Dismissed

Raphimon M.E v. Kerala State Waqf Board

Kerala HC1 Nov 2016WP(C)/21218/2015

Case brief

AI extract

What is this about?

This writ petition challenged a notification inviting tenders for leasing immovable waqf property. The court held that present lessees lose preference if they fail to participate in the bid and match the highest rent, and that the tender conditions were not arbitrary. The petitions were dismissed.

What did the court decide?

No relief; the writ petitions were dismissed and the notification was upheld.

Raphimon M.E Vs Kerala State Waqf Board — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938

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WP(C).No. 21218 of 2015 (B)

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PETITIONERS:

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RAPHIMON M.E., AGED 31, S/O.EBRAHIM M.M., RESIDING AT 'MUNDIKUNNEL', VANNAPPURAM, THODUPUZHA, IDUKKI - 685 582.

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EBRAHIM M.M., AGED 60, S/O.MUHAMMED, RESIDING AT 'MUNDIKUNNEL', VANNAPPURAM, THODUPUZHA, IDUKKI-685582.

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NASEEMA EBRAHIM, AGED55, W/O.EBRAHIM, RESIDING AT 'MUNDIKUNNEL', VANNAPPURAM, THODUPUZHA, IDUKKI - 685 582.

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BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.P.G.JAYASHANKAR

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RESPONDENTS:

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KERALA STATE WAQF BOARD, VIP ROAD, KALOOR, KOCHI - 682 017 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.

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PADAMUGAL MUSLIM JAMA-ATH, PADAMUGAL, KAKKANAD, KOCHI - 682 021 REPRESENTED BY ITS SECRETARY. R2 BY ADV. SRI.SHINU J.PILLAI R2 BY ADV. SMT.S.SUJA R2 BY ADV. SRI. PHILIP T PAUL R2 BY ADV. SMT.S.P.INDULEKHA R1 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2016 ALONG WITH WPC. 33166/2016, THE COURT ON 01-11-2016, DELIVERED THE FOLLOWING:

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WP(C).No. 21218 of 2015 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	:	TRUE COPY OF THE AGREEMENT BETWEEN THE 1ST PETITIONER AND R2.
EXHIBIT P2	:	TRUE COPY OF THE AGREEMENT BETWEEN THE 2ND PETITIONER AND R2.
EXHIBIT P3	:	TRUE COPY OF THE AGREEMENT BETWEEN THE 3RD PETITIONER AND R2.
EXHIBIT P4	:	TRUE COPY OF THE LETTER DT.28-4-2015 ISSUED BY R1.
EXHIBIT P5	:	TRUE COPY OF THE REPRESENTATION BY THE PETITIONERS.
EXHIBIT P6	:	TRUE COPY OF THE LETTER DT.2-6-2015 ISSUED BY R2 TO R1.
EXHIBIT P7	:	TRUE COPY OF THE LETTER DT.27-6-2015 OF THE R1.
EXHIBIT P8	:	TRUE COPY OF THE LETTER DT.30-6-2015 OF R2 TO THE 1ST PETITIONER.
EXHIBIT P9	:	TRUE COPY OF THE LETTER DT.30-6-2015 OF R2 TO THE 2ND PETITIONER.
EXHIBIT P10	:	TRUE COPY OF THE LETTER DT.30-6-2015 OF R2 TO THE 3RD PETITIONER.
EXHIBIT P11	:	TRUE COPY OF THE REPRESENTATION DT.10-7-2015 OF THE PETITIONERS.
EXHIBIT P12	:	TRUE COPY OF THE RELEVANT EXTRACT OF THE WAQF PROPERTIES LEASE RULES-2014.
EXHIBIT P13	:	A TRUE COPY OF THE NOTIFICATION NO. A2-3255/CR DATED 05.10.2016.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE.

“C.R.”

V. CHITAMBARESH & ANIL K. NARENDRAN, JJ. ---------------------------------------------------------------WP(C) NOs. 21218 OF 2015 & 33166 OF 2016

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Dated this the 1^st day of November, 2016

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JUDGMENT

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Chitambaresh, J.

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The tendency to cling on to the tenanted premises even after the expiry of the period of the lease of the immovable waqf property is indisputably on the increase.

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The petitioners in WP(C) No. 21218/2015 are the present lessees (holding over) of a commercial building and the period of the lease in their favour by the Jama-ath has admittedly expired in the year 2015. The commercial building which is an immovable waqf property comprises of three floors and the same houses a furniture shop, a restaurant and a ladies hostel in the independent floors thereof. They challenge the notification dated 05.10.2016 issued by the Kerala State Waqf Board inviting tenders to occupy the tenanted premises for the ensuing period on certain terms and conditions. It is their case that a fresh bid

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WP(C) Nos. 21218/2015 & 33166/2016

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cannot be conducted since they are entitled to preference in the renewal of the lease particularly when they have invested heavily in the business. They have an alternative contention in that the value of the improvements effected by them have to be paid in the event of their eviction and that an abrupt dispossession would throw their business out of gear. The petitioner in WP(C) No. 33166/2016 challenges the condition in the notification requiring an Earnest Money Deposit of ` 5 lakhs as a prerequisite for participating in the bid. He points out that the deposit made on or before 24.10.2016 as per the notification would lie locked for a month unnecessarily since the bids are scheduled to be opened only on 23.11.2016. Thus steps initiated to lease the immovable waqf property by the issue of notification and the conditions thereof are impugned in these writ petitions on separate grounds dealt with hereunder.

