Calcutta High Court (Appellete Side)
Jamshed Ali Alias Sk. Jamshed Ali vs Hasibul Khan & Ors on 12 May, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present :
The Hon'ble Justice Mir Dara Sheko C.O. 2921 of 2016 Waqf Estate of Abdul Gaffar and Anr. Represented by its Mutawalli Hafiz Sheikh Jamshed Ali alias Sk. Jamshed Ali
-Versus-
Hasibul Khan & Ors.
For the Petitioner : Mr. Partha Pratim Roy
Mr. Tapan Kumar Mahapatra
For O.P. Nos. 1 to 5 : Mr. Safiulla Mondal
For O.P. No. 8 : Mr. Md Salahuddin
Judgment on : May 12, 2017
(1) The application has been filed by the petitioner, namely, Hafiz Sheikh Jamshed Ali alias Sk. Jamshed Ali, in the capacity of Mutawali of Auqaf Estate of Abdul Gaffar and another under Article 227 of the Constitution of India read with Section 83 (9) of the Waqf Act, 1995 against the judgement dated 18th January, 2016 passed by the Auqaf Tribunal, West Bengal constituted by its Chairman and two other members in dismissing the suit being Suit No. 15 of 2009 filed by the petitioner on 23rd November, 2009.
(2) Heard Mr. Roy, learned Advocate, being assisted by Mr. Mahapatra representing the petitioner/plaintiff herein, Md. Salahuddin, learned Advocate, representing the Auqaf Board, the opposite party no. 8 and Md. Safiulla Mondal, learned Advocate, representing the opposite party nos. 1 to 5.
(3) Before entering into discussion about the lis of the matter, let me set out the admitted backdrops behind the suit instituted by the petitioner :-
(a) Sk. Abdul Sattar being the father of the petitioner, Hafiz Sheikh Jamshed Ali alias Sk. Jamshed Ali, on executing one unregistered Wasiatnama dated 26th January, 1979 vested the property in question creating public Auqaf for its use as public Mosque entrusting of course the petitioner to look after such Auqaf property.
(b) The petitioner ascertaining certain causes of action filed Title Suit No. 212 of 2003 in the court of Civil Judge (Junior Division), 2nd Court, Medinipur seeking declaration that he was the Mutwali of the impugned Auqaf Estate including the suit plots covered in the schedule of the plaint.
(c) Proceeding of said Title Suit No. 212 of 2003 ended into appeal being Title Appeal No. 38 of 2008 holding that in view of Section 85 of the Waqf Act, 1995 the said suit was not maintainable.
(d) The petitioner amidst pendency of that appeal filed application before the Board of Auqaf, West Bengal, on 2nd January, 2007 for enrolling the property measuring 3.93 acres, i.e. the disputed property as Auqaf property and accordingly, the Board enrolled the same as Auqaf Estate in the name of Abdul Gaffar and Sk. Shamsher. The text of said resolution is set out hereunder :
"Ref: Misc. E.C. No. -Midnapore (W)/01/2007 Re : To consider the matter of enrolment & appointment of Mutwalli in respect of Abdur Gaffar & Sk. Samsher W/E. Item No. 18 of to-day's agenda dated 28.06.2007 is taken up for hearing.
Jb. Hafiz Jamshed Ali, Sk. Bhatto and Abdul Aziz were present. Matter was heard and on consulting documents produced at the time of hearing, it is observed that there is no dispute about the character of the properties as wakf but plays controversies in between the contesting parties in regards to management of the W/E and possession of the properties in question. In view of the facts, it is declared that the properties as per Enrolment Petition under DE no. 5547 dated 02.1.2007 be declared as Wakf and it is recommended the schedule of properties, mentioned as below, be enrolled u/s 36 of the Wakf Act, l995 classifying as other than Wakf-al-al-Aulud i.e. Public with the sect of Sunni and the matter of management of the W/E & possession of the properties will be enquired by this office and on submission of the report the question of appointment of mutwalli will be taken into consideration later on."
