Shujauddin Mohammed Kaiser vs The Kolkata Municipal Corporation & Ors on 18 May, 2011

[Cites 4, Cited by 4]

Calcutta High Court (Appellete Side)

Shujauddin Mohammed Kaiser vs The Kolkata Municipal Corporation & Ors on 18 May, 2011

Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice
Indira Banerjee.
W.P. No.968 (W) of 2011
SHUJAUDDIN MOHAMMED KAISER
Vs.
THE KOLKATA MUNICIPAL CORPORATION & ORS.

For the Petitioner: Mr. Kalyan Bandyopadhyay
Sk. Mujibar Rahaman
Mr. Mehboob Rahaman
Mr. Sirsanya Bandopadhyay
Sk. Musior Rahaman

For the respondent Nos.8: Mr. Amal Baran Chatterjee
Sk. Nizamuddin
Syed Mosihar Rahaman

For the K.M.C.: Mr. Barin Banerjee
Mr. Fazlul Haque
Mr. Sanjib Kumar De

For the State respondents: Mrs. Abha Roy
Mrs. Amrita Sinha

Heard on: 12.05.2011 & 17.05.2011

Judgment on: 18.05.2011

INDIRA BANERJEE, J.: This writ petition, filed by the Mutawalli of Hazi

Mohammed Kabil Wakf Estate, hereinafter referred to as the Wakf Estate, is
2

directed against the amalgamation of the Wakf properties being Premises

No.16B Ekbalpur Lane, Kolkata - 700023 and Premises No.27A, Ibrahim

Road, Kolkata - 700023.

By a Wakf Deed, executed on 8 th January, 1892, Hazi

Mohammed Kabil, since deceased, dedicated his properties in the

Ekbalpur-Mominpur at Khidderpore areas for religious and charitable

purposes by creation of a Wakf.

According to the petitioner, the Wakf Deed expressly provided

that the Wakif would himself remain as Mutawalli till his death and

thereafter his son Mohammed Hossain would be the Mutawalli.

If the Wakif pre-deceased, his said son Mohammed Hossain, the

eldest male member of the family would become Mutawalli. After the death

of the Wakif, his son Mohammed Hossain became the Mutawalli.

Mohammed Hossain died on 14 th August, 1947. Thereafter Lailun Nehar

Begum the only child of late Mohammed Hossain became Mutawalli and

remained in office as Mutawalli till her death on 10 th April, 1975. After the

death of Lailun Nehar Begum, her eldest son Abul Hassan Julfikar Haider

became the Mutawalli. The said Abul Hassan Julfikar Haider died on 29 th

July, 2006.
3

It is stated that on the death of Abul Hassan Julfikar Haider,

eldest brother of the petitioner, the petitioner the eldest living male

descendent of the Wakif became entitled to be appointed Mutawalli.

According to the petitioner, there is a mosque on the Wakf

property being Premises No.16B Ekbalpur Lane, Kolkata - 700023. The

Wakf property being Premises No.27A Ibrahim Road, Kolkata 700023 is

used for commercial purposes.

It is alleged that the Wakf Board was, for the reasons best

known to itself, reluctant to record the name of the petitioner as

Mutawalli. Almost three years after the death of Abul Hassan Julfikar

Haider, the Chief Executive Officer, Board of Wakfs, West Bengal informed

the petitioners that the Board of Wakfs had, at its meeting held on 24 th

April, 2009 resolved that the name of the petitioner be brought on record

as Mutawalli under Section 3(i) of the Wakf Act, 1995 with the direction on

him to inter alia form a Mosque Development Advisory Committee

consisting of Musallis and interested persons of the locality and to take

steps for repair/renovation and re-construction of the mosque, after

demolition of the old structure, in consultation with the said Committee.

By a letter dated 3 rd October, 2009, addressed to the Chief

Executive Officer, Board of Wakfs, the petitioner recorded his objection to
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the proposed formation of an Advisory Committee for development of the

mosque. The said letter was apparently received at the office of the Board

of Wakfs on 5 th October, 2009.

By a letter dated 10 th January, 2010, the petitioner once again

objected to the constitution of the Advisory Committee and prayed for

dissolution thereof. By a letter dated 3 rd March, 2010, the Chief Executive

Officer, Board of Wakfs dismissed the objection of the petitioner.

