Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 126 (KER)

E. K. Jamal, S/o Kunjumuhammed v. Union Of India

2020-02-03

C.K.ABDUL REHIM, T.V.ANILKUMAR

body2020
JUDGMENT : C.K.ABDUL REHIM, J. Tenants occupying buildings belonging to the 5th respondent waqf namely, 'Kuzhikattumoola Jama-ath Palli', are the petitioners herein challenging Exts.P4 to P18 notices issued under Section 54(1) of the Waqf Act, 1995 ('the Act', for short). Inter alia, the petitioners seek direction to the 'Interim Mutawalli' of the waqf concerned, to permit the petitioners to continue their occupation in the leased out buildings, by accepting 5% increase in the amount of rent. The petitioners are also seeking declaration that they are not 'encroachers' coming within the purview of Sections 54 and 56 of the Act. 2. The word 'encroacher' defined under Section 3(ee) of the Act takes within its sweep, a person whose tenancy or lease or licence has expired or has been terminated by the 'Mutawalli' or the Board. In the case at hand it is contended that, the petitioners are in occupation of the buildings for more than 15 to 20 years and the 'Mutawalli' had renewed the leases by enhancing the rent, periodically. It is alleged that there arose rivalry between the 'Mutawalli Committee' and the petitioners, in connection with disputes relating to election of the 'Managing Committee' of the waqf. As a result, the 6th respondent herein filed complaints before the Waqf Board and the Chief Executive Officer, seeking eviction of the petitioners. According to the petitioners, they filed objections in the matter. Before the Waqf Board, O.P. No.64 of 2017 filed by the 6th respondent and some others were pending. In Ext.P2 order passed by the Board on 13.12.2019, it was observed that, the management of the Waqf is now vested with an 'Interim Mutawalli' appointed by this court and it was noticed that a proceedings initiated under Section 54 of the Act is pending before the 4th respondent. Therefore the Board observed that, subject to disposal of the eviction proceeding pending before the 4th respondent, the 'Interim Mutawalli' shall take steps to lease out the shop rooms in accordance with the procedure prescribed under the Waqf Properties Lease Rules, 2014 ('the Lease Rules', for short). It is stated that, the proceedings which were pending before the 4th respondent was also not pursued subsequently because of Ext.P3 withdrawal petition filed by the complainants. It is stated that, the proceedings which were pending before the 4th respondent was also not pursued subsequently because of Ext.P3 withdrawal petition filed by the complainants. But, thereafter the petitioners were served with Exts.P4 to P18 notices requiring them to appear before the 4th respondent to participate in an enquiry with respect to alleged encroachment in the buildings of the Waqf property owned by the 5th respondent waqf. They were requested to appear before the 4th respondent, either in person or through pleader or through someone authorised to represent and to submit a written version, on or before the stipulated date. It is specified in the notices that the proceedings were initiated on the basis of a complaint submitted by the 6th respondent, dated 13.12.2019. The above notices are challenged on various grounds. It is contended that, with respect to petitioners 1 to 6, the lease period has not yet expired. It is also submitted that, the rental agreements with respect to some others were not renewed by the 'Mutawalli' after the expiry of the original period. It was also contended that, for the purpose of renewing the lease for a period of less than one year, no prior permission of the Board is required and the 'Mutawalli' has to take action for renewal of the lease on an yearly basis. Under such circumstances, it is contended that, the proceedings initiated under Section 54 of the Act is unsustainable. Relying on Rule 11 of the Lease Rules, it is contended that the renewal of lease by increasing the rental amount by 5% is permissible. Yet another contention raised is that, the amendment brought into the Act in the year 2013 is not applicable to petitioners and they can be evicted only in accordance with provisions contained in the Transfer of Property Act, 1882 or the Kerala Buildings (Lease and Rent Control) Act, 1965, as the case may be. 3. Heard; Sri. T.M. Abdul Latiff, learned counsel appearing for the petitioners and Adv. Sri. T.K. Saidalikutty, learned standing counsel appearing for respondents 3 and 4. We also heard learned Assistant Solicitor General appearing for the 1st respondent and learned Senior Government Pleader appearing for the 2nd respondent. 4. 3. Heard; Sri. T.M. Abdul Latiff, learned counsel appearing for the petitioners and Adv. Sri. T.K. Saidalikutty, learned standing counsel appearing for respondents 3 and 4. We also heard learned Assistant Solicitor General appearing for the 1st respondent and learned Senior Government Pleader appearing for the 2nd respondent. 4. We need not consider the contentions raised against the proceedings initiated under Section 54 of the Act, because, the impugned proceedings are only at the stage of issuing show-cause notices as contemplated under Section 54(1), wherein the petitioners are provided with an opportunity to object the proposed action and are also provided with opportunity to participate in the enquiry contemplated. Under normal circumstances, the petitioners have to raise all the contentions before the 4th respondent itself, who is at an obligation to conduct the enquiry based on such objections. Further, we notice that, even if the 4th respondent is satisfied, after the enquiry, that the building is a waqf property and that there are encroachments, he can only make an application to the Tribunal for grant of orders of eviction for removing such encroachment and to deliver possession of the building to the 'Mutawalli' of the waqf, as contemplated under sub-section (3) of Section 54. Before the Tribunal also, it is obligatory that the parties in occupation (the alleged encroachers) shall be provided with an opportunity of hearing, as indicated in the proviso to sub-section(4) of Section 54. Therefore, all the contentions against Exts. P4 to P18 notices can be agitated before the appropriate fora as mentioned hereinabove. Therefore, under normal circumstances, exercise of the discretionary jurisdiction vested on this court under Article 226 of the Constitution of India is not warranted. 