Kerala High Court
K.T.Yusuf vs The Kerala State Waqf Board on 3 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:8596
CRP(WAKF) NO. 21 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
CRP(WAKF) NO. 21 OF 2022
AGAINST THE JUDGMENT DATED 21.04.2022 IN WOS NO.184 OF
2019 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER/PLAINTIFFS:
1 K.T.YUSUF,
AGED 54 YEARS
S/O MOOSA KUTTY, RESIDING JAMEELA'S, SHADLI
PALLI, KOTTAALI P.O, PUZHATHI AMSOM DESOM,
KANNUR-670 005.
2 K.T.ASHRAF,
AGED 42 YEARS, S/O MOOSA KUTTY, RESIDING
JAMEELA'S, SHADLI PALLI, KOTTAALI P.O, PUZHATHI
AMSOM DESOM, KANNUR-670 005.
3 K.T.ISMAYIL,
AGED 50 YEARS, S/O MOOSA KUTTY, BARKATH HOUSE,
PUZHATHI AMSOM DESOM KAKKADU P.O., KANNUR-670
005
BY ADVS.
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
MANU VYASAN PETER
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2
RESPONDENTS/DEFENDANTS:
1 THE KERALA STATE WAQF BOARD,
REP: BY ITS CHIEF EXECUTIVE OFFICER, DIVISIONAL
OFFICE, KERALA WAQF BOARD, EROTH CENTRE, BANK
ROAD, KOZHIKODE-673001.
2 THE CHIEF EXECUTIVE OFFICER,
THE KERALA STATE WAQF BOARD, DIVISIONAL OFFICE,
KERALA WAQF BOARD, EROTH CENTRE, BANK ROAD,
KOZHIKODE-673001.
3 STATE OF KERALA ,
REPRESENTED BY THE DISTRICT COLLECTOR, CIVIL
STATION, KANNUR-670002.
4 THE VILLAGE OFFICER,
PUTHAZHI VILLAGE, KANNUR, PIN-670014.
5 K.MOIDEEN HAJI,
AGED ABOUT 70 YEARS, S/O KUNHAMMED, NADIRA
MANZIL, SHADLI PALLI, KOTTAALI P.O, PUZHATHI
AMSOM DESOM, KANNUR-670 005.
6 ABDUL SATHAR K.N.,
S/O. MOIDEEN KUNHI T.K., THE SECRETARY, KAKKAD
MAHALLU MUSLIM JAMAATH, KAKKAD, KANNUR,PIN-670
005
BY ADVS.
PEER MOHAMED KHAN V.K
GIRISH KUMAR V.C(K/1187/2020)
ASNA M.B.(K/001696/2023)
T.KRISHNANUNNI (SR.)(K/280/1973)
SRI JAMSHEED HAFIZ SC WAQF SR GP SRI T K
VIPINDAS
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
03.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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CRP(WAKF) NO. 21 OF 2022
3
JUDGMENT
AMIT RAWAL, J.
Petitioner - plaintiff instituted a civil suit W.O.S.
No.184 of 2019, by laying challenge to the order of the
Administrator of the Kerala State Waqf Board dated
11.07.2014, ordering the eviction from the schedule property
measuring 44 cents of land and for the injunction not to evict
the petitioner owing to the facts pleaded in the plaint.
2. It was averred that the schedule property
originally belonged to Kakkad Juma-ath Palli, Kannur, which
was given on lease to many tenants and thereafter, leased out
to Kakkad Oil Mills and Industries vide registered document
bearing No.474/1947 of S.R.O., Kannur. In lieu thereof an
amount of Rs.500/- was received as premium and annual land
rent was fixed as Rs.36/-. The said industry went under
liquidation and on 16.01.1960, the plaint schedule property
including the building and structure thereon was put to public
auction.
3. The plaintiff's father acquired the rights in
the aforementioned property by lease assignment deed
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No.550 of 1960, whereby the tenancy rights of the entire
building and the structure erected by the said Kakkad Oil Mills,
was conferred, for a paltry amount of Rs.3,250/-.
