Rayees Alam vs M/S Ganges Garden Realtors Pvt. ...
2021 Latest Caselaw 1753 Cal

IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

Present:

Hon'ble Justice Shampa Sarkar

C.O. No.139 of 2021

Rayees Alam vs.

M/S Ganges Garden Realtors Pvt. Ltd. & Ors.

For the petitioner              : Mr. Sabyasachi Chowdhury,
                                  Mr. Tanmoy Mukherjee,
                                  Mr. Iftekar Munshi.

For the opposite party Nos.1-7 : Mr. Abhrajit Mitra, Sr. Adv., Mr. Satadeep Bhattacharyya, Mr. Mehboob Rahaman.

For the Board of Wakf           : Md. Galib,
                                  Mr. Abu siddique Mallik.

For the K.M.C                   : Mr. Alok Ghosh,
                                  Mr. Subhrangshu Panda.

Hearing concluded on : 15.02.2021
Judgment on : 09.03.2021

Shampa Sarkar, J.:-

The revisional application has been filed by the plaintiff in Suit No.13

of 2020, challenging the order dated December 23, 2020, passed by the

learned Wakf Tribunal, Kolkata. By the order impugned, the learned

Tribunal rejected an application under Order 39 Rules 1 and 2 read with

Section 151 of the Code of Civil Procedure. The petitioner filed a suit

before the Wakf Tribunal for declaration that the suit property belonged to

Zohra Begum Wakf Estate enrolled under EC 1365, declaration confirming

that the property was rightly registered as a wakf in the Wakf Register,

that the plaintiff as the mutawalli of the wakf estate had the right to enter

into and inspect the said property and utilise the same for the benefit of

the wakf estate, declaration that the order dated May 29, 2013 passed by

the Assessor Collector (South), Kolkata Municipal Corporation, in

mutation case No.0/117/23 MAY-13/27189 dated May 29, 2013 was

erroneous, null and void and not binding and that the defendants did not

have any manner of right, title and interest over the suit property. The

plaintiff further prayed for permanent injunction restraining the

defendants/opposite parties Nos. 1 to 7 from illegally encroaching upon

the suit property and from changing the nature and character of the said

wakf property. The schedule of the property as mentioned in the plaint is

quoted below:-

Schedule "A"

"All that piece and parcel of land ad-measuring 6 Bighas, 15 Cottahs, 7 Chittacks and 28 square feet, laying and situate at premises no.112 B.L. Saha Road, Ward No.117, Borough - XIII, Police Station - Behala, Kolkata-700053, being Dag No.507 and 511 and Khatian No.597 under Mouza - Purja Sahaput, J.L No.-9.

Butted and bounded by:-

ON THE NORTH BY: 86, B.L. Saha Road, Kolkata-700053.

ON THE SOUTH BY: 124, B.L. Saha Road, Kolkata-700053. ON THE EAST BY: B.L. Saha Road, Kolkata-700053.

ON THE WEST BY: K.M.C Road, Kolkata-700053."

2. The contentions of the plaintiff/petitioner in the suit was that the

suit property was a wakf property known as Zohra Begum Waqf Estate.

The plaintiff was the mutawalli. That Mussamat Zarrah Begam alias

Zahruh Begum, widow of Tipu Sultan, permanently dedicated the suit

property by a registered deed of wakf executed on May 5, 1848 registered

on May 11, 1848 in the name of 'Almighty', along with houses, trees,

tanks etc. standing thereon. The income from the property was to be

applied for the construction of a Mosque. It was provided that the

mutawalli would not have any right to apply the income from the wakf

estate for his personal use, except for daily expenses. That the said wakf

estate was enrolled in the register maintained by the Board of Wakf as a

public wakf in terms of the Wakf Act, 1995. The plaintiff started

negotiating with a developer to exploit the property commercially for the

purpose of increasing the income from the estate. While getting the

papers ready, the plaintiff came to know that the defendants/opposite

party Nos.1 to 7, had mutated their names in the records of Kolkata

Municipal Corporation (in short KMC) behind the back of the mutawalli

and the Board of Wakf. Accordingly, the plaintiff filed two successive

applications under Section 6 (1) of the Right to Information Act, 2005 (in

short R.T.I. Act). The Assessors Collector (South), KMC, by a letter dated

March 7, 2020, intimated the petitioner that the premises was recorded as

a wakf in the Inspection Book No.2/1995-96 on the basis of the letter of

Chief Executive Officer of the Board of Wakf (West Bengal) vide no.4777

dated March 7, 2003. Similarly, the Chief Executive Officer, Board of Wakf

answered to another query of the petitioner under the Right to Information

Act, that premises No.112, B.L. Saha Road was enrolled as a wakf under

the Zohra Begam Estate vide EC 1365. That on October 19, 2019 the

plaintiff discovered that the defendants/opposite party Nos. 1 to 7 with

their men and agents were raising an unauthorised construction over a

portion of the suit property which was diminishing the character of the

wakf and thereby causing substantial loss to the wakf estate and its

beneficiaries. That on January 25, 2020, construction was started on a

small portion of the suit property, but the same was stopped due to local

agitation. On the failure of the Board of Wakf to take steps despite

intimation by the plaintiff, the plaintiff had no other alternative but to file

the suit for the reliefs mentioned hereinbefore. The plaintiff, petitioner

herein, prayed for a temporary injunction by filing an appropriate

application with the afore-mentioned allegations. It was averred that the

wakf property was in imminent danger of being wasted and damaged and

the dedication to the Almighty as made by the wakif, would be completely

frustrated unless a temporary injunction was granted to save the wakf

estate from irreparable loss and injury. The plaintiff prayed for an order

restraining the defendants/opposite party Nos.1 to 7 from disturbing the

plaintiff's possession over the suit property and from changing the nature

and character of the same without permission of the plaintiff.

