Allowed

Sk. Safik and Ors. v. the Board of Wakfs, West Bengal and Ors.

Calcutta HC21 Sept 2021CO/200/2021

Case brief

AI extract

What is this about?

Local villagers and worshippers challenged a Waqf Tribunal decree that partly refused reliefs in a suit over two waqf estates. The High Court held the properties to be public waqf, the Board's scheme to develop waqf land with a commercial developer illegal, and allowed the revisional application, setting aside the Tribunal's judgment and decree.

What did the court decide?

Allowed; Tribunal's decree dated 19.11.2020 set aside; Board resolution dated 12.08.2014 and consequential documents void ab initio; Rs.25 lakh to be refunded.

Sk. Safik and Ors. Vs the Board of Wakfs, West Bengal and Ors. — Calcutta HC (2021) — LawSathi Research

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In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side

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The Hon’ble Justice Sabyasachi Bhattacharyya

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C.O. No.200 of 2021

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Sk. Safik and others

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Vs.

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The Board of Wakfs, West Bengal and others

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For the petitioners	:	Mr. Haradhan Banerjee, Md. Yamin Ali, Mr. Arif Ali, Mr. Partha Pratim Mukherjee
For the opposite party no. 1	:	Sk. Md. Galib, Mr. Abu Siddique Mallik,
For the opposite party no. 4	:	Mr. Partha Pratim Roy, Mr. K. A. Rahman
For the opposite party no. 5	:	Mr. Tapan Kumar Mahapatra
For the opposite party no. 10	:	Mr. Piyush Chaturvedi Ms. Subhra Nag
Hearing concluded on	:	19.08.2021
Judgment on	:	21.09.2021

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Sabyasachi Bhattacharyya, J:-

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1. The present application under Article 227 of the Constitution of India has been filed by the plaintiffs (allegedly local villagers) against partial

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refusal of the reliefs sought in Suit No. 12 of 2015 filed before the Waqf Tribunal, West Bengal.

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2. The suit was filed for the following reliefs:

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a) Declaration that the schedule properties mentioned in E.C. no. 287A and 287 are Wakf properties and public Waqf or “Waqr-Lil-La” in nature not “private Waqf” or “Waqf-Al-Aulad”;

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b) Declaration that the defendant nos. 4, 5 & 6 be removed forthwith from the post of Joint Mutawalli since they have reputured the terms of the deed of Waqfs within the repeatedly by getting the properties recorded in their own name, selling out the properties of the Waqf Estate, neglected to perform their obligations as directed by the Waqifs;

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c) Direction upon the defendant no. 1 to cancel the resolution dated 12.8.2014 in respect of the development of the property being premises no. 3, Grand Street, Kolkata – 700 013 forthwith till the disposal of the suit;

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d) Direction to restore the property mentioned in schedule “C” by cancelling the deeds of purchase if any held by the defendant nos. 7, 8 & 9;

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e) Direction upon the defendant no. 2 not to grant sanction of any building plan if sought for in respect of the premises no. 3, Grant Street, Kolkata – 700 013 mentioned in schedule “B” till the disposal of the suit;

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f) Directions upon the defendant no. 3 to effect correction of the records of rights in respect of the entire properties enrolled in the records of the defendant no. 1 in favour of (i) Haji MunshiNunsur Ahmed Waqf Estate, E.C.no. 287A (ii) Haji Noor Jahan Nessa Bibi Waqf Estate, E.c. no.287;

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g) Direction upon the defendant no. 1 to appoint only “two Mutawallis” complying the direction of the Waqifs along with a “Management Committee” or Committee of Custodian comprised of 7 members being permanent residents of village Shovna to look after the Management of the Institutions of the Waqf Estate and its further development either in Kolkata or in village – Shovna;

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h) Permanent injunction restraining the defendant nos. 4, 5, 6, 7, 8 & 9 not to transfer of alienate or change the nature and character of the suit properties mentioned in the Schedules “A”, “B”, “C” till the disposal of the suit;

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i) Ad-interim order of injunction restraining the defendant nos. 1 and 2, and their men, agents, subordinates and assigns not to grant any sanction of building plan upon the properties mentioned in Schedule “B” and further direction upon the defendant nos. 4 to 9 not to change the nature and character of the suit land mentioning in schedule “A”, “B” & “C” below till the disposal of the suit;

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j) A decree for cost;

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

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3. The first ground of challenge is the alleged perversity in the findings of the Tribunal on several scores. The Tribunal held that the suit property is a composite waqf property, partly private and partly public.

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4. Learned Senior Advocate appearing for the petitioners contends that both Exhibits ‘A’ and ‘B’, which are WaqfRegisters, show that both properties, which are the subject-matter of the suit, are public auqaf. The two relevant WaqfDeeds, being Exhibits ‘L’ and ‘M’, also indicate that only the descendants of the Waqifs’ family have been allowed to stay in the premises where the Waqifs stayed, but no other benefits, save and except appointment as Mutawalli as per line of succession (with fixed salary) and other employees with fixed salary, were conferred on such descendants. Hence, although the Mutawallis appointed from among the descendants have the restricted right of management of the estate, they are not entitled to enjoy any usufructs from the waqf property apart from such fixed remuneration. No other benefit/remuneration was reserved for the Mutawallis or legal representatives of the Waqifs from generation to generation. The waqf deeds provide that, after incurring expenses for management of the waqf by the Mutawallis for maintenance of the MusafirKhana, Madrasah, Khanqah and Mosque and for payment of tax and staff salary, including the Mutawallis’ fixed remuneration, the balance would be deposited in the Treasury of the Government of India, from which maintenance was to be provided for performance of religious, pious and charitable purposes, not for the members of the descendants or their families but for the members of the public in general.

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5. By placing reliance on Section 6 (11) of the Bengal Waqf Act, 1934, the learned Senior Advocate appearing for the petitioners argues that Waqf-

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Al-Aulad (private waqf) is one under which not less than 75% of the net available income is, for the time being, payable to the Waqif or any member of his/her family or descendants. Such test is not satisfied in the present case. It is further submitted that the Bengal Waqf Act, 1934, enacted with the prior sanction of the Governor General under Section 80A (3) of the Government India Act, has been simultaneously existing with the prevalent Central Acts, previously the Waqf Act, 1954 and now the Waqf Act, 1995, particularly in view of the non obstante clause by way of Section 108A of the 1995 Act, introduced by Section 56 of the Amendment Act 27 of 2013.

