Kerala High Court

T.K. Sajid vs Camp Bazar Palli Sabha on 20 June, 2024

Author: Anil K.Narendran

Bench: Anil K.Narendran

                                     1
CRP (Wakf) No.9 of 2023

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
      THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
 THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
                          CRP(WAKF) NO. 9 OF 2023
 AGAINST THE ORDER DATED 16.12.2022 IN WOA NO.46 OF 2021 OF
                          WAKF TRIBUNAL, KOZHIKODE
                                -----------
REVISION PETITIONER:
          T.K. SAJID, AGED 46 YEARS,
          S/O AHAMMED, CHAMPS, STATION ROAD,
          KANNUR- REP. BY HIS POWER OF ATTORNEY HOLDER,
          AHAMMED PARAKKAL, S/O AYAMMED, AGED 76 YEARS,
          ASHYANA PURAVOOR, P.O. KOODALI, KOODALI AMOM
          DESOM, THALASERRY TALUK, KANNUR, PIN - 670592.

             BY ADV K.RAJESH SUKUMARAN



RESPONDENTS:
    1     CAMP BAZAR PALLI SABHA, KANNUR-670001,
          REP. BY ITS PRESIDENT, M.A.ABDUL NIZAR,
          AGED 66 YEARS.

     2       CAMP BAZAR PALLI SABHA, KANNUR-670001,
             REP. BY ITS SECRETARY, P. ABDUL JABBAR,
             AGED 52 YEARS, PIN - 670001.

     3       THE KERALA STATE WAQF BOARD, REP.
             BY ITS CHIEF EXECUTIVE OFFICER,
             KALOOR, COCHIN, PIN - 682017.

             BY ADV.C.H.ABDUL RASAC(caveator)

             SRI. JAMSHEED HAFIZ, SC, WAQF BOARD


      THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                     2
CRP (Wakf) No.9 of 2023


                                                              "CR"

                                    ORDER

Harisankar V. Menon, J.

This Civil Revision Petition is filed under Section 83(9) of the

Waqf Act, 1995 read with Section 115 of the Code of Civil

Procedure (for short, the 'Code'), by the applicant in WOA No.46

of 2021 on the files of the Waqf Tribunal, Kozhikode, instituted by

the petitioner challenging the proceedings of the 3rd respondent

Board in E.C.No.156 of 2020(A10-2973/2020) dated 24.3.2021.

2. The short facts necessary for the disposal of this Civil

Revision Petition are as follows:

The petitioner herein was a tenant with respect to the

building bearing door No.CC 866 of Kannur Corporation, owned by

the 1st respondent Waqf. Rent was paid by the petitioner till

August 2014, and thereafter, he was occupying the building

without payment of rent. A lawyer notice was sent by the 1 st

respondent Waqf on 10.03.2014, terminating the tenancy and

calling upon the petitioner to vacate the building with arrears of

rent. This notice was served on the petitioner on 14.03.2014.

However, the petitioner did not vacate the premises. In such

circumstances, the 1st respondent Waqf approached the 3rd

respondent Board under Section 54 of the Waqf Act, 1995 (for

short, the 'Act'). The 3rd respondent Board, after issuing a notice,

giving the petitioner an opportunity to be heard, and taking into

account the response submitted by the petitioner, issued the order

dated 24.03.2021 in E.C.No.156 of 2020, finding that the

petitioner is an "encroacher" under Section 3(ee) of the Act and

that an application needs to be filed before the Tribunal under

Section 54(3) of the Act.

3. Against the above order of the Board, the petitioner herein

filed WOA No.46 of 2021 before the Tribunal under Section 83 of

the Act. The petitioner contended that the Board did not conduct

a proper inquiry as to whether the subject property is a Waqf

property without which the steps under Section 54 of the Act,

cannot be taken, that the contention of the Waqf that the shop

room requires reconstruction is not correct and that the mandate

under Rule 24(2) of the Waqf Properties Lease Rules, 2014 (for

short, the Rules), is not followed etc.

