Kerala High Court
Mechery Vijayakumar vs Kinasseri Yatheem Khana on 7 February, 2020
Author: T.V.Anilkumar
Bench: C.K.Abdul Rehim, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941
CRP(WAKF).No.49 OF 2019
AGAINST THE JUDGMENT IN OS 77/2019 DATED 25-05-2019 OF WAKF
TRIBUNAL, KOZHIKODE
PETITIONER/1ST DEFENDANT:
MECHERY VIJAYAKUMAR,
AGED 49 YEARS
S/O.VASU, 25/1795, ATHUL ELECTRICAL ENGINEERING
WORKS, POST POKKUNNU, VALAYANAD AMSOM DESOM,
KOZHIKODE TALUK, PIN - 673 013.
BY ADVS. SRI.V.T.MADHAVANUNNI
SRI.V.A.SATHEESH
SRI.M.S.VINEETH
SRI.M.VIVEK RABINDRANATH
RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:
1 KINASSERI YATHEEM KHANA,
REPRESENTED BY ITS SECRETARY KULANGARA MAMMED
KOYA, AGED 63 YEARS, S/O.ALIKOYA HAJI, VALAYANAD
AMSOM DESOM, POST POKKUNNU,
KOZHIKODE TALUK, PIN - 673 013.
2 KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
V.I.P.ROAD, KALOOR, ERNAKULAM-682015.
R1 BY ADV. SRI.K.M.FIROZ
R1 BY ADV. SMT.M.SHAJNA
R2 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
07.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.R.P.(Waqf) No.49 of 2019
:-2-:
"C.R."
C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.
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C.R.P.(Waqf) No.49 of 2019
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Dated this the 7th day of February, 2020
ORDER
T.V.ANILKUMAR, J.
The revision petitioner is the 1st defendant before the Waqf Tribunal, Kozhikode in O.S.No.77/2019 filed by the 1 st respondent, Kinasseri Yatheem Khana, seeking eviction of the revision petitioner from the plaint schedule shop room bearing Door No.27/1795 of Kozhikode Corporation and for realisation of the arrears of rent, both past and future.
2. The suit was decreed by the Tribunal ordering eviction of the revision petitioner as well as granting arrears of rent with cost and interest. Being aggrieved by the impugned decree dated 25.5.2019, the 1st defendant, who is C.R.P.(Waqf) No.49 of 2019 :-3-:
the tenant of the shop room, has filed this revision petition.
3. The plaint schedule shop room belongs to the 1st respondent, Yatheem Khana which is represented in the suit by its Secretary. The building consisting of the plaint schedule shop room was purchased in the name of former President of the Yatheem Khana, Sri.Veerankutty Haji as per Ext.A5 sale deed, dated 26.09.1990 executed by its erstwhile owners. The plaintiff leased out the shop room to the revision petitioner on 15.2.1991 for a monthly rent of Rs.200/- for a period of three months and later it was increased to Rs.500/-, which is the current rate of rent.
4. The landlord - tenant relationship between the parties is not under dispute nor is there any dispute as regards the current monthly rent of Rs.500/-. The plaintiff filed the suit after terminating the tenancy with the 1 st defendant by sending Ext.A1 lawyer's notice on 23.5.2013, alleging that the 1st defendant kept the rent in arrears since the month of February, 2013. The 1st defendant replied C.R.P.(Waqf) No.49 of 2019 :-4-:
through his lawyer denying the allegation of default in payment of rent and claimed that the rent upto the month of November, 2013 was already paid. He also disowned the liability to surrender the tenanted premises to the plaintiff, alleging that the property was not a Waqf property. The plaintiff sued the 1st defendant for eviction and arrears of rent claiming it to be a Waqf registered with the 2 nd defendant, the Kerala State Waqf Board.
