The court clarified the limitations on the Muthawalli's powers to execute lease agreements and the definition of encroachment under the Kerala Wakf Rules. It also established that the petitioner was not entitled to protection against eviction under the Kerala Land Reforms Act.

ORDER :

1. 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 Resurvey No. 1504 in Ward No. 1 of Block No. 37 of Kacheri Village in Kozhikode District was leased out for commercial purpose without 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 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 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 c