Kerala High Court
Balussery Mahal Muslim Jama Ath ... vs O T Hameed on 21 August, 2024
Author: Amit Rawal
Bench: Amit Rawal
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 21ST DAY OF AUGUST 2024 / 30TH SRAVANA, 1946
CRP(WAKF) NO. 32 OF 2020
AGAINST THE JUDGMENT IN WOS NO.138 OF 2019 OF WAKF
TRIBUNAL, KOZHIKODE
REVISION PETITIONER/S:
C. BASHEER,
AGED 62 YEARS
S/O.T.K.ABDULLA, PROPRIETOR, SHOLA SILKS, BALUSSERY
AMSOM DESOM, P.O. BALUSSERY, KOYILANDY TALUK,
KOZHIKODE DISTRICT, PIN-673 612
BY ADVS.
C.VATHSALAN
GHOSH YOHANNAN
K.RAKESH ROSHAN
THUSHARA.V
RESPONDENT/S:
1 BALUSSERY MAHAL MUSLIM JAMA-ATH COMMITTEE,
REP.BY ITS SECRETARY, P.ABOOBACKER, S/O.AHAMMED
KUTTY HAJI, AGED 59 YEARS, NANMANDA AMSOM DESOM,
P.O. NANMANDA, KOZHIKODE TALUK, KOZHIKODE DISTRICT,
PIN-673 613
2 P.ABOOBACKER,
S/O.AHAMMED HAJI, AGED 59 YEARS, SECRETARY,
BALUSSERY MAHAL MUSLIM-JAMA-ATH, COMMITTEE, NANMANDA
AMSOM DESOM, P.O. NANMANDA, KOZHIKODE TALUK,
KOZHIKODE DISTRICT, PIN-673 613
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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3 KERALA STATE WAQF BOARD,
REP.BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD,
KALOOR, KOCHI, PIN.682 017
4 P.ABDUL RAHIM,
AGED 70 YEARS
S/O.MAMMU HAJI, KALLAMKANDY HOUSE, BALUSSERY AMSOM
DESOM, P.O. BALUSSERY, KOYILANDY TALUK, KOZHIKODE
DISTRICT, PIN 673 612
BY ADVS.
T.K.SAIDALIKUTTY(KUTTIPPURAM)
K.SEENA
OTHER PRESENT:
SRI JAMSHEED HAFIZ SC WAQF
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
21.08.2024, ALONG WITH CRP(WAKF).7/2024, 8/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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2024:KER:67514
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 21ST DAY OF AUGUST 2024 / 30TH SRAVANA, 1946
CRP(WAKF) NO. 7 OF 2024
AGAINST THE JUDGMENT DATED 20.09.2023 IN WOS NO.139 OF
2019 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER(S)/PLAINTIFFS:
1 BALUSSERY MAHAL MUSLIM JAMA ATH COMMITTEE
REPRESENTED BY ITS SECRETARY ABDUL JALEEL
AGED 53 YEARS
S/O. AHAMMED KUTTY, MANNAN KANDY, VATTOLI BAZAR P.O,
PANAGAD AMSOM DESOM, THAMARASSERY TALUK, KOZHIKODE
DISTRCIT., PIN - 673612
2 ABDUL JALEEL
AGED 53 YEARS
S/O. AHAMMED KUTTY, MANNAN KANDY, VATTOLI BAZAR P.O,
PANAGAD AMSOM DESOM, THAMARASSERY TALUK, KOZHIKODE
DISTRCIT, SECRETARY, BALUSSERY MAHAL MUSLIM JAMA ATH
COMMITTEE., PIN - 673612
BY ADVS.
P.A.ABDUL JABBAR
MUHAMMED SHAFFI
SHAHIM BIN AZIZ
EHLAS HALEEMA C.K.
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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RESPONDENT(S)/DEFENDANTS:
1 O T HAMEED
AGED 60 YEARS
S/O. KUTTIYALI, ERINGADI HOUSE, NANMINDA P.O.,
KOZHIKODE TALUK, KOZHIKODE DISTRICT., PIN - 673613
2 THE KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP
ROAD, KALOOR, KOCHI., PIN - 682017
BY ADVS.
