Kerala High Court
Karakkuni Puthiyapurayil Hajira vs Kerala State Wakf Board on 29 November, 2016
Author: Anil K. Narendran
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939
WP(C).No. 10107 of 2017 (K)
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PETITIONER(S):
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1. KARAKKUNI PUTHIYAPURAYIL HAJIRA,
D/O.HAMSA, AGED 44 YEARS, AYISHAS ANJUKANDIYIL,
DOOR NO.AL-251, ARAKKAL, AYIKKARA, KANNUR-670 017
2. CHERIYAKONOTH ASHRAF,
S/O.ABDUL KHADER, AGED 56 YEARS, CHERIYAKONOTH,
KOCHIPALLI WARD, KANNUR-3
BY ADV. SRI.T.H.ABDUL AZEEZ
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
V.I.P.ROAD, KALOOR, KOCHI-17
2. ABDUL HAMEED HAJI,
PRESIDENT,
VAZHAKKATHERU MUHIYUDHEEN PALLI PARIPALANA COMMITTEE,
AYIKKARA, KANNUR-3
R2 BY ADV. SRI.K.R.AVINASH (KUNNATH)
R2 BY ADV. SRI.ABDUL RAOOF PALLIPATH
R1 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 10107 of 2017 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1:TRUE COPY OF THE ENQUIRY NOTICE DATED 29.11.2016 RECEIVED
BY THE 1ST PETITIONER.
EXHIBIT P2:TRUE COPY OF THE ORDER DATED 2.2.2017 PASSED BY THE 1ST
RESPONDENT ISSUED TO THE 1ST PETITIONER.
EXHIBIT P3:TRUE COPY OF THE ORDER DATED 2.2.2017 PASSED BY THE 1ST
RESPONDENT ISSUED TO THE 2ND PETITIONER.
EXHIBIT P4:TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE 1ST
PETITIONER BEFORE THE WAKF TRIBUNAL.
EXHIBIT P5:TRUE COPY OF THE MEMORANDUM OF APPEALS FILED BY THE 2ND
RESPONDENT BEFORE THE WAKF TRIBUNAL.
EXHIBIT P6:TRUE COPY OF THE NOTICE OF AUCTION PUBLISHED BY THE 2ND
RESPONDENT.
RESPONDENT(S)' EXHIBITS:NIL
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//TRUE COPY//
P.A TO JUDGE
C.T. RAVIKUMAR
&
ANIL K. NARENDRAN, JJ.
==========================
W.P.(C). No.10107 OF 2017
==========================
Dated this the 23rd day of May, 2017
JUDGMENT
Ravikumar, J.
The petitioners, who are the tenants of the second respondent, preferred this writ petition seeking the following reliefs:-
i. Issue a writ in the nature of declaration in respect of the auction of tenancy right of the buildings in the occupation of the petitioners, pursuant to Ext-P6 notice, is illegal and unsustainable.
ii. To issue a writ of mandamus or any other appropriate writ order or direction, to the respondents directing not to evict the petitioners from the tenanted premises without complying section 54(3) of the Wakf Act, 1995.
2.The first petitioner has taken room bearing Door No.A1-522 on lease from the second respondent on 1.1.2000 on a monthly rent of Rs.400/-. The rent was enhanced from time to time. According to the W.P.(C).10107/2017 2 first petitioner, at present, its rent is Rs.1815/-. The second petitioner took the room bearing Door No.A1-538 on rent from the second respondent on 1.3.1999 on a monthly rent of Rs.250/- and according to the second petitioner, presently, its rent is Rs.1,200/-. When they received notices from the first respondent describing them as encroachers, they filed counter statements before the first respondent. According to the petitioners, without considering the contentions raised in the counter statements, Exts.P2 and P3 orders were passed by the first respondent under section 54 of the Wakf Act, 1995 (for short the 'Act'). In fact, Ext.P2 order was passed against the first petitioner and Ext.P3 order was passed against the second petitioner. Feeling aggrieved by the said orders, they preferred Exts.P4 and P5 appeals respectively before the Wakf Tribunal. Evidently, the appeals were preferred under section 83(2) of the Act. They had also applied for staying the implementation of Exts.P2 and P3 orders. The precise case of the petitioners is that they have not surrendered vacant possession of the said rooms pursuant to Exts.P2 and P3 orders. According to them, in terms of the provisions under section 54(3) of W.P.(C).10107/2017 3 the Act, in such eventuality, the course open to the Chief Executive Officer is to file an application before the Wakf Tribunal seeking an order of eviction of the encroachment. The further contention of the petitioners is that without making such an application in that regard, in terms of section 54(3) of the Act, the second respondent published Ext.P6 notice of auction in respect of the rooms occupied by the petitioners. It is in such circumstances that challenging the auction notice and seeking the aforementioned reliefs the petitioners approached this Court by filing the captioned writ petition.
