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2016 Supreme(Cal) 791
IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, J.
Khoja Sunnat Jamat & anr. - Petitioners
Versus
Board of Waqf, West Bengal & ors. - Respondents
W.P. No. 1330 of 2015
Decided On : 02-03-2016
For the Petitioners:Mr. Kishore Datta, Sr. Advocate, Mr. S.M. Akhtar and Ms. Pubali Sinha Chowdhury, Advocates.
For the Respondent:Mr. Joydip Kar, Sr. Advocate and Md. Ghalib, Mr. Alok Kr. Ghosh, Mr. Fazlul Haque and Md. Asadullah, Mr. Farukh J. Razzack, Sr. Advocate, Mr. Billwadal Bhattacharyya and Mr. Sayak Chakraborti, Advocates.
The jurisdiction of the Waqf Tribunal is restricted and not plenary in character to include a power to receive any suit or application pertaining to any situation not contemplated in the statute. Its jurisdiction has to be ascertained from the relevant sections of the Act.
Headnote:
WAQF - JURISDICTION OF WAKF TRIBUNAL - WRIT PETITION - MAINTAINABILITY - WAQF TRIBUNAL'S JURISDICTION IS RESTRICTED AND NOT PLENARY IN CHARACTER TO INCLUDE A POWER TO RECEIVE ANY SUIT OR APPLICATION PERTAINING TO ANY SITUATION NOT CONTEMPLATED IN THE STATUTE - ITS JURISDICTION HAS TO BE ASCERTAINED FROM SECTIONS 83, 84 AND 85 OF THE ACT WITH SECTIONS 6, 7, 32(3), 33(4), 35, 38(7), 39(3), 40(2), 40(4), 48(2), 52(4), 54(4), 64(4), 67(4), 67(6) (SECOND PROVISO), 69(3) (FIRST PROVISO), 69(5), 72(7) AND 73(3) THEREOF.
Fact of the Case:
The petitioners, a trust registered under the Bombay Public Trust Act, 1950, and one of its several managing trustees, filed a writ petition challenging the Board of Auqaf's decision to take over the management of the property in exercise of power conferred by section 65 of the Waqf Act, 1995 (hereafter the Act), to develop the property and to transfer the property on its development. The petitioners also challenged the development agreement executed by and between the Board and T.M. Construction Company, a firm of the fifth respondent, on the ground that virtually 50% of right, title and interest of the property have been transferred to the fifth respondent including the right to enjoy rents, profits, usufructs, etc. in utter contravention of the provisions of section 104A of the Act which expressly bars transfer of waqf property.
Finding of the Court:
The Court held that the Waqf Tribunal has jurisdiction in respect of those matters which are required by and under the Act to be determined by it. The expression "any dispute, question or other matter relating to a waqf or waqf property" in sections 83(1), 83(2) and 84 of the Act has not conferred the Waqf Tribunal with plenary and exclusive jurisdiction to deal with all disputes, questions and matters whatsoever and in whatever manner relating to a waqf or waqf property to the total exclusion of the civil court under section 9 of the Civil Procedure Code.
Issues: Whether the Waqf Tribunal has plenary and exclusive jurisdiction to deal with all disputes, questions and matters whatsoever and in whatever manner relating to a waqf or waqf property to the total exclusion of the civil court under section 9 of the Civil Procedure Code.
Ratio Decidendi: The Court held that the expression "any dispute, question or other matter relating to a waqf or waqf property" in sections 83(1), 83(2) and 84 of the Act has not conferred the Waqf Tribunal with plenary and exclusive jurisdiction to deal with all disputes, questions and matters whatsoever and in whatever manner relating to a waqf or waqf property to the total exclusion of the civil court under section 9 of the Civil Procedure Code. The jurisdiction of the Waqf Tribunal is restricted and not plenary in character to include a power to receive any suit or application pertaining to any situation not contemplated in the statute. Its jurisdiction has to be ascertained from sections 83, 84 and 85 of the Act with sections 6, 7, 32(3), 33(4), 35, 38(7), 39(3), 40(2), 40(4), 48(2), 52(4), 54(4), 64(4), 67(4), 67(6) (second proviso), 69(3) (first proviso), 69(5), 72(7) and 73(3) thereof.
