Nawab Wallajah Sahib Pallivasal vs The Chief Executive Officer, Tamil Nadu Wakf Board and Others

R. Banumathi, J.—Petitioner-Nawab Wallajah Sahib Pallivasal seeks Writ of Mandamus directing the Respondents to retrieve its

encroached property of an extent of 22,000 and odd esq. in TTS. No. 943, Cheraw Mahadevi Road, Petal, Tirunelveli District and hand over the

same to the Petitioner Pallivasal.

Petitioner Pallivasal is having properties in and around Tirunelveli District including the property in TTS. No. 943 of Cheraw Mahadevi Road,

Petal, Tirunelveli. Property in dispute in TTS. No. 943 to an extent of 40,304 esq. is entangled in series of litigations. The above said property was

given as long lease for a period of 21 years by the then Mutawalli of the Petitioner Pallivasal viz. late Sherif Khan in the year 1991 to one late

Meeran Mohideen Bharthi who was a Director of Tamil Nadu Religious and Language Minority Educational Society and Training Institutes on a

monthly rent of Rs. 825/-. Case of Petitioner is that the said long lease of 21 years is in contravention of the provisions of Wakf Act and the same

is not valid.

After coming to know about the illegal lease through the 2nd Respondent-Superintendent of Wakf, 1st Respondent-Chief Executive Officer

issued a show cause notice to late Meeran Mohideen Bharthi on 13.08.2002 and he was asked to surrender possession to the Petitioner Pallivasal

on 31.08.2002. Even though the said Meeran Mohideen Bharthi received the show cause notice on 26.08.2002, he has not surrendered the

possession. By the Proceedings in letter Rc. No. 2245/B1/82/TNV dated 19.09.2002, 1st Respondent directed the Petitioner Pallivasal to

recover the property from the illegal occupation. In the mean while, late Meeran Mohideen Bharthi had filed a civil suit in O.S. No. 315 of 2002

on 06.09.2002 before the Sub-Court, Tirunelveli against the Secretary, Tamil Nadu Wakf Board and the same came to be dismissed due to non-

prosecution on 09.06.2004.

When the matters stood thus, Respondents 5 and 6 have purchased the superstructure on the land and leasehold rights of the land from the said

Meeran Mohideen Bharthi by sale deeds dated 19.01.2000 and 03.11.2000 respectively. On coming to know about the same, Petitioner

Pallivasal had written a letter to the 1st Respondent to take action against the 6th Respondent-Muthukumar to recover the property from him by

letter dated 28.10.2009. Stating that 1st Respondent has not taken any steps to retrieve the property as per the provisions of Wakf Act, Petitioner

Pallivasal filed W.P.(MD) No. 3734 of 2010. 6th Respondent had filed civil suit before the Wakf Tribunal (Sub-Court), Tirunelveli in O.S. No.

145 of 2010 in June 2010 to declare him as a tenant of the Petitioner Pallivasal and other reliefs. Writ Petitioner has filed the vakalat and is

defending the suit.

According to Petitioner only by perusal of the plaint, they came to know that 6th Respondent has allegedly purchased 18,507 esq. from late

Meeran Mohideen Bharthi and the area nearly 22,000 esq. are under the encroachment of the 5th Respondent. Stating that only after filing of the

suit (O.S. No. 145 of 2010), they came to know that 5th Respondent-Stalin Pandian has been in illegal encroachment of 22,000 esq. of the

Petitioner Pallivasal property, the Petitioner had written a letter in July 2010 [date nil] to the 1st Respondent to retrieve the property from the 5th

Respondent. Stating that Respondents 1 and 2 have not taken any action to retrieve the property from 5th Respondent, Petitioner Pallivasal has

filed this Writ Petition seeking for a Writ of Mandamus directing the Respondents to retrieve the encroached property of an extent of 22,000 esq.

in TTS. No. 943 of Cheraw Mahadevi, Petal, Tirunelveli District.

When the Writ Petition was filed, Respondents 5 and 6 were not impleaded as party Respondents. The Division Bench has passed an order on

09.08.2010 observing that as per Section 56 of Wakf Act lease or sub-lease of immovable property for a period exceeding 3 years be void and

proper course to be adopted as per the provisions of Wakf Act and interalia issued a direction to the 1st Respondent to redeem the property and

hand over the same to the Petitioner Pallivasal. The Division Bench interalia issued various other directions which may not be relevant in view of the

subsequent developments.