5. Contentions raised by the revision petitioner before the Tribunal are three fold. It was contended that the plaint schedule shop room was not a Waqf property and therefore the Waqf Tribunal lacked jurisdiction to entertain the suit for eviction and arrears of rent. The revision petitioner therefore claimed to be a statutory tenant entitled to get protection under the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 (for short, 'the Rent Act'). It was also contended that even if the plaint schedule property was assumed to be a Waqf, the eviction and arrears C.R.P.(Waqf) No.49 of 2019 :-5-:
of rent were not reliefs which are permitted to be decided or settled under provisions of Section 85 of the Waqf Act, 1995 (for short, 'the Act') and the Waqf Tribunal lacked jurisdiction to decide the present lis brought before it. It was lastly contended that the period of default in payment of rent alleged by the plaintiff was incorrect and the rent was paid upto the month of November, 2013; and therefore the decree claimed for arrears of rent as quantified in the suit could not be granted.
6. The learned Tribunal examined PW1 on the side of the plaintiff and the 1st defendant got himself examined as DW1. On the side of the plaintiff, Exts.A1 to A7 were admitted in evidence and Exts.B1 to B6 were received in evidence on the side of the revision petitioner. Exts.C1 and C1(a) are Commission report and plan prepared in the suit.
7. The Tribunal after hearing both sides, rejected in part the contentions raised by the revision petitioner and held that the plaint schedule property is a Waqf and the suit C.R.P.(Waqf) No.49 of 2019 :-6-:
for eviction and arrears of rent, is perfectly maintainable before the Tribunal, since the Act as well as the Waqf Properties Lease Rules, 2014, made adequate provisions for eviction of tenant and recovery of arrears of rent from the tenant. The protection from eviction claimed under the provisions of the Rent Act was denied on the premise that the Waqf property maintained by the State Board was exempted from the purview of the Rent Act by virtue of Section 25 thereof. The plaintiff's contention that the rent fell in arrears since February, 2013, was rejected and accepting the contention of the revision petitioner, it was held that the monthly rent of Rs.500/- stipulated by the parties under Ext.A4 lease agreement accrued to the plaintiff only since the month of November, 2013 and consequently the impugned decree for past and future arrears of rent was granted.
8. We heard the learned counsel for the revision petitioner as well as the respondents.
C.R.P.(Waqf) No.49 of 2019
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9. Two questions that crop up for consideration in this revision are whether (a) the plaint schedule property is a Waqf and (b) the Waqf Tribunal has got jurisdiction to entertain the proceedings for eviction and recovery of arrears of rent.
10. Learned counsel for the petitioner submitted that, there is absolutely no evidence to prove that the plaint schedule shop room is a Waqf property and merely because it was registered with the 2nd respondent Waqf Board, the property cannot be held to be a Waqf, in the absence of evidence of circumstances proving the essentials which are necessary to create a Waqf under law.
11. It is an admitted fact that Ext.A5 deed dated 26.09.1990 is not a deed creating any Waqf. It is an absolute sale deed which does not contain any stipulations or terms creating a Waqf, much less the purpose for which the property was purchased in the name of the plaintiff, Yatheem Khana.
C.R.P.(Waqf) No.49 of 2019
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12. On the other hand, the learned counsel for the 1 st respondent/plaintiff contended that, the Yatheem Khana being an institution created for charitable purpose recognised by the Muslim Law, is by itself a Waqf and the plaint schedule property purchased under Ext.A5 deed with the funds of such an institution is essentially impressed with the character of Waqf. It is also submitted that in any view of the matter, so long as the property having been registered with the 2nd respondent Waqf Board, there is every presumption that the suit property is a Waqf, in the absence of any material circumstances being brought on record by the revision petitioner to the extent of rebutting the presumption.
