Kerala High Court
Hindustan Petroleum Corporation Ltd vs Kerala State Wakf Board on 13 August, 2021
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
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
CRP(WAKF) NO. 412 OF 2012
AGAINST THE ORDER/JUDGMENT IN OA 5/2011 OF WAKF TRIBUNAL,
KOZHIKODE, KOZHIKODE
PETITIONER/S:
HINDUSTAN PETROLEUM CORPORATION LTD.
REPRESENTED BY ITS REGIONAL MANAGER, KOZHIKODE
RETAIL REGION, REGIONAL OFFICE, ELATHUR AMSOM
DESOM, KOZHIKODE TALUK, ELATHUR, KOZHIKODE-673
303.
BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.BENNY THOMAS
SRI.JOSON MANAVALAN
RESPONDENT/S:
1 KERALA STATE WAKF BOARD
REPRESENTED BY THE CHIEF EXECUTIVE OFFICERV.I.P.
ROAD, KALOOR, ERNAKULAM, KOCHI-682 017.
2 MUTHAWALLI PUTHIYA PONMANICHINTHAKAM WAKF
14/228, PUTHIYA PATHAYAPURA, WEST KALLAI ROAD
KALLAI PO, KOZHIKODE - 673 003.
BY ADVS.SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
SRI.E.C.AHAMED FAZIL, K.M.FIROZ, M.SHAJNA
E.C.AHAMED FAZIL
SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD
UMMUL FIDA
SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
13.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
C.R.P.No.412 of 2012 2
CR
ORDER
Ravikumar, J.
This revision petition is filed against the judgment dated 11.11.2011 in O.A.No.5/2011 passed by the Wakf Tribunal, Kozhikode. The petitioner therein is the revision petitioner. It is a Corporation and public sector undertaking carrying on manufacturing, distributing and marketing of petroleum products across the country through its outlets. It filed the aforesaid O.A under Section 83(2) of the Wakf Act against the order in Reference No.F2-02/09 dated 12.11.2010 passed by the Chief Executive Officer of the first respondent Wakf Board, under Section 54 of the Wakf Act. Indisputably, the property occupied by the revision petitioner whereon its outlet situates is Wakf property, registered as such under the Wakf Act. The proceeding which culminated in the order dated 12.11.2010 of the Chief Executive Officer of the Wakf Board under Section 54 of the Wakf Act was initiated based on an information that the property having an extent of 6.67 cents comprised in Survey No.161/9 and Re- survey No.1504 in Ward No.1 of Block No.37 of Kacheri Village in Kozhikode District was leased out for commercial purpose without C.R.P.No.412 of 2012 3 prior permission from the Wakf Board, for a period exceeding three years. Consequently, the Regional Manager, Hindustan Petroleum Corporation, Elathur, the General Manager, H.P.C.L, Chennai and dealer (petrol pump) H.P.C.L, East Nadakkavu, Kozhikode) were called upon to show cause why an order should not be passed against them requiring to remove the encroachment under Section 54 of the Wakf Act. On its receipt, they submitted a statement that the property is being occupied by the revision petitioner and its predecessors from the year 1957 and they had erected a commercial building in the property. Being an occupant of the property even prior to 1957 they are entitled to fixity of tenure, it was contended therein. Furthermore, they pleaded that by virtue of the ESSO (Acquisition of Undertakings in India) Act, 1974 (Central Act 4 of 1974), all the rights under such lease or tenancy should be deemed to have been transferred and vested in the Central Government with a right of renewal and by notification No.G.S.R. 320E the name of its predecessor viz., ESSO Standard Refining Company of India Ltd. stood changed as Hindustan Petroleum Corporation Ltd. That apart, it was contended therein that though on 20.8.1987 an C.R.P.No.412 of 2012 4 agreement was executed between the 2nd respondent, Muthawalli Puthiya Ponmanichintakam Wakf and the revision petitioner the possession of the property by the predecessor in interest was continued uninterruptedly. In short, they took up the contention that the revision petitioner Corporation is not liable to be evicted under the Wakf Act. As per order dated 12.11.2010 the Chief Executive Officer of the first respondent held that the Wakf Act is a special enactment for the better management of the Wakfs in the country and it assigned certain restrictions on the powers of the Muthawalli in the interest of better management of the Wakfs. Section 56 of the Wakf Act was incorporated in that regard and it stipulates that the Muthavalli of a Wakf is not entitled to execute a lease deed exceeding one year and the lease of the property exceeding the period of one year and not beyond three years could be created only with the approval of the Wakf Board. It was held that even the Wakf Board got no power to execute a lease deed exceeding three years. On perusal of the records maintained by the Wakf Board the Chief Executive Officer found that the Wakf in question was registered with the Kerala State Wakf Board and it was assigned number as 6788/RA. The lease C.R.P.No.412 of 2012 5 agreement in question revealed that the agreement itself was executed for a period of 10 years. Since such an agreement is against the law and therefore not maintainable in the eye of law it was held that the