The Kerala High Court in the case Nafeesath Beevi V The Chief Executive Officer Kerala State Wakf Board observed and has held that after the lease period is over, a tenant in the case would be treated as an ‘encroacher’ under the Wakf Act.
The bench comprising of Justice A. Muhamed Mustaque and Justice Sophy Thomas in the case observed and has stated that once the Wakf Act was being enacted and no lease subsists, thus, the relationship between the parties will be governed under the Wakf Act and it will not be governed under the Transfer of Property Act.
The court in the case observed that the Transfer of Property Act is the general enactment governing lease and when the special enactment treats a tenant in a particular way after the expiry of the lease, the procedure referred to in the special enactment will have to be followed and the Wakf Act would prevail after the lease period is over and not the Transfer of Property Act. Thus, the revision petitioner has no case that the lease subsists.
Further, it has been observed by the said court in the revision plea wherein the revision petitioner challenged the order of the Wakf Tribunal that upheld the order of the Wakf Board. Thus, the Wakf Board had ordered for the removal of encroachment from the wakf property where the petitioner was continuing as a tenant even after the expiry period of the lease period.
The petitioner in the plea submitted before the court that she was continuing as a tenant and she cannot be termed as an encroacher.Therefore, it was also argued in the plea that even if the building comes within wakf property, the lease needs to be determined under the provisions of the Transfer of Property Act.
The court while considering the facts and circumstances of the case stated that the person continuing in possession of the building in the wakf property after the expiry of the lease period would be an encroacher as stated under Section 3 (ee) of the Wakf Act. It has also found by the said court that the property was registered with Wakf Board and the relationship between the parties would be governed under the Wakf Act and it being not under the Transfer of Property Act.
Accordingly, the court upheld the order of the Waqf Board and the court granted six months’ time to the revision petitioner to vacate the building.
The counsel, Advocate K M Firoz and Advocate M Shajna appeared for the petitioner.
The counsel, Advocate T P Sajid, Advocate P A Abdul Jabbar, and Advocate T K Saidalikutty represented the respondent.