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CALCUTTA HIGH COURT
Biswaroop Chowdhury, J.
Golam Mustafa Haidari and Anr. – Petitioners
versus
Boad of Wakfs and Anr. – Opp. Parties
C.O. 3733 of 2017
Decided on 11.6.2025
For the Petitioners:Dr. Chapales Bandyopadhyay, Ms. Anandamayee Dutta and Ms. Gargy Basu, Advocates
For the Board of Wakf/Respondent No.1:Mr. Azizul Islam, Mr. SK. Md. Galib and Mr. Abu Siddique Mallick, Advocates
For the Opposite Party No.2:Mr. Sumit Kumar Ray and Mr. Munshi Ashiq Elahi, Advocates
IMPORTANT POINTS
(1) Waqf may be created orally without Waqf Deed.
(2) Alienation of Waqf property without sanction of Board is invalid but it can be regularized by post facto approval.
Headnote:
(A) Waqf Act, 1995 – Sections 36 and 37 – Creation of Waqf property – Although Waqf may be created orally without Waqf Deed but at the time of registration of such waqfs under Section 36 of Waqf Act, 1995 Board of Waqf should be cautious before ordering such registration and shall consider all relevant particulars – In the event of dispute or objection permit parties to adduce both oral and documentary evidence and examine witness acquainted with facts and thereafter arrive at a conclusion as to whether property is a Waqf property. (Para 8)
(B) Waqf Act, 1995 – Section 51 – Alienation of Waqf property – Alienation of Waqf property without sanction of Board is invalid – In the event it is found that no sanction was obtained for sale of Waqf property Board shall consider if transfer can be regularized by treating it as a limited transfer of lease in accordance with law – Board shall also consider under Section 51 of Wakf Act that sales if made without sanction of Board whether can be regularized by post facto approval and by treating it as lease in this case and petitioners may make representation in this regard. (Para 8)
Result: Revisional Application allowed in part.
JUDGMENT
Biswaroop Chowdhury, J.—The petitioner before this Court are applicants before the Waqf Tribunal West Bengal under the Waqf Act 1995, and is aggrieved by the Judgment dated 04-09-2017 passed by Learned Waqf Tribunal in OA 16 of 2010.
The case of the petitioner before the Learned Waqf Tribunal may be summed up thus:
1. That the petitioners are the owners of 16 decimals of Land in plot No. 3605, 11 decimals of land in plot No. 3596 and 2.5 decimals of land in plot No. 3631 of Mouza-Dhitora under Murarai Police Station.
2. The origin of these lands comprised in three plots above-mentioned have been found in C.S. Khaitan No-1407 published in the name of Mohar Sheikh and also from Nakpuri Bibi published under Khaitan No. 1341 In C.S. plot No. 3596 Nak puri Bibi was recorded for 11 decimals in 16 annas share in the said khaitian No-1341 and it has been mentioned that Mohar Sheikh and others are the oweners on the northern boundary of the said plot. Similarly under khatian No. 1407 recording has been made in respect of Mohar Sheikh for a specified share and under the said Khatian Plot No. 3605 for 16 decimals in 16 annas and 3631 for 5 decimals in 16 annas have been recorded. From the above – mentioned two C.S. Khatians being No. 1341 and 1407 it does not appear that the said Khatians contained any Waqf land, rather the said Nakpuri Bibi and Mohar Sheikh have been shown to have possessed specified shares in the said Khatian and the plot recorded there under.
3. From Nakpuri Bibi her interest in Plot No. 3596 stood devolved upon Rajab Ali, Son of Umed Sheikh and Sayeed Hossain, son of Jellal Bux were recorded in Khatian No. 1341 plot No-3596 was recorded in the name of the said Rajab and others for 11 decimals of land in 16 annas share but in Column No. 23 it has been shown to be in the possession of Ashraf Khan son of Yakub Sheikh as Mutwalli of Mosque.
4. RS. Plot No. 3596 having an area of 11 decimals have been recorded in the C. R. Khatian Nos 2802/1 and 1998/1 out of total 11 decimals. Golam Mustafa Haidari got 6 decimals in his Khatian No. 2802/1 and Golam Mohammad Haidari in his Khatian No. 1998/1 has got 5 decimals of land. Similarly plot No. (CS) 3605 having an area of 16 decimals of land was recorded in the L.R. Record of Rights by amalgamation with a bigger plot being No. 3618. Plot No. 3618 has been recorded in the name of Golam Mohammed Haidari under Khatian No. 1998/1 C.S. Plot No. 3631 having an area of 5 decimals have been recorded in the LR. Record of Rights in the name of Golam Mustafa Haidari under Khatian No. 2802/01 having land area of 5 decimals.
5. Only in R.S. Khatian No. 1341 against Plot No. 3596 and Plot No. 3605 under Khatian No. 1407 in 23rd Column a name has been shown to be Mutwalli although original plot reflects the name of the owners.
6. On the basis of aforesaid inference Column No. 23rd in respect of said two plots being plot No- 3596 under Khatian No-1341 and Plot No- 3605 under Khatian No. 1407, the Board of Wakfs has treated the said property as Wakf.
7. Plot No-3605 merged with Plot No-3618 and the Block Land and Land Reforms Officer has also issued a letter being Memo No. 22 dated 4th January 2005 addressed to the Officer-in-charge Murari Police Station stating that the Plot No-3605 has been merged with Plot No- 3618 which is secular plot and the present owners are Golam Mohammed Haidari and Golam Mustafa Haidari under their L. R. Khatian No. 1998/1 and 2802/1 respectively.
8. Ultimately the matter was taken up by the Chief Executive Officer for hearing and he made a recommendation which was placed before the Board for confirmation and was confirmed in its meeting held on 25th February 2010. In the impugned resolution the Chief Executive Officer has referred to about a Mosque in respect of the Plots under consideration which does not relate to the said Mosque. The Chief Executive Officer held that he verified the record and found that plot No-3605 and 3631 were Waqf. In support of his
