JUDGMENT :

(Moushumi Bhattacharya, J.)

1. The petitioners seek quashing of a Notice issued by the respondent no. 2 Waqf Board under section 54 of The Waqf Act, 1995. The impugned Notice dated 17.3.2022 seeks removal of an alleged encroachment made by the petitioners. The Board issued a second Notice dated 18.11.2022 also for removal of the encroachment. The petitioners filed a supplementary affidavit against a Notice dated 27.4.2023 issued by the Board under section 54 of the Act.

2. The petitioners claim to be in possession of the property, which is a subject matter of the impugned notices, for more than 100 years by virtue of a lease granted in favour of the petitioners. The petitioners say that the petitioners made several constructions on the property under the said lease. The grievance of the petitioners arises from the impugned notices issued under section 54 of the Act and learned counsel appearing for the petitioners submits that a Suit for eviction filed by the Mutawalli is pending before the Civil Court at Sealdah and the petitioner no. 1 is contesting the said Suit.

3. Counsel submits that the principal ground taken in the application filed by the petitioner no. 1 for dismissal of the Suit is that the Suit is barred by the Kolkata Thika Tenancy Act, 2001. Counsel submits that since proceedings are also pending before the learned Thika Controller, the Board could not have issued the impugned notices under section 54 of the Act. Counsel relies on several sections of the Thika Tenancy Act to urge that the Waqf Tribunal does not have jurisdiction to embark on the issue of eviction.

4. Learned counsel appearing for the Waqf Board/Board of Auqaf, West Bengal takes an objection to the maintainability of the writ petition. Counsel submits that the property which is the subject matter of challenge before the Court is admittedly Waqf property under the Nawab Zaibunessa Begum Waqf Estate. Counsel submits that the petitioner no. 1 is an encroacher over the Waqf property as there has not been any renewal of the lease and hence the Board was justified in issuing impugned notices under section 54 of the Act asking the petitioners to show cause as to why an order should not be passed requiring the petitioners to remove the said encroachment. Counsel relies on section 83 of the Act to urge that the Waqf Tribunal constituted under the said provision is empowered to determine any dispute or question relating to a Waqf or Waqf property including eviction of tenants or determination of rights and obligations of the lessor/lessee of the Waqf property. It is submitted that the Waqf Tribunal is the proper forum which should adjudicate on the issue and this Court hence does not have jurisdiction to entertain the writ petition.

5. Learned counsel appearing for the respondent no. 5 Mutawalli submits that the Waqf Board has jurisdiction to issue the impugned notices under section 54 of the Act and the Mutawalli can also take action against a tenant/lessee if the lessee has become an encroacher under section 3(ee) of the Act, as amended in 2013. Counsel submits that the petitioners have an existing alternative remedy in the form of defending the suit filed by the Mutawalli. Counsel submits that the Kolkata Municipal Corporation (KMC) should have been impleaded in the writ petition as a necessary party and should be called upon to produce the records in relation to the property which in turn would show that the petitioners do not have any title to the said property.

6. The undisputed facts which are germane for deciding the present writ petition are as follows. The Waqf in question was created in 1885-1895 in respect of 32 Bighas of land. The lease of 49 years was executed on 26.12.1905 for approximately 4 Bighas of land at Chitpur, Kolkata. The lease was extended on 26.12.1959 for another 49 years. There was no further renewal of the lease therafter. The petitioners approached the Thika Controller contending that the petitioner no. 1 is a thika