- (1.) By filing this application under article 227 of the Constitution of India the petitioners challenge the order impugned dated 23rd February, 2012 passed by the ld. Presiding Officer, Wakf Tribunal, Ghatal, West Bengal in OA 16 of 2009. The petitioners are represented by Shri Mahamadul Hassan, Ld. Counsel. The opposite party nos.1-3 are represented by Md. Safiullah Mondal, Ld. Counsel.
(2.) The brief facts of the case, according to the petitioners are as follows:- a) That the petitioners filed an application for enrolment before the Wakf Tribunal of land measuring about 3.79 acres in the name of Pirottar Gazi Saheb Wakf Estate (hereinafter refer to for short as the said Wakf Property or the Wakf Property or only the Wakf). The said application for enrolment was registered as Misc. EC case no. 51 of 2006. b) That Misc. EC case no. 51 of 2006 was considered for enrolment and grant of Mutwalliship in respect of the said Wakf property on 11th August, 2008 by the M.E. Committee. Both the parties, i.e. the petitioners and the Opposite Parties were directed to appear before M.E. Committee on 11th August, 2008 vide memo no.815 dated 1st August, 2008. c) The M.E. Committee at its meeting dated 11th August, 2008 unanimously resolved to appoint the petitioners as Mutwallis of the said Wakf Property for a period of 5 years in terms of Section 63 of the Wakf Act, 1995 read with Section 3(i) of the said Act. Misc. EC case no. 51 of 2006 was renumbered as EC case no. 15415. d) The resolution dated 11th August, 2008 was confirmed by the Board of Wakfs on 30th September, 2008 as per provisions of Section 63 of the Wakf Act. Challenging the order of confirmation the opposite parties filed a suit for declaration before the Ld. 1st Civil Court (Jr. Div.) at Chinsurah, Hooghly being Title Suit 252/08 claiming their right, title and interest over the Wakf Property. It was, inter alia, contended by the Opposite Parties that the said Wakf Property is actual a secular property belonging to the Opposite Parties and not a Wakf Property at all. Although from the schedule of property appended to the plaint it will appear that the property in respect of which Title Suit 252/08 was filed and the property in respect of which the resolution was adopted on 11th August, 2008 and confirmed on 30th September, 2008 are identical. e) The petitioners where thereafter constrained to file a separate application for enrolment of the Wakf Property measuring about 46 decimals of land in the name of Pirottar Panch Pir Wakf Estate which was registered as Misc. EC case no. 51/06 (A) (hereinafter referred to for short as the Pirottar Gazi Saheb). In respect of the Misc. EC case no.51/06 (A) the Board of Wakfs issued a general notice for publication and thereafter issued a notice for hearing on 6th November, 2008. The petitioner contends that the said Misc. EC case no. 51/06 (A) is still pending disposal before the Board of Wakfs. f) The Opposite Parties in the meantime filed the writ application before this Single Bench being WP No. 2154 of 2009 challenging the resolution dated 11th August, 2008 and praying for a direction on the Board of Wakfs to allot two separate EC Nos. for two separate proceedings in connection with of Pirottar Gazi Saheb and Pirottar Paanch Pir along with other prayers. It was, inter alia, contended by the Opposite Parties in the said writ application that the Board of Wakfs had amalgamated both the Wakf Properties including both Misc. EC case no. 51/06 and 51/06 (A) and, upon amalgamation a common EC Case no. 15415 was given without bifurcating the Wakf Properties. The petitioner alleges that the prayers made in the such petition were fraudulent in as much as both the Misc. EC case no. inspite of distinct Wakf Properties Pirottar Gazi Saheb and Pirottar Paanch Pir were different and while Misc. EC case no.51/06 was decided in favour of the Mutwalli of the petitioners, Misc. EC case no. 51/06/(A) of Pirottar Pir Wakf Estate is still pending without a notice or enrolment or a notice of hearing. g) That by the order dated 6th March, 2009 an Hon'ble Single Bench of this Court was pleased to direct as follows:- "The grievance of the writ petitioners is that despite the petitioners having made an application for enrolment of the Wakf Estate in respect of the properties of Pirottar Gazi Shaheb, such application has been clubbed with another and a common committee of Mutwallis has been formed." The petitioners say that there is no basis to such order made by the Board of Wakfs and submit that in the absence of any Presiding Officer at the Wakf Tribunal, the petitioners have no other efficacious alternative remedy. The Wakf Board will consider the feasibility of bifurcating the two applications, namely the application relating to the properites of Pirottar Pir Gazi Shaheb and Pirottar Pir Panch Pir. The Board of Wakfs should consider the matter and afford the writ petitioners an opportunity of being heard before taking a resolution. The decision of the Board should be reasoned and should be communicated to the petitioners. Such decision should be taken within a period of twelve weeks from date. The petition has been considered only in respect of the relevant resolution of the Board of Wakfs at its meeting held on August 11, 2008 and the other grievances of the petitioners have not been gone into since the order made may make such other grievance irrelevant. h) The petitioner further contends that on the basis of the order dated 6th March, 2009 the Board of Wakfs called the parties for a hearing on 11th May, 2009. At the hearing on 11th May 2009 the petitioner has contended through its Ld. Counsel before the Board of Wakfs that the two Wakf Estates were Distinct and cannot be treated together. However, the petitioner received a memo dated 23rd March, 2009 wherein it was contended that the Opposite Parties have been given and appointed for the period of 5 years as Joint Mutwalli under Section 63 of the Wakfs Act with the direction to submit yearly statement of account. The Board of Wakfs was pleased to modify its earlier resolution dated 11th August, 2008 accordingly. The Board proceeded on the basis that the order of the Hon'ble High Court be complied with and the properties may be considered for bifurcating by amending the resolution dated 11th August, 2008. i) Being aggrieved by the order of the Board of Wakfs dated 23rd September, 2009 the present petitioners filed original application before the Wakf Tribunal which was registered as OA 16 of 2009 under the provisions of Section 83 (2) of the Wakf Act, 1995. The Opposite Party filed an affidavit in opposition to OA 16 of 2009 and Board of Wakfs was pleased to decide the same by the order impugned dated 23rd February, 2012. The Board, inter alia came to the finding that Misc. EC case no. 51/06 (A) in connection with Pirottar Pir is still pending for enrolment and appointment of Mutwalliship. According to the Ld. Tribunal, the Board was duty-bound to dispose of the same as early as possible. The Ld. Tribunal further came to the conclusion that in view of its observation made in the body of the judgment for bifurcating of the Wakf properties, there is no reason to interfere with the order passed by the Board of Wakfs in EC no. 15415/Misc. EC no.51/06. Accordingly, the order under challenge dated 11th May, 2009 which was confirmed by the Board of Wakfs on 28th May, 2009 was confirmed. OA 16 of 2009 was therefore rejected.
(3.) Shri Hassan, appearing for the petitioners, contends that Mutwalliship of his clients granted in connection with Ec 51/06 is for 5 years and expires in the year 2014. Shri Hassan further contends that the dispute is going on between the parties since the year 2009. It is further contended that no question of bifurcating of two Wakf Properties can arise. He points out that in respect of EC 51/06 recording has already been done and there can be no clubbing of EC 51/06 with EC/51/06 (A).;