13. Plaintiff is a 'Yatheem Khana' and its properties stood registered with the 2nd respondent Waqf Board, since the year 1993. This is not a disputed fact and further it is also proved by Ext.A3 certificate and Ext.A7 copy of register issued from the 2nd respondent Kerala State Waqf Board. C.R.P.(Waqf) No.49 of 2019
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Ext.A7 register shows that the Yatheem Khana had acquired several other properties, besides the plaint schedule shop room under various deeds executed in different years. But none of them, except Ext.A5 sale deed, dated 26.09.1990, was produced before the Tribunal. We are not in a position to get at the contents of those documents which are not before us. Plaintiff in this respect placed heavy reliance on Ext.A7 register to contend that, the plaint shop room is a Waqf by virtue of the fact that the 'Yatheem Khana' was formed for charitable purposes recognized by Muslim Law. The fact that the plaintiff is a charitable organisation formed for promoting the interests of orphans, is not disputed by the revision petitioner also.
14. The question therefore is, whether the plaint schedule shop room held by plaintiff 'Yatheem Khana' which is an organisation formed for charitable purposes recognized by Muslim Law, could be reckoned as Waqf, on facts and law.
Learned counsel for the revision petitioner submitted that C.R.P.(Waqf) No.49 of 2019 :-10-:
the formation of an organisation for a charitable purpose recognized by Muslim Law could be at the behest and interests of a Trust also, in which case creation of Waqf cannot be presumed, since Trust and Waqf are different entities. On the other hand, the learned counsel for the 1 st respondent submitted that the very fact that the schedule property was held by the 'Yatheem Khana' would by itself establish that suit shop room was a Waqf.
15. Under Section 3(r) of the Act, 'Waqf' is defined as follows:
"3(r) 'waqf' means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-
(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) xxx xxx xxx
(iii)xxx xxx xxx
(iv)xxx xxx xxx "
16. It is indisputable that the act of maintaining C.R.P.(Waqf) No.49 of 2019 :-11-:
Yatheem Khana (orphanage) is by all means a purpose within the meaning of Section 3(r) of the Act, recognised by Muslim law. But such a charitable purpose could be pursued and carried forward by an institution formed under law as a Trust also. Therefore, the basic difference between properties held by a Trust and a Waqf ought to be perceived by courts, while deciding the question as to whether a particular property is Waqf or not. The sine quo non for creation of Waqf is dedication of property in perpetuity by its owner called Wakif. The dedication of property need not necessarily be in writing and it could be even oral also. What is all the more essential is that the dedication must be to the Almighty and the Wakif who dedicates the property must divest himself of all his interests in the property. It is also essential that the dedication must be for a purpose recognised by Muslim law as religious, pious or charitable. With respect to the creation or establishment of Trust also, the purpose for which it is formed may be the same as C.R.P.(Waqf) No.49 of 2019 :-12-:
recognised by Muslim law. The paramount feature which distinguishes a Trust from a Waqf is that while in the case of former, the property vests in the Trustee, but in the case of latter, property vests in Allah. Waqf once created is irrevocable, whereas it need not necessarily be so in the case of a Trust. So far as the evidence on record in the present case is concerned, there is nothing to indicate that the plaint schedule property is held by a Trust nor does the revision petitioner has a specific case that the plaintiff, Yatheem Khana is an organisation registered as a Trust under any of the laws requiring registration.
17. On the other hand, Ext.A7 copy of the Register issued by the 2nd respondent Board proves that the properties held by the plaintiff were already registered with the State Waqf Board as early as in 1993. Ext.A7 also discloses that it was at the instance and on the application of the Mutawalli, the registration of the plaint schedule and other properties with the Board was effected. Though the C.R.P.(Waqf) No.49 of 2019 :-13-:
documents relied on by the Wakf Board produced before it are not available before us (except Ext.A5) to prove that the properties were dedicated for any of the purposes recognised by Muslim law, the very conduct of the Mutawalli applying for registration with the Board could be taken to be a telling circumstance in judging the question as to whether plaintiff was validly registered as Waqf. Further, the conduct of plaintiff using the properties for charitable purposes for long years also cannot be blind folded. The earliest document of acquisition mentioned in Ext.A7 appears to be of the year 1985 and therefore itself, the existence of plaintiff, right from 1985, has to be presumed. The evidence given by PW1 also indicates that the incomes from all the immovable properties were utilised for the maintenance of inmates of 'Yatheem Khana' and protection of their interests.
