IMPORTANT POINTS
The construction was made without obtaining any Building Permit 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.

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 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 2nd 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 property, the CEO found that there existed a tenancy relationship between the petitioner and the 2nd 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 3rd 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 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