revision petitioner can be considered only as an encroacher. Going by the definition of 'encroachment' under Rule 2(ha) of the Kerala Wakf Rules it includes continuance in occupation by any person of any Wakf premises after the authority whether by way of grant or has been determined for any reason whatsoever and includes any construction, alienation or addition carried out to the building without the authority. It was also held that the Wakf Act is specially created for the maintenance of the Wakf and hence the Wakf Act overrides effect over the other enactments with respect the matters of the Wakf. The revision petitioner was therefore found not entitled to fixity of tenure with respect to the property in dispute. Consequently, with such findings the Chief Executive Officer passed the order dated 12.11.2010, to remove the encroachment in the above said property and hand over possession of the encroached property to the Muthawalli of the Wakf, the 2nd respondent and to report the C.R.P.No.412 of 2012 6 matter before the Wakf Board. It was further ordered thereunder thus:-
"If the respondent (revision petitioner herein) omits or fails to remove the encroachement and hand over possession of the property on or before 15.02.11, the matter will be referred to the Sub Divisional Magistrate for removing the respondent from the Wakf property with the police assistance, if necessary, as provided under section 55 of the Wakf Act."
It is the said order that was impugned by the revision petitioner herein before the Wakf Tribunal which culminated in the impugned judgment. As per the impugned judgment, the Wakf Tribunal, taking note of the provisions under the Wakf Act and the Rules found that the Muthawalli of a Wakf got no right to transfer any immovable property of a Wakf by way of lease for a period exceeding three years in case of agricultural land and for a period of one year in case of a non-agricultural land or building without the sanction of the Wakf Board. Consequent to the finding that the Muthavalli got no right to execute a lease for a period of 10 years with respect to a Wakf property the lease agreement executed by the 2nd respondent Muthawalli in favour of the revision petitioner company was held as void. The occupation of the revision petitioner was held in terms of the definition of encroachment under Rule 2(ha) of the Kerala Wakf Rules, 1996 as an encroachment. In C.R.P.No.412 of 2012 7 short, the order dated 12.11.2010 was held as one passed in proper exercise of the jurisdiction under Section 54 of the Wakf Act. Consequently, the OA was dismissed as being devoid of any merit. It is in the said circumstances that the revision petitioner filed the captioned revision petition.
2. Heard the learned counsel for the petitioner and also the learned counsel for the 2nd respondent.
3. The learned counsel for the petitioner challenged the vires of clause (ha) of sub-rule (1) of Rule 2 of the Kerala Wakf Rules, 1996 and contended that such a challenge can be raised before the Wakf Tribunal in a petition filed under sub-section (2) of Section 83 of the Wakf Act, 1995 and before this Court in a civil revision petition filed under the proviso to sub-section (9) of Section 83 of the said Act. In support of the said contention, the learned counsel for the petitioner would rely on the decision of the Bombay High Court in Tan Bug Train and others v. Collector of Bombay [AIR 1946 Bombay 216] and also the judgment of the House of Lords in Boddington v. British Transport Police [1988 (2) All ER 203]. The learned counsel contended further that the petitioner is a tenant enjoying protection against eviction under Section 106 of the Kerala Land Reforms Act, 1963 and as such, not liable to be evicted under any circumstances. C.R.P.No.412 of 2012 8
4. Per contra, the learned counsel for the 2 nd respondent contended that the vires of clause (ha) of sub-rule (1) of Rule 2 of the Kerala Wakf Rules, 1996 cannot be challenged before the Wakf Tribunal in a petition filed under sub-section (2) of Section 83 of the Wakf Act, 1995 or before this Court in a civil revision petition filed under the proviso to sub-section (9) of Section 83 of the said Act. The learned counsel would place reliance on the judgment of the Apex Court in Union of India v. S.K. Saigal [(2007) 14 SCC 556]. The learned counsel contended further that, since the petitioner is holding the property on the strength of a lease deed executed on 20.08.1987, for a period of 10 years commencing from 01.06.1982, the special provisions under Section 106 of the Kerala Land Reforms Act have no application.
5. The Parliament enacted the Wakf Act, 1995, to provide for the better administration of wakfs and for matters connected therewith or incidental thereto. By Section 3 of the Wakf (Amendment) Act, 2013, clause (ee) was inserted to Section 3 of the principal Act, with effect from 01.11.2013, vide Notification No.S.O.3292(E) dated 29.10.2013. Clause (ee) to Section 3 defines the term "encroacher" to mean 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.
