SHANTA BASU v. STATE OF WEST BENGAL — 1989 DIGILAW 202 (CAL)

M. R. MALLICK, J. ( 1 ) THE petitioners claim to be the owners of 10/3, Talbagan Lane, Calcutta having purchased the same from one Saila Bala Mitra of 37, Malanga Lane, Calcutta by a registered Deed of Sale dated 19. 6. 1984. They have moved this court under its writ jurisdiction challenging the registration of the Wakf by the Commissioner of Wakf, West Bengal, Respondent No. 3 in respect of the suit property by treating the lands within the premises No. 10/3, Talbagan Lane as Wakf (hereinafter referred to as the said property ). ( 2 ) IT is contended that the said property was never Wakf property and has all along been dealt with as a secular properties of the recorded of the suit premises including the petitioners vendor that the said was never used as a wakf property, that the Land Acquisition Collector treating the present petitioners as the owners of the property has started acquisition proceeding of the portion of the said property by issuing a Notification under section 4 of the Land Acquisition Act and has issued a declaration under section 6 of the said Act to which present petitioners on receiving the notice have raised necessary objection and thus the Land Acquisition Collector has treated the suit property to be the secular property and has issued the notice upon the present petitioners treating them as a registered owners. It is also submitted that it recently came to the knowledge of the petitioners that the said land has been allegedly treated as Wakf property by the Commissioner of wakfs West Bengal and on obtaining the necessary certified copies from the office of the Commissioner of Wakfs in respect of the premises No. 10/3, Talbagan Lane, Calcutta, it is gathered that Md. Safi of 56c, Dilkhusa Street, Calcutta-17 made an application for enrolment of his name under section 44 of the Bengal Wakfs Act, 1934 in respect of the land of plot No. 10/3, Talbagan Lane, Calcutta before the Commissioner of Wakfs, Calcutta on 15. 2. 1972, that the said application was illegal and malafide as the said lands were never a wakf property at any point of time, that the Commissioner of wakf being the Respondent No. 3 had no jurisdiction and authority to entertain such application for enrolment dated 15. 2. 2. 1972, that the said application was illegal and malafide as the said lands were never a wakf property at any point of time, that the Commissioner of wakf being the Respondent No. 3 had no jurisdiction and authority to entertain such application for enrolment dated 15. 2. 1972 which is marked as annexure 'c' to the writ petition, that it is further gathered that the Commissioner of Wakfs issued a general notice dated 27. 7. 72 inviting objections from the general public within 15 days from the said notice against the enrolment of the alleged wakf property, that the said notice was illegal and malafide,. that no notice had been served upon the petitioners who are the owners of the plot and the petitioners had no knowledge of the said notice, that the said notice had not been duly served as alleged and the Nazir of Board of Wakfs, West Bengal made a false report regarding the service of notice in collusion with the said Md. Safi and that the Commissioner of Wakf without holding any enquiry whatsoever illegally enrolled the said Wakf in premises No. 10/3, Talbagan Lane which was never a wakf property and the petitioner being aggrieved by such illegal and arbitrary action of the Commissioner of Wakf has filed this writ petition praying for commanding the Respondents to cancel and/or to withdraw the purported enquiry by the Commissioner of Wakfs, purported general notice dated 27. 7. 72 and the purported decision of the Commissioner of Wakfs by treating the land of plot No. 10/3, Talbagan Lane, Calcutta as Wakf property and taking any and/or further steps or steps on the basis of the purported order and for some other consequential reliefs. ( 3 ) THE Respondent No. 3 has contested the writ petition by filing an affidavit-in-opposition through Md. Abul Khayer claiming to be the Law Inspector in the office of the Commissioner of Wakfs. ( 3 ) THE Respondent No. 3 has contested the writ petition by filing an affidavit-in-opposition through Md. Abul Khayer claiming to be the Law Inspector in the office of the Commissioner of Wakfs. In the said affidavit-in-opposition, it is contended that the premises No. 10/3, Talbagan Lane, was formerly a large burial ground and was used for purpose of burial by the general muslim public, that subsequently the burials were stopped on the said lands and only the pucca graves remained, together with the grave (Mazor) of one Syed Pir Mungay Shah Chisty, a revered muslim saint, that the said premises was recorded as a burial ground in the smart' map and in Scheme VIII map of the Calcutta Improvement Trust published in 1918, that besides being recorded as a burial ground in the records the Calcutta Corporation over the years by long and continuous use of the lands as a burial ground and as a place of worship by devotees of Syed Pir Mungay Shah Chisty, the premises in question acquired a wakf character especially as the recorded owners did not exercise any rights of ownership over the said property. That in 1949 one Maulana Abdul Gaffar Almadani who was then acting as Mutwalli of the Pirottar Wakf Estate, a one Md. Safi who acted as Mutwalli from 1949 to 1976 when he relinquished his mutwalliship in favour of his nephew, Sri Kutubuddin that the petitioners even though purchased property in 1954 could possession of the property owing to strong opposition from the of the general muslim public who was in possession thereof, that the action taken by the Respondent No. 3 Commissioner of Wakfs for enrolment of the wakf property on the basis of the application of Md. Safi is not in the least illegal and that the general notice was duly served on the premises 3rd August 1972 and as no objection was raised the Commissioner on holding the necessary enquiry held the property to be a wakf by user and such decision of the Commissioner of Wakf is final unless set aside by a competent court of law. ( 4 ) DURING the pendency of this writ petition, B. C. Basak, J. the necessary parties, passed an order dated 10. 