Calcutta High Court (Appellete Side)
Jb. Mansoob Zahedi vs The Board Of Waqf on 6 October, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
C.O. 3982 of 2019
Jb. Mansoob Zahedi
Vs
The Board of Waqf, West Bengal & Ors.
For the petitioners : Md. Safiullah Mondal
For the opposite party No.2 : Mr. M.A Samad
For the Board of Waqf : Mr. Sundar Gopal Bhattacharyya
Heard on : 25.09.2023
Judgment on : 06.10.2023
Ajoy Kumar Mukherjee, J.
1. Petitioner herein has assailed Order no.2 dated 29.09.2019 passed by
learned Waqf Tribunal in O.A no 23 of 2019.
2. The background of the present case is one Abdul Jabbar Khan and his
wife Sademan Nessa of Village Kasiara, Burdwan executed a deed of waqf
being no 1905 for the year 1910 and dedicated their entire properties. In the
said deed of waqf the aforesaid wakifs (dedicators) directed that after their
death, their third son Md. Abdus Samad would be the Mutwalli. After his
death Mutwalliship would be chosen from among the heirs and successors
of said Md. Abdus Sammad who would be older in age and competent to
carry out the activities of the Waqf estate. After the death of Md. Abdus
Sammad his son Md. Abdul Ahad became next Mutwalli of the waqf estates
who on 12.06.1935 made application for enrolment of the waqf properties.
The commissioner of waqf accordingly enrolled the waqf under E.C no
1154A. Said Abdul Ahad thereafter made two enrolment applications one
after another on 19.01.1954 and 10.07.1954 respectively. The enrolment
application dated 10.07.1954 was admitted as accreditation while enrolment
application dated 19.01.1954 was entertained with a new number being E.C
1154. Md. Abdul Ahad prior to his death executed two registered deed of
appointments being deed no 7045 date 07.10.1980 and deed no 7046 dated
07.10.1980 in order to give appointment to two persons namely Jb.
Meheboob Zahedi and Jb. Md. Abdul Quavi in respect of aforesaid E.C no
1154 and 1154A respectively. Petitioner's case is after the death of Abdul
Ahad the Board of waqf relying upon aforesaid deed of appointment dated
7.10.1980, issued appointment letter to aforesaid Mehabub Zahadi in
respect of E.C no 1154 on 12.11.1980 and further issued a separate letter of
appointment to aforesaid Abdul Quavi who is the father of opposite party no
2 as Mutwalli in respect of E.C no 1154A on 13.11.1980.
3. After the death of aforesaid Mahboob Zahadi, the Board of waqf
appointed his two sons as joint Mutwalis in respect of E.C no 1154 for a
term of five years under Section 63 of Wakf Act, 1995. After the demise of
Abdul Quavi his successor in interest i.e. opposite party No.2 became
recorded Mutwalli on 02.05.2002 in respect of E.C no 1154A.
4. Opposite party no. 2 contended that after the death of Abdus Sammad
his son Md. Abdul Ahad became next Mutwalli of the waqf estate and the
commissioner of waqf enrolled the waqf under E.C. no 1154A admitting
aforesaid Abdul Jabbar and his wife Sadamon Nessa as waqif thereof. It is
further case of the opposite party no .2 that aforesaid Md Abdul Ahad
being wrongly advised for the purpose of getting entire properties out of the
track of vesting and to show the income and expenditure of the waqf
properties distinctively made two enrolment applications and on the basis of
two enrolment applications, the Board of waqf, without causing any enquiry
issued a new number being E.C no 1154 though no deed of waqf or wish of
the wakif in respect of appointment of Mutwalli was existing as required by
law. Further case of the opposite party no. 2 is that the properties
mentioned in the aforesaid two enrolment applications are the same and
identical properties which originally belonged to aforesaid dedicators/waqif,
Abdul Jabbar and his wife sademan Nessa. Opposite party no. 2 further
contended that said Abdul Ahad again being wrongly advised executed two
registered deed of appointments being deed no. 7045 dated 7.10.1980 and
deed no. 7046 dated 7.10.1980 and thereby appointed Mahebub Zahedi as
Mutwallis in respect of E.C no 1154.
5. Learned counsel for the opposite party no. 2 strenuously argued that
both the E.C no 1154 and 1154A are issued on the identical properties
donated by aforesaid Abdul Zabbar and his wife Sademan Nessa. He further
contended that the deed of wakf had made specific provision for
appointment of single Mutwalli, generation after generation and as such
aforesaid deeds of appointments executed by Abdul Ahad is absolutely void
documents. However after the death of Abdul Ahad on the basis of aforesaid
deeds of appointment dated 07.10.1980, Board issued two letters of
appointment one in favour of Mehabub Zahedi in respect of E.C no 1154
and another in favour of father of opposite party No.2 herein in respect of
E.C. no. 1154A.