C.R.P.No.412 of 2012 9
6. Section 109 of the Act deals with power to make rules. As per sub-section (1) of Section 109, the State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act, other than those of Chapter III [which deals with Central Wakf Council]. As per sub-section (2) of Section 109, in particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters enumerated in clauses (i) to (xxv) thereof.
7. In exercise of the powers conferred by Section 109 of the Act, the Government of Kerala made the Kerala Wakf Rules, 1996. Even before the Wakf Act, 1995 was amended by the Amendment Act of 2013, clause (ha) was inserted to sub-rule (1) of Rule 2 of the Kerala Wakf Rules, vide S.R.O.780/05 dated 20.07.2005, with effect from 27.07.2005, which defines the term "encroachment" in relation to any wakf premises to mean occupation by any person of the wakf premises without authority for such occupation and includes the continuance in occupation by any person of the wakf premises after the authority whether by way of grant or has been determined for any reason whatsoever, and includes any construction, alteration or addition carried out to the building without the authority.
8. In P.E. Sarjith v. Misbahul Huda Educational Trust [2015 SCC OnLine Ker 8463 - order dated 04.03.2015 in C.R.P. C.R.P.No.412 of 2012 10 (Wakf)No.92 of 2015] a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, held that clause (ha) to sub-rule (1) of Rule 2 of the Kerala Wakf Rules, 1996 defines the term "encroachment" in relation to any waqf premises to mean occupation by any person of the wakf premises without authority for such occupation. It also includes the continuance in occupation by any person of the wakf premises after the authority for such occupation has been determined for any reason whatsoever. The Division Bench noticed that, even before the Wakf Act, 1995 was amended by the Amendment Act of 2013, the State Government had amended the Kerala Wakf Rules by inserting clause (ha) to sub-rule (1) of Rule 2.
9. In P.E. Sarjith, on the facts of the case, the Division Bench noticed that, the petitioner had entered into a license arrangement with the 1st respondent trust on 01.04.2011. As per the terms of the licence arrangement he continued in occupation of the premises, which he was formerly occupying as a tenant, as a licensee. The licence arrangement was for a period of 11 months, which expired on 29.02.2012. The licence arrangement was terminated by the 1st respondent Trust, which had caused a lawyer notice dated 16.01.2012 to be issued. It is thus evident that the continued occupation of the premises by the petitioner after 29.02.2012 amounts to an encroachment as defined in clause (ha) C.R.P.No.412 of 2012 11 to sub-rule (1) of Rule 2 of the Kerala Wakf Rules. In such circumstances, the Division Bench found no merit or force in the contention of the petitioner that, as the Wakf Act, 1995 did not contain a definition of the term encroacher before it was amended by the Amendment Act of 2013, the ordinary dictionary meaning of the term encroacher alone should have been looked into. Consequently, the Division Bench held that no exception can be taken to the finding entered by the Chief Executive Officer of the Kerala State Wakf Board and by the Wakf Tribunal to the effect that the occupation of the petitioner after the authority for such occupation, viz., the licence arrangement was terminated, amounts to encroachment in respect of wakf property.
10. Later, in Raphimon M.E. and others v. Kerala State Waqf Board and another [2016 (5) KHC 459], another Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, held that the inclusive definition of 'encroacher' under clause (ee) to Section 3 of the Waqf Act, 1995, as amended by Section 5 of the Wakf (Amendment) Act, 2013, includes a person who is occupying a wakf property after the expiry of the period of lease. The Division Bench noticed that, Section 52A of the Act provides for penalty for any person who is in possession either permanently or temporarily of any C.R.P.No.412 of 2012 12 immovable property being a wakf property without prior sanction of the Waqf Board.
11. Section 54 of the Act deals with removal of encroachment from wakf property. As per sub-section (1) of Section 54, whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli. As per sub-section (2) of Section 54, the notice referred to in sub-section (1) shall be served in such manner as may be prescribed.
12. As per sub-section (2) of Section 54, prior to its amendment by Section 32(a) of the Wakf (Amendment) Act, 2013, if, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such waqf property, he may, by an order, require the encroacher to C.R.P.No.412 of 2012 13 remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf. By Section 32(a) of the Wakf (Amendment) Act, 2013, in sub-section (3) of Section 54 of the principal Act, the words "he may, by an order, require the encroacher to remove", are substituted by the words "he may, make an application to the Tribunal for grant of order of eviction for removing."