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6. Citing Smt. Badary Jahan Bibi vs. Major HaziDabiruddin Ahmad &Ors. , reported at 47 CWN 381 , learned Senior Advocate for the petitioners submits that the salary of Mutawallis, even if members of the Waqif’s family, is an expenditure connected with the management of the waqf estate and cannot be taken to be a benefit intended to accrue merely to their advantage for the purpose of determining whether the waqf is aWaqf-Al-Aulad.

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7. Even apart from the certified copies of the waqf registers, being Exhibits ‘A’ and ‘B’ in the suit, the DW-1 deposed in his examination-in-chief that both E.C. Nos. 287A and 287 are public auqaf. Section 6 (4) of the 1995 Act provides that the List of Auqaf shall, unless modified in pursuance of a decision of the Tribunal under Section 6 (1), be final and conclusive.

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8. Section 3(r)(iv) of the 1995 Act, it is argued, clearly provides that the term “waqf” includes a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law. Read in conjunction with the Bengal Waqf Act, 1934, it is contended, the suit properties are, beyond doubt, public auqaf. Placing reliance on ChhedilalMisra (Dead) through LRs. Vs. Civil Judge, Lucknow and others, reported at (2007) 4 SCC 632 , learned Senior Advocate appearing for the petitioners argues that the Waqf Tribunal exceeded its jurisdiction by modifying the Waqf Register.

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9. Moreover, DW-3 admitted the remuneration of the Mutawallis to have been fixed in terms of the waqf deed, as recorded in the impugned judgment itself.

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10. Learned Senior Advocate appearing for the petitioners refutes the Tribunal’s finding, that the suit was barred by non-issuance of notice under Section 586 of the Kolkata Municipal Corporation Act, 1980 (for short, “the KMC Act”), by placing reliance on a Division Bench judgment of this Court, rendered in GowardhandasRathiVs. Corporation of Calcutta &Anr. , reported at AIR 1979 Cal 539 . It was held therein that although permanent injunction was claimed as an additional relief, the relief of

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declaration of title was an ancillary relief since, as per Section 54 of the Specific Relief Act, 1877, any suit for perpetual injunction must involve a declaration or determination as to the existence of a right of the plaintiff and its threatened violation or the threatened commission of an act to injure that right of the plaintiff or, in other words, such a declaration would necessarily be implied in such suit. Consequently, in law, such a declaration would not alter the character of the suit as a suit for permanent injunction. Hence, the Division Bench held, such a suit would be protected under Section 586 (4) and notice under Section 586 (1)of the Calcutta Municipal Act, 1951 would not be necessary for the institution of the suit.

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11. It is further argued by learned Senior Counsel for the petitioners that the Tribunal acted without jurisdiction in observing that the decision of a coordinate Bench of this Court rendered in C.O. No.4393 of 2015 was not final and binding as regards the notice under Section 89 of the 1995 Act being not defective.

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12. It is argued that the point was finally decided by this Court and, as such, cannot be reopened at the final hearing stage.

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13. Learned Senior Counsel contends that the prayer in the plaint for cancellation of the sale deeds, being Exhibits 1-8, is in respect of a property measuring about 16 bighas agricultural land, which is the source of income out of paddy cultivation of the Waqf Estate for the

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purpose as stipulated in the Waqf Deed. The said property was sold by the Mutawallis, without being entitled to do so, to third parties by violating the condition of the Waqf Deeds, as reflected from the Board’s Resolution dated August 12, 2014, being Exhibit ‘E’. In essence, the Board allowed the descendants of the Mutawallis of the Waqf Estate to distribute the Waqf property by converting the same to a secular property, which is an illegality, with the active support of the Board, as endorsed by the impugned judgment of the Tribunal. The Tribunal, it is argued, ignored such facets of the matter and failed to appreciate the scope of the relief claimed in respect of the sale deeds, since the properties-in-question were illegally transferred. It is argued that the declaration sought in the suit was not barred by limitation or any other law. That apart, there was substantial compliance of Section 89 of the 1995 Act on the part of the petitioners.

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14. Learned Senior Advocate for the petitioners next argues that the plaintiff/petitioners never prayed for declaration or cancellation of the sale deeds, since the Waqf Act itself says that the deed is void, as it was executed in favour of third parties as a secular property without the permission of the Board of Auqafand theWaqf Deeds themselves prohibit such transfer, thus rendering the transfer itself void ab initio. As such,

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no separate declaration is needed for cancellation of the deeds. In any event, the reliefs could be moulded by the Tribunal appropriately to hold that the deeds-in-question were void ab initio.

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15. Next addressing the finding of the Tribunal that prayer (b) of the plaint was not substantiated by the plaintiff/petitioners, since the grounds mentioned in Section 64 of the 1995 Act were not satisfied and in view of the alternative remedy available in Section 64(4) of the Waqf Act, 1995, the learned Senior Advocate contends that such findings are erroneous in law,since the Mutawalli himself transferred the property, claiming adverse interest against the Waqf Estate by transferring the property in the name of his wife and, thus, there was patent malpractice, maladministration, misfeasance and malfeasance on the part of the Mutawalli. The Tribunal acted without jurisdiction in impliedly accepting such act.

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16. It is argued by the petitioners that the finding of the Tribunal, that it is not empowered to grant the relief sought in prayer (b) of the plaint, is erroneous in law in view of the mechanism available before the Tribunal in terms of Section 32(3) of the 1995 Act. Complaints were lodged for removal of the Mutawallis on the ground of purported acts of the Mutawalli as defined under Section 64, Clauses (i) and (k) of the said Act and the prayers for removal of Mutawallis and to appoint Mutawallis were in accordance with the provisions of Section 32(g) of the Act as well as to take measures for recovery of lost properties of the Waqf under Section 32(h), in terms of sub-section (4) of Section 32, of the 1995 Act which could very well be challenged before the Tribunal.

