Calcutta High Court (Appellete Side)
Golam Mustafa Haidari & Anr vs Boad Of Wakfs & Anr on 11 June, 2025
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 3733 of 2017
Golam Mustafa Haidari & Anr.
VERSUS
Boad of Wakfs & Anr.
For the petitioners: Dr. Chapales Bandyopadhyay, Adv.
Ms. Anandamayee Dutta, Adv.
Ms. Gargy Basu, Adv.
For the Board of Wakf/Respondent Mr. Azizul Islam, Adv.
No.1: Mr. SK. Md. Galib. Adv
Mr. Abu Siddique Mallick
Mr. Sumit Kumar Ray, Adv.
For the Opposite Party No.2.: Mr. Munshi Ashiq Elahi, Adv.
Last Heard on: March 12, 2025
Judgment on: Jun 11, 2025
Biswaroop Chowdhury,J:
The petitioner before this Court are applicants before the Waqf Tribunal
West Bengal under the Waqf Act 1995, and is aggrieved by the Judgment dated
04-09-2017 passed by Learned Waqf Tribunal in OA 16 of 2010.
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The case of the petitioner before the Learned Waqf Tribunal may be
summed up thus:
1. That the petitioners are the owners of 16 decimals of Land in plot No.
3605, 11 decimals of land in plot No. 3596 and 2.5 decimals of land in
plot No. 3631 of Mouza-Dhitora under Murarai Police Station.
2. The origin of these lands comprised in three plots above-mentioned
have been found in C.S. Khaitan No-1407 published in the name of
Mohar Sheikh and also from Nakpuri Bibi published under Khaitan
No. 1341 In C.S. plot No. 3596 Nak puri Bibi was recorded for 11
decimals in 16 annas share in the said khaitian No-1341 and it has
been mentioned that Mohar Sheikh and others are the oweners on the
northern boundary of the said plot. Similarly under khatian No. 1407
recording has been made in respect of Mohar Sheikh for a specified
share and under the said Khatian Plot No. 3605 for 16 decimals in 16
annas and 3631 for 5 decimals in 16 annas have been recorded. From
the above – mentioned two C.S. Khatians being No. 1341 and 1407 it
does not appear that the said Khatians contained any Waqf land,
rather the said Nakpuri Bibi and Mohar Sheikh have been shown to
have possessed specified shares in the said Khatian and the plot
recorded there under.
3. From Nakpuri Bibi her interest in Plot No. 3596 stood devolved upon
Rajab Ali, Son of Umed Sheikh and Sayeed Hossain, son of Jellal Bux
were recorded in Khatian No. 1341 plot No-3596 was recorded in the
3name of the said Rajab and others for 11 decimals of land in 16 annas
share but in Column No. 23 it has been shown to be in the possession
of Ashraf Khan son of Yakub Sheikh as Mutwalli of Mosque.
4. RS. Plot No. 3596 having an area of 11 decimals have been recorded
in the C. R. Khatian Nos 2802/1 and 1998/1 out of total 11 decimals.
Golam Mustafa Haidari got 6 decimals in his Khatian No. 2802/1 and
Golam Mohammad Haidari in his Khatian No. 1998/1 has got 5
decimals of land. Similarly plot No. (CS) 3605 having an area of 16
decimals of land was recorded in the L.R. Record of Rights by
amalgamation with a bigger plot being No. 3618. Plot No. 3618 has
been recorded in the name of Golam Mohammed Haidari under
Khatian No. 1998/1 C.S. Plot No. 3631 having an area of 5 decimals
have been recorded in the LR. Record of Rights in the name of Golam
Mustafa Haidari under Khatian No. 2802/01 having land area of 5
decimals.
5. Only in R.S. Khatian No. 1341 against Plot No. 3596 and Plot No.
3605 under Khatian No. 1407 in 23rd Column a name has been
shown to be Mutwalli although original plot reflects the name of the
owners.
6. On the basis of aforesaid inference Column No. 23rd in respect of said
two plots being plot No- 3596 under Khatian No-1341 and Plot No-
3605 under Khatian No. 1407, the Board of Wakfs has treated the
said property as Wakf.
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7. Plot No-3605 merged with Plot No-3618 and the Block Land and Land
Reforms Officer has also issued a letter being Memo No. 22 dated 4th
January 2005 addressed to the Officer-in-charge Murari Police
Station stating that the Plot No-3605 has been merged with Plot No-
3618 which is secular plot and the present owners are Golam
Mohammed Haidari and Golam Mustafa Haidari under their L.
