IMPORTANT POINTS:
A tenant, who is in occupation of the tenanted premises, owned by the Wakf, after the expiry of the lease period, is an encroacher only, not a tenant. The legislature has consciously included the tenants in occupation of the Wakf property, after the expiry of the term of lease, in holding over, within the ambit of 'encroacher' as contemplated under Section 3(ee) of the Wakf Act. The Wakf Board can pass an order directing such tenants to vacate the tenanted premises, after considering the objection to the show cause notice issued to him under Section 54(1) of the Wakf Act. In case of refusal from the part of the tenant, the Wakf Board can approach the Wakf Tribunal for enforcing such orders against such tenant. Section 54(1) of the Wakf Act confers power to proceed against the tenant, who occupies the building after the expiry of the lease period, as an encroacher and not as a tenant.

Harilal, J.

The revision petitioner is the first respondent in O.A.No.108/2017 on the files of the Wakf Tribunal, Kozhikode. The aforesaid application was one filed by the Chief Executive Officer [for short, 'CEO'], Kerala State Wakf Board, under Section 54(3) of the Wakf Act, 1995 for removing the encroachment. (Parties are referred to as in the original application).

2. According to the averments in the application, the application schedule building is a Wakf property registered with the Wakf Board in the year 1961 and the property details are entered into the Wakf register also. The said property was being managed by the Mutawalli of the Wakf. The CEO of the Wakf board has initiated proceedings, on the basis of a complaint filed by the Mutawalli, to the effect that the first respondent is illegally occupying the above said property. On the basis of the said report, a notice was issued to the first respondent and the same was served on the first respondent. In the notice, the first respondent was directed to show cause as to why an order requiring him to remove the encroachment should not be passed against him. Consequently, he appeared and filed a written objection contending that the application schedule property in question is not a Wakf property. The CEO has considered the said objection and satisfied that the building in question is a Wakf property and the first respondent is an 'encroacher' as defined under Section 3(ee) of the Wakf Act. Hence, the CEO directed the respondent to remove the encroachment on the Wakf property, vide order No.A14-6474/2015. The above order was also served to the first respondent, but he continued his occupation in the Wakf property as an encroacher, despite the receipt of the said order. Hence the CEO filed an application before the Tribunal seeking an order directing the first respondent to give vacant possession of the application schedule building to the second respondent within a specified time.

3. The first respondent filed a counter denying all the averments in the application. According to him, the application schedule building is not a Wakf property. At the same time, he contended that the shop room was taken on rent initially by his father, namely, Chandran, from 1964 onwards on the basis of the execution of a lease deed and he admitted that he is in occupation of the shop room after the expiry of the said lease deed. According to him, he is not an encroacher as alleged in the application and the Wakf Tribunal has no jurisdiction to try the matter. Only the Civil court alone has jurisdiction to decide the dispute. Further, he contended that he is entitled to get protection under the Kerala Buildings (Lease and Rent Control) Act, 1965 [for short, the Act, 1965]. The second respondent also filed a statement supporting the case of the applicant.

4. On the rival pleadings, Exts. A1 and A2 were marked from the side of the applicant and no evidence, either oral or documentary, was produced by the first respondent.

5. After considering the rival pleadings, the Tribunal found that the application schedule building is a Wakf property and the first respondent is an 'encroacher' falling under Section 3(ee) of the Wakf Act and thereby he is liable to vacate the application schedule building. The legality and propriety of the aforesaid findings are under challenge in this revision petition.

6. Heard Sri.T.Madhu, the learned counsel appearing for the revision petitioner/respondent and Sri.P.A.Abdul Jabbar, the learned counsel appearing for the respondent/petitioner.

7. Though the first respondent has contended that the application schedule building is not a Wakf property, subsequently, he himself admitted that his father was a tenant in occupation of the application schedule building, which belongs to the Wakf. He has no case that the application schedule building belongs to any other person. Going by the impugned order, it could be seen that the Wakf Tribunal has considered the status of the fi