Final Decision: The writ petition was dismissed and the petitioners were relegated to the Waqf Tribunal for having a decision on their grievances, in accordance with law, if so advised.
Dipankar Datta, J.
This writ petition, presented before this Court on 24th November, 2015, is at the instance of a trust registered under the Bombay Public Trust Act, 1950, and one of its several managing trustees.
2. The case run by the petitioners in the writ petition is that by virtue of a registered deed of gift (hiba-bil-ewaz) dated May 3, 1927 executed by her husband Hajee Sidick Jamal (since deceased), Jainub Bai Hajee Joosub (since deceased), a member of Khoja Sunnat community, became absolutely seized and possessed of or otherwise well and sufficiently entitled to the land, hereditaments and premises ad-measuring 12 cottahs, 13 chittacks and 13 square feet situate at and being premises No. 4C, Auckland Square, Calcutta, now known as 'Benjamin Moloise Square' (hereafter the property), and constructed a two-storied brick built building and one storied out-office on a portion thereof. Jainab Bai Hajee Joosub (hereafter the waqif) had executed a waqf deed on 20th February, 1938, in terms whereof she would be the first mutawalli during her life time. After her demise, her husband and son (Mohammed Sidick Jamal, since deceased) shall become the next mutawalli in succession and thereafter, mutawalli would be elected amongst the male and female beneficiaries' as per the procedure laid down in the waqf deed. If no successor survives, the property shall be administered by the committee, the first petitioner, for the benefit of the poor Mussalman members of the trust. There being no survivor in the family of the wakif at present, as per the waqf deed, the property should have been allowed to be administered by the first petitioner.
3. It is the grievance of the petitioners that on 21st March, 2006, the Board of Auqaf (hereafter the Board) having taken over the management of the property in exercise of power conferred by section 65 of the Waqf Act, 1995 (hereafter the Act) dehors the legislative mandate requiring exercise of powers by the Board in conformity with the directions of the waqif and the purposes of the waqf as well as in utter violation of the directions given by the waqif in the waqf deed relating to administration of the property by the first petitioner, decided on 20th February, 2014 to develop the property and to transfer the property on its development. For such purpose, on 8th April, 2014, a development agreement was executed by and between the Board and T.M. Construction Company, a firm of the fifth respondent. It is the further grievance of the petitioners that the Board has continued direct management of the property beyond the aggregate period of five years stipulated in sub-section (1) of section 65 of the Act and has utterly mismanaged the affairs and administration of the property. They are also aggrieved because by the impugned development agreement, virtually 50% of right, title and interest of the property have been transferred to the fifth respondent including the right to enjoy rents, profits, usufructs, etc. in utter contravention of the provisions of section 104A of the Act which expressly bars transfer of waqf property.
4. It has, accordingly, been prayed as follows:
"(a) A writ of or in the nature of Mandamus do issue commanding the respondent no. 1 to cancel, withdraw, rescind and/or revoke the said purported development agreement dated 8th April, 2014 executed between the respondent no. 1 and the respondent no. 5 for development of the said waqf property on joint venture basis forthwith and to act in accordance with law;
(b) A writ of or in the nature of Mandamus do issue commanding the respondent no. 1 to appoint the petitioner no. 1 as the Mutawalli in respect of the Jainub Bai Hajee Joosub Waqf Estate situate at and being the said premises No. 4C, Auckland Square (now known as premises No. 4C, Benjamin Moloise Square), Kolkata - 700 017 forthwith and to act in accordance with law;
(c) A writ of or in the nature of Mandamus do issue commanding the respondent no. 1 to deliver to the petitio