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17. Regarding the finding of the Tribunal as to non-maintainability of the prayer for correction of the records, since the Mutawallis filed an application for correction of records and as it was the duty of the Board of Auqaf to take steps for such correction and the Tribunal cannot transgress into the jurisdiction of the Board or assume the power of Mutawallis while giving direction to the BL & LRO, the learned Senior Advocate appearing for the petitioners submits that such finding is erroneous on the score that the relief could very well be moulded by the Tribunal by declaring that the conversion of the Waqf property by its transfer as a secular property is void in the eye of law and the purchasers/encroachers should be removed by granting restoration of the possession of the Waqf Estate in terms of Section 32(3), read with Section 32(5), of the 1995 Act, read with the State Amendment (West Bengal), which includes the expression “control and manage the properties in such manner as may be prescribed”. The Tribunal refused to exercise jurisdiction vested in it by law in ignoring the above provisions.

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18. Regarding the locus standi of the petitioners to file the suit, no issue was framed by the Tribunal, it is argued. Rather, the Tribunal held impliedly in favour of the plaintiffs’ locus standi by passing a part-decree in the suit.

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19. That apart, a co-ordinate Bench of this Court had already held, while dismissing a revisional application against an order rejecting a petition under Order VII Rule 11 of the Code of Civil Procedure of the Board,that the plaintiffs were‘persons interested’ in the Waqf, which was binding on the Tribunal. Section 6(8)(a) of the Bengal Waqf Act, 1934 and Section 3(k) of the 1995 Act, as amended in 2013, brings the plaintiffs/petitioners within the purview of the term ‘persons interested’.

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20. It is further argued that, at page no.90 of the impugned judgment, the Tribunal modified the development agreement which was approved by the Board by its resolution dated August 12, 2014.

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21. Such modification was apparently in terms of the powers conferred under Section 32(2)(d), read with Section 77 of the 1995 Act.

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22. However, the Waqf Deeds, it is argued by the petitioners, do not permit the development of the Waqf Property by raising a multi-storied building thereon and inducting tenants according to the desire of the developer, which is not a charitable institution. The developer’s allocation of 50 per cent of the property exclusively was specifically prohibited by the Waqf Deed.

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23. The Waqf Board also reserved for itself an amount of Rs. 25,00,000/- “in consideration of the approval of the development agreement”, which does not fall within the purview of donation in terms of Section 77 of the 1995 Act. No paper publication was made for the public-in-general regarding

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the proposal to settle the scheme of management of Waqf. The Tribunal could not have gone beyond the prayers made in the plaint by modifying the development agreement instead of setting aside the purported resolution for development.

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24. In terms of Sections 32 and 56 of the 1995 Act, the power of development and construction on the Waqf property is not vested on the Board of Auqaf, which is entitled only to supervise regarding inspection of accounts and of the Waqf property, which powers do not include development and construction or obtaining sanction from the Municipal Authorities. Only the Mutawalli is entitled to ask for such sanction. In the absence of any such power being entrusted on the Mutawallis by the Waqf deeds, the basic proposition of the Waqf deeds, that the Mutawalli, as per line of succession, would be in charge of the property on salary basis and not on the basis of usufructs, was defeated by the acceptance of the development agreement. The Waqf deed does not permit making over the property to a commercial vendor by reserving consideration amount for the Waqf Board and handing over half of the suit property to a developer. In this context, learned Senior Counsel for the petitioners cites Md. TahammulHaque&Ors. Vs. Calcutta Municipal Corpn. &Ors. , reported at (2001) 1 CLJ 62.

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25. The Tribunal further held that the suit is hit by Order I Rule 8 of the Code of Civil Procedure. However, the petitioners argue that the 1995

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Act is a Special Act and the Code of Civil Procedure is procedural law. Since the Special Act provides entitlement to file a suit by persons interested, in terms of the language contemplated under Section 83, read with Section 32(3), of the 1995 Act and the requirement of the statute has been fully complied with by the plaintiffs, the suit could not be held to be not maintainable in the eye of law.

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26. Moreover, no issue was framed by the Tribunal as to whether the suit is hit under Order I Rule 8 of the Code, thereby depriving the plaintiffs of the opportunity to take adequate corrective steps. The plaintiffs, being persons interested and worshippers of God in the Mosque, certainly fall within the category of ‘beneficiaries’, it is submitted. Moreover, the Tribunal, by partially decreeing the suit in favour of the plaintiffs, obviously gave a go-bye to the maintainability point for want of notice under Order I Rule 8 of the Code. The judgments cited by the Board, it is argued, are different on facts from the present case. Rather, it is established from the judgments that the Board has only supervisory powers regarding the accounts and inspection of the Waqf property, which excludes the power to develop and/or construct on a Waqf property.

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27. The petitioners place reliance on the following judgments in support of their submissions:

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1. 47 Calcutta Weekly Notes 381 [Sm. Badary Jahan Bibi Vs. Major HaziDaviruddin Ahmad and ors.];

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2. 2007 (4) SCC 632 [Chhedi Lal Misra (DEAD) through LRS. Vs. Civil Judge, Lucknow and others];

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3. AIR 1970 Cal 539 [GowardhandasRathi Vs. Corporation of Calcutta and another];

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4. 43 CWN 415 [The Commissioner of Wakfs, Bengal Vs. Messrs. Narasing Chandra Daw & Co. and others];

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5. AIR 2009 All 62 [Maulvi Abdul Rahman Siyai Vs. SardarMaqbool Hasan & others];

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6. (2011) 11 SCC 786 [Kalian Singh Chowhan – Vs.- C.P. Joshi];

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7. 2001 (1) CLJ 62 [Md. TahammulHaque and others Vs. Calcutta Municipal Corporation and others];

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8. (1981) 1 MLJ 332 [K. Jamaluddin &Ors. Vs. K.P. Jainulaludden&Ors.];

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9. AIR 1999 Kerala 289 [AliyathammadaBeethathebiyyapuraPookoya Haji Vs. PattakalCheriyakoya and others];

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10. AIR 1983 Orissa 199 ) [Arakhita Swain Vs. Kajdhuni Swain]

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28. It is argued by learned counsel for the opposite party no.10-developer

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that the suit was not maintainable at all. The Board of Auqaf, it is argued, is the competent authority to take steps for removal of Mutawalli in terms of Section 32(2)(g), read with Section 64, of the 1995 Act and the Waqf Tribunal, constituted under Section 83 of the Act, is vested with

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appellate jurisdiction as per Section 64(4) of the 1995 Act. The Board of Auqaf is vested with powers to determine the nature and classification of a Waqf property and such decision of the Board is final, unless interfered with by the Tribunal. Hence, the plaintiff/petitioners were debarred from raising such issues by filling a suit before the Tribunal at the first instance, rather than an appeal.

