Sk. Aftab Hossain vs Biswanath Chakraborty And Others

Sabyasachi Bhattacharyya, J

The present application under Article 227 of the Constitution of India has been preferred by the plaintiff in a suit for declaration and permanent injunction, filed before the Waqf Tribunal. The prayers made in the said plaint are set out below:

"(a) Declaration that the schedule property is a waqf property belongs to "Sk. Hazi Karim Buksh Waqf Estate" recorded under E.C no. 229 in the office of the Board of Waqfs, West Bengal.

(b) Declaration that the defendant no. 1 & 2 has no right title interest over the schedule property which exclusive belongs to "Sk. Hazi Karim Buksh Waqf Estate";

(c) Direction upon the Proforma Defendant no. 5 to record/mutate the suit properties in the names of the plaintiff as mutawalli of the Sk. Hazi Karim Buksh Waqf Estate;

(d) Direction to restore the suit property mentioned in schedule by cancelling deeds/documents if any in respect of the suit property stands in the name of defendant no. 1&2;

(d) Direction upon the proforma defendant no. 4 & 6 not to grant any sanction of any building plan if sought for in respect of the schedule premises mentioned in Schedule till the disposal of the suit;

(f) Permanent injunction restraining the defendant no. 1 & 2 not to carry on construction work over the schedule land and/or not to transfer or alienate any part or portion of the schedule properties till the disposal of the suit;

(g) Ad‐interim order of injunction restraining the Defendant nos. 1 and 2, and their men, agents subordinates and assignees from carrying on any construction work upon the properties mentioned in Schedule below till the disposal of the suit;

(h) Ad‐interim direction upon the Proforma defendant no. 7 being the local administrator to see that the defendant no. 1 & 2 cannot carry on construction work over the schedule properties till the disposal of the suit;

(i) A decree for cost.

(j) For any other relief or reliefs if any the plaintiffs are entitled to get in law or equity."

In the said suit, the plaintiff/petitioner filed an application for temporary and ad interim injunction restraining the defendants/opposite party nos. 1 and 2 jointly and/or severally and/or their men and agents and/or any person from carrying on any construction work in the suit property and/or from changing the nature and character of the suit property in any manner and for temporary injunction restraining the proforma defendant/opposite party nos. 4 and 5 jointly and/or severally and/or their men and agents and/or any person from issuing any permission and/or sanction plan for carrying on any construction. By the impugned order, the Waqf Tribunal dismissed such injunction application on contest.

Learned counsel for the petitioner argues that although, by virtue of the relevant waqfnama, the waqif Hazi Sk. Karim Buksh provided inter alia that his son, Sk. Hossain, and his heirs shall not be entitled to become mutawalli of the said waqf property ever, the petitioner was appointed as a mutawalli by a valid order of the Chief Executive Officer, Board of Waqfs, West Bengal pursuant to a resolution passed by the M.E. Committee dated January 29, 2003 which had been approved by the Board of Waqfs, West Bengal in its meeting held on March 9, 2003.

It is argued by learned counsel for the petitioner that, although the waqif debarred all heirs of the petitioner's father, Sk. Hossain, from becoming mutawallis of the waqf property, the appointment of the petitioner as mutawalli was sanctioned by Section 63 of the Waqf Act, 1995 (hereinafter referred to as "the 1995 Act"). Section 63 is quoted hereinbelow:

"Waqf Act, 1995:‐

Power to appoint mutawallis in certain cases. - When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, 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."

It is submitted that since there was no one available under the terms of the deed of waqf, the appointment of the petitioner as mutawalli was valid and in accordance with law.

Placing reliance on Section 204(2) of Mulla's Mahomedan Law, it is submitted that the said provision also permits the petitioner to be appointed as a mutawalli. Section 204 of the Mulla's Mahomedan Law is set out below:

"Mulla's Mahomedan Law:‐

Appointment of mutawalli (1) The founder of the waqf has power to appoint the first mutawlli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.

(2) If any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office of mutawalli otherwise becomes vacant, and there is no provision in the deed of waqf regarding succession to the office, a new mutawalli may be appointed -

(a) by the founder of the waqf;

(b) by the executor (if any);

(c) if there be no executor, the mutawalli for the time being may, subject to the provisions of Section 205 below, appoint a successor on his death‐bed;

(d) if no such appointment is made, the Court may appoint a mutawalli. In making the appointment the Court will have regard to the following rules:‐

(i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment;

(ii) the Court should not appoint a stranger, so long as there is any member of the founder's family in existence qualified to hold the office;

(iii) where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendant, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be mutawalli."

