Allowed¶63

I.Kauser v. the Revenue Divisional Officer- South Chennai

Madras HC4 Jun 2025WP/16511/2025

Case brief

AI extract

What is this about?

Madras High Court division bench writ petition certiorari quashing Revenue Divisional Officer eviction order 'Thakkithu' Na.Ka.No.B1/1141/2019 dated 25.04.2025 lack of jurisdiction Wakf property Waqf Act 1995 Section 54 removal of encroachment Chief Executive Officer Tamil Nadu Wakf Board Section 3(d) Section 23(1) Section 55 show-cause Muthavalli Asar-e-Sheriff waqf C.R.P No.318 of 2018 pending Tiruvallikeni Ellis Road Anna Salai Chennai interim stay Admission Board 30.04.2025 no costs.

What did the court decide?

Writ of certiorari issued; impugned eviction order dated 25.04.2025 of R1 dislodged/quashed, thereby protecting the petitioner's possession; W.M.P No.18648 of 2025 disposed of as closed/unnecessary (otiose); no order as to costs. ¶63

I.Kauser Vs the Revenue Divisional Officer- South… — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether R1 (Revenue Divisional Officer-South Chennai) had jurisdiction to pass the impugned eviction/removal-of-encroachment order qua the Wakf property, given that such power vests in the Chief Executive Officer of the Wakf Board under Sections 3(d), 23(1) and 54 of the Waqf Act, 1995. +2 more

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Court's answer

If there has to be any eviction qua the said Wakf property, the authority vested with jurisdiction to make a removal-of-encroachment order is R2 (Chief Executive Officer, Tamil Nadu Wakf Board), by resort to Section 54 of the Waqf Act; the role of R1, if at all, is post such an order, inter alia under Section 55.

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Ratio / Principle

The impugned eviction order made by R1 lacks jurisdiction and deserves to be dislodged on that short point; accordingly the prayer for writ of certiorari is acceded to and the writ petition is allowed.

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Key takeaways

The second point (opportunity not given to the noticee) was expressly not gone into; the court noted only that Section 54 provides for a show-cause notice, leaving the matter there as outside the perimeter of the legal drill at hand.obiter¶61
No view or opinion expressed on the merits of the Waqf Board's order, the Waqf Tribunal's order, or issues arising in pending C.R.P No.318 of 2018; the Hon'ble single Judge Bench will consider the Civil Revision Petition on its own merits and in accordance with law untrammeled by this order, which is written for the limited purpose of testing the impugned order.obiter¶55

Detailed headnote1 paragraphs

Madras High Court (Division Bench: M. Sundar & Hemant Chandangoudar JJ.; order pronounced by M. Sundar J.), 04.06.2025, allowed W.P.No.16511 of 2025 (I.Kauser v. RDO-South Chennai, CEO TN Wakf Board & Dilshad Begum) filed under Article 226 seeking a writ of certiorarified mandamus against the 'Thakkithu' eviction order dated 25.04.2025 in Na.Ka.No.B1/1141/2019 passed by the Revenue Divisional Officer-South Chennai directing vacation within seven days of premises at 13/6, Dowlath Khan Bahadhur Street, Ellis Road, Anna Salai, Chennai (also identified as Village No.18, Tiruvallikeni Village). Held: there being no disputation that the property is Wakf property governed by the Waqf Act, 1995 (43 of 1995), the power of removal of encroachment vests in the Chief Executive Officer of the Tamil Nadu Wakf Board (S.3(d) read with S.23(1)), exercisable under S.54, with R1's role confined to post-order steps inter alia under S.55; consequently the impugned order was dislodged solely on the short point of lack of jurisdiction. The absence-of-opportunity point was expressly left undecided (court noting merely that S.54 provides a show-cause notice). Merits of the Board's appointment of R3 (Dilshad Begum) as Muthavalli of 'Asar-e-Sheriff waqf', the Waqf Tribunal's order dated 24.12.2019, and issues in pending C.R.P No.318 of 2018 (filed by the petitioner's spouse, K.P.Ismath Basha) were expressly not pronounced upon; the single Judge seized of the CRP was left untrammeled. Parties left free to institute fresh encroachment-removal proceedings, which this order neither impedes nor bolsters. WMP disposed as otiose; no costs.

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W.P.No.16511 of 2025

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`IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 04.06.2025

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CORAM

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THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE HEMANT CHANDANGOUDAR

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W.P.No.16511 of 2025

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W.M.P No.18648 of 2025 in W.P.No.16511 of 2025

I.Kauser

... Petitioner

Vs.

The Revenue Divisional Officer-South Chennai Office of the Revenue Divisional Officer Guindy, Chennai - 600 032

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The Chief Executive Officer The Tamil Nadu Wakf Board No.1, Jaffer Syrang Street Vallal Seethakathi Nagar Chennai - 600 001

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Dilshad Begum

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... Respondents

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Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records pursuant to the order passed by the 1st respondent in Na.Ka.No.B1/1141/2019 dated 25.04.2025 and to quash the same and consequently direct the first respondent not to disturb the petitioner's possesion.

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Page Nos.1/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.16511 of 2025

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For Petitioner : Mr.S.Shujath For Respondents : Mr.M.S.Arasakumar Government Advocate for R1 Mr.Avinash Wadhwani Standing counsel and Mr.Vishnu.VR for R2

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Mr.Malai Saravanan for R3

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ORDER

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[Order of the Court was made by M.SUNDAR, J. ,]

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An 'order of eviction captioned 'Thakkithu' [jhf ; f P J] dated 25.04.2025 bearing reference e/f/vz : M1/1141/2019 made by R1' {hereinafter 'impugned order' for the sake of brevity, convenience and clarity} has been assailed in the captioned WP.