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29. It is further argued that the suit is not maintainable in view of Section 586 of the K.M.C. Act and Section 80 of the Code of Civil Procedure.

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30. It is further contended that the developer is the worst sufferer due to the deadlock created in view of the litigation, since the developer has already invested substantial amounts of money for such development work.

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31. It is argued that the opposite party no.10-developer acted bona fide in pursuance of the resolutions taken by the Board of Waqf on August 12, 2014 and August 24, 2014. The developer has already paid Rs. 25 lakh to the Board of Waqf and liquidated a liability of Rs. 32 lakh to the K.M.C. as property tax of the Waqf property, apart from spending considerable amounts, estimated at Rs.13 lakh, towards amalgamation, mutation, preparation of building plan and securing vacant possession in respect of the disputed properties.

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32. The developer, it is argued, committed an amount of Rs. 10 lakh or the estimated amount,whichever is higher, towards development/construction of Mosque, Madrassa, Musafirkhanabelonging

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to the Waqf Estate at Bardhaman and, as such, there is no irregularity on the part of the developer.

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33. Learned counsel appearing on behalf of the opposite party no. 5 contends that no leave was granted by the Tribunal for instituting the suit. That apart, it is argued that the petitioners were to prove their own case and could not have relied on the defendants’ case. Although complaints were lodged by the petitioners before the Board of Waqf regarding mismanagement of the Estate, the petitioners failed to prove such allegations and could not produce any single document to that effect.

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34. Learned counsel further argues that the petitioners prayed for removal of the Mutawallis, which is provided under Section 64 of the Waqf Act, which power is entrusted with the Board of Waqf.

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35. In the deeds of Waqf, learned counsel for the opposite party no. 5 argues, the rules of succession amongst the descendants of the Wakifs and also rights and rituals to be performed on the basis of the deed of Waqf as well as benefits derived from the Waqf Estate being distributed amongst the descendents, have been specifically provided for.

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36. In their cross-examination, it is contended, the petitioners admitted (through PW1 and PW2) that the entire properties were sold out by the Mutawallis and also admitted that the properties are in their control and management, which aremutually contradictory. There is no illegality in the transaction regarding the Waqf property. The opposite party no. 5

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relies on the admission of the PW-1 in cross-examination that HaziMunshiMansoor Ahmed did not donate his entire property towards Waqf and the statement inparagraph no. 4 of his evidence is wrong to that effect. Moreover, the two Waqf deeds-in-question also reveal such factum.

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37. The defendant/Mutawalli was appointed in the year 2002 onwards, but the alleged sale deed was executed way back in the year 1970. Hence, the allegations against the Mutawallis, that they have not managed theWaqf estate properly and misappropriated the Waqf funds, are false and fabricated.

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38. It is further argued by learned counsel for the opposite party no. 5 that the cross-examination of DW-2 reveals that the entire Waqf Estate was controlled by the petitioners forcibly and that the Mutawallis applied before the concerned BL & LRO for correction of the records of rights in the name of the Waqf Estate. The defendant no. 5 submitted declaration that he and his father never executed any sale deed in favour of third parties on the basis of the direction of the Board of Auqaf, which has been completely suppressed by the petitioners. Hence, the opposite party no. 5 prays for dismissal of the revisional application with costs.

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39. It is argued on behalf of the opposite party no. 4-Mutawalli that the plaintiffs/petitioners have failed to prove in their evidence the allegations of mismanagement of the Waqf Estate. The main object of the plaintiffs,

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it is submitted, is to grab the property in spite of admitting the fact that, as per the Wakifs, the local people cannot be Mutawallis. The opposite party no. 4, after assuming the charge of Mutawalli, neither transferred any property nor acted in contravention of the interest of the Waqf Estate as mentioned in the deed.

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40. It is further argued that the Plot nos. 48 and 1092 are not mentioned in the Waqf deed but were wrongly included at the time of application for enrolment. The properties were transferred vide deed no. 3787 of the year 1919 and Deed no. 3683 of the year 1928. The latter was cancelled by a competent court of law and the property involved in the former deed is in respect of a water body which was recorded as a secular property. Hence, the transfers in favour of the heirs of Haji MunshiMansur Ahmed and Haji Noor Jahan Nessa Bibitook place much earlier.

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41. Learned counsel for the opposite party no. 4 contends that the defendant no. 4 to 6 were appointed as Mutawallis and applied for renewal of their tenure which is still pending for consideration. As such, the argument that they were appointed for only five years vide resolution dated February 23, 2011, which expired on February 22, 2016, is incorrect. In view of the Resolution dated February 24, 2014, the Board specifically decided that if any Mutawalli, whose tenure is over or scheduled to be over, files an application of extension of his tenure and the Board fails to dispose of such application, the term of tenure is to be deemed to be

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continued till Mutawalliship is adjudicated by the order of the Board or by statutory implication. As such, defendant nos. 4 to 6 are still Mutawallis of the Waqf Estate.

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42. Learned counsel for the opposite party no.4 places reliance on the judgment of Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others , reported at AIR 2014 SC 937, in support of the proposition that the plaintiffs have to prove their own case by adducing evidence and that a suit cannot succeed based on the witness of the defence.

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43. It is further mentioned that the Resolution of the Board, annexed at page 90 of the revisional application, clearly mentions the deed dated March 4, 1990, which was in respect of Plot No.652 and 333 which are secular properties. The secular nature of such properties as well as the land mentioned under Plot No.119/1962 is also borne out, it is submitted, from the concerned records of rights. It was also resolved in the meeting of the Board that the Mutawallis will purchase the same quantum of land in favour of the Waqf Estate, commensurate with that which was sold out.

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44. In view of the above circumstances, there was no question of the Mutawallis having transferred any portion of the land pertaining to the Waqf Estate. However, a certain portion of the transfer was made unintentionally and under the belief that those properties were secular in

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nature. The plaintiffs, however, failed to prove that those were Waqf properties.

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45. Regarding the removal of Mutawalli, learned counsel for opposite party no.4 places reliance on Rashid Ali Molla& Others Vs. Board of Wakfs& Others , reported at 2019 Supreme (Cal) 511, wherein it was held that an appeal under Section 64(4) of the 1995 Act had to be preferred for removal of a Mutawalli, that too within one month from the date of receipt of the order passed under Section 64(1)(i)(c) of the Act.

