- (1.) THE Mutawalliship and Enrolment Committee (hereafter the Committee) of the Board of Wakfs, West Bengal (hereafter the Board) adopted a resolution on June 29, 2011 appointing a Committee Mutawalli of 11 (eleven) members to administer the affairs of Hazi Rousan Ali Wakf Estate (hereafter the said estate) for a period of 5 (five) years in terms of provisions contained in Section 63 read with Section 3(i) of the Wakf Act, 1995 (hereafter the Act). THE resolution was confirmed by the Board in its meeting held on July 13, 2011.
(2.) THE petitioner challenged appointment of the Committee Mutawalli in respect of the said estate by presenting an application under Section 83(2) of the Act before the Tribunal constituted in terms of Section 83(1) thereof. In connection with such application, the petitioner had applied for stay of the resolution under challenge. THE Presiding Officer of the Tribunal by order dated July 27, 2011 declined stay on the ground that the provisions of the Act do not empower him to stay the operation of the resolution under challenge during pendency of the application under Section 83(2) thereof. The order dated July 27, 2011 is the subject matter of challenge in this revisional application. Mr. Munshi, learned advocate for the petitioner refers to a judgment dated August 12, 2011 passed by this Court while disposing of C.O. 2519 of 2011 (Manjur Rahaman Khan v. The Board of Wakfs, West Bengal and ors.). It was held therein, on consideration of the decision of the Supreme Court reported in 2010 (12) SCALE 323 = (2011) 1 WBLR (SC) 308 (Board of Wakf, West Bengal v. Anis Fatma Begum and anr.), that the Tribunal does enjoy the power to stay operation of the resolution under challenge before it in view of the provisions contained in Section 83(5) of the Act. He, accordingly, prayed for an order to set aside the order impugned and for a direction on the Tribunal to consider his prayer for stay.
(3.) MR. Roy, learned advocate for the opposite parties 2 to 4 opposed the application. He contended that the Presiding Officer of the Tribunal was right in passing the impugned order since the provisions of the Act do not empower him to grant interim stay pending decision on an application filed under Section 83(2) of the Act. It is the specific contention of Mr. Roy that in terms of Section 83(5) of the Act, the Tribunal would be deemed to be a Civil Court and entitled to exercise such powers that are available to be exercised by the Civil Courts in terms of the Code of Civil Procedure (hereafter the Code) only if the Tribunal is in seisin of a suit instituted before it and not otherwise. In support of his submission, Mr. Roy placed reliance on the decision of the Supreme Court reported in 2010 (2) CLJ (SC) 233 (Syed Mohideen and anr. v. Ramanathanpura Peria Mogallam Jamath and ors.). It was further contended that the decision in Syed Mohideen (supra) was not noticed either by the Supreme Court in Anis Fatma Begum (supra) or by this Court while deciding Manjur Rahaman Khan (supra) and that the former decision having correctly interpreted Section 83(5) of the Act, the order of the Presiding Officer impugned herein does not warrant interference and ought to be upheld based thereon.;