3. By an order dated November 18, 2020, the learned Tribunal

passed an ad-interim order of status quo with regard to the nature and

character of the suit property. The said order was challenged by the

defendants/opposite party Nos.1 to 7 before this court vide CO No.1489 of

2020. CO No. 1489 of 2020 was disposed of by an order dated December

10, 2020, with a direction upon learned Tribunal to dispose of the

application for temporary injunction within seven days. This court

directed the parties to maintain status quo for the aforementioned period.

The said application was heard on contest and the impugned order was

passed.

4. In the written objection filed by the defendants/opposite party

Nos.1 to 7, it was contended that the suit property vested in the State

under the West Bengal Estate Acquisition Act, 1953 (in short WBEA Act)

as also under the West Bengal Land Reforms Act, 1955 (in short WBLR

Act) and the recorded owners of the said premises prior to the transfer to

the said opposite parties were, Shri Rajendra Lal Saha, Smt. Chinmoyee

Saha, Shri Asok Kumar Saha, Shri Ajoy Saha, Shri Manindra Lal Saha,

Shri Nirmal Kumar Singh, Smt. Beauty Singh, Smt. Rita Saha, Shri Ranjit

Saha, Shri Sujit Saha, Shri Abhijit Saha and Smt. Jogmay Shaw, (together

referred to as the 'Sahas' for convenience). That out of total 135 Cottahs

approximately comprising the said premises, 103.10 cottahs had already

been mutated under Section 50 of the West Bengal Land Reforms Act,

1955, in favour of the said defendants/opposite parties. The balance land

would also be gradually recorded in their favour. That the suit property

was also recorded in the names of the Sahas in the records of KMC and

thereafter mutation was carried out in favour of the defendants/opposite

party Nos. 1 to 7. That the plaintiff was never in possession, control and

ownership of the suit property. The suit property was always under the

possession of the Sahas and their predecessors-in-interest. That one of

the Mutawallis had intervened in a suit for partition between the Sahas

with respect to the suit property and the High Court rejected the claim of

the Mutawalli to be added in the proceeding, granting liberty to file an

independent suit. Yet, no such suit was filed. That the present suit was

belated and as such injunction could not be granted to the party who

slept over his right. That the Sahas sold the suit property to the

defendants/opposite party Nos. 1 to 7, by separate deeds of conveyance all

dated September 28, 2012. The development of the suit property was

done by a registered partnership firm known as M/s. Merlin Ganges

Projects (hereinafter referred to as the developer). That the building plan

was sanctioned by the KMC on December 8, 2018 and the notice of

commencement of construction was issued on December 19, 2018. That

the construction had been completed up to the second floor level along

with foundation work, basement, ground floor and first floor. That the

project was registered under the West Bengal Housing Industry Regulation

Act, 2017. That registered agreements had been entered into between the

developer/promoter with around hundred interested purchasers. That the

defendants/opposite party Nos. 1 to 7 acquired a right in respect of the

premises from the Sahas as the suit property had vested in the State

under the WBEA Act, 1953, and the predecessors-in-interest of the Sahas

became direct tenants under the State. That stoppage of the construction

work would cause irreparable loss and injury to the developer and also to

the buyers and the mortgagee bank. That the suit was hit by the proviso

to Section 34 of the Specific Relief Act and no injunction could be granted

in a defective suit.

5. The Wakf Board also filed a written objection supporting the claim

of the plaintiff.

6. Mr. Chowdhury learned Advocate appearing on behalf of the

plaintiff, submitted that the plaintiff was appointed as a mutawalli of the

wakf estate by a resolution of the Board of Wakf, West Bengal dated

September 21, 2011 duly confirmed on February 22, 2012. He referred to

the Wakf Register to assert that the estate was registered as a public wakf.

Reference was made to the Wakfnama in order to demonstrate that the

said wakf was not a private wakf but was dedicated to the 'Almighty', with

the condition that the proceeds therefrom would be utilized for the

construction of a mosque, the foundation stone of which had been laid by

the Wakif herself. Attention was also drawn to the letter of the Board of

Wakf, written to the plaintiff as a reply to the query under the R.T.I. Act

that the suit property was enrolled in the Wakf Register. Mr. Chowdhury

further placed reliance on the reply of the Assessor Collector (South), KMC

to another query made by the plaintiff under the R.T.I. Act, in support of

the contention that in the Inspection Book of 2/1995-96 of the KMC, the

suit property was recorded as a wakf property, on the basis of a letter

written by the Chief Executive Officer of the Board of Wakf dated March 7,

2003.

7. According to Mr. Chowdhury, the contentions of the

defendants/opposite party Nos.1 to 7 about being non-agricultural

tenants could not be accepted as the predecessors-in-interest of the Sahas

could not have been non-agricultural tenants, not having met the criteria

laid down under the provisions of the West Bengal Non Agricultural

Tenancy Act, 1949 (hereinafter referred to as the said Act of 1949).

8. He further submitted that the provisions of Section 3A of the

WBLR Act by which non-agricultural tenants became raiyats directly

under the State, came into force in 1980 whereas, the Sahas were

claiming title to the property in question on the basis of vesting under the

WBEA Act, on and from April 15, 1955. Mr. Chowdhury categorically

denied the fact of vesting as claimed by the defendants/opposite party

Nos. 1 to 7. He further emphasised that the plea of the predecessors-in-

interest of the Sahas being direct tenants under the State upon the

promulgation of the WBEA Act was baseless as the wakf property had

been retained under Section 6 (1) of the WBEA Act.

