Bijoy Modi And Others vs Alauddin Ahmed And Another
2021 Latest Caselaw 4376 Cal

                       In the High Court at Calcutta
                        Civil Revisional Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            C.O. No.152 of 2021

                          Bijoy Modi and others
                                   Vs.
                       Alauddin Ahmed and another




For the petitioners                   :     Mr. Aniruddha Chatterjee,
                                            Mr. Debarata Roy,
                                            Mr. Anil Choudhury

For the opposite party no. 1          :     Mr. Haradhan Banerjee,
                                            Md. Yamin Ali,
                                            Mr. Arif Ali

Hearing concluded on                  :     12.07.2021

Judgment on                           :     24.08.2021


Sabyasachi Bhattacharyya, J:-



1.

The defendants/petitioners have preferred the instant application

under Article 227 of the Constitution of India against a judgment and

decree dated November 26, 2020 passed by the Waqf Tribunal, West

Bengal in Suit No. 4 of 2008, filed by opposite party no. 1.

2. The Tribunal, in the impugned judgment and decree, held that the

plaintiffs/opposite party no.1 is entitled to a decree of declaration that

the occupation and possession of defendant nos.1 to 6/petitioners in

the suit property is illegal, unlawful and unauthorised and that the

said defendants have no right to occupy the suit property. The

plaintiff was further granted a decree of possession and injunction

retraining the defendant nos.1 to 6, their associates, agents, attorneys

and any person claiming through them from creating third party

interest in any manner whatsoever in the suit property.

3. The counter-claim filed by the defendant nos.1 to 6/petitioners was

dismissed on contest.

4. Learned counsel for the petitioners argues that the Tribunal acted

without jurisdiction in negating two certificates issued by the Thika

Tenancy Controller, declaring the suit property to be a Thika property,

by entering into the merits of such decision of the Thika Tenancy

Controller.

5. That apart, it is argued that the Tribunal misinterpreted the

judgments cited before it and holding that the property was a Waqf

property, despite holding that a Waqf property may be declared to be a

Thika property, but not automatically, overlooking that the certificates

issued by the Thika Controller had attained finality, having not been

challenged before the appropriate superior forum.

6. It is further argued that the petitioners had constructed a dwelling

house over the suit property, which is the admitted position; however,

such fact was never considered by the Tribunal, overlooking the legal

effect of Section 60(b) of the Indian Easements Act, 1882.

Alternatively, the entry of the petitioners into the suit property having

been ratified by the then Mutwalli, the creation of a tenancy was

evident from the records, which vitiates the finding of the Tribunal

that the petitioner was a trespasser.

7. Even assuming that the petitioners are tenants in respect of the suit

property, the Waqf Tribunal assumed jurisdiction not vested in it by

law in declaring that the possession of the petitioners was in the

capacity of trespassers and directing eviction on such score.

8. It is further argued by the petitioners that, as evident from the

records, Chandi Prasad Modi, the father of the defendants/petitioners,

erected structures on the suit premises at his own expenses and the

petitioners are in possession thereof. Since Late Chandi Prasad Modi

was a lessee in respect of the land-in-question but the owner of the

structures erected thereon, the suit property was evidently a Thika

property and the rights of the original owner/landlord have vested in

the State.

9. It is further argued that an amount of Rs.20,000/- was taken by the

then Mutwallis, namely Sk. Salauddin Ahmed and Sk. Kabiruddin

Ahmed, with a promise to grant further lease of 99 years after taking

permission from the Commissioner of Waqf. Yet, they failed to take

such permission, for which the defendants are entitled to claim an

amount of Rs. 74,65,022/- as per calculations in Exhibit-H of the

revisional application, for the period from September 2, 1965 to

November 30, 2017.

10. Learned counsel appearing for the plaintiff/opposite party no.1 and

the Board of Auqaf contend that the Waqf Deed dated April 4, 1924

executed by Munshi S. Ahmed Buksh, marked as Exhibit-5 and a

deed of rectification of Waqf dated April 26, 1928 and further

rectification deed regarding rules of succession dated February 3,

1983 were marked as Exhibits 5/1 and 5/2 respectively.

11. No document was submitted, on the other hand, by the defendants

showing payment of yearly rent in respect of the land with building

after the year 1984. Admittedly, no rent was paid thereafter on the

ground that the defendants are Thika tenants. However, by mere

issuance of two certificates, being Exhibit-G/1 collectively, the Thika

Controller, by virtue of the West Bengal Thika Tenancy (Acquisition

and Regulation) Act, 2001 (hereinafter referred to as 'the 2001 Act'),

could not be directed to be vested in the Government, in view of the

nature of the property being Waqf.