R. Khatian No. 1998/1 and 2802/1 respectively.
8. Ultimately the matter was taken up by the Chief Executive Officer for
hearing and he made a recommendation which was placed before the
Board for confirmation and was confirmed in its meeting held on 25th
February 2010. In the impugned resolution the Chief Executive
Officer has referred to about a Mosque in respect of the Plots under
consideration which does not relate to the said Mosque. The Chief
Executive Officer held that he verified the record and found that plot
No-3605 and 3631 were Waqf. In support of his finding the Chief
Executive Officer has relied upon the C.S. Khatian No. 1407 although
there is no such Khaitan in the C.S. Record of Rights.
9. It is claimed by the Chief Executive Officer, that Mohar Sheikh whose
name was recorded in the C.S. Khaitan donated the Land to
Ganirdanga para Mosque and accordingly the same was recorded
showing Ashraf Ali as Mutwalli. While passing the impugned
recommendations the Chief Executive Officer has also referred to a
Trust Deed dated 18th July 1973, whereby it was alleged that Ashraf
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Ali transferred his Mutwalliship of Golam Mohammed Haidari the
petitioners herein, although the petitioners never accepted the said
deed. Therefore from the said Deed it does not appear that Golam
Mohammed, Haidari or Golam Mustafa Haidari at any point of time
admitted that the said plot belong to a Wakf.
10. The Respondent no-2 did not place the said Deed before the Chief
Executive Officer and no copy was supplied to the petitioners.
11. The petitioners purchased all the said 3 plots from the persons
who acquired right title and interest which has been corroborated
from undisputed C.S. and R.S. Record of Rights. The petitioners name
has been duly recorded under their respective Khaitan. In the
impugned resolution it appears that the Chief Executive Officer has
relied on oral dedication way back from Nakpuri Bibi, who was
recorded in the C.S. Record of Rights but it is surprising to note that
Nakpuri Bibi had created a Wakf by oral dedication. Question of
subsequent oral dedication by Mohar Sheikh also does not arise.
The opposite parties filed objections to the petition of the petitioners.
By Judgment dated 04-09-2017 the Learned Wakf Tribunal was pleased
to dismiss the application of the petitioners by observing as follows:
‘On plain reading of the provisions of Regulation No. 30(2) (III) and
30(2)(IV) of the West Bengal Wakfs Regulation 2008 and the resolution of the
Board taken on 06-11-2012 it may be said that the CEO, Board of Wakfs has
6been authorized to recommend for enrolment and registration of the Waqf and
for appointment of the Mutawalli of the Wakf Estate and therefore we find no
merit in the contention of Ld. Advocates for the plaintiffs on the point of
jurisdiction of the CEO.
The contesting respondents produced the information slip issued from
Civil Judge (Junior Division) 1st Court Rampurhat Birbhum in connection with
Title Suit No-169 of 2004 wherein it is clearly mentioned that an order was
passed on 13-08-2008 to the effect that the said suit be stayed till the disposal
of the Misc E.C. No-15 of 2004 pending before the West Bengal Wakf Board
and the said order has not yet been vacated. On perusal of such information
furnished in the information slip in connection with the said Title suit No. 169
of 2004 it may be said that the Ld. Civil Judge (Junior Division) 1st Court
Rampurhat Birbhum perhaps on consideration of embargo imposed u/s. 85 of
the Waqf Act 1995 on the question of determination of the dispute if the suit
property was wakf property or a secular property also wanted the respondent
Board of Auqaf dispose of the Misc E.C. case No. 169 of 2004 and the CEO in
compliance with such order of the Civil Court made such recommendation for
enrolment of the Waqf and appointment of Mutawalliship and therefore it
cannot be said that CEO made such recommendation in violation of Court’s
Order.
That being the outcome of the aforesaid discussion and in the given facts
and circumstances of the case we find nothing to interfere with the
7recommendation for enrolment and registration of the Waqf property
comprising in six plots including the disputed three plots and for appointment
of Mutawalli which stood confirmed by the Board of Auqaf and as such the
present application is liable to be rejected.
Accordingly it is ordered that the application filed u/s. 83(2) of Waqf Act
1995 on behalf of applicants is rejected on contest but without any cost. The
impugned recommendation of the CEO confirmed by the Board of Auqaf thus
stands confirmed.’
The petitioner being aggrieved by the Order passed by the Learned Wakf
Tribunal has come up with this application under Article 227 of the
Constitution of India.
