Kerala High Court
M.M.Shamsudheen vs The Chief Executive Officer
Author: K.M.Joseph
Bench: K.M.Joseph, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
OP (WAKF).No. 6 of 2014 (R)
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AGAINST THE PROCEEDINGS IN W.O.A NO.8/2013 of WAKF TRIBUNAL,
ERNAKULAM
PETITIONER/APPLICANT:
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M.M.SHAMSUDHEEN, AGED 48 YEARS
S/O MEETHIAN, MULAKKAMPILLI HOUSE, CHITTETHUKARA
CSEZ P.O., 682037, KAKKANAD
ERNAKULAM DISTRICT.
BY ADV. SRI.R.RAJESH
RESPONDENTS/RESPONDENTS:
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1. THE CHIEF EXECUTIVE OFFICER,
KERALA STATE WAKF BOARD
V.I.P. ROAD, NEAR INTERNATIONAL STADIUM, KALOOR
KOCHI-17
2. NUSRATHUL ISLAM JAMA-ATH
REPRESENTED BY ITS SECRETARY, CHITTETHUKARA
CSEZ P.O-682037 KAKKANAD, ERNAKULAM DISTRICT.
3. THE KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
V.I.P. ROAD, NEAR INTERNATIONAL STADIUM, KALOOR
KOCHI-17
R2 BY ADV. SRI.P.A.ABDUL JABBAR
R1 to R3 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD
THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 26-03-2014,
ALONG WITH O.P.(WAKF).NO.7 OF 2014 & CONNECTED CASES THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP (WAKF).No. 6 of 2014 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1: TRUE COPY OF THE PETITION SUBMITTED BY THE SECOND
RESPONDENT JAMA-ATH BEFORE THE FIRST RESPONDENT DATED 29.8.12.
EXHIBIT P2: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED
11.10.12.
EXHIBIT P3: TRUE COPY OF THE LAWYER NOTICE DATED 4.12.2012 ISSUED TO
THE PETITIONER FOR AND ON BEHALF OF THE SECOND RESPONDENT JAMA-ATH.
EXHIBIT P4: TRUE COPY OF THE ORDER DATED 27.7.2013 IN ORDER NO.E4-
2061/12(3) OF THE HON'BLE KERALA STATE WAKF BOARD, ERNAKULAM.
EXHIBIT P5: TRUE COPY OF W.O.A NO.8 OF 2013 FILED BY THE PETITIONER
BEFORE THE HON'BLE WAKF TRIBUNAL, ERNAKULAM.
EXHIBIT P6: TRUE COPY OF I.A.NO.386/13 WHICH IS THE STAY PETITION
FILED BY THE PETITIONER BEFORE THE HON'BLE WAKF TRIBUNAL, ERNAKULAM.
EXHIBIT P7: TRUE COPY STAY ORDER DATED 8.11.2013 IN I.A.NO.386/13 IN
W.O.A NO.8 OF 2013 OF THE HON'BLE WAKF TRIBUNAL, ERNAKULAM.
RESPONDENT(S)' EXHIBITS:NIL
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//TRUE COPY//
P.A TO JUDGE
K.M.JOSEPH & A.K.JAYASANKARAN NAMBIAR, JJ.
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O.P.(Wakf).Nos.6, 7, 8, 9, 10, 11, 12, 13 of 2014
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Dated this the 26th day of March, 2014
J U D G M E N T
K.M.JOSEPH, J.
Since a common question arises, all these Original Petitions are being disposed of by this common judgment.
2. The prayer sought in these Original Petitions filed under Article 227 of the Constitution is to direct the Wakf Tribunal, Ernakulam to extend the stay granted in W.O.A.No.12 of 2013 till the constitution of the new Tribunal as contemplated under Section 44(4) of the Wakf (Amendment) Act, 2013.
