Ramankutty v. Narul Hudha Yathim Khana and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943** **CRP NO. 2 OF 2022** **AGAINST THE ORDER DATxED 2.12.2021 IN OS 674/1998 OF** **MUNSIFF COURT WADAKKANCHERRY** ## **REVISION PETITIONER/3RD DEFENDANT:** RAMANKUTTY AGED 55 YEARS S/O.NARAYANA CHETTIYAR, RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPILLY TALUK, THRISSUR DISTRICT, PIN - 679 581. BY ADVS. MADHU RADHAKRISHNAN NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR ## **- - RESPONDENTS/PLAINTIFF/DEFENDANTS 1 2 & 4 6:** 1 NARUL HUDHA YATHIM KHANA REG.NO.241/78, FOUNDED AND WORKING IN VALLATHOLE NAGAR PANCHAYATH, CHERUTHRUTHY VILLAGE, THALAPPILLY TALUK, BY JOINT SECRETARY, K.V.ABUBACKER, S/O.VALIYAKATH KUNHUMON, VETTIKKATTIRI DESOM, CHERUTHURUTHY VILLAGE, TALAPPILLY TALUK, THRISSUR, PIN - 679 581. 2 NARAYANA CHETTIAYAR S/O.PARAKKATHODI VEERA BHADRAN CHETTIYAR, RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK, THRISSUR, PIN - 679 581. 3 VESSA, W/O.NARAYANA CHETTIYAR RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK, THRISSUR – 679 581. 4 JAYANTHI, D/O.NARAYANA CHETTIYAR RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK, THRISSUR – 679 581. 5 SUBRAMANIAN, S/O.NARAYANA CHETTIYAR RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK, THRISSUR – 679 581. _C.R.P.No.2 of 2022_ 2 6 MOLI @ INDIRA D/O.NARAYANA CHETTIYAR RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK, THRISSUR – 679 581. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.01.2022, THE COURT ON 20.01.2022 DELIVERED THE FOLLOWING: _C.R.P.No.2 of 2022_ 3 **==> picture [354 x 38] intentionally omitted <==** ## **“C.R”** ## _**A. BADHARUDEEN, J.**_ ================================ _C.R.P.No.2 of 2022_ ================================ _Dated this the 20[th] day of January, 2022_ ## _**O R D E R**_ This Revision Petition has been filed under Section 115 of the Code of Civil Procedure challenging order dated 02.12.2021 in O.S.No.674/1998 on the file of Munsiff Court, Wadakkanchery. The revision petitioner is the 3rd defendant in the above Suit. The respondents herein are the plaintiff and other defendants. 2. Heard the learned counsel for the petitioner. Nobody appeared for the respondents even after service of notice. 3. It is argued by the learned counsel for the petitioner that in view of the latest decision of the Honourable Supreme Court reported in [2021 (6) KLT 482], _**Rashid Wali Beg v. Farid**_ _C.R.P.No.2 of 2022_ 4 _**Pindari & Ors.**_ , civil court has no jurisdiction to deal with the Suit. In the above decision, it has been held that the Wakf Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure and as per Section 83(1) of the Wakf Act, the Wakf Tribunal is having jurisdiction to decide any dispute or question or other matter (i) relating to a Waqf and (ii) relating to a Waqf property. 4. As per the order impugned, the learned Munsiff dismissed the petition after giving emphasis to the decision of the Honourable Supreme Court reported in [(2010) 8 SCC 726], _**Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun**_ _**Mirza Wakf**_ , holding the view that no Suit or other proceedings except one covered under Sections 6 and 7 of the Act, a civil court is having jurisdiction. 5. In _**Rashid Wali Beg**_ 's case ( _supra_ ), the Honourable Supreme Court dealt with all 14 decisions earlier rendered by the Apex Court in this regard and finally relying on the 3 Bench _C.R.P.No.2 of 2022_ 5 decision of the Apex Court in [AIR 2021 SC 1775], **Kiran Devi v. Bihar State Sunni Wakf Board,** it has been held in para.55, 56, 57 and 58 as under: _“55. It is well settled that the court cannot do violence to the express language of the statute. Section 83 (1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (I) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1)._ _56. In fact, Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, while trying a suit or executing a decree or order. This is why this Court held in Syed Mohideen and Anr. v. Ramanathapura Peria Mogallam Jamath and Ors. : MANU/SC/0550/2010 : (2020) 13 SCC 62 that the Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 Code of Civil Procedure._ _57. We must also point out at this stage that all the 14 decisions which we have tabulated in paragraph 13 above, except the one at Sl.No.13, namely Kiran Devi v. Bihar State Sunni Waqf Board, are decisions of two member benches. Kiran Devi was a decision of a three member bench of this Court. In Kiran Devi, an objection to the maintainability of the proceeding before the Waqf Tribunal was raised on the basis of the decision in Ramesh Gobindram. But this Court refused to accept it on the ground that once the order of transfer of the suit from the Civil Court to the