13. By Section 32(b) of the Wakf (Amendment) Act, 2013, sub- section (4) of Section 54 was substituted. As per sub-section (4) of Section 54, the Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property. As per the proviso to sub-section (4), the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer. As per sub-section (5) of Section 54, if any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person C.R.P.No.412 of 2012 14 duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property.
14. In P.E. Sarjith [2015 SCC OnLine Ker 8463] a Division Bench of this Court held that, under section 54 of the Act, as amended by the Wakf (Amendment) Act, 2013, the Chief Executive Officer of the Wakf Board cannot by himself order eviction. He can only issue notice to the encroacher and after considering the objections if any submitted by the encroacher, apply to the Wakf Tribunal for the grant of an order of eviction for removing such encroachment and delivery of possession of the land, building, space or other property encroached upon by the mutawalli of the wakf. On the facts of the case, the Division Bench noticed that, the Chief Executive Officer of the Wakf Board issued orders on 29.5.2014, after the Act was amended by the Wakf (Amendment) Act, 2013. By that order, he directed the petitioner to remove the encroachment from the wakf property on or before 30.6.2014, failing which he was cautioned that the necessary application would be made before the Wakf Tribunal, Kozhikode. On the terms of Section 54 of the Act, as it stands after the amendment by the Wakf (Amendment) Act, 2013, the Chief Executive Officer of the Wakf Board could not have issued an order directing the encroacher to vacate the premises. The effect of the order passed by the Chief Executive Officer of the Wakf Board is that if the petitioner does not vacate the C.R.P.No.412 of 2012 15 premises, it will be open to him to move the Wakf Tribunal for an order directing the petitioner to vacate the wakf property.
15. In the instant case, as noticed by the Wakf Tribunal in paragraph 9 of the impugned order dated 11.11.2011, the petitioner produced a lease deed bearing No.918/87 dated 20.08.1987 executed with the mutawalli of the wakf, which was a lease deed executed for a period of 10 years commencing from 01.06.1982. As rightly noticed by the Wakf Tribunal in the said order, in the year 1982 the mutawalli of the wakf had no right to transfer any immovable property of a wakf by way of lease for a period exceeding three years, in the case of agricultural land, and for a period of one year, in the case of a non- agricultural land or building, without the previous sanction of the Wakf Board. Therefore, the said lease deed executed by the mutawalli of the wakf in favour of the petitioner is one executed by the mutawalli exceeding his powers and as such void. Moreover, as the period of lease in lease deed No.918/1987 was ten years with effect from 01.06.1982, it expired on 01.06.1992. After the said date, the petitioner is continuing in occupation even after determination of lease, and therefore, such occupation of the petitioner amounts to encroachment in relation to the wakf property, as defined in clause (ha) of Rule 2 of the Kerala Wakf Rules, 1996. Therefore, as rightly found by the Wakf Tribunal in the impugned order, the order passed by the Chief C.R.P.No.412 of 2012 16 Executive Officer of the Wakf Board dated 12.11.2010 was well within his jurisdiction under Section 54 of the Wakf Act, 1995. We notice that till the amendment made to sub-section (2) of Section 54 of the Act, by Section 32(a) of the Wakf (Amendment) Act, 2013, the Chief Executive Officer of the Wakf Board is well within his powers to pass an order requiring the encroacher of a wakf property to remove such encroachment and deliver possession to the mutawalli of the wakf.
16. Now, we shall deal with the contention raised by the learned counsel for the petitioner that a challenge against the vires of clause (ha) of sub-rule (1) of Rule 2 of the Kerala Wakf Rules, 1996 can be raised before the Wakf Tribunal in a petition filed under sub-section (2) of Section 83 of the Wakf Act, 1995 and before this Court in a civil revision petition filed under the proviso to sub-section (9) of Section 83 of the said Act.
