Appellate Division – Mohammad Fazlul Karim – C.P.Nos. 1398 of 2003

Wakf Ordinance (I of 1962)

Sections 2(6), 43 and 44

While the writ petitioner, nominated Mutwalli was expecting for approval of his Mutwalliship, the respondent 2, Wakf Administrator all on a sudden most illegally issued a Memo dated 07-01-2003 constituting a Managing Committee of 6 (six) members when the writ petitioner was nominated by the heirs including last Mutwalli, Serajuddin Shah as Mutwalli when the writ petitioner had been carrying on the day to day business during ailment of his father, last Mutwalli .The High Court Division declared the impugned order to have been passed without lawful authority and setting aside the same directing the Administrator of Wakf to appoint the writ petitioner as the Mutwalli of the Wakf Estate to manage the same. It appears that appointment of Mutwalliship in the absence of any deed has been continued through linenal decendants. The Administrator of wakf has althrough been recognizing the Wakf a private Wakf and the right of Mutwalliship is belonging to the decendants of the great saint and the Wakf is being maintained through the Mutwalli nominated by the said beneficiaries of the Wakf..

…. (2, 3, 6 to 8)

IN THE SUPREME COURT OF BANGLADESH

                                              (Appellate Division)

                                                       Present:

Mr. Justice Mohammad Fazlul Karim

Mr. Justice M.A. Aziz

Mr.Justice Amirul Kabir Chowdhury

         CIVIL PETITION FOR LEAVE TO APPPEAL NO.1398 OF 2003

(From the judgment and order dated 25th May 2003 passed by the High Court Division in Writ Petition No. 1350 of 2003)

AlhajMd.Chowdhury Alam and :                                                      …………..Petitioners

Others

-Versus-

Md. Nasiruddin Shah and            :                                                       …………Respondents

For the Petitioners                       : Mr. Khondker Mahbubuddin  Ahmed,Senior

Advocate, (Mr. S.M Munir, Advocate with him),

instructed by Mr.Md.Nawab Ali, Advocate-on-

Record.

For Respondent No. 1                : Mr. Rokanuddin Mahmud, Senior Advocate, (Mr

A.K.M. Zahirul Huq.Advocate with him), instructed

byMr.Md.Aftab Hossain, Advocate-on-Record.

Respondent Nos. 2-4                 : Not represented.

Date of hearing                         : The 6th day of November, 2004.

                                                 (Judgment)

                   Mohammad Fazlul Karim, J .  This petition for leave to appeal at the instance of Alhaj Md. Chowdhury Alam, Commissioner , Ward No. 56, Dhaka City Corporation and Secretary, Pir Yameni Market Shop Owners Association and others is directed against the judgment and order dated 25.5.2003 passed by a Division Bench of the High Court Division in Writ Petition No. 1350 of 2003.