Learned counsel for the petitioner next submits that although Section 3(i) gives primacy to appointment of mutawalli under any deed or instrument by which a waqf has been created, but it also contemplates the appointment of mutawalli by a competent authority.

Learned counsel for the petitioner further argues that, as per Section 3(k)(i) of the 1995 Act, a "person interested in a waqf" includes any person who has a right to offer prayer or to perform any religious rite as contemplated therein and to participate in any religious or a charitable institution under the waqf. The petitioner, it is argued, falls within such category.

Sub‐sections (i) and (k) of Section 3 of the 1995 Act are set out hereinbelow:

"(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib‐mutawalli, khadim, mujawar, sajjadansashin, 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 waqf or waqf 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:

Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed:

Provided also that in case of a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government.

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

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

(i) any person who has a right to offer prayer or to perform any religious rite in a mosque, idgah, imambara, dargah, khanqah, peerkhana and karbala, maqbara, graveyard or any other religious institution connected with the waqf or to participate in any religious or charitable institution under the waqf;

(ii) the waqif and any descendant of the waqif and the mutawalli."

It is further submitted on behalf of the petitioner that the alleged transfer in favour of the opposite parties by the then mutawalli in the year 1967 was illegal, since the same was done under the order of the Waqf Commissioner, who did not have the authority to grant such permission at the relevant juncture. It is submitted that the Bengal Waqf Act, 1934 (hereinafter referred to as "the 1934 Act") clearly provided, under Section 53 thereof, that a transfer by a mutawalli of any immovable property of a waqf had to be with the permission of the Board of Waqf. As such, it is argued, the transfer of 1967, on the basis of which the opposite parties claim title, was bad in law and as such, could not confer any title on the opposite parties at all.

It is further submitted that, as per the waqf deed itself, there was a specific bar to transfer the property, which was the subject‐matter of the waqf. Thus, it is argued, the alleged transfer in favour of the opposite parties was unlawful even as per the waqf deed itself.

Learned counsel for the petitioner places reliance on Section 27(1) of the 1934 Act to submit that the general powers and duties of the Commissioner were specified therein, which did not include any power to give permission for the transfer of any waqf property.

It is further argued on behalf of the petitioner that Section 107 of the 1995 Act precluded the applicability of the Limitation Act, 1963 in case of suits in respect of waqf properties and as such, there was no bar of limitation for the petitioner to challenge the purported sale deed of 1967 in favour of the opposite parties, even at the present juncture. Section 107 of the said Act is as follows:

"107. Act 36 of 1963 not to apply for recovery of waqf properties. - Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised of any waqf or for possession of any interest in such property."

In controverting such submissions, learned senior counsel for the opposite parties argues that, in the year 1973, an amendment was brought to the Bengal Waqf Act, 1934, thereby altering the contents of Sections 53 and 54 of the said Act. The said original sections, as they stood before such amendment of 1973, categorically conferred power on the Commissioner of Waqf to sanction the transfer by a mutawalli of any immovable property of a waqf by way of sale, gift, mortgage, exchange or lease for a term exceeding five years.

Learned senior counsel for the opposite parties argues that since the sale deed in favour of the opposite parties was executed by the then mutawalli in the year 1967, that is, before coming into force of the 1973 Amendment, the original provisions of the 1934 Act, as those stood prior to the 1973 Amendment, apply to the said transaction. As such, the transaction in favour of the opposite parties was valid and lawful. In this context, the provisions of Sections 53 and 54 of the 1934 Act, as they stood prior to the 1973 Amendment, are set out hereinbelow:

"Bengal Waqf Act, 1934 (prior to 1973 Amendment):‐

(1) Except as provided in sub‐sections (2), (3) and (4) no transfer by a mutwalli of any immovable property of a waqf by way of sale, gift, mortgage or exchange or by way of lease for a term exceeding five years shall be valid without the previous sanction of the Commissioner.

(2) Where such transfer is made under an express power conferred by the waqf deed the previous sanction of the Commissioner shall not be necessary, but a notice of the proposed transfer in such form and containing such particulars as may be prescribed by the Board shall be sent by the mutwalli to the Commissioner one month before the transfer is made.

(3) Nothing in sub‐section (1) shall apply to any such transfer made for the preservation of the waqf property if a certificate is obtained from the Commissioner within six months from the date of the transfer that such transfer was proper and necessary.

(4) Nothing in this section shall apply to any lease of land by a mutwwalli for the purpose of cultivating by the lessee or by members of his family or by servants or labourers or with the aid of partners.