Pursuant to filing of this application notice was issued upon the opposite
parties. Opposite parties filed affidavit in opposition to the applications.
It is the contention of the petitioner that the Learned Wakf Tribunal has
acted illegally and with material irregularity by not considering that there is no
proof or registered documents at all that the lands devolved as offered by any
person as Wakf Property who is called Wakif.’ It is further contended that the
Learned Wakf Tribunal went wrong in not holding that the petitioners are the
owners by virtue of registered sale deeds and their names were recorded in the
record of rights even then there is no declaration of dedication made
contemporaneously with the act of dedication. It is also contended that the
Learned Wakf Tribunal failed to consider that ‘record in Column No. 23 of the
8respondent no-2 does not create any right in those plots as the respondent no.
2 is not a raiyat and the illegal enrolment of the lands as Wakf property by the
Chief Executive Officer is miscarriage of justice.
The opposite party Board of Auqaf contended that from the records it
appears that Plot no-3605 and 3631 in C.S. Khatian No. 1407 were recorded in
the name of one Mohar Hussain. He verbally donated the land to Ganir Danga
Para Mosque and accordingly in R.S. Record of Right these two plots were
recorded in favour of Ashraf Ali Mutawalli but the L.R. Record of Right for the
above mentioned plots have been recorded as secular in the name of the said
petitioners Golam Mustafa Hyadari and Golam Muhammad Hyadari. The
petitioners and others managed to get the Plot No-3605 merged with another
13 plots and created a new plot number 3618. It is contended that the oral
dedications were made by Mohar Hussain in respect of Plot No.3596 and
therefore there is no irregularity in creation of Wakf by Oral declaration as
claimed by the petitioners.
The opposite party no-2 also filed affidavit in opposition denying the
contentions made in the petition. It is contended that the transfer of Wakf
properties without the permission of the Board of Wakfs was barred under the
Bengal Wakf Act 1934, and the alleged Sale if any having not been regularized
by the present Wakf Act 1995, the said transfer remains illegal and as such
void ab-initio. It is further contended that there cannot be any dispute with
regard to the proposition that a valid waqf may be created orally or by an
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instrument as even by long user and once a valid waqf is established it shall
always remain as a waqf and the subsequent alteration of LRROR by way of
merging the plot no. 3605 with plot No. 3618 thereby creating a new plot No-
3618 as secular is of no consequence. It is also contended that Record of Right
does not confer any title.
The following decisions are relied upon:
Sayyed Ali and others
VS
AP Wakf Board Hyderabad and others
Reported 1998(2) SCC-642
Kiran Devi
VS
Bihar State Sunni Wakf Board and others.
Reported in (2021) 15 SCC-15
Heard Learned Advocate for the petitioner and Learned Advocate for the
opposite parties. Perused the petition and Affidavits and materials on record.
Learned Advocate for the petitioner submits that the Chief Executive
Officer had no authority to dispose the application in terms of Regulation 30 of
the West Bengal Wakf Regulations 2008 for matters of registration of waqf
10under Section 36 of the Waqf Act 1995. Learned Advocate further submits that
a total number of three plots Nos 3596, 3605 and 3631 in respect of which
objections have been raised by the petitioners. C.S. Record of Rights shows
that one Nakpuri Bibi was the owner of C.S. Plot No. 3605 and 3631 under
C.S. Khatian No. 1407 Learned Advocate also submits that surprisingly the
R.S. Record of Rights was published in the name of one Mutawalli standing in
Column No. 23 in respect of the said plots. This record was altered without any
legal instrument found to be in existence showing creation of Waqfs in respect
of the said plots by the respective owners. Thus the alteration of records in the
name of the Mutwalli is not supported by any legal documents hence there is
no evidence.
Learned Advocates for the opposite parties submit that once a Wakf is
created it is always a Wakf and there is no scope for the sale of Wakf property.
Learned Advocate for the opposite party no-1 relies upon West Bengal Auqaf
Regulations 2008 and submits that in terms of 31 of the said Regulations the
Chief Executive Officer on authorization by the Board of Wakf, West Bengal
before registering the Wakf shall give notice of the application to the person
whose names appear in the Record of rights or their heirs and/or to the
persons said to be in possession of the Wakf property and shall hear him if he
wishes to be heard.
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Before proceeding to decide the matter in issue it is necessary to consider
Section 36 of the Waqf Act 1995 definition of Waqf and essential ingredients of
Waqf.’