9. Mr. Chowdhury further contended that entries in the finally

published LR record of rights would only indicate possession but such

entries would not confer title. That once a wakf was created, its character

could not be extinguished by any action of the mutawalli or anyone

claiming through him. He relied on the decision of the Supreme Court in

Chhedi Lal Misra (dead) vs. Civil Judge, Lucknow & Ors., reported in

(2007) 4 SCC 632. Next, he relied on the decision of M. Gurudas & Ors.

vs. Rasaranjan & Ors. reported in (2006) 8 SCC 367, in support of his

contention that the Tribunal having considered the prima facie case and

the balance of convenience and inconvenience of the parties, ought to

have allowed the application for injunction as the issues raised by the

plaintiff were serious issues and the wakf property was being wasted,

depleted, alienated and damaged.

10. Lastly, he submitted that the suit would not fail even if the prayer

for recovery of possession was absent as the defect was curable and could

be rectified by amending the plaint. That the cause of action as

enumerated in the plaint would indicate that there was no laches on the

part of the plaintiff and mere delay in filing the suit, which was not

otherwise barred by limitation would not prevent the court from granting

an injunction, if the plaintiff could prove prima facie case, balance of

convenience and inconvenience in favour of grant of an injunction and

that irreparable loss and injury would be caused to the suit property, if no

injunction was granted. Mr. Chowdhury referred to the order impugned

and submitted that the learned Tribunal had itself recorded that the suit

property was a public wakf and that the question whether the character of

wakf had been extinguished only on the ground that the sub-lessees had

mutated their names in the record of rights or upon vesting under the

WBEA Act, were issues to be decided at the trial on evidence. Further,

Mr. Chowdhury urged that when the Tribunal observed that the plea of

vesting was a wild plea and the suit property was in danger of being

wasted and damaged, the learned Tribunal was wrong in refusing the

injunction.

11. Mr. Galib, learned advocate appearing on behalf of the Board of

Wakf submitted that on the basis of Section 43 of the Wakf Act 1995, the

suit property which was already registered as a public wakf under Bengal

Wakf Act, 1934 automatically got registered as a wakf property. That the

Wakf Register classified the suit property as a public wakf. That sale, gift,

exchange, mortgage or transfer of any immovable property which was

registered as wakf property would be void ab-initio under Section 51 (1-A)

of the Wakf Act, 1995 (hereinafter referred to as the said Act). He

submitted that Section 51 of the said Act provided that any lease of wakf

property would be void, unless effected with the prior sanction of the

Board. He also referred to the provisions of Section 104(A) of the said Act

which totally prohibited sale, gift, exchange mortgage, or transfer of any

movable or immovable property which was enrolled as a wakf property.

He submitted that the Sahas could not transfer any land as their

predecessors were recorded as dakhaldars in the R.S record of rights. He

relied on the decision of Rajnibai (Smt.) Alias Mannubai vs. Kamla Devi

(Smt.) & Ors., reported in (1996) 2 SCC 225, and submitted that the

court while granting an injunction must consider whether any protection

should be given in the pending suit and not whether there was any

entitlement to any right in the property. He further relied on the decision

of Mst. Zohra Khatoon vs. Janab Mohammad Jane Alam & Ors.,

reported in AIR 1978 CALCUTTA 133, in support of his contention that

the Mutawalli had a right to the office and not over the immovable

property pertaining to the wakf estate, and it was the bounden duty of the

court to protect the property of the 'Almighty', even if the mutawalli had

not discharged his function diligently and had approached the court at a

belated stage.

12. He relied on the decision of Sayyed Ali & Ors. vs. Andhra

Pradesh Wakf Board, reported in AIR 1998 SC 972, in order to reiterate

the principle that 'once a wakf always a wakf' and any grant of patta to

any other person would not nullify the earlier dedication of the property to

the 'Almighty'. He submitted that after the wakf was created it would

continue to be so for all times to come and would be governed by the

provisions of the Wakf Act and any subsequent sale, transfer or alienation

would not change the original character of the wakf property.

13. Mr. Mitra, learned Senior Advocate appearing on behalf of the

defendants/opposite party Nos. 1 to 7 submitted that the suit was hit by

the proviso to Sections 34 and the provisions of 41(h) of the Specific Relief

Act 1963. He submitted that the suit was not maintainable in the

absence of a prayer for recovery possession when admittedly, the plaintiff

was not in possession. Thus an injunction could not be granted. In

support of this contention he relied on the decisions of Thimmaiah v.

Shabira & ors. reported in (2008) 4 SCC 182 and Anathula Sudhakar v.

P. Buchi reddy & ors. reported in (2008) 4 SCC 594. He submitted that

the suit property was given on lease by the then mutwalli to one

Charuchandra Ghosh on March 16, 1916. The said leasehold right was

transferred by Charuchandra Ghosh to Basanta Lal Saha and Shivlal

Saha. That the said predecessors of the Sahas were recorded as

dakhalkars in the R.S record of rights. That by promulgation of the WBEA

Act, the predecessors-in-interest of the Sahas, became direct tenants

under the State. That alternatively, the non-agricultural tenants who were

in khas possession of the said lands as dakhaldars became raiyats under

the State as per Section 3A (2) of the WBLR Act. The predecessors of the

Sahas acquired absolute right, title and interest over the suit property and

as such, the defendants/opposite party Nos. 1 to 7 being subsequent

purchasers from the Sahas, had acquired absolute right, title and interest

in the suit property. Moreover, on the presumption of correctness of the

entries in the record of rights, the plaintiff's claim over the said property

was not sustainable in law. That even after the final publication of the LR

record of rights, the plaintiff did not file an application for correction of the

same. That the right to sue arose in 2008 with the knowledge of the

partition suit between the Sahas over the suit property. The then

mutawalli wanted to be added as a party in the suit which was allowed by

the trial court where the partition suit was pending. The said order was

ultimately set aside by the High Court. Yet, the mutawalli did not file a

separate suit claiming title over the property. That the instant suit was

bad on account of delay. For such delay in filing the suit, the question of

granting an injunction did not arise, especially when third party rights

had been created and construction had been going on. The developers

had entered into an agreement with at least 108 intending purchasers for

sale of flats to be constructed in three towers over the suit property and

substantial construction had already been done. He submitted that the

very fact that the predecessors-in-interest of the Sahas were recorded as

'dakhalkars' in the RS record of rights, would itself mean that they were

non-agricultural tenants and had become direct raiyats under the State

and acquired all rights to the suit property including the right to transfer.