12. Hence, it is contended that the Tribunal was justified in passing the

decree and dismissing the counter-claim on merits.

13. It is argued that Title Suit No.202 of 2004 was filed for permanent

injunction against the defendants restraining them from making

illegal unauthorised construction in the Waqf property. Return of the

plaint of such suit could not operate as a bar under Order II Rule 2 of

the Code of Civil Procedure or under Section 11 of the Code.

14. Suit No.4 of 2008 (the present suit) has been filed for recovery of

possession of the Waqf property against a trespasser and for removal

of encroachment, as well as the relief of declaration passed on the

leave granted under Section 52 of the Waqf Act, 1995 by the authority

of the Board of Auqaf.

15. It is submitted that recovery of possession being a continuing cause of

action, a suit could always be brought on expiry of the lease of 1984

under the general law of land before the Tribunal.

16. The argument that the suit was time-barred is not tenable, it is

contended, in terms of Section 107 of the Waqf Act, 1995, which

excludes suits for possession of immovable property, comprised in any

Waqf or for possession of any interest in such property, from the

purview of the Limitation Act.

17. The lease of 1964 was in respect of land together with a one-storied

building and the subsequent lease up to 1984, also created lease-hold

rights in respect of the land, along with two-storied building which

was developed during subsistence of the lease. Hence, the property

never attained the character of a Thika property, as per the definition

given in the 2001 Act.

18. The certificates issued by the Thika Controller and the challans of

payment of rent to the Controller have no probative value in the eyes

of law, learned counsel argue, since the Thika Controller acted beyond

its jurisdiction in creating a Thika tenancy, in the absence of such a

Thika tenancy being created by the owner of the property, either in

writing or otherwise. The Thika controller cannot create a Thika

tenancy but can only adjudicate a property, which is already in the

nature of a Thika property, to be so.

19. Even a tenancy under the West Bengal Premises Tenancy Act, 1956

(hereinafter referred to as 'the 1956 Act') could not be created without

the permission of the Waqf Board, since the property is a Waqf

property. Moreover, the total lease period, it is argued, up to 1984, if

taken together, would come to 25 years, which excludes the property

from the purview of the 1956 Act in terms of Section 3 of the said Act.

That apart, in the absence of any pleading, evidence or issue being

framed to support the case of premises tenancy sought to be alleged

by the petitioners, there was no scope for the Tribunal to arrive at

such finding. The opposite parties referred to the judgments of Pravin

Chandra Liladhar Vs. Madan Mohan Jaidka and others, reported at

1988 (2) CLJ 135, and the case of Shaw Wallace Company Limited and

another Vs. The State of West Bengal and others, reported at (2004) 3

CHN 362, for the proposition that even a tenancy cannot be created

without the permission of the Waqf Board in respect of a Waqf

property, which was admittedly not obtained in the present case.

20. Next placing reliance on the cases of Kamal Kumar Mitra Vs. Arun

Kumar Chatterjee and others, reported at (2016) 1WBLR (Cal) 291, and

in the case of Nemai Chandra Kumar and others Vs. Mani Square

Limited and others, reported at (2015) 2 WBLR (SC) 321, learned

counsel for the opposite parties argue that, after the expiry of the

lease in 1989, the lessee became a trespasser in respect of the

property. Thus, the revisionists' claim of Thika tenancy, it is

submitted, is devoid of merit and the Tribunal rightly held in favour of

the plaintiff.

21. By placing reliance on relevant clauses of the lease deeds, learned

counsel for the opposite parties reiterate their submission that the

suit property was never comprised of a Thika property at all, which

vitiates the issuance of certificates by the Thika Controller and the

rent challans issued by the Controller.

22. The lessee, in the present case, did not exercise his option by giving

any notice for renewal to continue as a monthly tenant. In the

absence of any such notice in writing, the erstwhile lessee is not

entitled to claim as per the relevant clause of the lease deed after 18

years by filing the suit. No suit, it is pointed out, was also filed for

specific performance to enforce the renewal clause, nor the option

was exercised, sufficient to treat the defendants/petitioners as

monthly tenants as per the judgments reported at (2004) 1 SCC 1 and

(2007) 5 SCC 674.