4. On the basis of the complaint made by the
5th respondent that the status of the petitioner-plaintiff is of
encroacher, the CEO put up a note on 11.07.2014 before the
Administrator and the Administrator passed ejectment order
dated 11.07.2014, a one line order, without affording any
opportunity to the petitioners/plaintiffs. The order was though
assailed before the appellate Tribunal, but of no avail. In that
background, the declaration as aforesaid has been sought. In
the plaint, the benefit of Section 106 of the Kerala Land
Reforms Act, 1963 was also set up. Besides that, the eviction
proceedings was also assailed on the ground that, in the
earlier round of litigation by the Wakf in original suit
No.26/1965, the claim for eviction was rejected by decision
dated 13.11.1961, with the direction to the plaintiff to
continue to pay the rent.
5. Respondent - Wakf contested the suit on
various grounds and stated that, the status of the
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petitioner/plaintiff as per the provision of Section 3(ee) of the
Wakf Act had become of an encroacher and even by virtue of
the purchase document or the status continued to be a tenant
and not that of an owner. The previous suit basically was
decreed commanding the petitioner - plaintiff to pay the
arrears of rent. The ownership of the property throughout
always vested with the Wakf. Based upon the afore-mentioned
pleadings, the learned Tribunal framed following issues cum
additional issues:
"Issues
1) Whether the order passed by the administrator
of the Waqf Board dated 11.7.2014 is null and
void?
2) Whether the plaintiffs are entitled for the
benefit under Section 106 of the Kerala Land
Reforms Act?
3) Whether the plaintiffs are entitled for a
declaration as prayed for?
4) Whether the plaintiffs are entitled for an
injunction as prayed for?
5) What is the order as to reliefs and costs?
Additional issues
6) Whether the suit is maintainable for want of
Section 80 notice?
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7) Whether the suit is maintainable against the
impugned order of the Waqf Board?
8) Whether the suit is barred by resjudicata,
estoppels and waiver?
9) Whether Ext.A4 lease deed is valid or legal?"
6. The Plaintiff examined three witnesses and
brought on record following documents whereas the
defendants did not examine any witness and brought on
record the following documents:
" Plaintiff Exhibits:
A1: 11.07.2014: Copy of decision of Kerala State Waqf
Board.
A2: 11.07.2014: Certified copy of the proceedings of
Administrator Kerala State Waqf Board.
A3: 26.03.1960: Assignment deed entered into
between Chathukutty Nair, Abdul Khader
and Moosakutty.
A4: 24.02.1947: Certified copy of deed bearing
document No 474/1947.
A5: 30.11.1961: Certified copy of decree in OS
26/1961 of Munsiff Court, Kannur.
A6: 30.11.1961: Certified copy of Judgment in OS
26/1961 of Munsiff Court, Kannur.
A7: -------- : Receipt given by Kakkad Juma-ath
Committee to Moosakutty.
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A8: 12.01.1965: Certified copy of extract of
Register of Waqf.
A9: 09.12.2014 :Copy of lawyer notice with postal r
eceipt and acknowledgement card
A10: 08.12.2014: Copy of lawyer notice with postal
receipt.
A11: 18.12.2014: Letter issued from Divisional
Office Kerala State Waqf Board Kozhikode
to Divisional Office Kannur
A12: 05.02.2018: Building Tax receipt.
A13: 20.02.2016: Building Tax receipt.
A14: 20.02.2016: Building Tax receipt.
A15: 20.02.2014: Copy of order of appointment of
administer of Kerala State Waqf Board by
Revenue Department.
A16: 14.06.2016: Certified copy of order in Appeal suit
1/15 of Wakf Tribunal, Kozhikode.
A17: 14.02.2018: Reply given to Ismail by public i
nformation officer, Village Office,
Puzhathi as per RTI Act.
A17(a): 5.02.2018: Application filed by K.T. Ismail
under RTI Act.
A18: 19.09.1966: Receipt issued by Kakkad Muslim
Juma -ath Committee to Moosakutty.
A19: 18.05.2010: Certified copy of deed bearing
document No.1813/10.
A20: 29.10.2013: Certified copy of deed bearing
document No.3429/13.
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A21: 3.12.2002: Copy of notice issued by CEO
Kerala State Waqf Board to President
Kakkad Mahal.
A21(a): 7.01.2003: Copy of notice issued by CEO
Kerala State Waqf Board to Senior
superintendent Kerala State Waqf Board.
