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M/s. Amritrashi Apartment Pvt. Ltd. v/s J.B. Rayees Alam & Others

    CO. No. 2459 of 2019

    Decided On, 16 August 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Petitioner: Probal Kumar Mukherjee, Lalratan Mondal, Abhishek Chowdhury, Advocates. For the Opposite Parties: Sabyasachi Chowdhury, M.A. Samad, M. Rahman, Advocates.



Judgment Text

1. The second defendant in a suit for declaration and consequential reliefs has filed the instant application under Article 227 of the Constitution of India, challenging an order rejecting the petitioner's application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint. The suit was filed for the following reliefs:

"(a) A decree declaring that the schedule "B" property is absolutely a Waqf property belongs to Zohra Begum Waqf Estate under E.C. no. 1365;

(b) A decree declaring that the Defendants no. 1 to 4 have no right, title, interest over the schedule "B" property in any manner whatsoever;

(c) A decree declaring that the so-called mutation of the schedule "B" property effected by the Defendant no. 6 in favour of the Defendant nos. 1 to 4, is illegal and void-ab-initio;

(d) A decree directing the Defendant no. 5 7 6 to effect mutation of the schedule "B" property in favour of the Plaintiff;

(e) A decree of permanent injunction restraining the Defendants no. 1 to 4 and their promoter/developer, men, agents, servants and associates from effecting any sorts of construction upon the schedule "B" property in any manner whatsoever;

(f) A decree to recover the Khas possession of the schedule "B" property with the help of the Proforma Defendant nos. 9 & 10;

(g) The plaintiff is entitled to get an interim order of injunction restraining the Defendant no. 1 to 4 or their promoter/men/agents/associates and servants or mason from entering into the schedule "B" property and not to carrying on any sorts of construction in the suit premises and also to restrain them from taking away the materials/machinery all ready, placed on the site for effecting construction thereon;

(h) Cost of the suit;

(i) Such other relief or reliefs to which the plaintiff is entitled under the law and equity. "

2. The primary contention of the petitioner is that the suit was not maintainable before the Wakf tribunal, since it was not covered by Se

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ctions 6 and 7 of the Waqf Act, 1995 (hereinafter referred to as "the 1995 Act"). By placing reliance on the said sections, learned senior counsel argues that the suit ought to have been filed before a civil court. It is argued that Section 85 of the 1995 Act creates a bar of jurisdiction of civil courts only in respect of disputes, questions or other matters relating to any waqf property or other matter which is required by or under the Act to be determined by a tribunal. What is to be determined by a tribunal is, in turn, governed by the provisions of Sections 6 and 7 of the said Act.

3. It is further argued that the petitioner also took the objection in the court below that the suit was barred for non-compliance of notices as contemplated in Section 89 of the Waqf Act, Section 80 of the Code of Civil Procedure and Section 586 of the Kolkata Municipal Corporation Act.

4. Learned senior counsel for the petitioner cites, in this context, a single bench judgment of this court reported at (2019) 1 ICC 397 [Gopala Conclave Private Limited and another vs. Haji Nurul Huda Layek and others], wherein the scope of interference by a tribunal was elaborated. In the said case, admittedly the suit property was not enlisted as a waqf property as contemplated in the 1995 Act since inception of the suit and accordingly it was held that the dispute did not attract the provisions of Sections 6 and 7 of the 1995 Act. Section 83(1) of the 1995 Act was held to pertain to defining the local limits and jurisdiction of the tribunals.

5. Learned senior counsel next cites a judgment reported at AIR 2016 Calcutta 351 [Sayed Hassan Ali vs. Mahammed Sahidul Islam], wherein another learned Single Judge specified the scope of a suit filed before the tribunal under the 1995 Act. It was held therein that only if disputes arose under the sections mentioned therein, being Sections 6, 7, 32(3), 33(4), 35, 38(7), 39(3), 40(2), 40(4), 48(2), 51, 51(5), 52(4), 54, 64(4), 67(4), 67(6), 69(3), 73(3), 83(2) and 94(1) of the 1995 Act, there was scope for the tribunal to interfere. It is argued that the present dispute, not falling under any of such provisions, the suit lay before a civil court and the plaint ought to have been rejected.

6. It was further argued on behalf of the petitioner that the plaint nowhere says that the property-in-question, being premises no. 54A, was enlisted as a waqf but only states that it was enrolled as a waqf estate. As such, it is submitted that the suit was not maintainable before the tribunal.