The Chief Executive Officer, Board of Wakfs, West Bengal

addressed a communication No.3738 dated 22 nd March, 2010 to the

Assessor and Collector (South), Kolkata Municipal Corporation, the

contents whereof are extracted below:

"Please refer to the letter of Sahabuddin Sardar,
Secretary Haji Md. Kabil Masjid Development Advisory
Committee under E.C. No.1865 dated 11-03-2010 praying for
amalgamation of Premises No.16B Ekbalpur Lane, Kolkata-23 as
above subject.
This is in fact in continuation of the earlier direction of
this office vide No.2812 dated 04-01-2010 on the self-same subject.
It is now required for amalgamation of 2 premies i.e. 16B Ekbalpur
Lane vide Assessee No.110780601073 and 27, A Ibrahim Road
Assessee No.10680800203 for the development of the Mosque as per
resolution adopted in this regard by the Board of Wakfs, West
Bengal. This office has no objection for the said amalgamation to
be under taken by the Kolkata Municipal Corporation as
preferred by the Secretary, Haji Md. Kabil Masjid Development
Advisory Committee."
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The writ application has been opposed by the Respondent No.8.

On the writ application being moved, on 10 th February, 2011, this Court

passed an interim order restraining Kolkata Municipal Authorities from

amalgamating the said two premises and further directed that status quo

with regard to the said two premises be maintained. The interim order has

from time to time been extended.

Mr. Kalyan Bandyopadhyay, appearing on behalf of the

petitioner submitted that the constitution of the Advisory Committee was

in itself illegal there being no legal provision for appointment of such

Committee.

Some of the relevant provisions of the Wakf Act, 1995 are set

out hereinbelow for convenience:

"3. Definitions.--In this Act, unless the context
otherwise requires,--
..............

(i) "Mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the Mutawalli of a Wakf and includes any person who is a Mutawalli of a Wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a Mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any Wakf or Wakf property:

Provided that no member of a committee or corporation shall be deemed to be a Mutawalli unless such member is an office bearer of such committee or corporation;

....................

(k) "person interested in a Wakf" means any person who is entitled to receive any pecuniary or other benefits from the Wakf and includes--

(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf;

(ii) the Wakif and any descendant of the Wakif and the Mutawalli;

.....................

(r) "wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes--

(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) "grants", including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and

(iii) a wakf-al-al-aulad to the extent to which the property is dedicated for any purpose recognized by the Muslim law as pious, religious or charitable and "wakif" means any person making such dedication;

(s) "wakf deed" means any deed or instrument by which a wakf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied;

..............

32. Powers and function of the Board.--(1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to 7 ensure that the wakfs under its superintendence are properly maintained controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended:

Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs.

(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be.-

(a) ........

(b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created;

(c) to give directions for the administration of wakfs;

(d) to settle schemes of management for a wakf:

Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;

(e) to direct-

(i) ..............

(ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument, shall be utilized;

(iii) ..............

Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard.

(f) to scrutinise and approve the budgets submitted by mutawallis and to arrange for the auditing of account of wakfs;

(g) to appoint and remove mutawallis in accordance with 8 the provisions of this Act;

(h) to take measures for the recovery of lost properties of any wakf;

(i)...........

(j) to sanction any transfer of immovable property of a wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act:

Provided that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction;

(k) to administer the Wakf Fund;

(l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the wakf property as the Board may, from time to time, require;

(m) to inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents relating thereto;

(n) to investigate and determine the nature and extent of wakf and wakf property, and to cause, whenever necessary, a survey of such wakf property;

(o) generally do all such acts as may be necessary for the control, maintenance and administration of wakfs.

(3) Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final.

(4) Where the Board is satisfied that any wakf land, which is a wakf property, offers a feasible potential for development as a, shopping centre, market, housing flats and the like, it may serve upon the mutawalli of the concerned wakf a notice requiring him within such time, 9 but not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing to execute the development works specified in the notice.

(5) On consideration of the reply, if any, received to the notice issued under sub-section (4), the Board, if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to he executed in terms of the notice, it may, with the prior approval of the, Government, take over the property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary for execution of the works and execute such works from Wakf funds or from the finances which may be raised on the security of the properties of the wakf concerned, and control and manage the properties till such time as all expenses incurred by the Board under this section, together with interest thereon, the expenditure on maintenance of such works and other legitimate changes incurred on the property are recovered from the income derived from the Property:

Provided that the Board shall compensate annually the mutawalli of the concerned wakf to the extent of the average annual net income derived from The property during the three Years, immediately preceding the taking over of the property by the Board.

(6) After all the expenses as enumerated in sub-section (5) have been recouped from the income of the developed properties, the developed properties shall be banded over to mutawalli of the concerned wakf.

..................

38. Powers of Board to appoint Executive Officer. (1) Notwithstanding anything contained in this Act, the Board may, if it is of the opinion that it is necessary so to do in the interests of the wakf, appoint on whole-time or part-time basis or in an honorary capacity, subject to such conditions as may be provided by regulations, an Executive Officer with such supporting staff as it considers necessary for any wakf having a gross annual income of not less than five lakhs rupees:

Provided that the person chosen for appointment should be a person professing Islam.