23. The alternative case of monthly tenancy was never pleaded or proved

by the petitioners, who consistently claimed to be Thika tenants in

respect of the disputed property. The admission of the DW 1 in cross-

examination, that the defendants did not pay rent after 1984, is also

highlighted by learned counsel for the opposite parties. Thus, the

arguments advanced before the Tribunal by the

defendants/petitioners, it is submitted, were beyond the pleadings

and evidence on record as well as contrary to the counter-claim of the

defendants claiming Thika Tenancy, which was mutually destructive

of the case of monthly tenancy.

24. Hence, it is contended by the plaintiff/opposite party no.1 and the

Board of Waqf that the Tribunal acted well within its jurisdiction and

within the scope of Section 83 of the Waqf Act, 1995 in deciding and

decreeing the suit filed by the plaintiff.

25. It is seen from the arguments of the parties that, apart from the

judgments referred to above, the parties as well as the Tribunal

referred to two other judgments, being those rendered by the Supreme

Court in Tribhuvanshnkar Vs. Amrutlal, reported at (2015) 2 SCC 788,

and Biswanath Agarwalla Vs. Sabitri Bera and others, reported at

(2009) 15 SCC 693.

26. Certain salient features which emerge from the judgment of the

Tribunal are as follows:

(i) At page 89 of the impugned judgment, the Tribunal recorded

that there was no dispute that the property is a Waqf property;

(ii) At page 91 thereof, it was reiterated by the Tribunal that the

property is admittedly a Waqf property;

(iii) At page 127, the Tribunal reiterated the above and further

found that a Waqf property becomes a Thika property, "but not

automatically on the wishes of dishonest lessee."

27. However, subsequently the Tribunal arrived at a contradictory stand

that, in the present case, the property retained its character as a Waqf

property and did not become a Thika property. While doing so, the

Tribunal overlooked the legal effect of Exhibit-G/1, which is

comprised of two certificates issued by the Thika Controller on August

28, 2017. In view of Section 5(3) of the 2001 Act, if any question

arises as to whether a person is a Thika tenant or not or whether the

land-in-question is Thika or not, the Controller, either on his own

motion or upon receiving any information, may, after giving the

persons interested an opportunity of being heard and after examining

such documents and particulars as may be considered necessary,

enquire upon and decide such question. The said sub-section was

amended by the Amending Act of 2010 with effect from November 1,

2010, thereby extending the domain of the Thika Controller, to decide

whether the land-in-question is Thika land or not.

28. As per Section 3 of the 2001 Act, the provisions of the said Act shall

have effect notwithstanding anything inconsistent therewith in any

other law for the time being in force or in any custom, usage or

agreement or in any decree or order of a court, tribunal or other

authority.

29. As such, the Tribunal acted patently without jurisdiction in placing

reliance on Lakshmimoni Das Vs State of West Bengal and others,

reported at AIR 1987 Calcutta 326, by overlooking the specific contrary

proposition laid down by the Supreme Court in Zamir Ahmed Latifur

Rehman Sheikh Vs. State of Maharashtra and others, reported at(2010)

5 SCC 246, despite the Full-Bench decision of this Court of 1987

being a pre-2001 Act decision, which is inapplicable in the present

case by virtue of the amendment effected in 2010 of the 2001 Act and

in view of the promulgation of the 2001 Act itself.

30. The power to decide on the issue as regards whether a property is a

Thika land is now within the specific domain of the Thika Controller

and not the civil court anymore. That apart, Section 21 of the 2001

Act stipulates a bar to jurisdiction of the civil court to decide or to

deal with any question or to determine any matter which, by or under

the 2001 Act, is required to be, or has been, decided or dealt with, by

the Controller or the appellate or other authority specified in the 2001

Act and no order or judgment passed, or proceedings including

execution proceedings commenced, under the provisions of the said

Act shall be called in question in any civil court.

31. Even if it is assumed that the Waqf Tribunal exercises the jurisdiction

of a civil court for the purpose of deciding the questions covered by

the Waqf Act, 1995, such jurisdiction is barred in respect of matters

falling within the domain of the Thika Controller.

32. It is to be noted here that Section 16 of the 2001 Act specifically

provides that nothing in any contract between a Thika tenant and a

Bharatia shall take away or limit the rights of a Thika tenant as

provided for in the said Act and that any contract which is made in

contravention of, or which is inconsistent with, any of the provisions

of the Act shall be void and without effect to the extent of such

contravention or inconsistency, as the case may be.