Section 36 of the Waqf Act 1995 provides as follows:
S.36. Registration-1) Every [Waqf] whether created before or after the
commencement of this Act shall be registered at the office of the Board.
2) Application for registration shall be made by the mutawalli.
Provided that such application may be [made by the Waqif] or his
descendants or a beneficiary of the [Waqf] or any Muslim belonging to the seet
to which the [Waqf] belongs.
3) An application for registration shall be made in such form and manner
and at such places as the Board may be regulation provide and shall contain
following particulars.
a) A description of the [Waqf] properties sufficient for the identification
thereof.
b) the gross annual income from such properties.
c) the amount of land revenue cesses rates and taxes annually payable in
respect of the [Waqf] properties.
d) an estimate of the expenses annually incurred in the realisation of the
income of the [Waqf] properties.
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e) the amount set apart under the [Waqf] for
i) the salary of the mutawalli and allowances to the individuals.
ii) purely religious purposes.
iii) charitable purposes and
iv) any other purposes.
f) any other particulars provided by the Board by regulations.
4) Every such application shall be accompanied by a Copy of the [Waqf]
deed or if no such deed has been executed or a copy thereof cannot be
obtained shall contain full particulars as far as they are known to the
applicant of the origin nature and objects of the [Waqf]
5) Every application made under sub-section (2) shall be signed and
verified by the applicant in the manner provided in the Code of Civil
Procedure 1908 (5 of 1908) for the signing and verification of pleadings.
6) The Board may require the applicant to supply any further particulars
or information that it may consider necessary.
7) On receipt of an application for registration the Board may, before the
registration of the [Waqf] make such inquiries as it thinks fit in respect of
the genuineness and validity of the application and correctness of any
particulars therein and when the application is made by any person
other than the person administering the [Waqf] property, the Board shall
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before registering the [Waqf] give notice of the application to the person
administering the [Waqf] property and shall hear him if he desires to be
heard.
8)In the case of [Auqaf] created before the commencement of this Act,
every application for registration shall be made within three months from
such commencement and in the case of [Auqaf] created after such
commencement within three months from the date of the creation of the
[Waqf].
Provided that where there is no Board at the time of creation of a [Waqf]
such application will be made within three months, from the date of
establishment of the Board.
Section 3 (9)(r) of the Waqf Act 1995 defines Waqf as follows:
“waqf” means the permanent dedication by any person, of any moveable
or immoveable property for any purpose recognised by the Muslim Law as
pious religious or charitable and includes:
i) A waqf by user but such waqf shall not cease to be a waqf by
reason only of the user having ceased irrespective of the period of
such cesser.
ii) A Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other
name entered in a revenue record.
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iii) ‘grants’ including mashrat-ul-khidmat for any purpose recognized
by the Muslim law as pious, religious or charitable and;
iv) a waqf-alal-aulad to the extent to which the property is dedicated
for any purpose recognized by Muslim Law as pious religious, or
Charitable provided when the line of succession fails the income of
the waqf shall be spent for education development, welfare, and
such other purposes as recognised by Muslim Law.
And ‘waqif’ means any person making such dedication.
As per clause (s) of section 3 of the Waqf Act 1995. ‘Waqf deed’ means
any deed or instrument by which a [waqf] has been created and includes any
valid subsequent deed or instrument by which any of the terms of the original
dedication have been varied.
Thus the essentials of a valid Waqf is that declaration of dedication
should be made contemporaneously with the act of dedication. The Wakif must
divest himself of the ownership of the property. Physical delivery of the property
is not essential but such possession as is possible must be given. The three
essentials of a valid waqf are:
i) Perpetuity.
ii) Irrevocability.
iii) Inalienability.
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Thus from the essentials of valid waqf it is clear once a Waqf always a
waqf. There is no essential formality or the use of any expression or phrase or
term requisite for the constitution of a Waqf.
It has been held in different Judicial Pronouncements that a Waqf may
be made either verbally or in writing.
In the case of Mohd Imdadeullah VS Mst Bismillaco reported in AIR-1922
P.C. it was laid down that the dedication need not be express but may be
inferred from the facts and circumstances. Even if there is no express
dedication a property can be declared to be a Waqf property by mere user or
reputation.
Thus it is clear that Waqf can be created by Deed as well as orally but
the essential ingredients must be there.
In the instant matter the dispute is centred over 11 decimals of Land of
C.S. Plot No-3596 16 decimals of land of C.S. Plot No-3605 and 5 decimals of
Land of C.S. plot No. 3631. Plot No-3596 belonged to Nakpuri Bibi and Plot no.
