Anil K. Narendran, J.

1. The petitioner, who is a tenant in occupation of two shop rooms bearing Door Nos.C.C.VI/939 (New No.V/2257) and C.C. VI/940 (New No.V/2258) situated at Bazar Road, Mattanchery, owned by M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam, represented by its Managing Trustee, is before this Court in this writ petition seeking a writ of certiorari to quash Ext.P12 order dated 20.04.2017 of the Chief Executive Officer of the Kerala State Waqf Board, the first respondent herein, issued in exercise of its powers under Section 54 read with Section 25 of the Waqf Act, 1995. The petitioner has also sought for a writ of mandamus commanding the Waqf Board to participate in Ext.P10 suit, i.e., O.S.No.47 of 2017 on the file of the Munsiffs Court, Kochi, since the Board has already subjected itself to the jurisdiction of the said court, and not to evict her till the said suit reaches a final conclusion.

2. On 05.05.2017, this Court issued notice on admission in the writ petition and it was ordered that Ext.P12 order shall be kept in abeyance till 23.05.2017. The said interim order was extended from time to time and the same is still in force.

3. A counter affidavit has been filed by the second respondent opposing the reliefs sought for in the writ petition. The said counter affidavit is sworn to by Sri.Moosa Abdul Sathar Sait, who is stated to be present Muthavally of M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam. The petitioner has also filed various interlocutory applications, producing therewith certain additional documents.

4. Heard arguments of learned counsel for the petitioner, learned Standing Counsel for the Kerala State Waqf Board and also learned counsel for the second respondent.

5. Admittedly, the petitioner is in occupation of the shop rooms in question on the strength of Exts.P1 and P2 lease agreements dated 31.10.2015. The lessor in Exts.P1 and P2 lease agreements is M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam, having its office at Arangath Road, Pulleppady, Kochi, represented by its Managing Trustee Sri.Adam Aboobacker Sait, who is arrayed as the second respondent in this writ petition.

6. As per the recitals of Exts.P1 and P2 lease agreements, the lessor, namely, M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam is the absolute owner in possession and enjoyment of A.S.H.M.S. Trust building called Sathar Building having two floors, situated at Mattanchery, and the shop rooms in question are on the ground floor of the said building. The period of occupancy specified in Exts.P1 and P2 lease agreements is 11 months from 01.10.2015 to 31.08.2016 and the lessee, the petitioner herein, has agreed to handover possession of the premises to the lessor at the end of the lease. The monthly rent fixed in Exts.P1 and P2 lease agreements is Rs.1820/- and Rs.2425/- respectively. As per clause 5(f) of the said lease agreements, the lessor have the right to evict the lessee by invoking the provisions of Section 54 of the Waqf Act, 1995. Clause 5(f) of Exts.P1 and P2 lease agreements reads thus;

5(f) That the Lessee shall permit the Lessor and their agents to enter the said premises in their occupation for inspection, at all reasonable times. Being a Waqf the Lessee (sic: Lessor) shall have the right to evict the Lessee by evoking (sic: invoking) Section 54 of the Waqf Act, 1995.

7. As discernible from Ext.P12 order dated 20.4.2017, M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam is a waqf registered with the Waqf Board with registration No.3330/RA, which is under the superintendence of the Waqf Board, as per the provisions under the Waqf Act. The Waqf Board received a complaint that the petitioner herein is unauthorisedly and illegally occupying the shop rooms in question, which are owned by the said waqf, though the period of tenancy has already expired, and a lawyer notice dated 09.11.2016 has also been issued terminating the tenancy and demanding vacant possession of the shop rooms. Based on the said complaint, the petitioner was issued with Ext.P7 notice of enquiry dated 16.12.2016 of the Waqf Board, as contemplated under sub-section (1) of Section 54 of the Waqf Act.

8. In P.E. Sarjith v. Misbahul Huda Educational Trust [CRP (Waqf) No.92/2015] a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, held that Rule 2(ha) of the Kerala Waqf Rules, 1996 defines the term encroachment in relation to any waqf premises to mean occupation by any person of the waqf premises without authority for such occupation. It also includes the continuance in occupation by any person of the waqf premises after the authority for such occupation has been determined for any reason whatsoever.

