Calcutta High Court (Appellete Side)

Syed Gholam Ali Alquadri And Anr vs The Chief Executive Officer on 13 September, 2024

                                1

              IN THE HIGH COURT AT CALCUTTA
                      Civil Appellate Jurisdiction
                            Appellate Side

Present:

The Hon'ble Justice Md. Shabbar Rashidi

                         C.O. No. 352 of 2017


               Syed Gholam Ali Alquadri and Anr.
                                    Vs
     The Chief Executive Officer, Board of Waqfs and Ors.


For the Petitioners      : Mr. Gour Baran Sau, Adv.
                           Mr. Arshad Hossain, Adv.


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


Heard on                 : August 30, 2024
Judgment on              : September 13, 2024



Md. Shabbar Rashidi, J.

1. The instant Revisional Application is directed against the

order dated 04.10.2016 passed by the Waqf Tribunal Kolkata,

West Bengal in Suit No. 6 of 2007.

2. By the impugned order, the Waqf Tribunal rejected the suit

filed by the plaintiffs seeking right to occupy the Waqf property

situated at 71/1, Ice Factory Lane now numbered as 71/1A and

71/1B, Mofidul Islam Lane, Kolkata-14.

3. The brief fact of the case of the petitioners/plaintiffs is that

one Syed Shah Nazir Hossain Chisty made a waqf by registered

deed dated 02.04.1927 in respect of his khankah and dwelling

house situated at premises No. 71/1, Ice Factory Lane now

numbered as 71/1A and 71/1B, Mofidul Islam Lane, Kolkata-14,

subsequently enrolled under E. C. No. 15168 with the Board of

Waqf.

4. The Waqif provided that his 3rd son, Shri Syed Shah Amin

Ahmed would act as Mutawalli and after his death his 4th son,

Shri Syed Shah Farid Ahmed Chisti would be appointed as

Mutawalli and, thereafter, such would continue in succession

one after another.

5. It was further case of the plaintiff that Waqif's 3rd son,

Shriman Syed Shah Amin Ahmed acted as Mutawalli till his

death on 14.01.1946. The 4th son of the Waqif, Shriman Syed

Shah Farid Ahmed Chisti had left for Pakistan where he died

issueless. The two sons of Syed Shah Amin Ahmed namely Syed

Abrar Ahmed and Syed Anwar Ahmed (Defendant no. 3) left for

Pakistan in 1948. Syed Abrar Ahmed is living in Karachi with his

family.

6. The plaintiffs' mother, Sakera Jamal, since deceased was

the daughter of the last Mutawalli Shriman Syed Shah Amin

Ahmed and granddaughter of Waqif, took the management of the

Waqf Estate, acted as Mutawalli by realising rents from tenants

issuing rent receipts, paying Municipal Corporation taxes,

making expenses for the khanka, holding Urs and doing

everything necessary for the welfare, maintenance and protection

of the Waqf property and Estate. However, she could not get her

name enrolled as a Mutawalli in the office of the Board of Waqf in

respect of the Waqf property.

7. The defendant no. 3 suddenly returned to India in 1990

after about 42 years and managed to get electoral identity card,

ration card etc. and got his name recorded as Mutawalli in the

office of the Board of Waqf in respect of the Waqf property.

8. Defendant no. 3 approached Sakera Jamal for shelter in

the Waqf Estate. She allowed him to occupy a major portion of

the Waqf Estate for residence and she herself began to reside in a

very small portion of the Waqf Estate with her family.

9. After the death of Sakera Jamal, the mother of the

plaintiffs, in 19.07.2003, the Defendant no. 3 demanded from the

plaintiffs to vacate the Waqf estate. Accordingly, Defendant no. 3

initiated a proceeding under Section 54 of the Waqf Act, 1995 for

eviction of the plaintiffs as encroachers upon the Waqf estate.

10. The plaintiffs submitted several representations that they

have been staying in the Waqf property since birth, they have no

other alternative residence and that they are not encroachers

upon the Waqf Estate; rather, the descendants of the waqif. They

had helped their mother Shakera Jamal, in her functioning as de

facto Mutawalli of the Waqf property.

11. The plaintiffs' case was not considered by the Board of

Waqf. A proceeding was initiated before the Sub-Divisional

Magistrate, Sadar, Alipore, South 24-Parganas for removal of the

encroachers from the Waqf property. Such action on the part of

the Defendant No. 3 as well as CEO, Waqf Board gave rise to the

cause of action of the suit by the plaintiffs seeking declaration to

the effect that the plaintiffs have the right to stay in the Waqf

Estate together with permanent injunction against the defendant

restraining the defendant from disturbing the possession of the

plaintiffs in the Waqf Estate.

12. The defendant CEO and Board of Waqf submitted written

statement denying the material allegations contending, inter alia,

that the suit as it is framed is not maintainable both in law and

on facts and that only the male descendants of the Waqif had the

right to be appointed as Mutawalli according to the right of

succession as laid down in the Waqf deed and that the only the

Mutawalli would occupy the Waqf property.

