Calcutta High Court (Appellete Side)
Masuda Begum & Ors vs Roushan Ali & Ors on 3 July, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Biswajit Basu.
C.O. 330 of 2017
Masuda Begum & Ors.
-Versus-
Roushan Ali & Ors.
For the petitioner : Mr. Supriya Chattopadhyay
For the Board of Wakfs/O.P. No. 3. : Md. Salahuddin.
Heard on : 12.06.2019
Judgement on : 03.07.2019
Biswajit Basu, J.
1. The revisional application under Article 227 of the Constitution of India is directed against the order dated October 4, 2016 passed by the Waqf Tribunal West Bengal, in O.A. No. 04 of 2011, thereby affirming the resolution of the Board dated June 29, 2010 and confirmation thereof dated July 20, 2010 by the Chief Executive Officer.
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2. The opposite party nos. 1 and 2 applied before the Board of Waqf (hereinafter referred to as the 'Board' in short) for enrolment of the properties comprised in plot nos. 378 and plot no. 378/779 under khatian no. 52 of an area of 1.52 acre in Mouja. Itagaria, P.S. Siuri, District. Birbhum (hereinafter referred to as the 'subject properties' in short) as the properties of 'Hazarat Pir Saheb' Waqf Estate.
3. The said application was registered before the Board as Misc. E.C. No. 18 of 2098. The Board of by it's resolution dated June 29, 2010 recommended enrolment of the subject properties as Waqf properties of 'Pir Hazarat Pir Wakf Estate'. The Chief Executive Officer confirmed the said resolution on July 20, 2010.
4. The petitioners being aggrieved and dissatisfied with the said resolution of the Board and confirmation thereof by the Chief Executive Officer filed an application under Section 83(2) of the Waqf Act, 1995(hereinafter referred to as 'the said Act" in short), before the Waqf Tribunal West Bengal being Case No. O.A. 04 of 2011. The Tribunal by the order impugned has dismissed the said application.
5. Mr. Chattopadhyay learned counsel for the petitioner submits that a civil suit being Title Suit No. 189 of 1996 filed by the petitioners in respect of the subject properties is pending before the learned Civil Judge (Junior Division) Sadar Court, at Suri, Dist. Birbhum, which is a competent Civil Court having jurisdiction over the subject properties and the Board should 3 not have enrolled the subject properties as Waqf pending disposal of the said suit. He submits that although the said suit was filed after the said Act came into operation but prior to the constitution of the Tribunal, according to him the Tribunal has committed error in holding that the said suit is barred by Section 85 of the said Act inasmuch as if a civil suit is filed when the Tribunal created under the said Act was yet constitute, the suit is not hit by Section 85 of the said Act. In support of his said contention he places reliance on the decision of the Andhra Pradesh High Court in the case of P. RAMA RAO Vs. HIGH COURT A.P. REP. BY REGISTRAR (VIGILANCE) reported in 1999(0)SUPREME (AP) 1109.
6. Mr. Chattopadhyay by referring to the L.R.R.O.R. of the subject properties contends that although in the C.S.R.O.R. and R.S.R.O.R. the subject properties have been recorded as HazaratPir but in the L.R.R.O.R. the same has been recorded in the name of NabiNewaz, the predecessor-in- interest of the petitioners. The Tribunal has discarded the said L.R.R.O.R. on the ground that the petitioners have failed to substantiate it's foundation although the Tribunal is not competent to decide the correctness of the entries of a revenue records as for the said purpose there are other authorities under the provisions of the West Bengal Land Reforms Act,1955.
7. Md. Salahuddin learned advocate appearing on behalf of the board of the Auquf submits that the subject properties have been recorded in C.S.R.O.R. and R.S.R.O.R. as Pirattar property which is Waqf in all schools of Muslims and the law is settled that once a property is declared to be Waqf shall hold such character for ever. In support of his such contention he 4 relies the decision of the Apex Court in the case of CHHEDI LAL MISRA (DEAD) THROUGH LRS. Vs. CIVIL JUDGE, LUCKNOW AND OTHERS reported in (2007) 4 SUPREME COURT 632.
Heard learned counsel for the parties. Perused the materials on record.