Respondents 5 and 6 have filed M.P.(MD) No. 4 and 5/2010 to implead themselves and also to recall the above said order dated 09.08.2010.

It was brought to the notice of the Court that for the same relief, Petitioner has earlier filed W.P.(MD) No. 3734/2010 wherein the prayer is on the

same line and the pendency of the earlier Writ Petition was not brought to the notice of the Division Bench. By the order dated 22.09.2010, the

earlier order dated 09.08.2010 ordered to be recalled and the Respondents 5 and 6 were ordered to be impleaded.

Case of Respondents 5 and 6 is that on 04.02.1991 the then Mutawalli late Sherif Khan has executed a long term lease infavour of late Meeran

Mohideen Bharthi and for putting up construction upon the said property, the said Meeran Mohideen Bharthi has obtained periodical permission

from the then Mutawalli. Case of Respondents 5 and 6 is that after obtaining consent from the then Mutawalli, the superstructure and leasehold

rights in respect of the above said property was transferred to Respondents 5 and 6. According to Respondents 5 and 6, pursuant to the

permission on 31.08.1998, an agreement was executed by the said Meeran Mohideen Bharthi and the Mutawalli Sherif Khan and they have also

executed concurrence deed and the leasehold right and superstructure was transferred for a total sum of Rs. 5,00,000/-. Again on 19.01.2000 for

a sum of Rs. 6,00,000/-, the remaining portion in TTS. No. 943 has been transferred to Respondents 5 and 6. According to Respondents 5 and

6, they have been regularly paying the ground rent of Rs. 800/- to the then Mutawalli. After the death of Mutawalli Sherif Khan in 2001, rent

amount is said to have been paid to his brother Basha. After the death of Basha on 26.10.2005, his son Abdul Meiah Khan has taken charge to

whom the periodical rent is said to have been paid.

According to Respondents 5 and 6, there arose a dispute with regard to the administration of the Petitioner Pallivasal in which Wakf Board has

nominated a Committee to deal with the issue and the Committee declared that Petitioner Pallivasal would come under the control of Wakf Board

and decision was also taken to evict all the lessees as well as tenants who are under the occupation of the Petitioner Pallivasal property and

thereafter, Petitioner Pallivasal refuse to receive any rent from the Respondents 5 and 6 and others. Since nobody came to receive the monthly

rent, 5th Respondent is said to have filed O.S. No. 145 of 2010 before the Sub-Court, Tirunelveli. After the receipt of notice in W.P.(MD) No.

3734/2010, 5th Respondent has filed a civil suit in O.S. No. 267 of 2010 to declare him as a tenant under the Petitioner Pallivasal. According to

Respondents 5 and 6, the leasehold rights and superstructure had been transferred to them by document dated 08.11.2010 in favour of 6th

Respondent-Muthukumar. Case Respondents 5 and 6 is that without properly disclosing the factual arena, Respondents 5 and 6 ought not to have

been simply named as encroachers and seek for removal of encroachment. According to Respondents 5 and 6 the right is yet to be finalised by the

civil forum in O.S. No. 267 of 2010 and O.S. No. 145 of 2010 and even while pendency of W.P.(MD) No. 3734/2010, the present Writ Petition

filed is premature and the Petitioner Pallivasal is not entitled to the relief sought for.

Mr. S. Balasubramaniam, learned Counsel for Petitioner contended that the long lease of 21 years is in contravention of the provisions of

Section 56(1) of Wakf Act and the same is not valid. It was further contended that possession of late Meeran Mohideen Bharthi was termed by

the 1st Respondent as ""encroacher"" on the Wakf property and therefore, the person claiming through or under the late Meeran Mohideen Bharthi

is also an ""encroacher"". According to Petitioner, 1st Respondent has sent a letter to the 3rd Respondent requesting him to take action to recover

the property encroached by the 6th Respondent by letter dated 26.05.2010 marking the copy to the Petitioner Pallivasal. Since no action was

taken by the 3rd Respondent, suitable direction has to be issued to the Respondents 1 to 4 to remove the encroachment.

