IMPORTANT POINT
The Wakf Act of 1995 does not debar the civil court from disposing of matters pending before the Act came into force, as per Section 7(5) of the Act.

JUDGMENT :

1. Being aggrieved by the order no. 144 dated 18.12.2019 passed by the learned Civil Judge (Junior Division), 2nd Court, Arambagh in title suit no. 120 of 1995, the present revisional application has been preferred.

2. The petitioner instituted the above-mentioned suit on 25th October, 1995 before the learned Civil Judge (Junior Division), 2nd Court, Arambagh for declaration and other consequential reliefs. On 13th August, 2019, the Chief Executive Officer, Board of Wakf, West Bengal preferred an application before the said court praying inter alia withdrawal of the suit with liberty to institute the same before the appropriate forum. Upon contested hearing, learned Civil Judge (Junior Division), 2nd Court, Arambagh by the impugned order was pleased to reject the same.

3. Learned counsel for the petitioner submits that it would be germane to mention that before the introduction of Wakf Act of 1995 which came into effect on 1st January, 1996 wakf property in West Bengal was governed under the Bengal Wakf Act 1934 wherein there was post of Commissioner of Wakfs which was later changed to Chief Executive Officer by the operation of the Wakf Act, 1995. Hence the Chief Executive officer, Board of Wakf, West Bengal is to sue and be sued on behalf of the board as per Regulations 38 of the West Bengal Wakf Regulations, 2008. He further submits that Section 7 of the Wakf Act 1995 provides that in the case of the list of Wakfs relating to any part of the state and published at any time within a period of one year immediately preceding the commencement of Wakf Act, 1995, such an application may be entertained by the Tribunal, within a period of one year of such commencement. He further contends that as per Section 1 of Wakf act 1954 it is very much clear that said act of 1954 extends to any state by way of notification but in the States of Bihar, Uttar Pradesh and West Bengal no such notification has yet been issued stating that the wakf act, 1954 shall have any application in West Bengal. In this context, he also relied upon a division bench judgment of this court reported in AIR 2016 Cal 351 in support of his contention that the Act of 1995 has created a bar under Sub-section (5) of Section 7 that the tribunal shall not have any jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced under Wakf Act, 1954 in a civil court under Sub-section (1) of Section 6 before the commencement of the Wakf Act or which is the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for decision or review arising out of such proceeding or appeal as the case may be.

4. In this context, he further submitted that the Chairperson, board of Wakf west Bengal had taken a resolution on 10.7.2019 that considering the fact that the progress of title suit no. 120 of 1995 is not at all satisfactory and also to the fact that at the relevant time of filing the suit there was no existence of wakf tribunal so after due deliberation and discussion it was unanimously resolved that title suit no. 120 of 1995 be withdrawn from the court of learned Civil Judge (Junior Division), 2nd Court, Arambagh. Accordingly, the withdrawal petition was made before the said trial court and further the learned trial court after considering the contentions made by the parties was pleased to reject the prayer for transfer of the said suit from the said court.

5. The same question earlier raised before this court in C.O. 3495 of 2015 but it is submitted on behalf of the petitioner that the observation made therein has no binding effect in the present suit as said matter relates to Section 7(5) of the Wakf Act, 1995 but the present application has been made under Order 23 Rule 1 of the Civil Procedure Code for withdrawal of the suit. The plaintiff being the dominus litus has every right to withdraw the suit, however learned court failed to appreciate the s