(2) Every Executive Officer appointed under sub-

section (1) shall exercise such powers and discharge such duties as pertain only to the administration of the property, of the wakf for which he has been appointed and shall exercise those powers and discharge those duties under the direction, control and supervision of the Board :

Provided that the Executive Officer who is appointed for a wakf having a gross annual income of not less than five lakhs rupees shall ensure that the budget of the wakf is submitted, the accounts of the wakf are regularly maintained, and the yearly statement of accounts are submitted within such time as the Board may specify.

..............

41. Power to cause registration of wakf and to amend register.--The Board may direct a mutawalli to apply for the registration of a wakf, or to supply any information regarding a wakf or may itself cause the wakf to be registered or may at any time amend the register of wakfs.

42. Change in the management of wakfs to be notified.--(1) In the case of any change in the management of a registered wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli shall forthwith and any other person may notify the change to the Board.

(2) In the case of any other change in any of the particulars mentioned in section 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board.

..............

50. Duties of mutawalli.--It shall be the duty of every mutawalli--

(a) to carry out the directions of the, Board in accordance, with the provisions of this Act or of any rule or order made thereunder;

(b) to furnish such returns and supply such information or particulars as may from time to time be required by the Board in accordance with the provisions of this Act or of any rule or order made thereunder;

(d) to discharge all public dues; and

(e) to do any. other act which he is lawfully required to do by or under this Act.

51. Alienation of wakf property without sanction of Board to be void.--(1) Notwithstanding anything contained in the wakf deed, any gift, sale or exchange mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board:

Provided that no mosque, dargah or khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force.

....................

63. Power to appoint mutawallis in certain cases.--

When there is a vacancy in the Office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.

64. Removal of Mutawalli.--(1) Notwithstanding anything contained in any other law or the deed of wakf, the Board may remove a mutawalli from his office if such mutawalli-

................

(i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the wakf or in respect of any money or other wakf property; or

65. Assumption of direct management of certain wakfs by the Board.--(1) Where no suitable person is available for appointment as a mutawalli of a wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the wakf, the Board may, by notification in the Official Gazette, assume direct management of the wakf for such period or periods, not exceeding five years in the aggregate, as may be 12 specified in the notification.

...............

69. Power of Board to frame scheme for administration of wakf.--(1) Whenever the Board is satisfied, whether on its own motion or on the application of not less than five persons interested in any wakf, that it is necessary or desirable to frame a scheme for the, proper administration of the wakf, it may by, an order frame such scheme for the administration of the wakf, after consultation with the mutawalli or the applicant in the prescribed manner.

(2)................

(3) Every order made under sub-section (2) shall be published in the prescribed manner, and, on such publication shall be final and binding on the mutawalli and all persons interested in the wakf:

Provided that any person aggrieved by an order made under this section may, within sixty days from the date of the order, prefer an appeal to the Tribunal and after hearing such appeal, the Tribunal may confirm, reverse or modify the order:

Provided further that the, Tribunal shall have no power to stay the operation of the order made under this section.

70. Inquiry relating to administration of wakf.--Any, person interested in a wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit."

As rightly pointed out by Mr. Bandyopadhyay, there is no provision under the Wakf Act for constitution of any Advisory Committee.

The Mutawalli is obliged and entitled to administer the Wakf Estate in accordance with law in a manner which advances the purpose of creation of the Wakf and/or in other words, in a manner that promotes the religious 13 and charitable objects of the wakf. If there is any dereliction of duty, the Wakf Board might take action in accordance with law, including action for removal of Mutawalli.

It is the case of the petitioner that the petitioner had no option but to agree to the constitution of the Mosque Development Advisory Committee in view of his conditional appointment.

The Wakf Board can only issue such directions on the Mutawalli as are in accordance with law. The Wakf Board had no power to direct the Mutawalli to constitute any Advisory Committee. The Wakf Board was aware of its inability to make such appointment and, accordingly, the petitioner was directed to constitute the Mosque Development Advisory Committee. The Wakf Board cannot indirectly do that which cannot be done directly.

Mr. Amal Chatterjee, appearing on behalf of the Respondent No.8 argued that the petitioner was himself a member of the Mosque Development Advisory Committee. Mr. Chatterjee argued that the petitioner voluntarily agreed to the constitution of the Mosque Development Advisory Committee. It was next contended that the petitioner had himself applied for amalgamation and had accordingly affirmed affidavits undertaking to pay the requisite taxes upon 14 mutation/amalgamation of the two premises in his name. Mr. Chatterjee submitted that the petitioner cannot approbate and reprobate. The petitioner is estopped from questioning the amalgamation of the two premises.

Section 178 of the Kolkata Municipal Corporation Act provides as follows:

"178.Municipal Assessment Code.--(1) The State Government may by rules provide for the detailed procedure for determination of the annual value of lands or buildings in Kolkata and for other matters connected therewith, and such rules together with any regulations made under this Act shall constitute the Municipal Assessment Code.

