Kerala High Court
C.A.Aboobacker vs The Kerala State Waqf Board on 29 January, 2020
Equivalent citations: AIR 2021 (NOC) 70 (KER.), AIRONLINE 2020 KER 146
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
WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941
WP(C).No.24133 OF 2019(N)
PETITIONER:
C.A.ABOOBACKER
AGED 61 YEARS, S/O. MAMMEDKOYA,
RESIDING AT YAHIYA NIVAS,
PUTHIYAPALAM, KOZHIKODE.
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
SMT.RESMI NANDANAN
RESPONDENTS:
1 THE KERALA STATE WAQF BOARD
REPRESENTED BY CHIEF EXECUTIVE OFFICER,
KALOOR, KOCHI-682 017
2 THE GENERAL SECRETARY,
MUDEERUL MASJID SANGHAM,
SOUTH BEACH ROAD, KOZHIKODE-673 001
3 THE KOZHIKODE CORPORATION,
REPRESENTED BY THE SECRETARY,
CORPORATION BUILDING, BEACH POST, KOZHIKODE-673 032
4 THE PORT OFFICER,
CALICUT BEACH, BEACH ROAD, CALICUT 673 032
R1 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
R2 BY ADV. SRI.K.M.FIROZ
R2 BY ADV. SMT.M.SHAJNA
R3 BY SRI.G.SANTHOSH KUMAR, SC, KOZHIKODE MUNICIPAL
CORPORATION
OTHER PRESENT:
ASGI- SRI. P.VIJAYAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP (C) No.24133/2019 -2-
'C.R.'
C.K. ABDUL REHIM, J.
&
T.V. ANILKUMAR, J.
-------------------------------------------------
W.P (C) No. 24133 OF 2019
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DATED THIS THE 29th DAY OF JANUARY, 2020
JUDGMENT
Abdul Rehim, J:
Exhibit P4 order passed by the Chief Executive Officer (CEO) of the 1st respondent Board is under challenge in this writ petition. Evidently, the impugned order is one passed by the CEO in exercise of power conferred upon him under Section 54 (3) of the Waqf Act, 1995 (hereinafter, 'the Act' for short). The said order was preceded by Ext.P2 notice issued under sub-section (2) of Section 54 of the Act. In Ext.P2, the petitioner was required to show cause as to why action for removal of the alleged encroachment from the property bearing T.S. No.15-2-35, situated at Nagaram Village of Kozhikode Taluk, shall not be initiated. The allegation in the notice is that, the petitioner is unauthorisedly and illegally occupying the above said land, which is a waqf property belonging to the 2nd respondent, which is registered with the 1st respondent Board. By virtue of Ext.P2 notice, the petitioner was given an opportunity to appear and to WP (C) No.24133/2019 -3- produce supporting documents, if any, in an enquiry contemplated under Section 54. In Ext.P3 written statement submitted in reply to Ext.P2 notice, the petitioner specifically contended that, he is not in possession of property comprised in re-sy No.15-2-35. But he is in occupation of land comprised in Re-sy No.15-2-53 (which according to the counsel for the petitioner is a mistake and it is actually 15-2-33). In the statement it is mentioned that the property occupied by him, wherein he had constructed a shed for storing of 'panthal' articles, is not a property owned by the 2 nd respondent waqf; but it is a puramboke land. Therefore he cannot be evicted from the property by invoking powers vested under Section 54 of the Act, is the contention.
2. As evident from Ext.P4, the matter was considered by the CEO on 11-10-2018 and it was posted further to 22-11- 2018. But on 01-11-2018, the CEO had advanced the matter and passed Ext.P4 order, which according to the petitioner, was without notice to him. The CEO reiterated that the property comprised in TS No.15-2-35 of Nagaram Grama Village is a property owned by the 2nd respondent, since the property is included in the waqf deed, Document No.427/1954. Having found that nobody else can claim right of ownership in the said WP (C) No.24133/2019 -4- property, the CEO found that there existed a tenancy relationship between the petitioner and the 2 nd respondent waqf. It is found that the petitioner had failed to prove his right over the property. On the basis of the finding that the petitioner is an 'overstaying tenant' in the property, coming within the scope of 'encroacher' as defined under the Act, it was decided to approach the Waqf Tribunal under sub-section (3) of Section 54 for getting orders of eviction for removing the alleged encroachment.
3. Contention of the petitioner is that, the CEO had failed to consider the objections raised in the statement filed in answer to the show cause notice. No advertence or consideration to the contentions therein is reflected in Ext.P4 order. Further it is contended that, the order was passed behind back of the petitioner, since the matter was advanced suo motu by the CEO, without notice to the petitioner.
4. The Kozhikode Corporation, who is cited as 3 rd respondent in the writ petition, had filed a counter affidavit stating that, the petitioner had conducted an unauthorised construction in the property in question, with respect to which the Corporation had issued a 'stop memo', because the construction was made without obtaining any Building Permit WP (C) No.24133/2019 -5- under the Kerala Municipality Building Rules and without getting permission from the Kerala Coastal Zone Management Authority. It is stated that, a proceedings under Section 406 (1) of the Municipality Act was initiated against him, in which the petitioner was given an opportunity of hearing. It is also mentioned that, as per the 'Adangal Certificate' produced by the petitioner before the Corporation, it is evident that the land belonged to the 'landlord' (may be a thandaper holder - janmy).