In this context, he referred to the decisions of this Court in the matter of

Adyama Complex Private Limited & ors. v. The State of West Bengal

& ors. reported in 2019 (1) CHN 146, State of W.B. and anr. v. Arun

Kumar Basu & anr. reported in (1997) 5 SCC 317, Jugal Kishore

Mondal v. Bikash Ranjan Chandra reported in 2016 SCC Online Cal

4267.

14. According to Mr. Mitra, even if the land could be retained under

the provisions of Section 6(1) of the WBEA Act, such right subsequently

ceased under Section 3A of the WBLR Act. Even rights of charitable and

religious institutions were limited to a maximum of 7 standard hectares

under Section 14M(6) of the WBLR Act. His next contention was that there

was a presumption of correctness of every entry in the record of rights

under Section 44(4) of the WBEA Act and Section 51A(9) of the WBLR Act.

That although the mutawalli had an opportunity to challenge such entries

in the record of rights, the mutawalli failed to do so. He further submitted

that the transfer by the Sahas to the defendants/opposite party Nos. 1 to

7 by the registered deeds of conveyance dated September 28, 2012 were

deemed notice and the reliefs claimed in the suit were barred by law.

Reference was made to the decision of the Apex Court in the matter of

Dilboo & ors. v. Dhanraji & ors. reported in (2000) 7 SCC 702. He next

contended that the construction had reached the third floor of the first

tower. The common basement of three towers had also been constructed

and such an ongoing project could not be held up by an order of

injunction. He relied on the decision of Kishorshinh Ratanshinh Jadeja

vs. Maruti Corporation and Ors. reported in 2009 (11) SCC 229.

According to Mr. Mitra, the learned Tribunal rightly applied the principles

laid down in Vinay Krishan vs. Keshav Chandra reported in 1993 Suppl

3 SCC 129 and held that the plaintiff not being in lawful possession ought

to have prayed for recovery of possession and in the absence of such

prayer, temporary injunction could not be granted and further due to

inordinate delay in filing the suit the prayer for injunction was rightly

refused.

15. Mr. Aloke Ghosh, learned Advocate for the KMC submitted that

the on the basis of the records of rights and sale deeds the names of the

defendants/opposite party Nos.1 to 7 had been mutated in the records of

the KMC and the building plan was sanctioned. That previously the

names of their predecessor-in-interest (Sahas) had been mutated in the

municipal records. That the actions of the KMC would not confer any title

on the defendants/opposite party Nos. 1 to 7. He submitted that KMC

had rightly answered to the query of the plaintiff, that the property in

question as per the Inspection Book No.2/1995-1996 was as a wakf

property and such recording was done on the basis of a letter written by

the Chief Executive Officer of the Board of Wakf.

16. Heard the parties. While exercising jurisdiction under Order 39

rules 1 and 2 of the Code, the Court would not determine legal rights to

property, but merely keep the property in its actual condition until the

legal title could be established. The Court interferes on the assumption

that the party who seeks its interference has the legal right which he

asserts, but needs the aid of the Court for the protection of the property in

question until the legal right could be ascertained. A man who seeks the

aid of the Court must be able to show a fair prima facie case in support of

the title which he asserts. He is not required to make out a clear legal title,

but he must satisfy the Court that he had a fair question to raise as to the

existence of a legal right which he sets up.

17. Admittedly, the property had been enrolled as a wakf property.

The Wakfnama was a registered deed. The terms and conditions of the

deed clearly reflect that the said Wakf was created for charitable purpose.

In the Wakf Register too, the property was listed as a public wakf. The

certified copies of the Wakf Register were obtained by the

defendants/opposite party Nos. 1 to 7 under the Right of Information Act

sometime in December, 2019 and thereafter upon obtaining the

information that the property was enrolled as a wakf property, the

agreements for sale had been entered into with the third parties. The

defendants/opposite party Nos. 1 to 7 had not been able to convince the

Tribunal about the vesting of the wakf property either under the WBEA

Act or WBLR Act. The answers to the queries of the petitioner under the

R.T.I. Act, both by the Board of Wakf and the KMC reflect that the suit

property was recorded as a wakf property in their respective records as

'Zohra Begam Wakf Estate'. The deed of conveyance through which the

defendants/opposite party Nos.1 to 7, allegedly acquired right, title and

interest also mentions that the suit property was a wakf property and

Charuchandra Ghosh was the original lessee under the wakf estate who

inducted Basanta lal Saha and Shivlal Saha (predecessors-in-interest of

the Sahas) as the sub-lessees for a period of fifteen years. That after the

expiry of the lease between the wakf and Charuchandra Ghosh, the

predecessors-in-interest of the Sahas started paying rent directly to

Jahanara Begam the then mutawalli of the wakf estate and after the

promulgation of WBEA Act, the predecessors-in-interest of the Sahas were

recorded as 'Dakhalkars'. Thus, title of Shivlal Saha (predecessor-in-

interest of the vendors of the defendant) has been traced on the basis of

vesting of the suit property under the WBEA Act, and it was contended

that consequent upon such vesting, Shivlal Saha became a direct tenant

under the State. Prima facie, the plaintiff has been able to demonstrate

that the property was a wakf property.

