Dipankar Datta, J. - (1.) This writ petition, presented before this Court on 24th November, 2015, is at the instance of a trust registered under the Bombay Public Trust Act, 1950, and one of its several managing trustees.
(2.) The case run by the petitioners in the writ petition is that by virtue of a registered deed of gift (hiba -bil -ewaz) dated May 3, 1927 executed by her husband Hajee Sidick Jamal (since deceased), Jainub Bai Hajee Joosub (since deceased), a member of Khoja Sunnat community, became absolutely seized and possessed of or otherwise well and sufficiently entitled to the land, hereditaments and premises admeasuring 12 cottahs, 13 chittacks and 13 square feet situate at and being premises No. 4C, Auckland Square, Calcutta, now known as 'Benjamin Moloise Square' (hereafter the property), and constructed a two -storied brick built building and one storied out -office on a portion thereof. Jainab Bai Hajee Joosub (hereafter the waqif) had executed a waqf deed on 20th February, 1938, in terms whereof she would be the first mutawalli during her life time. After her demise, her husband and son (Mohammed Sidick Jamal, since deceased) shall become the next mutawalli in succession and thereafter, mutawalli would be elected amongst the male and female beneficiaries' as per the procedure laid down in the waqf deed. If no successor survives, the property shall be administered by the committee, the first petitioner, for the benefit of the poor Mussalman members of the trust. There being no survivor in the family of the wakif at present, as per the waqf deed, the property should have been allowed to be administered by the first petitioner.
(3.) It is the grievance of the petitioners that on 21st March, 2006, the Board of Auqaf (hereafter the Board) having taken over the management of the property in exercise of power conferred by Sec. 65 of the Waqf Act, 1995 (hereafter the Act) dehors the legislative mandate requiring exercise of powers by the Board in conformity with the directions of the waqif and the purposes of the waqf as well as in utter violation of the directions given by the waqif in the waqf deed relating to administration of the property by the first petitioner, decided on 20th February, 2014 to develop the property and to transfer the property on its development. For such purpose, on 8th April, 2014, a development agreement was executed by and between the Board and T.M. Construction Company, a firm of the fifth respondent. It is the further grievance of the petitioners that the Board has continued direct management of the property beyond the aggregate period of five years stipulated in sub -section (1) of Sec. 65 of the Act and has utterly mismanaged the affairs and administration of the property. They are also aggrieved because by the impugned development agreement, virtually 50% of right, title and interest of the property have been transferred to the fifth respondent including the right to enjoy rents, profits, usufructs, etc. in utter contravention of the provisions of Sec. 104A of the Act which expressly bars transfer of waqf property.;