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2018 DIGILAW 974 (KER)

Ali Kunj v. Union of India

2018-11-29

A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY

body2018
JUDGMENT : HRISHIKESH ROY, J. 1. Heard Sri.Dinesh R.Shenoy, the learned counsel appearing for the appellants/Writ Petitioners. Also heard Sri. K.A. Balan, the learned Central Government Counsel appearing for the 1st respondent. For the 2nd and 3rd respondents, Sri. T.P. Sajid, the learned Standing Counsel Wakf Board is appearing. The 4th respondent is also represented by the learned counsel. 2. The appellants were the tenants of shop rooms in a building belonging to the Wakf Board. The building itself was constructed on the basis of interest free security deposits provided by the prospective tenants. After some years of occupation, the Wakf Board issued orders on 25.5.2017 (Exts.P1 to P17) which stated that since the lease was not extended, the tenants are declared to be encroachers under Section 3(ee) of the Wakf Act, 1995 and on that basis, the termination of lease for the occupants was ordered. A decision was also taken to invite offers from the public for lease of the Wakf building, under Rule 4 of the Wakf Properties Lease Rules, 2014. 3. Aggrieved by the above steps for eviction taken by the Wakf Board, the tenants filed the W.P.(C)No.21731 of 2017 raising the contention that Section 3(ee) is unconstitutional since the Muthawally is given unbridled power to declare the tenants to be encroachers. Challenge was also made to the decision to evict the tenants and to invite offers for induction of fresh tenants in the building. 4. The respondents however contended that the Union Government is competent to enact laws such as Section 3(ee) in respect of religious institutions which have fundamental rights under Article 26 of the Constitution of India to maintain their assets and accordingly, it was argued that the challenge on the ground of Section 3(ee) being inconsistent with the statutory protection being granted to normal tenants, would not be a valid challenge. 5. The learned Judge proceeded on the basis that the Wakf Act was a special law and Wakf properties are exempted from the provisions of the Rent Control Act by virtue of the notification dated 10.12.1981 under Section 25 of the Kerala Buildings (Lease and Rent Control) Act, 1962. Moreover, since it was a wakf property and the petitioners chose to enter into agreements knowing fully well the character of the property and their ownership, the court held that they would be covered by the restrictions imposed in respect of wakf property. Moreover, since it was a wakf property and the petitioners chose to enter into agreements knowing fully well the character of the property and their ownership, the court held that they would be covered by the restrictions imposed in respect of wakf property. The challenge to the constitutional validity of Section 3(ee) provisions were found to be untenable and the same was accordingly dismissed. Consequently, since the writ petitioners have no fundamental or statutory right to continue on account of non extension of the tenancy tenure, the Writ Petition was found devoid of merit and the same was accordingly dismissed. 6. We have heard the arguments made by the learned counsel for the appellants and tested the validity of the challenge to the vires of Section 3(ee) of the Wakf Act. As can be seen, the writ petitioners were inducted as tenants under the Wakf Act and not under any general law of tenancy including the Transfer of Property Act. Therefore, the concept of holding over and the protection against eviction after expiry of the tenancy tenure, will not be available to them unlike those tenants covered, by specific rent statutes. Moreover, non availability of protection under the rent control legislation would not sustain a discrimination arguments of the tenants as they are governed by a special law i.e., the Wakf Act. The writ petitioners were well aware of the nature of the property and the conditions attached to the tenancy in those properties and, therefore, it would not be correct to permit them to make a challenge by raising a plea of discrimination, at this distance of time. 7. We cannot also lose sight of the fact that the Wakf Act is a special enactment consistent with the fundamental provisions of the Constitution and therefore this special enactment will be protected under Article 26 of the Constitution of India. 8. Insofar as the submission made by the appellants’ counsel to the effect that the building was constructed with advance received from the prospective tenants, it must be noted that the writ petitioners have been in occupation of the building for last about 18 years and if any legal issue can be raised by virtue of the advance payment, the same can certainly be canvassed before the competent Tribunal. We are therefore not expressing any opinion on this aspect of the arguments, advanced before us. 9. We are therefore not expressing any opinion on this aspect of the arguments, advanced before us. 9. In the light of the above discussion, the Writ Appeal is found devoid of merit and the same is dismissed. However, the contention regarding receipt of advance is kept open to be agitated by the appellants before the appropriate forum. It is ordered accordingly.