(e) Meanwhile the Board of Auqaf through its Inspector conducted an enquiry in respect of the said enrolled Auqaf property being E. C. No. 15388.
(f) The concerned Inspector by his report dated 28/8/2008 indicated about some alleged violation while the petitioner was looking after the Mosque known as "AlINAGAR CHANDIPUR MOSQUE, alleging further misappropriation of public donation and in that report also it was suggested that the name of the Auqaf Estate which was subsisted in the name of Abdul Gaffar and Sk. Shamsher was proposed to change in the name of AlINAGAR CHANDIPUR MOSQUE in place of individual names as enrolled earlier.
(g) On the basis of said report the Auqaf Board took resolution on 5th November, 2009 that though the Mosque property was under the possession of the petitioner but a committee of Mutwali consisting of five members ought to be appointed under Section 63 of the Act for a period of five years and accordingly those members as named therein were requested to take charge of the impugned Auqaf property including the Mosque for its proper management.
(h) The said resolution was confirmed by the Board in its next meeting held on 26th November, 2009 as it would be done usually if there would be no objection.
(i) In between the period from 5/11/2009 to 26/11/2009 the petitioner as plaintiff, presumably having one sufferance from earlier civil proceeding in the Court at Medinipur (Supra) filed the instant Suit No. 15 of 2009 for declaration and other reliefs which are set out hereunder:
"a) A declaration that the suit plots are part and parcel of the Wakf Estate of Abdul Gaffar and Another enrolled with the Board of Wakfs, West Bengal, under E.C. No. 15388 and the plaintiff Hafez Shaikh Jamshed Ali is its Mutwalli;
b) A declaration that the defendant Nos. 1-5 have no manner of rights in the management and administration of the Wakf Estate;
c) Permanent injunction the defendants from claiming any interest in the suit plot belonging to Abdul Gaffar and Another Wakf Estate (E.C. No. 15388);
d) A decree for the cost of suit;
e) Such other or further reliefs as the plaintiff may be found entitled to;"
(j) Before the Auqaf Tribunal the R.O.R, Wasiatnama and many other documents were marked as Exhibits during which of course there was no objection raised by either of the opposite parties before the Tribunal.
(k) Initially while the suit was filed on 23rd November, 2009 with the reliefs as mentioned above the Board Auqaf was made as pro forma defendant no. 14 presumably to give an impression that no relief was sought for against the Board of Auqaf.
(l) When the suit had come up at the stage of hearing of arguments, the plaint was allowed to be amended while the pro forma defendant no 14 was transposed to the status of principal defendant no. 14, meaning thereby the reliefs as were sought for as against all other defendants at the time of filing of the suit, the same also has been sought for as against the Board of Auqaf.. The learned trial court after recording evidence as adduced by the parties, both oral and documentary, and answering to the issue nos. 1 to 7 as framed therein dismissed the suit without cost.
(m) Being aggrieved presumably there being no other separate forum of appeal except the provision of Section 83(9) read with Article 226 or 227 of the Constitution of India the instant proceeding has been opted by the petitioner/plaintiff under Article 227 of the Constitution of India read with Section 83(9) of the Waqf Act, 1995 on the grounds as mentioned in the application.
(4) Mr. Roy, learned Advocate, representing the petitioner argued that in the present background initiation of the suit where the Board of Auqaf previously was a pro forma no. 14 and subsequently by amendment he was made as one of the principal defendants, and, when the compliance of Section 90 of the Waqf Act have been done with, there being no further sufferance of the suit for non-service of the notice under Section 89 of the Act. Mr. Roy on other counts assailed the impugned judgement relying upon the record of rights where the name of his client's father was recorded along with some others as Mutwallis. Further argued that while Mutwalliship in respect of the Auqaf property was already on record, then the possessory right of the petitioners would have been deemed to have been continued and the presumptive value of said R.O.R. ought to have favoured the case of the petitioner which was ignored by the learned Tribunal. He further argued that before the Tribunal neither the private opposite parties nor the Auqaf Board raised any dispute on the point of service of notice under Section of the Act while learned Tribunal committed wrong and thereby rendered injustice questioning non- maintainability of the suit for non-service of notice under Section 89 of the Act. Mr. Roy relying upon the bottom part of the inquiry report submitted that when the Inspector found that there was no Auqaf Deed and "as per R.O.R. the properties belong to Alinagar Chandipur Mosque", the Mutwaliship of the petitioner ought to have been allowed to be continued without making any interference by the opposite parties. Mr. Roy also relied upon a decision of the Single Bench of Madras High Court reported in AIR 2003 Mad 179.