18. It is to be noted that the order of Waqf Board registering Yatheem Khana as Waqf has great legal significance. Order of the Board registering Waqf in exercise C.R.P.(Waqf) No.49 of 2019 :-14-:
of powers under Section 36 of the Act is certainly statutory and in the absence of any challenge by persons bound by it before appropriate forum, the order must be deemed to have attained finality, capable of arousing presumption under law that the property was dedicated as Waqf as per law. Section 36 of the Act contemplates an enquiry to be held by the Board preceding the registration of the Waqf and the property could be registered as Waqf only upon the Board being satisfied of the genuineness and validity of the information and statements revealed to the Board in the application seeking registration. The process and enquiry preceding the registration were over as early as in 1993 and there is nothing to show that anybody aggrieved by the registration, challenged the statutory order of registration before any legal forum. When the former Secretary applied for registration of the properties owned by the plaintiff, by all means, his conduct could be taken at least as amounting to an act of dedication of property as Waqf. In our opinion, C.R.P.(Waqf) No.49 of 2019 :-15-:
the conduct of the person administering the plaintiff in applying for registration before the Waqf Board as well as the long user of the property for charitable purpose are sufficient to draw an infallible inference that the plaint schedule property was already dedicated as Waqf .
19. Strictly speaking, registration of a property as Waqf under the provisions of the Act may not bind a total stranger to the Waqf and therefore itself no validity could be attached to an order of such registration, even in the absence of any challenge of such an invalid order in any appropriate legal forum. Nonetheless, the Register of Waqf prepared under the provisions of the Act is sufficient to create a natural presumption that the property registered is a Waqf, having regard to the fact that the entries made in the Register were in discharge of duties performed by the officials of Waqf Board. Section 114(e) of the Indian Evidence Act enacts the presumption that all official acts are regularly performed until rebutted. The revision petitioner C.R.P.(Waqf) No.49 of 2019 :-16-:
has no case that the registration is vitiated by any act of fraud or collusion allegedly played by the plaintiff and Waqf Board together, intending to defeat the purported statutory tenancy in favour of the petitioner, which would have otherwise survived under the Rent Act. In sofar as the present case is concerned, we are of the opinion that Ext.A7 Register of Waqf, even in the absence of Ext.A5 Deed not evidencing any terms creating Waqf also, is sufficient to provide a prima facie proof that the plaint schedule property is a Waqf. The prima facie presumption in favour of plaintiff that the plaint schedule shop room is a Waqf has not been rebutted by the revision petitioner by bringing forth any supporting materials on record.
20. Reference to Section 40(3) of the Act is also relevant in considering the question as to whether Ext.A7 Register of Waqf could legitimately afford legal evidence to prove that the suit property is a Waqf. It envisages that, where the Waqf Board has reason to believe that any C.R.P.(Waqf) No.49 of 2019 :-17-:
property held by a Trust or a society registered under the Indian Trust Act, 1882 or Societies Registration Act, 1860 or any other Act, is a Waqf property, the Board has sufficient power under law to call upon such institutions to register the property as Waqf under the Act and order registration, after holding necessary enquiry and hearing the affected parties in accordance with law. So far as Ext.A7 Register in the present case is concerned, it could be safely presumed to be a valid document of registration evidencing the suit property as an existing Waqf. When the person administering the affairs of plaintiff, voluntarily applied for registering the properties as Waqf and the Board not having come across anyone asserting rival claim or interest in the property opposing the registration, could only have naturally registered the plaint schedule and other properties as Waqf. The revision petitioner could never be regarded as a person affected by the registration, since he never claimed that plaintiff was a Trust. Nor did he ever have a case that the C.R.P.(Waqf) No.49 of 2019 :-18-:
Board and plaintiff colluded for any reason to defeat his right to statutory tenancy in the shop room. In this connection, observations made by Shri.S.A.Kader, former Judge of the High Court of Madras in his book titled as, 'The law of Wakfs', second edition appears to be worthy of reference. While adverting to the legal impact of incorporating Section 40(3) and (4) in the Act, learned author, has expressed his view as follows:
"The Provisions of sub-sections (3) and (4) were first inserted in the Wakf Act, 1954 by the Amendment Act 69 of 1984, but were not given effect to. They have come into force under the present Act. There are several Muslim Charitable institutions like ethimkhanas or orphanages for Muslim boys and girls run by societies registered under the Societies Registration Act, which have escaped registration under the Wakf Act on an erroneous view of law. These institutions are per se wakfs within the meaning of the Wakf Act and their properties are wakf properties. These new provisions are intended to rectify the legal misconception and to bring within the scope of the Wakf Act all these institutions. The Wakf Boards are expected to invoke the provisions of sub-sections (3) and (4) and bring these insti-tutions under their supervisory jurisdiction in order to ensure that they are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs are created or intended."
