Point of Law: Waqf Board has the power under Section 54 of the Waqf Act to order eviction of encroachers from the waqf property.

ORDER :

1. Revision petitioner, who is the original petitioner before the Waqf Tribunal in O.A. No. 3/2009, has filed this revision petition under Section 83(9) of the Waqf Act, challenging order dated 21.01.2011 passed by the Waqf Tribunal in the above Original Application. The respondents before the Tribunal are the respondents herein.

2. The revision petitioner would contend that he had been in possession of building No. 1/1995 on the basis of a rental arrangement entered into between himself and one K.P. Abdurahiman as per rent deed dated 25.07.1982. However, on 28.02.2001, the 2nd respondent issued a notice stating that the 2nd respondent purchased the above building and future rent to be paid to the 2nd respondent. According to the petitioner, Chief Executive Officer of the Waqf Board passed order dated 19.12.2008 holding the petitioner as an unauthorised occupant of the waqf building and thereby he was directed to be evicted.

3. It is urged by the learned counsel for the petitioner further that, the petitioner, who took the building on rent, cannot be held as an unauthorised occupier of the building under Section 54 of the Waqf Act and therefore, the order of the Chief Executive Officer of the Waqf Board dated 19.12.2008 is illegal. Further it is submitted that the Tribunal would have reversed said finding in an application filed under Section 83 of the Waqf Act upholding the contention raised by the revision petitioner.

4. Repelling this contention, the learned counsel for the contesting respondents supported the order of the Waqf Board and the Tribunal.

5. The Tribunal ventured the power of the waqf Board under Section 54(3) of the Kerala Waqf Act in tune with the definition of ‘encroachment’ as defined under Rule 2(1)(ha) of Kerala Waqf Rules, 1996. After interpreting the definition of ‘encroachment’ under the said Rule, it was found by the Tribunal that an encroachment in relation to any encroachment under the occupation by any person of the waqf premises without authority for such occupation and includes continuance in occupation after authority by way of grant or has been determined for any reasons whatsoever and includes any construction, alteration or additions carried out to the building without authority. So the definition of the ‘encroachment’ comes under Rule (ha) of the Kerala waqf Rule is wider enough to include a person who continues occupation of the property beyond the period of lease and without paying rent, etc. There is no dispute to the fact that plaint schedule property is a waqf property.

6. The Tribunal also held that there is no dispute regarding the status of the property as waqf property though initially it was the property of one K.P. Abdurahiman before its dedication. This factual finding not disputed in any manner.

7. An interesting question that crops up for consideration is; whether a person in occupation of a building situated in a waqf property on the basis of a lease arrangement, can be categorised as a person who had done the act of 'encroachment' as envisaged under Section 54(3) of the waqf Act, 1995? If so, in what context? Section 54 of the waqf Act deals with removal of encroachment from the waqf property and sub section 3 of Section 54 stipulates the procedure to be followed before deciding the property in question as waqf property and there has been an encroachment into the waqf property. Section 54(1) to (3) are extracted hereunder for easy understanding:

“54. Removal of encroachment from waqf property:

(1) 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 waqf 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 remo