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We heard Mr. K. Ramakumar, Senior Advocate and Mr. A.B. Jaleel, Advocate on behalf of the petitioners, Mr. K. Shibili Naha, Standing Counsel on behalf of the Kerala State Waqf Board and Mr. Shinu J. Pillai, Advocate on behalf of the

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WP(C) Nos. 21218/2015 & 33166/2016

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Jama-ath to whom the property is dedicated.

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The renewal of lease of immovable waqf property

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belonging to a Jama-ath is governed by Rule 18 of the Waqf Properties Lease Rules, 2014 ('the Rules' for short) which is extracted hereunder:

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18. Renewal of lease -(1) No lease agreement shall contain a clause providing for automatic renewal.

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(2) The Board shall, while

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renewing the lease, give preference to the present lessee if such lessee participates in the bid and matches the highest bid. (emphasis supplied)

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Thus the entitlement to have the lease renewed in favour of the present lessees as per Rule 18 of the Rules has to be worked out in the following manner in order to decide the preference and ensure transparency:

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participate in the bid of the right to occupy

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the tenanted premises.

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WP(C) Nos. 21218/2015 & 33166/2016

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event shall be given an opportunity to match the highest bid.

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(iii) The lease will be renewed in

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favour of the present lessees if they match the highest bid.

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The participation in the bid by the present lessees is a condition precedent for them to avail of the preference by matching the highest bid for which the bids received have necessarily to be opened. The participation depends on the eligibility conditions which include the Earnest Money Deposit of `5 lakhs within the time stipulated and the Rules do not speak of any exemption from deposit to the present lessees. The present lessees cannot thwart the tender itself on the premise that they would lose their preference in the renewal of the lease in the light of the statutory prescriptions quoted above.

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The Rules came into force only on 05.06.2014 and were not in vogue at the time the lease for a period of three years in favour of the petitioners in WP(C) No. 21218/2015 commenced in the year 2012. The Jama-ath is now empowered

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WP(C) Nos. 21218/2015 & 33166/2016

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to grant a lease for a period upto 30 years under Rule 19(1)(iii) of the Rules since the purpose is to run a shop, restaurant and also a hostel for ladies. The approval of the State Government is necessary only if the lease exceeds the period of three years and extends upto 30 years and that too for purposes specified in Rule 17(1) of the Rules. The Jama-ath is competent enough to lease the immovable waqf property without obtaining any approval from the State Government for a period of ten years as proposed. The petitioners in not applying for participation in the bid after making an Earnest Money Deposit of ` 5 lakhs within the deadline fixed have missed the bus and are ineligible for any preference. The lease deeds produced do not empower the present lessees to effect any improvements and the claim for its value cannot be adjudicated in proceedings under Article 226 of the Constitution of India.

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The logic behind fixing the period of the proposed lease as ten years is beyond scrutiny as it is for the Jama-ath to decide as to how best the immovable wakf property be put to use in order to generate maximum income. The insistence of making

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WP(C) Nos. 21218/2015 & 33166/2016

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an Earnest Money Deposit of 5 lakhs on or before 24.10.2016 for the bids to be opened on 23.11.2016 was criticised by the petitioners in WP(C) No. 33166/2016. It is their contention that the amount would lie locked for about a month and that the interval of time between the deposit and the opening of the bids should not exceed a week. But it is the stand of the Jama-ath that only those who can part with the sum atleast for a month need participate in the bid and that none need shine on funds borrowed for short terms. We find from the tender conditions that the successful bidder should remit the rent for 18 months as security and the insistence of the Earnest Money Deposit well in advance cannot be held as arbitrary. The present rent for each of the floors is50,000/- per month and the sum of `5 lakhs as Earnest Money Deposit comes to only ten times the rent which cannot also be said to be excessive.

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The petitioners finally contend that they be given an opportunity to participate in the bid as they have omitted to make the Earnest Money Deposit within the time stipulated in the tender notification. It is however pointed out on behalf of

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WP(C) Nos. 21218/2015 & 33166/2016

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the Jama-ath that several persons have already submitted their bids after making the Earnest Money Deposit in time as specified in the notification. Grant of an extended time to the petitioners alone to make the Earnest Money Deposit and submit their bids would amount to alteration of the tender conditions itself without notice to other bidders. We refrain from doing so especially since the other bidders have not even been made eo-nominee parties to the writ petitions challenging the notification issued to lease out the immovable waqf property.

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The Kerala State Waqf Board will be perfectly within their rights to treat the petitioners in WP(C) No. 21218/2015 as encroachers and initiate criminal prosecution under the Waqf Act, 1995 ('the Act' for short). The inclusive definition of an 'encroacher' under Section 3 (ee) of the Act includes a person who is occupying a waqf property after the expiry of the period of the lease and is to the following effect:

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3(ee) “encroacher means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose

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WP(C) Nos. 21218/2015 & 33166/2016

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tenancy, lease or liecence has expired or has been terminated by mutawalli or the Board.”(empasis supplied)

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Section 52A of the Act provides for penalty for any person who is in possession either permanently or temporarily of any immovable property being a waqf property without prior sanction of the Waqf Board. The Waqf Board however fairly submits that action for criminal prosecution would be initiated if necessary only after the finalisation of the bid for giving vacant possession of the premises to the successful bidder.

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The Writ Petitions fail and are dismissed. No costs.

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V. CHITAMBARESH JUDGE

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ANIL K. NARENDRAN JUDGE

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ncd

Raphimon M.E v. Kerala State Waqf Board

Case brief

What is this about?

What did the court decide?

Raphimon M.E v. Kerala State Waqf Board

Case brief

What is this about?

What did the court decide?

What the court decided

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