- (1.) This writ petition was moved by the petitioner No. 1 who is the Company and the petitioner No. 2 who is the Director of the petitioner company praying for- a) A writ in the nature of Mandamus and/or order or direction of like nature commanding the respondents Nos. 1 and 2 to forbear from treating the abovementioned premises No. 12, Gurusaday Road, Calcutta as a part of any Wakf Estate and further commanding the said respondents to withdraw, rescind and/or cancel any decision obtained or permission and/or sanction granted in respect of the said property to respondents Nos. 3, 4, 5 and 6 or any one of them and to forbear from giving any effect or further effect to any such decision and/or permission and sanction and further to forbear from granting any sanction or permission under Ss.53-54 of Bengal Wakf Act 1934 in favour of any one and further to act in accordance with law in respect of the said property. b) A writ in the nature of Certiorari and/or an order and/or direction of the like nature commanding the respondents Nos. 1 and 2 to certify and transmit to this Hon'ble Court the records relating to the said premises so that conscionable justice may be administered and upon the records being so certified and transferred to quash the impugned decision and/ or permission and/ or sanction in respect of the said premises No. 12, Gurusaday Road, Calcutta and/or any order or documents or records that may be adverse to the petitioners' right, title and interest in respect thereof.
(2.) The case of the petitioners in short is that by a Deed of Wakf (referred to as `wakfnama) dt. 20th May 1946 one Rani Sayeeda Khatoon (referred to as `Wakifa) created a Wakf in respect of various properties including premises No. 12, Gurusaday Dutta Road, Calcutta. It is stated that the Wakf was created for the benefit of the wakifa and her descendants and for certain religious and charitable objects. It is stated that in the line of succession to the mutwalliship of the wakf estate laid down in the wakifa, she was to be the first mutwalli and she was to be succeeded by Kishwar Jehan alias Fahmida Khatoon and her descendants dying and after her and/or her descendants, Kumar Sumare Singh alias Md. Muslim shall become mutwalli and after him his eldest male descendants and so on. It is stated that the said premises No. 12, Gurusaday Dutta Road was duly enrolled by the wakifa in the Office of the Commissioner of Wakfs, West Bengal in 1950, under the provisions of S.44 of the Bengal Wakf Act 1934. It is stated that Clause 12 of the Wakfnama expressly authorised the mutwalli to transfer the wakf properties and that pursuant to such power, the wakifa herself by a duty registered Deed of Exchange dt. 6th March 1962 exchanged the above mentioned premises No. 12, Gurusaday Dutta Road, Calcutta for a property in Aurangabad in the District of Gaya in Bihar of equivalent value for convenience of management. The said Deed of Exchange was effected by the Wakifa between herself and her son, Kumar Fateh Singh. It is alleged that by virtue of the said Deed of Exchange, premises No. 12, Gurusaday Dutta Road, Calcutta was taken out of the purview of the wakf estate and ceased to be wakf property and the right, title and ownership of the said property came to be vested in Kumar Fateh Singh. It is further alleged that the wakifa gave due notice to the Commissioner of Wakf as provided under S.53(2) of the Bengal Wakf Act. It is stated that after having acquired the premises No. 12, Gurusaday Dutta Road, Calcutta by the Deed of Exchange dt. 6th March 1962, Kumar Fateh Singh by a Conveyance dt. 14th Feb., 1963 which was duly registered before the Registrar of Assurances, Calcutta on 20th March 1963 sold and conveyed the said premises to the petitioner No. 1 Murray and Company subject to the lease granted in favour of Zulekha Begum and a sub-lease granted by the said lessee on 1st Dec., 1960 in favour of the respondent No. 7, Kumar Sumare Singh for a term of five years with option of renewal of three terms of five years each till the 20th year. It is stated that after purchase of the aforesaid property by the petitioner company, the said Zulekha Begum executed a Deed of Surrender of Lease on 23rd Oct., 1963 in favour of the petitioner company. It is further alleged that the respondent No. 7 who was the sub-lessee had been paying rent to the petitioner company after the tenancy was upgraded. The further case of the petitioner is that after acquiring the said property, the petitioner No. 1 got its name duly recorded in all the municipal records of the Calcutta Municipal Corporation and was paying municipal rates and taxes and that the petitioner company had filed a suit for ejectment against the respondent No. 7 M/s. Eastern Scales (P) Ltd. It is further stated that on or about 1983 the respondents Nos. 3 and 4 namely Raghubir Singh, a son of late Kumar Fateh Singh and Md. Shuja son of late Kumar Amar Singh filed a title suit No. 48 of 1983 against the respondent No. 5 Kumar Sumare Singh wherein the petitioner company was impleaded as defendant. The said suit was instituted for a declaration that the Deed of Exchange dt. 6th March 1962 was illegal, void and of no legal consequence. The said suit was instituted in the court of Learned Sub-Judge Aurangabad, Bihar. The said suit was decreed ex parte on 30th Nov., 1984 and therafter, the petitioner company filed an application under O.9, R. 13 of the Civil P.C. and that thereafter the said ex parte decree was set aside by the order dt. 25th Feb., 1988. Ultimately the said suit was dismissed on the ground that the said suit was not maintainable in that court. It is stated that against the said order dt. 28th July 1988 by which the suit was dismissed as the Court had no jurisdiction, an appeal is pending before the High Court at Patna. Cause of action for moving the writ application as it is alleged by the petitioner is that the Commissioner of Wakf, West Bengal had granted permission for granting long term lease of premises No. 12, Gurusaday Dutta Road in favour of Lake View Properties Pvt. Ltd., the respondent No. 6 herein at the instance of mutwalli of the wakf estate, Musst. Sayeeda Khatoon.
(3.) It is contended on behalf of the petitioner company that the Commissioner of Wakf, West Bengal had no authority and/or jurisdiction to grant permission for leasing out the said premises to the respondent No. 6, inasmuch as, the said property was no longer the wakf property as premises No, 12, Gurusaday Dutta Road was exchanged by the Deed of Exchange dt. 6th March 1962 between Rani Sayeeda Khatoon of the one part and Kumar Fateh Singh of the other part by which the Kumar Fateh Singh who according to the petitioner was the mutwalli in respect of Aurangabad property in lieu of premises No. 12, Gurusaday Dutta Road whereby Kumar Fateh Singh became the owner of premises No. 12, Gurusaday Dutta Road and Rani Sayeeda Khatoon who was the mutwalli in respect of premises No. 12, Gurusaday Dutta Road became the owner of properties in Bihar. It was further contended that the petitioner was in possession of property in question since the transfer of the property and the name of the petitioner was duly recorded in the register of the Calcutta Municipal Corporation and that when the suit filed by the respondents Nos. 3 and 4 was dismissed by the learned Sub-Judge Aurangabad, it is no longer open to decide the question of right, title and interest of the petitioner by the Wakf Commissioner. It was further submitted that the property is ceased to be a wakf property and has become the absolute property of the petitioner company and as such the Commissioner of Wakf had no jurisdiction to interfere with the right, title and interest of the petitioner company in the said property. It was further submitted that the said order of the Commissioner of Wakf would have the effect of dispossessing the petitioner from the property in question without due process of law.;