(5) The learned counsel for the opposite party nos. 1 to 5 per contra submitted that there cannot be departure from the legal provisions when relief has been sought for as against the Board of Waqf as well and when the statute enacted the provisions that no suit would lie except service of notice upon the Board of Waqf under Section 89 in respect of any Act purporting to be done by the Board in consistence with any provisions of the Act or Rules made therein. Therefore Mr. Mandal submitted that the findings of learned Tribunal on this score should sustain.
(6) Mr. Mandal further argued that the instant application vis-à-vis. the suit itself has become infructuous since the Committee of Mutwallis consistingh of opposite party nos. 1 to 5 was constituted by the Board to act on the subject wakf property with effect from 5.11.2009. Further submitted that, since by taking resolution in the year 2007, the property impugned though was enrolled as Auqaf property but no Mutwalli was appointed instantly, therefore, by subsequent order dated 5.11.2009, the Committee of Mutwallis as was appointed, by virtue of which his clients had been looking after the Auqaf property and when during course of enquiry the Inspector found so many allegations against the petitioner which was taken into consideration also in the resolution of the Board dated 5.11.2009, the impugned judgment by which the suit was dismissed after attending all the issues so framed therein need not be interfered with.
(7) Points for determination before this Court will be (1) whether the judgment under challenge suffers from any illegality due to occurrence of any making lapse(s) in the decision making process; or (2) whether the said judgment should be upheld or is liable to be set aside.
(8) It has already been indicated that against the judgment delivered by the Auqaf Tribunal in the suit filed by the petitioner with the reliefs as mentioned above, the scope of appeal whatever it is lying, it may be examined within the ambit of either under Article 226 or under Article 227 of the Constitution of India read with Section 83(9) of the Wakf Act, l995.
(9) From the admitted facts it has already come out that the petitioner has been involved in the dispute to establish his right in the property in question either to retain his right, whatever allegedly it might be, or, to prevent other alleged invasion, since the year of 2003, which, of course, ended with the observations of the Court as not maintainable which was upheld in the appeal of the year 2008. Now the instant proceeding is the record round litigation against the instance of the petitioner.
10. The document of R.O.R. as well as Wasiatnama on which the petitioner has been relying upon, this Court on re-examining once more took note of the fact that the property in question was never vested by its owner for the purpose of wakf-al-al-aulad, rather it was created as a public wakf for the interest of public as specified in the Wasiatnama. In the R.O.R. of course the name of the father of the petitioner along with some others were recorded as Mutwalli. No document could have been produced before the Tribunal or even before this Court by the petitioner that prior to that revisional settlement there was ever any creation of wakf by the owner of such property which could have indicated the very intention of its creation as to whether it was created as private wakf or public wakf . (10) Nonetheless while the combat is coming in between the Wasiatnama executed by father of the petitioner and the said R.O.R. then obviously the text of the creation of Auqaf is to be accepted while on said document the petitioner also has been relying upon. The text of such Wasiatnama unambiguously indicates that the Auqaf impugned was made for public purpose. However, after getting defeat in the previous suit (supra) in the year 2003 while the petitioner had chosen to get the property in question enrolled under the Board of Wakf, West Bengal submitted an application on the basis of which the said property was accordingly enrolled which was already quoted above. The text of the said enrolment once again gives clear indication that it was created "as other than Auqaf-al-al-Aulud i.e. public with the sect of Sunni." Not only that, despite enrolment of said wakf property, readily there was no appointment of Mutwalli. The Board considered within its domain that appointment of Mutwalli would be done with later on subject to enquiry report.
