IMPORTANT POINT
The Waqf Act empowers the Chief Executive Officer to address encroachments on Waqf properties, with exclusive jurisdiction for related disputes resting with Waqf tribunals.

JUDGMENT :

T.S. Sivagnanam, C.J.

1. We have heard Mr. Utpal Bose, Learned Senior Advocate assisted by Mr. Abir lal Chakraborty, Mr. Sheikh Afazuddin and Mrs. Sonali Ghosh Basu, advocates appearing for the appellant and Md. Salauddin, assisted by Mr. Md. Ahsanuzzaman and Md. Raziuddin advocates appearing for the Board of Waqf and Mr. Rauf Rahim, Learned Senior Advocate assisted by Mr. Aliasghar Rahim, Ms. Ankita Chowdhury, Mr. Ali Rahim, Mr. Tanmay Mukherjee and Ms. Manisha Das, advocates appearing for the Respondent No. 5.

2. The unsuccessful writ petitioners M/s. Hooghly Building and Investment Company Limited and another are the appellants in this appeal being aggrieved by the order passed by the Learned Single Bench dated 09.06.2023 dismissing the writ petition filed by them in WPO No. 25 of 2023. The appellant sought for issuance of a writ of mandamus to quash the notices dated 17.03.2022 and 18.03.2022 issued by the Chief Executive Officer, Board of Auqaf, West Bengal under Section 54 of the Waqf Act, 1995 (hereinafter referred to as the Act) and the consequential enquiry notice issued by the Chief Executive Officer dated 18.11.2022.

3. In the show cause notice, it was stated that it has been reported by the Syed Asghar Hussain Ismail, Mutawali in respect of Nawab Zaibunnissa Begum’s estate, the appellant without any authority of law occupied and thereby illegally taken possession of the Waqf property mentioned in the schedule to the notice wherein the appellants have no legal right, title and interest over the same. It was stated that in exercise of the powers conferred on the Chief Executive Officer under Section 54 of the Act, the appellant was directed to show cause with evidence in support of their claim by 25.04.2022 as to why an order requiring them to remove the encroachment should not be made, in the event of their failure to show cause on the scheduled date, the matter may be decided ex-parte without further reference to the appellant. The enquiry notice dated 18.11.2022 fixed date of enquiry on 29.11.2022. It is an admitted position that on receipt of the show cause notice dated 17.03.2022, the appellant through their advocate submitted a reply dated 21.04.2022 among other things contending that the proceedings initiated by the Chief Executive Officer under the provisions of the Act is without jurisdiction and the Waqf tribunal cannot entertain the dispute. The appellant further stated that the West Bengal Thika Tenancy Act, 2001 (Thika Act) is primarily for vesting of the Thika property in the state upon adjudication of right of a Thika tenant and in the subject premises, a civil suit is pending before the appropriate civil court for eviction of a tenant and more particularly, Thika proceeding is pending before the Thika controller and therefore the Waqf Board and/or the Waqf tribunal has no jurisdiction to decide the dispute. Therefore, they objected to the notice issued under Section 54 of the Act on the ground that there is no jurisdiction to issue such notice. Though the appellant had filed their reply to the show cause notice did not participate in the enquiry but after nearly a year filed the writ petition during January 2023.

4. The learned Single Bench by the impugned order has dismissed the writ petition and aggrieved by the same, the present appeal has been preferred. The appeal was heard on several dates and was adjourned from time to time and there was an interim order based on an undertaking given by the learned Senior Counsel for the Waqf Board that they will not proceed further pursuant to the notice impugned in the writ petition issued under Section 54 of the Act. When the appeal was heard on 31.07.2023, the court heard the submissions of the learned advocates for the parties and found that there has been prolonged litigation in the matter and the ultimate sufferer is the Waqf. It was noted that according to the settlement arrived at between the parties on and after 2003, the appellant had no right