5. But in the case at hand, we take note of the fact that, Exts.P4 to P18 notices are issued only by the Junior Superintendent in the 3rd respondent Board. A legal question arises as to whether the Junior Superintendent in the 3rd respondent is vested with powers to issue any notice under Section 54(1) of the Act. 5. But in the case at hand, we take note of the fact that, Exts.P4 to P18 notices are issued only by the Junior Superintendent in the 3rd respondent Board. A legal question arises as to whether the Junior Superintendent in the 3rd respondent is vested with powers to issue any notice under Section 54(1) of the Act. In a Division Bench Ruling of this Court in Hamza Hajee P.K. v. Kerala State Wakf Board and Others [ 2019(2) KHC 527 ], to which one among us was a party [C.K. Abdul Rehim (J)], it was held that, power for removal of encroachment is vested only with the Chief Executive Officer and on the Waqf Tribunal, and that the Chief Executive Officer cannot delegate such power to any other officer of the Waqf Board. While considering the scope of the statutory provisions contained in Section 54 of the Act, it was found that, the Chief Executive Officer himself has to initiate proceedings under Section 54 and he is bound to conduct an enquiry based on the objection, if any, received from the alleged encroacher. On satisfaction about the encroachment, the Chief Executive Officer is bound to approach the Waqf Tribunal for getting an order of removal of the encroachment. Since there exists no provision empowering the Chief Executive Officer to delegate such power to any other Officer, the proceedings initiated by the Divisional Officer of the Board in that case for removal of the petitioner therein on the basis that they are encroachers, was found to be without jurisdiction or competence. 6. In another Division Bench decision of this Court in Ezhome Sunni Valiya Juma Masjid v Kerala State Waqf Board ( 2019(3) KLT 1064 ), while dealing with the provisions contained in Section 32 of the Waqf Act, this Court observed that, the provisions dealing with the powers and duties of the Waqf Board, and with other related provisions under the Act, would reveal that there may be many acts which may be done by the Board. Among them, some are obviously administrative in nature. But, when the Board is called upon to decide a 'lis' which falls within its jurisdiction and has to be done based on materials made available before it, after hearing the parties, the decision has far reaching repercussions on the rights of the parties. It is a quasi-judicial function. Among them, some are obviously administrative in nature. But, when the Board is called upon to decide a 'lis' which falls within its jurisdiction and has to be done based on materials made available before it, after hearing the parties, the decision has far reaching repercussions on the rights of the parties. It is a quasi-judicial function. A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. It is subject to some measure of judicial procedure. As regards quasi-judicial functions, they cannot be delegated unless the authority concerned is enabled to do so expressly or by necessary implication. The general principle is that where any kind of a decision on a lis has to be made, it must be made by the authority empowered by the statute concerned and by no one else. 7. Based on the principle remaining settled as above, we may now proceed to analyse the provisions contained in Section 54 of the Act. It provides that, 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 a waqf property, and which has been registered as such under the Act, the Chief Executive Officer 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 remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned 'Mutawalli'. Sub-section (3) of Section 54 provides that, after considering the objections if any by the alleged encroacher and after conducting an enquiry in such manner as may be prescribed, if the Chief Executive Officer is satisfied that the property in question is a waqf property and that there has been an encroachment, he may make an application to the Tribunal for grant of an order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the 'Mutawalli' of the waqf. 8. 8. Rule 82 of the Kerala State Waqf Rules, 2019, prescribes the procedure to be adopted by the Chief Executive Officer for removal of the encroachment in any waqf property. It provides that, the Chief Executive Officer shall cause to serve a notice for an enquiry, as per subsection (1) of Section 54 of the Act, to the encroachers, specifying the particulars of the encroachment, calling upon such person to show cause before a date fixed as to why an order requiring them to remove the encroachment should not be made against them. The notice should inform them about the date, place and time fixed for holding the enquiry. Sub-rule (2) of Rule 82 mentioned above, stipulates that the Chief Executive Officer shall record oral evidence of the complainant, encroacher and witnesses, if any, and shall follow the procedure laid down in the Code of Civil Procedure with respect to matters like appearance of witnesses, filing of affidavits, production of documents, examination of witnesses, issue of commission and passing of interim orders. The mode of service of such notices is prescribed under Sub-Rule (3). Sub-Rule (6) of Rule 82 stipulates that the Chief Executive Officer, during the enquiry, shall record the summary of the evidence tendered before him and the summary of such evidence and any relevant document filed before him shall form part of the records of the proceedings. Under Sub-Rule (7) of Rule 82, after conducting such an enquiry on the basis of objections if any received, the Chief Executive Officer shall record his findings as to whether there has been any encroachment with respect to the Waqf property and if any such finding is arrived, he may make an application to the Waqf Tribunal for grant of an order of eviction for removing such encroachment. 9. The comprehensive procedure contemplated under Sub-Sections (1) to (3) of Section 54 read with the Rules contained in Rule 82 of the Kerala State Waqf Rules, 2019, would clearly indicate that, the powers vested and the exercise necessitated upon by the Chief Executive Officer, even though administrative in nature, is a power to be exercised based on materials made available before him, after hearing the parties and after conducting an enquiry. Therefore it assumes all characteristics of a quasi-judicial function, which the law requires to be exercised in some respects as if it were judicial. Therefore it assumes all characteristics of a quasi-judicial function, which the law requires to be exercised in some respects as if it were judicial. On a perusal of the impugned notices (Exts.P4 to P18), it is evident that the Junior Superintendent had informed the petitioners that the complaint filed by the 6th respondent is with respect to alleged encroachment of the shop rooms in the waqf property of the 5th respondent Jama-ath and therefore the petitioners were requested to appear before the Chief Executive Officer at the time and place mentioned therein and to submit written version on or before the mentioned date and time, failing which, the matter will be heard and decided in the absence of the petitioners. Learned Standing Counsel appearing for the respondents 3 and 4 contended that, since the appearance was requested before the Chief Executive Officer, the impugned notices do not suffer from any legal infirmity, de hors it is issued by the Junior Superintendent. In this regard, provisions contained in Section 54(1) assumes importance. The proceedings need to be initiated by the Chief Executive Officer either on receiving any complaint or on his own motion, when he considers that there has been an encroachment on any building which is a waqf property and which is registered under the Waqf Act. Therefore, the quasi-judicial function vested on the Chief Executive Officer starts with an initial consideration regarding the alleged encroachment, either on the basis of a complaint received or on his own motion. Therefore, the exercise of such consideration and the issuance of the show cause notice, has to be done by the Chief Executive Officer himself. Learned Standing Counsel had further drawn our attention to the provisions contained in Sub-Section (1) of Section 54 itself, wherein it is provided that, “he shall caused to be served upon the encroacher a notice”. It is argued that, only for the purpose of serving the notice on the alleged encroacher, it is entrusted to the Junior Superintendent and the notice would clearly indicate that the enquiry will be conducted by the Chief Executive Officer himself. But, according to us, there exists a cardinal difference between issuance of notice and causing of serving of a notice. In the case at hand, the notice itself is seen issued by the Junior Superintendent and it does not indicate anything about consideration of the complaint by the Chief Executive Officer. But, according to us, there exists a cardinal difference between issuance of notice and causing of serving of a notice. In the case at hand, the notice itself is seen issued by the Junior Superintendent and it does not indicate anything about consideration of the complaint by the Chief Executive Officer. A preliminary subjective satisfaction by the Chief Executive Officer that there has been an encroachment, is totally lacking in the notices. Therefore it cannot be considered as a notice issued by the Chief Executive Officer or as a notice issued on behalf of the Chief Executive Officer. Learned Standing Counsel further draw our attention to Rule 70 of the Kerala State Waqf Rules, 2019 which provides that notices requiring summoning to appear before the Board or its Officer at any stated time and place, shall be in writing and authenticated by the Chief Executive Officer or any Officer specially authorised in this behalf. In the case of a proceeding under Section 54 of the Act, the Officer specially authorised is the Chief Executive Officer and therefore the notice can be issued only by him and it can be caused to be served through any Officer authorised on that behalf. But, as mentioned above, the impugned notices do not indicate that they were issued by the Chief Executive Officer or under orders of the Chief Executive Officer. Therefore, we are inclined to hold that the impugned notices cannot be sustained legally as one issued by the 4th respondent in proper compliance of subsection (1) of Section 54. Under the above mentioned circumstances, Exts.P4 to P18 notices cannot be sustained legally and the writ petition deserves merit to that extent. Hence, the above writ petition is hereby allowed and Exts.P4 to P18 notices as well as the proceedings initiated on the basis of such notices, are hereby quashed. However, it is made clear that, the above judgment will not stand in the way of the 4th respondent initiating fresh steps for removal of encroachment of the petitioners, to the extent legally sustainable.