4. The learned Tribunal by its order dated 16.12.2012 found

that the property is a Waqf property, the petitioner is an

encroacher under the Act and that Rule 24(2) of the Rules does

not apply to the facts of the case. Finding thus, the Tribunal

upheld the impugned order issued by the 3rd respondent Board.

5. The petitioner is challenging the above order of the

Tribunal and the order issued by the 3rd respondent Board, in this

Civil Revision Petition.

6. On 07.03.2023, this court admitted this Civil Revision

Petition, staying the operation of the impugned order on condition

that the petitioner remits the arrears of rent within two weeks.

The petitioner has remitted the admitted arrears of rent and the

interim order is extended by three months by an order dated

28.03.2023. The above order of stay is being extended from time

to time.

7. We have heard the learned counsel for the petitioner, the

learned counsel for respondents 1 and 2 and the learned Standing

Counsel for the 3rd respondent Board.

8. The learned counsel for the petitioner contends that the

entire proceedings culminating in the order of the Tribunal

impugned herein is unsustainable insofar as the provisions under

Rule 24(2) of the Rules have not been complied with. He has also

pointed out that the property in question is not a Waqf property

and therefore, the provisions under Section 54 of the Act are not

attracted. The requirement for reconstruction of the Mosque,

pointed out as a reason for eviction is also disputed.

9. The learned counsel for respondents 1 and 2, on the

other hand, pointed out that Rule 24 of the Rules relied on by the

petitioner herein is not attracted, insofar as the reliance placed is

on the provisions of the Rules as amended during 2020. He also

contended that the petitioner cannot be heard to say that the

scheduled property is not a Waqf property, since he has entered

into a lease agreement with the Waqf. The learned Standing

Counsel for the 3rd respondent has sought to support the order

issued, which has been confirmed by the Waqf Tribunal.

10. We have considered the contentions raised by the

respective parties and also perused the impugned orders.

11. The first issue to be considered is whether the

proceedings initiated against the petitioner under Section 54 of

the Act are illegal since the provisions of Rule 24(2) of the Rules

have not been complied with, according to the petitioner herein.

The provisions of Rule 24 of the Rules, relied on by the petitioner

herein read as follows:

"24. Surrender of leased property on expiration or termination of lease.-

(1) Upon expiration or termination of the lease, the lessee shall immediately surrender possession of the leased premises and all leasehold improvements in substantially

the condition in which the lessee is required to maintain the leased premises excepting only reasonable wear and tear, and upon surrender, all right, title, and interest of the lessee in the leased premises shall cease.

(2) If after the expiration or termination of the lease, despite given three notices one after another with a gap of one month, the lessee continues to occupy the leased premises, it shall be treated as an encroachment and such encroachment shall be removed in accordance with the procedure specified in section 54 of the Act."

According to the petitioner, Rule 24(2) of the Rules mandates the

issue of three separate notices one after another with a gap of one

month each after expiration or termination of the lease, to treat a

lessee as an encroacher so as to initiate proceedings under section

54 of the Act, which procedure has not been followed in this case.

However, it is to be noticed that the above sub-rule (2) is as

substituted by the notification G.S.R.126(E) dated 18.2.2020

issued by the Central Government under Section 56(1) of the Act.

Prior to the above substitution, Rule 24(1) & (2) of the Rules read

as under:

"24. Surrender of leased property on expiration or termination of lease.-

(1) Upon expiration or termination of the lease, the lessee shall immediately surrender possession of the leased premises and all leasehold improvements in substantially the condition in which the lessee is required to maintain

the leased premises excepting only reasonable wear and tear, and upon surrender, all right, title, and interest of the lessee in the leased premises shall cease.

(2) If after the expiration or termination of the lease, the lessee continues to occupy the leased premises, it shall be treated as an encroachment and such encroachment shall be removed in accordance with the procedure specified in Section 54 of the Act."

