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2020 Supreme(Mad) 293
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
The President Ameerunnisa Begum Sahiba Endowments Triplicane - Appellant
Versus
D. Ganesan - Respondent
C.R.P.(PD).No. 3723 of 2019
Decided On : 08-05-2020
For the Petitioner: N.A. Nissar Ahmed, V. Lakshminarayanan, Standing Counsel for Tamil Nadu Waqf Board as Amicus Curiae.
Headnote:
Constitution of India,1950 - Article 227 - Waqf Act, 1995 - Section 83(9) - payment of rents - jurisdiction of the Tribunal - jurisdiction of the Tribunal by virtue of the substitution by Act 27 - Section 83 (1) and (2) - Petitioner is President of Begum Endowments at Triplicate Chennai herein after referred to as Petitioner revision petitioner is having property comprised in Shop Triplicate Chennai in said property herein after referred to as petition property was let out for lease to respondent herein for monthly rent with on rent at – Held, Court in respectful agreement with said view taken by Kerala High Court - Unless such view is taken it will lead to an anarchy where legislative intent especially in context of amendment made in Section Act would get defeated - Moreover word may used in Section Act also to be taken note of and it should be considered that Board also route or procedure contemplated Section can take effective steps to evict tenant in default or encroacher of any property either on complaint or on his own motion apart from protective action to be taken by concerned Mutually or President of concerned by directly approaching Tribunal Section Act seeking for eviction of such tenant in default encroacher – Locus therefore of Mutually or President of notified Waif in approaching Tribunal for seeking eviction of tenant in default encroacher has not been taken away or denuded merely because of different procedure as has been contemplated Section of Act where CEO has been empowered to do eviction procedure as provided therein - Therefore court of considered view that reasoning given by Tribunal in impugned order by rejecting application filed by revision petitioner as not maintainable cannot be sustained legal scrutiny therefore said order is liable to be set aside and accordingly is set aside – Petition allowed
JUDGMENT
(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India r/w Section 83(9) of the Waqf Act, 1995, against the order, dated 18.10.2029 made in O.A.Sr.No.159 of 2019 on the file of the Waqf Tribunal, Chennai.)
This Revision Petition has been filed against the order passed by the Tamil Nadu Waqf Tribunal in unnumbered O.A.Sr.No.159 of 2019, dated 18.10.2019, under which the application, i.e., O.A filed by the revision petitioner has been rejected as not maintainable.
2. The facts in nutshell are as follows :
(i) That the revision petitioner is the President of Ameerunnisa Begum Sahiba Endowments at Triplicane, Chennai-5 (herein after referred to as "the Petitioner"). The revision petitioner is having a property comprised in Shop No.13/76 at Bharathi Salai, Triplicane, Chennai-5 in R.S.No.847. The said property (herein after referred to as "petition property") was let out for lease to the respondent herein for a monthly rent of Rs.3,658/- with GST on rent at Rs.659/-.
(ii) According to the petitioner, the respondent / tenant was a chronic defaulter and he defaulted payment of rents from October 2018 to April 2019. The said amount of rental default comes to about Rs.26,699/-, the same was not paid by the respondent despite repeated demand made in this regard by the petitioner.
(iii) Therefore the petitioner, being the custodian of the petition property, had issued a notice on 01.05.2019, whereby, it required the respondent to vacate and deliver vacant possession of the petition property and the lease, if any was still existing, the same was terminated. The petitioner also demanded the respondent to pay a sum of Rs.8,000/- per month as damages for the use and occupation till handing over possession of the petition property.
(iv) It is the further case of the petitioner that, despite the said notice dated 01.05.2019 having been received by the respondent, since he had not come forward to pay the rental arrears and also not in a position to vacate the petition property, these inactions on the part of the respondent triggered the petitioner to approach the Tamil Nadu Waqf Tribunal by filing the said O.A.Sr.No.159 of 2019 seeking for a prayer of direction to the respondent to vacate and deliver the vacant possession of the petition property.
(v) The said O.A.Sr, on presentation, seems to have been scrutinised by the Waqf Tribunal and the Waqf Tribunal on 21.08.2019 have returned the brief with the following note :
"(1) Under the Waqf properties lease rules 2014 under rule 23(iv) the lessor may terminate the lease by giving one month notice. Here 15 days notice is given.
(2) Under rule 24(2) of the Waqf Properties lease rules, if after expiration or termination of lease the lessee continues to occupy the leased premises it shall be treated as an encroachment and such encroachment shall be removed in accordance with the procedure specified in section 54 of the Act.
(3) Under section 54(3) of the Waqf Act the CEO of the Waqf Board has to make an application to the Tribunal for grant of order of eviction for removing encroachment.
(4) By Waqf (Amendment Act 2013) with effect from 1.11.2013 under section 83(1) eviction of tenant or determination of rights and obligations of the lessor and the lessee of the Waqf properties were brought within the jurisdiction of the Tribunal. The CEO of the Waqf Board was granted power to order an encroachment to be removed prior to amendment. In pursuance of amendment to section 83 of the power of CEO to order eviction was taken away and jurisdiction is conferred on the Waqf Tribunal to decide the question of eviction of tenant. But the application for eviction is to be made by the CEO of the Waqf Board and not by the Mutawalli of Waqf. Here the application is made by the Mutawalli of Waqf."
(vi) Thereafter it was re-presented by the petitioner on 10.10.2019 giving compliance note or report stating that, the 15 days notice, dated 01.05.2019 was in order in view of the provisions of t