Drawing our attention to Section 54 of Wakf Act, Mr. Ajmal Khan, learned Counsel appearing for Respondents 1 and 2 contended that u/s

54, 1st Respondent is empower to hold enquiry and pass orders requiring the encroacher to remove the encroachment and deliver possession of

the land, building, space or other property encroached upon to the Mutawalli of the Wakf. It was further submitted that as per Section 55 of Wakf

Act where the person ordered to remove any encroachment, omits or fails to remove such encroachment within the time specified in the order then

the Chief Executive Officer may apply to the Sub-Divisional Magistrate to remove the encroachment. It was therefore, contended that when

Section 56 prohibits lease or sub-lease for any period exceeding 3 years, late Meeran Mohideen Bharthi had no legal right to continue in

possession and therefore, Respondents 5 and 6 are to be termed as ""encroachers"" in the Wakf property. As per Section 55 of Wakf Act,

statutory duty cast upon the authorities to remove the encroachment and once that statutory duty is not performed, it is always open to the

Petitioner Pallivasal to file Writ Petition for a Writ of Mandamus to direct the authorities to perform the statutory duty removing the encroachment.

Appearing for Respondents 5 and 6, Mr. K.M. Vijayan, learned Senior Counsel raised strong objection as to the maintainability of the Writ

Petition contending that the present Writ Petition is on the same line prayer as that of W.P.(MD) No. 3734/2010. It was contended that Writ

Petition could be filed before the Division Bench only if it is an encroachment of path way or property belonging to the public body or local

authority and while so, the present Writ Petition filed before the Division Bench is not maintainable. It was further argued that Respondents 5 and 6

claim through transfer of leasehold right and superstructure for valid consideration and hitherto they have been paying the rent to the then Mutawalli

and while so, Respondents 5 and 6 cannot be termed as ""encroachers"" simpliciter. It was further submitted that Section 54 would lie only against a

confirmed encroachment and Section 54 cannot be invoked on the presumptive footing that they are encroachers.

As pointed out earlier, W.P.(MD) No. 3734/2010 was filed by the Petitioner Pallivasal against the Respondents 1 to 3 and 6th Respondent-

Muthukumar seeking for a Writ of Mandamus on 18.03.2010. The prayer in the Writ Petition reads as under:

... direct the Respondent No. 3 to acquire our Pallivasal land and building encroached by the Respondent No. 4 at Survey No. 943, Ward No. 3,

Block-11, Door No. 11, Cheranmaha devi Road, Petal, Tirunelveli and entrust the same to the Respondent No. 1 and 2 and to consider the

Petitioner''s representation dated 12.11.2009. ....

After receiving rule nisi in the Writ Petition, Respondents 5 and 6 have filed O.S. No. 267 of 2010 before the Sub-Court, Tirunelveli to declare

them as tenants. On receipt of summons, Petitioner Pallivasal is also said to have entered appearance in O.S. No. 267 of 2010. In August 2010,

again Petitioner Pallivasal has filed Writ Petition [W.P.(MD) No. 10288/2010] before the Division Bench seeking Writ of Mandamus almost on

the same line as W.P.(MD) No. 3734/2010 as is seen from the following:

... to direct the Respondents to retrieve the encroached property an extent of 22,000 and odd square feet in Town Survey No. 943, Ward No. 3,

Block No. 11 and 12 in Cheraw Mahadevi Road, Petal, Tirunelveli District and hand over the same to the Petitioner mosque (wakf) ....

As rightly contended by the learned Senior Counsel for Respondents 5 and 6, the prayer in the Writ Petition is almost on the same line and it is not

known how the subsequent Writ Petition came to be filed before the Division Bench.

In the Public Interest Litigation, in Ramaraju Vs. The State of Tamil Nadu and Others, , the Court has issued guidelines for removal of

encroachment on road or road margins vested in Municipalities; unauthorised encroachment of National Highways and State Highways. In the

instant case, admittedly the property in question is Wakf property, we are of the view that the present Writ Petition for removal of encroachment

ought not to have been filed before the Division Bench.

Be that as it may, coming to the merits of the matter, Petitioner seeks removal of encroachment on the footing that Respondents 5 and 6 are

the encroachers. According to Petitioner Pallivasal, being requested by the 1st Respondent-Chief Executive Officer, Wakf Board, statutory duty is

cast upon the Respondents 3 and 4 to remove the encroachment and therefore, suitable direction has to be issued to the Respondents 3 and 4 to

remove the encroachment in the Wakf property.

