Calcutta High Court (Appellete Side)

Sk. Hozra Ahmed & Ors vs Moinur Laskar & Ors on 4 October, 2024

                                 1

               IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION
                         APPELLATE SIDE



                         C.O. 3146 of 2022
                               With
                        IA No. CAN 1 of 2024
                      Sk. Hozra Ahmed & Ors.
                                Vs.
                        Moinur Laskar & Ors.


For the petitioners            :Mr. Md. Sabir Ahmed, Adv.
                               Mr. Mujibar Ali Naskar, Adv.
For the opposite party no. 1   :Mr.Sumit Kumar Ray, Adv.
                               Mr. Biswajit Das, Adv.


For the Board of Waqf           :Mr. Md. Salahuddin, Adv.
                                Mr. Md. Assanuzzaman, Adv.
                                Mr. Md. Raziuddin, Adv.



Heard On                        :08.07.2024, 19.07.2024,
                                28.08.2024, 26.09.2024



Order On                        :04.10.2024
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Bibhas Ranjan De, J. :

1. The instant civil revision application under Article 227 of the

Constitution of India has been preferred challenging the

Judgment and Order dated 27.07.2022 passed by Ld. Waqf

Tribunal, Kolkata in connection with O.A. No. 19 of 2019.

Background:-

2. One Amcharrudin Laskar was the owner of land admeasuring

about 83 decimal situated at Mouza- Thanamakhua, C.S. Plot

No. 769 under C.S. Khatian No. 69, at present Mouza-

Thanamakhua, J.L. No. 40, Dag No. 952, Khatian No. 6118,

under Police Station- Sankrail, District- Howrah (hereinafter to

be referred as "the Waqf Property"). In the waqf property the

said Amcharrudin Laskar constructed one Masjid and also his

dwelling house was adjacent to the Masjid.

3. Subsequently, Amcharrudin Laskar executed a Deed of Waqf

(Waqfnama) duly registered on 02.10.1895 in respect of his

property creating it as a Waqf Property. In the said Wakſnama

it had been specifically mentioned by the wakif, Amcharrudin

Laskar, that he is issueless, and his wife Achiran Bibi will

reside on 15 katha out of the waqf property and would lead her

life and after her death the said land would return back to the

Masjid. It was made abundantly clear in the said waqfnama

that under and no circumstances his

Warish/inheritor/successor could ever make any claim of right

on such waqf property. By the said Waqfnama, the wakif

appointed his brother Dewan Laskar as Mutawalli of the waqf

property and it has also been mentioned in the waqfnama that

the said Dewan Laskar would also look after the Waqf property

and can appoint Mutawalli if required. After the demise of the

said Dewan Laskar, the said Masjid was looked after by

villagers as none was appointed as Mutawalli by him.

4. The villagers thought to create a Masjid Committee for better

management of the said Masjid. Accordingly, a committee was

formed on 05.04.1988 and one Rehan Ali Khan, was appointed

as secretary of the said committee. It was also decided that the

said Rehan Ali Khan would be Mutawalli of the said Waqf

property.

5. Villagers made application before the Aquaf Board for

enrolment of the Wakf Property and appointment of said Rehan

Ali Khan as Mutawalli. Pursuant to such application, Board of

Aquaf, West Bengal enrolled the waqf property as E.C. No.

15095 on 13.09.1991 and appointed the said Rehan Ali Khan

as Mutawalli. Said Rehan Ali Khan made applications before

the Board of Aquaf for appointment of Committee of Mutawalli

as it became extremely difficult for him to manage the waqf

property alone.

6. On 28.01.2013, the opposite party no. 1 herein along with two

others submitted application for appointment of joint

Mutawalli in the Waqf property. Several other applications were

also made by various interested parties including the relatives

of the said Wakif. The BOA resolved in its Board resolution

dated 07.02.2019 that a Committee Mutawalli will be formed

from the list of both sides compromising 17 persons for a

period of 5 years in respect of the waqf property and the said

Committee Mutawalli selected two respectable persons of the

locality as Advisor of the said Committee and they were also

appointed as advisor by the said resolution and the BOA by its

Resolution dated 20.02.2019 confirmed the appointment of the

Committee Mutawalli and rejected the applications of the

relatives being encroachers. The opposite party no. 1, being

one of the relatives, filed an application challenging the said

BOA's Resolution dated 07.02.2019 duly confirmed on

20.02.2019 in respect of the Waqf property being E.C. No.

15095, which has been registered as O.A. No. 19 of 2019. The

Learned Tribunal by Judgement and Order dated 27.07.2022

in O.A. No. 19 of 2019 was pleased to allow the application of

the opposite party no. 1 and set aside the Resolution dated

07.02.2019 confirmed on 20.02.2019. Being aggrieved by and

dissatisfied with said order of the Ld. Tribunal, the petitioners

have preferred the instant revision application.

Argument Advanced:-

7. Ld. Counsel, Mr. Md. Sabir Ahmed has appeared on behalf of

the petitioner.

8. Ld. Counsel, Mr. Sumit Kumar Ray, has appeared on behalf of

the opposite party no. 1.

9. Ld. Counsel, Mr. Md. Salahuddin, represented the Board of

Waqf.

10. All the Ld. Counsel appearing on behalf of the parties to

this revision application, in course of argument, were ad idem

of the fact that none of the parties to this revision application

have right, title and interest over the subject waqf property and

submitted before this Court that necessary direction be given

to the Board of Waqf to appoint Mutawalli/Committee

Mutawalli after giving an opportunity of hearing to all the

interested parties.

11. Ld. Counsel, Mr. Ahmed, relied on the case of

Aliyathammuda Beethathebiyyappura Pookoya and

another vs. Pttakal Cheriyakoya and others reported in

(2019) 16 SCC.

12. In Aliyathammuda Beethathebiyyappura Pookoya

(supra) it was held that a person claiming customary right of

hereditary succession to office of mutawalli would have to show

that the waqif (founder of waqf) intended for the office to

devolve through a practice of hereditary succession.

Analysis:-

13. On careful scrutiny of the impugned Order, it has come

to the notice of this Court that Ld. Tribunal while adjudicating

the matter shifted its focus mainly on the issue of line of

succession while completely ignoring the fact that wakif had no

intention to appoint any of his successors as Mutawalli in the

subject property except Dewan Laskar who was given liberty to

appoint Mutawalli, if required. But, said Dewan Laskar never

appointed anyone as Mutawalli of the said property before his

demise. Therefore, the contention of the opposite parties

claiming Mutawalliship as descendants of wakif or the

Mutawalli appointed by the wakif himself does not have any

merit. Therefore, the main foundation upon which the order

impugned has been passed by the Ld. Tribunal, being devoid of

merits, is not sustainable in the eye of law.

14. Now coming to the Board Resolution dated 07.02.2019

wherein it was resolved that a committee Mutawalli will be

formed for a period of five years in respect of waqf property,

though being completely legal and justified, has already

expired being time barred.

15. In the aforesaid view of the matter, the Board of Waqf is

requested to dispose of the issue of Mutawalliship of the

subject waqf property afresh after giving opportunity of hearing

to all the interested parties, strictly in accordance with law

preferably within eight (8) weeks from date of communication

of this Order after vacation.