18. The next question is whether the wakf property ceased to be so

on account of vesting. The WBEA Act had the effect of abolishing

zamindari in the State of West Bengal from the date of notification in the

official gazette, and from the date of such notification, the estates and

rights of intermediaries vested in the State free from all encumbrances.

19. The WBEA Act was promulgated to acquire estates, all rights of

intermediaries therein and certain rights of raiyats and under-raiyats of

agricultural tenants in occupation of the lands comprised in the estate.

Section 4(1) empowered the State Government to issue notification under

the Act from time to time declaring that with effect from the date

mentioned in the notification all estates and all rights of every

intermediary in each such estate situated in a district or a part of the

district specified in the notification "shall vest in the State" free from all

encumbrances. The procedure had been provided in this behalf in sub-

section (2) to (6) of Section 4 of the Act. The effect of notification as

adumbrated in Section 5 thereof was that, all grants of and confirmation

of titles to estates and rights therein, to which the declaration applied and

which were made in favour of the intermediaries would stand determined.

Therefore, by statutory operation, the pre-existing rights and all grants of

and confirmation of the titles to the estate and the rights therein, had

been determined by the issuance and publication of the notification under

Section 4(1) read with Section 5 of the Act. Section 6 of the Act, by

employing a non obstante clause, curved out exceptions to the operation

of Sections 4 and 5 and preserved the right of an intermediary to retain

possession and title of certain lands in certain circumstances. The Act

came into force on February 12, 1954. The effect of the Act was to vest the

rights of intermediaries (an expression subsequently extended to cover

raiyats and under-raiyats) in the State Government. However, section 6

conferred certain rights on the intermediaries to retain certain lands.

20. Pursuant to sub-section (1) of Section 4, a notification was

published which prescribed the date of vesting as April 15, 1955. Chapter

VI of the Act deals with the provisions of acquisition of interests of raiyats

and under-raiyats. Under Section 49, the provisions of Chapter VI were to

come into force on such date and in such district or part of a district as

the State Government may, by notification in the Official Gazette, appoint.

The notification under Section 49 was published on April 9, 1956, by

which Chapter VI was brought into force in all the districts of West Bengal

with effect from April 10, 1956. The effect of such a notification was that

the provisions of the earlier chapters of the Act became operative mutatis

mutandis to raiyats and under-raiyats as if such raiyats and under-

raiyats were intermediaries and the lands held by them were estates and a

person holding under a raiyat or a under-raiyat was a raiyat for the

purpose of clauses (c) and (d) of section 5. The notifications were issued

under Section 4 by the State Government as a result of which the

interests of raiyats and under-raiyats vested in the State with effect from

April 14, 1956.

21. So far as the non-agricultural tenants were concerned, their

lands did not vest in the State under the WBEA Act. The definition of an

intermediary as given in Section 2(i) of WBEA Act had also made it clear

that the term intermediaries did not include among others a non-

agricultural tenant. Even though with the coming into effect of Chapter VI

of the Act, the interest of the raiyats and under-raiyats vested in the State

with effect from 1st Baisakh, 1363 B.S., there was no provision in the West

Bengal Estates Acquisition by which the interest of a non-agricultural

tenant could vest in the State.

22. Section 6(1) is an enabling provision by virtue of which an

intermediary could retain different categories of land to the extent of the

ceiling limit on the footing that he was a raiyat under the State. The

intermediary exercised his option by filing a 'B' Form return indicating the

lands he intended to retain.

23. Under Section 6(1)(i) of the Act, a religious or charitable

institution or a person holding under a trust or an endowment or other

legal obligations was entitled to retain and to hold lands as an

intermediary exclusively for charitable as well as religious purposes and

such an intermediary could retain lands held in khas possession for such

purpose including lands, held by any person, not being a tenant by lease

or license of such corporation or institution or person. Section 6 thus

empowered an intermediary to hold land subject to such checks as

mentioned in the section.

24. In this case, one record of rights clearly shows that the suit land

was settled in favour of the mutawalli representing the wakf estate by

"Bharat Samrat" prior to the promulgation of the 1953 Act. There is a

subsequent record of rights from which it appears that Charuchandra

Ghosh with others were recorded as the lessees under the then mutawalli

for a period of forty years. In the finally published RS record of rights

under the WBEA Act, the mutawalli of the wakf estate has been

mentioned as the superior title holder and the predecessors-in-interest of

the Sahas were recorded as Dhakhalkars. These names as Dhakkaldars

were inserted in the R.S. Record by way of a correction under Section 45

of the WBEA Act below the entry of the name of the mutawalli. In view of

the presumption of correctness of the finally published record of rights

under Section 44 (4) of WBEA Act, and the entry of the name of the

mutawalli Jahanara Begum, it prima facie appears that the suit lands

could have been retained by the mutawalli under the provisions of Section

6(1)(i) or 6 (1) (a)(b)(c) of the WBEA Act as the wakf estate also consisted of

dwelling house, homestead lands, tanks etc. Thus, it is a matter of

evidence and trial for the Court to arrive at a conclusion that the suit

property had vested in the State after promulgation of the WBEA Act as

contended by Mr. Mitra.

25. The contention of the defendants/opposite party Nos.1 to 7 with

regard to vesting of the rights pertaining to the suit property under

Section 3A (2) of the WBLR Act, is prima facie unconvincing and contrary

to the plea of vesting under the WBEA Act and the predecessors-in-

interest of the Sahas becoming direct tenants under the State. Moreover,

whether the predecessors-in-interest of the Sahas were non-agricultural

tenants under the Act of 1949 has to be established by evidence. Vesting

under Section 3A and conferment of raiyati interest under WBLR Act

could not have happened prior to September 9, 1980. Whereas, the deed

of conveyance mentions that Shivlal Saha became a direct tenant under

the wakf estate and paid rent to the mutawalli after expiry of

Charuchandra Ghosh's lease and thereafter paid rent directly to the State

of West Bengal from 1362 BS, that is, from 1955 after the promulgation of

the WBEA Act. Thus, if the predecessors-in-interest of the Sahas became

direct tenants under the State after promulgation of WBEA Act, the

question of them being non-agricultural tenants and subsequent vesting

of the rights in the suit property under the provisions of Section 3A of the

WBLR Act is not a convincing argument.