Waqf Tribunal had attained finality, the question of jurisdiction cannot be raised. If Waqf tribuinal had no_ _C.R.P.No.2 of 2022_ 6 _jurisdiction at all, this Court could not have held in Kiran Devi that the order of transfer already passed cannot be undone by accepting this plea. The decision of the three member bench in Kiran Devi is significant in the sense that it recognized the fact that Ramesh Gobindram cannot be used as a magic wand to toss the proceedings relating to a waqf property from one forum to another. The dichotomy created in some decisions of this Court, between the properties which are admitted to be waqf properties and properties which are disputed to be so, is on account of the misapplication of the two limited questions in Sections 6(1) and 7(1) to the whole of the Act including Section 83. At the cost of repetition we should point out that Section 83(1) provides for the determination of any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property._ _58. In the case on hand, the property is admitted to be a waqf property. Therefore, to allow the Plaintiff to ignore the Waqf Tribunal and to seek a decree of permanent injunction and mandatory injunction from a civil court, would be ignore the mandate of Section 83 and 85 which speak of any dispute, question or other matter relating to a waqf or a waqf property. There is also one more issue. In the written statement, the Defendant NO.1 has admitted the existence of the waqf and also admitted that the father of the plaintiff by name Riyaz Ahmad is the mutawalli. But the claim of the Plaintiff that he is the beneficiary of the waqf, has also arisen in this case. This question has necessarily to be decided by the Tribunal and not the civil court.”_ 6. Thus the legal position is now clear on the point that Section 83(1) provides for the determination of any dispute, _C.R.P.No.2 of 2022_ 7 question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property. Thus the Wakf Tribunal is having ample power to deal with the subject matter of the Suit herein also. 7. Before conclusion, I would like to extract the history of this case originally started in the year 1985 for getting eviction of the defendants in the present Suit. A brief history of the case as stated in the Civil Revision Petition in para.3(a) to 4 is extracted hereunder: _“3(a) The plaintiff originally filed O.S.243/1985 for eviction of the 1st defendant from the premises. During the pendency of the suit, the Rent Control Act was made applicable to the panchayat area where the plaint schedule property was situated and accordingly the plaintiff filed rent control petition numbered as RCP 7/1990 before the Rent Control Court, Wadakkanchery. Thereafter O.S.243/1985 was dismissed. In the RCP the tenant contended that he is a kudikidappukaran who is entitled to the benefits under Kerala Land Reforms Act. The Rent Control Court referred the matter to the Land Tribunal. The Land Tribunal found that the tenant is a kudikidappukaran. The Rent Control petition was_ _C.R.P.No.2 of 2022_ 8 _dismissed by incorporating the decision of the Land Tribunal. The landlord filed R.C.A. 50/1993, the appellate authority as per order dated 15.10.1997 reversed the findings of the Rent Control Court and the Land Tribunal and held that the tenant is not kudikidappukaran. The matter was remanded to the Rent Control Court._ _b) In the mean time, the Government issued notification no: SRO 769/1996 exempting the building of Wakfs and some other buildings from the purview of certain Sections of Rent Control Act including Section 11. Thereby, the Civil Court got jurisdiction. The landlord did not prosecute R.C.P.7/1990 and instead, filed the present suit O.S. 674/1998. Thereafter, notification no.SRO 769/1996 was struck down by the Hon'ble High Court of Kerala in Krishna Pillai v. Infant Jesus Church (200 (1) KLT 197). This court dismissed the suit by finding that in the light of the decision of the Hon'ble High Court referred to above, the Civil Court does not have jurisdiction to try the suit. The plaintiff filed AS.72/2003 before the District Court. During the pendency of the said appeal, the decision of the Hon'ble High Court in Krishna Pillai's case was over-ruled by the Hon'ble Supreme Court in Christ the King Cathedral v. John Ancherial (2001 (2) KLT 946). The Hon'ble Supreme Court upheld the validity of the SRO 769/1996. In the light of the decision of the Hon'ble Supreme Court, the appellate court remanded back the suit to the Munsiff Court._ _c) In the meantime, the tenant filed R.C.R 489/2005 before the Hon'ble High Court of Kreala challenging the order of remand passed by the Rent Control appellate authority in R.C.A. 50/1993. The Hon'ble High Court as per order dated 