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46. Learned counsel for the Board of Auquf supports the impugned order on various counts. It is submitted that the plaintiffs/petitioners have taken illegal control of the Waqf properties situated in the District of Burdwan, as referred to in internal pages 22 to 25 and 80 to 84 of the impugned judgment. They also took charge of the Mosque, Sadarpukur andKhirkipukur forcibly and are also attempting to take charge of Premises No.3, Grant Street, Kolkata-700 013 (internal Page 83 of the impugned judgment), which is a part and parcel of the waqf property.

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47. The plaintiffs have filed the suit as “Musallis” of the Mosque in Burdwan District belonging to Waqf Estate, although there is no such pleading in the plaint.

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48. The Enquiry Report dated November 9, 2017, marked Exhibit ‘Y’, has not been challenged by the plaintiffs. That apart, it is submitted that the plaintiffs want a parallel management committee of the Waqf Estate to be run by them, thereby defeating the purpose of the deed of Waqf itself.

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The plaintiffs, including other villagers,are not permitting the Mutawallis to cultivate the agricultural lands belonging to the Waqf Estate, thereby hampering the income of the estate from such lands.

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49. Learned counsel for the Board argues that, as per the scheme of the 1995 Act, the Tribunal is the only fact-finding forum. This court, by view of Section 83(9) of the 1995 Act can confirm,reverse or modify the determination made by the Tribunal but does not act as the Appellate Court. It is further submitted that the scope of Section 83(9) of the 1995 Act is no longer res integra in view of several judgments of the Supreme Court.

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50. Learned counsel relies on the admissions allegedly made by PW1 and PW2 in their respective cross-examinations by the Board (with reference to internal pages 22 to 28 of the impugned judgment), the appreciation of evidence made by the Tribunal (pages 80 to 85 of the impugned judgment) and the adjudication of the case issue-wise by the Tribunal (pages 109 to 121 of the impugned judgment).

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51. Learned counsel for the Board further contends that the suit transgressed beyond the cause of action contemplated in the notice under Section 89 of the 1995 Act, which mandatorily precedes the institution of a suit before the Tribunal against the Board. The statement of cause of action in paragraph 20 of the plaint also relied upon the notice under Section 89. However, such cause of actionpleaded in the plaint is illusory, consequent upon the appreciation of evidence

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adduced by PW1 and PW2. The notice under Section 89 of the 1995 Act being mandatory, the cause of action pleaded in the plaint has not been covered by the notice in the instant case, hence, taking the suit beyond the purview of the notice.

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52. It is next contended that the suit instituted by the plaintiffs/petitioners does not come within the purview of Sections 6, 7 and 32(3) of the 1995 Act, which are only provisions relating to institution of a proceeding in the nature of a suit before the Tribunal.

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53. That apart, it is contended that the declaration sought in relief (a) of the plaint has only been sought to bring the suit within the ambit of Sections 6 and 7 of the Act, although there is no “dispute” and/or “question” in any manner whatsoever as regards the scheduled properties being Waqf properties.

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54. Paragraph 13 of the plaint seeks to identify the plaintiff as “persons interested”, being permanent residents of the local village and “beneficiaries” of the respective Waqf Estates. However, the definitions under Section 3(a) and 3(k) of the 1995 Act, taken in the context of the Waqfnamas, do not support such contention. In the cross-examination of PW1, he identified the plaintiffs as “Musallis”, having filed the suit on behalf of the villagers. The suit, thus, suffers from the mischief of noncompliance of Order I Rule 8 of the Code of Civil Procedure.

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55. The reliefs claimed in Prayers (c), (h), (i) and (j), which are interim prayers, are beyond the scope of the final adjudication of the suit and, as such, absurd.

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56. Reliefs (b), (c) and (d) are beyond the scope of a proceeding before the Tribunal. Relief (b) of the plaint relates to removal of Mutawalli, for which a specific procedure has been envisaged under Section 32(2)(g), read with Section 64, of the 1995 Act.

¶124

57. The relief prayed for in Clause (c) can only be a subject-matter of challenge under Section 83(2) of the 1995 Act, read with Rule 26 of the West Bengal Waqf Rules, 2001 (in short, “the Rules”).

¶125

58. Even the reliefs prayed for in Clause (d) of the prayer portion in the plaint, as per the judgment of the Supreme Court, is not to be sought before the Tribunal, which is an inappropriate forum for such purpose.

¶126

59. Relief (g) is beyond the scope of the jurisdiction of the Tribunal in view of the provisions of Section 32(g), read with Sections 63 and 3(i), followed by the first proviso to Section 32(1) of the 1995 Act.

¶127

60. Learned counsel for the Board further argues that the suit is hit by noncompliance of Section 586 of the KMC Act, 1980, in terms of the reliefs prayed for in Payers (e), (h) and (j) of the plaint.

¶128

61. Section 80 of the Code of Civil Procedure has also not been complied with, in the context of relief (f) of the plaint, which is also beyond the jurisdiction of Waqf Tribunal in view of the provisions of the West Bengal Land Reforms Act, 1955.

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62. Since the Waqf Estates are being administered by the Mutawallis, the development proposal from the Mutawallis was accepted by the Board, followed by the Resolution dated August 12, 2014, and does not suffer from any illegality in view of the provisions of Section 32(4) and 32(5), read with Section 52(1-A) of the 1995 Act, the latter being inserted by the Amendment Act of 2013, with effect from November 1, 2013.

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63. Learned counsel further argues that the donation of Rs. 25 lakh comes within the purview of Section 77 of the 1995 Act. The said provision of donation, grant and benefaction has been contemplated in view of the meagre income that the Waqf Board is legally entitled to get under Section 27 off the 1995 Act. The donation, benefaction and/or grant collected by the Waqf Board under Section 77 is applied for the purpose as laid down in Section 77, sub-sections (4) and (5) of the Act. The Board is also entitled to get donation of both movable and immovable properties as per Section 104 of the 1995 Act.

