Kerala High Court
K. V. Ayisha vs Chief Executive Officer on 17 October, 2024
Author: Amit Rawal
Bench: Amit Rawal
2024:KER:79897
CRP(WAKF) NO. 38 OF 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRP(WAKF) NO. 38 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 19.2.2020 IN WOA NO.14
OF 2019 OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/1ST RESPONDENT:
K. V. AYISHA
W/O. AHAMMED, ACHABATH MEETHAL, ALANKODE P. O.,
PANOOR - 670 692, KANNUR DISTRICT.
BY ADV C.P.PEETHAMBARAN
RESPONDENTS/APPLICANT & 2ND RESPONDENT:
1 CHIEF EXECUTIVE OFFICER
KERALA STATE WAQF BOARD, V.I.P.ROAD, KALOOR,
KOCHI - 682 017, ERNAKULAM DISTRICT.
2 INTERIM MUTAWALLI
PANOOR JAMAATH PALLI, PANOOR P. O.,
PANOOR - 670 692, KANNUR DISTRICT.
3 KERALA STATE WAQF BOARD
V.I.P. ROAD, KALOOR,
KOCHI, PIN - 682 017,
REPRESENTED BY ITS SECRETARY.
BY ADVS.
SRI JAMSHEED HAFIZ SC WAQ
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
ORDER
Amit Rawal, J.
1. Petitioner is the tenant of petition scheduled
property and was running textile business on the basis of
tenancy rights granted by the Jama-ath. On expiry of the
lease period, the status of the tenant became that of an
unauthorized occupant, as per Section 3(ee) of the Wakf Act,
1995. It is in that background, eviction proceedings under
Section 54(3) of 1995 Act were initiated against the petitioner
by the office of Chief Executive Officer of the Board, on the
request of Jama-ath. Petitioner was not able to defend the
eviction proceedings and has been ordered to vacate the
premises by complying the following conditions:
1) The 1st respondent is directed to vacate the
building with door Nos.XII/988 & 991 of Panoor
Municipality, Panoor Village, Thalassery Taluk in
Kannur District within 45 days from the date of
affixture of the order on the outer door or other
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conspicuous part of the waqf property.
2) A Copy of the order shall be affixed on the
outer door or conspicuous part of the waqf property
at the earliest.
3) If the 1st respondent refuses or fails to
comply the order of eviction within 45 days from the
date of affixture of the order as above, the applicant
or any other person duly authorized by him in this
behalf is authorized to evict the 1st respondent from
and take possession of the waqf property as per law.
2. Sri.C.P.Peethambaran, learned counsel
appearing on behalf of the petitioner submitted that the shops
in question are fetching rent at the rate of Rs.1,500/-
(Rupees one thousand five hundred only) each. Petitioner is
willing to pay increased rate of rent in case the Jama-ath or
the Board is willing to accept the same. Even otherwise, after
taking the possession, property has to be put to auction for
creation of new lease and petitioner is willing to retain the
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premises by participating in the auction, for taking the
property on fresh lease, in case during the interregnum either
the Board or Jama-ath does not accept the enhanced rate of
rent. But till such time, he is willing to pay Rs.6,000/-
(Rupees six thousand only) for both the shops to show his
bonafide.
3. In support of the contention, relied upon the
similar order passed in M.A Moosa v. Chief Executive Officer
in CRP(WAKF) Nos.32/2024 and connected matters, where in
an identical situation, by protecting the interest of tenant, this
Court had passed the order and the relevant portion of the
same reads as follows:
5. We have heard the learned counsel for the parties. No
doubt, the status of a tenant, on cessation of the lease
deed as per the provisions of Section 116 of the Transfer
of Properties Act, would be of holding over but in case
there is a specific provisions in the Act like under Section
3(ee) of the Waqf Act, then the protection of holding over
would not be available and the status of the tenant would
be of an unauthorized occupant. The eviction orders are
upheld upto the highest court. The remedy to take the
possession rest with the CEO as vested under Section 3 of
Section 54 of the Waqf Act,1995. Precisely this has been
done in the writ petition bearing No.26896 of 2024 and
26750 of 2024 whereby on receipt of an application
District collector had directed the Tahsildar to take the
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possession. We are of the view that no useful purpose
would be served to evict the petitioners who are earning
their livelihood from the tenanted premises instead permit
to retain the possession till the auction is conducted by the
Jama-ath but subject to the condition that there shall be
10% of increase of rent as already determined as per the
terms and conditions of the lease deed. Accordingly, all
the notices under challenge of the District Collector are
ordered to be kept in abeyance till the Jama-ath exercise
their option of auction and till such time, the petitioners-
tenants shall pay the rent to the Jama-ath/landlord with
10% increase commencing from 1.10.2024 and in case of
any default, respondent will take action in accordance with
law. Petitions are accordingly, disposed of.
3. Sri.Jamsheed Hafiz, learned counsel
appearing on behalf of the Board did not deny the judgment
delivered by us, protecting the interest of the tenant in the
absence any clause of holding over in the Wakf Act.
Accordingly, the order of eviction is ordered to be kept in
abeyance, subject to the condition that petitioner shall clear
all the arrears of rent till 30.09.2024 at the rate of Rs.1,500/-
(Rupees one thousand five hundred only) each for both the
shops and shall continue to pay the rent at the rate of
Rs.3,000/- (Rupees three thousand only) each from
01.10.2024 till the Jama-ath, with the permission of Wakf
Board, decide to put the property in fresh auction or they are
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at liberty to accept the said rate by executing fresh terms and
conditions. In case Jama-ath, in future, contemplates to put
the property in auction, petitioner shall be at liberty to
participate in the auction for the purpose of taking the
premises on lease on fresh terms and conditions.
Revision stands disposed off.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
nak
