Section 89 Waqf Act 1995 | Suit Without Prior Mandatory Notice Disclosing Cause Of Action Is Not Maintainable: Calcutta High Court

"No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board" Calcutta High Court, in a significant ruling dated September 18, 2026, held that compliance with Section 89 of the Waqf Act, 1995, is a mandatory condition precedent for maintaining a suit against the Waqf Board.

Justice Md. Shabbar Rashidi, while exercising powers under Article 227 of the Constitution of India, observed that a notice under this provision must explicitly state the cause of action and the specific relief claimed, failing which the suit is liable to be dismissed at the threshold.

The petitioner filed a revision application challenging a judgment of the Waqf Tribunal which dismissed their suit seeking a declaration of property as a Waqf estate and a permanent injunction against the defendants. The plaintiffs, claiming to be descendants of the founder (Wakif), alleged that the defendants were treating Waqf properties as secular, personal assets. The Tribunal had dismissed the suit primarily on the grounds of failure to prove the essential Waqf documents, lack of locus standi, and non-compliance with statutory notice requirements.

The core legal issues addressed by the Court were whether the suit was maintainable despite the failure to produce original Waqf deeds or Tauliatnama, and whether the non-compliance with the mandatory notice requirement under Section 89 of the Waqf Act, 1995, rendered the suit non-maintainable. The Court also examined whether the High Court, in its supervisory jurisdiction under Article 227, could grant relief not pleaded by the parties.

Failure to Prove Dedication

The Court observed that the plaintiffs failed to produce the foundational documents, such as the original Waqf deed or the Tauliatnama, to establish the specific nature of the dedication. Without these documents, the intention of the Wakif regarding the appointment of Mutawallis and the terms of the Waqf remained unascertainable. The Court noted that the plaintiffs cannot succeed solely by highlighting the weaknesses in the defendants' case.

Mandatory Nature of Section 89

The Court underscored that Section 89 of the Waqf Act, 1995, is a statutory mandate requiring a two-month prior notice to the Board of Auqaf. Crucially, the Court held that the notice must contain a clear statement of the cause of action. In the present case, the notice issued by the plaintiffs was found to be defective, failing to satisfy the requirements of the Act, thereby barring the institution of the suit.

No Relief Without Evidence

Addressing the contention that relief could be granted based on the defendants' admissions, the Court clarified that while courts may grant relief on admitted facts, the plaintiffs failed to establish their own capacity as Mutawallis or beneficiaries. The Court emphasized that the burden of proof rests squarely on the party initiating the litigation, and the absence of documentary evidence left the claim unsubstantiated.

Scope of Article 227

The Court highlighted that its jurisdiction under Article 227 is limited to the legality and propriety of the impugned order and is not an exercise of appellate power under the Code of Civil Procedure, 1908. Consequently, it refused to pass directions for the correction of records of rights that were not formally established through evidence during the trial.

Dismissal of Revision

Concluding the matter, the Court held that since the plaintiffs could not establish their locus standi or prove the essential nature of the properties through registered deeds, and given the failure to comply with mandatory statutory notice, the Tribunal’s decision to dismiss the suit was legally sound. The revision application was accordingly disposed of.

Date of Decision: 18 September 2026