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2. Mr.S.Shujath, learned counsel for writ petitioner adverting to the impugned order submits that it is a terse order, it pertains to property at '13/6, Dowlath Khan Bahadhur Street, Ellis Road, Anna Salai, Chennai' [hereinafter 'said property' for the sake of brevity]. To be noted, the impugned order of R1 refers to said property also in terms of Village No.18, Tiruvallikeni Village, Mylapore Taluk, Chennai District and Walaja Big Mosque Lane.

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Page Nos.2/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.16511 of 2025

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3. Be that as it may, there is no disputation about the identity or location of said property and therefore, we are not delving any further on

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this aspect of the matter.

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4. Mr.S.Shujath, learned counsel for writ petitioner further submits that impugned order, which is an eviction order has been made by R1, a) without jurisdiction and b) without giving any opportunity to the noticee. It was pointed out that in and vide the impugned order, the writ petitioner has been called upon to vacate said property in seven days.

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5. When that matter was listed in the Admission Board on 30.04.2025, an interim order staying the operation of the impugned order was granted by this Court, notice was issued, notice has since been served, all three respondents are represented by counsel and they are before us.

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6. R1 is represented by Mr.T.K.Saravanan, learned Additional Government Pleader, R2 is represented by Mr.Avinash Wadhwani, learned Standing counsel along with Mr.Vishnu VR, for 'Tamil Nadu Waqf Board' [hereinafter 'Waqf Board' for the sake of convenience] and R3 (private respondent) is represented by Mr.Malai Saravanan.

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7. We heard all the counsel.

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Page Nos.3/9

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W.P.No.16511 of 2025

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8. After hearing all the counsel, it came to light that the legal perimeter within which the captioned matter should perambulate is very limited inter alia owing to the reason that it turns on the short point as to whether R1 has jurisdiction to make the impugned order. Therefore, with the consent of all the aforementioned counsel, main WP was taken up.

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9. To be noted, there is no disputation as between the parties before us that said property is a Wakf property governed by 'The Waqf Act, 1995 (43 of 1995)' [hereinafter 'Waqf Act' for the sake of convenience] as amended and as obtaining today. The Authority vested with the power for removal of encroachment qua Wakf properties is the 'Chief Executive Officer', which is a defined term, the same having been defined vide Section 3(d) of Waft Act,

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which reads as follows:

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3. Definitions.—In this Act, unless the context otherwise requires,—

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(a) .... (b) .... (c) . ... (d) “Chief Executive Officer” means the Chief Executive Officer appointed under sub-section (1) of section 23;

(e) ......

.....'

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W.P.No.16511 of 2025

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10. Section 3(d) of Waqf Act takes us to Section 23(1), which reads as

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follows:

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'23. Appointment of Chief Executive Officer and his term of office and other conditions of service. —[(1)There shall be a full-time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation.]'

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11. There is no disputation that R2 is the Chief Executive Officer within the meaning of Section 3(d) read with Section 23(1) of Waqf Act. Therefore, if there has to be any eviction qua said property, the Authority vested with jurisdiction to make a removal of encroachment order is R2 and that would be by resorting to Section 54 of Waqf Act. The role of R1, if at all and if that be so, will be post such an order inter alia under Section 55 of Waqf Act. Therefore, in our considered view, there can be no two opinions that the impugned order deserves to be dislodged on the short point of lack of jurisdiction.

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Page Nos.5/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.16511 of 2025

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12. Be that as it may, for the sake of completion of facts and clarity, we deem it appropriate to record that it comes to light from the case file that the Waqf Board (Tamil Nadu Wakf Board) appointed R3 before us as Muthavalli of 'Asar-e-Sheriff waqf' (hereinafter 'said Waqf' for the sake of convenience) in which the said property vests. This order of the Waqf Board was assailed before the Tamil Nadu Waqf Tribunal by one K.P Ismath Basha, who is the spouse of the writ petitioner, before us. The Waqf Tribunal in and by an order dated 24.12.2019 dismissed the appeal confirming the order of the Waqf Board, the writ petitioner's spouse K.P.Ismath Basha has assailed this 24.12.2019 order of the Tamil Nadu Waqf Tribunal in this Court by way of a revision petition being C.R.P No.318 of 2018 and the same is now pending. Therefore, we make it clear that we are not expressing any view or opinion on the merits of the order of the Waqf Board, the order of the Waqf Tribuanl or for that matter, on any issues which arise in the Civil Revision Petition which is in seizin qua a Hon'ble single Judge Bench of this Court. For the sake of abundant clarity, we write that Hon'ble single Judge Bench will consider the Civil Revision Petition on its own merits and in accordance with law untrammeled by this

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Page Nos.6/9

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W.P.No.16511 of 2025

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order.

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order, which is written for the limited purpose of testing the impugned order.

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13. Reverting to the impugned order, as we are dislodging the impugned order on the short point of lack of jurisdiction, we are not going into the second point of opportunity not being given. Suffice to say that Section 54 provides for a show-cause notice but we deem it appropriate to leave it at that as it is really not within the perimeter of the legal drill at hand.

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14. It is also made clear that it is open to the parties to initiate removal of alleged encroachment proceedings afresh. If such a course is adopted, this order will neither impede nor serve as a impetus qua such proceedings.

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15. Owing to the narrative, discussion and dispositive reasoning thus far, the writ petition succeeds, we accede to the prayer for issue of writ of certiorari. In other words, the writ petition is allowed. As the writ petition is allowed, captioned WMP becomes otiose and the same is disposed of as

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Page Nos.7/9

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W.P.No.16511 of 2025

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closed/unnecessary. There shall be no order as to costs.

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(M.S.,J.) (H.C.,J.) 04.06.2025

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Index : Yes / No Neutral Citation : Yes / No gpa