17. In K.S. Venkataraman and Co. (P) Ltd. v. State of Madras [AIR 1966 SC 1089 : (1966) 17 STC 418] the Five-Judge Bench of the Apex Court was dealing with a case in which the appellants were building contractors. During the years 1948-49 to 1952-53 they were assessed to sales tax by the State of Madras on the basis that the works contracts executed by them. On 05.04.1954, the High Court of Judicature at Madras held in Gannon Dunkerley and Co. v. State of Madras [(1954) 5 STC 216 : AIR 1954 Madras C.R.P.No.412 of 2012 17 1130] that the relevant provision of the Madras General Sales Tax Act, 1939 empowering the State of Madras to assess indivisible building contracts to sales tax was ultra vires the powers of the State Legislature. On 05.07.1954, the appellants issued a notice to the State of Madras under Section 80 of the Code of Civil Procedure, 1908 claiming refund of the amounts collected from them. As the demand was not complied with, on 23.03.1955, they filed O.S.No.2272 of 1955 before the City Civil Court, Madras, for recovery of a sum of Rs.36,320/-, being the total amount of tax illegally levied and collected from them for the years 1948-49 to 1952-53 and for incidental reliefs. The main basis of the claim was that the relevant provisions of the Madras General Sales Tax Act empowering the Sales Tax Authorities to impose sales tax on indivisible building contracts were unconstitutional and void; that the Sales Tax Authorities had no jurisdiction to assess the said tax in respect of the said transactions; and that the appellants having paid the amounts under a mistake of law, would be entitled to have a refund of the same. The State of Madras raised various defences. It pleaded, inter alia, that Section 18A of the Madras General Sales Tax Act was a bar to the maintainability of the suit; that the suit was barred by limitation; and that a suit to recover money on the ground of mistake of law was not maintainable. The City Civil Judge, following the principle laid down by the Judicial Committee in Raleigh C.R.P.No.412 of 2012 18 Investment Co. Ltd. v. Governor-General-in-Council [(1947) LR 74 IA 50], held that the suit was not maintainable under Section 18A of the said Act. The Court further held that a suit for refund of money paid under a mistake of law was not maintainable and that, it was also barred by limitation. On appeal, a Division Bench of the High Court of Madras held that a suit for a refund on the basis of mistake of law would lie but dismissed the appeal on the ground that the said decision of the Judicial Committee directly covered the point raised, in which it was held that the remedy of the appellants was only to pursue the machinery provided under the Act and that, the suit was not maintainable in view of Section 18A of the Madras General Sales Tax Act. The High Court did not express any opinion on the question of limitation. Feeling aggrieved, the appellants invoked the appellate jurisdiction of the Apex Court by a certificate granted by the High Court of Madras.
18. In K.S. Venkataraman and Co. (P) Ltd., the arguments at Bar mainly turned upon the correctness of the decision of the Judicial Committee in Raleigh Investment Co. Ltd. The Apex Court noticed that the reasoning of the Judicial Committee was either expressly or impliedly accepted in various decisions of the Privy Council and also in the decisions of the Apex Court. In Firm and Illuri Sabbayya Chetty and Sons v. State of Andhra Pradesh [(1963) I SCR 752] the C.R.P.No.412 of 2012 19 Apex Court had to consider the scope of the bar of a suit under Section 18A of the Madras General Sales Tax Act, 1939. The Apex Court noticed that, in Raleigh Investment Co. Ltd. the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income Tax Act, 1922; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under sub-section (1) of Section 66 of the said Act. However, the Apex Court expressly left open that question observing as follows; "It is not necessary for us to consider whether this assumption is well founded or not." In K.S. Venkataraman and Co. (P) Ltd. the Apex Court noticed that the question left open in the said decision directly calls for a decision in the appeal on hand.
19. In K.S. Venkataraman and Co. (P) Ltd. the Apex Court noticed that, Section 23 of the Income Tax Act, 1922 empowers the Income Tax Officer to assess the total income in the manner prescribed thereunder. His jurisdiction is confined to the ascertainment of the total income of a person in accordance with the provisions of the Act. His duty is to assess the income of a person under the provisions of the Act C.R.P.No.412 of 2012 20 and certainly not to ignore any of them for any reason whatsoever. Against the order of assessment an appeal lies to the Appellate Assistant Commissioner, who also functions under the Act. Section 30 confers a right of appeal on an assessee in respect of specified orders of the Income Tax Officers. He can, by an appeal, object, inter alia, to the amount of income assessed, to the amount of tax determined and to his liability to be assessed under the Act. Section 31 provides the procedure to be followed and the powers to be exercised by the Assistant Appellate Commissioner in disposing of the appeal. Indeed, the appeal being in substance the continuation of the assessment proceedings in regard to the specified subject-matter, he cannot outstep the jurisdiction conferred on the Income Tax Officer. An assessee objecting to an order passed by the Appellate Assistant Commissioner may appeal to the Appellate Tribunal; under Section 33 of the Act the Appellate Tribunal can canvass the correctness of the order of the Assistant