  1. 2.                     The respondent No. 1 as the writ petitioner moved the High Court Division challenging the Memo No. O: Pro: Dha: U/239(6) dated 7.1.2003 issued by the petitioner No. 2, the Administrator of Waqf of Bangladesh Constituting the managing committee of Hazrat Malek Pir Yameni (R) Nazar Waqf Estate (E.C No. 11276) stating, inter alia, that Hazrat Malek Shah Pir Yameni  (R) Mazar Waqf Estate (E.C. No. 11276) has been run and managed by members of writ petitioner’s family since its creation. The first Mutwalli of the said Waqf  Estate was Mohammad Raja Shah, after his death his son Samiruddin Shah was the Mutwalli and after the death of said Samiruddin Shah, his son Bashiruddin Shah was Mutwalli and therafter son of Bashiruddin Shah and father of the writ petitioner Bashiruddin Shah was Mutwalli till his death. That it was also stated that Serajuddin Shah nominated the writ petitioner as his successor-in-Mutwalli during his tenure of Mutwalliship of the Estate and vested the responsibilities of managing the affairs of the Waqf Estate  and since then the writ petitioner is performing his duties as Mutwalli as if a successor nominated by the predecessor in office. Moreover, writ petitioner was making correspondences with the respondent No. 2 and other persons. That while the writ petitioner is performing his duties as mentioned Mutwalli of the said Waqf Estate , his father Serajuddin Shah Died on 22.1.2002 and the writ petitioner as nominated Mutwalli filed an application before the respondent No. 2 annexing a power of attorney of the members of the family of his father for approval of his nomination as Mutwalli by his deceased father. That the father of the writ petitioner developed the Waqf Estate by constructing a multi-storied market building and allotted the same to different shop keepers who are the tenants of the Waqf Estate and some land are lying vacant behind the said market building and another market building could be constructed. The petitioner as a designated Mutwalli is trying to do so and some tenants of the Estate are making obstruction to the said program to have illegal gain. The respondent Nos. 4 and 5 of the writ petition are creating serious obstruction hampering the development work and also interfering with the normal affairs and management of the Waqf Estate. That when the writ petitioner was waiting for approval of his Mutwalliship the respondent No. 2 of the writ petition all on a sudden issued a letter vide Memo No.O:Pro:Dha:U:239(6) dated 07.01.2003 violating the law and constituted a Managing Committee of 6 members making the respondent Nos 4 and 5 of the writ petition as Chairman Secretary respectively of the said Committee and the writ petitioner was made a member of the said Committee.
  2. 3.                     The High Court Division made the rule absolute declaring the impugned order to have been passed without lawful authority and setting aside the same and directing the Administrator of Waqf petitioner No. 2 to appoint the respondent No. 1 as the Mutwalli of the Waqf Estate to manage the same forthwith.
  3. 4.                     Mr. Khondker Mahbubuddin Ahmed, the learned Counsel appearing for the petitioners submitted that having regard to the fact that there is no deed of Waqf or other instrument relating to the instant Waqf spelling out mode of succession to the office of Mutwalli and in view of definition of Mutwalli provided in section 2(6) of the Waqf Ordinance, 1962 and the provision of section 43 and 44  thereof the High Court Division has erred in making the rule absolute . The learned  Counsel further submitted that Mutwalli of the instant public Waqf having been appointed by the Waqf Administrator whenever there had been a vacancy, exercising authority under section 43 of the Ordinance  and there being no legal obligation to appoint any one from the family of the last Mutwalli, High Court Division has erred in making a direction to the petitioner as the Mutwalli on the principle enunciated in the case reported in 35 DLR (AD) 108. The learned Counsel lastly submitted that the Estate is a public Waqf without any instrument to govern appointment/succession of Mutwalli, family members of the last having no special claim to the office in preference to any other, High Court Division has erred in terming such others as “stranger” to give preference to the petitioner.
  4. 5.                     Mr. Rokanuddin Mahmud, the learned Counsel appearing for the respondent No. 1 has, however, submitted that in view of the appointment of Mutwalli of Waqf Estate through linenal descendents and that there is no objection of the beneficiaries to the appointment of a competent linenal descendent as a Mutwalli of the Waqf Estate, the 6 Member Committee constituted by the Administrator of the Waqf is illegal, malafide and without jurisdiction in presence of full ,capable and competent members of the Waqf family for appointment as a mutwalli out of them.
  5. 6.                     It appears from the record that Hazrat Malek Shah Pir Yameni (R) Mazar Waqf Estate was enrolled for the first time with the Administrator of Waqf by order dated 29.11.1947 as EC No. 11276 ; though there is no Waqf deed but Mohammad Raja Shah was the first Mutwalli of the said enrolled Waqf Estate being a member of Waqif’s family. After his death his son Samiruddin Shah was the Mutwalli and after his death his son Bashiruddin Shah was the Mutwalli and after his death his son Serajuddin Shah become Mutwalli. During his life time he was illegally removed as a Mutwalli by the Administrator of Waqif for which he moved the High Court Division wherein the rule was discharged ; against which he moved  the Appellate Division in Civil Petition for Leave to Appeal No. 1175 of 1999 and leave was granted but during the pendency of the appeal, appeal abated. The writ petitioner was nominated by the heirs including Serajuddin Shah as Mutwalli of the Waqf to succeed him and he had been carrying on the day to day business during ailment of his father and also filed an application for his appointed as Mutwalli to the Administrator of Waqf mostly illegally by memo dated 7.1.2003 constituted a 6 Member Committee for Managing Director of the Administrator of Waqf Estate .
  6. 7.                     Mr. Khondker Mahbubuddin Ahmed though alleged that the Waqf Estate is a public Waqf  and referred to C.S. Khatian showing that the same as Lakharaj Waqf of Salimullah and used to manage by Court of  Wards appertaining to District Dhaka Mouza Sadar J.L. Khatian No. 16817 P.S. Kotowalli Pargana Jahangirnagar, Touji No. 5227 Khatian Mighata under certain Plots being therein Nos. 177, 178, 179, 180, 189, the description of which pucca building cutcha road D.V.  pond and  D.B. but subsequently the subject -matter of the said Waqf estate centering round the Mazar of Hazrat Malek Shah and its adjuncts was enrolled as a Waqf Estate being E.C. No. 11278 and that appointment of Mutwalliship in the absence of  any deed has been continued through linenal decendants.
  7. 8.                     The Administrator of Waqf has althrough been recognizing the Waqf as a private Waqf and the right to Mutwalliship is belonging to the decendents of the great saint and the Waqf is being maintained through the Mutwalli nominated by the said beneficiaries of the Waqf.

                       In view of the above, we do not find any substance in the submission of the learned Counsel for the petitioner.

                 The petition is, accordingly, dismissed.

The 6th November 2004

/iua/ words count “1,428”

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