3605 and 3631 belonged to Mohar Sheikh. The petitioners claimed to have
purchased the said plots from successive legally of Nakpuri Bibi and Mohar
Sheikh and thereby became the owner and occupier of the same. It is the
contention of the opposite party no-2 that from copy of RS ROR that the
disputed Plot No-3536 with the area of 11 decimals and Plot no. 3605 with the
area of 16 decimals of land was recorded in favour of village Masjid while one
Asraf was recorded as Muwawalli of the Masjid. It was further observed that
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plot No. 3631 with the area of 3 decimals was recorded in favour of Sayed
Abdul Sayeed and it would also be found from the copy of the registered deed
of Trust dated 17-07-1973 executed by Asraf in favour of applicant no-1 that
said Asraf made a declaration that his uncle Sayed Abdul Sayeed was the
owner of Plot no-3605 with the areas of 16 decimals and 2.5 decimals of Land
Plot No-3631 who donated the said land for the management and maintenance
of Village Masjid. It was also the contention of the opposite party no-2 that it
was Nakfuri Bibi who donated her land of plot no.- 3596 for the management
and maintenance of the Masjid.
Now with regard to plot no-3631 and plot no-3605 where there is an
existence of Trust Deed reflecting the particulars of the creation of Waqf the
said deed will speak for itself and there is no scope to re-open the issue.
However with regard to plot no. 3596, which is claimed to be a Waqf property
made by oral dedication it is incumbent upon the applicant who applies for
registration under Section 37 of the Waqf Act 1995 to give particulars of the
nature origin and object of the Waqf. Although waqf may be created orally
without waqf deed but at the time of registration of such waqfs under Section
36 of The Waqf Act 1995 the Board of Waqf should be cautious before ordering
such registration and shall consider all relevant particulars and in the event of
dispute or objection permit parties to adduce both oral and documentary
evidence and examine witness acquinted with the facts and thereafter arrive at
a conclusion as to whether the property is a Waqf property.
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In the instant case there is nothing on record to show that evidence were
adduced with regard to piece of land at Plot No. 3596 claimed to be donated by
Nakfuri Bibi. Neither any documents in support of such donation is filed except
the oral statement of opposite party no-2. Thus the findings with regard to Plot
no-3596 claimed to be donated by Nakfuri Bibi cannot be sustained and the
same should be set aside. The matter should be remitted to the opposite party
no-1 to re-consider the issue of donation by Nakfuri Devi of Plot No-3596 after
permitting the applicants and opposite party no-2 to adduce both oral and
documentary evidence.
As alienation of Waqf property without sanction of the Board is invalid
the opposite party no-1 shall ascertain from record, whether prior sanction was
obtained before sale of such property. In the event it is found that no sanction
was obtained for sale of Waqf property the Board shall consider if the transfer
can be regularized by treating it as a limited transfer of lease in accordance
with law. A special Officer should be appointed to enquire as to who is in
possession of plot no-3596, Plot No. 3605 and Plot no-3631. The Special Officer
shall also enquire as to whether there is any structure on the said plots and
how the said plots of Land are used. The said report shall also enclose a site
map giving the particulars. A photography of the village Masjid together with
these plots of Land shall be taken and furnished with the report. Upon
preparation of the report the Learned Special Officer shall submit the same
before the Board of Waqf opposite party no-1 herein within 4 weeks from the
date of communication of this order.
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Mr. Sahidul Islam Learned Advocate High Court Calcutta Bar Association
Room No-14, Mobile-9382591490 is appointed Special Officer. The Learned
Special Officer shall be entitled to a remuneration of 1000 G.M. to be paid by
the petitioners. The transport costs and other incidental costs to be incurred by
the Special Officer shall also be borne by the petitioners.
Hence this Revisional Application is allowed in part. The matter is
remitted back to the opposite party no-1 to decide the issue of donation by
Nakfuri Bibi of plot no-3596 upon permitting the parties to adduce evidence
and upon considering the Report of the Special Officer as observed above. The
opposite party no-1 shall also consider under Section 51 of Wakf Act that the
sales if made without sanction of the board whether can be regularized by post
facto approval and by treating it as lease in this case and the petitioners may
make representation in this regard.
The decision regarding reconsideration of the issue as observed above
and post facto approval, shall be by a reasoned order and communicated to the
parties.
Urgent photostat certified copy of this order, if applied for, should be
made available to the parties upon compliance with the requisite formalities.
(Biswaroop Chowdhury, J.)
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