Mr. Firozuddin vs Board Of Waqf & Anr
2023 Latest Caselaw 4388 Cal

                IN THE HIGH COURT AT CALCUTTA
                 CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                             C.O. 581 of 2020
                                   With

                              CAN 1 of 2021

                            Mr. Firozuddin
                                   Vs
                          Board of Waqf & anr.

For the petitioners                 :       Mr. Abdul Hadi
                                            Mr. Shamik Bagchi



For the O.P. No.2                   :       Mr. Sumit Kumar Roy
                                            Mr. Munshi Ashiq Elahi

For the board of Waqf               :       Mr. Sk. Md. Galib
                                            Ms. Tanwishree Mukherjee

Heard on                            :       06.07.2023

Judgment on                         :       20.07.2023


Ajoy Kumar Mukherjee, J.

1. Present application under Article 227 of the constitution of India has

been assailed against the judgment and order dated 17.09.2019 passed by

learned Waqf Tribunal, West Bengal, Kolkata in O.A. No. 10 of 2014.

Background of the case, in a nutshell, is that one Sabujan Bibi created the

Waqf Estate in respect of her property. Waqifa Sabujan Bibi also made rule

of succession regarding appointment of Mutwaliship in the deed of waqf

stating that she will remain mutwali during her life time and after her death

Md. Ali Hossain, who is her brother and in the absence of Ali Hossain his

other brothers, one after another, as per the seniority, would be the

Mutwali. Accordingly Md. Ali Hossain and thereafter imam Hossain was

appointed as Mutwali and after his death, his brother Nader Ali was

appointed as Mutwali. It is alleged that during the tenure of Nader Ali he

filed an application before the Board of Waqf on 18.12.1989 for appointment

of Nayeb Matwali as he was suffering from various health hazards.

Subsequently said Nader Ali on 29.05.1991 made another application before

the Board of Waqf with a prayer to appoint his wife Ahmdi Bibi as Mutwali

and subsequently a resignation letter was filed by Nader Ali to that effect

and the same was identified by father of Opposite party no. 2 herein. On

16.07.1991 Nader Ali also submitted an affidavit with the same prayer. On

10.12.1991 Nader Ali made an application for cancellation of Nayeb

Mutwaliship and his LTI (Left thumb impression) in the said application was

identified by husband of present opposite party no. 2, Seikh Haider Ali.

2. Said Haider Ali subsequently filed an application on 11.12.1991 that

he took no objection certificate from Nader Ali and accordingly he may be

appointed as Mutwali. The Board isisued notice to Haider on 15.02.1992 but

prior to that Nader Ali died in the month of November, 1991. After his death,

one of his brother Seikh Kasem Ali, a resident of Bangladesh filed an

application before Board of Waqf on 27.02.1992 for appointing him as

Mutwali. Inspite of two reminders, Board did not respond to Kasem's

request. On the contrary Board of Waqf, on 23.06.1992 appointed Ahmedi

Bibi who is the wife of Nader Ali, as Mutwali for a period of two years. After

the expiry of her tenure, she filed an application for extension of

Mutwaliship for another three years and the same was approved by the

Board. Further case is that on 25.7.2003 an inquiry was conducted by the

Board of waqf and the report shows that after death of Nader Ali who

according to the petitioner died issueless, the petitioner herein has been

looking after the Waqf Estate as per last nomination of Mutwaliship

executed by Ahmedi Bibi. Accordingly on 08.07.2005 petitioner herein made

an application before Board of waqf for appointment of his Mutwaliship

wherein he has annexed copy of order of this High court, passed in WP no.

26 of 1996, wherein this court directed Board of waqf to fill up vacancy of

Mutwaliship within a period of six weeks. The petitioner filed a Geneological

table before the Board and contended that Nader Ali and Ahmeda Bibi both

died issueless and accordingly as per genealogical table, Murshida Begum is

the sister of Ahmedi Bibi. Father of present petitioner namely Md. Safi was

the only son of said Murshida Begam. Said Md. Safi expired and petitioner

being his legal heir is the only available descendant of the original waqifa

and as such he is the fit person to be appointed as mutwali of the said

property.

3. On 14.09.2000 Board of Waqf conducted hearing relating to

appointment of mutwaliship . The opposite party no. 2 herein Nasreen

sultana claiming herself as the daughter of Ayesha khatoon who happens to

be the daughter of Nader Ali and Ahmadi Bibi, claimed mutwaliship in the

suit property. Opposite party no. 2 herein contended that Ayesha Khatoon

who is the mother of opposite party no. 2 and daughter of Nader Ali and

Ahmedi Bibi was born in the year of 1931 in Dhaka, Bangladesh but her

certificate was registered on 31.01.2009.

