The Board Of Wakf And Another vs Anis Fatima Begum And Others
2022 Latest Caselaw 2576 Cal/2

                 IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                            (Original Side)

                                                  Reserved on: 16.09.2022
                                                  Pronounced on: 27.09.2022

                                                  APOT 117 of 2022
                                                       With
                                                  IA No. GA 1 of 2022
                                                         GA 2 of 2022

The Board of Wakf and Another
                                                                 ...Appellants
                                     -Vs-
Anis Fatima Begum and Others
                                                                 ...Respondent

Present:-

Sk. Md. Galib, Mr. Abu SIddique Mallik, Ms. Tanwishree Mukherjee, Advocates ... for appellants Ms. Bijoy Adhikary, Mr. Vishananda Gana, Mr. M.A. Samad, Mrs. N. Mulla, Mr. M. Zahedi, Mr. Niloy Sengupta, Ms. Susmita Adhikary, Advocates ... for respondents

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. By this intra-court appeal, respondents (Board of Wakf and CEO

of the Board of Wakf) have challenged the order of the learned Single

Judge dated 23rd of December, 2021 whereby WPO 1502 of 2021 filed

by the writ petitioners (respondent no. 1 and 2 herein) has been disposed

of with a direction to the appellant to dispose of the request of the 2 APOT 117 of 2022

respondent no. 1 for appointment of the respondent no. 2 as Mutawalli

in the wakf estate within the specified time.

2. The respondent nos. 1 and 2 (writ petitioners) had filed the writ

petition with the plea that the respondent no. 1 was the sole Mutawalli

of a private wakf, namely, Shahzadi Begum Wakf Estate and that

respondent no. 1 vide letter dated 4th of December, 2020 as well as

reminder dated 17th of March, 2021 had requested the appellants to

record the name of respondent no. 2 as joint Mutawalli. The said

applications remained pending, hence, the writ petition was filed

seeking a direction to the appellants herein to record the name of the

respondent no. 2, along with the respondent no. 1, as joint Mutawalli.

3. Learned Single Judge by the order impugned has directed the

appellants to dispose of the pending application for appointment of

respondent no. 2 as Mutawalli of the wakf estate within two months.

4. Learned counsel for the appellants has submitted that no direction

ought to have been issued by the learned Single Judge to the appellants

to decide the pending application because inaction of the appellants also

furnishes a ground to approach the Tribunal under Section 83 of The

Waqf Act, 1995 (for short, 'the Act') and there was no reason to bypass

this remedy. In support of his submission, learned Counsel for the

appellants has placed reliance upon the judgment of the Hon'ble

Supreme Court in the matter of Board of Wakf, West Bengal and

Another vs. Anis Fatma Begum and Another reported in (2010) 14

SCC 588. Learned counsel for the appellants has also referred to the

decision of the other Single Benches of this Court dated 19th of April,

2011 in WP No. 6923(W) of 2011 in the matter of Musst. Hazera

Khatoon and Anr. vs. The State of West Bengal and Anr. and dated 3 APOT 117 of 2022

27th of November, 2019 in WP No. 21341(W) of 2019 in the matter of

Sahebzada Md. Shahid Alam alias S.M. Shahid Alam vs. The State

of West Bengal and others, wherein following the judgment in the

matter of Anis Fatma Begum (supra), a view has been taken that in

case of inaction on the part of Wakf Board in deciding the

representation, the remedy is under Section 83 of the Act.

5. Learned counsel for the respondents has submitted that considering

the circumstances of the case and age of the respondent no. 1, the

direction has rightly been issued.

6. We have heard the learned counsels for the parties and perused the

record.

7. It is noticed that the respondent no. 1 had approached the Writ

Court with the plea of inaction on the part of the appellants in deciding

her application for recording respondent no. 2 as joint Mutawalli.

Section 83 of the Act provides for constitution of the Wakf Tribunal for

determination of any dispute, question or other matter relating to wakf

or wakf property. Section 84 of the Act provides that whenever an

application is made to a Tribunal for determination of any dispute,

question or other matter relating to wakf or wakf property, it will hold

its proceedings as expeditiously as possible and take a decision. Hon'ble

Supreme Court in the matter of Anis Fatma Begum and Another

(supra) has considered the scope of Sections 83 and 84 of the Act and

has held that:

"7. The dispute in the present case relates to a wakf. In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India. It may be mentioned that the Wakf Act, 1995 4 APOT 117 of 2022

is a recent parliamentary statute which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters.

x x x

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."

