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2000 DIGILAW 533 (CAL)

Md. Tahammul Haque v. Calcutta Municipal Corpn.

2000-11-03

DILIP KUMAR SETH

body2000
Judgment 1. The petitioner has served all the respondents. Mr. Dipankar Chakraborty contends that the respondent Nos. 4 & 5 should appear to clear the position. Mr. Pradip Ghosh, learned Senior Counsel submits that despite being served and that in similar other writ petitions moved, in none of such matter, the Board or its Executive Officer had ever appeared. Be that as it may, whether there was appearance of the Board or not is immaterial. Despite service in the present case, the State-respondents having not appeared the matter can be taken up even in their absence. That apart the order that is being passed will not prejudice the State-respondents in any manner who are free to take such action in spite thereof if they have reason to do so within the scope and ambit of the power conferred upon them under the Wakf Act. 2. In the present case, the petitioners had applied for sanction of a building plan in respect of certain wakf property. By reason of a circular permitting sanction of such Wakf property which is Annexure 'E' to this petition the plan though submitted sometimes in 1988-89 was not considered. Ultimately the said circular was struck down by this Court in a decision dated 21st May, 1997 in (1) W.P. No. 713 of 1995 between Smt, Parul Rani Mitra & Ors. v. C. M. C. & Ors. In the said decision, it was held that the said circular had no statutory force and there is no scope of requiring no objection certificate from the Wakf Board for obtaining sanction of a plan from the Municipal authorities. Similar decision has been taken by the Court in (2) W.P. No. 21960 (W) of 1998 decided on 21st December, 1998, Mussamat Ainus Fatema Begum v. C. M. C. 3. Therefore, according to Mr. Ghosh, the Corporation cannot withhold the sanction of a plan on any ground as soon as the said circular is struck down. 4. Mr. Dasgupta on the other hand contends that by reason of Rule 4 sub-rule (3) of the Calcutta Municipal Corporation Building Rules, 1990, the Mutwali has to show that he has exclusive right to erect, re-erect or alter any building or portion thereof in order to obtain Sanction of a plan. 4. Mr. Dasgupta on the other hand contends that by reason of Rule 4 sub-rule (3) of the Calcutta Municipal Corporation Building Rules, 1990, the Mutwali has to show that he has exclusive right to erect, re-erect or alter any building or portion thereof in order to obtain Sanction of a plan. According to him Mutwali functions under the Wakf Board and as such had no independent exclusive right to erect or re-erect and as such no plan can be sanctioned on being applied for by the Mutwali. Therefore, suspension of the said circular has since been struck down the Mutwali has to show that he has exclusive right to erect for which it is necessary that he should obtain a 'no objection' from the Board. 5. This proposition does not seem to be a sound proposition, in as much as the powers and functions of the Board as pointed out by Mr. Pradip Ghosh provided in Section 32 of the Wakf Act clearly specifies the powers and functions of the Board as laid down therein which does not deal with the question of erection on a Wakf property to be controlled by the Board. The only power, the Board can exercise is with regard to calling for return, statistics and accounts and other informations from the Mutwali with respect to the Wakf property as the Board may from time to time require or to inspect or cause inspection of the Wakf properties or the accounts of the records or deeds or documents relating to such properties or to investigate and determine the nature and extent of the Wakf property or certify of such Wakf property. These powers and functions do not include the power and function to make construction or obtain sanction from the Municipal authorities or to carryon any development on the Wakf property. It is only a supervisory control that is being exercised by the Board while the Mutwali is conferred with the right of the management of the property which includes development subject to Section 56 of the said Act which imposes an embargo with regard to grant of lease of Wakf property. Apart from Section 56 of the Wakf Act does not appear to contain any prohibition restricting the function of the Mutwali with regard to development of a property or raising construction thereon. Section 56 of the Wakf. Apart from Section 56 of the Wakf Act does not appear to contain any prohibition restricting the function of the Mutwali with regard to development of a property or raising construction thereon. Section 56 of the Wakf. Act creates an embargo on the grant of lease or sub-lease for a period exceeding 3 years of any immoveable property which is a Wakf property or a lease exceeding one year but not exceeding 3 years without the previous sanction of the Board. Section 56 makes such lease if granted by the Mutwali in contravention of Section 56 void. Thus, Section 56 also docs not put up any embargo on the development of a property or construction thereon by the Mutwali. 6. As contended by Mr. Chakraborty it may be necessary to show that the Mutwali has exclusive right to erect. But, such right can be apparent from the fact that the Mutwali is the recorded Mutwali and that there is no dispute with regard to the same. If the Corporation feels that it requires any proof with regard to the fact that the petitioner is the Mutwali of the Wakf property in that event it may call upon the petitioner to prove, the same and if the petitioner proves that he is the Mutwali of the property in that event the Corporation cannot insist upon production of a no objection certificate' from the Wakf Board in view of the decision cited by Mr. Ghosh as referred to above. 7. In these facts and circumstances this writ petition succeeds and is allowed. The authorities of the Corporation shall decide and dispose of the petitioners application for grant of sanction of a building plan, in accordance with law, within a period of 3 months from the date of production of a xerox certified copy of this order after giving the petitioner an opportunity of hearing. In Case the Corporation feels that the petitioners should prove that they are the Mutwalies of the Wakf property. If an urgent xerox certified copy of this order is applied for, the same may be supplied as early as possible. S.K.G.