26. Section 3A of the WBLR Act, operates to vest the interests of all

non-agricultural tenants and under-tenants under the W.B. Non-

Agricultural Tenancy Act 1949 in the State.

27. To appreciate what the terms "non-agricultural tenant" and "non-

agricultural under-tenants" mean, reference to Section 3 of the W.B. Non-

Agricultural Tenancy Act 1949 is apposite. The provisions are quoted

below:-

"3. Classes of non-agricultural tenants. (1) There shall be, for the purposes of this Act, the following classes of non-agricultural tenants Namely:

(a) tenants and

(b) under-tenants."

(2) "tenant" means a person who has acquired a right to hold non-

agricultural land directly under the State for any of the purposes provided in this Act either immediately or mediately under a tenant and includes also the successors-in-interest of persons who have acquired such a right."

28. In order to be a tenant one must acquire the interest from a

tenure holder or a proprietor and he must hold some non-agricultural

land for any of the purposes provided in the Act. In order to be a non-

agricultural under-tenant one must satisfy three tests: (a) he must hold

immediately or mediately under a non-agricultural tenant, (b) he must

hold non-agricultural land; (c) he must hold it for any of the purposes

provided in the Act. Whether these conditions were satisfied by the

predecessors-in-interest of the defendants Nos.1 to 7 is a matter of trial.

29. Non-agricultural land as defined under the Act of 1949 does not

include:-

" (a) a homestead to which the provisions of [the West Bengal Land Reforms Act, 1955] apply,

(b) land which was originally leased for agricultural or horticultural purposes but is being used for purposes not connected with agriculture or horticulture without the consent either express or implied of the landlord, if the period for which such been so used is less than twelve years,********"

30. Non-Agricultural Tenant under Section 2(5) of the Act of 1949,

means a person who holds non-agricultural land under another person

and is, or but for a special contract would be, liable to pay rent to such

person for that land but does not include a person who holds any

premises or part of any premises, situated on non-agricultural land and

erected or owned by another person, and who is, or but for a special

contract would be, liable to pay rent for such premises or such part of the

premises to such person. The explanation states "premises" to mean

building, such as a house, manufactory, warehouse, stable, shop or hut

whether constructed of masonry, bricks, concrete, wood, mud, metal or

any other material whatsoever and includes any land appertaining to such

building;

31. In this case, the wakf estate comprises of homestead land, tanks,

trees, dwelling houses and land appertaining to such house and whether

the predecessor-in-interest of the Sahas would qualify as non-agricultural

tenants as per the definition is also a matter of trial.

32. Section 3A has been inserted by the W.B. Land Reforms (Third

Am.) Act1986. Section 3A itself provides in sub-section (5) that Section 3A

would be deemed to be enforced on and from 9th day of September 1980.

33. The Court, in an application for an interlocutory injunction in

support of a legal right, will deal with the evidence before it, and will

confine itself strictly to the immediate object sought, and as far as

possible abstain from prejudging the question in the cause. Thus, while

deciding the issue of vesting, the aforementioned reasons prima facie

negates the plea of the predecessors-in-interest of the Sahas to be non-

agricultural tenants in respect of the suit property.

34. The next question is whether an injunction should be denied in

this case on account of the delay. The Hon'ble Apex Court in the matter of

MST Rukhmabi v. Lala Laxminarayan & ors. reported in AIR 1960 SC

335 held as follows:-

"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.' The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar [(1930) ILR 8 Rang 645] and in Gobinda Narayan Singh v. Sham Lal Singh [(1930-31) LR 58 IA 125] . The further question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secretary of State [AIR 1938 Mad 193, 198], a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao, J., after considering the relevant decisions, expressed his view thus:

'There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit.' He adds at p. 199:

'It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?'

34. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and

innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."

35. It has been stated in the plaint, that the cause of action arose on

October 19, 2019 when the defendant had prepared to raise construction

on the suit property and thereafter on January 25, 2020, when

construction had been raised on a portion of the suit property. Applying

the above decision, the cause of action as pleaded in the plaint would

show that the delay in filing the suit would not defeat the right to an order

of injunction when the prima facie case, balance of convenience and

inconvenience and the irreparable loss are in favour of granting an

injunction. There is no quarrel with the proposition that the grant of

injunction is an equitable relief. Ordinarily, a person who has kept silent

for a long time and allowed another to deal with the property expressly

may not be entitled to an order of injunction, but the grant or refusal of

injunction has serious consequences and the Court, while dealing with

such matters must make all endeavours to protect the interest of the

party whose legal right has been affected. In this case, the injury is

irreparable and a continuous one and the same cannot be compensated

by money. The purpose and object of the provision of Order 39 Rule 1,

CPC, unequivocally envisages preservation of the subject-matter of the

suit, so that the parties claiming their rights over the subject-matter of the

suit have an opportunity to substantiate their respective stand at the end

of trial.

36. By the term "irreparable injury" it is not meant that there must

be no physical possibility of repairing the injury. All that is meant is, that

the injury would be a material one, and one which could not be

adequately remedied by damages. The expression "inadequacy of the

remedy by damages" means that the remedy by damages would not be

such a compensation, which would in effect, though not in specie, place

the parties in the position in which they formerly stood (See Kerr on

Injunction 6th Edition). If the act complained of threatened to destroy the

subject-matter in question, the case may come within the principle, even

though the damages may be capable of being accurately measured.