[emphasis supplied]
21. The learned author has put forward a very broad C.R.P.(Waqf) No.49 of 2019 :-19-:
view that a property owned by a Yatheem Khana/orphanage for pious and charitable purposes is under all circumstances a Waqf, no matter the institution happens to be a registered Trust. We are of the view that once the Board in exercise of powers under the Act registers a property held by a Wakif or Trust as Waqf, at the request of the person managing the property, it becomes a Waqf and the Register of the Waqf so prepared would afford sufficient proof of character of Waqf, unless the affected person establishes to the contrary in the same or separate proceeding that the registration was obtained prejudicing the interests of such person by means of fraud or collusion.
22. In the present case, the Tribunal on proper appreciation of facts and evidence rightly came to a conclusion that the suit property is a Waqf and therefore the petitioner is not entitled to protection under the Rent Act as a statutory tenant. The finding of the Tribunal ordering eviction as well as granting arrears of rent does not suffer C.R.P.(Waqf) No.49 of 2019 :-20-:
from any illegality or impropriety and therefore does not call for our interference.
23. Also, the finding of the Tribunal rejecting the contention of the petitioner that the Waqf Tribunal has no power to entertain the suit since Section 85 of the Act does not admit a suit for eviction and arrears of rent within the scope, scheme and ambit of the Act, is unworthy of interference. Section 85 provides that no suit or other legal proceedings shall lie in any civil court or other authorities in respect of any dispute, question or other matter relating to Waqf or Waqf property or other matter which is required by or under the Act to be determined by a Tribunal. Relying on Section 85, it was argued by the learned counsel for the petitioner that, since the Act does not provide for reliefs to the lessor of a property for eviction of a tenant and recovery of arrears of rent, the Waqf Tribunal has no jurisdiction over the subject matter of the suit and the appropriate forum for seeking the said reliefs is an ordinary civil court as held by C.R.P.(Waqf) No.49 of 2019 :-21-:
Honourable Supreme Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf [(2010) 8 SCC 726] which was followed in a later Bench decision of the Honourable Supreme Court in Punjab Wakf Board v. Sham Singh Harike [(2019) 4 SCC 698].
24. According to us, these decisions have no relevance to the facts on hand nor do they debar institution of suits for eviction and arrears of rent before the Tribunal, after the Act No.27 of 2013, amending the Waqf Act, 1995, came into force with effect from 01.11.2013. Section 83 of the Act as it stood previously before the aforesaid amendment did not provide for determination of disputes as between lessor and lessee and for eviction of a tenant or recovery of arrears of rent. After the amendment, it is specifically provided that the Waqf Tribunal has jurisdiction to entertain legal proceedings for eviction of a tenant or determination of rights and obligations of lessor and lessee of Waqf property. C.R.P.(Waqf) No.49 of 2019
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25. The present suit was instituted on 11.6.2014 before the Munsiff's Court, Kozhikode, after the amending Act No.27/2013 came into force. Subsequently, following the finding of the Munsiff's court that the civil court has no jurisdiction to entertain the suit in the matter, it was returned and presented before the Waqf Tribunal as O.S.No.702/2014. After formation of the new Tribunal, the suit was renumbered as O.S.No.77/2019. Thus, we find that the decisions of the Honourable Supreme Court cited by the learned counsel for the petitioner do not lay down any law ousting the jurisdiction of the Waqf Tribunal to entertain the present suit.