6. Opposite party no. 2 further submitted that he made several
representations before the Board contending that E.C no 1154 and EC no
1154A is a single and identical waqf estate and pursuant to such repeated
reminders of opposite party , the Board of waqf ultimately admitted the
wrong entry of E.C. no 1154. Opposite party no. 2 further submits that by
the resolution dated 19.06.2014, Board appointed opposite party no 2 as
Mutwalli of E.C. no 1154, while opposite party no. 2 has already became
Mutwalli in respect of E.C. no 1154A under section 3(i) of the Wakf Act
2002 and Board also amalgamated both E.C. no. 1154A and 1154.
7. However aforesaid resolution appointing opposite party no. 2 as
Mutwalli in respect of E.C.no 1154A and amalgamation of E.C. no 1154 with
E.C. no 1154A was challenged by the petitioner herein by filing O.A. no 12 of
2015 but the waqf Tribunal rejected the contention of the petitioner on
16.07.2019 on contest. Inspite of rejection of prayer in aforesaid O.A. no 12
of 2015, the petitioner herein again filed O.A. no 23 of 2019, challenging
same resolution dated 19.06.2014, but the learned Waqf Tribunal by the
order impugned rejected O.A. no 23 of 2019 on the ground that such plea is
barred by res-judicata.
8. The petitioner herein challenged the decision passed by Wakf Tribunal
in O.A. no 23 of 2019 on the ground that the petitioner was earlier
appointed as joint Mutwalli by the Board of Wakf, West Bengal along with
his another brother of the said Wakf Estate and the opposite party no 2 has
been illegally appointed as Mutwalli without removing him and without
giving him an opportunity to hear. Petitioner further contended that
petitioner filed representation on 19.04.2018 to the Board for Mutwalliship
which was not annexed to the O.A. no. 12 of 2015 and for which O.A. no 12
of 2015 was rejected by the learned wakf Tribunal on 16.07.2019 with the
observation that no representation was made by the petitioner to the Board
for his Mutwalliship. Petitioner further contended that the wakf Tribunal
erroneously held that O.A.no 23 of 2019 was filed by Advocate Md. Safiulla
Mondal who filed the earlier O.A. no 12 of 2015 . Infact O.A. no 12 of 2015
was filed by Advocate Nilofar Begum and thereafter taking change Syed Asif
Ali appeared but thereafter petitioner took change and after no objection
given by him, on 25.07.2018 aforesaid Advocate Md. Sofiulla Mondal
appeared on behalf of petitioner in the said case. In fact the petitioner have
no knowledge about exparte appointment of Mutwalliship of opposite party
no. 2 and as such he lost the opportunity to be heard and to oppose the
material facts which have been suppressed. He further submitted, as his
representation dated 19.04.2018 was not annexed with his application being
OA no 12 of 2015, he was compelled to file the second application being O.A.
no 23 of 2019 and as such second application being O.A. no 23 of 2019 is
not barred by res-judicata. He further contended that the petitioner along
with his elder brother were appointed joint Mutwalli by the Board on
03.04.2008 for a period of 5 years and they have discharged there duty
sincerely and honestly but without showing any reason and without hearing
them, the Board had ousted them from Mutwalliship by taking illegal and
arbitrary resolution dated 19.06.2014. Accordingly petitioner contended that
the termination of their Mutwalliship inspite of said representation is totally
illegal and the Board should consider the petitioner's aforesaid
representation favourably and for which the order impugned should be set
aside.
9. It is not in dispute in the present context that the Board appointed the
petitioner along with his elder brother as Mutwalli on 3.4.2008 for a period
of five years under section 63 of the wakf Act. Said appointment came to an
end in April, 2013. Board took resolution for appointment of Respondent no
2 as Mutwalli on 19.06.2014. The petitioner admittedly had made the
representation for Mutwalliship four years thereafter on 19.04.2018.
Challenging the resolution passed by the Board on 19.06.2014. The
petitioner also preferred O.A. no 12 of 2015 before the Wakf Tribunal and
Wakf Tribunal by its order dated 16.07.2019 specifically observed that
petitioners failed to establish that the wakf estate is waqf-alal-aulad or that
he is descendent of waqif and came to a definite finding that the terms and
condition of the committee in the resolution dated 19.06.2014 are as per law
and the Tribunal did not find any illegality in the aforesaid resolution and as
such the original application no 12 of 2015 filed by petitioner against the
Board of wakf was dismissed on merit and the resolution dated 19.07.2014
which was confirmed on 24.07.2014 passed by Board of wakf was affirmed.
No challenge was thrown against said order of dismissal by the petitioner.