(2) Under the rules as aforesaid--

(i) every building together with the site and the land appurtenant thereto shall be assessed as a single unit:

Provided that where portions of any building together with the site and the land appurtenant thereto are vertically divisible and are separately owned so as to be entirely independent and capable of separate enjoyment notwithstanding the fact that access to such separate portions is made through a common passage or a common staircase, such separately owned portions may be assessed separately:

Provided further that the right of such access is protected by a registered deed of agreement;

(ii) all lands or buildings, to the extent these are contiguous or are within the same curtilage or are on the same foundation and are owned by the same owner or co-owners as an undivided property, shall be treated as one unit for the purpose of assessment under this Act:

Provided that if such land or building is sub- divided into separate shares which are not entirely independent and capable of separate enjoyment, the Municipal Commissioner on application from the owners or co-owners may apportion the valuation and assessment among the co-owners according to the value of their respective shares treating the entire land or building as a single unit;

..........................

(3) Notwithstanding the assessments made before the commencement of this Act, the Municipal Commissioner on his own may amalgamate or separate or continue to assess as such, as the case may be, lands or buildings or portions thereof so as to ensure conformity with the provisions of this section.

(4)If the ownership of any land or building or a portion thereof is sub-divided into separate shares or if more than one land or building or portions thereof by amalgamation come under one ownership, the Municipal Commissioner may on an application from the owners or co-owners, separate or amalgamate, as the case may be, such lands or buildings or portions thereof so as to ensure conformity with the provisions of this section.

(5).............

(6) The Municipal Commissioner shall, upon an application made in this behalf by an owner, lessee or sub-

lessee or occupier of any land or building and upon payment of such fees as may be determined by the Corporation by regulations, furnish information to such person regarding the apportionment of the property tax of such land or building among the several occupiers within such land or building for the current or the period immediately preceding:

Provided that nothing in this sub-section shall prevent the Corporation from recovering the dues from any such person."

It is true that under Section 178 (3), the Municipal Commissioner might on his own amalgamate or separate or continue to assess as such, lands or buildings or portions thereof. However, this power to amalgamate or separate is only to ensure conformity with Section

178. Every building together with the site and the land appurtenant 16 thereto is to be assessed as a single unit. All lands or buildings to the extent they are contiguous or within the same cartilage or the same foundations and are owned by the same owner or co-owners as undivided property is to be treated as a single unit for the purpose of assessment under the said Act.

Section 178 (4) provides that if more than one land or building or portions thereof by amalgamation come under one ownership, the Municipal Commissioner may on an application from the owners or co-

owners, amalgamate lands or buildings or portions thereof to ensure conformity with the provisions of the aforesaid Section.

Admittedly, the amalgamation has not been affected by the Municipal Commissioner on his own. This has been done on an application. The letter dated 22 nd March, 2010 from the Chief Executive Officer, Board of Wakfs, West Bengal to the Assessor and Collector (South), Kolkata Municipal Corporation communicating the no objection of the office of the Board of Wakfs to amalgamation reveals that the Respondent No.8, Secretary of the Hazi Mohammed Kabil Mosque Development Advisory Committee had prayed for amalgamation of the two premises.

May be, as argued by Mr. Chatterjee, the wakf properties are properties dedicated to the service of Allah. Wakf properties are in the 17 nature of trust properties. However, even though the Mutawalli may not be the owner of the wakf properties, the obligation and right to administer and maintain the trust properties vests with him. All property rights are to be exercised by the Mutawalli.

It is not necessary for this Court to go into the question of whether the application for amalgamation was actually made by the Respondent No.8 or the petitioner. The petitioner objected to the amalgamation. The petitioner having objected to the amalgamation, the premises could not have been amalgamated.

In any case, the Mosque Development Advisory Committee was constituted for the purpose of repair, renovation and/or re-construction of the mosque. The amalgamation of the premises is not necessary for repair or renovation or for reconstruction of the mosque.

It is also not understood how the Board of Wakf and/or the Chief Executive Officer thereof could have given any direction for demolition of the existing mosque. The Board of Wakf and its Chief Executive Officer have been impleaded as respondent Nos.5 and 6. The said respondents have not filed any Affidavit-in-Opposition in spite of directions.

A mosque is a place of worship. Devout Mohammedans offer Nemaz at the mosque. Friday prayers are offered at the mosque. There is no material on record to show that the mosque was in a dilapidated or dangerous condition requiring demolition to prevent risk of life and safety of those offering prayers at the mosque.

The writ application is disposed of by directing the Kolkata Municipal Corporation to cancel the amalgamation of Premises No.16B Ekbalpur Lane, Kolkata - 700023 and Premises No.27A, Ibrahim Road, Kolkata - 700023.

(Indira Banerjee, J.)

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