Tenant Whose Lease Period Expired Will Be Treated As An Encroacher Under Wakf Act: Kerala High Court

Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that once the Wakf Act was enacted and no lease subsists, the relationship between the parties will be governed under the Wakf Act and not under the Transfer of Property Act. It observed thus:

“The Transfer of Properly Act is a general enactment governing lease. When a 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. In so far as the nature of occupation after the lease period is over, the Wakf Act would prevail and not the Transfer of Property Act. The revision petitioner has no case that the lease subsists. Therefore, on expiry of the lease, he has to be treated as an encroacher.”

The Court made the observations in a revision petition where the revision petitioner challenged the order of the Wakf Tribunal that upheld the order of the Wakf Board. The Wakf Board had ordered for removal of encroachment from the wakf property where the petitioner was continuing as a tenant even after the expiry of the lease period.

The petitioner submitted that she was continuing as a tenant and cannot be termed as an encroacher. It was also argued that even if the building comes within wakf property, the lease has to be determined under the provisions of the Transfer of Property Act.

The Court noted that the person continuing in possession of the building in the wakf property after the expiry of the lease period would be an encroacher under Section 3 (ee) of the Wakf Act. The Court found that once the lease period was over and that the property was registered with Wakf Board, the relationship between the parties would be governed under the Wakf Act and not under the Transfer of Property Act.

On the above findings, the Court upheld the order of the Wakf Board and the revision petitioner was granted six months to vacate the building.

Case name: Nafeesath Beevi V The Chief Executive Officer Kerala State Wakf Board

Citation: 2023 LiveLaw (Ker) 458

Case number: CCRP(WAKF) No. 44 Of 2019

Counsel for the petitioners: Advocates K M Firoz and M Shajna

Counsel for the respondents: Advocates T P Sajid, P A Abdul Jabbar, and T K Saidalikutty