During admission hearing of subsequent application being O.A. no 23 of
2019, the Tribunal below refused to admit O.A. no 23 of 2019 with the
observation that the said application is not maintainable being barred by
res-judicata.
10. The only point for consideration herein is whether the Tribunal below
was justified in rejecting petitioner application being O.A. no 23 of 2019 on
the ground of res-judicata.
11. The Tribunal below while passing the impugned order made following
observation
"Record shows that same Applicant Mansoob Zahedi filed O.A No. 12/2015
against the Board of Auqaf and others challenging the Resolution dated
19.06.2014 confirmed on 24.07.2014 and same was dismissed by this
Tribunal on 16.07.2019 on merits. This Tribunal affirmed the Resolution
dated 19.06.2014 confirmed on 24.07.2014 passed by the Board of Auqaf.
It is astonishing that same applicant is challenging the same Resolution
dated 19.06.2014 in this O.A. It is also noticed that during the pendency of
the O.A. No. 12/2015, the Applicant made representation dated 09.04.2019
which is stated to be pending before the Board of Auqaf. The earlier O.A No.
12/2015 was filed by applicant through Advocate Md. Sofiullah Mondal
and same Advocate has filed the present O.A.
The representation dated 09.04.2019 was filed by the applicant during the
pendency of O.A. No. 12/2015 which was dismissed on 16.07.2019.
Applicant challenges resolution dated 19.06.2014 which has already been
affirmed by this Tribunal. The representation dated 09.04.2019 does not
create any fresh cause of action."
12. It is not in dispute that the prayer of the petitioner in O.A. no 23 of
2019 and the prayer made in O.A. no 12 of 2015 is in connection with the
impugned resolution taken by the Board on 19.06.2014. The grounds of also
reveal that the petitioner is aggrieved by the said resolution as the petitioner
was earlier appointed as joint Mutwalli and no opportunity was given to him
before removing him from the post of Mutwalliship. In fact the prayers made
in both the two applications are substantially same and the petitioner had
not challenged the judgment passed in O.A. no 12 of 2015. The materials
available in the record does not show that O.A. No. 23 of 2019 was filed on
any different cause of action because O.A. 23 of 2019 is also based on
challenging the resolution dated 19.06.2014 which was confirmed on
24.07.2014 passed by the Board of wakf in respect of E.C. no 1154 whereby
the appointment of Mutwalli and the members of the mosque management
and development committee was made.
13. The words used in section 11 of code of civil procedure are "directly
and substantially in issue". If the matter was in issue directly and
substantially in a prior litigation and decided against a party, then the
decision would be res-judicata in a subsequent proceeding. Section 11 has
been embodied in the Code to implement the rules of conclusiveness as
evidence and bars as a plea of an issue tried in an earlier suit founded on a
plaint in which the matter is directly and substantially in issue and became
final. In a later suit between the same parties or their privies in a competent
court to try such subsequent suit in which the issue has been directly and
substantially raised and decided in the judgment and decree in the former
suit, would operate as res-judicata. Since O.A. no 23 of 2019 is based on
self-same cause of action challenging the resolution dated 19.06.2014 which
was confirmed on 24.07.2014 passed by Board of wakif in respect of E.C.no
1154 concerning appointment of Mutwalli the Tribunal below has not
committed any wrong in observing that the Second Application being O.A.
no 23 of 2019 is barred by res-judicata.
14. The question as to whether the petitioner was given sufficient
opportunity to hear before passing the resolution has been answered by the
opposite party no 1/board of wakif who has stated that the Board of wakif
on their part had issued a general notice dated 30.07.2014 under memo no
2396 and service return came back on 18.11.2013 under D.E no. 10016
and that the Board/opposite party no.1 argued that sufficient notice was
given by the Board to the petitioner who did not make any representation
nor prayed for appointment as Mutwalli at that time when the appointment
was made and it was sent only on 09.04.2018.
15. In view of different salutory judicial pronouncements, the scope of
Judicial interference under Article 227 of the Constitution of India is well-
settled. Under Article 227 High Court cannot act as a Court of Appeal to re-
appreciate evidence. High Court can interfere with the order of Tribunal only
to keep the authorities within their bounds and in the cases where it results
into manifest miscarriage of Justice and/or where Tribunal ignored material
piece of evidence or considers some evidence which it ought not to have
considered resulting into injustice. The observation of the Tribunal in the
order impugned that petitioner challenges resolution dated 19.06.2014
which has already been affirmed by the Tribunal and that the representation
dated 09.04.2019 does not create any fresh cause of action, is neither illegal
nor irrational nor suffers from procedural impropriety and as such I find
nothing to interfere with the order impugned.
16. C.O. 3982 of 2019 is thus dismissed.
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.)