¶132

64. It is next argued that, in view of Section 32(2)(na) of the 1995 Act, the Board is empowered to determine or cause to be determined the market rent of any Waqf land or building. The Board has fixed Rs.3/- as rent for residential purpose and Rs.5/- as rent for commercial purpose of the proposed new building to be constructed on the Waqf premises at 3, Grant Street, Kolkata- 700 013, under such power on the date of passing the Resolution on August 12, 2014. The rates of rentof Rs.5/-, per square foot for commercial use and Rs.3/- per square foot for

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residentialpurpose, as per the Resolution dated August 12, 2014 were confirmed concurrently by the Tribunal by its judgment and decree dated November 19, 2020, which has also been admitted by PW1 in his crossexamination (with reference to internal page 24 of the impugned judgment), although they proposed a change in the ratio of the development to be 45:55, instead of 50:50 as resolved by the Board.

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65. That apart, it is argued that the plaintiffs are busybodies who are itself to scuttle the developments of the Waqf premises by grabbing and encroaching upon a part of the properties belonging to such Estate in the District of Burdwan, as admitted by PW1 and PW2 in their respective depositions.

¶136

66. The unanimous Resolution of the Board dated August 12, 2014 and the Joint Venture Agreement between the developer and the Waqf Estate, represented by Mutawallis and vetted by the Board on March 7, 2015, as modified by the impugned judgment of the Tribunal, are strictly in accordance with the mandates of the 1995 Act, in the interest of the Waqf Estates.

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67. The Board, while addressing the arguments of the petitioners, contends that Section 67 and 69 of the 1995 Act are not applicable to the present case inasmuch as there is a specific line of succession of Mutawalli laid down in the two registered Waqfnamasand the Board is to act in conformity with the said “pious” direction while appointing Mutawalli in exercise of its power under the proviso to Section 32(1) and 32(2)(g), read

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with Section 63 and Section 3(i) of the 1995 Act. The issue of development of a Waqf property is a separate and distinct issue from that of appointment and removal of Mutawalli of a Waqf Estate inasmuch as the interest of a Waqf Estate is same as that of a Mutawalli, it is argued.

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68. Learned counsel for the Board of Auqufcontends next that Section 94 of the 1995 Act contemplates an application and not a proceeding in the nature of a suit. Moreover, the plaintiffs, as per their own admission in deposition having identified their status as “Mussallis”, cannot, under any circumstance, be regarded as “persons interested” in the context of the Waqfnamas of 1915 and 1919.

¶141

69. It is further argued by the Board that the apprehension of illegality regarding the proposed newly constructed building at 3, Grant Street, Kolkata-700 013 is baseless and amounts to mere conjecture inasmuch as the unanimous Resolution passed by the Board dated August 12, 2014, followed by the Joint Venture Agreement between the Waqf Estate and the developer, vetted by the Board on March 7, 2015 and impliedly accepted by the impugned judgment, is embedded with safeguards, amongst others, as stipulated in Clause 26 of the agreement. That apart, there is not provision for lease of a Waqf property for a period of 99 years after the introduction of Section 56 in the 1995 Act with effect from November 1, 2013. Similarly, there is also no provision of sale in view of

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the November 1, 2013 Amendment. The only permissible transfer in the instant case is by way of tenancy on the basis of a tenancy agreement to

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be vetted by the Board. Tenancy of a Waqf property has been recognised under Section 3(ee) of the 1995 Act.

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70. The question of limitation, as envisaged under Section 107 of the 1995 Act, has been dealt with by the Supreme Court, it is argued. As per the observation of the Supreme Court, the said provision is not an absolute relief for any belated plea for recovery of possession.

¶146

71. Learned counsel appearing for the Board of Auqaf, in support of his arguments, relies on the following judgments:

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(i) 2021 SCC OnLine SC 280 [Kiran Devi Vs. Bihar State Sunni Wakf Board and Others];

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(ii) 2021 SCC OnLine SC 537 [Telangana State Wakf Board and Another Vs. Mohamed Muzafar];

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(iii) AIR 2003 Madras 179 [M. S. Abdul Hameed Vs. S. M. Sheik Mohammed and others];

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(iv) (2013) 10 SCC 178 [State of Kerala and others Vs. Sudhir Kumar Sharma and others];

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(v) 2017 SCC OnLine Cal 2924 [Md. NasimVs. Farida Banu&ors.];

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(vi) 2005 (1) CHN 501 [Kolkata Municipal Corporation Vs. Chanda Properties Private Limited];

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(vii) (2007) 2 SCC 551 [PremLalaNahata and another Vs. Chandi Prasad Sikaria];

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(viii) AIR 2019 Cal 275 [Masuda Begum and others Vs. Roushan Ali and others];

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(ix) AIR 2016 Cal 351 [Sayed Hassan Ali Vs. MahammedSahidul Islam];

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(x) 2001 (1) CLJ 62 [Md. TahammulHaque&Ors. Vs. Calcutta Municipal Corpn. & Ors.];

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(xi) AIR 2014 SC 758 [Bhanwar Lal and another Vs. Rajasthan Board of Muslim Wakf and others];

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(xii) (2008) 9 SCC 306 [T. Kaliamurthi and another Vs. Five Gori ThaikkalWakf and others]; (xiii) (1990) 1 SCC 613 [Charan Lal Sahu Vs. Union of India]; (xiv) (1996) SCC OnLine All 176 [WafAlalaulad and another Vs. SundardasDaulatram and sons and others].

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72. Islam, when first propagated, was far ahead of its time. Its Prophet preached universal fraternity and egalitarianism. ‘Allah’ is a concept of formless divinity, which is why idolatry and the worship of forms were denounced and not a single image of the Prophet himself is available. However, a miniscule portion of posterity has failed to appreciate it in proper perspective and seek to misuse the concept to pursue their own agenda, to the chagrin of the majority of Mohammedans and also many others.

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73. ‘Waqf’, according to Mohammedan law, is a dedication to ‘Allah’ for pious, religious and/or charitable purposes, which incidentally enures to the benefit of the masses or the members of a particular social group,

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depending on the volition of the waqif / waqifa . The ‘beneficiaries’ of a waqf estate cannot connote a narrow interpretation in the above perspective and be restricted to the persons for whom or whose descendants certain residual rights are reserved by the Waqfnama. The cardinal pivot of such a dedication is the dual concept of ‘dedication to Allah’ and ‘charitable purpose’. The incidental rights of so-called ‘beneficiaries’ are merely ancillary to such principal purpose.

