Nambidi Prakasan vs Daruthaqva Islamic Cultural Centre on 28 January, 2026

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Kerala High Court

Nambidi Prakasan vs Daruthaqva Islamic Cultural Centre on 28 January, 2026

This civil revision petition filed under Section 83(9) of the Waqf Act, 1995, arises out of the order dated 24.10.2014 of the Wakf Tribunal, Kozhikode, in O.A.No.20 of 2013, which was one filed invoking the provisions under Section 83(2) of the said Act challenging proceedings No.E4-2128/12-1 dated 27.08.2013 of the Chief Executive Officer, Kerala State Wakf Board. Paragraphs 13 and 14 and also the last paragraph of that order read thus;

"13. It can be seen that Sec.54 of the Wakf Act 1995 give ample powers of the chief executive officer to remove encroachment with respect to a wakf property and the term encroachment includes the continuance in occupation by any person of the Wakf property after the authority whether by way of grant or had been determined for any reason whatsoever. In this case the records reveal that respondent No.1 of this OA who is the petitioner before the Chief Executive Officer had produced copy of the tenancy termination notice issued to the respondent therein u/s.106 of 'Transfer of Properties Act. It is clearly mentioned in that order that as far as buildings owned by Wakfs are concerned, the law applicable is Wakf Act 1995 and those buildings are exempted from the purview of (Buildings) Lease and Rent Control Act. In spite of notice of termination of tenancy the respondent had not vacated the premises of the wakf. So the chief Executive officer CRP(WAKF)No.718 of 2014 4 2026:KER:6742 satisfied that the respondent is occupying the building without any backing of law. Such occupation is prohibited under sec.56 of the Wakf Act 1995. Since the 1 st respondent therein is coming under the definitions encroacher as defined under 2(ha) of the Kerala Wakf Board Rules 1996 and held that the chief executive officer of the Board is empowered to deal with matter and basing on Sec.54 of the Wakf Act ordered to remove the encroachment.

14. As far as sec. 54 of the Wakf Act 1995 is concerned it is a special section which, in fact, override the general provisions of Sec.83 of the Act. The argument of the applicant herein that on delivering the decision by the Hon'ble Supreme Court in Ramesh Govindarao cited above the sec.54 of the Wakf Act is redundant will not sustain. This being an order of 1995 Act before coming into force of the amended enactment. Sec.54 is clearly applicable and sub-section 4 of the Section is attracted here and suit alone will sustain in this matter, not an application. But proviso to sub-section is very clear "provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as lessee, licensee or mortgagee by the muthawalli of the wakf or by any other person authorised by him in this behalf. So it is clear that any person aggrieved by the order of the Chief Executive Officer under section 54 can file only a suit before the Tribunal, that too except by the tenant, lessee or the mortgagee. On that ground also this petition filed by the tenant is not maintainable. Though the CRP(WAKF)No.718 of 2014 5 2026:KER:6742 parties were given chance to adduce evidence both sides have not adduced any evidence at all. The points are answered accordingly.

Hence this application is dismissed. Considering the facts and circumstances of the case there is no order as to cost."

2. On 18.12.2014, when this civil revision petition came up for admission, the matter was admitted on file. Urgent notice was ordered to the 1st respondent and the learned Standing Counsel for the Kerala State Wakf Board took notice for respondents 2 and 3. In I.A.No.3167 of 2014, this Court granted an interim order, which reads thus;

"Heard the learned counsel appearing for the petitioner and the learned standing counsel appearing for respondents 2 and 3 on the interim relief prayed for. After hearing the learned counsel appearing for the petitioner and the learned standing counsel appearing for respondents 2 and 3 and on going through the materials presently on record and the decision of the Apex Court in Faseela M. v. Munnerul Islam Madrasa Committee and another [(2014) 16 SCC 38], we are of the opinion that until a final decision is arrived at further proceedings pursuant to the impugned order should be kept in abeyance.

There will accordingly be an interim order staying the enforcement of the order passed by the Chief Executive Officer of the Wakf Board on 27.8.2013 as affirmed by the order passed by the Wakf Tribunal, Kozhikode in O.A.No.20 CRP(WAKF)No.718 of 2014 6 2026:KER:6742 of 2013 for a period of one month."