7. ( 4 ) DURING the pendency of this writ petition, B. C. Basak, J. the necessary parties, passed an order dated 10. 7. 81 that as some disputes have been raised on the question whether the suit property in Wakf property was not, it is necessary that the said question of Wakf decided by the Wakf Commissioner and such dispute should be to the Wakf Commissioner for decision under section 46a of the Wakf Act and that the Commissioner of Wakf will take such makes such inspection as things fit and upon giving notice to the persons interested and to submit a report. In pursuance to this order the Commissioner of Wakf held necessary enquiry giving opportunity of heal the parties concerned to which the present petitioners also participated through their learned Advocates and the report submitted by the Commissioner of Wakf Md. Alauddin dated 6. 11. 1981 has been produced on behalf of the petitioners before this Court by a supplementary dated 31st May, 1988. From the said report it is found that the Commissioner of Wakf making the enquiry as directed by B. C. Basak, J. the disputed land was Wakf being a Wakf by user. At the time hearing, however, Mr. Pal appearing for the writ petitioner has submitted the purpose of decision of this case, whether the enrolment made by the Commissioner of Wakf on the basis of the application of Md. Safi (Mazor) is illegal and ultra vires or not the order passed by the Commissioner of Wakfs in terms of the order of the court under section 46a of the Bengal Wakf Act has no relevance. He submits that the writ petition has to be decided without looking into that order. ( 5 ) ON the contrary, Mr. Safi (Mazor) is illegal and ultra vires or not the order passed by the Commissioner of Wakfs in terms of the order of the court under section 46a of the Bengal Wakf Act has no relevance. He submits that the writ petition has to be decided without looking into that order. ( 5 ) ON the contrary, Mr. Altamas Kabir, appearing for the Commissioner of Wakfs has urged that the petitioner submitted the order passed by B. C. Basak, J. referring the matter to the Commissioner of Wakfs under section 46a of the Bengal Wakf Act and not having challenged such order by filing any appeal against such order and also having participated in the enquiry held by the Commissioner of Wakfs under section 46a cannot now turn round and say that the said report of the Commissioner has nothing to do in deciding this writ petition filed by the present writ petitioners for quashing the enrolment of the wakf made by the Commissioner of Wakf. It is urged by him that the petitioner challenged in the writ petition that as no general notice was served upon them and as they did not have any opportunity to raise any objection to the enrolment proceeding held by the Commissioner of Wakfs under section 46a of the said Act and that no enquiry was held by the Commissioner, B. C. Basak, J. referred the matter to the Commissioner of Wakfs u/s. 46a of the Bengal Wakf Act, that the petitioner had full opportunity of hearing before the Commissioner and the Commissioner has passed a decision holding the property to be wakf by user and therefore the petitioner has now the only remedy to file an appropriate civil suit in a court of law for setting aside such a decision of to Commissioner of Wakf made under section 46a of the said Act and to writ petition has now become infructuous and must be dismissed. ( 6 ) ON hearing the submissions made by both the parties, I am of the view that the contention of Mr. Kabir has strong force. The writ court has got no jurisdiction to decide the disputed question of title as to whether the property being the premises No. 10/3, Talbagan Lane, Calcutta is a wakf property or not or whether the petitioner is the absolute owner thereof. Mr. Kabir has strong force. The writ court has got no jurisdiction to decide the disputed question of title as to whether the property being the premises No. 10/3, Talbagan Lane, Calcutta is a wakf property or not or whether the petitioner is the absolute owner thereof. Mr. Pal also concedes that this court in its writ jurisdiction cannot decided this disputed title. But the urges that if the Commissioner has no jurisdiction to entertain the application of Md. Safi in 1972 to enroll the wakf and if he did not act bona fide and if without holding any enquiry whatsoever enrolled the wakf, the writ court can quash such enrolment of wakfs. He has, therefore, prayed before this court for a direction upon the Commissioner of Wakfs to produce all necessary records regarding the enrolment of the wakf in question on the petition of Md. Safi. ( 7 ) ON the prayer of Mr. Pal, the Commissioner of Wakf has been directed to produce all the relevant records and the said records have been produced and the xerox copies of the relevant portions of the records have been submitted to the writ petitioner. Mr. Pal has urged before me that the said papers it would show that no enquiry worth the name had been made by the Commissioner of Wakf, that the Commissioner took into account extraneous factors and illegally and arbitrarily enrolled the wakf and that when it was the case of Md. Safi that it was the wakf by user for time immemorial then the enrolment ought to have been made within six months from the date on which the Bengal Wakf Act 1934 came into force when long thereafter such an application for enrolment was made in 1972 the Commissioner of Wakfs had no jurisdiction to entertain such an application for enrolment of wakf long after the expiry of period of six months from the date when the Act came into force and therefore the enrolment is also illegal and without jurisdiction. ( 8 ) MR. Kabir submits that it is not correct to state that no enrolment petition can be entertained by the Commissioner