Kerala High Court
Athar Jama-Ath Palli Committe vs Kerala State Wakf Board on 29 January, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:8274
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRP(WAKF) NO. 53 OF 2022
AGAINST THE JUDGMENT DATED 03.08.2022 IN WOS NO.475
OF 2019 OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/PLAINTIFFS:
1 ATHAR JAMA-ATH PALLI COMMITTE, METTUPALAYAM
STREET, PALAKKAD
REPRESENTED BY ITS
(1) MUTHAVALLI,
MR. SYED SAIFUDEEN, AGED 59 YEARS,
S/O. G. AMEER PULAVAR, BUSINESS,
METTUPALAYAM STREET, PALAKKAD, PIN - 678001
2 SECRETARY, MR. MOHAMMED SALIM,
AGED 55 YEARS, S/O. MOHAMMED ISMAIL,
METTUPALAYAM STREET, PALAKKAD, PIN - 678001
BY ADVS. AISAKHI V.
BABU KARUKAPADATH
M.A.VAHEEDA BABU
P.U.VINOD KUMAR
ARYA RAGHUNATH
T.M.MUHAMMED MUSTHAQ
AJWIN P LALSON
KARUKAPADATH WAZIM BABU
P.LAKSHMI
AYSHA E.M.
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CRP(WAKF) NO. 53 OF 2022
2
RESPONDENTS:
1 KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
V. I.P. ROAD, KALOOR, PIN - 682017
2 JANAKI,AGED 72 YEARS,
W/O. LATE K. V. KARUNAKARAN, KATTUPARAMBIL
HOUSE, ALAMARAM, KANJIKKODE P. O., PALAKKAD, PIN
- 678621
3 K. K. BIJU, AGED 53 YEARS,
S/O. LATE K. V. KARUNAKARAN, KATTUPARAMBIL
HOUSE, ALAMARAM, KANJIKKODE P. O.,
PALAKKAD, PIN - 678621
4 K. K. RENUKA, AGED 50 YEARS,
D/O. LATE K. V. KARUNAKARAN,
KATTUPARAMBIL HOUSE, ALAMARAM,
KANJIKKODE P. O.,
PALAKKAD, PIN - 678621
5 K. K. REKHA,
AGED 46 YEARS
D/O. LATE K. V. KARUNAKARAN,
KATTUPARAMBIL HOUSE, ALAMARAM,
KANJIKKODE P. O.,
PALAKKAD, PIN - 678621
6 K. K. RADHIKA, AGED 42 YEARS, D/O. LATE K. V.
KARUNAKARAN, KATTUPARAMBIL HOUSE, ALAMARAM,
KANJIKKODE P. O., PALAKKAD, PIN - 678621
BY ADVS. JAMSHEED HAFIZ
K.MOHANAKANNAN
D.S.THUSHARA
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
29.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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CRP(WAKF) NO. 53 OF 2022
3
ORDER
AMIT RAWAL, J.
1. Present revision petition has been filed by the plaintiffs against the judgment dated 03.08.2022 in W.O.S.No.472/2019, seeking the eviction and vacant possession of the plaint schedule property. The aforementioned suit has been dismissed by the Tribunal, noting that the Mutawalli has no interest.
2. Learned counsel appearing on behalf of the petitioners relied upon the Full Bench judgment of this Court in Nambidi Prakasan v. Daruthaqva Islamic Cultural Centre represented by its Secretary and others (2022 (4) KHC 307) to contend that Mutavalli has a remedy to seek eviction of the unauthorized occupants by requesting the Chief Executive Officer for initiating proceedings under Section 54 of the Wakf Act, 1995. Paragraph 51 and 52 of the judgment reads thus:
2025:KER:8274 CRP(WAKF) NO. 53 OF 2022 4 "51. There is no apparent conflict or conflict for that matter between the aforesaid three judgments. The first two decisions, namely, Hamza Hajee (Supra) and Jamal (Supra) only dealt with the question as to who could initiate proceedings under sub-section (1) of S.54 for removal of encroachment on wakf property. In both the cases it has been held that it is only the CEO and none other who can initiate proceedings for removal of encroachment under sub-section (1) of S.54 and that the CEO has no power to delegate the said power to any other person or other officer of the Board. As answered by us in the first reference order, before the amendment of S.54, the CEO under sub-section (3) of S.54 could order removal of encroachment after complying with the procedure contemplated under sub-sections (1), (2) and (3). Before the amendment of S.83, in the light of the dictum of the Hon'ble Supreme Court in Ramesh Gobindram (Supra), a suit for eviction of a tenant could not be filed before the Tribunal under sub-section (1) of S.83. The remedies available under S.54 and S.83 of the Act are completely different and before two different authorities, that is, the former is an application before the CEO and the latter a suit before the Tribunal. Pursuant to the amendment of the year 2013, the position has changed and now the CEO is no longer empowered to order removal of encroachment. On the other hand, he will have to move the Tribunal for removal of any encroachment from wakf property or for eviction of a tenant, lessee etc. if he is satisfied of the encroachment or of the unauthorized occupation of a wakf property.
52. In Mechery Vijayakumar (Supra), a 2025:KER:8274 CRP(WAKF) NO. 53 OF 2022 5 completely different issue has been considered. In the said case, the authority or competence of a mutawalli to file a suit for eviction before the Tribunal under S.83(1) was challenged. It needs to be noticed that all the three judgments have been rendered after the amendment of the Act in the year 2013.
The Hon'ble Supreme Court in Ramesh Gobindram (Supra) and in the subsequent decision considered the pre amendment scenario and held that only matters which require to be decided by the Tribunal as per the Act could be adjudicated by the Tribunal and that the jurisdiction of the Civil Court under S.85 is not barred in other cases or disputes. A suit for eviction of a tenant or lessee, as per the said dictum, is not a matter that required to be adjudicated under the Act by the Tribunal and hence the Supreme Court held that such a suit could be filed only before the Civil Court. The Apex Court in Ramesh Gobindram (Supra) never had the occasion to consider the amended S.83. The Division Bench has only held that two remedies are available under the Act, that is, one under S.54(4) and the other under S.83(1). The one under S.54 can be initiated by the CEO by issuing a notice to the encroacher and if the former is satisfied after considering the objections if any filed by the latter, that there has been an encroachment into the wakf property, then he can move the Tribunal for necessary orders. The second remedy under S.83(1) can be resorted to by the mutawalli, in case he is the lessor of the wakf property by moving the Tribunal directly by filing a suit for eviction. The dictum in no way is in conflict with the dictum in Hamza Hajee or Jamal (Supra)."
2025:KER:8274 CRP(WAKF) NO. 53 OF 2022 6 In this view of the matter, the findings of the Tribunal are set aside. Revision Petition stands allowed.
The proceedings initiated will continue in accordance with law.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE msp