short of the discussions is that there is no merit in the revision petition. Consequently, it is liable to be dismissed. While we are about to dismiss the revision petition, the revision petitioner made a submission that the revision petitioner may be granted some time to **C.R.P.(Wakf).No.395/2013** 8 vacate the premises and to give vacant possession of the same to the Muthavalli. We heard the learned counsel for the second respondent on the said aspect. Upon hearing the learned counsel on both sides on that issue, we are of the view that ten months time from today can be granted to the revision petitioner for giving vacant possession of the property in question to the second respondent. In case the petitioner gives an unconditional undertaking before the Tribunal in writing, the revision petitioner shall be permitted to continue to occupy the property for the aforesaid period. Needless to say that he shall to clear the arrears, if any, and he shall also continue to pay the rent during the said period of continuation. Subject to the above, this revision petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **SHIRCY V.** **(JUDGE)** **spc/** 9 ## **C.R.P.(Wakf).No.395/2013** **C.T. RAVIKUMAR, J.** **C.R.P.(Wakf).No.395/2013** 10 **JUDGMENT September, 2010**