SYED ZAHIRUDDIN AHMED BAGDADI Vs. BOARD OF WAKFS

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against the order dated 28. 2. 2006 passed by the learned Presiding officer, Wakf Tribunal, West Bengal in Appeal No. 6 of 2005.

(2.) BRIEFLY the petitioner's case is that Pir Hazrat Syedena Mohammad sufi Obaidullah Baghdadi Shah be called as "sufi Obaidullah Baghdad! shah", the grandfather of the petitioner's husband, was the owner of various properties in Calcutta including premises Nos. at 5a and 5b, christopher Road and 8 Bright Street, Calcutta- 700 019, formerly known as 8 Charmari Ghughudangha Road, Calcutta-700 019 and said Sufi obaidullah Baghdadi Shah established a 'khankhah' a Mohammedan institution used for imparting religious doctrine and rules of life and he was usually called 'sajjadanashin'. Gradually the said Sufi attained the status of 'pir Sahib' and head of the 'khankhah' in his status as 'sajjadanashin' (Spiritual Superior ). Durgah at the above stated address is known as 'durgah Kadan-E-Rasul'. For the up keeping of the maintenance of the religious functions in the said address including fataha at 'durgah Kadan-E- Rasul', Abdur Rahim a resident of Burdwan and a devotee of Sufi Obaidullah Baghdadi Shah created a wakf in respect of the properties which are situated in the District of Burdwan by a registered deed of wakf dated 7. 2. 1913 and appointed his Pir Shahib as the sole Mutwalli and also laid down the provision of succession to the office of Mutwalli to be succeeded through his male descendents and the oaddinashin/sajjadanashin of the Durgah. The said Wakf Estate was enrolled in the office of Board of Wakf Estate named as the Abdur Rahim wakf Estate under E. G. No. 10790. On the death of original Mutwalli, his disciple and son Syed Sultan Gyasuddin Ahmed Baghdadi began to look after and manage the said Durga as he was appointed 'sajjadanashin' and also in the capacity of Mutwalli as per line of sanction mentioned in the Wakfnama. Since the Mutwalli remains as Sufi Obaidullah Baghdadi shah was laid to raise and buried in a portion of the Khankhah premises, "wood used to be laid every year in the said premises" by the decycle coming from various parts of India. In the fear 1977 Syed Sultan Gyasuddin ahmed Baghdadi died leaving behind a 'will' by virtue of which his two sons out of seven, Syed Badruddin Ahemed Baghdad and Syed kamaluddin Ahamed began to look after two Durgahs in the capacity of 'sajjadanashin' and while Syed Badruddin Ahmed discharged his such duty at the Durgah at 5a and 5b Christopher Road, Syed Kammuddin ahamed discharged his duty as 'sajjadanashin' in respect of Durgah kadam-E-Rasun, at 8a Bright Street where his father Syed Gyasuddin ahmed Baghdad! was buried upon his death.

(3.) SAID Badruddin Ahmed died on 19. 11. 92 leaving behind his survivers, the writ petitioner and his widow Nazira Khatbon, opposite party no. 3 and his two daughters namely Syed Abeda Khatoon and Syedav Afrida khatoon. Said Nazira Khatoon, then applied before Board of Wakfs for considering her claim as Mutwalli Wakf Estate in pursuance of the same, a general notice was issued inviting objection against her application. In pursuance to the same, petitioner claimed himself to be recorded as a mutuwalli. Accordingly, hearing was initiated by the then Commissioner of wakfs for such recording the name of Mutwalli but the hearing was postponed at the instance of one Akbar AN who filed a writ application before the Hon'ble High Court, Calcutta being C. O. No. 4295 (W) of 1993 and by an order dated 10. 11. 1994 the Hon'ble High Court directed the then Commissioner of Wakfs to proceed with the hearing of the said matter before him after serving a fresh notice to the parties. The commissioner of Wakfs issued fresh notice to the parties and fixed 30. 01. 95 as the date of hearing. The present petitioner prayed for adjournment on the ground of missing of his application to appoint a mutwalli and though his prayer has shown to be allowed, but latter it was found that the Commissioner of Wakfs dismissed the petitioner's application for recording him as Mutwali by an order dated 30. 01. 1995 and communicated the gist of order showing recording of the name of syeda Nazira Khatoon as permanent Mutwalli and the same had been substituted in place of her deceased husband Syed Badruddin Ahmed, dividing the land sanction as stated in the Wakfnama executed by the wakif. The petitioner filed writ application being W. P. No. 1829 (W) of 1998 challenging the said order of the Commissioner of Wakfs with various reliefs in the nature of mandamus, certiorari and also for ad interim order of injunction and the said writ application was taken out by Hon'ble Justice pinaki Chandra Ghose and His Lordship by His judgment and order dated February 12,1999 disposed of the writ application observing that the writ application was belated one and gave liberty to the writ petitioner to make proper application in accordance with law. Petitioner preferred mandamus appeal being A. P. O. T. No. 122 of 1999 and the same was disposed of by Their Lordships' the Hon'ble Justice S. B. Sinha and the hon'ble Justice S. N. Bhattacharjee on 5th March, 1999 and the appeal was disposed of with the direction upon the Board of Wakfs and disposed of the petitioner's application as expeditiously as possible preferably within period of six weeks. Opposite Party No. 3 challenge the said judgment before Hon'ble Supreme Court of India by His Special Leave Petition (Civil)No. 11229 of 1999 where the present petitioner already lodged a caveat the said Special Leave Petitioner ultimately was dismissed as withdrawn on 30th August, 1999. Ultimately, the matter was taken up by the Board of wakfs after due notice to the parties on 14th October, 1999 and after hearing the learned Counsels of the respective parties, passed an order canceling the appointment of Mst. Nazira Khatoon as Mutwalli and the petitioner was recorded as the Mutwali of Abdul Rahim Wakfs Estate. Opposite Party No. 3 made a writ application being W. P. No. 22044 (W)of 1999 challenging the said resolution passed by the Board of Wakfs and the said writ application was transferred by the High Court Calcutta to the wakf Tribunal, West Bengal at Calcutta and the same was numbered as 6 of 2005. The said appeal was ultimately heard by the Presiding Officer of the Tribunal and by judgment and order dated 28th February, 2006 allowed the appeal and set aside and cancelled the resolution dated 14. 10. 99 passed by the Board Of Wakf and also the order dated 17. 11. 99 passed by the Chief Executive Officer of the Board of Wakf.