THUSHARA.V
C.VATHSALAN(K/42/1972)
K.RAKESH ROSHAN(K/100/2001)
OTHER PRESENT:
SRI JAMSHEED HAFIZ SC WAQF
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
21.08.2024, ALONG WITH CRP(WAKF).32/2020 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 21ST DAY OF AUGUST 2024 / 30TH SRAVANA, 1946
CRP(WAKF) NO. 8 OF 2024
AGAINST THE JUDGMENT DATED 16.11.2023 IN WOS NO.53 OF
2020 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER(S)/PLAINTIFFS:
1 BALUSSERY MAHAL MUSLIM JAMA ATH COMMITTEE
AGED 53 YEARS
REPRESENTED BY ITS SECRETARY, ABDUL JALEEL, AGED 53
YEARS, S/O. AHAMMED KUTTY, MANNAN KANDY, VATTOLI
BAZAR P.O, PANAGAD AMSOM DESOM, THAMARASSERY TALUK,
KOZHIKODE DISTRCIT., PIN - 673612
2 ABDUL JALEEL
AGED 53 YEARS
S/O. AHAMMED KUTTY, MANNAN KANDY, VATTOLI BAZAR P.O,
PANAGAD AMSOM DESOM, THAMARASSERY TALUK, KOZHIKODE
DISTRCIT, PIN 673 612, SECRETARY, BALUSSERY MAHAL
MUSLIM JAMA ATH COMMITTEE., PIN - 673612
3 P ABOOBACKER
AGED 63 YEARS
S/O. AHAMMED KUTTY HAJI, FORMER SECRETARY, BALUSSERY
MAHAL MUSLIM JAMA ATH COMMITTEE, NANMINDA P.O,
NANMINDA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE
DISTRCIT, PIN 673 613., PIN - 673613
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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BY ADVS.
P.A.ABDUL JABBAR
MUHAMMED SHAFFI
SHAHIM BIN AZIZ
EHLAS HALEEMA C.K.
RESPONDENT(S)/DEFENDANTS:
1 C BASHEER
AGED 54 YEARS
S/O. T.K ABDULLA, PROPRIETOR, SHOLA SILKS, P.O
BALUSSERY, BALUSSERY AMSOM DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT, PIN-673 612., PIN - 673612
2 THE KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP
ROAD, KALOOR, KOCHI, PIN – 682017., PIN -
682017
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON
21.08.2024, ALONG WITH CRP(WAKF).32/2020 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAKF) NO. 32 OF 2020 and conctd. Cases
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JUDGMENT
Amit Rawal, J.
1. This order shall dispose of three CRPs ie., CRP (Wakf) No.32 of 2020 preferred against the decree and judgment dated 16.7.2020 in WOS No.138 of 2019 whereby the suit filed by the respondents/plaintiffs for eviction of the petitioner has been allowed. Whereas, CRP (Wakf) Nos. 7 and 8 of 2024 are preferred against the judgment dated 20.9.2023 in W.O.S No.139 of 2019 and judgment dated 16.11.2023 in W.O.S No.53 of 2020 respectively, whereby the suit of the plaintiff committee against the tenants, claiming damages for the unauthorized use and occupation, has been allowed in part by confining the damages to double the rate of rent than the one fixed in the open auction in 2016, as per the original lease deed.
2. Succinctly, the facts in brief are that the petitioner/defendant No.1 in CRP (Wakf) No.32 of 2020 and respondents/defendents in CRP (Wakf) No.8 of 2024 namely Sri. C. Basheer, was inducted as a tenant by the Jama-ath for carrying on the business of textile at the rate of Rs.8500/- per month. The tenant/ petitioner was in arrears of rent for 27 months @ Rs.8500/- per month, from April 2014 till June 2016. Accordingly, the tenancy CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 8 2024:KER:67514 of the aforementioned premises was determined by the Jama-ath.
3. Similarly, respondent in CRP(WAKF) 7 of 2024, Sri. O.T Hameed, is also a tenant on the first floor of the building bearing number VII/1172 @ Rs.1000/- per month and in arrears of rent.