3. The said interim order, which was extended from time to time, is still in force. By the order dated 19.10.2020, the matter was referred to the Full Bench. Paragraph 14 of that order reads thus;

"14. Another Division Bench of this Court in the decision in P.E.Sarjith v. Misbahul Huda Educational Trust [CRP(WAKF) No. 92 of 2015] considered the question whether prior to the 2013 amendment, a lessee could have been evicted by resorting to an application under Section 54 of the Wakf Act. The Division Bench was considering a case where an application was filed by the landlord before the Chief Executive Officer on the ground that the petitioner before the Court was unauthorizedly occupying a shop room, after the expiry of the license agreement between the parties. The license agreement was terminated and vacant possession was demanded, which was not acceded to by the petitioner before the Court. The CEO conducted a preliminary enquiry, held that the license agreement has been terminated and that the petitioner was liable to be evicted. A direction was issued to the petitioner to remove the encroachment; against which the petitioner approached the Tribunal. The Tribunal held that the law applicable was the law as it stood prior to the 2013 amendment. The Tribunal however, relied on the definition of the term "encroachment" contained in Rule 2(ha) of the Kerala Wakf Rules, 1996, and held that the petitioner was CRP(WAKF)No.718 of 2014 7 2026:KER:6742 liable to be evicted. The petitioner challenged the above order of the Tribunal before this Court. A Division Bench of this Court considered the argument of the counsel for the petitioner that the definition of the term "encroacher"

cannot be relied upon for eviction of a tenant prior to the 2013 amendment. It was contended that in the absence of a definition of the term in the principal Act, the ordinary dictionary meaning has to be adopted. In the alternate, it was also contended that if the amended provision was to be applied, the CEO could not have directed eviction. The Division Bench accepted the contention of the Wakf Board that the definition of the term "encroachment" in Rule 2(ha) of Kerala Wakf Rules, 1996 will take in a person who is continuing in occupation after the termination of the license agreement and held that in the absence of a definition to the term "encroacher" in the Wakf Act prior to 2013, there is no necessity to look into the ordinary dictionary meaning of the term. The judgment was rendered on 04.-3.2015. However, the Division Bench has not considered the effect of the binding decisions of the Hon'ble Supreme Court in Ramesh Gobind Ram [(2010) 8 SCC 726] and Faseela [(2014) 16 SCC 38], wherein the Apex Court has specifically held that the suit for eviction has to be filed before the Civil Court and not before the Tribunal. An exception can be pointed out on the ground that the Hon'ble Supreme Court had not considered the effect of a definition in the Rules while deciding the aforesaid cases. The subsequent decision of the Apex Court in Sham Singh Harike [(2019) 4 SCC CRP(WAKF)No.718 of 2014 8 2026:KER:6742 698] also does not consider a case where a definition is available in the Rules. We are however of the opinion that a definition contained in the Rules cannot override the effect of the statutory provisions contained in the Wakf Act prior to the 2013 amendment. The provisions have been considered by the Hon'ble Supreme Court in its aforesaid decisions and it has been categorically held that a suit for eviction does not come under any of the specific provisions contained in the Wakf Act which require consideration by the Tribunal and hence is maintainable only before the Civil Court. Apart from that, the rule-making power is contained in Section 109 of the Wakf Act. Section 109(xiii) empowers the State Government to make Rules regarding the manner of service of notice issued under sub-section (1) of Section 54 and the manner in which any enquiry is to be made under subsection (3) of that Section. There is nothing in the rule-making power which empowers the State to introduce definitions which are not contained in the principal enactment and thus confer jurisdiction on the Tribunal, which was not intended in the principal Act. With all due respect at our command, we are unable to subscribe to the views expressed by the Division Bench in the judgment in Sarjith (supra). In the light of the binding decisions of the Hon'ble Supreme Court, we are of the opinion that the above said judgment of the Division Bench does not lay down the correct law. Since the above judgment was rendered by a co-equal Bench, we deem it appropriate to refer the matter to a Larger Bench for consideration of the issue. The Registry shall place the CRP(WAKF)No.718 of 2014 9 2026:KER:6742 matter before the Hon'ble the Chief Justice for appropriate orders."

4. The Full Bench has answered the reference as follows, by the order dated 15.06.2022;

"The dictum of the Division Bench in P.E.Sarjith v. Misbahul Huda Educational Trust [C.R.P.(Wakf)No. 92/2015] lays down the correct law and is not rendered against the binding precedent laid down by the Hon'ble Supreme Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 and Faseela M. v. Munnerual Islam Madrassa Committee, 2014 KHC 4405."

5. It is thereafter that this civil revision petition along with connected matter is listed before this Bench.

6. Today, when this matter is taken up for consideration, the learned counsel for the petitioner would submit that the petitioner-tenant has already vacated the premises and therefore the petitioner does not want to prosecute this civil revision petition further.

7. The learned counsel for the 1st respondent Daruthaqva Islamic Cultural Centre, the Wakf registered under the Kerala State Wakf Board would also submit that the petitioner-tenant has already vacated the premises. CRP(WAKF)No.718 of 2014 10 2026:KER:6742

8. In such circumstances, recording the aforesaid submission made by the learned counsel for the petitioner-

tenant, this civil revision petition is dismissed as not pressed.

Consequently, the interim order dated 18.12.2014 in I.A.No.3167 of 2014 will stand vacated.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE nak

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