7. Learned counsel for the opposite party argues that the plaint categorically mentioned that the suit property was a registered waqf property. With particular reference to paragraph no. 3 of the plaint, it is submitted that the plaintiff stated therein that after attainment of majority, Sahebjadi Jahanara Begum, the descendant of the Waqif, got the entire waqf properties mentioned in the deed of waqf, enrolled in the office of the then Commissioner of Waqf, Bengal, under the name and style as "Zohra Begum Waqf Estate" under E.C. No.1365 and subsequently initiated several legal proceedings against the so-called lessees and illegal occupiers and recovered considerable quantum of waqf land and got it incorporated in the C.S. Record of Rights and also in the Waqf Register maintained by the proforma defendant no. 8, being the Board of Waqf, West Bengal.

8. Learned counsel for the plaintiff/opposite party no.1, being the contesting opposite party, also places reliance on paragraph nos. 2, 3, 4, 12, 13 and the schedule of the plaint to argue that if the plaint averments were taken to be sacrosanct as per the principle governing the adjudication of demurrer applications, it has to be deemed that premises no. 54A is a part of premises no. 54, the latter having been enrolled as a waqf property and stated in paragraph no. 3 of the plaint to be registered in the Waqf Register maintained by the Board of Waqf. It has been categorically averred throughout the plaint that premises no. 54A originates from premises no. 54, thereby establishing an identity between the two. Thus, there cannot be any dispute that the plaint case seeks to establish premises no. 54A as a registered waqf.

9. It is further argued that the suit property, as averred in paragraph no.3 of the plaint, was enrolled under the Bengal Wakf Act, 1934 (hereinafter referred to as "the 1934 Act"). Placing reliance on Section 46 of the 1934 Act, it is argued that a waqf could be enrolled by the Commissioner or the Registrar of Waqf amended at any time on information collected by the Commissioner on his own motion or on the petition of any person interested. Thus, such an enrolment was equivalent to registration, bringing the estate within the fold of an enlisted waqf under the 1995 Act.

10. Learned counsel for the plaintiff/opposite party no.1 next submits that this court, in the present revisional application, is not merely exercising the supervisory power conferred by Article 227 of the Constitution of India but also a power akin to revision as conferred on it by the proviso to Section 83(9) of the 1995 Act and as such, on its own motion or on the application of the board or any person aggrieved, may call for and examine the records relating to the dispute and may confirm, reverse or modify such determination. Such sweeping powers, it is argued, empower this court to go into the factual details as well and decide the matter on its own merits, being unfettered by the restrictions of an ordinary judicial review under Article 227 of the Constitution.

11. Upon hearing both sides, this court is of the opinion that the power conferred by the proviso to Section 83(9) of the 1995 Act, although otherwise available to this court, is restricted by the scope of the present inquiry. This court is not sitting in judgment over an adjudication by the tribunal on the merits of the case but on the rejection of an application under Order VII Rule 11 of the Code of Civil Procedure, which inquiry is itself restricted to the extent covered by Order VII Rule 11 of the Code. It is well-settled that an adjudication on an application under Order VII Rule 11 of the Code can only extend to a plain and meaningful reading of the plaint and, at best, any document referred to in, or annexed to, the plaint and cannot extend to a factual inquiry further than that. Therefore, as appealing as the power of factual examination conferred by Section 83(9) of the 1995 Act may be, the same is restricted in the present case by the fetters of an inquiry under Order VII Rule 11 of the Code. Section 83(9) and its proviso are set out below:

"83(9). No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."

12. The judgments cited on behalf of the petitioner lay down settled law. Undoubtedly, the restrictions imposed by Section 85 relate to the powers of the tribunal and cannot operate as a bar to the exercise of jurisdiction by a civil court in cases where the tribunal does not have power to decide the issue itself.

13. However, in the present case, it is seen from the tenor of the plaint that the moot dispute involved revolves around premises no. 54A being a part of premises no. 54, the latter having been averred categorically to be a registered and enrolled waqf property. To bypass the bar of Section 85 on the frivolous premise that premises no. 54A is not a part of premises no. 54 would be to frustrate the intention of the legislature in enacting the Waqf Act, 1995 as well as tantamount to pre-judging the issue involved, as to whether premises no. 54A was actually a part of premises no. 54.

14. It has been correctly submitted by the plaintiff/opposite party no. 1 that, while adjudicating an application for rejection of plaint, the averments in the plaint have to be taken as sacrosanct. Proceeding on such premise and on a plain and meaningful reading of the plaint, it is evident that the plinth of the plaint case is that premises no. 54A is a part of premises no. 54 and as such, a registered waqf property. Such proposition being a disputed one, the dispute falls squarely within the scope of Sections 6 and 7 of the 1995 Act. Sections 6 and 7 of the 1995 Act are quoted hereinbelow for a proper appreciation of the issue:

"Waqf Act, 1995:

6. Disputes regarding auqaf. –

(1) If any question arises whether a particular property specified as waqf property in the list of auqaf is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waqf, the Board or the mutawalli of the waqf or any person aggrieved may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:

Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of auqaf:

Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of section 4.