4. In the said hearing the petitioner's specific case was that Nader Ali

and Ahmadi Bibi expired issueless, then how the opposite party no. 2 can be

the descendant of Nader Ali. In the cause of hearing, opposite party no. 2

was directed to get birth certificate of her mother attested from the External

Affairs Department of Bangladesh and after considering the birth certificate

the opposite party no.2 herein was appointed as Mutwali. Petitioner's case is

opposite party no.2 has been appointed illegally without giving any

opportunity to disprove the document filed by opposite party No.2 by the

petitioner herein. Board has ignored the fact that the opposite party no. 2

filed application on 24.05.2006 for appointing her temporary Mutwali but

board of waqf appointed her as permanent Mutwali. Petitioner herein filed

documents of Waqf contribution paid by him, but same was not considered

while passing final order.

5. Being aggrieved by the said resolution dated 04.04.2013 which was

confirmed on 18.04.2013 wherein, opposite party. 2 was recorded as

Mutwali in respect of said Sabujan Bibi Waqf Estate, petitioner herein

preferred O.A. no. 10 of 2014 before the Waqf Tribunal of West Bengal. The

Waqf Tribunal after hearing the contention of both the parties found that the

birth certificate of Ayesha Khatoon who is the mother of opposite party no. 2

is correct and accordingly it had accepted appointment of opposite party no.

2 being the daughter of Ayesha Khatoon and thereby confirmed the

resolution taken by Waqf Board in the meeting dated 18.04.2013 and

accordingly said O.A. No. 10 of 2014 was dismissed by the said Tribunal.

6. Learned counsel appearing on behalf of the opposite party nos. 1 and

2 have taken almost similar stand and contended that opposite party no. 2

is the daughter of Ayesha Khatoon, who was the daughter of Nader Ali and

Ahmeda Bibi and she was born in Bangladesh. Said birth certificate in the

name of Ayesha Khatoon was referred to the Government who apprised the

Board about the general procedure for accepting the documents issued by

the Foreign Sovereign. In accordance with the said procedure, the birth

certificate issued by the Registrar of Birth and Death of Bangladesh needs

consular apostille from the External Affair Department of Bangladesh and

ultimately Board directed the opposite party no. 2 to get the said birth

certificate attested or authenticated by the External Affairs Department of

Bangladesh. Such direction and resolution on the part of the board is

suggestive of the fact that the Board of waqf have made all possible queries

as per their requirements and asked the opposite party no. 2 herein to

satisfy their queries on the appropriate authenticated documents as per the

requirement of opposite party no. 1 herein and having been satisfied with

the requirements the opposite party no. 1 found it just and proper to record

opposite party no. 2 as Mutwali in respect of the aforesaid Waqif Estate.

7. The opposite party no. 2 specifically contended that as a matter of

fact said Ayesha Khatoon, the mother of opposite party no. 2 married

against the wishes of her parents and as such the relation amongst them

soured to such an extent that during her life time, while residing at Dhaka

she had practically no relation to her parents which might have prompted

her parents Nader Ali and Ahmeda Bibi to deny her existence but so far as

documents produced by opposite party no. 2 and relied upon by opposite

party no. 1 on verification are all genuine documents, authenticated by the

External Affairs Department of Bangladesh as well as Ministry of Foreign

Affairs, Dhaka. Therefore there can be no shadow of doubt in respect of the

documents on the basis of which the opposite party no. 2 is found to be

legal heir of Nader Ali and Ahmeda Bibi having eligibility of being recorded

as Mutwali. Moreover the opposite party no. 2 has valid passport which

clearly establish that opposite party No.2 is an Indian Citizen. On the

contrary the petitioner herein admittedly is a tenant under the Waqf Estate

deriving his tenanted interest from his mother Zohra Begum, since deceased

and as such having no nexus with the affairs of Waqf Estate, the

petitioner/applicant cannot raise his claim for mutawaliship even if he

might have paid waqf contribution or might have temporarily managed the

waqf estate without having any authority or permission and or sanction

from opposite party no. 1 herein in this regard.

8. In view of aforesaid submissions made by the parties, the only

question which has been referred before this court is to adjudicate whether

both the Forums were justified in coming to a conclusion that the opposite

party no. 2 being the descendant of Nader Ali and Ahmeda Bibi is the fit

person to appoint as Mutwali in the Waqf property or not and whether the

petitioners claim of mutwaliship in the suit property is justified or not.

9. The petitioner in this case by referring the application dated

29.05.2021 and the affidavit affirmed on 16.07.1991 sworn by deceased

Nader Ali and the councillor's certificate dated 20.08.1991, as well as the

application dated 11.12.1991 made by aforesaid Sk. Haider Ali contended

that all those documents prima facie establish that Nader Ali and Ahmed

Bibi were admittedly issueless. Moreover by the letter dated 11.12.1991

Nader Ali specifically wrote to the waqf Board that they have no issue and as

such her wife Ahmeda Bibi, may be appointed as Mutwali. Accordingly the

petitioner raised the question, if Nader Ali and Ahmedi Bibi admittedly

expired issueless then how opposite party no. 2 claimed that Ayesha

Khatoon was the daughter of Nader Ali and Ahmeda Bibi. Accordingly the

initial burden was upon the opposite party no. 2 to prove that her mother

Ayesha Khatoon was the daughter of Nader Ali. The birth certificate of

Ayesha Khatoon filed by opposite party no. 2 had been duly considered by

the Waqf Board and thereafter Board of Waqf has sought for an opinion

from the Government of West Bengal and the Joint secretary, Government

of West Bengal by virtue of a letter dated July 12th 2011 clarified about the

procedure for accepting such document and accordingly opposite party no. 2

took steps for authentication of document by way of Consular attestation by

the Ministry of External Affair Department of Bangladesh as prescribed by

the joint secretary to the Government of West Bengal in his aforesaid letter.