of Wakfs if not within the period as prescribed in sub-section (6) of section 46 of the Bengal Wakf Act. ( 8 ) MR. Kabir submits that it is not correct to state that no enrolment petition can be entertained by the Commissioner of Wakfs if not within the period as prescribed in sub-section (6) of section 46 of the Bengal Wakf Act. He submits that the period of limitation as prescribed in the said sub-section (6) is not mandatory in the sense that if such an application is filed beyond that period it cannot be entertained. This is provided only to penalise the mutwali if he fails to enroll the wakf without sufficient cause. He is liable to be criminally prosecuted under section 57 (1) (a) of the Act and it is only for this purpose that in sub-section (6) of section 46 has been enacted. It is urged that regard being had the provision of section 46 (1) of the Bengal Wakf Act, there is no doubt that the intention of the legislature is that all wakfs have to be registered so that the Commissioner of Wakfs West Bengal can supervise the activities of the mutwalis of those wakf and that the intention of the legislature as gathered from the Bengal Wakf Act 1934 is to see that the wakfs are administered properly and the income thereof is applied to the purpose for which the wakfs have been created, that it is prepostureous to think that the Commissioner cannot enroll a wakf if application for enrolment is filed at any time beyond the period of limitation prescribed in sub-section (6) of section 46 and that if such a construction is made then mutwalis would render the very purpose of the Act nugatory by not applying for enrolment within the prescribed period and thus the whole object of the Act would be frustrated. ( 9 ) ON considering the provision of the Bengal Wakfs Act 1934 and on hearing the submissions made by both the parties. I am of the view that the provisions contained in sub-section (6) of section 46 providing for the period within which the application for enrolment has to be filed by the mutwali is not mandatory but directory and the Wakf Commissioner can entertain the application of enrolment even if such application is not filed within the period prescribed therein and the act of the Commissioner in entertaining such application for enrolment of wakf beyond such period cannot be held to be without jurisdiction. ( 10 ) MR. Pal has drawn my attention to the relevant proceeding of the wakf Commissioner before enrolment of the wakf and has urged that the said proceeding would indicate that no enquiry worth the name was held by the Commissioner, that the Commissioner did not apply its mind as to the conditions which have to be fulfilled before a wakf by user can be enrolled that the enquiry that was held was not sufficient for the Commissioner of wakf to come to the finding that there was a wakf by user and therefore, the enrolment is vitiated by non-application of mind. ( 11 ) ON perusing the relevant documents which show how the enquiry was held, I am of the view that the Commissioner held some enquiry and on being satisfied that it was wakf by user did enroll the same. It is true that when such an enquiry was held the petitioner who has purchased the property from the registered owner had not been given any hearing. But it is found that subsequent to the order passed by B. C. Basak, J. a full fledged enquiry has been held and the Commissioner on giving proper opportunity of hearing has come to the conclusion that premises No. 10/3, Talbagan Lane is a wakf property and it is a wakf by user. I have already indicated that the petitioner submitted to the order of B. C. Basak, J. which has been passed by the learned Judge in this very writ petition and being fully aware that the petitioner has approached this court for setting aside the general notice as well as the enrolment made by the petitioner u/s. 46 (1) of the Bengal Wakf Act. The 1earned Judge while passing the order was definitely aware as to the nature and scope of the present writ petition. Even then he has referred the matter to the Commissioner of Wakfs under section 46a of the Bengal Wakf Act. The 1earned Judge while passing the order was definitely aware as to the nature and scope of the present writ petition. Even then he has referred the matter to the Commissioner of Wakfs under section 46a of the Bengal Wakf Act. It has been clearly provided in section 46a of the Bengal Wakf Act that any question as to whether a particular property is a wakf property or not has to be referred to the Commissioner of wakfs and the decision of the Commissioner shall be final unless revoked or modified by a competent court of law when B. C. Basak, J. under the provision of section 46a of the Bengal Wakf Act referred the matter to the Commissioner of Wakfs and the Commissioner of Wakfs held such an enquiry on taking evidence and on giving hearing the petitioners bas given his finding which has been annexed by the writ petitioner in a supplementary affidavit then there is no further scope in this case to embark upon any further enquiry as to whether the original enquiry held was proper or not. In the supplementary affidavit the said report has been challenged as illegal and invalid. ( 12 ) BUT in this writ petition the said report cannot be called in question. When such a report has been made under section 46a of the Bengal Wakf Act, then only remedy to the writ petitioner is to file a proper civil suit in an appropriate court of law to get the said order passed under section 46a revoked. ( 13 ) IN view of the above developments, it. will not be fit and proper for this court to grant the present writ petitioner any relief in this writ petition. Now the Commissioner under section 46a has given his finding that the property in question is wakf by user. So the only remedy which the petitioner has is file a civil suit in an appropriate court of law. I would, therefore, dismiss this writ petition. ( 14 ) IN the result, the writ petition is dismissed. There will be no order as to costs. Petition dismissed.