A mutwalli may apply to the Commissioner for sanction to transfer under sub‐section (1) of section 53 or for a certificate to transfer under sub‐section (3) of that section, and the Commissioner after making such inquiry and giving notice to such persons in such manner as he thinks fit and hearing them if they desire to be heard may accord sanction to such transfer on such terms and conditions as he may in his discretion impose or may grant the necessary certificate, as the case may be."

It is thus argued that there was no scope of the petitioner to challenge the sale in favour of the opposite parties in respect of the property‐in‐question, as the same was valid in the eye of law.

It is further contended on behalf of the opposite parties that Section 107 is only attracted to suits for possession of immovable property comprised in any waqf or for possession of any interest in such property and is not attracted to any other suit. Since the present suit is for declaration and consequential reliefs, Section 107 did not apply and as such, the provisions of the Limitation Act, 1963 were squarely applicable. It is argued that the limitation for challenging the sale deed in favour of the opposite parties was three years. The plaintiff/petitioner has not sought any declaration challenging the said sale deed specifically till date. No averment has been made in the plaint specifically challenging the said sale deed and/or any specific ground for doing so. The blanket relief, being relief (d) in the plaint, cannot be construed to be a specific prayer for a declaration or cancellation of the particular sale deed in favour of the opposite parties, in the absence of any particulars of the deed(s) impugned in relief (d). Even taking the knowledge of the plaintiff to be as per the cause of action pleaded in the plaint, that is January 7, 2016 more than three years have elapsed in the meantime, without any specific declaration being sought as regards the said deed of sale being forged or illegal. As such, the challenge now sought to be thrown to such sale deed is time‐barred.

It is further argued on behalf of the opposite parties that the plaintiff has no locus standi to file the present suit, since the appointment of the plaintiff/petitioner as mutawalli was itself invalid. The waqf deed having specifically debarred the heirs of Sk. Hossain from becoming mutawallis and the present petitioner being admittedly the son of Sk. Hossain, the petitioner could not have been appointed as a mutawalli of the waqf estate. It is submitted that Section 3(i) of the 1995 Act categorically provides that the mutawalli ought, at the first instance, to be any person appointed under any deed or instrument by which a waqf has been created. It is submitted that Section 63 of the Waqf Act permits the Board of Waqf to appoint mutawallis only when there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, 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. On the strength of Section 63 of the 1995 Act, learned senior counsel for the opposite parties argues that the terms of the waqf deed have to be referred to first in appointing a mutawalli. In the present case, since the waqf deed specifically debarred the petitioner from becoming a mutawalli, it was beyond the power of the Board to appoint the petitioner as mutawalli and as such, the said appointment was palpably bad in law as well as void. It is argued that Section 63, taken in conjunction with Section 3(i) of the 1995 Act, debars the petitioner from acting as a mutawalli or being appointed so.

As such, it is argued that the injunction application was rightly dismissed by the Waqf Tribunal.

Two primary questions which fall for consideration in the present case, in order to ascertain whether the petitioner could make out a sufficient prima facie case to go for trial, are as follows:

(i) Whether the petitioner had the locus standi to challenge the sale deed executed in favour of the opposite party nos. 1 and 2 in the year 1967, both on the ground of (arguably) not being a valid mutawalli within the contemplation of the waqf deed and on the ground of limitation; and

(ii) Whether the sale in favour of the opposite party nos. 1 and 2 of the year 1967, by the then mutawalli, validly conferred title in favour of the opposite party nos. 1 and 2.

For consideration of the first question, one has to look at the relevant provisions as indicated above. The mutawalliship of the petitioner was conferred by a purported order passed by the Chief Executive Officer of the Board of Waqf, West Bengal, pursuant to a resolution passed by the M.E. Committee dated January 29, 2003 which had apparently been approved by the Board of Waqfs in its meeting dated March 9, 2003. The parent provision governing the field, from which the law of appointment of mutawalli emanates, is found in Section 204 of Mulla's Mahomedan Law, which is the authority on the subject. As per sub‐ section (1) of Section 204, the founder of the waqf has power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name,= or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office. Sub‐section (2) of Section 204 stipulates that if the office of a mutawalli becomes vacant by any of the modes indicated therein or otherwise, and there is no provision in the deed of waqf regarding succession to the office, a new mutawalli may be appointed as per the methods prescribed therein.

As such, it is obvious that the scheme laid down by the waqif at the time of foundation of the waqf acquires primacy in respect of appointment of mutawallis. In the present case, it is an admitted position that the father of the petitioner and his successors (obviously, including the petitioner) were specifically debarred by the waqif at the time of execution of the deed of waqf from mutawalliship of the waqf property.