33. Hence, even if the Waqf Tribunal was of the opinion that the disputed

property does not appear to be a Thika tenancy on the basis of the

lease deeds executed in respect of the property, the operation of such

deeds could not extend to contracting away from the purview of the

2001 Act in terms of Section 16 thereof. Hence, the Tribunal acted

patently without jurisdiction in holding that the property-in-dispute is

not a Thika tenancy on the basis of the lease agreements.

34. That apart, Section 23 of the Indian Contract Act, 1872 specifically

stipulates that the consideration or object of an agreement shall not

be lawful if it is forbidden by law.

35. Read in conjunction, the provisions discussed above clearly indicate

that the Waqf Tribunal had no authority to usurp the jurisdiction of

the Thika Controller and/or sit in judgment over a decision arrived at

by the Controller which has already attained finality in the absence of

any challenge before the appropriate forum.

36. Moreover, the reliefs claimed in the suit, contrary to the impugned

judgment, lie beyond the scope of Sections 6 and 7 of the Waqf Act,

1995, which pertain merely to disputes relating to questions as to

whether a particular property specified as Waqf property in the list of

Auqaf is Waqf property or not or whether a Waqf specified in such list

is Shia Waqf or Sunni Waqf.

37. Section 83 of the 1995 Act, which has been relied on by the Tribunal,

merely refers to the constitution of Tribunals and does not delineate

the jurisdiction of the Tribunals. Such proposition was underscored

in Zamir Ahmed Latifur Rehman Sheikh Vs. State of Maharashtra and

others (supra).

38. The Tribunal went overboard in making unwarranted adverse remarks

against the Controller, the defendants and the Certificates issued by

the Thika Controller, calling the Thika Controller 'brainless' and

'mindless'. A challenge, if any, against the decision of the Controller

lies under Section 12 of the 2001 Act by way of an appeal before the

Land Reforms and Tenancy Tribunal (LRTT) or by way of a suo motu

revision by the State Government under Section 13 of the 2001 Act

questioning the legality or propriety of the order or the regularity of

the procedure. In the present case, in view of no such appeal having

been preferred, the Thika Controller's Certificates attained finality and

could not be called in question before the Waqf Tribunal.

39. From another perspective, a conjoint reading of the Preambles of the

2001 and 1995 Acts and Articles 246(3), 251 and 254(2) of the

Constitution of India clearly indicates that the 2001 Act, passed by

the State Legislature of West Bengal, received the assent of the

President, vide Notification No. 2118-L as published in the Kolkata

Gazette, Extraordinary (Part-III) of November 22, 2002. Hence, the

same prevails in West Bengal over all repugnant provisions of the

1995 Act, which is a piece of Central Legislation.

40. Even if Item No.28 of List-III (Concurrent List) of the Seventh Schedule

of the Constitution of India is taken to be the category under which

the 2001 legislation comes, the operation of Article 254(2) attributes

primacy to the 2001 Act.

41. That apart, it may very well be argued that the subject-matter covered

by the 2001 Act falls under Item No.18 of List-II (State List) of the

Seventh Schedule of the Constitution, which confers primacy on the

2001 Act (a State legislation) in any event. Comparing the languages

of the Preambles and the Objects and Reasons of the two pieces of

legislation and the non-obstante clauses of Section 3 of the 2001 Act

and Section 108-A of the 1995 Act, it would be evident that the 2001

Act prevails over the 1995 Act and the Tribunal acted entirely beyond

its jurisdiction in sitting in judgment over the decision of the Thika

Controller.

42. Thus, the impugned judgment and decree suffer from patent

jurisdictional error and ought to be set aside.

43. In view of the above discussions, C.O. No.152 of 2021 is allowed on

contest, thereby setting aside the judgement and decree dated

November 26, 2020 passed by the Waqf Tribunal, West Bengal at

Kolkata in Suit No.4 of 2008. Suit No. 4 of 2008 stands dismissed in

its entirety. The counter claim filed by the defendant/petitioners is

partially decreed, declaring the defendant no. 6/revisionist-petitioner

no. 6 as the sole tenant (Bharatia) in respect of the suit premises.

44. The other reliefs sought in the counter claim, however, are refused in

the absence of adequate evidence to support those.

45. There will be no order as to costs.

46. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )