E.K.JAMAL Vs. UNION OF INDIA

JUDGEMENT

(1.) Tenants occupying buildings belonging to the 5 th 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 4 th respondent. Therefore the Board observed that, subject to disposal of the eviction proceeding pending before the 4 th 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 4 th 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 6 th 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.