Safiya Malik

The Calcutta High Court has set aside the judgment and decree passed by the Waqf Tribunal, West Bengal, in Suit No. 38 of 2017 and has remanded the matter for fresh adjudication. The Court observed procedural irregularities in the Tribunal’s findings, particularly regarding the non-consideration of essential documents. The Tribunal has been directed to re-examine the case on its merits after taking into account the documents submitted by the petitioner.

The civil revision application, C.O. 1450 of 2022, was filed under Article 227 of the Constitution of India by the petitioner, Md Mahafuzul Anwar @ Mahafuzul Anwar, challenging the judgment and decree dated May 6, 2022, and May 12, 2022, respectively, passed by the Waqf Tribunal, West Bengal. The dispute involved a declaration and khas possession of a tenanted flat located at 13/1, Taltala Lane, Kolkata, with a valuation of ₹8,280.

Before filing Suit No. 38 of 2017, the petitioner had initiated a criminal proceeding against the opposite parties through Taltala PS Case No. 159 dated November 21, 2017, under Sections 420, 406, 120B, and 339 of the IPC, which was subsequently tried by the Judicial Magistrate, 20th Court, Calcutta. In connection with this proceeding, the investigating officer had seized crucial documents, including the original tenancy agreement dated May 22, 2015, the original possession letter dated December 14, 2015, and five original rent receipts. These documents were included in the charge sheet and submitted before the Magistrate for trial.

At the time of filing Suit No. 38 of 2017 and during the Tribunal’s adjudication, the petitioner did not have possession of the original documents, as they remained with the criminal court. The petitioner relied on the seizure list, which was marked as Exhibit-7, to establish the existence of these documents. The Waqf Tribunal, however, dismissed the claim on the ground that the petitioner had failed to summon the records from the criminal court for verification and proof of the tenancy agreement. The Tribunal held that in the absence of original documents, the petitioner's claim could not be substantiated.

The High Court examined the contentions of both parties and considered whether the Waqf Tribunal had appropriately addressed the petitioner’s claim. The Court noted that the Tribunal had decided against the petitioner primarily on the ground of non-production of the original tenancy agreement. However, the petitioner had retrieved the original documents only on June 23, 2022, after the Tribunal’s judgment had already been passed on May 6, 2022, and the decree was drawn on May 12, 2022.

The Court stated: "A bare perusal would make it abundantly clear that the judgment of the suit was passed on 6th May 2022, and the decree was drawn on 12th May 2022. Whereas, the petitioner got back the specific documents mentioned above only on 23rd June 2022, i.e., after the passing of the judgment by the Tribunal. Therefore, in common parlance, it can easily be understood that at the relevant point of time, the petitioner did not have possession of the said original documents and the existence of those documents was never in dispute."

The Court further examined whether the Tribunal was obligated to summon the records from the criminal court. It was observed that: "It is a settled proposition of law that if a document is required for adjudication in a civil matter, the Tribunal may request it, even if it is currently lying with a criminal court. However, this is contingent upon the relevance of the document to the issues being adjudicated. Therefore, keeping in mind the nature of the suit and also for just adjudication, the Waqf Tribunal could have easily called for the record of the tenancy agreement from the criminal court if it was deemed to be relevant for the adjudication of the dispute in hand."

The Court held that the Tribunal’s findings on the main contentious issue contained irregularities, warranting interference.

The High Court set aside the judgment and decree dated May 6, 2022, and May 12, 2022, respectively, passed by the Waqf Tribunal in Suit No. 38 of 2017. The matter has been remanded to the Tribunal for fresh adjudication strictly on merit after considering the documents that the petitioner is required to submit within two weeks from the date of communication of this order.

The Court directed: "The matter is remanded back to the Ld. Waqf Tribunal for fresh adjudication strictly on merit after taking into consideration all the necessary documents with regard to exhibit 7 (seizure list) to be filed at the behest of the petitioner within two (2) weeks from the date of communication of this order. It would be open for the Tribunal to take additional evidence on the said documents if deemed necessary for just adjudication."

The Court held that the Tribunal should not be influenced by any observations made in the High Court’s judgment while disposing of the suit. It was further stated: "However, I would like to make it abundantly clear that the Ld. Tribunal should not be influenced by any observation made hereinabove in any manner whatsoever while disposing of the suit."

The revision application was accordingly allowed. The Court specified that no order as to costs was being passed.

The parties were permitted to act on the server copy of this order downloaded from the official website of the Court. Additionally, the Court directed that if any party applied for a certified copy of this judgment, the same be supplied upon compliance with requisite formalities.

Case Title: Md Mahafuzul Anwar @ Mahafuzul Anwar v. Syed Anowar Hossain & Ors.
Case Number: C.O. 1450 of 2022
Bench: Justice Bibhas Ranjan De

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