Although Section 63 of the 1995 Act held the field, as it does today, at the point of time when the petitioner was appointed as mutawalli, even the said provision stipulates that when there is a vacancy in the office of the mutawalli and there is no one to be appointed under the terms of the deed of the waqf, or under other cases, the Board may appoint a mutawalli. As such, it is also evident that, only in the event of the absence of anyone appointed in terms of the deed of waqf can the Board have the power to appoint a mutawalli.

No prima facie evidence was produced by the petitioner to show that there was nobody, as contemplated in the waqf, to be appointed as mutawalli or to overcome the bar to the petitioner, and his co‐successors of their father, to be appointed as mutawalli.

Even taking into account Section 3(i) of the 1995 Act, a mutawalli means any person appointed, either verbally or under any deed or instrument by which a waqf has been created. Only after such phrase, the appointment by a competent authority is stipulated in the clause (i) of Section 3. The last proviso to clause (i) states that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government.

The aforesaid provisions of law, read harmoniously and in the light of Section 204 of Mulla's Mahomedan Law, indicate the intention of the waqif and the primacy of the waqf deed as the cardinal guidelines for appointment of a mutawalli.

The argument made by the petitioner on Section 3(k) of the 1995 Act is not quite appropriate in the present context, since the phrase, "person interested in a waqf", has not been used as a pool of persons from which a mutawalli can be chosen under Section 63 of the 1995 Act. Thus, the said expression does not acquire any relevance in respect of appointment of mutawalli, although such persons may initiate proceedings under certain circumstances. Moreover, clause (k) itself provides for a person interested in waqf to mean any person who is entitled to receive any pecuniary or other benefits from the waqf and goes on to include others, taking within its fold the waqif and any descendant of the waqif and mutawalli as well.

Although technically the petitioner is a descendant of the waqif, the waqif specifically disowned the father of the petitioner and his successors vis‐à‐vis appointment as mutawallis and as such, the petitioner, for the purpose of the 1995 Act, cannot be construed to be a descendant of the waqif. As such, it is prima facie seen that the locus standi of the petitioner and his appointment as a mutawalli, although apparently done as per Section 63 of the 1995 Act, is arguably void, being specifically contrary to the intention of the waqif, as expressed in the waqfnama.

As regards the second question, it is prima facie seen that the challenge to the registered sale deed by the then mutawalli in favour of the opposite party nos. 1 and 2 of the year 1967, is palpably time‐barred. The argument of the petitioner, that Section 107 of the 1995 Act precludes the operation of the Limitation Act, 1963 to disputes relating to waqfs, cannot be accepted. Section 107 specifically provides that nothing in the 1963 Act shall apply to any suit for possession of immovable property comprised in any waqf or for possession of any interest in such property. The present suit is not for the possession of such property or any interest therein, but primarily for a declaration and other consequential reliefs pertaining to the waqf property; as such, not attracting the bar of Section 107 of the 1995 Act. Thus the Limitation Act, 1963 is squarely applicable to the present case.

Taking into account Articles 56 or 58 of the Limitation Act, in view of the nature of the claims made by the petitioner in the plaint, the right to sue of the petitioner accrued long back. Relief (d) of the plaint seeks a direction to restore the suit property mentioned in the schedule by cancelling deeds/documents "if any" in respect of the suit property standing in the name of the defendant/opposite party nos. 1 and 2. The 'restoration' claimed in the said suit is not the primary relief claimed in the suit and as such, does not attract Section 107 of the 1995 Act. The prayer for cancellation of "deeds/documents if any" is absolutely vague and does not specifically challenge the sale deed of the opposite party nos. 1 and 2 at all.

Despite having claimed in the plaint that the plaintiff/petitioner had made application before the proforma defendant no. 3 for being substituted as mutawalli as long back as on September 9, 1992 and that, after b4eing appointed so, the plaintiff started to take over possession of the premises‐in‐question since March 9, 2003 the petitioner chose not to challenge the sale deed of the opposite party nos. 1 and 2 in respect of the same property in the suit filed long thereafter, in the year 2016. Moreover, the pleadings and general challenge to the ownership of the opposite parties no. 1 and 2 by virtue of "deeds/documents if any" shows that the petitioner had knowledge of such transfer long back, more so if his plaint averment as to having taken possession of the suit premises since March 9, 2003 is to be believed. It is well settled that both possession and registration are deemed to be 'notice' of transfers within the contemplation of the Transfer of Property Act, 1882. However, on the face of the plaint, there is no explanation as to the delay in filing the suit itself and/or what prevented the petitioner, who claims to be in possession since 2003, from conducting a search of the relevant records, in the concerned registration office or otherwise, in respect of the transfers of title of the suit property. In fact, till date there is no specific challenge to the sale deeds of the opposite party nos. 1 and 2, thereby raising a presumption that such claim is barred by limitation.

