Afsar Uddin Sarker Vs. Md. Aftabuddin & others

Appellate division Cases

(Civil)

PARTIES

Afsar Uddin Sarker ………………………Appellant

-Vs-

Md. Aftabuddin & others………………… Respondents

JUSTICE

Mahmudul Amin Choudhury.C.J

Md. Ruhul Amin. J

Abu Sayeed Ahammed. J

JUDGEMENT DATE: 19th May. 2002

Wakf Ordinance, 1962, Section 34,Sub-section 5 .

Wakf Ordinance, 1962, Section 34,Sub-section 5 of empowers and authoress legally the wakf administrator to make necessary amendment/change or variation of the “scheme” which also can be called “byelaws” for better management/administrator of any wakf estate if he considers it fit and necessary …………………..(3)

Civil Appeal No 128 of 1997 (Form the judgment and order dated 18.08.1997 passed by the High Court division Civil Revision. 1866 of 1997)

Fazlul Karim Senior Advocate instructed by Md. Nawab AH, Advocate-on-record …………..For the appellant

Mozammel Huq Advocate (appeared with the leave of the court) instructed by Mr. Md. Aftab Hossain. Advocate-on-record…………………. For the respondent No. 1-7

Not represented……………………… Respondent Nos. 8-16

JUDGEMENT

1. Abu Sayeed Ahammed J :This appeal is against the judgment and order dated 01.08.97 passed by a learned Single Judge of the High Court Division in Civil Revision 1866 of 1997 making the Rule absolute and setting aside the judgment and order dated 27.03.97 passed by the additional district Judge, Rangpur in Misc. Appeal 57 of 1994 by which the judgments and orders dated 01.08.94 and 03. 08. 94 passed by the administrator of wakf in E. C. No. 11966 being Traragonj wakf estate District Rangpur

were set aside.

2. The short facts leading to this appeal are that the said wakf estate was established since

time immemorial and was being managed well by the then Managing Committee till 1980. Thereafter a new Managing committee was formed with the petitioner appellant as the member secretary of the committee. The wakf administrator allowed vide order dated 06.08.84 the appellant petitioner to continue his function as the member secretary of the committee till formation of a new managing committee and accordingly a new committee was formed on 30. 04. 84 according to the proposal of the Upazila Chairman which was approved on 11.07 .85 by the wakf Administrator. Against that order., Misc, Appeal No. 90 of 1985 was preferred the learned Additional District Judge by order dated 19. 07. 1986 allowed the appeal and set aside the said orders of the wakf Administrator and directed the petitioner to continue as the Member Secretary of the Managing Committee. The administrator of wakf then vide his order dated 01. 08. 94 amended the scheme/bye-laws for management of the said wakf estate creating the post of a vice Chairman to work with the Chairman which was in existence from before empowering the Vice-Chairman to propose /suggest the names of the members of the managing committee and thereafter a new managing committee was formed by the administrator of wakf vide his order dated 03.08.94 and he approved the said managing committee later on. But the said order was challenged by the present appellant in Misc. Appeal 57 of 1994 .

3. The appeal was contested and it was allowed on 27.03.1996. Against that the present

respondent preferred the Civil Revision before the High Court Division and the High Court Division upon hearing both the parties made the Rule absolute and set aside the judgment and order of the learned Additional District Judge, Rangpur. The only submission made before us by Mr. Fazlul Karim, learned Counsel for the appellant is that the wakf administrator can not amend or change the scheme of the management of the said wakf estate. But we find that the provision of sub-section 5 of section 34 of the Wakf Ordinance, 1962 empowers and authoress legally the wakf administrator to make necessary amendment/change or variation of the “scheme” which also can be called

“bye-laws” for better management/administrator of any wakf estate if he considers it fit and necessary. Sub-section 5 of section 34 of the wakf Ordinance, 1962 reads as follows:

“The officer or agent or official mutawalli, or the managing committee appointed under sub-section (3) for the management of any wakf property taken over by the administrator under sub-section (1) shall frame a scheme for the administration of such waqf

property as nearly as possible in confirmity with the wishes of the waqf and the terms and conditions of the waqf and in accordance with the provisions of this Ordinance subject to the approval of the Administrator who may make such modifications in the scheme

as be considers necessary.”

4. Except that point. Mr. Karim did not raise any other point before us. We very meticulously considered the said provision of law and we are satisfied that the wakf administrator was very much within his legal ambit and jurisdiction to change/ modify the scheme or byelaws as made by the wakf administrator which has been upheld by the High Court Division.

5. Mr. Mozammal Huq, the learned counsel for the respondent submits that the administrator of wakf acted legally within his jurisdiction in amending the bye laws for management and administration of the wakf estate and as such his order of changing the scheme and of approval of the new committee for the same is also legal and within his legal authority. We find substance in the submission of Mr. Mozammal Huq. For the reasons and discussions made above, we find no merits in this appeal and accordidngly it is dismissed, with costs.

Ed

Source: I ADC (2004), 215

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