11. It is needless to mention that the petitioner had taken step for getting the property enrolled under the Auqaf Board, Best Bengal under he provisions of Section 36 of the Act.
12. Since, grievance was raised by the petitioner, that when by virtue of Wasiatnama the petitioner had been looking after the auqaf property then how the Board of Auqaf would have come in the seisin to change the name of auqaf, at the cost of repetition this Court finds answer from the sentence at the bottom part of the inquiry report submitted by the Inspector, Board of Auqaf, West Bengal with suggestion which is set out below :-
"As there is no Wakf deed, no names of doners and as per R.O.R. the properties are belonged to Alinagar Chandipur Mosque the name of the wakf estate should have to Alamgir Chandipur Mosque in place of any individual names such as Sk. Abdul Gaffer and Sk. Shamser Ali Wakf estate as enrolled earlier."
13. The above context, however, appears to be a suggestion submitted by the Inspector. In this Context reference of Section 41 of the Act may be relevant which is quoted hereunder :-
"41. Power to cause registration of [waqf] and to amend register.--The Board may direct a mutawalli to apply for the registration of a [waqf], or to supply any information regarding [waqf] or may itself cause the [waqf] to be registered or may at any time amend the register of [auqaf]."
14. Therefore, making change of name in the auqaf may be enforced which is also in the domain of the Board, of course, being empowered by the provision of the Act itself which may be dependant upon local sentiments, some authentic report, or otherwise. Be that as it may, the entire report submitted by the Inspector was considered by the Board in their Board's meeting. The relevant context of which is quoted hereunder :-
"After hearing the Ld. Advocates and perusal of records including the inquiry report it is recommended that a committee consisting of 5 (Five) members, named below, be appointed a Committee Mutawallis under Section 63 of the Wakf Act, 1995 and the office bearers mentioned below as Mutawalli of Sk. Abdul Gaffar & Sk. Samser Wakf Estate under Section 63 read with 3(I) of the Wakf Act, 1995 FOR A PERIOD OF 5 (Five) years on submission of their respective voter's Id Cards and with the direction to them to take charge of the wakf property now reportedly under possession of Hafiz Jamshed Ali and submit yearly and submit yearly statement of accounts as well as pay wakf contribution as per rules."
15. The text of the report as considered by the Board Members apparently was very serious specially when it had touched misappropriation of the usufructs accumulating from the subject auqaf property.
16. Now coming back to the pleading of the parties and the judgment under challenge, this Court observed that when the suit was filed in the year 2009 by making the Board of Auqaf as proforma defendant No. 14 and since in the midst of the proceeding the cause title was amended, and, the board was made party as one of the principal defendants, then it is redundant to state that the relief, as sought for initially as against the defendants except proforma defendant No. 14 have now proposed to enforce also against defendant No. 14. Mr. Roy of course on the basis of the cited decision reported in AIR 2003 Madras (Supra) tried to impress upon that service of notice under Section 89 of the Wakf Act would not be a must, and, the suit ought to have been held by the learned Tribunal as maintainable since compliance under Section 90 of the Act was done with. As per provision under Section 83(5) it is held that the Tribunal acting under the Waqf Act 1995 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 while trying a suit or executing a decree or order.
