Kerala High Court
M.A. Moosa vs Chief Executive Officer on 25 September, 2024
Author: Amit Rawal
Bench: Amit Rawal
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
CRP(WAKF) NO. 32 OF 2024
AGAINST THE ORDER DATED 07.08.2023 IN WOA NO.20 OF 2021 OF
WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER(S)/PETITIONER/1ST RESPONDENT:
M.A. MOOSA
AGED 53 YEARS
S/O. M.K. AHAMMED, MURIANKARA VEEDU,
KUZHIKKATTUMOOLA, KAKKANAD AMSOM, KUSUMAGIRI P.O,
ERNAKULAM, PIN - 682030
BY ADVS.
T.M.ABDUL LATHEEF
VAISHNAV DEV
RESPONDENT(S)/APPLICANT/RESPONDENT 2 AND 3:
1 CHIEF EXECUTIVE OFFICER
KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, ERNAKULAM,
KOCHI, PIN - 682017
2 KUZHIKKATTUMOOLA JUMA-ATH PALLI
REPRESENTED BY ITS MUTAWALLI, ADV. MUHAMMED HASHIM.
A, S/O. P. ALI, AGED 42 YEARS, KUZHIKKATTUMOOLA,
KAKKANAD AMSOM DESOM, KUSUMAGIRI P.O, ERNAKULAM,
KOCHI, PIN - 682030
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 2
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3 E.K. HASSAINAR
AGED 56 YEARS
S/O. KUNJAMMU, PADANATTU EDACHIRACKAL HOUSE,
KAKKANAD, KAKKANAD AMSOM DESOM, KUSUMAGIRI P.O,
ERNAKULAM, KOCHI, PIN - 682030
BY ADVS.
M.A.VAHEEDA BABU
BABU KARUKAPADATH(B-13)
ARYA RAGHUNATH(K/000474/2018)
KARUKAPADATH WAZIM BABU(MAH/8319/2019)
P.LAKSHMI(K/001868/2021)
AYSHA E.M.(K/001130/2022)
DENNIS BIJU(K/002709/2023)
ABUASIL A.K.(K/001702/2024)
SHAWN JOHNSON(K/1262/2023)
MANU KRISHNA S.K.(K/002737/2023)
OTHER PRESENT:
SRI JAMSHEED HAFIZ SC WAQF
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
25.09.2024, ALONG WITH WP(C).26750/2024, 26896/2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 3
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
WP(C) NO. 26750 OF 2024
PETITIONER/S:
IBRAHIM.P.H
AGED 52 YEARS
S/O.HASSAN, PUTHANPURAKKAL HOUSE, KUSUMAGIRI P.O,
KAKKANAD, KUZHIKKATTUMOOLA, ERNAKULAM DISTRICT, PIN -
682030
BY ADV T.M.ABDUL LATHEEF
RESPONDENT/S:
1 DISTRICT COLLECTOR
COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN
- 682030
2 THE EXECUTIVE MAGISTRATE/TAHSILDAR (L.R)
KANAYANNOOR TALUK, TALUK OFFICE, KANAYANNOOR,
ERNAKULAM, PIN - 682011
3 CHIEF EXECUTIVE OFFICER
KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, ERNAKULAM
DISTRICT, PIN - 682017
4 KUZHIKKATTUMOOLA MAHALLU MUSLIM JAMA-ATH PALLI,
REPRESENTED BY ITS INTERIM MUTHAWALLI ABDUL AZEES,
KUSUMAGIRI P.O, KAKKANAD, ERNAKULAM DISTRICT,, PIN -
682030
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 4
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5 E.K.HASSAINAR
S/O.KUNJAMMU, PADANATU, EDACHIRAKKAL HOUSE, KAKKANAD,
KUSUMAGIRI P.O, ERNAKULAM,, PIN - 682030
BY ADVS.