9. Later, in Raphi Mon v. Kerala State Waqf Board [2016 (5) KHC 459 [LQ/KerHC/2016/1429] ], another Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a party, held that the inclusive definition of encroacher under Section 3(ee) of the Waqf Act, 1995 (as amended by Section 5 of the Wakf (Amendment) Act, 2013) includes a person who is occupying a waqf property after the expiry of the period of lease.

10. To Ext.P7 notice, the petitioner caused to issue Ext.P8 reply dated 17.01.2017 through her lawyer. In Ext.P8 reply, the petitioner has even disputed the title of M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam over the shop rooms in question, despite the fact that, she is in occupation of the said shop rooms admittedly on the strength of Exts.P1 and P2 lease agreements dated 31.10.2015, in which the lessor is none other than the said Dharmastapanam. Moreover, clause 5(f) of the said lease agreements makes it explicitly clear that, being a waqf, the lessor shall have the right to evict the lessee by invoking the provisions of Section 54 of the Waqf Act.

11. After considering Ext.P8 reply, in the light of the law laid down by this Court in the decisions referred to supra, the Chief Executive Officer of the Waqf Board issued Ext.P12 order dated 20.04.2017, wherein it was found that the petitioner herein is occupying the shop rooms in question owned by the waqf, even after termination of the lease, and as such, her possession of the said shop rooms squarely comes under the definition of encroacher under Section 3(ee) of the Waqf Act, 1995 and that, she does not have any right to hold the said property. The operative portion of Ext.P12 order reads thus;

In these circumstances, the Managing Trustee of Abdul Sathar Haji Moosa Sait Dharmastapanam is directed to take steps for inviting offers from the public for leasing out the above building as provided under Rule 4 of Waqf Properties Lease Rules, 2014 within 15 days and a report thereof shall be submitted to the Junior Superintendent, Kerala State Waqf Board, V.I.P. Road, Kaloor, Kochi-17 within a total period of 30 days. If the Mutawalli prefers to lease out the above building beyond the period of one year he shall submit necessary application before the Junior Superintendent within 7 days of the receipt of this order and on such situation the Junior Superintendent shall take urgent steps to notify the same as provided under Rule 5 of Waqf Properties Lease Rules, 2014 and the procedure shall be completed within a total period of 30 days. The copies of such publication by the Mutawalli/Board shall also be served to the respondent so as to provide him an opportunity to offer his rent. If no action is taken by the Mutawalli, he is liable to be prosecuted under sections 7 and 61 of the Waqf Act 1995. If the rent offered by the respondent is not equal to the highest one, he shall vacate the building within 7 days of finalization of tenders and surrender the vacant possession of the building with arrears of rent. In case the respondent fails to surrender the possession of shop rooms an application will be filed before the Waqf Tribunal, Ernakulam as provided under Section 54(3) of the Waqf Act, 1995 for an order of eviction by treating him as an encroacher. In such a situation the Junior Superintendent is also authorised to take steps to file a criminal prosecution under Section 52A of the Waqf Act against the respondent before the Judicial First Class Magistrate Court.

10. Ext.P12 order is one passed by the Chief Executive Officer of the Waqf Board, in exercise of its powers under Section 54, read with Section 25 of the Waqf Act. Section 25 of thedeals with the duties and powers of the Chief Executive Officer of the Waqf Board and Section 54 deals with removal of encroachment from waqf property.

11. Sub-section (1) of Section 54 of the Waqf Act provides that, whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building, space or other property which is waqf property and, which has been registered as such under the said Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli.

12. Sub-section (3) of Section 54 of the Waqf Act, 1995 as it stood prior to its substitution by Section 32(a) of the Wakf (Amendment) Act, 2013 provided that, if, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf. Similarly, sub-section (4) of Section 54 of the Waqf Act, as it stood prior to its substitution by Section 32(b) of the Amendment Act of 2013 provided that, nothing contained in subsection (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property. However, going by the proviso to sub-section (4), no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any person authorised by him in this behalf.

13. By Section 32(a) of the Wakf (Amendment) Act, 2013 the words he may, by an order, require the encroacher to remove in sub-section (3) of Section 54 of the Waqf Act are substituted by the words he may, make an application to the Tribunal for grant of order of eviction for removing. Consequently, sub-section (4) of Section 54 of the Waqf Act, 1995 and the proviso to said subsection are substituted by Section 32(b) of the Amendment Act of 2013 and after the said amendment, sub-section (4) of Section 54 provides that, the Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property. The proviso to sub-section (4), after its substitution by the said Amendment Act provides that, the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer. Sub-section (5) of Section 54 of the Waqf Act inserted by the very same Amendment Act provides that, if any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property.

