Court’s Decision
The Calcutta High Court partly allowed a revisional application under Article 227 of the Constitution, setting aside the findings of the Waqf Tribunal regarding one of the disputed plots (Plot No. 3596) and remitting the matter to the Waqf Board for fresh consideration. The Court directed the Board to permit parties to adduce oral and documentary evidence regarding the alleged oral dedication by Nakpuri Bibi, and appointed a Special Officer to investigate the physical status and usage of the plots in question.
Facts
The petitioners claimed ownership of three plots—C.S. Plot No. 3596 (11 decimals), Plot No. 3605 (16 decimals), and Plot No. 3631 (5 decimals)—situated in Mouza Dhitora. They argued that these plots were purchased through registered deeds from individuals having clear title. The petitioners contended that neither the C.S. nor R.S. Khatians contained any reference to the land being Waqf property. They alleged the Board of Waqfs wrongfully declared these lands as Waqf based solely on entries in Column No. 23 and an unverified Trust Deed allegedly created by one Ashraf Ali.
Issues
- Whether there was any valid oral or written dedication to constitute a Waqf in respect of the disputed plots.
- Whether the CEO of the Waqf Board had the authority under Regulation 30 of the West Bengal Waqf Regulations, 2008 to enrol the properties as Waqf and appoint a Mutawalli.
- Whether the Waqf Tribunal erred in confirming the enrolment of the land as Waqf without evidence of valid dedication.
Petitioner’s Arguments
The petitioners argued that:
- There was no documentary proof or contemporaneous declaration to establish a valid waqf.
- The CEO relied upon mere oral assertions and unverifiable records to declare the land Waqf.
- The petitioners’ names were duly recorded in the Record of Rights and they held title via registered sale deeds.
- The Trust Deed dated 18 July 1973 was never presented before the CEO and the petitioners never accepted it.
Respondent’s Arguments
The Board of Waqfs and the opposite party contended:
- That Plot Nos. 3596 and 3605 were orally dedicated by their original owners, including Nakpuri Bibi and Mohar Sheikh, to the village mosque.
- The R.S. Record of Rights reflected these lands in favour of the mosque with a Mutawalli named in Column No. 23.
- Once a valid Waqf is created—even orally—it remains Waqf property forever and any alienation without the Board’s sanction is void ab initio.
- Record of Rights does not confer title, and any manipulation of plot numbers (e.g., merging Plot No. 3605 into 3618) does not nullify the Waqf character.
Analysis of the Law
The Court examined Sections 3, 36, and 51 of the Waqf Act, 1995 and emphasized that for a valid Waqf, a clear declaration of dedication must be made, and the Wakif must divest ownership. While waqf can be created orally, sufficient proof—documentary or through credible witnesses—is essential, especially during registration. Oral assertions alone are insufficient.
Precedent Analysis
- Sayyed Ali v. AP Wakf Board (1998) 2 SCC 642: Once a Waqf, always a Waqf.
- Kiran Devi v. Bihar State Sunni Wakf Board (2021) 15 SCC 15: Record of rights does not confer ownership or negate Waqf character if validly created.
- Mohd. Imdadeullah v. Mst. Bismilla (AIR 1922 PC): Waqf need not be expressly declared; it can be inferred from long-standing user or conduct.
These were cited to emphasize that Waqf need not be by deed alone but must satisfy the core requirements.
Court’s Reasoning
The Court held that while there may be material to support Waqf character in Plot Nos. 3605 and 3631 due to the existence of a Trust Deed, Plot No. 3596—allegedly dedicated by Nakpuri Bibi—was only claimed to be orally dedicated, without any corroborating evidence or deed. The court concluded that:
“Findings with regard to Plot No. 3596 claimed to be donated by Nakpuri Bibi cannot be sustained…”
The Waqf Board failed to conduct any inquiry or permit the petitioners to lead evidence.
Conclusion
The revisional application was allowed in part. The High Court:
- Set aside the Tribunal’s order regarding Plot No. 3596.
- Directed the Waqf Board to conduct a de novo inquiry into the oral dedication claim.
- Appointed Advocate Mr. Shahidul Islam as Special Officer to inspect the plots and submit a site report with photographs and usage details.
- Directed that the Board shall also determine whether the alleged transfers could be regularised as leases under Section 51 of the Waqf Act.
Implications
This decision reaffirms that:
- Oral dedication must be proved by evidence before declaring any land as Waqf.
- The Waqf Board must act cautiously, especially when no registered deed exists.
- Entries in land records or oral claims without inquiry cannot be the sole basis for registration as Waqf.
