Calcutta High Court (Appellete Side)

The Commissioner Of Wakfs vs Syed Amirul Islam & Ors on 28 September, 2022

28.9.2022
    7
Ct. no. 652
    sb
                                   C.O. 489 of 2020
                                      With
                                   CAN 2 of 2022


                           The Commissioner of Wakfs, West Bengal
                                         Vs.
                                  Syed Amirul Islam & Ors.


                   Mr. Sk. Md. Galib, Sr. adv.
                   Mr. Abu Siddique Mallik
                   Ms. Tanwishree Mukherjee
                                                   ...for the petitioner

                   Mr. T.M. Siddique
                   Mr. Suddhader Adak            ...for the O.P. nos.1 & 2



                    Being aggrieved by the order no. 144 dated

              18.12.2019 passed by the learned Civil Judge (Junior

              Division), 2nd Court, Arambagh in title suit no. 120 of

              1995, the present revisional application has been

              preferred.

                    The petitioner instituted the above-mentioned suit

              on 25th October, 1995 before the learned Civil Judge

              (Junior Division), 2nd Court, Arambagh for declaration

              and other consequential reliefs. On 13th August, 2019,

              the Chief Executive Officer, Board of Wakf, West Bengal

              preferred an application before the said court praying

              inter alia withdrawal of the suit with liberty to institute

              the same before the appropriate forum. Upon contested

              hearing, learned Civil Judge (Junior Division), 2nd Court,
                 2




Arambagh by the impugned order was pleased to reject

the same.

      Learned counsel for the petitioner submits that it

would   be   germane    to   mention   that   before   the

introduction of Wakf Act of 1995 which came into effect

on 1st January, 1996 wakf property in West Bengal was

governed under the Bengal Wakf Act 1934 wherein there

was post of Commissioner of Wakfs which was later

changed to Chief Executive Officer by the operation of

the Wakf Act, 1995. Hence the Chief Executive officer,

Board of Wakf, West Bengal is to sue and be sued on

behalf of the board as per Regulations 38 of the West

Bengal Wakf Regulations, 2008. He further submits that

Section 7 of the Wakf Act 1995 provides that in the case

of the list of Wakfs relating to any part of the state and

published at any time within a period of one year

immediately preceding the commencement of Wakf Act,

1995, such an application may be entertained by the

Tribunal , within a period of one year of such

commencement. He further contends that as per Section

1 of Wakf act 1954 it is very much clear that said act of

1954 extends to any state by way of notification but in

the States of Bihar, Uttar Pradesh and West Bengal no

such notification has yet been issued stating that the

wakf act, 1954 shall have any application in West

Bengal. In this context, he also relied upon a division

bench judgment of this court reported in AIR 2016 Cal
                     3




351 in support of his contention that the Act of 1995 has

created a bar under Sub-section (5) of Section 7 that the

tribunal shall not have any jurisdiction to determine any

matter which is the subject matter of any suit or

proceeding instituted or commenced under Wakf Act,

1954 in a civil court under Sub-section (1) of Section 6

before the commencement of the Wakf Act or which is

the subject matter of any appeal from the decree passed

before    such      commencement        in   any   such   suit    or

proceeding or of any application for decision or review

arising out of such proceeding or appeal as the case may

be.

       In this context, he further submitted that the

Chairperson, board of Wakf west Bengal had taken a

resolution on 10.7.2019 that considering the fact that

the progress of title suit no. 120 of 1995 is not at all

satisfactory and also to the fact that at the relevant time

of filing the suit there was no existence of wakf tribunal

so    after   due       deliberation   and   discussion   it     was

unanimously resolved that title suit no. 120 of 1995 be

withdrawn from the court of learned Civil Judge (Junior

Division),    2nd       Court,   Arambagh.     Accordingly,      the

withdrawal petition was made before the said trial court

and further the learned trial court after considering the

contentions made by the parties was pleased to reject the

prayer for transfer of the said suit from the said court.
                    4




        The same question earlier raised before this court

in C.O. 3495 of 2015 but it is submitted on behalf of the

petitioner that the observation made therein has no

binding effect in the present suit as said matter relates

to Section 7(5) of the Wakf Act, 1995 but the present

application has been made under Order 23 Rule 1 of the

Civil Procedure Code for withdrawal of the suit. The

plaintiff being the dominus litus has every right to

withdraw the suit, however learned court failed to

appreciate the same and was pleased to reject the

plaintiff's prayer.

        Learned counsel for the opposite party submits

that the dispute arose herein has already been settled by

this court in C.O. 3495 of 2015 and no challenge has

been made against the order passed in C.O. 3495 of

2015 and as such it has attained its finality. He further

submits that in view of the various case laws it is now

well     settled       that    pending     proceedings     before

commencement of 1995 Act would continue before the

civil   court   and      the   tribunal   shall   not   have   the

jurisdiction to determine those matters.

        Considering the submissions made by both the

parties, it appears that in the civil revision being C.O.