4. It is pertinent to mention here that, as per section 3(ee) of the Waqf Act, the status of the tenant would be of an encroacher whose tenancy, lease or license has expired or has been terminated by mutawalli or the Board and the remedy lies for seeking the eviction is institution of the petition for possession as well as for determination of the damages for unauthorized use and occupation.
5. On determination of the tenancy, there are two options for the tenants, either to participate in the invitation of bids for lease as provided under Rule 6 of the 2014 Rules, fetch a rent more than Rupees three thousand per month. It is a matter of record that both the tenants had participated in the auction held in 2016. Basheer and Hameed had given the highest bid of Rs.75,100/- and Rs.13,600/- respectively.
6. Rule 19 of the Wakf Properties Lease Rules, 2014, provides for execution of the lease deed. Sub Rule 2, according to CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 9 2024:KER:67514 the petitioners in CRP(WAKF) No.32 of 2020 , prescribe that the commencement date of the lease shall mean the date of execution of the lease deed or agreement or the effective date of the lease mentioned in the lease deed or agreement. The defence before the Tribunal was that, in the absence of execution of the lease deed as provided under sub Rule 2 of Rule 19, Waqf / Jama-ath cannot claim the rent @ Rs.75,100/-. At the best, will be liable to pay double the amount of the lease as provided under sub Rule 3 of Rule 12 of 2014 Rules. It was next contended that the rent claimed in WOS No.138 of 2019 was at the rate of Rs.75,100/- per month for the period from 1.7.2016 to 31.8.2017 and for the subsequent period i.e., from 11.9.2017 to 10.9.2020, in WOS No.53 of 2020. The claim @ Rs.75,100/- was not accepted but was confined to double the amount of the rent ie.,(8500*2 = Rs.17000/- for thirty six (36) months and the said order is under challenge in CRP (WAKF) No.8 of 2024 (supra). The order is liable to be sustained on account of non execution of the lease deed provided under sub Rule (2)of Rule
19.
7. On the other hand, Mr. P.A Abdul Jabbar, learned counsel for the respondents in CRP (Wakf) No.32 of 2020 and the petitioners in CRP No.7 and 8 of 2024 defended the order under CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 10 2024:KER:67514 challenge in CRP No.32 of 2020 but assailed the order in CRP Nos. 7 and 8 of 2024, on the premise that there was no laxity on the part of Jama-ath in not executing the lease deed whereas it was the petitioner/tenant who failed to execute the lease deed or obtainment of the registration thereof. Further contended that in case the order under challenge, fixing the damages by doubling the rate of rent as per the provisions of sub Rule 3 of Rule 12, is upheld, surely it would be setting a precedent, bad in law. Attention of this Court was also drawn to the contents of I.A No.1 of 2021 dated 25.2.2021, seeking the indulgence of this Court for taking into consideration, the factum of surrendering the premises in 2022 and induction of Basheer, tenant at a highest rate of rent at Rs.75,100/-. Tenant cannot be permitted to go scot-free by taking the plea of Rule 19 of 2014 Rules.
8. Mr. Jamsheed, learned counsel on behalf of the Waqf Board submitted that the provisions of sub Rule 2 of Rule 19 cannot be pressed into service, as, on plain and simple reading of the aforementioned provisions, it has been incorporated by the legislature for the purpose of interpretation, whenever there is a dispute with regard to the date of determination.
9. We have heard the learned counsel for the parties CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 11 2024:KER:67514 and appraised the paper book. Rule 12 and 19 of Wakf Properties Lease Rules, 2014 reads as under:
12. Payment and recovery of lease rent.- (1) All amounts payable by the lessee to the lessor pursuant to the lease of waqf property shall be deemed to be lease rent and be recoverable as lease rent by the lessor who shall have all rights against the lessee for default in any payment thereof.
(2) Lease rent shall be paid to the lessor without deduction or set-off, at the address of the lessor or to such other person or at such other address, as the lessor may from time to time, designate in writing.
(3) If the lessee continues to occupy the premises after the expiration or earlier termination of the lease, the lessee shall, subject to final orders passed in any proceedings, [pay double] lease rent for the period of such unauthorized occupation.