3. Briefly put, the case of the petitioners can be set out with reference to the facts stated in O.P.(Wakf).No.7 of 2014 which is treated as the leading case. The petitioners case is as follows:
"The petitioner is a tenant and is occupying room bearing no.14/171C of the Thrikkakara Municipality, after executing due lease deed with the second respondent, from 2005 onwards. Subsequently, the 2nd O.P.(Wakf).Nos.6, 7, 8, 9, 10, 11, 12, 13 /014 2 respondent approached the first respondent for evicting the petitioner from the tenanted premises. The petitioner contended that the premise wherein he is in occupation has been leased out to him individually after executing due rental deed. Apart from that the building itself was constructed by using the contributions of the tenants including the petitioner. The rent is being paid regularly without any default and the 2nd respondent is issuing receipts for the same. Even the rent for the period 2013 was also collected by the 2nd respondent from the petitioner. Petitioner also contended that he is ready to pay rent at a reasonably enhanced rate.
Without considering the objections of the petitioner, first respondent passed Order No.E4-2061/12(8) dated 27/7/2013 initiating proceedings under Section 54 of the Wakf Act, for evicting the petitioner from the tenanted premises. In fact the first respondent exceeded his jurisdiction and also observed that in view of section 56 f the Wakf Act, the petitioner is an encroacher.
In the said circumstances the petitioner filed W.O.A No.12 of 2013 before the Hon'ble Wakf Tribunal, Ernakulam, along with W.O.A, petitioner filed I.A.No.398/13 for staying the operation of order bearing No.E4.2061/12 (8) O.P.(Wakf).Nos.6, 7, 8, 9, 10, 11, 12, 13 /014 3 dated 27/7/2013 passed by the first respondent, till the disposal of above application. Initially stay was granted in the matter, notice was issued to the respondents and the case was adjourned to 5/12/2013. On 5/12/2013 the matter was posted to 27.12.2013 without extending the stay. Hence on 16/12/2013 petitioner filed I.A 449/2013 for extension of stay along with advance application and the stay was extended till 27/12/2013. Thereafter case was posted to 27/12/2013 and then to 31/12//2013 and 24/1/2014. Finally it now stands posted to 24/2/2014. The stand taken by the Hon'ble Tribunal is that in view of the Wakf (Amendment Act) 2013 a new bench has to be constituted as per Section 44(4) of the aforesaid Act and that the present Tribunal has no jurisdiction to deal with the matter. In the said circumstances the petitioner submitted that stay may be extended till the constitution of the new Tribunal. The said aspect was not appreciated by the Hon'ble Tribunal. Now the respondents are taking hasty steps to execute the order passed by the first respondent. Hence this O.P (Wakf) for appropriate reliefs."
4. We heard the learned counsel for the parties. O.P.(Wakf).Nos.6, 7, 8, 9, 10, 11, 12, 13 /014 4
5. According to the petitioners, they were tenants and there is no power to order eviction of the petitioners even though the leases had been determined. According to the petitioners they are continuing as tenants at sufferance. No doubt, the learned counsel for the respondents drew our attention to Rule 2(h) (a) of the Wakf Rules to contend that the persons like the petitioners, whose tenancy had been determined, would be liable to be treated as encroachers. The learned counsel for the petitioners would contend that it is only with the amendment of the Wakf Act brought with effect from 01.11.2013 that persons like the petitioners would be brought within the fold of encroachment. He would further submit that the main matter is pending and though stay was granted originally, only because of the amendment of the Wakf Act and as the Tribunal, as per the amendment, is not constituted, the application for extension was not considered.
6. Having regard to the facts and circumstances of the case, we are of the view that these Original Petitions can be disposed of by granting extension of stay for a limited period and, thereafter, leave the petitioners to work out their remedies. O.P.(Wakf).Nos.6, 7, 8, 9, 10, 11, 12, 13 /014 5 Accordingly, we dispose of all these Original Petitions by directing that the stay order granted will continue for a period of six weeks from today and, thereafter, it is for the petitioners to seek interim orders in the appropriate Forum. We make it crystal clear that we have not pronounced on the merits of the matter.
K.M.JOSEPH JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE mns/