The amendment to the Wakf Act expanded the definition of encroacher, enabling eviction proceedings by the CEO against tenants post-lease.

ORDER

[CRP(WAKF) Nos.641/2018, 650/2018, 653/2018, 672/2018, 673/2018, 674/2018, 676/2018, 688/2018, 699/2018]

A.Muhamed Mustaque, J.

A short question in these civil revision petitions under the Wakf Act, 1995 (for short, the 'Act') is as to the competency of the Chief Executive Officer of the Kerala State Wakf Board to initiate proceedings for eviction of tenants. Admittedly, the revision petitioners in all these cases are tenants of the Panoor Jama-ath Palli. The said Palli constructed a building in the Wakf property and gave it on lease to these tenants. The Jama-ath Committee moved the Chief Executive Officer under Section 54 of the Act, claiming that the occupation by the tenants was as encroachers and has to be removed. All the tenants admitted that the period fixed in the lease is over. After issuing notice to the tenants, the Chief Executive Officer passed an order. Thereafter, he moved the Tribunal for enforcement of the order under of the Act. There, the tenants appeared but did not contest. Applications were filed to set aside the ex parte order. That was rejected stating that there was no scope for contesting the matter. Challenging these orders, the tenants have come up with these civil revision petitions.

2.Heard the learned counsel for the revision petitioners, the learned Standing Counsel for the Wakf Board and the learned counsel for the Jama-ath Committee.

3. The learned counsel for the revision petitioners raised a two fold argument. Firstly, it was contended that the Chief Executive Officer as well as the Wakf Tribunal has no jurisdiction to entertain these claims for eviction inasmuch as that the disputes squarely fall within disputes amenable to be tried by the Civil Court. Secondly, it was argued that there is nothing on record to show that the building in question has been registered with the Wakf Board.

4. The learned counsel for the revision petitioners relied on the following judgments to rebut these arguments that the Chief Executive Officer as well as the Tribunal has jurisdiction.

1. Telangana State Wakf Board and Another v.

Mohamed Muzafar [2021 KHC 6349] .

2. Faseela M. v. Munnerul Islam Madrasa Committee and Another [2014 KHC 4405] .

5. We would have been persuaded to accept the arguments raised by the learned counsel for the revision petitioners, placing reliance on the above judgments but we note that these judgments have been rendered on a fact situation prevalent before an amendment was brought to the Wakf Act in the year 2013. A new provision has been incorporated by the amendment in 2013 under Section 3 (ee) of the Act which defines 'encroacher'. The said provision reads thus:

“encroacher” means any person or institution, public or private, occupying waqf property, in whole or part, without the authority or law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board.

6. The above provision clearly indicates that the tenant who is holding over after the determination of the lease, is treated as an encroacher of the Wakf property. The expansive meaning of encroacher, as defined under Section 3 (ee) of the Act, comes under the the purview of disputes amenable to adjudication before the Chief Executive Officer as well as the Tribunal. The judgments relied on by the learned counsel for the revision petitioners have no relevance in this context for the simple reason that those judgments have been rendered based on the law and fact situation prevailing before the amendment.

7. Further, we note the power of the Chief Executive Officer under Section 54 of the Act. The said provision confers upon the Chief Executive Officer the power to remove encroachments after issuing a show cause notice. In the light of the definition in regard to encroacher as referred to under Section 3 (ee) of the Act, there is no difficulty for the Chief Executive Officer to remove any encroachment after complying with the procedure as contemplated under of the Act. F