Sk. Mahammed Bechu vs Board of Wakfs, West Bengal & Ors.

The subject matter of challenge in this revisional application is the order dated July 20, 2016 passed by the Wakf Tribunal, West Bengal (hereinafter referred to as "the learned Tribunal") in Title Suit No. 3 of 2010 filed by the petitioner.

The petitioner claims to be in possession of Premises No. 17, Mullen Street, Kolkata, comprising a plot of land measuring about 6 cottahs, together with eighteen rooms of temporary chhettabera structure standing thereon (hereinafter referred to as "the suit premises"). According to the petitioner, the suit premises is a thika land and with the promulgation of the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 the suit premises vested in the State of West Bengal. However, on December 24, 2009 the opposite party no. 3, that is, the Chief Executive Officer, Board of Wakf, West Bengal issued an order declaring the petitioner as the encroacher of the suit premises and directed him to vacate the suit premises.

In March, 2010 the petitioner filed the suit, being Suit No. 3 of 2010 before the learned Tribunal, against the opposite parties claiming, declarations that the suit premises is a thika property and has vested for which the provisions of the Wakf Act, 1995 (in short "the Act of 1995") is not applicable and that he is not an encroacher of the suit premises within the meaning of the Act of 1995. The petitioner also claimed quashing of the said order dated December 24, 2009 passed by the opposite party no. 3. In the suit, the petitioner also filed an injunction application praying for, stay of operation of the order dated December 24, 2009 passed by the opposite party no. 3 but, by order dated August 04, 2010 the learned Tribunal rejected the said application. In the said injunction application, the present opposite party nos. 2 and 3 filed their written objection alleging that by a registered deed of wakfnama dated July 29, 1904 (hereinafter referred to as "the said wakfnama dated July 29, 1904"), one Abdul Latif and four others dedicated the suit premises and some other properties to the Abdul Latif and others wakf estate (hereinafter referred to as "the said wakf estate"). Challenging the said order dated August 4, 2010 the petitioner approached this Court by filing the revisional application, being C.O. 2623 of 2010. In the said revisional application on September 10, 2010 a learned Single Judge of this Court passed an order restraining the opposite parties from disturbing petitioner''s possession in respect the suit premises till the disposal of the suit. The opposite party no. 4, the Mutwalli of the wakf estate filed her written statement in the suit alleging the suit premises a wakf property. Since the opposite parties alleged that on the strength of the said wakfnama dated July 29, 1904 the suit premises is a wakf property, the petitioner filed an application before the learned Tribunal for direction upon the opposite parties to produce the said wakfnama dated July 29, 1904 and to decide whether the suit premises is wakf property, then the order dated December 24, 2009 passed by the opposite party no. 3 against him be set aside. However, by order dated April 16, 2012 the learned Court below directed that the said prayer of the petitioner shall be considered after framing of the issues in the suit. Feeling aggrieved by the said order dated April 16, 2012 the petitioner challenged the same before this Court in the revisional application, being C.O. 1549 of 2012. By order dated April 16, 2012 as modified by order dated May 16, 2012 a learned Single Judge of this Court disposed of the said revisional application by directing the opposite parties to produce the original wakfnama dated July 29, 1904 before the learned Tribunal, who would also decide whether the matter should be decided on the basis of the said document alone or any further evidence. The opposite parties, however, did not produce the original wakfnama. In January, 2013 the petitioner filed a fresh application before the learned Tribunal praying for, an order to decide whether the suit premises is a wakf property or not. However, since the opposite parties did not provide the petitioner with a certified copy of the said wakfnama dated July 29, 1904, the latter once again approached this Court by filing a writ petition, being W.P. 26023(W) of 2013. By order dated September 9, 2013 a learned Single Judge of this Court disposed of the said writ petition by directing the opposite party no. 4 Mutwalli to make over a copy of the said wakfnama, failing which the Registrar of the learned Tribunal would make over a certified copy of the said wakfnama to the petitioner. Thereafter, a copy of the said wakfnama dated July 29, 1904 was made over to the petitioner, wherefrom it appeared that the suit premises was not the subject matter of the wakf created by the said wakfnama and the petitioner pressed for hearing of his said application for the decision of the learned Tribunal that the suit premises is not a wakf property but, the said application was not taken up for hearing. The petitioner filed another writ petition, being W.P. 34568(W) of 2013 before this Court. By order dated December 5, 2013 a learned Single Judge of this Court disposed of the said writ petition by requesting the learned Tribunal to frame an issue as to whether the property claimed by the petitioner falls within the scope of the said wakfnama dated July 29, 1904 and to decide such issue within a period of four weeks from the date of communication of the said order.

