SHANTA BASUS Vs. STATE OF WEST BENGAL

JUDGEMENT

(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 15.2.1972 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. 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.