A21(b): 22.11.2012: Draft notes in El 2595/09
issued by state Public Information Officer.
A210: 16.06.2000: Copy of petition filed by
residences of Kakkad Mahal to Secretary
Kerala State Waqf Board.
A21(d): 24.06.2000: Copy of memo issued by
Senior Superintendent Kerala State Waqf
Board.
A21(e): 1.07.2000 Copy of emergent notice issued by
CEO Kerala State-Waqf Board.
A21(f): 14.07.2000: Copy of report filed by Head
Clerk Kerala State Waqf Board.
A21(g): 15.07.2000: Copy of reply notice send by Adv.
Ahammed Kunhi to Senior Superintendent
Kerala State Waqf Board.
A22:04.04.2015: Certified copy of request from
President Kakkkad Mahal Muslim Jama-ath, to
Chairman Waqf board.
Defendants Exhibits:
B1: 31.03.2015 : Certified copy of plaint in appeal suit
1/2015 filed before Wakf Tribunal, Kozhikode.
B2: 04.06.2016: Certified copy of judgment in
appeal suit 1/2015 of Wakf Tribunal
Kozhikode..
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B3: 15.11.2005: Certified copy of partition
agreement bearing document No.
3920/05.
B4: 28.02.2018 Extract of Adangal issued by
Village Officer Puzhathi.
B4(a): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(b): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(c): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(d): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(e): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(f): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(g): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(h): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(i): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(j): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(k): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
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B4(1): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(m):28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B4(n): 28.02.2018: Extract of Adangal issued by
Village Officer Puzhathi.
B5: 26.02.2018: True copy of sketch issued by
Village Officer Puzhathi.
B6:14.06.2016: Certified copy of decree in appeal suit
1/2015 of Waqf Tribunal, Kozhikode.
Witness Exhibits:
X1: Page No. 89 in file No. E4-2595/09 Kerala State
Waqf Board."
7. On analysis of the aforementioned
documents, learned Tribunal dismissed the suit by holding
that, it was not a commercial lease, therefore, plaintiff could
not take up the plea of Section 106 of Kerala Reforms Act,
1963. Moreover, Ext.A3 the purchase certificate dated
26.03.1960 would not grant any benefit right as an assignee
as no industrial or commercial activities was ever carried on
as on 20.05.1967 owing to the admission of PW1 as the
premises were being used for the residential purposes.
8. Mr.P.B.Subramanyan, the learned counsel
appearing on behalf of the petitioners submitted that the
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judgment of the Tribunal is not sustainable and liable to be set
aside on various grounds by making following submissions:
(i) By the registered document dated 26.03.1960, no
doubt the tenancy rights were conferred with no right
to seek eviction as the plaintiff is entitled to protection
as enshrined under Section 106 of the Kerala Land
Reforms Act, 1963 for, usually the lease was given to
an Oil Mill which was commercial and even after the
auction it remained commercial. Even if the nature of
the business had stopped, the tenor and the colour of
the lease would always be of commercial. This aspect
has totally been brushed aside while dismissing the
suit.
(ii) The petitioner had always been paying the rent
even by virtue of the document Ext.A3 dated
26.03.1960, no doubt the fresh cause of action would
always arise in favour of the Wakf Board as and when
there is a default in payment of lease money, but
subject to clearance of arrears, the eviction cannot be
ordered as the status of the petitioner cannot be
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equated with the definition of encroacher as defined
under Section 3(ee) of the Wakf Act, 1995.
(iii) There has been a misdirection and
misinterpretation of the document as Tribunal failed to
advert to the terms and conditions of the document
Ext.A3 dated 26.03.1990, which is a registered
document conferring the perpetual commercial lease in
favour of the petitioner/plaintiff.
(iv) The previous suit had also protected the interest
and possession subject to the payment of the arrears.
The petitioners/plaintiffs had always been paying the
arrears, but the respondent did not accept the same.
Non acceptance of the same would not give them the
power to initiate action under Section 54 of the Wakf
Act, 1995.
