Wakfs Ordinance (I of 1962)
Ss. 27(a) & 52— Administrator’s power to call for
account of the wakf property not limited to one year only under section 52 of
the Ordinance.
The Mutawalli has been directed to submit accounts of wakf estates
annually to the Administra tor. This does not restrict the powers of the
Administrator from asking for accounts of wakf estates from the Mutawallis
beyond the period of one year, because, in view of section 27(a), one of the
powers of the Administrator shall be to investigate and determine the nature
and extent of wakfs and wakf properties and calling from time to time for
accounts, returns and information from Mutawallis. This is a power given to the
Administrator in general and wide terms, and under this provision, if not under
section 52(a), the Administrator is given am- pie authority to call for
accounts of the wakf estate from the Mutawalli either present or past.
Yar Ali Khan Chowdury Vs. Administrator of Wakfs (1968) 20 DLR 535.
Ss. 29 and 30—Administrator can revise any provision of
a Wakf deed.
Section 29 read with section 30 of the Ordinance empowers the
Administrator to revise any provision of the wakf-deed which has become
inoperative owing to efflux of time and changed conditions.
Md. Abdul Jabbar Vs. Asia Khatun (1976) 28 DLR 233.
—When passing an order u/s. 32 (1) the Administrator of Wakfs acts
judicially and any such order passed without giving an opportunity to the party
affected by the order to be heard will not be a judicial order.
Shaukat Ali Vs. Administrator of Wakfs (1977) 29 DLR (SC) 276.
—Section 43 of the Act has no application where there is removal of a
Mutawalli under section 32. When a Mutawaili is removed under section 32 the
office falls vacant and calls for an appointment.
A. S Rashid Bakht Mazumdar Vs. Mukhtar Bakht Mazumdar (1967) 19 DLR 65.
—It could not be shown from any provision of the EP Wakf Ordinance that
a suit even if it be of a civil nature would not lie in a civil court of
ordinary jurisdiction.
Dildar Ahmed Vs. Farroque Ahmed (1975) 27 DLR (SC) 138.
—Any matter not envisaged in the provisions of s. 32 for the purpose of
removing a Mutwalli from his office, his removal will be illegal.
Mrs. Nadira Rahman. Vs. Sayed Mir Hossain (1983) 35 DLR 277.
—Section 32 enacts penal measures against the Mutwalli. Ibid.
—Proceeding before Wakf Administrator who functions as a court of law
should be in keeping with the norm and procedure of a court Ibid.
—Removal of a Mutawalli on grounds stated in section 32 of the Wakfs
Ordinance. Ibid.
—Administrator’s order passed u/s. 32 is subject to appeal to the
District Judge and the latter’s order fell under the revisional jurisdiction of
the High Court Division.
Golam Ataher Chowdhury Vs. Administrator of Wakfs (1984) 36 DLR 56.
—Ss. 32 & 38—Proceedings for removal of Mutawalli by
the Administrator arc of civil nature and are to be conducted in a manner
obtaining in Civil Court. In the enquiry sufficient materials must be brought
on record so as to enable the Appellate Tribunal to examine them and give its
decision as to the correctness of the order of removal. Contending parties must
have fair opportunity of placing their cases in regard to the dispute.
Nuruzzaman Vs. Secretary (1965) 17 DLR 46.
—Ss. 32 and 43—Administrator of Waqfs is a court
subordinate to the civil Court or the High Court Division only in respect of
orders he passes under sections 32 of the Ordinance.
Golam Ataher Chowdhury Vs. Administrator of Wakfs (1984) 36 DLR 56.
—Ss. 32, 43 and 44—An order u/s. 32 removing a mutawalli is
appealable before the District Judge whose order is open to revision by the
High Court Division. An order appointing a mutwalli u/s 43 is appealable to the
District Judge whose order is final. No appeal or revision lies against an
order passed u/s. 44. Ibid.
—Ss. 32 and 44.-When an order passed by the Administrator
falls within the scope of s.44 it can not be attacked indirectly by bringing it
under section 32 of the Ordinance. Ibid.
—S. 32(I)—Administrator of Wakf acts as a civil
court regarding removal of mutwalli.
Shauket Ali Vs. Administrator of Wakfs (1977) 29 DLR (SC) 276.
—Sections 37 & 38 read with s. 32 (1) provide necessary guideline for conduct of proceeding falling u/s 32. Ibid.
—Ss. 32(1) & 61(h)—It is doubtful
whether non-payment of dues of the beneficiaries by the MulawaLli in the
absence of convictions more than once under section 61 warrants his removal
from office under section 32.
Nuruzzaman Chowdhury Vs. Secretary, Education Department, Govt of East
Pakistan (1965)17 DLR 46..
—S. 32(2)—The remedy of appeal provided in
sub-section (2) of section 32 of the Ordinance is not an adequate remedy to
obviate the necessity to have recourse to Article 98 of the Constitution.
As the remedy of appeal provided in sub-section (2) of section 32 is
conditioned by the fact that the appellant has to make over possession before
filing the appeal, it is not an adequate remedy within the meaning of Article
98. It is certainly more inconvenient than the remedy provided in Article 98
and in that view of the matter at least it is not an adequate remedy. Ibid.