5. Both the Standing Counsel appearing for the 1st respondent as well as the learned counsel appearing for the 2 nd respondent, had raised contentions questioning maintainability of the writ petition. They have pointed out that the petitioner will get an opportunity to resist the proceedings of eviction before the Waqf Tribunal, as provided under sub-section (4) of Section 54 of the Act. It is also pointed out that the petitioner can raise all his contentions before the Waqf Tribunal and hence challenge against Ext.P4 is highly premature.
6. By virtue of Section 54 of the Act, the CEO is authorised to initiate a proceedings by issuance of a show cause notice, when he considers either on the basis of a complaint received or otherwise that, there exists an encroachment in any waqf property, against such 'encroacher'. Sub-section (1) of WP (C) No.24133/2019 -6- Section 54 stipulates that, the CEO should cause a notice on the alleged encroacher specifying the particulars of the encroachment and calling upon him to show cause as to why an order requiring him to remove the encroachment should not be made. Sub-section (2) stipulates that, such notice should be served in the manner as prescribed. Sub-section (3) of Section 54 enables the CEO to make an application to the Tribunal seeking an order for eviction for removal of the encroachment and for delivery of possession of the land or building or space to the Muthavally of the waqf, after considering the objections if any received and after conducting an enquiry in such manner as may be prescribed. The procedure to be followed in an enquiry under Section 54 of the Act is stipulated under the Kerala State Waqf Rules, 2019. Sub-rule (2) of Rule 82 therein stipulates that after service of the show cause notice, the CEO shall record the oral evidence of the complainant, encroacher or witnesses if any, and shall follow, if necessary, the procedure laid down in the Code of Civil Procedure, 1908 with respect to appearance of the witnesses, filing of affidavits, production of the documents, examination of witnesses, issue of commission and in passing of interim orders. Sub-rule (6) of Rule 82 further provides that, the CEO, during the enquiry, shall record summary of the evidence WP (C) No.24133/2019 -7- tendered before him, and that the summary of such evidence and any relevant document filed before him, shall form part of the records of the proceedings. Sub-Rule (7) stipulates that, the CEO, after considering the objections received within the period specified in the notice and after conducting enquiry as prescribed, shall record his findings as to whether there has been any encroachment in the waqf property. Almost identical provisions are contained in the erstwhile, the Kerala Waqf Rules, 1996, under Rule 95C thereof, which was applicable at the time when Ext.P4 order was issued.
7. From the provisions enumerated as above, we are of the considered opinion that the satisfaction which need to be arrived by the CEO, contemplated under sub-section (3) of Section 54, should be on the basis of an adjudication to be conducted, which is basically in the nature of a quasi-judicial proceedings. The procedure akin to that of the Code of Civil Procedure, in the matter of consideration of contentions, appreciation of materials and evidence based on the pleadings, affidavits, examination of witnesses etc, has to be followed. Therefore it is clear that, issuance of the show cause notice as well as the arrival of satisfaction with respect to the encroachment, are not empty formalities. But it is a procedure WP (C) No.24133/2019 -8- which is quasi-judicial in nature, which need to be conducted by following all the principles of natural justice and by following proper procedure. Advertence to the contentions raised as objections to the proposal contained in the show cause notice and an adjudication into the merits of those contentions, is required under provisions of the Act and the Rules. The satisfaction which ought to have been arrived should be based on proper reasonings arrived, after conducting proper adjudication.
8. In the case at hand, compliance of the legal requirements as mentioned above is totally lacking. Consideration of the objections raised by the petitioner on its merits is not reflected in the impugned order. So also, lack of proper procedural formalities is explicit on the face of the order itself, especially when it is stated that the matter was advanced from the date to which it was posted for consideration and that no further opportunity was afforded to the petitioner. Under such circumstances, we are of the opinion that the impugned order contained in Ext.P4 cannot withstand the test of legality. We are of the considered opinion that a proper adjudication is required in the matter.
WP (C) No.24133/2019 -9-
9. For the reasons mentioned as above, the writ petition is hereby allowed and Ext.P4 order passed by the CEO of the 1 st respondent Board is hereby quashed. The CEO is directed to conduct fresh adjudication in the matter, based on Ext.P3 objections, after affording reasonable opportunity to the petitioner, the 2nd respondent Waqf, and to the Kozhikode Corporation. A fresh decision shall be taken in the matter, taking into consideration of the relevant provisions mentioned above as well as the observations contained in this judgment. The matter shall be decided at the earliest possible, at any rate, within a period of 3 months from the date of receipt of a copy of this judgment.
Needless to observe that, the decision if any taken in this regard shall be intimated to all concerned, before proceeding with any further steps.
Sd/-
C.K.ABDUL REHIM JUDGE Sd/-
T.V.ANILKUMAR JUDGE AMG WP (C) No.24133/2019 -10- APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT EXTRACT WITH RESPECT TO THE PROPERTY SITUATED IN R.S. NO. 15.2.53 IN NAGARAM VILLAGE OF KOZHIKODE TALUK.
EXHIBIT P2 A TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER INTIMATING A HEARING. EXHIBIT P3 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 14.7.2018 EXHIBIT P4 A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 1.11.2018.
EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 6.8.2019 WITH A COPY TO THE PETITIONER.
EXHIBIT P6 A TRUE COPY OF THE DOCUMENT NO. 427/1954 EXHIBIT P7 A TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT.