RAYEES ALAM Vs. GANGES GARDEN REALTORS PVT. LTD

JUDGEMENT

(1.) The revisional application has been filed by the plaintiff in Suit No.13 of 2020, challenging the order dated December 23, 2020, passed by the learned Wakf Tribunal, Kolkata. By the order impugned, the learned Tribunal rejected an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. The petitioner filed a suit before the Wakf Tribunal for declaration that the suit property belonged to Zohra Begum Wakf Estate enrolled under EC 1365, declaration confirming that the property was rightly registered as a wakf in the Wakf Register, that the plaintiff as the mutawalli of the wakf estate had the right to enter into and inspect the said property and utilise the same for the benefit of the wakf estate, declaration that the order dated May 29, 2013 passed by the Assessor Collector (South), Kolkata Municipal Corporation, in mutation case No.0/117/23 MAY-13/27189 dated May 29, 2013 was erroneous, null and void and not binding and that the defendants did not have any manner of right, title and interest over the suit property. The plaintiff further prayed for permanent injunction restraining the defendants/opposite parties Nos. 1 to 7 from illegally encroaching upon the suit property and from changing the nature and character of the said wakf property. The schedule of the property as mentioned in the plaint is quoted below:-

(2.) The contentions of the plaintiff/petitioner in the suit was that the suit property was a wakf property known as Zohra Begum Waqf Estate. The plaintiff was the mutawalli. That Mussamat Zarrah Begam alias Zahruh Begum, widow of Tipu Sultan, permanently dedicated the suit property by a registered deed of wakf executed on May 5, 1848 registered on May 11, 1848 in the name of 'Almighty', along with houses, trees, tanks etc. standing thereon. The income from the property was to be applied for the construction of a Mosque. It was provided that the mutawalli would not have any right to apply the income from the wakf estate for his personal use, except for daily expenses. That the said wakf estate was enrolled in the register maintained by the Board of Wakf as a public wakf in terms of the Wakf Act, 1995. The plaintiff started negotiating with a developer to exploit the property commercially for the purpose of increasing the income from the estate. While getting the papers ready, the plaintiff came to know that the defendants/opposite party Nos.1 to 7, had mutated their names in the records of Kolkata Municipal Corporation (in short KMC) behind the back of the mutawalli and the Board of Wakf. Accordingly, the plaintiff filed two successive applications under Section 6 (1) of the Right to Information Act, 2005 (in short R.T.I. Act). The Assessors Collector (South), KMC, by a letter dated March 7, 2020, intimated the petitioner that the premises was recorded as a wakf in the Inspection Book No.2/1995-96 on the basis of the letter of Chief Executive Officer of the Board of Wakf (West Bengal) vide no.4777 dated March 7, 2003. Similarly, the Chief Executive Officer, Board of Wakf answered to another query of the petitioner under the Right to Information Act, that premises No.112, B.L. Saha Road was enrolled as a wakf under the Zohra Begam Estate vide EC 1365. That on October 19, 2019 the plaintiff discovered that the defendants/opposite party Nos. 1 to 7 with their men and agents were raising an unauthorised construction over a portion of the suit property which was diminishing the character of the wakf and thereby causing substantial loss to the wakf estate and its beneficiaries. That on January 25, 2020, construction was started on a small portion of the suit property, but the same was stopped due to local agitation. On the failure of the Board of Wakf to take steps despite intimation by the plaintiff, the plaintiff had no other alternative but to file the suit for the reliefs mentioned hereinbefore. The plaintiff, petitioner herein, prayed for a temporary injunction by filing an appropriate application with the afore-mentioned allegations. It was averred that the wakf property was in imminent danger of being wasted and damaged and the dedication to the Almighty as made by the wakif, would be completely frustrated unless a temporary injunction was granted to save the wakf estate from irreparable loss and injury. The plaintiff prayed for an order restraining the defendants/opposite party Nos.1 to 7 from disturbing the plaintiff's possession over the suit property and from changing the nature and character of the same without permission of the plaintiff.

(3.) By an order dated November 18, 2020, the learned Tribunal passed an ad-interim order of status quo with regard to the nature and character of the suit property. The said order was challenged by the defendants/opposite party Nos.1 to 7 before this court vide CO No.1489 of 2020. CO No. 1489 of 2020 was disposed of by an order dated December 10, 2020, with a direction upon learned Tribunal to dispose of the application for temporary injunction within seven days. This court directed the parties to maintain status quo for the aforementioned period. The said application was heard on contest and the impugned order was passed.