—Right of appeal by a Mutawalli— when available.
Right of appeal conferred under section 32(2) is available to any person
who functions as a MutawalIi and is then removed by the Administrator of Wakfs
in pursuance of the power given under section 32(1).
The persons who are appointed Mutawalli under sub-section (4) of section
32 as well as under section 43 are entitled to prefer an appeal under
sub-section (2) of section 32 if their removal is ordered by the Administrator
of Wakfs under the powers conferred on him by section 32(1).
AJM Asadullah Vs. AKM Ahmad-ul-Huq (1970)22 DLR 781.
S. 32(2),(3)—Decision of the Wakf Administrator can be
revised by the District Judge u/s 32(2) or on revision by the High Court u/s.
32(3).
Md. Adbul Jabbar Vs. Asia Khatun (1976) 28 DLR 333.
S. 34—The words “notwithstanding anything
contained elsewhere in this Ordinance” in sec. 34 of the Ordinance do not
exclude the attraction of the provisions of sections 37 and 39. If these three
sections are read together, the only meaning that appears to follow is that
section 34 only gives the power to the administrator to take over possession of
any wakf property. The procedure to be followed for doing so has been laid down
in sections 37 and 39. The provisions contained in sections 37 and 39,
therefore, do not go counter to the provisions of section 34. They are rather
supplementary to the provisions of section 34.
Maqbulal Haq Vs. Administrator of Wakfs (1965) 17 DLR 30.
—Ss. 34(4) & 43—Mutawalli appointed by the Administrator
of Wakfs under sections 32(4) and 43 is only to function as a Mutawalli in a
stop-gap arrangement as an acting Mutawalli until a regular appointment is made
in accordance with the provisions of Muslim Personal Law—Such appointment will
not disentitle any other competent person to bring proper action for an
appointment of regular and permanent Mutawalli.
AJM Asadullah Vs. AKM Ahmad-ul-Huq (1970)22 DLR 781.
S. 35—Appeal provided under section 35 of EP
Wakf Ordinance not an adequate remedy.
The provisions regarding appeal provided in section 35 of the Ordinance
cannot be considered to be adequate within the meaning of Article 98 of the
Constitution. In an appeal under section 35, Mulawalli or any person claiming
any interest in the property can only agitate that the property in question is
not a wakf property.
Maqbulal Huq Vs. Administrator of Waqfs (1965) 17 DLR 3O.
—Mutawalli before being removed must be given an opportunity to be heard
which is a personal right to him. AS Rashid Bakht Mazumdar Vs. Mukhtar Bakht
Mazumdar (1967)19 DLR 65.
Ss. 35 & 50—Administrator of Waqfs is authorized to
decide whether a particular property is a waqf property or not and his decision
can be challenged by the District Judge. Syed Masud Ali Vs. Md. Asmatullah
(1980132 DLR (AD) 39.
S. 37—Vexatious application not to be
allowed—Power for examination and audit of account under this section limited
to 3 years.
The proviso to section 37 of the Ordinance limits the power of
examination and audit of accounts to a period of three years prior to the date
of such application. From the provisions of this section, it is found no
vexatious applications should be allowed to be made by any person interested in
a wakf property or putting the ex-Mutawalli or a sitting Mutawalli to the
doscomfiture of explaining his conduct with regard to the management of the
property for a period of more than three years on charges of maladministration.
Yar Ali Khan Chowdhury Vs. Administrator of Wakfs (1968) 20 DLR 535.
—Ss. 37 & 39—[See under section 34 in case
of Maqbulal Huq Vs. Administrator of Wakfs in (1965) 17 DLR 30 above.]
S. 43—Administrator of Wakfs and District Judge may appoint a person
Mutawalli temporarily only I. e., for a specified period.
Under section 43 of the Ordinance the Administrator of Waqfs and in case
of an appeal, the District Judge, may appoint a person to act as Mutawalli only
for a specified period which he deems fit in the circumstances of the case. It
is obvious that the Administrator has been empowered to make a temporary
appointment limited to a specified period. He cannot pass an indefinite order
of appointment without any limitation as to the duration of the office of the
Mutawalli appointed by him. The power of the District Judge in appeal is also
similarly limited.
Abdul Jabbal Vs. Attahar Ali (1965) 17 DLR 246.
—A revision to the High Court will lie against the decision of the
District Judge in appeal under section 43 of the Act.
The Administrator of Waqfs appointed a Mutawalli without notice to the
persons interested as required under section 43 of the Ordinance. The
petitioner preferred an appeal to the District Judge against Administrator’s
order and the District Judge upheld the decision of the Administrator. The
petitioners thereafter moved the High Court on revision. It was contended that
the District Judge was a ‘persona designata’ and did not act as a Court and as
such no revision lies against his order before the High Court.
Held: There is no real antithesis between the
expressions ‘persona designata’ and ‘Court’. Even a persona designata may be a
Court which depends upon his powers and the functions which he has to
discharge.
