Waqf Status Demands Proof Not Presumption | Calcutta High Court Nullifies Oral Claim Over One Plot And Orders Fresh Inquiry
Isabella Mariam
The High Court of Calcutta Single Bench of Justice Biswaroop Chowdhury has partly allowed a revisional application challenging the enrolment of three land plots as Waqf properties. The Court set aside the inclusion of Plot No. 3596 from the registration, directing the Board of Waqfs to re-examine the claim of oral dedication by permitting all parties to present evidence. It also appointed a Special Officer to conduct a field inspection, submit a site report, and furnish photographs. The Court retained the registration of Plots No. 3605 and 3631 and allowed the Board to consider regularization of prior transfers under Section 51 of the Waqf Act, 1995.
The matter concerned three plots of land located in Mouza Dhitora under Murarai Police Station: Plot No. 3596 (11 decimals), Plot No. 3605 (16 decimals), and Plot No. 3631 (2.5 decimals). The petitioners, claiming title through successive purchasers, submitted that these lands were secular and not subject to Waqf. The property origins were traced to C.S. Khatians No. 1341 and 1407, where names such as Mohar Sheikh and Nakpuri Bibi were recorded as titleholders without reference to any waqf status.
The petitioners stated that through registered transactions, the lands had passed to them and were recorded under their respective L.R. Khatians No. 1998/1 and 2802/1. They contended that the Board of Wakfs relied solely on Column No. 23 of certain records, which indicated the presence of a mutawalli but did not confirm waqf status. According to them, the Chief Executive Officer (CEO) acted without valid documentary support and based the registration on oral assertions and an unverified Trust Deed dated 18 July 1973.
The CEO had recommended registration of the plots as waqf properties and appointed a mutawalli. This recommendation was confirmed by the Board of Wakfs in its meeting dated 25 February 2010. The recommendation included reliance on the alleged oral donation of Plot No. 3596 by Nakpuri Bibi and on a Trust Deed stating that Ashraf Ali had transferred mutawalliship to the petitioners, which the petitioners denied accepting.
The Waqf Tribunal dismissed the petitioners’ application under Section 83(2) of the Waqf Act, 1995, stating that the CEO was authorized to recommend enrolment under the applicable regulations and no jurisdictional error was apparent. The Tribunal cited Regulation 30(2)(III) and 30(2)(IV) of the West Bengal Wakfs Regulation, 2008, in support of the CEO’s actions and noted that an earlier Civil Court had stayed proceedings in a related title suit pending the Board’s decision.
Challenging the Tribunal’s decision under Article 227 of the Constitution of India, the petitioners contended that there was no proof of any waqf deed or valid oral dedication, and their recorded ownership in the L.R. Record of Rights, along with registered sale deeds, was sufficient to negate any claim of waqf. They argued that the Trust Deed was never disclosed to them and that oral claims of dedication by predecessors were neither supported by evidence nor in accordance with legal procedure.
The respondents, including the Board of Wakfs and the contesting parties, maintained that oral waqf creation is permissible and contended that once waqf status is acquired, the property remains waqf perpetually. They relied on C.S. and R.S. records to assert that the plots had been recorded in favor of village mosques, with named mutawallis appearing in Column No. 23. They also cited legal precedents from the Supreme Court, including Sayyed Ali v. A.P. Wakf Board and Kiran Devi v. Bihar State Sunni Wakf Board, to support their position.
Justice Biswaroop Chowdhury recorded, “It is clear that Waqf can be created by Deed as well as orally but the essential ingredients must be there.” The Court cited statutory definitions from Section 3(9)(r) and Section 36 of the Waqf Act, 1995, and noted that “once a Waqf, always a Waqf” remains a legal principle if the waqf was validly constituted.
It was further observed, “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, for Plot No. 3596, the Court stated, “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.”
The Court noted that the registration process under Section 36 of the Waqf Act, particularly where oral waqf is alleged, mandates procedural safeguards including evidence and inquiry. It held, “Although waqf may be created orally... the Board of Waqf should be cautious before ordering such registration and shall consider all relevant particulars... permit parties to adduce both oral and documentary evidence... and thereafter arrive at a conclusion.”
The judgment also clarified that “Record of Right does not confer any title,” and that “a Waqf may be made either verbally or in writing... the dedication need not be express but may be inferred from the facts and circumstances.” It cited Mohd Imdadeullah v. Mst. Bismilla (AIR 1922 P.C.) in support of this legal stance.
On the validity of the existing Trust Deed dated 17 July 1973, the Court stated that “with regard to plot no-3631 and plot no-3605... the said deed will speak for itself,” and no re-examination was necessary for those two plots.
The Court issued the following directions: “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 Court directed that: “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 Court further ordered the appointment of a Special Officer: “Mr. Sahidul Islam Learned Advocate... 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.”
The decision is to be communicated in a reasoned order: “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.”
Advocates Representing the Parties
For the Petitioners: Mr. Sumit Kumar Ray, Mr. Munshi Ashiq Elahi
For the Respondents: Dr. Chapales Bandyopadhyay, Ms. Anandamayee Dutta, Ms. Gargy Basu, Mr. Azizul Islam, Mr. S.K. Md. Galib, Mr. Abu Siddique Mallick
Case Title: Golam Mustafa Haidari & Anr. v. Board of Wakfs & Anr.
Case Number: C.O. 3733 of 2017
Bench: Justice Biswaroop Chowdhury
[Read/Download order]