Appellate Commissioner and pass a suitable order, as it thinks fit. Up to this stage all the three authorities are the creatures of the Act and they function thereunder. They cannot ignore any sources of income on the ground that the relevant provisions offend the fundamental rights or are bad for want of legislative competence. The Act does not confer any such right on them. Their jurisdiction is confined to the assessment of the income and the tax under the C.R.P.No.412 of 2012 21 provisions of the Act. Whether the provisions are good or bad is not their concern. But Section 66 of the Act, which has two parts, makes all the difference. Under Section 66(1), within the prescribed time on an application made by an assessee or the Commissioner, the Appellate Tribunal shall refer to the High Court any question of law arising out of such order; if the Appellate Tribunal refuses to state a case, on an application filed by either of them, the High Court may require the Appellate Tribunal to state the case and to refer the same to it accordingly. On a reference made by the Appellate Tribunal to the High Court, the High Court shall decide the questions of law raised thereby and pass its judgment thereon and thereafter, the Appellate Tribunal may pass such orders as are necessary to dispose of the case conformably to such judgment. As held by the Apex Court, the jurisdiction conferred upon the High Court by Section 66 of the Income Tax Act is a special advisory jurisdiction and its scope is strictly limited by the Section conferring the jurisdiction. It can only decide questions of law that arise out of the order of the Tribunal and that are referred to it. Can it be said that a question whether a provision of the Act is ultra vires of the Legislature arises out of the Tribunal's order? Answering the said question, the Apex Court held that, as the Tribunal is a creature of the statute, it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act. The question of C.R.P.No.412 of 2012 22 ultra vires is foreign to the scope of its jurisdiction. If an assessee raises such a question, the Tribunal can only reject it on the ground that it has no jurisdiction to entertain the said objection or decide on it. As no such question can be raised or can arise on the Tribunal's order, the High Court cannot possibly give any decision on the question of the ultra vires of a provision. At the most the only question that it may be called upon to decide is whether the Tribunal has jurisdiction to decide the said question. On the express provisions of the Act, it can only hold that it has no such jurisdiction. The appeal under sub-section (2) of Section 66A of the Act to the Supreme Court does not enlarge the scope of the said jurisdiction. The Apex Court can only do what the High Court can. In K.S. Venkataraman and Co. (P) Ltd. the Apex Court noticed that, the proposition that an authority constituted under the Act cannot, unless expressly so authorised, question the validity of the Act or any provisions thereof, is sound and is also supported by authority.
20. In Alpha Chem v. State of U.P. [(1991) Supp. 1 SCC 518] the Apex Court was dealing with an appeal against the order dated 03.09.1990 of the Allahabad High Court in Civil Misc. Writ Petition No. 1072 of 1988 in which the appellants sought to assail the vires of sub-section (3) of Section 4A of the U.P. Sales Tax Act, 1948, which was introduced by Act 25 of 1985 and was further amended by Act 17 of 1987. The High Court dismissed the writ petition on the view that the C.R.P.No.412 of 2012 23 contention as to the constitutional validity of the impugned provision could be raised and adjudicated in certain revision proceedings arising out of certain orders made in exercise of powers of the impugned provision which is pending before it. Learned counsel for the appellants contended that the question of the validity of a provision cannot be assailed before and pronounced upon by the authorities constituted under the U.P. Sales Tax Act and, as a necessary corollary, even by the High Court in appeal or revision arising out of the proceedings taken by or before the authorities constituted under the said Act and that, question of constitutionality can be gone into in the jurisdiction of judicial review of legislation. The Apex Court found force in the said contention raised by learned counsel for the appellants. The Apex Court held that the Allahabad High Court was not right in its contemplation that the vires of the impugned provisions could be examined in the revision proceedings. The jurisdiction of the High Court in revision is under the same limitation insofar as the contention as to constitutionality is concerned as was indicated by the Court in K.S. Venkataraman & Co. (P) Ltd. v. State of Madras [AIR 1966 SC 1089 : (1966) 17 STC 418] in the context of the reference jurisdiction of the High Court under the Income Tax Act. Even as the authorities under the said Act cannot go into the vires of the very statutes under which they are constituted and draw their power and C.R.P.No.412 of 2012 24 jurisdiction therefrom so is the High Court in matters arising before it from proceedings under the Act and examine the constitutionality of the statute and its provisions. The High Court can, of course, deal with the question of constitutionality in judicial review of legislation under Article
226. That is what the appellants sought to do before the Court in the writ petition. Therefore, the High Court was not justified in requiring the appellants to have recourse to proceedings of revision taken under the Income Tax Act to have the contention as to constitutionality resolved.