As regards the argument of the petitioner, that, as per the Bengal Waqf Act, 1934, the Commissioner of Waqf did not have the power to permit the transfer of waqf properties but the Board of Waqfs had such powers, it is seen that such power was conferred on the Board only by virtue of the amendment to the 1934 Act, introduced in the year 1973. Sections 53 and 54 of the 1934 Act, as they stood prior to the 1973 Amendment, specifically stipulated that no transfer by a mutawalli of any immovable property of any immovable property of a waqf by way of sale, gift, mortgage or exchange or by way of lease for a term exceeding five years shall be valid without the previous sanction of the Commissioner. It was further provided that where such transfer is made under an express power conferred by the waqf deed, the previous sanction of the Commissioner shall not be necessary, but a notice of the proposed transfer in such form and containing such particulars as may be prescribed by the Board shall be sent by the mutawalli to the

Section 54 of the 1934 Act, as it stood prior to the 1973 Amendment, provided that the mutawalli may apply to the Commissioner for sanction to transfer under sub‐section (1) of Section 53. As such, since the relevant transfer deed in favour of the opposite party nos. 1 and 2 was effected in the year 1967, that is, prior to coming into force of the 1973 Amendment, the original provisions of Section 53 and Section 54 of the 1934 Act governed such transfers at the relevant juncture, conferring power on the Commissioner to permit such transfer. Hence, the argument as regards the Commissioner having no jurisdiction to permit such transfer does not hold good.

The other leg of objection taken by the petitioner regarding such transfer, being that the waqfnama specifically debarred the transfer of the waqf property, cannot be accepted as well, in view of Section 53(2) of the 1934 Act, pre‐1973 Amendment. Sub‐section (2) of Section 53, as it stood originally, contemplated a situation where the transfer was made under an express power conferred by the waqf deed and dispensed with the previous sanction of the Commissioner in such circumstances.

On the other hand, Section 53(1) stipulated that, except as provided in sub‐ sections (2), (3) and (4), no transfer by a mutawalli of any immovable property of a waqf shall be valid without the previous sanction of the Commissioner.

A conjoint reading of sub‐sections (1) and (2) of Section 53, along with Section 54 of the said Act, as they originally stood before the 1973 Amendment, which provided that a mutawalli may apply to the Commissioner for sanction to transfer under sub‐section (1) of Section 53, categorically exhibit that a scenario of seeking permission from the Commissioner would arise only when the transfer‐in‐question was not made under an express power conferred by the waqf deed.

In such circumstances only, a permission was necessary, the power for granting which was conferred on the Commissioner under Section 54.

In the present case, since the waqf deed apparently debarred a transfer, the situation fell within the purview of Section 53(2), as no express power was conferred by the waqf deed for such transfer. Section 53(1), read with Section 54 of the 1934 Act, as it stood originally, thus came into play and validated the 1967 transfer in favour of the opposite party nos. 1 and 2, being effected by the then mutawalli with the permission/sanction of the Commissioner.

Hence, irrespective of the locus standi of the petitioner to challenge such deed, which may be arguable to some extent, the said sale deed of 1967, in favour of the opposite parties no. 1 and 2, stands on a firm legal footing and was lawfully executed on the face of it. As such, there is no scope, at least prima facie, to shake the said deed or the valid conferment of title on the opposite party nos. 1 and 2 by virtue of such sale deed of 1967.

It is thus evident that, in view of the second question formulated above being answered in favour of the opposite party nos. 1 and 2, the petitioner did not have a prima facie case to go for trial, sufficient to grant an injunction in favour of the petitioner. Hence, the Waqf Tribunal was justified and well within its jurisdiction in refusing such injunction and dismissing the temporary injunction application filed by the plaintiff/petitioner on contest.

As such, the impugned order does not deserve interference by this court under Article 227 of the Constitution of India. Accordingly, C.O. No. 1122 of 2019 is dismissed, thereby affirming the impugned order of dismissal of the petitioner's injunction application.

It is, however, made clear that the observations and findings rendered herein are for the purpose of deciding the merits of the petitioner's temporary injunction application and the Tribunal will be free to decide the suit itself on its own merits, without being unduly influenced with such observations/findings.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.