17. The single Bench of Madras High Court in the aforesaid decision while construing language of the aforesaid provision it is observed "it does not need any explanation at all so as to arrive at a different conclusion from what is meant by the language of the section and therefore there is no room to arrive at the conclusion that the mandatory provision of law u/s 89 of the Wakf Act would apply only to Civil Courts and not to the Tribunals." Therefore, the provision under Section 89 of the Act in other way is a pari-materia to Section 80 of the Civil Procedure Code. Within the percents of the proceeding there is nothing on record that the petitioner ever had taken even leave to regularise these violation. Therefore, learned Tribunal did not commit any illegality in holding that the suit was not maintainable for non- compliance of the mandatory provision under Section 89 of the Act. One fallacy may arise that when a suit already has been filed by making the Board as proforma defendant and while in the midst of said proceeding the Board was transposed as a principal defendant then whether there was any further necessity to serve notice under Section 89 of the Act. To answer to such fallacy there would have been only recourse to get the suit withdrawn for removal of formal defect and after compliance of the provision of law on taking liberty to issue afresh proper step could have been taken.
18. Be that as it may, without disturbing or making interference to the finding of the learned Tribunal about non-maintainability of the suit, let me examine also the merit of its findings as laid down on other issues.
19. At the very outset this Court inclined to answer to the query of Mr. Mondal that since five years have been lapsed after November 05, 2009 so far as the tenure of the Committee of Mutawallis, there is nothing on record that said Committee of Mutawallis has been removed by the Board of Auqaf on expiry of such period. On the contrary Mr. Salauddin representing the Board of Auqaf adopting the submission of Mr. Mondal ensured that the self-same Committee of the Mutawallis already applied for extension of the tenure so far as the impugned auqaf property is concerned and that is still pending.
20. However, since the petitioner is closely concerned to get proposed declaration, rather negative declaration, as against the opposite parties in one hand, and, proposed also to get declaration that the auqaf estate is part and parcel of the auqaf estate of Abdul Gaffar and another as was enrolled in the year 2007 of which the petitioner is the Mutawalli, this Court already discussed about the liberty and power available to the Board of Auqaf under Section 41 of the Act for changing the name of auqaf for any relevant purpose when such auqaf is public auqaf and not auqaf-al-al-aulad. The petitioner has no locus standi to poke nose into the acts and activities of the Board of Auqaf, provided any such act of the Board is not proved against the policy or is detrimental. By the resolution dated November 05, 2009 as was on November 26, 2009, such change of name in the auqaf had been taken place. Therefore, the suit having been filed on November 23, 2009 and the Act and action of the Auqaf Board having not being proved as any illegal act of devoid of intention of the occupier in between the period or at any point of time so far learned Tribunal rightly declined the first part of the declaration as sought for in prayer (a) of the plaint.
21. It was held that the auqaf in question was not private one. Now in respect of the second part of the prayer of declaration so far as declaration of the petition as Mutawalli of the auqaf property, was also rightly declined. Because the auqaf property in question was public auqaf and not a private auqaf to maintain as wakf-al- al-aulad. As there was vacancy in the office of Mutawalli of the Auqaf since after its enrolment in the year 2007 it ought to be made functional under the care and custody of some one. The Board accordingly exercising its jurisdiction under Section 63 of the Act took the resolution on November 05, 2009, which was confirmed by subsequent meeting, held on November 26, 2009. In the prayer portion of the plaint or even in the pleadings the petitioner did not assert and could not adduce any cogent and legal evidence to that extent that the act and action of the Board of Auqaf as held under Section 63 read with Section 3(i) of the Waqf Act was illegal. Therefore, the learned Tribunal rightly also declined the prayer (b), which was sought for in the status of negative declaration. As a consequence thereof other consequential reliefs as sought for were being not available to the petitioner the suit was dismissed by the learned Tribunal in correct direction by deciding the remaining issues appropriately. Thus in the decision making process this Court taking note of the fact and it's relevant laws having not found any lapses in such decision making process the judgment dated January 18, 2016 is upheld and the revisional application, being C.O. 2921 dated August 03, 2016 stands dismissed.
22. However, dismissal of the prayer of the petitioner shall not be any embargo to apply before the authority for being a Mutawalli which may be considered by the Authority on either way within their domain to their satisfaction.
23. There will be no order as to costs.
24. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
( Mir Dara Sheko, J.) akb.