19. Purpose and period of lease.-(1) The Board may give on lease any immovable waqf property, built-up spaces or vacant land for the purposes and for the period relating thereto as under, namely- (i) for shops, cold storages, marriage halls or small industries, lease shall be granted for a period of up to ten years;
(ii) for establishing or running of shopping malls, residential buildings, hotels, restaurants or Inns, lease shall be granted for a period of up to thirty years;
(iii) for establishing or running educational institutions like schools, colleges, universities, hospitals, dispensaries, madarasas or maktabs, lease shall be granted for a period of up to thirty years;
(iv) for agricultural purposes, the lease shall be granted for a period up to three years.
(2) The commencement date of the lease shall mean the date of execution of lease deed or agreement or the effective date of lease mentioned in the lease deed or agreement.
10. Sub Rule 3 of Rule 12 prescribes that in case, the tenant who is in unauthorized occupation of the premises, continue to retain the possession of the premises, despite having been CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 12 2024:KER:67514 ordered to be evicted, is liable to pay double the amount of rent. Concededly, Basheer, the tenant, as per the submissions of the counsel for the petitioner in CRP (WAKF) 8 of 2024, had been in arrears of rent for twenty seven (27) months ie., from April 2014 to June 2016 @ Rs.8,500/-. Since the tenancy was year to year and in the absence of any renewal, his possession was treated to be unauthorized as per Section 3(ee) of the Act. The same reads as under:
3(ee) "encroacher" means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board.
11. In that circumstance, the portion of the order under challenge in CRP (Waqf) 32 of 2020, by fastening the liability to pay double the amount of the rent ie., Rs.8500/- into Rs.17,000/- for the period aforementioned, was delivered.
12. Coming to the remaining period, the auction was held in 2016. Petitioner in CRP(WAKF) No. 32 of 2020, Basheer and the respondent in CRP (Waqf) 7 of 2024, Hameed, had concededly given the highest bid of Rs.75,100/- and Rs.13,600/- in respect of the tenanted premises in which they were inducted way back in 2013 on year to year basis. Tenant cannot be permitted to CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 13 2024:KER:67514 approbate and reprobate in the same breath ie., by giving the highest bid and then later on, volte face to take the aid and shelter of sub Rule 2 of Rule 19 by thwarting the liability in the absence of execution of the lease deed. Such a contention and interpretation, in our considered view, cannot come to rescue the petitioner, for, on plain and simple reading of the aforementioned provisions, it is evident that when there is a dispute with regard to the tenancy or its rate, it is for that purpose the aforementioned provisions have been incorporated. No plausible explanation has come forth as to why and under what circumstances, Sri.Basheer as well as Sri. Hameed, tenants failed to come forward for execution of the lease deed and as to why both the tenants continued to retain the possession of the rented premises for a period of almost four (4) years upto 2020 ie., the date of the surrender.
13. Tribunal had also been adopting a dichotomous approach, as far as the order under challenge contained in the judgment and decree dated 16.7.2020 in W.O.S No.138 of 2019 by determining the damages at the rate of Rs.75,000/- for a period of one year ie, upto 2017 but for the remaining period, reduced to double the amount as per the provisions of sub Rule 3 of Rule 12 of the 2014 Rules. We are of the view that the findings of the Tribunal CRP(WAKF) NO. 32 OF 2020 and conctd. Cases 14 2024:KER:67514 in the judgment and decree dated 16.11.2020 in WOS No.53 of 2020 in Basheer's matter as well as WOS No.138 of 2019 resulting into a judgment dated 20.9.2023 do not suffice the requirement of law as well as the logic ,for the reason that the tenant cannot be permitted to volte face and refused to pay the rent arrears by giving the highest bid in the open auction.
14. For the reason aforementioned, CRP(Waqf) No.32 of 2020 is dismissed. CRP (Waqf) Nos. 7 and 8 of 2024 are allowed. The tenants are directed to pay the amount of rent ie., Basheer @ Rs. 75,100/- and Hameed @ Rs.13,600/-.
Sd/-
AMIT RAWAL JUDGE Sd/-
sab EASWARAN S.
JUDGE