Jamsheed Hafiz
M.A.VAHEEDA BABU
BABU KARUKAPADATH(B-13)
ARYA RAGHUNATH(K/000474/2018)
KARUKAPADATH WAZIM BABU(MAH/8319/2019)
P.LAKSHMI(K/001868/2021)
AYSHA E.M.(K/001130/2022)
DENNIS BIJU(K/002709/2023)
ABUASIL A.K.(K/001702/2024)
SHAWN JOHNSON(K/1262/2023)
MANU KRISHNA S.K.(K/002737/2023)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.09.2024, ALONG WITH CRP(WAKF).32/2024 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 5
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
WP(C) NO. 26896 OF 2024
PETITIONER/S:
M.A MOOSA
AGED 53 YEARS
M.A MOOSA AGED 53 YEARS,
S/OM.K.AHAMMED,MURIANKARAVEEDU,KUZHIKKATTUMOOLA,
KAKKANAD AMSOM DESOM,KUSUMAGIRIP.O,ERNAKULAM., PIN -
682017
BY ADV T.M.ABDUL LATHEEF
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN
- 682030
2 THE EXECUTIVE MAGISTRATE/TAHSILDAR (L.R),
KANAYANNOOR TALUK, TALUK OFFICE, KANAYANNOOR,
ERNAKULAM, PIN - 682011
3 CHIEF EXECUTIVE OFFICER,
KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, ERNAKULAM
DISTRICT,, PIN - 682017
4 KUZHIKKATTUMOOLA MAHALLU MUSLIM JAMA-ATH PALLI
REPRESENTED BY ITS INTERIM MUTHAWALLI ABDUL AZEES,
KUSUMAGIRI P.O, KAKKANAD, ERNAKULAM DISTRICT, PIN -
682030
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 6
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5 E.K.HASSAINAR,
S/O.KUNJAMMU, PADANATU, EDACHIRAKKAL HOUSE, KAKKANAD,
KUSUMAGIRI P.O, ERNAKULAM,, PIN - 682030
BY ADV Jamsheed Hafiz
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.09.2024, ALONG WITH CRP(WAKF).32/2024 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 32 OF 2024 and conctd. cases 7
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JUDGMENT
[CRP(WAKF) Nos.32/2024, 26750/2024, 26896/2024]
Amit Rawal, J.
This order shall dispose of three matters; CRP (Wakf) No.32 of
2024 preferred against the orders dated 25.3.2022 and 7.8.2023 of
the Tribunal, WP(C) No.26896 of 2024 and WP(C) No.26750 of 2024
against the order dated 11.7.2024 of the District Collector.
2. Succinctly, the facts in brief in all three matters are that,
petitioners are the tenants of the property owned by Waqf had been
put into possession of the property based upon the terms and
conditions as referred to in the lease deed. Provisions of the Waqf
Act and the rules framed thereunder envisage that as and when the
period of lease is over, the status of the tenant as per Section 3(ee)
of the Waqf Act, is of an encroacher.
3. In CRP No.32 of 2024, petitioner Moosa had faced an ex
parte order of eviction dated 25.3.2022 giving him a cause to move
an application for setting set aside the order, which has also been
dismissed vide order dated 7.8.2023. However during the pendency
of the aforementioned application, CEO initiated an action under
Section 54 of the Act by taking steps to take the possession of the
property through office of the District Collector. The controversy
involved in the matter is also similar in WP(C) 26750 of 2024. In all
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the aforementioned petitions, the contention of the counsel for
petitioners are that they are willing to participate in the open action
being conducted by the Jama-ath and pay the rent on different terms
and conditions but till such time the possession may be retained with
certain terms and conditions. Noticing the facts, we had, while
issuing the notice, protected the interest of the petitioner viz-a-viz
the possession.
4. Mr.Jamsheed hafiz, learned counsel for the Waqf Board
submitted that the Waqf Board would not have any objection, in case
the petitioners-tenants are permitted to retain the premises till the
Jama-ath undertakes the steps to auction the property for leasing
out under a fresh lease deed with different terms and conditions
provided that the tenants would pay rent with some reasonable
increase.
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
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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 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.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
sab EASWARAN S.
JUDGE
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APPENDIX OF WP(C) 26750/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 22.6.2022 IN
I.A.NO.1/2022 IN CRP(WAKF)NO.18/2022
Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 14.9.2023
Exhibit P3 COPY OF THE REPRESENTATION DATED 15.1.2024
SUBMITTED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT
Exhibit P3(a) TRUE TRANSLATION OF EXT P3
Exhibit P4 COPY OF THE ORDER DATED 11.7.2024 OF THE
1ST RESPONDENT
Exhibit P4(a) TRUE TRANSLATION OF EXT P4
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APPENDIX OF WP(C) 26896/2024
PETITIONER EXHIBITS
Exhibit P1 COPY OF ORDER IN WOA NO 20/2021OF WAQF
TRIBUNAL KOZHIKODE DATED 25/3/2022
Exhibit P2 COPY OF THE ORDER NO. L8-3689/2024 DATED
11.7.2024 OF THE 1ST RESPONDENT
Exhibit P2(a) TRUE ENGLISH TRANSLATION OF EXT P2