2.12.2005 while dismissing the revision petition, reserved the right of the tenant to agitate the question before the court as to whether the proceedings of the Rent Control Authority was without jurisdiction before the civil court. It is there upon the first question of maintainability was heard._ _4. Thus the suit was proceeded and on 8.3.2020 the 3rd defendant filed additional written statement in which the 3rd defendant_ _C.R.P.No.2 of 2022_ 9 _raised a contention that since the property is a wakfs property as per section 85 of the Wakfs Act, 1995, the jurisdiction of the civil court is barred to entertain matters relating to wakf property. The 3rd defendant contended that the suit is not prima facie maintainable before the Munsiff Court. The court heard the question of maintainability. The Hon'ble Munsiff Court observed that the bar under Section 85 does not however exclude the jurisdiction of civil courts in respect of any or every question or disputes only because the same relates to wakf or a wakf property. xxxx xxxx xxxx”_ Thus it appears that because of the inconsistency with regard to the jurisdiction to deal with the eviction prayer sought for by the Wakf management, the defendants herein have been in occupation of the plaint schedule property as of now also. It could be gathered that in the meantime the defendants herein also claimed kudikidappu right in respect of the property and the same was found against. 8. Going by the ratio in _**Rashid Wali Beg**_ 's case ( _supra_ ), I do agree with the contention raised by the revision petitioner. Therefore, it is held that the Suit has to be tried by the Wakf Tribunal. Therefore, the order impugned is set aside and the learned Munsiff is directed to transmit the entire case records in O.S.NO.674 of 1998 to the Wakf Tribunal within 3 days from the _C.R.P.No.2 of 2022_ 10 date of receipt of a copy of this judgment or its production by the parties. 9. It is interesting to note that as per Section 54 of the Wakf Act, the Chief Executive Officer of the Wakf Board is given power of removal of encroachment from wakf properties after following the procedure provided under Section 54(3) of the Act. For clarity, I am inclined to extract Section 54 of the Wakf Act as such: _“54. Removal of encroachment from waqf 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 waqf 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 waqf property and that there_ _C.R.P.No.2 of 2022_ 11 _has been an encroachment on any such waqf property, he may;by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the waqf._ _[(4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property._ _xxxx xxxx xxxx”_ 10. As of now what is the status of the defendants in the Suit? Are the defendants `encroacher' or `encroachers' as defined under Section 54(3) of the Waqf Act, 1995? A Division Bench of this Court in the judgment dated 11.12.2021 in C.R.P.No.177 of 2021 considered the definition of the word `encroachment' under Section 54 of the Wakf Act and in para.7 to 12 defined the word `encroacher' and the power of Wakf Board under Section 54 of the Wakf Act. The said observations are also extracted hereunder: _7. An interesting question that crops up for consideration is; whether a person in occupation of a building situated in a waqf property on the basis of a lease arrangement, can be categorised as a person who had done the act of 'encroachment'_ _C.R.P.No.2 of 2022_ 12 _as envisaged under Section 54(3) of the waqf Act, 1995? If so, in what context? Section 54 of the waqf Act deals with removal of encroachment from the waqf property and sub section 3 of Section 54 stipulates the procedure to be followed before deciding the property in question as waqf property and there has been an encroachment into the waqf property. Section 54(1) to (3) are extracted hereunder for easy understanding:_ **==> picture [42 x 35] intentionally omitted <==** _xxxxxxxx xxxxxx xxxxxx (omitted by repetition)_ _8. In this context, reference to the relevant provisions dealing with lease is apposite. Section 105 of the Transfer of Property Act, 1882 provides that on getting lease of an immovable property, the person getting the said right is called a lessee. Section 116 of Transfer of Property Act deals with tenancy by holding over and it is provided as under:_ _“If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.”