As directed by this Court by the aforesaid order dated May 5, 2013 the learned Tribunal took up the matter for passing the order over the preliminary issue, that is, if the suit premises claimed by the petitioner falls within the scope of the said wakfnama. Before the learned Tribunal two contentions were raised on behalf of the present petitioner. In the first place it was contended that since the suit premises is not included in the said deed of wakf dated July 29, 1904 it should be declared that the suit premises is not the wakf property. The second contention of the petitioner was that there is a residential accommodation in the suit premises and for the obvious reasons the suit premises cannot be said to be a wakf property by long user. On behalf of the Board of Wakf and the Mutwalli (the opposite party nos. 1 and 3), it was submitted before the learned Tribunal that in his pleadings the petitioner admitted that the suit premises is the wakf property and his ancestors occupied the suit premises on payment of rent to the Mutwalli and, as such, the petitioner is estopped from disputing the suit premises to be a wakf property. It was further submitted that a wakf may be created orally or by an instrument or by long user and in the instant case, the then Mutwalli and the only available male member of the Wakif''s family made a declaration in his application for enrolment of the wakf that the suit premises under the occupation of the tenants was dedicated for the purpose of management and maintenance of the Masjid and it was a part and parcel of the said wakf estate which is public in nature, on the basis of which the said wakf estate was duly enrolled under E.C. No. 1391 and since then the suit premises is being treated and regarded as wakf by long user also.

After hearing the petitioner and the opposite parties, by order dated July 20, 2016 the learned Tribunal found that the suit premises is not included in the said wakfnama dated July 29, 1904. The learned Tribunal found that although the suit Premises No. 17, Mullen Street, Kolkata does not fall within the scope of wakfnama dated July 29, 1904 (Ext.-A), but the certified copy of the application for enrolment of the wakf filed by the then Mutwalli Abdul Latif and one of the joint owners (Ext-B) and the certified copy of the order passed by the Commissioner of Wakf (Ext- C), disclose the suit premises to be the part of the wakf estate and even in the records of Kolkata Municipal Corporation, the suit premises is recorded as wakf estate. According to the learned Tribunal, there is no dispute that the wakf may be created orally or by an instrument or by long user. The learned Tribunal held that when the plaintiff petitioner claimed the suit premises to a thika property and he is the thika tenant thereof under the State, but the Mutwalli and the Board of Wakf claimed the suit premises as the part and parcel of the said wakf estate and it is being treated and recorded the wakf property by long user , merely the absence of the suit premises being included in the said wakfnama dated July 29, 1904 would not affect its jurisdiction to try the dispute raised by the petitioner in the suit. Therefore, the learned Tribunal held that in the given facts and circumstances of the case it has got the jurisdiction to try the dispute raised in the suit. As mentioned earlier, it is the said order dated July 20, 2016 which has been assailed by the petitioner in this revisional application.

Assailing the impugned order passed by the learned Tribunal, Mr. Aniruddha Chatterjee, learned advocate appearing for the petitioner contended that in the present case when the basis of the opposite parties to claim the suit premises to be a wakf property is the said wakfnama dated July 29, 1904 and it was found that the suit premises does not fall within the scope of the said wakfnama, the learned tribunal committed a patent error of law to hold that it has got jurisdiction to try the dispute raised in the suit. It was argued that the learned Tribunal fell in an error of law in not disposing of the suit by setting aside the order dated December 24, 2009 passed by the opposite party no. 3.