8. 'Pir' means a mohammedan saint. 'Pirattar' means lands assigned for the support of shrines of Mahomadan saints as held by the learned Single Judge of the Orissa High Court in the case of GULAM ALI SAHA AND OTHERS Vs. SULTAN KHAN AND ANOTHER reported in AIR 1967(ORISSA) 55. The relevant portion of paragraph 5 of the said report is reproduced below:
"Pir" means a Mahomadan saint. "Pirottar" means lands assigned for the support of shrines of Mahomadan saints (See Madox Settlement Report, Vol. 1, 1900 Ed. Glossary). "Pir Imam Saheb"
means the Samadhi of a Mahomadan Saint inside the mosque. A Durgah or shrine of a Pir, which has long been held in veneration by the public, constitutes a valid object of Wakf: AIR 1954 ALL 88."
9. The Board under Section 40 of the said Act is empowered to collect information regarding any property which it has reason to believe to be Waqf property and if any question arises whether a particular property is Wakf property or not or whether a Wakf is sunni Wakf or shia Wakf shall decide the said question after making required inquiry.
10. An inquiry is an official process to discover the facts about something that has happened. An authority when is vested under a statue with the power to decide a question as to the character of an immovable property on 5 the basis of an inquiry conducted by it, the authority must hold such inquiry with utmost care and caution.
11. It is settled position of law that the record of rights does not create or extinguish title. The subject properties have been recorded in the C.S.R.O.R. and R.S.R.O.R. as 'Pir Hazarat Pir Waqf Estate'. The Board on the basis of such entries in the said record of rights of the subject properties has held that the properties are Waqf and enrolled the same as such. Section 40 of the said Act casts duty upon the Board to make objective inquiry to ascertain whether the subject properties are Waqf or not. The requirement of such objective inquiry assumes more importance when entries in C.S.R.O.R. and R.S.R.O.R. of the subject properties contradict the entries of L.R.R.O.R. of it.
12. That apart a Durgah or shrine of a Pir, which has long been held in veneration by the public constitutes of a valid object of Waqf as has been held in the decision reported in AIR 1967(ORISSA) 55 (supra). The Board is therefore, obliged to make an inquiry as to the user of the subject properties before enrolling those properties as Waqf.
13. Moreover the petitioners filed an application before the Board praying not to proceed with the Misc. E.C. No. 18 of 1998 on the ground that a suit being Title Suit No. 189 of 1996 over the subject properties is pending before the learned Civil Judge (Senior Division), Suri, Sadar. The Board before 6 enrolling the subject properties as Waqf is under the obligation to bring the scope of the said suit into the sweep of it's inquiry. The Board by not doing so has failed to discharge it's obligation cast upon it by virtue of Section 40 of the said Act.
14. The Tribunal in the order impugned has discarded the L.R.R.O.R. of the subject properties on the ground that the petitioners have failed to establish the foundation of the entries in the said L.R.R.O.R. The Tribunal is not competent to decide the veracity of the entries in a record of rights inasmuch as the jurisdiction for the said purpose has been expressly conferred upon the authorities created under the provisions of the West Bengal Land Reforms Act, 1955. Nonetheless when revenue record does not create or extinguish title the Tribunal should not have affirmed the recommendation of the Board and confirmation thereof by the Chief Executive Officer based only on the revenue records of the subject properties.
15. The Tribunal has held that the civil suit filed by the petitioners is barred under Section 85 of the said Act. In view of the judgment of the Division Bench of the Andhra Pradesh High Court reported in 1999 (0) SUPREME (AP) 1109 (supra) investigation is required whether the Title Suit No. 189 of 1996 was filed by the petitioners before the constitution of the Tribunal or not, before holding that the suit is hit by Section 85 of the said Act.
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16. There is no dispute with regard to the proposition of law as has been held by the Apex Court in the decision reported in (2007) 4 SUPREME COURT 632 (supra) that once Wakf is created it continues to retain such character which cannot be extinguished by any act of the Mutwali or anyone claiming through him but such position of law does not absolve the Board from it's statutory liability to conduct a meaningful inquiry to ascertain the character of the subject properties before enrolling it as Waqf.
17. In view of the discussion made above C.O. 330 of 2017 is disposed of by setting aside the order impugned as well as the resolution of Board dated June 29, 2010 and confirmation thereof dated July 20, 2010 by the Chief Executive Officer with a direction upon the Board to conduct an inquiry in terms of Section 40 of the said Act in the light of the observations made hereinabove and to dispose of the Misc. E.C. No. 18 of 2018 for enrolment of subject properties as properties of 'Pirattar Hazarat Pir Saheb Waqf Estate'.
No order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)