3. We have heard the learned counsel for the petitioners, the learned standing counsel appearing for the first respondent and also the learned counsel for the second respondent.
4. This Court, as per order dated 11.4.2017, ordered for maintaining status quo with regard to eviction when the matter came up for admission. We have already adverted to the contentions raised by the petitioners. Obviously, the contention of the learned standing counsel is that as against an order passed under section 54 of the Act for eviction by the Chief Executive Officer, no appeal is contemplated W.P.(C).10107/2017 4 under the Act and therefore, the appeals are not maintainable. It is further contended that those appeals could not be maintained even under section 83(2) of the Act in view of the nature of Exts.P2 and P3 orders. The learned counsel for the second respondent also endorsed the said contentions. However, the learned counsel for the petitioners contended that a bare perusal of the provisions under section 83(2) of the Act would reveal fallacy of their contentions as there is nothing in that section to exclude an order passed under section 54 of the Act by the Chief Executive Officer from the purview of section 83(2) of the Act and going by the said provision, any order passed under the Act is appealable thereunder. Since Exts.P2 and P3 orders are passed invoking the power under section 54 of the Act, it is also appealable under section 83(2) of the Act as long as there is no specific exclusion of orders passed under section 54 of the Act from its purview, it is further contended. Indisputably, the appeals preferred are now pending before the Wakf Tribunal, Kozhikode as O.A.No.66 of 2017 and O.A.No.67 of 2017. It is pending the appeals that the petitioners moved this Court by filing the captioned writ petition carrying the W.P.(C).10107/2017 5 challenge only against the action on the part of the second respondent in issuing auction notice in respect of the rooms in question and the action in proceeding with the auction proceedings during the pendency of the aforesaid appeals. Taking note of the rival contentions and also the provisions under sections 54 and 83(2) of the Act, we are of the view that this writ petition can be disposed of without going into the merits of the contentions. We are also of the view that since there is a dispute regarding the very maintainability of such appeals preferred by the petitioners, it is only proper for us to direct the Tribunal itself to consider that issue as a preliminary question, if such a question is pointedly raised before the Tribunal by any one of the parties. In case such a question is raised, then, that shall be considered as a preliminary question and subject to its outcome, the appeals shall be considered expeditiously. In view of the pendency of the aforesaid appeals and also of the admitted position that hitherto, the Chief Executive Officer had not approached the Wakf Tribunal by filing petitions under section 54(3) of the Act for removal of encroachment, it is ordered that till an order is passed by W.P.(C).10107/2017 6 the Tribunal on the application for staying the operation of Exts.P2 and P3 orders, the petitioners shall be permitted to continue in possession of the rooms in question. It is further ordered that in case there is arrears of rent in respect of the rooms in question, the petitioner concerned shall deposit the arrears before the Tribunal. It will only be proper for the Tribunal to dispose of the appeals as expeditiously as possible at any rate, in terms of the aforesaid directions, within a period of three months from the date of receipt of a copy of this judgment.
Writ petition is disposed of as above.
Sd/-
C.T. RAVIKUMAR (JUDGE) Sd/-
ANIL K. NARENDRAN
(JUDGE)
spc/
W.P.(C).10107/2017 7
C.T. RAVIKUMAR, J.
W.P.(C).10107/2017 8
JUDGMENT
September,2010