Kerala High Court
Nusrathul Islam Jama €“ Ath, ... vs Kerala State Waqf Board, Represented By ... on 15 February, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE G. GIRISH
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 44216 OF 2023
PETITIONER:
NUSRATHUL ISLAM JAMA - ATH, CHITTETHUKARA,
REPRESENTED BY ITS GENERAL SECRETARY AGED 50 YEARS
KAKKANAD C.S.E.Z. P.O., ERNAKULAM DISTRICT, KOCHI,
PIN - 682037
BY ADVS. SHASHANK DEVAN
ANAND SANKAR
RESPONDENTS:
1 KERALA STATE WAQF BOARD, REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER V.I.P. ROAD, KALOOR, ERNAKULAM,
KOCHI, PIN - 682017
2 THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD
V.I.P. ROAD, KALOOR, ERNAKULAM, KOCHI, PIN - 682017
3 M.M. SHAMSUDHEEN S/O. MEETHIAN, AGE NOT KNOWN,
MULAKKAMPILLY HOUSE, CHITTETHUKARA, C.S.E.Z. P.O.,
ERNAKULAM DISTRICT , PIN 682037. [ADDL. R3 IMPLEADED
AS PER ORDER DATED 09.01.2024 IN IA.01 OF 2024 IN
WP(C) 44216/2023]
BY ADVS. S.SHANAVAS KHAN
S.INDU(K/002856/1999)
KALA G.NAMBIAR(K/515/2006)
SRI JAMSHEED HAFIZ - STANDING COUNSEL- KERALA STATE
WAKF BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
W.P.(C) No 44216 of 2023
JUDGMENT
G. Girish, J.
Petitioner is a Public Waqf registered with the Kerala State Waqf
Board as 5960/A. The petitioner has filed this writ petition under
Article 226 of the Constitution of India, seeking a writ of mandamus
commanding the respondents, namely, the Kerala State Waqf Board
and its Chief Executive Officer to considerr Exts.P3 and P5
representations dated 10.06.2023 and 20.12.2023 made by the
petitioner and to pass appropriate orders thereon, in accordance
with law and take necessary follow-up action, within a time period
to be fixed by this Court. The averments in paragraph 1 of the writ
petition is that the petitioner owns a building bearing door
No.14/171A situated at Kakkanad Village of Ernakulam District. One
Mr.M.M. Shamsudheen is illegally occupying the said building and is
an overstaying tenant coming under the purview of the definition of
encroacher as defined under Section 3(ee) of the Waqf Act, 1995.
2. The additional 3rd respondent, who allegedly remain in
illegal occupation of the building, was impleaded as per order dated
09.01.2024 in I.A.No.1 of 2024.
3. On the basis of a complaint preferred by the petitioner
against the illegal occupation of the building by additional 3 rd
respondent, the 1st respondent, as per Ext.P1 order dated
W.P.(C) No 44216 of 2023
13.09.2018, found that the additional 3rd respondent is an
encroacher, who is liable to be evicted from the Waqf property.
Against the above finding, the additional 3rd respondent filed W.O.A
No.117 of 2019 before the Waqf Tribunal, Kozhikode. The Waqf
Tribunal, Kozhikode, as per order dated 16.01.2021, found that the
notice issued by the 1st respondent in connection with Ext.P1
proceedings, cannot be treated as a valid notice under Section 54(1)
of the Waqf Act since it was not issued by the Chief Executive Officer.
Accordingly, the Waqf Tribunal set side Ext.P1 proceedings by
making it clear that the Chief Executive Officer can issue notice
under Section 54(1) of the Waqf Act to the additional 3rd respondent,
and after due enquiry, if it is found that the additional 3rd respondent
is an encroacher to the Waqf property, the Chief Executive Officer
would be free to issue proceedings under Section 54(3) of the Waqf
Act and to approach the Tribunal seeking an order of eviction. It is
thereafter that the petitioner is said to have submitted Exts.P3 and
P5 representations before the 1st respondent for initiating
proceedings against the additional 3rd respondent as per law and to
evict the encroachment upon the Waqf property. Aggrieved by the
inaction on the part of respondents 1 and 2 in initiating proceedings
against additional 3rd respondent as requested in Exts.P3 and P5
W.P.(C) No 44216 of 2023
representations, the petitioner is here before this Court with this
petition under Article 226 of the Constitution of India.
4. Respondents 1 and 2 are represented by the learned
Standing Counsel for the Waqf Board. Though the additional 3rd
respondent was duly served with notice, there was no appearance
from his part.
5. Heard the learned counsel for the petitioner and the
learned Standing Counsel for respondents 1 and 2.
6. It is clear from Ext.P2 order dated 16.01.2021 of the
Waqf Tribunal that the proceedings initiated by the 1 st respondent
against the additional 3rd respondent was interfered with only due to
the reason that there was non-compliance of Section 54(1) of the
Waqf Act in respect of the mandatory requirement to issue notice by
the Chief Executive Officer to additional 3rd respondent. As already
stated above in paragraph No.3, it has been made clear by the Waqf
Tribunal in Ext.P2 order that the Chief Executive Officer would be
free to issue notice under Section 54(1) of the Waqf Act against the
additional 3rd respondent and to initiate proceedings under Section
54(3) of the Waqf Act and to approach the Waqf Tribunal for an order
of eviction, if the additional 3rd respondent is found to be an
encroacher in the Waqf property. Therefore, respondents 1 and 2
W.P.(C) No 44216 of 2023
are duty bound to look into the complaint stated in Exts.P3 and P5
representations of the petitioner, and to initiate appropriate
proceedings against the additional 3rd respondent, if warranted. The
failure on the part of respondents 1 and 2 to take appropriate action
in this regard would amount to abdication of their statutory duties.
That being so, respondents 1 and 2 are liable to be directed to look
into Exts.P3 and P5 representations and to pass the necessary
orders in accordance with law, without delay.
In the result, the writ petition is disposed of directing
respondents 1 and 2 to consider Exts.P3 and P5 representations, and
pass appropriate orders in accordance with law as expeditiously as
possible, at any rate, within a period of three months from the date
of receipt of a copy of this judgment.
(sd/-)
ANIL K. NARENDRAN, JUDGE
(sd/-)
G. GIRISH, JUDGE
jsr
W.P.(C) No 44216 of 2023
APPENDIX OF WP(C) 44216/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER DATED 13-09-2018 PASSED
BY THE RESPONDENT ON THE BASIS OF THE COMPLAINT
OF THE PETITIONER UNDER SEC.54 OF THE WAKF ACT,
1995 ALONG WITH TYPED COPY
Exhibit P2 A TRUE COPY OF THE ORDER DATED 16-01-2021 OF THE
WAQF TRIBUNAL, KOZHIKODE IN WOA 117 OF 2019
Exhibit P3 A TRUE COPY OF THE COMPLAINT DATED 10-06-2023
SUBMITTED BY THE PETITIONER WAQF TO THE
RESPONDENT ALONG WITH THE ENGLISH TRANSLATION
Exhibit P4 A TRUE COPY OF THE RECEIPT ISSUED BY RESPONDENT
EVIDENCING THE SUBMISSION OF THE COMPLAINT BY
PETITIONER ON 09-08-2023 ALONG WITH THE ENGLISH
TRANSLATION
Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 20-12-
2023 ISSUED BY THE PETITIONER TO THE 2ND
RESPONDENT