21. In Central India Ayush Drugs Manufacturers Association, Nagpur and others v. State of Maharashtra and others [AIR 2016 Bom 261] a Division Bench of the Bombay High Court, relying on the law laid down by the Apex Court in Alpha Chem [(1991) Supp. 1 SCC 518], held that, considering the jurisdiction given to the National Green Tribunal, under Section 14 of the National Green Tribunal Act, 2010, only to decide civil cases, where substantial question involved is in relation to environment, it is apparent that the National Green Tribunal cannot be said to be conferred with the absolute jurisdiction to adjudicate all types of disputes or even all civil disputes. A limited jurisdiction to deal with specific type of civil disputes is only made available to it. Bare reading of Section 28 of the Act prescribing the bar of jurisdiction also substantiates this. Thus, power to pronounce upon the vires of any statutory provision or of any C.R.P.No.412 of 2012 25 subordinate legislation cannot be read into any of the provisions which confer either appellate or original jurisdiction upon the National Green Tribunal. The Parliament which has deliberately employed wide or liberal words while laying down the compass or the scheme of the National Green Tribunal Act, has not used such words while phrasing Section 14 of that Act or conferring jurisdiction upon the National Green Tribunal. On the contrary, its intention to limit the power to decide certain specified nature of disputes is apparent. The Division Bench concluded that the scheme of the National Green Tribunal Act does not permit National Green Tribunal to decide upon the vires of any of the enactments which confer appellate or other jurisdiction upon it and find mention in Schedule-I of the said Act. It also does not empower it to examine validity of any Rules or Regulations made under these enactments.
22. In Union of India v. S.K. Saigal [(2007) 14 SCC 556], a decision relied on by the learned counsel for the 2 nd respondent, the question that came up for consideration before the Apex Court was as to whether Rule 7(2)(b) of the Central Ground Water Board (Scientific Group-A post) Recruitment Rules, 1995 could be brushed aside without challenging the Rules and whether the mandate of the Rules could be ignored in the absence of a challenge and without striking it down. In C.R.P.No.412 of 2012 26 the said decision, the Apex Court held that, in the absence of a challenge to the vires of the Rules, the respondents were not entitled for the reliefs sought for in O.A.No.422 of 2002 before the Central Administrative Tribunal. The Apex Court noticed that, in the original application before the Tribunal, there is not even a whisper of challenge against the Rules as discriminatory or ultra vires, much less Rule 7(2)
(b) of the said Rules.
23. In S. Shanmugavel Nadar v. State of Tamil Nadu [(2002) 8 SCC 361 : AIR 2002 SC 3484] the Apex Court held that its order dated 10.09.1986 in Appeals by Special Leave against the decision of the Division Bench of the Madras High Court in M. Varadaraja Pillai v. Salem Municipal Council [85 Law Weekly 760] can be said to be a declaration of law limited only to two points
(i) that in a petition putting in issue the constitutional validity of any State Legislation, the State is a necessary party and in its absence, the said issue cannot be gone into; and (ii) that a belated prayer for impleading a necessary party may be declined by the Court exercising its jurisdiction under Article 136 of the Constitution, if the granting of the prayer is considered by the Court neither necessary nor proper to allow at the given distance of time.
24. In the case on hand, State of Kerala is not a party and that going by the decision in S. Shanmugavel Nadar's case a belated C.R.P.No.412 of 2012 27 prayer for impleding a necessary party has to be declined. That apart, no purpose will be served even if we permit the petitioner to impled 'State of Kerala' as a party to the captioned Revision Petition as in the light of Alpha chem's case (supra) the constitutional validity of a State Legislation cannot be examined in this revision proceedings.
25. In view of the law laid down by the Apex Court in K.S.Venkitaraman and Co. Pvt. Ltd. [AIR 1966 SC 1089], Alpha Chem. [1991 Supp. 1 SCC 518] and also the judgment of the Division Bench of the Bombay High Court in Central Indian Ayush Drugs Manufacturers Association [AIR 2016 Bombay 261], we find no force in the contention raised by the learned counsel for the petitioner, relying on the decision of the Bombay High Court in Tan Bug Train [AIR 1946 Bombay 216] and also the judgment of the House of Lords in Boddington [1988 (2) All ER 203] that the challenge against the vires of clause (ha) of sub-rule (1) of Rule 2 of the Kerala Wakf Rules, 1996 can be raised before the Wakf Tribunal in a petition filed under sub-section (2) of Section 83 of the Wakf Act, 1995 and before this Court in a civil revision petition filed under the proviso to sub-section (9) of Section 83 of the said Act. We hold that the petitioner cannot raise such a challenge either in O.A.No.5 of 2011 filed before the Wakf Tribunal under sub-section (2) of Section 83 of the C.R.P.No.412 of 2012 28 Wakf Act or in this civil revision petition filed under the proviso to sub- section (9) of Section 83 of the said Act.
26. Now, we shall deal with the contention raised by the learned counsel for the petitioner that the petitioner-tenant is enjoying protection against eviction under Section 106 of the Kerala Land Reforms Act, 1963 and as such, not liable to be evicted under any circumstances.
