Point of Law: Wakf Property – Eviction of tenant - under Section 83(1), the Tribunal had no power to entertain a suit of eviction.

ORDER :

C.S. Sudha, J.

C.R.P.(WAKF) No.718/2014 is against the order dated 20/10/2014 of the Wakf Tribunal, Kozhikode in O.A.No.20 of 2013, confirming the order passed by the Chief Executive Officer (CEO), Kerala State Wakf Board (the Board), Ernakulam under Section 54 of the Wakf Act, 1995 (the Act) in proceedings No. E4-2128/12-1 dated 27/08/2013. The revision petitioner herein is the Applicant before the Wakf Tribunal (Tribunal) and the respondent in the proceedings before the CEO. The 1st respondent herein, the Daruthaqva Islamic Cultural Centre, represented by its Secretary, is the Applicant before the CEO and the 1st respondent in the O.A. The 2nd and 3rd respondents herein are the CEO and the Board respectively. They are the 2nd and 3rd respondents in the O.A. also.

2. The 1st respondent herein, claiming to be the mutawalli, filed an application under Section 54 of the Wakf Act, 1995 (the Act) before the 2nd respondent CEO, alleging that the petitioner/tenant is unauthorizedly continuing in possession of their property, consisting of a building, even after the termination of the tenancy and that he has not vacated though notice intimating him of the termination of the tenancy and directing him to vacate the room has been served on him. The petitioner/tenant appeared before the CEO and filed objections inter alia contending that in the light of the decision of the Hon’ble Supreme Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897, the CEO has no power to order eviction of a tenant from a wakf property, however, the CEO ignoring the binding principle, has wrongly ordered eviction by order dated 27/08/2013. Aggrieved, the petitioner/tenant moved O.A.No.20/2013 before the Tribunal which in turn affirmed the decision of the CEO and hence the revision.

3. When the matter came up before a Division Bench of this Court, the Bench relying on the decisions of the Hon’ble Supreme Court in Ramesh Gobindram (Supra) and Faseela M. v. Munnerul Islam Madrassa Committee, 2014 KHC 4405, held that, since the dispute involved is prior to the amendment of the Act in the year 2013, a suit for eviction of a tenant from wakf property has to be filed before the civil court and not before the Tribunal and so the impugned order is incorrect. The Division Bench disagreed with the decision of another Division Bench of this Court in a similar matter, that is, P.E.Sarjith v. Misbahul Huda Educational Trust [C.R.P. (Wakf) No.92/2015], which upheld the order of the Wakf Tribunal, confirming an order of eviction passed by the CEO in an application under Section 54. According to the Division Bench, in the light of the aforesaid binding precedents of the Hon’ble Supreme Court, the judgment in P.E.Sarjith (Supra) does not lay down the correct law. Hence as per Reference Order dated 19/10/2020, the matter was directed to be placed before the Hon'ble Chief Justice. Thus, the reference.

4. C.R.P. (WAKF) No.38 of 2019 is against the judgment dated 29/04/2019 of the Waqf Tribunal, Kozhikode, in O.S.No.220/2019, a suit for eviction filed by the first respondent Committee, against the predecessor-in-interest (1st defendant in the suit) of the revision petitioners herein. According to the plaintiff Committee, the plaint schedule room belongs to them and that the first defendant, the tenant of the room, was continuing in occupation of the premises owned by the former even after the termination of the lease. Hence the suit for eviction. During the pendency of the suit, the first defendant passed away and hence her legal representatives were impleaded as additional defendants 3 to 7, who are the revision petitioners herein. The Tribunal by the impugned judgment, decreed the suit and directed additional defendants 3 to 7/the revision petitioners, to surrender vacant possession of the plaint schedule room to the plaintiff, the first respondent herein