8. It is worth noting that similar issue had come up before the learned

Single Bench of this Court in WP 29863(W) of 2015 in the matter of 5 APOT 117 of 2022

Mr. Mahamudul Hassan vs. Sk. Md. Galib, wherein an application

made to the Board for further appointment of Mutawalli was not

considered and decided by the Board and prayer was made in the writ

petition to issue a direction to Board to decide the claim. Learned Single

Judge by order dated 22nd of December, 2015 in the matter of Mr.

Mahamudul Hassan (supra) had disposed of the writ petition directing

the Board to consider the claim of the petitioners therein, in accordance

with law, within 8 (eight) weeks from the date of receipt of copy of the

order. This order of the learned Single Judge was affirmed by the

Division Bench by order dated 15th of June, 2018 passed in MAT 901 of

2016 in the matter of The Board of Auqaf, West Bengal vs. Golam

Mustapha & Another by observing that the Writ Court did not commit

any illegality either by entertaining such writ petition or by passing

direction upon the Board for early disposal of the long pending

application.

9. The above order of the Division Bench was challenged before the

Hon'ble Supreme Court in Special Leave Petition (Civil) No. 21782 of

2018 in the matter of The Board of Auqaf West Bengal vs. Golam

Mustapha & Anr. by the Board of Auqaf. Hon'ble Supreme Court

considering the availability of remedy before the Wakf Tribunal had

modified the order vide order dated 14th of August, 2018 as under:

"Having heard learned counsel appearing for the petitioner, we deem it appropriate to make slight modification in the operative direction issued by the learned Single Judge which was confirmed by the Division Bench. Instead of 'Waqf Board' the matter shall stand referred to 'Waqf Tribunal', which shall in terms of the power conferred upon it under the Waqf Act, 1995, decide and dispose of the matter.

Since the matter calls for a minor modification, we have not issued notice to the respondents and have considered the matter ex- parte.

6 APOT 117 of 2022

In case there be any objection, the respondents are at liberty to approach this Court.

The Special Leave Petition is disposed of in the afore-stated terms."

10. The present case also stands on the same footing. Hence, from the

above three orders, it is clear that the respondent nos. 1 and 2 herein

should approach the Tribunal and the direction issued by the learned

Single Judge to the Wakf Board to decide the application cannot be

upheld.

11. That apart, undisputedly a statutory remedy under Section 83 of

the Act is available to the respondent nos. 1 and 2 and unless justifiable

ground exists, there is no reason to bypass that remedy. It is not a case

where the writ petition is for enforcement of any fundamental right or

there is any violation of principles of natural justice or the order or

proceedings are wholly without jurisdiction or constitutional validity of

a legislation is challenged. Therefore, there is no good ground to bypass

the statutory remedy.

12. Learned counsel for the respondent nos. 1 and 2 has placed

reliance upon the judgment of the Hon'ble Supreme Court in the matter

of State of Andhra Pradesh (Now State of Telangana) vs. A.P. State

Wakf Board and Others reported in 2022 SCC OnLine SC 159 but in

that case, validity of a notification was challenged in the writ petition

and the High Court had already examined the merits of the contentions

raised and there was a question of interpretation of statute and that was

not a case where any oral evidence was necessary, therefore, in that

background, Hon'ble Supreme Court had taken the view that the party

should not be relegated to the statutory remedy. Facts of the present case 7 APOT 117 of 2022

are entirely different, therefore, no benefit can be extended to the

respondent nos. 1 and 2 on the basis of that judgment.

13. Learned counsel for the appellant has also submitted that though

the learned Single Judge in the impugned order has mentioned that the

order will not be cited as precedent but it is being followed

subsequently.

14. Learned counsel for the appellant has also pointed out the view

taken in earlier judgments of learned Single Bench in Musst. Hazera

Khatoon (supra) and Sahebzada Md. Shahid Alam (supra),

therefore, if the learned Single Judge while passing the impugned order

wanted to take different view, then proper course available was to refer

the matter to the Larger Bench.

15. In the aforesaid circumstances, we are unable to sustain the order

of the learned Single Judge dated 23rd of December, 2021 which is

accordingly set aside with liberty to the respondent nos. 1 and 2 to file

an appropriate application before the Wakf Tribunal under Section 83 of

the Act. If such an application is filed, the Wakf Tribunal will decide it

in accordance with law as expeditiously as possible.

16. APOT 117 of 2022 is accordingly allowed and connected

applications are disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 27.09.2022 ________ PA(RB)

(A.F.R. / N.A.F.R.)