¶164

74. Unfortunately the Board of Auqaf, in the present case, misused its powers ex facie to gratify its own greed, in patent collusion with a Mutawalli against whom several charges of misappropriation and corruption are pending before the Board. Instead of serving the purpose of the dedication for charitable purposes, the Board followed the proverb ‘Charity begins at home’ in its literal meaning by benefiting themselves and the Mutawalli by reserving rights in favour of the Board itself and extorting a fat donation in its own favour beyond the contemplation of the original Waqfnama, which amounts to nothing short of undue enrichment.

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75. Even the Tribunal ratified and confirmed the decision of the Board of Auqaf, at the behest of the aforementioned Mutawalli, by which the Board sat in judgment over its own cause by approving the proposal of the tainted Mutawalli(who had allegedly transferred a portion of the property to his wife contrary to the Waqfnama), by providing for major

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portions of the property to be usurped by the Board itself by way of obtaining leases at nominal rates of rent and usurping a huge amount as donation. There is a clear line of distinction between a scheme to advance the charitable purposes contemplated in the Waqfnama and bribery in the form of sops being offered to the Board (which is itself the authority deciding on the fate of such scheme) by way of monetary ‘donation’ and benefits.

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76. That apart, half of the property would stand transferred to the developer, consequently converting such property from a waqf estate to a secular property, which would be patently contrary to the desire of the Waqif and Waqifa.

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77. The Board is meant to advance the cause of waqf estates and is supposed to act as a guardian of such properties, but the modus operandi adopted in the instant case is suspect. The means practised do not justify or corroborate the end preached.

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78. Section 77 of the 1995 Act specifically deals with donations which are, by definition, required to be voluntary. However, the forced donation directed by the Board for itself by way of consideration for sale of the Waqf property, by accepting the “development scheme” forwarded by the Mutawalli, amounts to nothing less than an act of extortion.

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79. The applicability of the Waqf Fund, as envisaged in Section 77(4) of the 1995 Act, does not cover the own welfare of the Board of Auqaf .

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80. The deduction of a substantial amount of Rs.25 lakh as donation to the Board as a consideration of the transaction, and the grant of largesse by way of tenancy of a large portion of the waqf property to the authorities themselves at minimal rents of Rs.3/- and Rs.5/- respectively per month, as well as the transfer of fifty per cent ownership to the developer, are all patently detrimental to the interest of the Waqf Estate and squarely defeat the charitable dedication for worship by the public, as conceived by the Waqfnama. The unfortunate confirmation of such proposal by the Tribunal speaks volumes about the illegality of the impugned judgment and decree.

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81. Not a single inquiry was undertaken on the pending allegations against the Mutawalli, whose proposal was conveniently beneficial to the Board of Auqaf, the Mutawalli and the developer and promptly accepted by the Board. The Tribunal duly ratified such ‘scheme’ (in both its senses) by affirming such decision of the Board, discarding the primary purpose of the Waqfnama to the trash-can.

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82. Under Section 70 of the 1995 Act, ‘any person interested can move the Board in such respect’. The petitioners are not only local villagers who have a right of worship in the mosque and the waqf property as per the Waqfnama itself, but also lodged complaints against the alleged illegal activities of the Mutawalli, which ought to have been looked into prior to accepting his proposal by the Board.

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83. The appropriate provision for forming a scheme, as contemplated in Sections 64(8) and 69 of the 1995 Act, also takes within its fold the removal of a Mutawalli and prevents the re-appointment of a Mutawalli within five years after his removal. Hence, the power of the Board to remove a Mutawalli is not confined to Section 32 (2) (g) of the 1995 Act. In the teeth of such provisions and the facts as discussed above, the Tribunal acted illegally and in gross abuse of the process of law by confirming the decision of the Board of Auqaf to accept and sanction the proposal advanced by the sameMutawalli, against whom several allegations are pending at the behest of the neighbourhood villagers, without looking into such irregularities first. The Waqf is public in nature and the villagers have a right to worship in the disputed property, as well as complainants against the allegedly illegal activities of the Mutawalli whose proposal was accepted, thereby frustrating the original purpose of the Waqf. Such factors render them ‘interested persons’ within the contemplation of Section 70 of the 1995 Act and conferring locus standi on the revisionist petitioners to prefer the instant application under Article 227 of the Constitution of India.

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84. Moreover, under Section 3 (k) (i) of the 1995 Act, the expression “person interested in a waqf” includes 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

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religious or charitable institution under the waqf. The wide and inclusive language of the said provision lends legality to the right of the petitioners to litigate in respect of the waqf as ‘persons interested’.

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85. As reiterated by the Madras High Court in K. Jainalaledden & Ors.(supra) , the expression “person interested” includes persons entitled to receive “other benefits” than pecuniary benefits also, and is of the widest connotation.

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86. On the other hand, “beneficiary”, as defined in Section 3 (a) of the 1995 Act, means a person or object for whose benefit a waqf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law. The local villagers, who are entitled to offer prayers and worship at the waqf property, fall squarely within the purview of such definition. The object, for the benefit of which the waqf was created, was pious and charitable and involved the religious interest of the local villagers too. Hence, it can also be said that the object itself was the beneficiary within the contemplation of Section 3 (a).

¶183

87. On the contrary, the Mutawalli cannot be termed as a “beneficiary” as envisaged in the 1995 Act, since he is entrusted only with the management of the waqf estate in consonance with the wishes of the Waqif and Waqifa and entitled only to remuneration as stipulated in the Waqfnamas. At best, this makes the Mutawalli a “person interested”, as

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envisaged in Section 3(k)(ii), which brings the waqif’s descendants and the Mutawalli within the ambit of such expression.

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88. This view is supported in Smt. Badary Jahan Bibi (supra) , where this Court had clarified that the salary of Mutawallis is an expenditure connected with the management of a waqf estate, and not a benefit accrued to the advantage of the Mutawallis for the purpose of making a waqf ‘Waqf-Al-Aulad’.

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89. In Md. Tahammul Haque & Ors. (supra) , this Court had reiterated the proposition that a Mutawalli is not entitled to develop, but only to maintain and manage a waqf property.

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90. In the instant case, the Waqf Deeds do not permit profits being earned by a developer, making over of half of the property to a commercial vendor and taking consideration money to accept a commercial development agreement.