27. Section 106 of the Kerala Land Reforms Act deals with special provisions relating to leases for commercial or industrial purposes. As per sub-section (1) of Section 106, notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20 th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. As per Explanation, for the purposes of this section,- (a) "lessee" includes a legal representative or an assignee of the lessee; and (b) "building" means a permanent or a temporary building and includes a shed. As per sub-section (1A) of Section 106, the lessor or the lessee may apply to such authority as may be C.R.P.No.412 of 2012 29 prescribed for varying the rent referred to in sub-section (1) and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard pass such orders on the application as it deems fit.
28. As per sub-section (2) of Section 106 of the Act, if, between the 18th December, 1957 and the date of commencement of this Act, any decree or order of court has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession. As per the first proviso to sub-section (2), before restoration, such person shall be liable to pay- (i) the compensation paid by the landlord, for any improvements in the land and, subsisting at the time of restoration; (ii) the compensation for any improvements effected subsequent to the delivery. As per the second proviso to sub-section (2), he shall not be entitled to restoration if the property has passed on to, the possession of a bona fide transferee for value. As per sub- section (3) of Section 106, nothing contained in sub-section (1), sub- section (1A) and sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority. As per Explanation, for the purposes of this sub-section, "local authority" includes the Cochin C.R.P.No.412 of 2012 30 Port Trust and any University established by an Act of the Kerala State Legislature.
29. In the instant case the petitioner company is in occupation of 6.67 Cents (270 Sq. Mts.) of land owned by the 2 nd respondent wakf comprised in Sy.No.161/9 in R.S.No.1504 of Kachery Village in Kozhikode Taluk. Before the Wakf Tribunal, the petitioner contended that the petroleum outlet in the said property was originally installed by ESSO Eastern INC, a foreign petroleum company, on the strength of a lease deed executed in the year 1950. Being a commercial lease and having constructed building and structures including underground petroleum tank, the lessee became entitled for protection as envisaged under Section 106 of the Kerala Land Reforms Act. The petitioner succeeded the entire right and interest enjoyed by the original lessee, by virtue of ESSO (Acquisition of Undertakings in India) Act, 1974, and the possession continued uninterruptedly, by paying rent enhanced periodically, and on the subsequent agreement entered with the landlord.
30. Though the petitioner contended that the original lease of the property in question was in favour of ESSO Eastern Company INC, during the year 1950, no documents were produced before the Chief Executive Officer of the 1st respondent Wakf Board or before the Wakf C.R.P.No.412 of 2012 31 Tribunal to substantiate the said contention. The only document produced before the Wakf Board was lease deed No.918/1987 dated 20.08.1987 executed between the mutawalli of the wakf and the petitioner, which is a lease deed executed for a period of 10 years, subject to the terms and conditions contained therein. There is no mention in that lease deed that the petitioner is occupying the premises in continuation of the original lease of the year 1950 executed in favour of ESSO Eastern INC. There is also no mention in lease deed No.918/1987 that any building has been constructed in the said property for any commercial or industrial purpose before 20.05.1967, in order to attract the special provisions contained in Section 106 of the Kerala Land Reforms Act. On the contrary, as noticed by the Wakf Tribunal in the impugned judgment dated 11.11.2011, a reading of the lease deed would show that it was a lease with respect to property having an extent of 6.67 Cents (270 Sq.Mts.) and the petitioner was given the right to install, or erect and maintain in and upon the demised premises, roadways, pathways, underground tanks and delivery pumps, shelters, building structure, tube wells, errection of equipment whether permanent or temporary in nature as it considers necessary from time to time without the permission of the lessor for the purpose of storing or selling or otherwise carrying on trade in pertroleum products, oil, kindered, motor accessories or other trade or business, which the C.R.P.No.412 of 2012 32 lessee may think fit for a term of ten years commencing from 1982. In that lease deed, it was also stipulated and undertook by the lessee to deliver the demised premises to the lesser at the expiration or sooner determination of the said term or its renewal, after restoring the demised premises in its former condition. Therefore, the finding of the Wakf Tribunal in the impugned judgment that the petitioner is not entitled for protection under Section 106 of the Kerala Land Reforms Act, cannot said to be perverse or patently illegal warranting interference in this revision petition filed under the proviso to sub- section (9) of Section 83 of the Wakf Act, 1995.
31. In the result, the civil revision petition fails and the same is accordingly dismissed.
No order as to costs.
Sd/-
C.T.RAVIKUMAR, Judge.
Sd/-
ANIL K. NARENDRAN, Judge.
TKS/das