14. In P.E. Sarjiths case (supra) this Court held that, on the terms of Section 54 of the Waqf Act, 1995 as it stood prior to its amendment by the Wakf (Amendment) Act, 2013 the Chief Executive Officer could have after considering the objections if any filed before him required the encroacher to remove the encroachment from waqf property and deliver possession of the building to the mutawalli concerned or the Waqf Board. The person aggrieved thereby had the right to institute a suit before the Waqf Tribunal to establish his right, title or interest in the land, building, space or other property. The right to institute such a suit was however not available to a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the waqf or by any person authorised by him in that behalf.

15. In P.E. Sarjiths case (supra), on the question as to whether the Chief Executive Officer of the Waqf Board could have called upon the encroacher to surrender possession of the waqf property, this Court held that, under Section 54 of the Waqf Act, 1995 as amended by the Wakf (Amendment) Act, 2013, the Chief Executive Officer of the Waqf Board cannot by himself order eviction. He can only issue notice to the encroacher and after considering the objections if any submitted by the encroacher, apply to the Waqf Tribunal for the grant of an order of eviction for removing such encroachment and delivery of possession of the land, building, space or other property encroached upon to the mutawalli of the Waqf. In the case before the Division Bench, the Chief Executive Officer of the Waqf Board issued orders on 29.5.2014 after the was amended. By that order, he directed the petitioner to remove the encroachment from the waqf property on or before 30.6.2014, failing which he was cautioned that the necessary application would be made before the Waqf Tribunal, Kozhikode. The Division Bench noticed that, on the terms of Section 54 of the Waqf Act, 1995 as it stands after its amendment by the Wakf (Amendment) Act, 2013 the Chief Executive Officer of the Waqf Board could not have issued an order directing the encroacher to vacate the premises. Therefore, the effect of the order passed by the Chief Executive Officer of the Waqf Board is that if the petitioner does not vacate the premises it will be open to him to move the Waqf Tribunal for an order directing the petitioner to vacate the waqf property.

16. Section 83 of the Waqf Act, 1995 deals with constitution of Tribunals, etc. Sub-section (1) of Section 83, as it stood prior to its amendment by the Wakf (Amendment) Act, 2013 provided that, the State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property under the said Act and define the local limits and jurisdiction of such Tribunals. After the said amendment, such Tribunals are empowered to determine any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under the said Act.

17. Sub-section (2) of Section 83 of the Waqf Act, 1995 provides that, any mutawalli or person interested in a waqf or any other person aggrieved by an order made under the said Act, or rules made thereunder, may make an application within the time specified in the said Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf. As per sub-section (5) of Section 83 of the Act, the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. Sub-section (7) of Section 83 of theprovides that, the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court. Sub-section (9) of Section 83 of theprovides further that, no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal. However, going by the proviso to that sub-section, this Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.

18. The Waqf Act, 1995 is a special enactment to provide for the better administration and supervision of the auqaf (waqfs). Under Section 83 of the said Act, Tribunals have been constituted for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property. The object of Section 83, as amended by the Wakf (Amendment) Act, 2013, is to ensure that all disputes, questions or other matters relating to a waqf or waqf property, including the disputes or questions relating to eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property are decided only by the Waqf Tribunals and to that extent the jurisdiction of the civil court, revenue court and any other authority is ousted, under Section 85 of the said Act, by providing that, no suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under the said Act to be determined by the Waqf Tribunal.

19. It is trite law that, writ jurisdiction under Article 226 of the Constitution of India is an extraordinary jurisdiction, which has to be exercised sparingly and only in appropriate cases. Though, existence of effective alternative remedy is not an absolute bar for this Court in entertaining a writ petition under Article 226 of the Constitution, in such cases the writ petitioner has to make out a case of violation of any fundamental rights or principles of natural justice or where the order under challenge is wholly without jurisdiction or where the vires of a statute is under challenge.

20. In the instant case, Ext.P12 order of the Chief Executive Officer of the Waqf Board is one issued in exercise of his powers under Section 54 of the Waqf Act, and the effect of the said order is that, if the petitioner does not vacate the shop rooms in question it will be open to him to move the Waqf Tribunal for an order directing her to vacate the said premises. By the said order, the mutavalli is directed to take steps for inviting offers from the public for leasing out the shop rooms, as provided under Rule 4 of the Waqf Properties Lease Rules, 2014, with notice to the petitioner, so as to provide her an opportunity to offer rent equal to the highest rent offered in the public auction, for her continued occupation of the said premises. Therefore, on facts and in the circumstances of the instant case, none of the exceptions referred to hereinbefore for entertaining a writ petition under Article 226 of the Constitution are available.

21. In Board of Wakf, West Bengal v. Anis Fatma Begum [(2010) 14 SCC 588] [LQ/SC/2010/1271] the Apex Court opined that, all matters pertaining to waqfs should be filed in the first instance before the Waqf Tribunal constituted under Section 83 of the Waqf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India.

22. In view of the provisions under Section 83 of the Waqf Act, if the petitioner is feeling aggrieved by Ext.P12 order dated 20.04.2017 of the Chief Executive Officer of the Waqf Board, issued in exercise of its powers under Section 54 of the said Act, she has to approach the Waqf Tribunal by filing an original application under Section 83 of the said Act. In that view of the matter, the challenge made in this writ petition against Ext.P12 order cannot be entertained under Article 226 of the Constitution of India.

23. The further relief sought for in the writ petition is a writ of mandamus commanding the Waqf Board to participate in O.S.No.47 of 2017 on the file of the Munsiffs Court, Kochi, since the Board has already subjected itself to the jurisdiction of the said court, and not to evict the petitioner till the said suit reaches a final conclusion. As discernible from Ext.P10 plaint in O.S.No.47 of 2017, the petitioner has approached the Munsiffs Court, seeking a permanent prohibitory injunction restraining the second respondent herein, his men and agents from forcibly evicting her from the plaint schedule shop rooms or causing any hindrance to her or her agents in carrying out the business until and unless she is evicted by due process of law.

24. Section 85 of the Waqf Act, 1995, as amended by the Wakf (Amendment) Act, 2013, which deals with bar of jurisdiction of civil courts, provides that, no suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under the said Act to be determined by the Waqf Tribunal.

25. As discernible from Ext.P10 plaint in O.S.No.47 of 2017, after the receipt of Ext.P7 notice dated 16.11.2016 issued by the Waqf Board invoking the provisions under Sections 25, 52A and 54 of the Waqf Act, the petitioner has approached the Munsiffs Court seeking a permanent prohibitory injunction in respect of the shop rooms in question leased out to her by the waqf based on Exts.P1 and P2 lease agreements. Though copy of the said lease agreements were produced as Document Nos.7 and 8 in the list of documents filed along with the plaint, the fact that the lessor in the said lease agreements is M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam, which is a waqf registered with the Waqf Board with registration No.3330/RA and that, as per clause 5(f) of the said lease agreements, the lessor have the right to evict the lessee by invoking the provisions of Section 54 of the Waqf Act, is suppressed in Ext.P10 plaint, and the plaint proceeds as if M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam is not a waqf registered with the Waqf Board and that, whether the plaint schedule shop rooms belongs to M/s.Abdul Sathar Haji Moosa Sait Dharmastapanam is a disputed question of fact in the said suit.

26. In Rajasthan Waqf Board v. Devki Nandan Pathak [2017 (2) KLJ 717 [LQ/SC/2017/767 ;] ">[2017 (2) KLJ 717 [LQ/SC/2017/767 ;] [LQ/SC/2017/767 ;] ] the Apex Court held that the question whether the suit property is a waqf property or not can be decided only by the Tribunal and not by the civil court, as has been held consistently in Ramesh Gobindram v. Sugra Hamayun Mirza Waqf [(2010) 8 SCC 726] [LQ/SC/2010/916] and Bhanwar Lal v. Rajasthan Board of Muslim Waqf [(2014) 16 SCC 51] [LQ/SC/2013/1005] .

27. In that view of the matter, the petitioner is not entitled for a writ of mandamus commanding the Waqf Board to participate in O.S.No.47 of 2017 on the file of the Munsiffs Court, Kochi and not to evict her till the said suit reaches a final conclusion.

In the result, this writ petition fails and the same is accordingly dismissed. However, without prejudice to the right of the petitioner to challenge Ext.P12 order dated 20.04.2017 of Chief Executive Officer of the Waqf Board by filing an original application before the Wakf Tribunal, under Section 83 of the Waqf Act, 1995.

No order as to costs.