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1976 DIGILAW 333 (CAL)

Commissioner of Wakfs v. Mohommed Ariff

1976-09-17

AMARENDRA NATH SEN, BIMAL CHANDRA BASAK

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JUDGMENT The judgment of the Court was as follows :–– Sen, J.: This appeal arises out of an order passed by the learned Judge on the 31st of May, 1976 according sanction to the Mutwalli to execute a lease of premises No. 17, Gariahat Road on the terms and conditions mentioned in the agreement for lease which was placed before the court with the modifications introduced by the Court in the said lease for a period of 51 years in the first instance with an option for renewal in favour of one Shib Kumar Banerjee. The Commissioner of Wakfs had objected to the granting of the said lease and the Commissioner of Wakfs had preferred this appeal against the said order. 2. The Wakf is a public Wakf and a suit for administration of the Wakf property was instituted in 1942, being Suit No. 1442 of 1942. It appears that another suit was also instituted in 1942 which is Suit no. 1488 of 1942. By the final decree passed in the said two suits a scheme was framed by this Court for the administration of the said Wakf in 1944. Clause 7 of the said scheme provides: ''There is general liberty to apply and all matters arising out of or relating to the scheme and the administration of the Wakf will be dealt with by the Judges in chambers". Relying on this particular clause an application was made on behalf of Mohammed Ariff as the sole Mutwalli of the Wakf Estate for an order that permission be granted to the said Mutwalli to execute lease in respect of premises No. 17, Gariahat Road, in favour of Shib Kumar Banerjee on the terms and conditions contained in the agreement for lease a copy whereof was annexed to the petition. The order was passed by the learned Judge in chambers on the said application. 3. Appearing on behalf of the appellant Mr. Chatterji has submitted before us that the said clause in the scheme granting general liberty to apply does not empower or authorize the Court to pass any order granting authority or permission to the Mutwalli to execute a lease in favour of anybody. 4. Mr. 3. Appearing on behalf of the appellant Mr. Chatterji has submitted before us that the said clause in the scheme granting general liberty to apply does not empower or authorize the Court to pass any order granting authority or permission to the Mutwalli to execute a lease in favour of anybody. 4. Mr. Chatterji has next contended that in view of the provisions contained in S. 53 of the Bengal Wakf Act, 1934 as amended by the Bengal Wakf (Amendment) Act of 1973 the Board is the only authority competent to accord sanction and the Court has, therefore, no jurisdiction to accord such sanction. Mr. Chatterji in this connection has also drawn our attention to the order passed by the trial Judge on the 11th March, 1976 by which the Court directed the applicant to make an application to the Board for its approval and the Court further directed that the Board would make a report to the Court before the next hearing date. Mr. Chatterji has argued that in deference to the order of the Court the Board has made a report and in the report the Board has pointed out various difficulties about the granting of the proposed lease in favour of Shib Kumar Banerjee and the Board in its report has also made various suggestions. Mr. Chatterji has argued that in any event in view of the refusal of the Board to accord its sanction to the proposed lease in favour of Shib Kumar Banerjee the Court was not justified in passing the order. 5. On behalf of the respondent Mutwalli it has been contended by Mr. Kapoor that under the liberty-to-apply-clause in the scheme the Court retains jurisdiction and the Court is the authority competent to accord the necessary sanction for granting of the lease. Mr. Kapoor has argued that S. 53 of the Bengal Wakf Act (hereinafter referred to as to the Act) does not have any application when the Wakf property is being administered by the Court. It is Mr. Kapoor's contention that in such a case there will be dual control over the affairs of the Wakf estates. Mr. Kapoor in this connection has drawn our attention to the judgment of the Acting Chief Justice passed in this suit on the 12th June 1944 and also the judgment in these two suits delivered by Mailick, J. on the 29th February, 1960. 6. Mr. Mr. Kapoor in this connection has drawn our attention to the judgment of the Acting Chief Justice passed in this suit on the 12th June 1944 and also the judgment in these two suits delivered by Mailick, J. on the 29th February, 1960. 6. Mr. Kapoor has argued that by the said order the learned Judge has only granted liberty to the Mutwalli to execute the lease in favour of Shib Kumar Banerjee on the terms and conditions mentioned in the order and he has not given any direction to the Mutwalli to execute the lease. It is his contention that the Mutwalli may obtain necessary sanction from the Board if such sanction is necessary before executing the lease in favour of Shib Kumar Banerjee and in that view of the matter it cannot be said that the order of the learned trial Judge is not proper or illegal. 7. In the view that we have taken we do not consider it necessary in the present appeal to decide whether under the liberty to apply clause in the scheme the Court still retains its jurisdiction to accord such sanction to the Mutwalli for execution of the lease. 8. Section 53 of the Bengal Wakf Act reads as follows :–– "53(1) Except as provided in sub-section (2), no transfer of any immoveable property of Wakf a by way of sale, gift, mortgage or exchange or by way of lease or tenancy of any kind shall be valid without the previous sanction of the Board and the Board shall, while according such sanction, see that such transfer is intended for legal necessity. (2) Where such transfer is made under an express power conferred by the wakf deed the previous sanction of the Board shall not be necessary, but a notice of the proposed transfer in such form and containing such particulars as may be prescribed by the Board shall be sent by the Mutwalli to the Commissioner one month before the transfer is made". In the instant case, there is no express power conferred by the wakf deed on the Mutwalli to effect any such transfer. 9. Therefore, by virtue of the provisions contained in S. 53(1) of the Act, it is the mandatory requirement of the statute that sanction of the Board must be obtained before the lease in question can be executed. In the instant case, there is no express power conferred by the wakf deed on the Mutwalli to effect any such transfer. 9. Therefore, by virtue of the provisions contained in S. 53(1) of the Act, it is the mandatory requirement of the statute that sanction of the Board must be obtained before the lease in question can be executed. In the instant case, the Board has refused to grant the necessary sanction. The Board has given its reasons for its refusal to accord its sanction to the proposed lease. In our view, the reasons indicated by the Board in its report to the court have force. In any event, as the Board has refused to accord its sanction to the proposed lease, the court was clearly not justified in passing the order according its sanction to the proposed lease in favour of Shih Kumar Banerjee in view of the mandatory provision contained in S. 53(1) of the Act. In that view of the matter, this appeal must succeed and the order of the learned trial judge must be set aside. 10. The appeal is, therefore, allowed. The order of the learned trial Judge is set aside. We, however, wish to make it clear that the setting aside of the order of the learned Judge by this Court will not in any way prevent the Mutwalli from taking further action in the matter in accordance with law and the Mutwalli, if he is so advised, will be entitled to take such action as he may be entitled in law including the making of fresh applications before the Board and before the Court. Any application, if made by the Mutwalli, will naturally be decided on its merits. If it becomes necessary, the question of Court's power and jurisdiction to accord such sanction may be agitated and decided in such proceedings. Costs of the parties including the fees actually paid to Counsel will come out of the wakf estate. Certified for two Counsel. Basak, J. I agree.