26. On going through the impugned judgment of the Waqf Tribunal, we could notice that, while arriving at a finding that the Waqf Tribunal has jurisdiction, it relied on Rules 23 and 24 of the Waqf Properties Lease Rules, 2014, to hold that the suit for eviction and arrears of rent are matters provided by the scheme of the Act and Rules. Rule 23 C.R.P.(Waqf) No.49 of 2019 :-23-:
provides for determination of the liability of the tenant who defaults payment of the agreed rent, while Rule 24 provides for adjudication of liability of a tenant for surrender of the tenanted premises on termination of lease. Rule 24(2) provides as hereunder;
"24(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 prcedure specified in Section 54 of the Act."
Looking at Section 54(4) of the Act, it could be seen that the exercise of power of the Tribunal to order eviction of Waqf property in the occupation of the tenant could arise only on the motion of the Chief Executive Officer of the Board, who is to, first of all, satisfy himself that the person liable for eviction from the tenanted premises is an encroacher. Under Section 3(ee) of the Waqf Act, a tenant who continues to occupy the tenanted premises after termination of tenancy is also an 'encroacher'. Therefore, it may prima facie appear that jurisdiction of Waqf Tribunal to entertain a suit for eviction could accrue only on the application of the Chief C.R.P.(Waqf) No.49 of 2019 :-24-:
Executive Officer of the Waqf Board. If this is accepted as the correct position of law, the present suit for eviction brought at the instance of the Mutawalli of Kinasseri Yatheem Khana cannot be said to be instituted in accordance with the provisions under Section 85 of the Act.
27. But we are of the opinion that neither the Wakf Act nor the Rules 2014, prohibit a Mutawalli from suing for eviction and arrears of rent, since none of the provisions aforesaid either expressly or impliedly debars the Mutawalli of a Waqf from approaching the Waqf Tribunal with a civil suit seeking the aforesaid reliefs. Section 54(4) read with Rules 23 and 24 of Waqf Properties Lease Rules, 2014, only provides for one of the legal modes of eviction of tenant from the premises and recovery of arrears of rent through the Chief Executive Officer. Existence of such an alternative mode of legal proceeding prescribed by the Act and the Rules is no legal bar to a Mutawalli of a Waqf bringing a suit for eviction and arrears of rent by himself before the C.R.P.(Waqf) No.49 of 2019 :-25-:
Tribunal. Right of a lessor under Transfer of Property Act, 1882 to sue for eviction of tenant with arrears of rent is neither impaired nor abrogated by the scheme of the Waqf Act. Mutawalli being a person who creates lease and entitled to receive the rent, is in the position of a lessor, having regard to the provisions of Transfer of Property Act. The right of a lessor to sue for eviction and arrears of rent under the general law is indefeasible and is honoured and preserved by Sections 83 and 85 of the Act. Therefore, we hold that the Waqf Tribunal has rightly entertained the present suit for eviction and arrears of rent filed by the Mutawalli representing the plaintiff.
28. In view of the foregoing discussion, we are fully satisfied that the decree passed by the Waqf Tribunal for eviction and arrears of rent is perfectly in order and it does not suffer from illegality or impropriety. There is absolutely no reason for us to interfere with the impugned decree and therefore we confirm the same.
C.R.P.(Waqf) No.49 of 2019
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In the result, the revision petition fails and it is dismissed. No costs.
All pending interlocutory applications are closed.
Sd/-
C.K.ABDUL REHIM JUDGE Sd/-
T.V.ANILKUMAR JUDGE ami/DST