Thus, the main difference between the provisions of Rule 24(2) as

it existed prior to 2020 and thereafter, is with reference to the

need to issue three separate notices after the expiry/termination

of the lease. Till the substitution referred to above, it was sufficient

that the lessee continues to occupy the leased premises, after the

expiration or termination of the lease, to treat him as an

encroacher so as to invoke Section 54 of the Act. But after the

substitution referred to above, three separate notices have to be

issued with a gap of one month each before treating the

occupation of the leased premises by the lessee as an

encroachment so as to attract Section 54 of the Act.

12. According to the petitioner herein, insofar as the order

of the 3rd respondent Board is dated 24.3.2021, three separate

notices under Rule 24(2) of the Rules as it stands now, is required.

13. Therefore, the point to be considered is whether Rule

24(2) of the Rules as substituted above would apply to the facts

and circumstances of the present case.

14. Rule 24 of the Rules, before and after the substitution

referred to above, attracts the invocation of the procedure

specified under Section 24 of the Act, once the lease is treated as

an encroachment. Under sub-rule (2) also, an encroachment is

decided with reference to "expiration" or "termination" of the lease.

The lease is defined in the Rules as follows:

'"lease", "lessor" and "lessee" shall have the same meaning as assigned to them under the Transfer of Property Act, 1882 (4 of 1882)."

Thus, the provisions of the Transfer of Property Act, 1882 are to

be referred with respect to the term 'lease'. The method of

determination of the lease is prescribed under Section 111 of the

Transfer of Property Act. Section 111(h) provides for the issue of

notice by either party, for the termination of the lease. Here, the

admitted case is that, the 1st respondent Waqf has served notice

in 2014 to the petitioner to vacate the premises. Thus, the

termination of the lease has taken place on 14.03.2014 with

reference to Rule 24 (2) of the Rules. Therefore, the provisions of

Rule 24(2) of the Rules are to be with reference to the "termination

of the lease" on 14.03.2014. As on that date, it was unamended

Rule 24(2) of the Rules, that applied on account of which the

proceedings can be initiated against the petitioner under Section

54 of the Act.

15. We may also point out that the provisions under Rule 24

of the Rules, relied on by the petitioner is one as substituted. The

substitution as above is by the notification dated 18.02.2020. The

above notification has specifically provided that the amendments

shall come into operation on the date of its publication in the

official Gazette. In other words, only a prospective operation was

prescribed for the amendments carried out through the

notification. Therefore, Rule 24(2) of the Rules as substituted

would apply only from the date of publication of the said

notification in the official Gazette. The substituted provisions

would not have any application for anterior periods.

16. It is the settled principle of law that an amendment made

without making it clear in express language or implied terms that

the same is retrospective in operation would only be prospective.

In the case of a substitution, when it is made clear that the

substitution is prospective in operation, it cannot be held to apply

retrospectively. It is all the more so in the case at hand, as an

additional condition is stipulated so as to move under Section 54

of the Act. Such substitutions by which fresh limitations are

applied can only be considered as an amendment which is

substantive in nature. If that be so, the amendment cannot be

termed to be retrospective.

17. In Garikapati Veeraya v. N.Subbiah Choudhry and

others [AIR 1957 SC 547], the Apex Court considered the issue

regarding the vested right available to a party to a suit at the time

of its inception, to institute a further appeal, which is not altered

by subsequent changes as regards jurisdiction, laying down the

following principles at paragraph 23;

"23. From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a

subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

Thus it can be seen that the remedy to institute a suit, appeal,

etc. is not a mere matter of procedure but a substantive right.

Here the right to institute the proceedings under Section 54 of the

Act is accruing to the Waqf on the termination of the lease by

serving the notice on 14.03.2014. Therefore, the substitution

during 2020 referred to by the petitioner will not be applicable to

the case at hand.

18. The second point urged by the learned counsel for the

petitioner is that the scheduled property is not a Waqf property

and therefore, the entire proceedings culminating in the impugned

order of the Tribunal is incorrect. However, it is seen that there is

a categorical finding in the orders of the Tribunal and the 3 rd