Opposite party no. 2 thereby has discharged her initial burden to prove that

her mother was the daughter of Nader Ali and the Board of Waqf came to a

finding that the birth certificate produced by opposite party no. 2 is genuine

and under the provisions of section 114 (e) of the Indian Evidence Act Board

of Waqf accepted the said document and appointed opposite party no.2 as

Mutwali in the said property. It also appears that on earlier occasion also

opposite party no. 2 claiming herself as heir of Nader Ali made an

application before the Board for appointing her as Mutwali but said prayer

was initially turned down by the Board of Waqf on May, 28, 2007, against

which opposite party no. 2 filed O.A. No. 6 of 2007 before the Tribunal and

the Waqf Tribunal by its judgment dated 31st December, 2009 turned down

resolution taken by the Board of Waqf on May 28, 2007. Aforesaid judgment

dated December, 31, 2009 passed by Waqf Tribunal in O.A. No. 6 of 2007

has not been challenged before higher forum, which ultimately attained its

finality. It is not in dispute in the present case that so long as the

descendant from the family of waqf is available, no outsider can be

appointed as Mutwali. The genealogical table filed by the petitioner shows

that he is not direct descendant of the family of the waquifa.

10. The opposite party no. 2 herein took specific plea, referring counter

part of rent receipt that one Zohora Begum being the mother of the

petitioner herein was a tenant under the Waqf Estate and as such the

petitioner herein cannot have better status than that of son of a tenant of

the Waqf Estate. The petitioner in his written objection filed in O.A. No. 6 of

2007 before the Waqf Tribunal admitted such contention. In this context

both the opposite parties submits that a tenant of the same waqf Estate

cannot be appointed as a Mutwali since it is admitted position that the

petitioner and his family is at present staying in the waqf property as a

tenant. A tenant cannot claim Mutwaliship only on the ground that at

certain point of time he put waqf contribution or looked after waqf property

or submitted accounts before the Board of Waqf.

11. During the course of argument learned counsel for the petitioner has

argued that wife of Nader Ali namely Ahmedi Bibi adopted present

petitioner as she was issueless and as such the petitioner was acting as

defacto Mutwali in place of Ahmadi Bibi who was his grandmother. No

cogent document or evidence has been produced by the petitioner to show

that Ahmadi Bibi before her death adopted petitioner herein as his son and

accordingly such contention does not find any leg to stand. Petitioners

vamiently argued that the birth certificate of Ayesha Bibi and the rent

receipt in support of petitioners tenancy in the waqf property are forged and

manufactured document but petitioner has miserably failed to establish

such contention.

12. When both the forums being the Board of waqf and learned Waqf

Tribunal have concurrent finding that the birth certificate of Ayesha

Khatoon is genuine and thereby appointment of opposite party no.2 as

Mutwali in the waqf property is justified being direct descendent of the waqf

family, such concurrent finding can hardly be interfered under Article 227 of

the constitution of India in absence of convincing ground. The approach of

the petitioner that the birth certificate of Ayesha has not been duly proved to

be genuine or that it is a suspicious document, left me unconvinced. There

is hardly any material for holding that there was any impropriety in

exercising Jurisdiction by said Forums. High Court should not interfere

such concurrent finding by the said two Forums acting within jurisdiction of

such Forum. There is nothing perverse in accepting the birth certificate of

Ayesha Khatoon as genuine in view of the fact that the Waqf Board has

made its best endeavour to scrutinize the said document and thereafter in

terms of reply sent by the Joint Security, Government of West Bengal, about

the procedure for accepting such document, the certificate got duly

authenticated by the External Affairs Department of Foreign Sovereign.

Accordingly it cannot be said that in view of materials available in record,

no prudent person having the knowledge of law would not have arrived at

such finding or that the finding is not based on materials or such finding

results in manifest injustice or misdirection of law, so that interference by

the High Court under Article 227 can be warranted in the present context.

High Court is not exercising Appellate Jurisdiction or original jurisdiction

under Article 227 of the Constitution of India but exercising supervisory

jurisdiction which can be exercised only if it is found that Forums below

have assumed jurisdiction, which it does not have or have failed to exercise

a jurisdiction, which it does have or that it has exercised jurisdiction in a

manner not permitted by law, which resulted failure of justice or grave

injustice. No such incident occasioned herein, so that this court may step in

to exercise it's supervisory jurisdiction. In such view of the matter the

order impugned does not call for any interference and present application

is liable to be dismissed.

13. C.O. 581 of 2020 along with connected application, if any, stands

dismissed.

There will be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be supplied

to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)