13. It was further contended in the written statement that the

plaintiffs were staying in the Waqf estate as encroachers and as

such the suit against the proceeding for removal of encroachment

was liable to be dismissed.

14. Defendant no. 3, in his written statement, denied the

material allegations made in the plaint. He denied having been

returned to India after 42 years. He also denied having managed

to procure electoral identity card, ration card and getting his

name recorded as Mutawalli in the office of the Board of Waqf.

15. He contended that after the death of his father, Shriman

Syed Shah Amin Ahmed, he was appointed as permanent

Mutawalli by the Board of Waqf and had been managing the Waqf

Estate in such capacity.

16. It is further contended by the defendant no. 3 that only

Mutawalli was allowed to reside in the Waqf estate and no

provisions were made in the Waqf deed for the benefit of the

female descendant.

17. Defendant no. 3 further contended that Shakera Jamal,

now deceased, was only allowed to stay in the Waqf estate which

did not confer any right upon her or her legal heirs to occupy

such estate and that the plaintiffs refused to vacate the Waqf

estate after the demise of Shakera Jamal, which compelled the

CEO and Board of Waqf to initiate a proceeding against the

plaintiffs before the Sub-Divisional Magistrate, Sadar, Alipore,

South 24 Parganas for removal of encroachment.

18. Upon hearing the learned advocates for the parties, the

Waqf Tribunal, in the impugned judgement, held that the

plaintiffs have not been able to establish their lawful authority in

support of any right to occupy the Waqf estate and as such, they

were held to be encroachers over the Waqf property.

19. The plaintiffs/petitioners submitted that the Waqf Tribunal

failed to consider that when in 1948, all the male members of the

waqif had left for Pakistan and began to reside there, the

plaintiffs' mother Shakera Jamal, now deceased, resided in the

Waqf property with her family, as daughter of the last Mutawalli

and the plaintiffs were born and brought up in the Waqf property.

20. The plaintiffs also contended that they helped their

mother Shakera Jamal, now deceased, to maintain the Waqf

Estate by collecting rents, paying Municipal Corporation taxes,

holding Urs and other religious festivals till 1990 when the

defendant no. 3 came back and was allowed to reside in a major

portion of the Waqf Estate.

21. The plaintiffs further contended that the defendant no. 3

managed to get his name recorded in the voter's list, obtained

Ration Card in his name and got his name recorded in the office

of the Board of Waqf as Mutawalli in respect of the Waqf

Property.

22. The plaintiffs further contended that their mother Shakera

Jamal, now deceased, managed the Waqf by holding Urs etc. and

paying Municipal Corporation taxes and Electricity bills over a

period and the plaintiffs were born and brought up in the Waqf

estate. As such, the plaintiffs cannot be held to be encroachers

upon the Waqf estate by the Waqf Tribunal in any manner

whatsoever.

23. It was contended on behalf of the defendant CEO and

Board of Waqf that the plaintiffs' suit was neither maintainable in

law nor on facts, only the male descendants were allowed to hold

the office of Mutawalli and Waqf Estate and that the plaintiffs

were staying in the Waqf estate without any legal authority in

this regard practically as encroachers.

24. Defendant no. 3 denied the allegation made by the

plaintiffs that he had returned to India after about 42 years and

he managed to procure proof of Indian citizenship and residence.

25. It was also contended by defendant no. 3 that after the

death of his father, Shriman Syed Amin Ahmed, he was

appointed as permanent Mutawalli by the Board of Waqf and he

had been managing the Waqf Estate since then.

26. It was further contended by defendant no. 3 that only

Mutawalli was allowed to reside in the Waqf estate and no

provision was made in the Waqf deed for the benefit of female

descendant.

27. It is not in dispute that the suit property is a Waqf

property. The property in question was dedicated to Waqf by one

Syed Shah Nazir Hossain Chisti in April 1927. It is nobody's case

that the Waqf was a Waqf alal aulad. It was a public Waqf. In the

recital of the deed of Waqf, the waqif clearly appointed his third

son Syed Shah Amin Ahmed as Mutawalli of the Waqf property.

The recital in the Waqf deed of also provided that after the first

Mutawalli so appointed, the youngest son of the waqif Syed Shah

Farid Ahmad Chisti was to be appointed as Mutawalli and in this

fashion it was desired to continue. Meaning thereby, the line of

descent of Mutawalliship was desired by the waqif to be in the

pedigree of his 3rd son, then 4th son and thereafter their legal

heirs.

28. It is admitted position that the mother of

petitioner/plaintiff namely Shakera Jamal i.e. the mother of the

petitioner/plaintiffs was the daughter of the first Mutawalli. The

second Mutawalli i.e. the 4th son of the waqif, after the death of

1st Mutawalli, was never appointed or acted as Mutawalli as

desired in the deed of Waqf. On the death of 1st Mutawalli Shri

Syed Shah Amin Ahmed one of his son i.e. defendant No.3 was

appointed Mutawalli in terms of the desire of waqif in the waqf

deed.