(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any waqf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

(4) The list of auqaf shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1).

7. Power of Tribunal to determine disputes regarding auqaf.--(1) If, after the commencement of this Act, any question or dispute arises, whether a particular property specified as waqf property in a list of auqaf is waqf property or not, or whether a waqf specified in such list is a Shia waqf or a Sunni waqf, the Board or the mutawalli of the waqf, or any person aggrieved by the publication of the list of auqaf under section 5 therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that--

(a) in the case of the list of auqaf relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of auqaf; and

(b) in the case of the list of auqaf relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement:

Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any waqf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to any application under sub-section (1).

(4) The list of auqaf and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.

(6) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector:

Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each offence."

15. This view is further strengthened if we look into the definition of "list of auqaf" as enumerated in Section 3(g) of the 1995 Act, which is as follows: "3. Definitions. - In this Act, unless the context otherwise requires, -

(g) "list of auqaf" means the list of auqaf published under sub-section (2) of section 5 or contained in the register of auqaf maintained under section 37."

16. The said definition not only encompasses a list of auqaf published under Section 5(2) but also takes within its fold Section 37 of the Act. Going a step further to Section 43 of the 1995 Act, it is seen that where any waqf has been registered before commencement of this Act (in the present case, allegedly under the Bengal Wakf Act, 1934), it shall not be necessary to register the waqf under the provisions of the 1995 Act and any such registration shall be deemed to be a registration made under this Act, that is, under Section 37 of the 1995 Act. If that be so, if the waqf property was registered under the 1934 Act, as averred in paragraph no.3 of the plaint, the same has to be deemed to be registered (as contemplated in Section 43 of the 1995 Act) under Section 37 of the 1995 Act, which in turn brings the said registration within the definition of "list of auqaf" as specified in Section 3(g) of the 1995 Act. This would bring the property within the fold of the disputes as envisaged in Sections 6 and 7 of the 1995 Act, thereby attracting the bar of Section 85 to the jurisdiction of the civil courts.

17. In this context, a perusal of the relevant sections, as indicated above, is necessary and those are set out below:

"The Waqf Act, 1995:

37. Register of auqaf. –

(1) The Board shall maintain a register of auqaf which shall contain in respect of each waqf copies of the waqf deeds, when available and the following particulars, namely:-

(a) the class of the waqf;

(b) the name of the mutawalli;

(c) the rule of succession to the office of mutawalli under the waqf deed or by custom or by usage;

(d) particulars of all waqf properties and all title deeds and documents relating thereto;

(e) particulars of the scheme of administration and the scheme of expenditure at the time of registration;

(f) such other particulars as may be provided by regulations.

(2) The Board shall forward the details of the properties entered in the register of auqaf to the concerned land record office having jurisdiction of the waqf property.

(3) On receipt of the details as mentioned in sub-section (2), the land record office shall, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of waqf property under section 36, its objections to the Board.

..... ..... .....

43. Auqaf registered before the commencement of this Act deemed to be registered. - Notwithstanding anything contained in this Chapter, where any waqf has been registered before the commencement of this Act, under any law for the time being in force, it shall not be necessary to register the waqf under the provisions of this Act and any such registration made before such commencement shall be deemed to be a registration made under this Act.

..... ..... .....

85. Bar of jurisdiction of civil courts. - No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal.

Bengal Wakf Act, 1934:

46. Power to cause enrolment of wakf and to amend register. - The Commissioner on his own motion or on the petition of any person interested verified in the manner referred to in sub-section (7) of section 44 may direct a mutwalli to apply for the enrolment of a wakf or to supply any information regarding a wakf or may himself collect such information and may cause any wakf to be enrolled or may at any time amend the register of wakfs."

18. In such view of the matter, it is amply clear from a plain and meaningful reading of the plaint, as envisaged in Order VII Rule 11 of the Code of Civil Procedure, that the suit is very much maintainable before the Wakf tribunal and there is no bar of law evident from the plaint inasmuch as the suit could not be maintainable before a civil court. Hence, the tribunal did not commit any jurisdictional error in rejecting the petitioner's application under Order VII Rule 11 of the Code of Civil Procedure. Accordingly, C.O. No.2459 of 2019 is dismissed, thereby affirming the impugned order, without any order as to costs.

19. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities
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