37. The essential requirements that are to be made out by a plaintiff

for grant of temporary injunction have been laid down by the Supreme

Court in Seema Arshad Zaheer and others v. Municipal Corporation of

Greater Mumbai and others, (2006) 5 SCC 282. Those are:-

"(i) Existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction;

(ii) When the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's right or likely infringement of defendant's right, the balance of convenience tilting in favour of plaintiff; and

(iii) Clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."

38. Once it is prima facie established that the suit property was a

wakf property and there is a doubt with regard to vesting, which can be

proved only through evidence at the trial, it is necessary for the Court to

interfere in this case, in order to protect the wakf property from further

damage, wastage and alienation. The property being a wakf property, any

transfer and alienation of the same is void under Section 51(1-A) of the

Wakf Act, 1995. Unless the ongoing construction is stopped the entire

nature and character of the suit property which prima facie appears to be

wakf property will be extinguished. The plaintiff/petitioner has a good

case to go to trial. The case of irreparable loss and injury has been made

out by the petitioner. Entries in the finally published LR record of rights

and those in the records of the Kolkata Municipal Corporation do not

confer title. The presumption of correctness of the LR Records is

rebuttable by evidence. The injury in this case is of such nature that the

same cannot be compensated in terms of money and once the property is

developed and alienated, even if the petitioner ultimately succeeds in the

suit, the wakf property cannot be restored to its original position and the

very nature and character of the wakf property would be completely

extinguished and obliterated.

39. Delay in filing the suit is not material where an injunction is

sought in aid of a legal right, and mere lapse of time will not be a bar to

the grant of an injunction before the trial. Where one party invades the

right of another, that other does not in general deprive himself of the right

of seeking redress merely because he remains passive, unless indeed he

continues inactive so long as to bring the case within the "Statute of

Limitations"

40. With regard to the decisions cited by Mr. Mitra, this Court is of

the opinion, that the decisions would not be relevant at the stage of

considering the prayer for temporary injunction. In Adyama Complex

(supra), the Court held that every entry in the finally published record of

rights shall be presumed to be correct and a person whose name was

recorded as a 'Dakhalkar' would not be an intermediary. In this case, in

the finally published RS record of rights, the name of the then mutawalli

of Zohra Begam Wakf estate has also been recorded with superior title and

the predecessors-in-interest of the Sahas were recorded as the Dakhalkars

subsequently by way of correction. There is a presumption of correctness

under Section 44(4) of the WBEA Act, 1953. Whether the predecessors-in-

interest of the Sahas were recorded as the Dakhalkars under the State of

West Bengal or under the wakf is a matter of evidence. In this case, the

question to be determined is not whether the predecessors-in-interest of

the defendants/opposite party Nos. 1 to 7 were intermediaries or not but

whether the wakf estate vested in the State of West Bengal with the

promulgation of WBEA Act, 1953. The name of the mutwalli appears in

the finally published R.S. Records. This prima facie shows that the then

mutawalli could have retained the said lands under the provisions of the

Section 6 (1) of the WBEA Act. These are matters of trial and the reliance

placed on Adyama Complex (supra) will not come in aid of the petitioner

while deciding the prima faice legal right of the plaintiff. The decision of

Jugal Kishore Mondal (supra) will also not apply at this stage. In the said

decision it was held that in view of the provisions of Section 3A of the West

Bengal Land Reforms Act, 1955 which came into force from September 9,

1980, non-agricultural tenants became raiyats directly under the State

and were entitled to retain the land with the ceiling limit as per Section

14M of the said Act and the intermediaries were only entitled to receive

compensation to be determined in accordance with law. In this case,

whether the predecessors-in-interest of the Sahas (vendors) of the

defendants/opposite party Nos. 1 to 7 were non-agricultural tenants

under the Act of 1949 is a matter of evidence. The plea of non-agricultural

tenancy under the Act of 1949 and predecessor-in-interest of the Sahas

becoming raiyats in terms of Section 3A of the WBLR Act with effect from

September 9, 1980, is contrary to the recitals in the deed of conveyance

executed between the Sahas and the defendant Nos. 1 to 7. The Sahas

have traced their title to the property through vesting under the WBEA

Act, 1955. If there was vesting under the WBEA Act, the rights of non-

agricultural tenants under the Act of 1949 did not vest in the State.

Moreover the wakf property consisted of homestead lands, dwelling house

tanks, danga lands etc. which could be retained.

41. The decision in Arun Kumar Basu (supra) will not help the

defendants/opposite party Nos. 1 to 7 at this stage, inasmuch as, unless

the evidence is led it would not be possible to ascertain whether the lands

vested in the State by operation of Section 4(1) of the WBEA Act or Section

3A of the WBLR Act, inasmuch as, the question of retention will have to be

looked into specially because the name of the mutawalli of Zohra Begam

Wakf estate appears in the RS record of rights. The decision of Dilboo v.

Dhanraji (supra) also does not help the defendants at this stage,

inasmuch as, limitation is a mixed question of law and facts and whether

the transfer of the suit property in favour of the defendant Nos. 1 and 7 by

the Sahas and registration thereof would be deemed notice is a matter of

trial and evidence. In the said judgment it was held that when a fact could

be discovered by due diligence the plaintiff would be deemed to have

necessary knowledge. In this case, at this stage without any evidence, the

question of delay cannot be decided and in any case, the cause of action

as averred in the plaint if taken into consideration, the suit do not prima

facie appear to be time barred. It is for the party who files the suit to show

that the suit was within time at the trial.

