V. Chitambaresh, J.

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

2. The petitioners in W.P.(C) No.21218/2015 are the present lessees (holding over) of a commercial building and the period of the lease in the lease in their favour by the Jama-ath has admittedly expired in the year 2015. The commercial building which is an immovable wakf 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 Wakf 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 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 W.P.(C) No.33166/2016 challenges the condition in the notification requiring an Earnest Money Deposit of Rs.5 lakhs as a pre-requisite 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 wakf property by the issue of notification and the conditions thereof are impugned in these Writ Petitions on separate grounds dealt with hereunder.

3. 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 Wakf Board and Mr. Shinu J. Pillai, Advocate on behalf of the Jama-ath to whom the property is dedicated.

4. The renewal of lease of immovable wakf property belonging to a Jama-ath is governed by Rule 18 of the Wakf Properties Lease Rules, 2014 (the Rules for short) which is extracted hereunder:

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

(2) The Board shall while renewing the lease, give preference to the present lessee if such lessee participates in the bid and matches the highest bid.

(emphasis supplied)

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.

(i) The present lessees must participate in the bid of the right to occupy the tenanted premises.

(ii) The present lessees in that event shall be given an opportunity to match the highest bid.

(iii) The lease will be renewed in favour of the present lessees if they match the highest bid.

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 Rs.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.

5. 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 W.P.(C) No. 21218/2015 commenced in the year 2012. The Jama-ath is now empowered 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 wakf property without obtaining any approval from the State Government for a period often years as proposed. The petitioners in not applying for participation in the bid after making an Earnest Money Deposit of Rs. 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.

6. 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 an Earnest Money Deposit of Rs.5 lakhs on or before 24.10.2016 for the bids to be opened on 23.11.2016 was criticised by the petitioners in W.P.(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 is Rs. 50,000/- per month and the sum of Rs. 5 lakhs as Earnest Money Deposit comes to only ten times the rent which cannot also be said to be excessive.

7. 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 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 co-nominee parties to the Writ Petitions challenging the notification issued to lease out the immovable wakf property.

8. The Kerala State Wakf Board will be perfectly within their rights to treat the petitioners in W. P. (C) NO.21218/20 15 as encroachers and initiate criminal prosecution under the Wakf Act, 1995 (the Act for short). The inclusive definition of an encroacher under S.3(ee) of the Act includes a person who is occupying a wakf property after the expiry of the period of the lease and is to the following effect:

3(ee). encroacher means any person or institution, public or private, occupying wakf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board.

(emphasis supplied)

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 wakf property without prior sanction of the Wakf Board. The Wakf 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.

The Writ Petition fail and are dismissed. No costs.