_ _However, the Kerala Waqf Act, 1995 and the Kerala Waqf Rules,_ _1996 are special enactments to deal with the dispute and administration of waqf properties. Therefore, the Waqf Act and the Kerala Waqf Rules have predominance over the general provisions of Transfer of Property Act. Section 3(ee) of the Waqf Act, 1995 brought into force by way of amendment with effect_ _C.R.P.No.2 of 2022_ 13 _from 20.09.2013 defines the term `encroacher' and the said provision is extracted hereunder:_ _3(ee): `encroacher' means any person or institution, public or private, occupying waqf property, in whole or 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._ _It is to be noted that before the amendment of the principal Act, the State of Kerala had amended the Kerala Waqf Rules, 1996 by incorporating Rule 2(1)(ha) and the said provision brought into force with effect from 27.7.2005. Therefore, Rule 2(1)(ha) is available when this matter was considered by the Tribunal._ _9. Matters being so, the definition of the word `encroachment' as contained under Rule 2(1)(ha) of the Kerala Waqf Rules, 1996 to be applied in the facts of this case to decide the status of the petitioner. Rule 2(1)(ha) of the Kerala Waqf Rules defines the term `encroachment' as under:_ **==> picture [36 x 43] intentionally omitted <==** _“2. Definitions:-- (1) xxxx xxxx xxxx (a) xxxx xxxx xxxx xxxx xxxx xxxx_ _[(ha) `encroachment' in relation to any waqf premises means occupation by any person of the waqf premises without authority for such occupation and includes the continuance in occupation by any person of the waqf premises after the authority whether by way of grant or has been determined for any reason whatsoever, and includes any construction, alteration or addition carried out to the building without the authority] xxxx xxxx xxxx] On a careful reading of Rule 2(1)(ha), it could be gathered that_ _continuance in occupation by any person of the waqf premises after the authority whether by way of grant, also would come under the category of_ _C.R.P.No.2 of 2022_ 14 _encroachment. If so, it has to he held that a person, who obtained occupation of a building on the basis of a lease and continuing the same in respect of a waqf property after termination or expiry of the rental arrangement to be held as a person who made `encroachment' into the waqf property and his status is that of an `encroacher'._ _10. Before parting, we would like to observe that the Kerala State Waqf Rules, 1996 was repealed by enacting the Kerala State Waqf Rules, 2019 came into force with effect from 10.01.2019. Section2(i) of the amended Rules defines the term `encroachment' in a more elaborate manner and the same also is extracted below:_ _2(i) `Encroachment' in relation to any waqf premises means occupation by any person of the waqf premises without authority for such occupation, and includes the continuance in occupation by any person of the waqf premises after the authority whether by way of grant, lease, licence or transfer authorising such occupation which has been expired or terminated for any reason whatsoever; and includes any construction, alteration or addition carried out to the building without the authority._ _11. In the case on hand the revision petitioner put up a specific case that he had entered into rental arrangement with one K.P.Abdurahiman as per rent deed dated 25.07.1982, but the same was not renewed thereafter. This would show that the lease had expired when proceedings under Section 54 of the Waqf Act was initiated. Be it so, the status of the petitioner is nothing but other than that of an `encroacher'._ _12. Thus it has to be held that the Waqf Board has the power_ _C.R.P.No.2 of 2022_ 15 _under Section 54 of the Waqf Act to order eviction of encroachers from the waqf property.”_ 11. Going by the ratio in the above Division Bench decision, the status of the defendants in the Suit may be that of `encroachers' and therefore, the Cheif Executive Officer either on receiving any complaint or on his own motion can initiate proceedings for removal of encroachment of the petitioners herein from the wakf property. 12. Thus the Revision Petition is disposed of directing the Chief Executive Officer to consider the case within the ambit of Section 54 of the Wakf Act and pass appropriate orders, after appraising the progress of the Suit, if necessary or otherwise, without much delay. It is made clear that the defendants in the Suit can raise contentions to prove their status otherwise before the Chief Executive Officer independenty and the said right is left open. 13. Since the Suit is ordered to be transferred to Wakf Tribunal, the Wakf Tribunal is directed to consider the Suit with utmost effort to dispose of the same within 2 months from the _C.R.P.No.2 of 2022_ 16 date of receipt of the case records from the Munsiff Court, Wadakkanchery. The Registry is directed to forward a copy of this order to the Munsiff, Wadakkanchery, Wakf Tribunal and the Chief Executive Officer, Wakf Board, for information and compliance, within 7 days. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_