26.06.2025 Court No.25 Sl. No.31 Mujahid CO 2147 of 2021 Nur Islam Khan & Ors.

Vs.

The Board of Wakf, W.B. & Ors.

Mrs. Ajeya Mitra, Mr. K.K. Chakrabarti, Mrs. Srijani Das …for the petitioners Mr. Sk. Md. Galib, Mr. Abu Siddique Mallik …for the Board of Wakf, W.B.

Mr. Kushal Chatterjee, Mr. Iftekar Munshi …for the opposite party nos.4 to 7

1. Present petition has been field challenging the order no.13 dated 18^th November, 2021 in OA No. 31 of 2018, whereby an application filed by the applicants/petitioners under Order 39 Rule 1 and 2 read with 151 of CPC was dismissed.

2. Briefly stated, the facts as averred in the application were that late Motiur Rahaman Khan and his legal heirs challenged the resolution dated 13^th March, 2018 duly confirmed on 26^th April, 2018. The challenge of the petitioners/applicants before the Tribunal was that opposite party nos. 4 to 7 could not have been appointed as Mutawalli as the Suit No.260/1970 filed by late Sahajan Khan, predecessor-in-interest of opposite party nos.4 to 7 was dismissed and the Title Appeal No.183/1971 was also dismissed.

3. The plea of the petitioners is that Board of Wakf appointed opposite party nos.4 to 7 as Mutawalli on the basis of ex parte inquiry report. The petitioners alleged that opposite party no.4, Alimgir Khan, committed illegality over Wakf property after his appointment as Mutawalli. The petitioners alleged that opposite party nos.4 to 7 took several steps to distribute Wakf property to many fishermen and other parties against a huge consideration.

4. The Tribunal after noting the submissions of the parties, inter alia, held that there is no provision for granting interim injunction or stay in OA proceedings. The Tribunal also inter alia stated that it is empowered to grant injunction in a suit and not in OA. It was further, inter alia, stated that the Tribunal is deemed to civil court while trying suit or executing decree or order. The Tribunal further, inter alia, held that if injunction is granted in this OA, it would be amounting to granting main relief without contesting hearing. The application was thus dismissed with cost of Rs.5000/-

5. Section 83 sub-section (5) of the Wakf Act, 1995, inter alia, provides that the Tribunal shall deem to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908, while trying the suit, or executing a decree or order. The question that whether the Section 83 sub-section (5) can have a restrictive interpretation to the extent that the Tribunal shall be considered to be a civil court only while trying a suit or executing a decree or order or it should have an expensive interpretation. Learned counsel for the petitioners submitted that this proposition came up for hearing before the High Court of Kerala in Abdul Rasheed vs. Venmanad Mohallu Hayathul Islam Committee, 2018 4 KHC 38, where it was inter alia held as under:-

“ 10. But, it is pertinent to note that as per Section 83(5) of the Act, “the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, while trying a suit, or executing a decree or order.” If the Waqf Tribunal is a deemed Civil Court, before which CPC as a whole is made applicable to procedure, necessarily it would follow that the Waqf Tribunal also shall have jurisdiction to review its own order, in exercise of the jurisdiction and power granted under Order XLVII Rule 1 of the CPC. Where the Waqf Tribunal is made equal to the Civil Court and CPC as a whole is made applicable to the procedure before it, the power of review is impliedly conferred and absence of special provision expressly granting power of review is insignificant. In the above view, the Waqf Tribunal is justified in passing the impugned order, in exercise of the jurisdiction and power conferred to it under Order XLVII Rule 1 of the CPC.

11. We are of the opinion that the legislature was so consci