High Court of KeralaWP(C)/24177/2015disposed of

Aboobacker v. The Chief Executive Officer, Kerala State Waqf Board

2015-10-19Honourable Mr. Justice A.Muhamed Mustaque5 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 19TH DAY OF OCTOBER 2015/27TH ASWINA, 1937 WP(C).No. 24177 of 2015 (V) ---------------------------- PETITIONER:

------------------- ABOOBACKER, AGED 48 YEARS, S/O.MOIDEEMKUTTY, KUNDILPEEDIKAYIL HOUSE, P.O.PONNANI, THEYYANGADU DESAM, EAZHAVATHURUTHY VILLAGE, PONNANI TALUK, MALAPPURAM DISTRICT.

BY ADVS.SRI.P.G.SURESH SRI.G.SUDHEER (THURAVOOR) SRI.RAJAN VISHNURAJ SRI.V.HARISH RESPONDENT(S):

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1. THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD, ERNAKULAM, V.I.P.ROAD, KALOOR P.O, ERNAKULAM DISTRICT, PIN-682 017.

2. ABDUL GAFOOR, AGED 35 YEARS, S/O.ABDULLA, VALIYAPARAMBATH HOUSE, P.O.PONNANI, THEYYANGADU DESOM, EAZHAVATHURUTHY VILLAGE, PONNANI TALUK, MALAPPURAM DISTRICT-679 576.

3. THE MUTHAVALLY, VALIYAPARAMBATH THITHACHUMMA WAQF, P.O.PONNANI, MALAPPURAM DISTRICT-679 576.

4. THE ADDITIONAL TAHSILDAR, PONNANI TALUK OFFICE, P.O.PONNANI, MALAPPURAM DISTRICT-679 576.

5. THE VILLAGE OFFICER, EAZHAVATHURUTHY VILLAGE, PONNANI, MALAPPURAM DISTRICT-679 576.

R1 BY SRI.K.SHIBILI NAHA, SC, R4 & R5 BY GOVERNMENT PLEADER SRI.MANOJ KUNJACHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

mbr/

WP(C).No. 24177 of 2015 (V) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS:

------------------------------------- EXT.P1THE TRUE PHOTOCOPY OF THE BUILDING TAX RECEIPT DATED 7.2.2014 ISSUED BY PONNANI MUNICIPALITY. EXT.P2A TRUE PHOTOCOPY OF THE CASH RECEIPT DATED 10.2.2014 FOR THE PAYMENT OF LICENSE FEE.

EXT.P3TRUE PHOTOCOPY OF THE TAX ASSESSMENT REGISTER KEPT WITH THE OFFICE OF PONNANI MUNICIPALITY FOR THE BUILDING NO.860 (OLD NO.729).

EXT.P4- A TRUE PHOTOCOPY OF THE NOTICE FOR APPEARANCE IN E4-4715/2014 DATED 14.11.2014.

EXT.P5A TRUE PHOTOCOPY OF THE OBJECTION DATED 6.1.2015 FILED BY THE PETITIONER HEREIN IN E4/4715/2014 BEFORE THE 1ST RESPONDENT.

EXT.P6A TRUE PHOTOCOPY OF THE ORDER DATED 4.7.2015 IN E4/4715/2014 PASSED BY THE 1ST RESPONDENT.

RESPONDENT(S)' EXHIBITS:

NIL --------------------------------------- //TRUE COPY// P.S. TO JUDGE mbr/

A.MUHAMED MUSTAQUE, J.

***************************************************************************** W.P.(C) No.24177 of 2015 ****************************************************************************** Dated this the 19th day of October, 2015

JUDGMENT

The petitioner has approached this Court challenging the proceedings of the Chief Executive Engineer, Waqf Board in a proceedings initiated under Section 54(2) of the Waqf Act, 1995. 2.

In the Waqf Act, the Chief Executive Officer has a power to remove the encroachment in a Waqf property (see the provisions under Section 54 of the Waqf Act). The Chief Executive Officer initiated proceedings under Section 54 by issuing notice to the petitioner. The Chief Executive Officer is also obtained a report from the Additional Tahsildar. The Additional Tahsildar stated that the petitioner has encroached Waqf land in Survey No.162/8 of Eazhavathuruthy Village, Ponnani Taluk.

3. The dispute now being raised by the petitioner that the Tahsildar has identified the property without any notice to the petitioner. Admittedly, the attempt of the Waqf Board is to find out the land owned by Valiya Parambath Thithachumma Waqf as

W.P.(C) No.24177 of 2015 2 referred in the document No.1211/1948. There can be any dispute regarding the power of the Chief Executive Officer to remove the encroachment.

This Court is of the view that there should be an identity of the property after issuing notice to the petitioner that while the Chief Executive Officer directing the Tahsildar to identify the property ought to have asked the Tahsildar to give notice to the petitioner or to the alleged encroachers. Any exercise done by the Tahsildar without notice to the encroacher to identify the property would amount to denial of principles of natural justice. In such circumstances, following directions are issued: i.

The fourth respondent shall issue a notice to the petitioner as well as the officials of the Waqf Board and identify the property in the presence of the petitioner.

ii. This shall be done within two months from the date of receipt of a copy of this judgment.

iii. Thereafter, the fourth respondent shall send a report regarding demarcation of the Waqf property to the first respondent.

W.P.(C) No.24177 of 2015 3 iv. Thereafter, the first respondent is free to proceed under Section 54(2) of the Waqf Act to remove any encroachment.

v. Needless to say that the Waqf Board while passing any further orders, shall issue a notice to the petitioner.

The writ petition is disposed of as above.

Sd/- A.MUHAMED MUSTAQUE, JUDGE ln