Waqf Property Status Permanent, Mutawalli Leases Void Without Waqf Board Approval: Calcutta High Court

Therefore, the bench held that any agreements or understandings, whether written or oral, regarding the property are entirely unauthorized by law and void from the outset.

Brief Facts:

The Appellants, M/s. Hooghly Building and Investment Company Limited and another, filed an appeal in the High Court challenging the order passed by the Single Bench of the High Court which dismissed their writ petition. The Appellants sought a writ of mandamus to quash the notices issued by the Chief Executive Officer of the Board of Waqf, West Bengal under Section 54 of the Waqf Act, 1995.

The show cause notice alleged that the Appellant unlawfully occupied and taken possession of the Waqf property mentioned in the schedule which they had no legal right, title, or interest over. The Chief Executive Officer, exercising powers under Section 54, directed the Appellant to provide evidence supporting their claim, warning that failure to do so would result in an ex-parte decision. Despite filing a reply to the show cause notice in which they argued that the proceedings were without jurisdiction and that the Waqf tribunal could not entertain the dispute, the Appellant did not participate in the enquiry and instead filed the writ petition nearly a year later in January 2023.

The Single Bench dismissed the writ petition. During the appeal, several hearings and adjournments took place with an interim order preventing further action based on the impugned notice. The court heard the submissions from both sides and noted the prolonged litigation observing that the Waqf was the ultimate sufferer.

The court observed that the best course of action was to relegate the parties to the civil court to present their submissions in the pending applications. The trial court was directed to hear the application on 07.08.2022 and comply with the directions. The interim order was extended until the next hearing. The trial judge subsequently took up the application and passed an order deeming the Appellant's application under Order 7 Rule 11 CPC as not maintainable where it noted that there was no indication that the suit property was a Thika property.

The trial judge also addressed whether the Waqf tribunal had jurisdiction to decide the dispute and held that the suit land was a Waqf property dedicated by a registered deed and registered with the Board of Waqf, West Bengal. The court held that any dispute relating to Waqf property falls under the jurisdiction of the Waqf tribunal as per Sections 83 and 85 of the Waqf Act. Consequently, the court held that the plaint should be returned for presentation before the appropriate forum.

Observations by the HC:

The High Court noted that the property was initially leased out in 1895 for a period of 49 years and upon its expiry it was subsequently leased for a further period of 49 years in 1905 ending in 1954. Although the lease expired, the Appellants did not vacate the property.

Further, a settlement was reached between the parties. It was stated that for the benefit of the Waqf estate, to save cost, harassment, and loss of income, and for the advantage of the parties, a settlement was made. Sanction under Section 69 of the West Bengal Waqf Act was given by the court to such settlement in both suits in the 6th Subordinate Judges Court, Alipore. Decrees were passed by the court which disposed of the suits in terms of the settlement. The settlement provided that the lessors would execute and register in favor of the lessee a renewed lease for a further period of 49 years from the date of expiry of the old lease dated 26.12.1905 with no further renewal after 25.12.2003.

The lease deed also stated that notices of the title suit had been given under Section 70 of the West Bengal Waqf Act, 1934 to the Commissioner of Waqf and sanction under Section 53 was obtained for granting such a lease. Another condition was that the lessee could not allow others to use the godown or dwelling house for business purposes without the leave or license of the lessors. The lessee was prohibited from opening a liquor shop or installing a temple on the land. Thus, Chief Justice Sivagnanam noted that the Appellants or their predecessors recognized and accepted that the subject property is a Waqf property. He noted that it was too late for the Appellant to contend that the property is not Waqf property and should be governed by the provisions of the Thika Act.

Therefore, Chief Justice Sivagnanam noted that proceedings initiated under the Thika Act were merely an attempt to create multiplicity of proceedings drag on the matter and remain in possession of the property. He held that the Single Bench rightly noted Section 54 of the Waqf Act which authorizes the Chief Executive Officer to serve a notice on alleged encroachers if he receives a complaint or acts on his own motion regarding encroachment. The Chief Executive Officer can issue a notice calling upon the encroachers to show cause as to why an order requiring them to remove the encroachment should not be made and send a copy of the notice to the concerned mutawalli. He held that "Encroacher" is defined in Section 3(e) of the Waqf Act which includes anyone occupying Waqf property without legal authority whose lease has expired or been terminated.

Chief Justice Sivagnanam referred to the decision of the Supreme Court in Rashid Wali Beg Versus Farid Pindari and others which addressed whether a suit for permanent injunction in respect of a Waqf property was maintainable in a civil court. It was held that the Waqf tribunal has jurisdiction over any dispute, question or matter relating to a Waqf or Waqf property as per Sections 83 and 85 of the Waqf Act. The Supreme Court held that the tribunal is deemed a civil court with the power to issue temporary and permanent injunctions.

In Sayyed Ali and Others vs. Andhra Pradesh Waqf Board, the Supreme Court held that once a property is declared as Waqf, it remains so indefinitely. The grant of patta under the Inam Act does not nullify the Waqf status.

In Board of Waqf, West Bengal vs. Anis Fatma Begum, the Supreme Court held that all Waqf-related disputes should be adjudicated by the Waqf tribunal, not civil courts.

Further, Chief Justice Sivagnanam noted that Section 51 of the Waqf Act, amended by Act 27 of 2013, states that any lease of Waqf property without prior Board sanction is void. The lease extension until 25.12.2003 was sanctioned under Section 69 of the Bengal Waqf Act which confirmed the property's Waqf status. He held that any agreements between the appellants and third-party encroachers are unauthorized and void ab initio.

Therefore, the appeal was dismissed.

Case Title: M/S. HOOGHLY BUILDING & INVESTMENT COMPANY LIMITED AND ANOTHER VERSUS THE STATE OF WEST BENGAL AND OTHERS

Case Number: A.P.O.T NO. 177 OF 2023 (I.A. NO. G.A./01/2023) (I.A. NO. G.A./02/2024)

Date of Judgment: 31.07.2024

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