Opposing the present application, Mr. Md. Salahuddin, learned advocate appearing for the opposite party nos. 1 to 3, the Board of Wakf, West Bengal and its Chief Executive, respectively submitted that it is settled law that a Wakf may be created orally or by an instrument or by long user and, as such, in the present case when the certified copy of the application filed by the then Mutwalli of the Wakf and one of the joint owners made a declaration that the Premises No. 17, Mullen Street, Kolkata together with other properties under possession of the tenants was dedicated and included in the said wakf estate and the order passed by the Commissioner of Wakf (Ext-C) also discloses the suit premises to be a wakf property, it cannot be said, without further trial of the suit that the suit premises is not a wakf property. Therefore, it was contended that the impugned order passed by the learned Tribunal suffers from no infirmity.

Ms. Sharda Parmar, learned advocate appearing for the opposite party no. 4, Mutwalli adopted the arguments advanced on behalf of the opposite party nos. 1 and 3 and further submitted that from the averments made by the petitioner in paragraphs 3 to 5 of his plaint filed in the suit before the learned Tribunal it is evident that the petitioner admitted the suit premises to be a wakf property and that his mother during her lifetime paid rent of the suit premises to the said Mutwali Abdul Khalid. In these facts, according to Ms. Parmar, although the suit premises is not mentioned in the said wakfnama dated Jyly 29, 1904, but the issue whether the suit premises is a wakf property or not is to be decided by the learned Tribunal after trial of the suit and the impugned order passed by the learned Tribunal is not vitiated by any error of law.

I have carefully considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the respective parties. The petitioner filed the suit before the learned Tribunal claiming the relief already mentioned above. The averments made by the petitioner in paragraphs 3 to 7 of the plaint goes to show that in the suit it is the case of the petitioner that the suit premises was a wakf property, her mother paid rent for the suit premises to the Mutwalli against valid receipts but, subsequently with the enactment of the Act of 1981, the suit premises ceased to be a wakf property and the ownership of the land of the suit premises vested in the State of West Bengal. As per Sections 6, 7, 84 and 85 of the Act of 1995 it is the learned Tribunal which has the exclusive jurisdiction to adjudicate the dispute raised by the petitioner whether the suit premises is a wakf property or not.

As per the definition of term "wakf" laid down in Section 3(r) of the Act of 1995, as also otherwise, it is settled law that a wakf in respect of a property can also be created by long user. The petitioner himself stated in his plaint that the suit premises was previously wakf property and her mother used to pay rent of the suit premises to the Mutwalli. Further, in the order dated May 16, 2012 passed in C.O. 1549 of 2012 a learned Single Judge of this Court, while modifying the earlier order dated April 16, 2012 directed that the learned Tribunal would also decide whether the matter should be decided on the basis of the said wakfnama dated July 29, 1904 alone or any further evidence. Further, by the order dated December 5, 2013 passed by a learned Single Judge of this Court in W.P. 34568(W) of 2013 a learned Single Judge of this Court, without going into the merits of the rival contentions of the parties, only requested the learned Tribunal to frame an issue, as to whether the property claimed by the petitioner falls within the scope of the said deed of wakf and decide such issue. The said order passed in a writ petition cannot be construed to direct that the issue as to whether the suit premises is a wakf property or not is to be decided only on the basis of the said deed of wakfnama dated July 29, 1904. While passing the impugned order the learned Tribunal complied with the said direction passed by the learned Single Judge of this Court. However, after considering the certified copy of the application for enrolment of the Wakf (Ext- "B") the learned Tribunal found that in the said application the then Mutwalli mentioned that the Premises No. 17, Mullen Street, Kolkata together with other property under possession of tenant, stated to be boundary premises was dedicated and included in the said wakf estate and based on the said application the said wakf estate was enrolled by the Commissioner of wakf and subsequently it was recorded in the records of Kolkata Municipal Corporation that the suit premises is the wakf property. The petitioner has not challenged the said findings of the learned Tribunal in the impugned order.

For the reasons as aforesaid, I find that in the given facts of the case merely on the ground that the suit premises does not fall within the scope of the said wakfnama dated July 29, 1904, without the trial of the suit before the learned Tribunal it cannot be held with certainty that the suit premises is not a wakf property. Accordingly, I do not find that the impugned order dated July 20, 2016 to be vitiated by any error of law. Thus, the revisional application C.O. 3665 of 2016 stands rejected.

However, there shall be no order as to costs.

Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.