29. So far as the recitals in the deed of waqf are concerned,

there is as such, no specific bar on appointment of any female

descendant of the 3rd or 4th son of the waqif (dedicator). However,

there is nothing placed that the mother of the petitioners ever

approached the board for being appointed as Mutawalli. She was

never appointed Mutawalli of the waqf estate under reference. In

fact, the plaintiffs have admitted that their mother was never

appointed Mutawalli to the waqf estate, though, she acted as

such by doing various acts.

30. The plaintiffs also came up with a case that defendant no.

3 had gone to Pakistan and returned therefrom after several

years. The learned tribunal has held that no evidence was

adduced by the plaintiffs that defendant No. 3 ever went to

Pakistan and on his return, he managed to procure voter's

identity card, ration card etc. In absence of any convincing

evidence in this regard, the learned tribunal disbelieved the case

of the petitioner/plaintiffs as to the allegations of defendant no.3

travelling to Pakistan and settling there for a considerable period

and then his return to India. I find no reason to disagree with

such finding of the learned tribunal.

31. The learned tribunal also held, on the basis of evidence

adduced by the parties that defendant No. 3 was duly appointed

as Mutawalli in respect of the suit waqf estate by waqf board.

Appointment of defendant No.3 as Mutawalli of the suit waqf was

also not disputed by the plaintiffs rather it was admitted.

32. As noted earlier, the mother of the plaintiffs/petitioner

Shakera Jamal was the granddaughter of the waqif and daughter

of the first Mutawalli Shri Syed Shah Amin Ahmed and she used

to manage the waqf estate. As such, according to the

petitioners/plaintiffs, on the death of their mother, they inherited

a legal right to stay over the waqf property. The Chief Executive

Officer, at the behest of defendant no.3 initiated a proceeding

under Section 54 if the Waqf Act, 1995, for their removal from the

waqf estate as encroachers. Under such eventuality, the

petitioner/plaintiffs had to institute the suit which resulted in

the impugned order.

33. The object of the dedication of the properties in waqf as

declared in the deed, as per the desire of the waqif, specifies that

"for this reason in order to fulfil my desire I do make waqf of the

land and building mentioned above and described in the

schedule below, in the name of Khanka sharif (shrine) set up by

me and give up the possession of the same." Such declaration on

the part of the waqif clearly gives out that the property was

dedicated to waqf for khanka sharif only and for that purpose he

appointed a Mutawalli as well. There is nothing in the recitals of

the waqf deed that the property was dedicated for the benefit and

user of anyone other than the khanka sharif.

34. In consideration of such object of the waqf as declared in

the deed of waqf and also upon considering the evidence adduced

on behalf of the parties, the learned tribunal was of the view that

intention of the waqif was to be carried out without any flaw. The

learned tribunal also held that in the Waqf deed, no right of his

female descendant was reserved. The right to occupy the Waqf

estate was reserved with the Mutawalli from the male line of

descendant. On the basis of such finding, the tribunal also held

that the claim of the plaintiffs that they are holding the Waqf

estate as of right being the descendants of the waqif does not get

any support from the Waqf deed itself.

35. The learned tribunal, consequently, held that the

plaintiffs/petitioners were not able to establish their lawful

authority to occupy the Waqf estate. The tribunal also held that

the status of the petitioner/plaintiffs was no better than that of

encroachers over the Waqf property. Accordingly, the learned

tribunal decided the particular issue against the

plaintiffs/petitioners. I do not find any illegality or impropriety on

the part of the learned tribunal in arriving at such conclusion

and deciding the issue against the plaintiffs/petitioners.

36. By the impugned judgment, the learned tribunal also

held the suit filed on behalf of plaintiffs/petitioners as bad for

want of notice under Section 89 of the Waqf Act. In the cross

examination, PW1 had stated that she was not able to say if she

served notice under Section 89 of the Waqf Act upon the Board

prior to institution of the suit. Not document was produced to

establish that such notice was served, as required.

37. Section 89 of the Waqf Act, 1995 provides thus:

89. Notice of suits by parties against Board.--No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

38. No argument, at the time of hearing was made on behalf

of the petitioners on such point. Nothing has been placed before

this Court that such notice under Section 89 of the Act of 1995

was actually served upon the board before institution of the suit.

In that view of the facts, this Court finds no reason to interfere

the findings of the learned tribunal in this regard.

39. In the light of discussions made hereinbefore, I am of the

view that the petitioners have failed to establish that the waqif

left a desire to dedicate the properties in waqf reserving a right of

residence for any of his legal heirs or successors including the

petitioners/plaintiffs. The petitioners have also not been able to

dislodge the finding of the learned tribunal that the suit is bad for