42. The decision of GPT Health Care Pvt. Ltd. vs. Soorajmull

Nagarmull and ors. passed in FMA 1350 of 2017 does not apply. A

Division Bench of this Court, deprecated the practice of trial courts in not

indicating any reasons for the necessity to pass ex parte ad interim orders

of injunction when the plaintiff approached the Court, belatedly.

43. The decision of Thimmaiah (supra) will also not apply at this

stage, inasmuch as, the Hon'ble Apex Court held that in a suit for

permanent injunction, the plaintiff must establish that he was in

possession in order to be entitled to a decree for permanent injunction

and the plaintiff not being in possession was not entitled to the relief

without claiming recovery of possession, consequently an order of

injunction also could not be granted. The said judgment was passed after

final adjudication by the trial court and the High court and in an appeal

before the Supreme Court. However, it has been consistently held by the

Apex Court and other courts that the proviso to Section 34 does not

warrant dismissal of a suit, but the Court should give an opportunity to

the plaintiff to amend the plaint if the suit falls within the mischief of the

proviso. Moreover, the Wakf Act, 1995 is a substantive law and a complete

code. The suit has been filed under this special law before the Wakf

Tribunal. The Wakf Tribunal has been given all the powers of a Civil Court

in deciding disputes, questions or matters relating to or arising out of a

wakf property and also has the power to grant injunctions. In such a

situation, the Wakf Act being a special law having an overriding effect over

all other laws, whether the provision of Section 34 of the Specific Relief

Act, 1963 should be strictly construed at this stage and injunction be

denied, when in my prima facie view, this is a fit case for grant of

injunction, is answered in the negative. This issue is also open to be

decided at the trial.

44. Reference is made to the decision of Board of Wakf, West Bengal

& Anr. vs. Anis Fatma Begum & Anr., reported in (2010) 14 SCC 588.

The relevant paragraphs are quoted below:-

"10. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words "any dispute, question or other matters relating to a wakf or wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal. The word "wakf" has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

11. Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the civil court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2-A of the Code of Civil Procedure, 1908 to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a wakf or wakf property.

12. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83(2) refers to the orders passed under the Act, but, in our opinion, Sections 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf

Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a wakf or wakf property, as the plain language of Sections 83(1) and 84 indicates.

13. We may clarify that under the proviso to Section 83(9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision makes it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a wakf or wakf property should first approach the Tribunal before approaching the High Court.

14. It is well settled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law, vide Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn., 2004, pp. 133-

34)."

45. The decision of Anathula Sudhakar (supra) is also not applicable

at this stage in view of the reasons assigned hereinabove. Kishorshinh

Ratansinh Jadeja (supra) does not improve the case of the

defendants/opposite party Nos. 1 to 7, inasmuch as, only the basement

and first and second floor of one of the three towers has been constructed

and around 108 agreements for sale have been entered into. The

construction is not substantial. Title has not yet passed in respect of third

parties unlike the judgment relied upon and moreover the property in

question here is a wakf property in respect of which all sale, transfer,

mortgage and gift are void ab initio.

46. In the order impugned, the learned Tribunal recorded that the

plea of vesting was a 'wild plea' and could not be established by the

defendants at the stage of disposal of the application for injunction. The

learned Tribunal also recorded that the suit property had been a public

wakf duly enrolled in the Wakf Register. The Tribunal observed that the

plaintiff made out a prima facie case to go to trial and that the balance of

convenience and inconvenience and irreparable loss and injury were in

favour of grant of injunction. Yet, in the absence of a prayer for recovery of

possession in the plaint, the injunction was not granted. The Tribunal

further denied injunction on the ground of delay as the construction

started in 2018, but the suit was filed in 2020. In my view, the Tribunal

erred in failing to take into account the serious damage, and wastage that

was being caused to a wakf property which was for public and charitable

purpose. Once the Tribunal was prima facie satisfied with the plaint case

and discounted the plea of vesting raised by the defendants/opposite

party Nos. 1 to 7, the Tribunal ought to have granted an order of

injunction primarily for protection of the wakf estate from being damaged,

wasted and alienated, or else, such damage and wastage would result in

complete extinction of the character and nature of the property. Further

alienation by creating third party rights will result in misleading innocent

and bona fide purchasers for value into buying the property, the sale of

which was otherwise barred by law. Unless the defendants/opposite party

Nos. 1 to 7 are injuncted now, the situation will become irreversible as

there is a serious risk of complete extinction of the nature and character

of the wakf. The conduct of the mutawalli and the delay on the part of the

mutawalli in approaching the Tribunal weighed heavily on the learned

Tribunal but the mutawalli is a mere manager of the property which has

vested in the 'Almighty' and non-action on the part of mutawalli, cannot

be a reasonable ground for denial of injunction in such a serious

situation. In this case, the Tribunal misdirected itself when it held that

the Mutawalli's conduct was unfair and good conduct of a party was an

ingredient for seeking the aid of the Court. Prima facie, the wakf property

has vested in the name of the 'Almighty'. The property is detained and

tied up forever and has become non-transferable and as such the court

must come in the aid to protect the property.

47. The order impugned is set aside. The parties are directed to

maintain status quo with regard to nature, character and possession of

the suit property till the disposal of the suit. Further third party rights will

not be created. The learned Tribunal is directed to dispose of the suit

expeditiously, preferably within a period of one year from date. The

observations made herein are all prima facie and only for the purpose of

disposal of the revisional application.

48. The revisional application is disposed of. There shall be no order

as to costs.

Urgent photostat Certified Copy of this judgment, if applied for, be

given to the parties, on priority basis.

(Shampa Sarkar, J.)

Later

Learned Advocate for the opposite party Nos.1 to 7 prays for stay of

this order. Prayer considered. Stay refused.

(Shampa Sarkar, J.)