Provisions of Sections 54 and 55 incorporate the procedure for the removal of encroachment for the Wakf property. Section 54 lays down

that whenever the Chief Executive Officer on his own motion or on receiving any complaint in this regard that there has been encroachment on any

Land, building space or other property which is a Wakf property or has been registered as Wakf property, he shall serve a notice upon the

encroacher calling upon his explanation, before the date specified in the notice, as to why he should not be required to remove encroachment from

the Wakf property. Copy of the notice should also be given to the concerned Mutawalli. After receiving objections, if any, the Chief Executive

Officer is satisfied that the property in question is a Wakf property and there has been an encroachment on it, he may, by an order require the

encroacher to remove such encroachment and deliver the possession of the Wakf property to the concerned Mutawalli. Any person aggrieved by

such order of the Chief Executive Officer may institute a suit in the Wakf Tribunal to establish his right, title or interest in the Wakf property. As per

the proviso, however no such suit shall be instituted by a person who has been let into possession of such Wakf property by the Mutawalli of the

Wakf or by any other person authorised by the Mutawalli in this behalf.

Section 55 of Wakf Act provides for the procedure for the enforcement of the order made by the Chief Executive Officer u/s 54 and lays that

where any person ordered under Sub-section (3) of Section 54 to remove any encroachment omits or fails to remove such encroachment from the

Wakf property, then the Chief Executive Officer may apply to the concerned Sub-Divisional Magistrate for evicting such encroacher. On receiving

such application from the Chief Executive Officer the Magistrate has to make an order directing the encroacher to remove encroachment from the

Wakf property and deliver the possession to the concerned Mutawalli. In case of default of compliance with the order of the Magistrate to hand

over possession of the Wakf property, the Magistrate shall evict the encroacher and for this purpose he can take such police assistance as may be

necessary.

As pointed out earlier, on 04.02.1991, the then Mutawalli Sherif Khan had executed the leasehold agreement infavour of late Meeran

Mohideen Bharti for a period of 21 years. According to Respondents 5 and 6, on permission granted by the then Mutawalli, late Meeran

Mohideen Bharti had transferred the superstructure and leasehold rights to the Respondents 5 and 6 for valid consideration. Further case of

Respondents 5 and 6 is that they have been regularly paying the rent to the Mutawalli/person in administration of the Petitioner Pallivasal till the

Pallivasal came under the control of Wakf Board as per the decision of the Committee. Having regard to the stand taken by the Respondents 5

and 6, in our considered view, disputed questions of facts are involved. When Respondents 5 and 6 claim right to be in occupation by virtue of the

documents executed in their favour, the validity of the same is a question of fact and law to be determined.

u/s 56 of Wakf Act, a total restriction is imposed on the power to grant lease or sub-lease of a Wakf property for a period exceeding three

years and any such lease, if granted, shall be void and of no effect. Any lease for a period exceeding one year can be granted subject to the

previous sanction of the Wakf Board. Therefore, in effect, a lease for a period of less than one year does not require any sanction from the Wakf

Board while it is so required for a period between one year to three years.

It was contended that any lease for a period exceeding three years even if there is any direction to the Wakf Board, it has to be ignored and as

per Sections 56 and 55, Respondents 5 and 6 cannot claim any right to be tenants under the Petitioner Pallivasal. Of course, lease exceeding three

years may not be a valid lease. But the question falling for considered is merely because the original lease was for 21 years which is in violation of

Section 56 whether it would lead to the presumption that Respondents 5 and 6 are encroachers is to be examined.

21.Learned Senior Counsel for Respondents 5 and 6 submitted that since the dispute involves questions of fact and law, the question has to be

decided only by the Civil Court where the suits filed by Respondents 5 and 6 are pending. As pointed out earlier, Sections 54 and 55 of Wakf Act

deals with the procedure for removal of encroachment of the Wakf property. Section 54 lays down that whenever the Chief Executive Officer on

his own motion or on receiving any complaint in this regard that there has been encroachment on any land, building space or other property which

is a Wakf property or has been registered as Wakf property, he shall serve a notice upon the encroacher calling upon his explanation and order

enquiry. In the instant case admittedly, the property in question is Wakf property. In our considered view, pendency of the Civil suit may not oust

the jurisdiction of 1st Respondent-Chief Executive Officer. Lest, the embargo u/s 85 of Wakf Act regarding bar of jurisdiction of the Civil Courts

would become otiose. However, we do not propose to express our views regarding pending Civil cases or power of Chief Executive Officer to

invoke Section 54 of Wakf Act. We leave the matter as it is. Suffice it to note that in view of the complex questions involved, the same cannot be

resolved in the Writ Petition.

In the result, the Writ Petition is dismissed. Consequently, connected M.P. is closed. No costs.