3495 of 2015 was preferred assailing the order passed by

learned wakf tribunal, Calcutta wherein the said tribunal

held that in view of Section 7(5) of Wakf Act, 1995 the
                     5




said learned tribunal had no jurisdiction to try the

matter.

       In that revisional application Learned counsel for

the petitioner argued that the trial court had ignored

legal position. He submitted that act of 1995 came into

force on 01.01.1996 but the suit was filed on 25.10.1995

thus when the suit was filed the Act was not in force.

Learned tribunal correctly held that it has no jurisdiction

to dispose of the matter. After hearing both the sides this

court was disposed of the said revisional application

being CO. 3495 of 2015 with following observations:

         "Thus, I have taken into consideration the argument made by
the learned advocates of the parties and I have taken into
consideration the legal position as enumerated in Sections 7(5) and 85
of the Act. It may be noted that the said act came into force with effect
from 01.01.1996 as per Notification No. S.O. 1007(E), dtd.
27.12.1995

Thus, the suit was filed prior to the existence of the Act, Section 7(5) of the said Act has given no retrospective effect like some other Acts giving power to the Tribunal created for certain purpose. Section 85 of the said act as such cannot debar the learned Civil Court from disposing of the matter which was pending before the Act of 1995 came into force.

It is true that the order passed by the learned Civil Judge Junior Division, 2nd Court, Arambagh within the district of Hooghly was not assailed either by the petitioner or private opposite parties. the question now is simply for that reason can I confer jurisdiction on the learned Auqaf Tribunal? My answer is clearly "no' this revisional court in exercising its revisional power must say that the order dated as passed by the learned Civil Judge, 2nd Court, Arambagh within the district of Hooghly dated 21.8.2010 was against the legislative intent.

Thus, in view of the discussion so long made, I find no substance in this revisional application to set aside the order of the learned Tribunal.

The order of the learned Tribunal is hereby affirmed. This revisional application is, thus, dismissed on contest without costs."

In view of the aforesaid background of the case it is

clear that this court has already disposed of the issue

involved therein and no prayer challenging the said

observation has been made before any forurm.

Furthermore in view of the case law reported in (2014)

16 SCC 45 it was held

"12. On a conjoint reading of Section 7 and Section 85, the legal position is summed up as under:

12.1. In respect of the questions/disputes mentioned in sub-section (1) of Section 7, exclusive jurisdiction vests with the Tribunal, having jurisdiction in relation to such property.

12.2. Decision of the Tribunal thereon is made final. 12.3. The jurisdiction of the civil court is barred in respect of any dispute/question or other matter relating to any wakf, wakf property for other matter, which is required by or under this Act, to be determined by a Tribunal.

12.4. There is, however, an exception made under Section 7(5) viz. those matters which are already pending before the civil court, even if the subject-matter is covered under sub-section (1) of Section 6, the civil court would continue and the Tribunal shall not have the jurisdiction to determine those matters." (emphasis added)

In the said revisional application also the judgment

of Sardar Khan & Ors. vs. Syed Najmul Hasan (Seth) &

Ors. reported in AIR 2007 SC 1447 was also referred

wherein it was held that in view of Section 7(5) of Wakf

Act, 1995, the learned civil court is not debarred from

disposing of the title suit as the suit was filed prior to

coming into force of the said act.

In this context it may also be mentioned that both

the parties have relied upon latest judgment in Rashid

Wali Beg vs. Farid Pindari and others reported in

(2022) 4 SCC 414 and in the said judgment in para 35

some of the decisions in which this controversy was

addressed were presented in the form of a table for the

purpose of easy appreciation and it also appears that

Sardar Khan & Ors. Vs. Syed Najmul Hasan (Seth) &

Ors. was also referred in the table where the Supreme

Court held that the tribunal will have no jurisdiction to

decide any matter which is the subject matter of any suit

instituted or commenced in a civil court before

commencement of the 1995 Act. Ultimately in para 36 of

the said judgment Apex Court came to the conclusion

that

"36. It can be seen from the Table given above that the original proceedings from out of which the decisions at Sl. Nos. 1 and 2 (Mohd. Mashur Kunhi Koya Thangal [Mohd. Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, (2004) 7 SCC 708] & Sardar Khan [Sardar Khan v. Najmul Hasan, (2007) 10 SCC 727] ) arose, were instituted long before the advent of the Waqf Act, 1995 and hence the ratio laid therein on the basis of Section 7(5) of the Act does not throw any light upon the actual controversy on hand."

In view of the aforesaid discussion it is settled

position of law that there is an exception made under

Section 7(5) of Wakf Act, 1995 which says that the

matters which are already pending before the civil court

like the present one even if the subject matter is covered

under Sub-section (1) of Section 6 of the Act, the civil

court would continue and the tribunal shall not have the

jurisdiction to determine those matters.

In view of the aforesaid settled position of law and

also in view of the earlier decision passed by this court in

C.O. 3495 of 2015 in connection with self -same suit

which remains unchallenged and also in view of the