The Wakf Board cannot proceed under section 54a of the Bengal Wakf Act, 1934, to evict a tenant who is already in possession of the property, even if the tenant's right to possession has expired.

BHASKAR BHATTACHARYA, J.

( 1 ) BY this writ application, the petitioners have challenged an order of eviction passed by the Board of Wakfs since affirmed by the Appellate Authority in exercise of power conferred under section 54a of the Bengal Wakf Act, 1934 ("act" ).

( 2 ) THE facts relevant for disposal of this writ application are stated below : the property involved is a part of the estate of the wakf created by Prince golam Mohammed, a son of Tipu Sultan. By a registered deed of lease dated 29th June, 1909, the then Mutwallis of the estate leased out the property to one joseph Issac Joseph Hyam for a period of 75 years w. e. f. 1st July, 1909. M/s. Shaw Wallace and Co. , the petitioner No. 1 herein was a sub-lessee under the aforesaid lessee. After the lease of 75 years expired w. e. f. 1st July, 1984, the wakf Estate, the lessor, had not taken any step for recovery of possession from the lessee or sub-lessee but subsequently the said Shaw Wallace and Co. negotiated with Md. Mobinuddin, Trustee-Chairman, Mr. Nazim Ali Mirza and Mr. Asif ali Shah, the then Mutwallis of the estate for execution of a fresh lease of the property for a period of 31 years and a draft lease-deed was prepared. However, the Wakf Board did not give consent to the Mutwallis for creation of such lease. The Shaw Wallace and Co. had filed a suit being No. 795 of 1984 in the Original side of this High Court for a declaration that the company was a monthly tenant in respect of the disputed property. At this stage, the Wakf Board intervened and initiated proceedings under section 54a of the Act for eviction of the petitioners.

( 3 ) THE petitioners contested the proceedings before the Wakf Board and ultimately the Wakf Board passed an order for eviction of the petitioners on the ground that on the expiry of lease of 75 years the petitioners not having made any offer of renewal of lease before the Board of Wakfs, they were not entitled to remain in occupation of the property.

( 4 ) BEING dissatisfied, the petitioner preferred an appeal before the Judicial secretary in terms of section 54a (5) of the Act, but the said Appellate Authority by order dated July 17, 1996 dismissed the appeal holding that the petitioners had no right to remain in possession after the expiry of the lease of 75 years.

( 5 ) SUBSEQUENTLY, the petitioners preferred an application for review before the Appellate Authority but the same also ended in dismissal with the order dated August 20, 1996.

( 6 ) BY this writ application under Article 226 of the Constitution of India, the petitioners have challenged the aforesaid order passed by the Board of wakfs which has since been affirmed by the Appellate Authority.

( 7 ) MR. Sarkar, the learned Senior Counsel appearing on behalf of the petitioners, has challenged the orders impugned on twofold ground.

( 8 ) FIRST, Mr. Sarkar contends that section 54a of the Act is not attracted in the present case in view of the fact that the petitioners did not take possession of the property with the aid of the agreement of tenancy admittedly entered into after the expiry of lease of 75 years. According to Mr. Sarkar, section 54a applies only to a case where a transferee has taken possession by dint of transfer which is prohibited in terms of section 53 of the Act. Mr. Sarkar submits that even if the subsequent agreement for tenancy is treated to be void, the petitioner being all along in possession of the property by virtue of earlier lease since expired, the Wakf Board could not pass any order for eviction in terms of section 54a of the Act.

( 9 ) SECONDLY, Mr. Sarkar contends that even on merit, the petitioners are entitled to retain possession by exercising right under section 53a of Transfer of Property Act by, virtue of their right under the agreement of tenancy. Mr. Sarkar further contends that at the relevant point of time when the agreement of tenancy was entered into after the expiry of lease of 75 years, there was no bar of creation of

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