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91. As regards maintainability of the suit at the instance of the plaintiffs/petitioners, who have already been held to be “persons interested”, Section 32 (3) of the 1995 Act, in no uncertain terms, empowers them to institute a suit in the Tribunal for setting aside such settlement or directions, since the petitioners and the object of the waqf itself, both “persons interested”, are affected by the scheme settled by the Board.

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92. Section 32 (4) of the 1995 Act provides for the Board, when satisfied on the scores as mentioned therein, to serve upon the Mutawalli a notice requiring him to convey his decision whether he is willing to execute the development works specified in the notice. Here, the cart was put before the horse by reversing such process by way of the Mutawalli initiating the offer of development and the same being accepted by the Board, which turns the contemplation of sub-section (4) topsy-turvy.

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93. Only in case of refusal of the Mutawalli to accede to the notice given under sub-section (4), under sub-section (5) of Section 32 of the 1995 Act, the Board may take over the property and control and manage the properties till such time as all expenses incurred by the Board under that 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.

¶193

94. Section 32 (6) contemplates the developed properties being handed over to the Mutawalli of the concerned waqf after all the expenses enumerated in sub-section (5) are recouped from the income of the developed properties.

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95. Thus, the concept of the Board accepting a development scheme submitted by the tainted Mutawalli and charging an exorbitant amount of Rs. 25 lakh in lieu thereof are utterly foreign to the scheme of the

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1995 Act and the concept of ‘waqf’, as contemplated in Mohammedan Law.

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96. From the reliefs claimed in the suit, as set out in paragraph no. 2 above, prayer (a) is well maintainable within the purview of Sections 6 and 7, read with Section 83, of the 1995 Act.

¶198

97. Section 32 (3) of the said Act clearly envisages a suit before the Tribunal challenging a scheme of management settled by the Board, which is the primary purpose of the instant suit. Such a suit obviously takes within its fold all ancillary reliefs which would be in aid of the suit, which empowers the Tribunal, in such a suit, to rectify and modify all components of the scheme. Thus, the Tribunal can take coursecorrection measures as regards powers erroneously exercised or refused to be exercised by the Board. The ambit of such a suit was wide enough to encompass the primary reliefs claimed in the present suit.

¶199

98. The suit contemplated a challenge, in relief (c), to the resolution dated August 12, 2014, which would not necessitate the cancellation of the resultant deeds, but would render them void ab initio . The Tribunal had ample power to do so. Relief (f) could easily be moulded appropriately by the Tribunal in the suit filed before it, as rightly argued by the petitioners.

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99. The doctrine of parens patriae , as mooted in Charan Lal Sahu (supra) and reiterated in Waqf Alal Aulad & Anr.(supra) by the Supreme Court applies

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to the State/Executive, which can take up the causes of a victim. However, the powers of the High Courts under Article 227 of the Constitution of India are circumscribed by the contours of the said Article and are supervisory in nature, exercised over subordinate courts, tribunals, etc. If the Courts were themselves to take up causes of individual entities, then it would be rendered a judge in its own cause, which is not permissible in law and equity. Even in Public Interest Litigations, the High Courts, under Article 226 of the Constitution, have broadened the horizon to redress disputes of general importance, concerning the public or a section of the society in general. Such litigation does not extend to private disputes, as in the present case.

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100. Thus, the parens patriae concept cannot be borrowed insofar as the High Courts’ power under Article 227 of the Constitution is concerned, in the way as argued by the Board of Auqaf. If the same was done, the concept of separation of powers between the Executive and Judiciary, which is integral to the Constitution of India, would be obliterated.

¶204

101. Even if the powers of this Court under Article 227 can be said to be circumscribed by the restrictions of Section 83 (9) of the 1995 Act, the present challenge concerns the examination of the correctness, legality and propriety of the Tribunal’s findings in affirming the scheme accepted by the Board. The components of the present consideration do not necessitate the assumption of appellate powers by this Court at all. The

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judgment and decree of the Tribunal, impugned herein, was vitiated on several scores, as discussed above.

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102. The principle laid down by this Court in Gowardhandas Rathi (supra) categorically saves a suit for permanent injunction, read with Section586 (4) of the KMC Act, 1980.

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103. The dictum of KMC vs. Chanda Properties (supra) is not applicable to the instant lis , since the declarations and permanent injunction sought in the suit fall within the ambit of the Tribunal’s powers in a suit under Section 32 (3) of the 1995 Act.

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104. Section 80 of the Code of Civil Procedure is not attracted at all in the present suit, in view of the natures of reliefs claimed.

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105. As far as the developer is concerned, it is a commercial entity and had no business to make commercial investments in waqf properties, which are dedicated for pious, religious and charitable purpose. As submitted by the Board itself, once a waqf is validly created, it retains such character. The Tribunal exceeded its jurisdiction in virtually altering the List and Register of Auqaf and sanctioning the conversion of a huge chunk of the waqf estate-in-question to a secular property for commercial purposes.

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106. Hence, the impugned judgment and decree of the Tribunal are bad in law and ought to be set aside.

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107. Accordingly, C.O. No. 200 of 2021 is allowed on contest, thereby setting aside the judgment and decree dated November 19, 2020 passed by the Waqf Tribunal, West Bengal in Suit No. 12 of 2015. The impugned resolution of the Board of Auqaf dated August 12, 2014 and the consequential acceptance of the scheme offered by the Mutawalli and resultant transfer deeds and development agreement as well as other documents are rendered void ab initio , being patently de hors the law and the Waqf Deeds-in-question.

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108. The Board of Auqaf shall immediately look into the alleged irregularities and illegalities committed by the present Mutawalli(s) and take appropriate steps in that regard accordingly, upon giving a right of audience to the complainants, including the present petitioners, the Mutawallis concerned and all persons having any interest in the waqf estate.

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109. The Board shall reverse the illegal process adopted pursuant to the scheme and shall refund the amount of Rs. 25 lakh taken from the developer.

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110. There will be no order as to costs.

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111. Urgent certified website copies, if applied for, be issued to the parties upon compliance of due formalities.

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( Sabyasachi Bhattacharyya, J. )

Sk. Safik and Ors. v. the Board of Wakfs, West Bengal and Ors.

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Sk. Safik and Ors. v. the Board of Wakfs, West Bengal and Ors.

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