9. Per contra, the learned senior counsel
Sri.T.Krishnanunni as well as Sri.Jamsheed Hafiz - learned
Standing Counsel for the Wakf Board, jointly opposed the
afore mentioned submission and submitted that the status of
the petitioners/plaintiffs would be of an encroacher on account
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of the non-payment of the lease money. The previous decree
was conditional as it contained the directions to pay the
arrears. It is settled law that a tenant, even if he had stepped
into the shoes of erstwhile tenant by virtue of the document
dated 26.03.1960, cannot acquire and retain the property
without payment of the lease money. In default, the remedy is
to seek eviction and precisely that is what has been done in
accordance with law. Order of the tribunal is based upon the
appreciation of oral and documentary evidence and does not
require any interference while exercising power of revision
which is only confined to material irregularity and perversity.
10. We have heard counsel for the parties and
appraised the arguments as well as the provisions of the Act
and copy of the document dated 26.03.1960.
11. On plain perusal of the provisions of the
document Ext.A3 dated 26.03.1960, it is evident that on
payment of certain consideration i.e. Rs.3,250/-, the father of
the petitioners/plaintiffs had stepped into the shoes of the
erstwhile lessee, who had taken the premises on the
commercial lease way back in 1947. Aforementioned
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possession came into being by virtue of the property having
been put to auction as the erstwhile company had gone under
liquidation.
12. On perusal of the order of the Tribunal, it is
evident that none of the terms and conditions of the
document Ext.A3 dated 26.03.1960 has been adverted to, in
order to understand the import of the provisions of Section
106. Using of the premises for residential purpose would not
change the character and nature of the property which was
leased out to the erstwhile tenant and on subsequent
acquisition of the tenancy rights by a registered document
dated 26.03.1960.
13. Section 106 of the Kerala Land Reforms Act
reads as under:
"106. Special provisions relating to
leases for commercial or industrial hurposes.-
(1) Notwithstanding anything contained in this
Act, or in any other law, or in any contract, or
order or decree of court, where, on any land
leased for commercial or industrial purpose,
the lessee has constructed buildings for such
commercial or industrial purpose before the
18th December, 1957, he shall not be liable to
be evicted from such land, but shall be liable
to pay rent under the contract of tenancy.
Such rent shall be liable to be varied every
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twelve years on the motion of the lessor or the
lessee, in such manner as may be prescribed.
(2) If, between the 18th December,
1957 and the date of cons-mencement of this
Act, any decree or order of court has been
executed and any person dispossessed by
delivery, such person shall, on applica-tion
before the land Tribunal, be entitled to
restoration of possession:
Provided that, before restoration,
such person shall be liable to pay -
(i) the compensation paid by the
landlord for any improvements in the land and
subsisting at the time of restoration;
(ii) the compensation for any
improvements effected subsequent to the
delivery:
Provided further that he shall not be
entitled to restoration if the property has
passed on to the possession of a bona fide
transferee for value."
14. Had the contents of the document dated
26.03.1960 been looked into, perhaps the Tribunal would have
been able to appreciate the applicability or otherwise of the
provisions emphatically relied and extracted supra.
15. All these factors have not been taken into
consideration, therefore the findings of the Tribunal are not
only arbitrary but opaque and hereby set aside. The Revision
Petition is allowed.
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16. Before we could remand the matter to the
Tribunal for fresh adjudication in terms of our observation as
well as the examination of the documents, we put to the
parties to bring a quietus to the litigation whether the
plaintiffs/petitioners are willing to increase the lease money
and pay to the Juma-ath/Wakf. Both the parties after having
obtained the instructions from their respective clients have
agreed to do so. Mr.Subramanyan, informs that though the
area of the land is 4000 sq feet but the constructed portion is
far less in square feet. Mr.Jamsheed Hafiz informs that the
market rent of the constructed portion is between Rs.40/- to
Rs.50/- per square feet. We take it as Rs.40/-, being an old
occupant, therefore fix the rate of rent of the constructed area
in possession of the petitioner as Rs.40/- to be determined
from today and direct to clear the arrears at the old rent
within a period of one month and continue to pay thereafter
without any default.
17. The petitioner is also at liberty to have amicable
settlement with the respondents to either retain at a different
rate of rent or surrender the unconstructed and unoccupied
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area in favour of the Juma-ath subject to any terms and
conditions.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
GBG