In the present case the appeal has got all the ingredients of an appeal
and the District Judge is to determine the rights of the parties as
contemplated under section 43 of the Ordinance. That being so the revisional
application is competent.
Md. Khurshed Alam Vs. Amir Sultan Ali Haider (1969) 21 DLR 799.
—When functions performed are judicial functions even though a Court has
been described by official designation it acts as a Court. Ibid.
—The words “District Judge” in section 43 of die Ordinance includes the
Additional District Judges also in respect of disposal of appeals under that
section. Therefore, an appeal as contemplated in section 43 of the Ordinance
could be heard and disposed of by an Additional District Judge and no
illegality has been committed in the present case because the same has been so
disposed of by the Additional District Judge.
Forrukh Ahmed Vs. Nazir Ahmad alias Badsha Mia (1973) 25 DLR 225.
—Administrator’s power of appointing a Mutawalli when there is none or
for any other reasonable grounds.
Md. Abdul Jabbar Vs. Asia Khatun (1976) 28 DLR 333.
—Administrator can also override the terms of a wakf-deed—Section 43 of the Ordinance further empowers the Administrator to
override the terms of the wakf-deed for appointment of Mutawalli, if there
appears to him any impediment to the appointment of Mutawalli in terms of the
wakf-deed. Ibid.
—District Judge—Expression ‘District Judge’ as occurs in
section 32 of the Wakfs Ordinance means Court and not a persona designata. Ibid.
—District Judge’s function in disposing of an appeal against an order of
Administrator of Wakfs—In hearing an appeal from the order of the
Administrator of Wakfs made under this section the District Judge is required
to decide a dispute regarding the right to the office of MutawalIl claimed by
two or more parties. This he can only do after hearing them and taking such
evidence as may be considered necessary and also after hearing arguments on
both facts and law which he is supposed to interpret and apply.
Amir Sultan Ali Hyder Vs. Md. K Alam (1977) 29 DLR (SC) 295.
—District Judge has the same legal power as the Administrator u/s. 43 in
appointing a Mutawalii. Ibid.
—District Judge’s decision though made final is however open to revision
by the High Court. Ibid.
—Administrator of Wakf is without powers to remove a Mutwalli, he can,
however, appoint one in certain contingencies. Ibid.
—In case of dispute as to who will be the Mutawalli, the Administrator
while appointing Mulawalli for a specified period has to refer the parties to a
Civil Court.
Altaf Miah. Vs. Md. Anwar Hossain (1983) 35 DLR (AD) 108.
—Contest between the two claimants could not be treated as an impediment
as contemplated in section 43. Ibid.
Appointment of Mutawalli u/s. 43 is for a temporary period only—Mutawalli, appointment of—Principle generally followed in case of
vacancy in the office of Mutawalli, a member of the Wakif’s family will be
preferred and a senior member in preference of a junior. Ibid.
—As against the Administrator’s order u/s. 43 appointing a Mutawalli, an
appeal to the District Judge will lie, and then a revision against District
Judge’s order will lie to the High Court Division.
Golam Ataher Chowdhury Vs. Administrator of Wakfs (1984) 36 DLR 56.
—Ss. 43 & 51—Appointment of a successor muuiwalli by
the Administrator on the basis of an enquiry report by the Inspector of
Waqfs—Administrator on the question of successor has to make a decision without
referring the parties to civil Suit.
Altaf Miah Vs. Md. Anwar Hossain (1983) 35 DLR (AD) 108.
S. 44—Appointment of official mutawalli by the Administrator.
By section 44 of the Waqf Ordinance, the Administrator has been
empowered to appoint an ‘official mutawalli’, notwithstanding anything
contained in this Ordinance or i,i any other law in force or in any deed or
instrument, such as waqf deed. According to the waqf-deed, the appellant is a
fit person for appointment as Mutawalli, and, in fact, he was so appointed. But
provisions of section 44 override all other things contained either in the
waqf-deed or elsewhere in this Ordinance. The appellant was appointed mutawalli
by the Administrator in terms of the waqf-deed. But in view of the
circumstances, as stated, the Administrator modified his earlier order
appointing the appellant as mutawalli and proceeded to appoint a committee of
five persons to act as Mutawalli under section 44.
Golam Ataher Chowdhury Vs. The Administrator of Waqfs (1984) 36 DLR (AD)
203.
—The word “an official mutawalli” in sA4 of the Ordinance include also a
number of Mutawallis, whenever found necessary, for the management of the waqf
estate. Ibid.
Ss. 47, 49 & 50—Mere enrolment of a property as a waqf
u/s. 47 or u/s. 49 is not a decision u/s. 50.
Syed Masud Ali Vs. Md. Asmatullah (1980)32 DLR (AD) 40.
S. 47(2) (Ss. 34 and 35).
“A person interested in the waqf and “any person claiming any interest
in the property”. Difference between the two expressions. Ibid.
—An application for enrolment can be made by “a person interested in the
waqf” and that expression has been defined in the definition clause. But if we
refer to section 35, we find that along with the Mueawalli the other person who
has been given the right to challenge the notification made under section 34 is
“any person claiming any interest in the property”. A comparison of these two
expressions in these two sections with reference to the expression used in
proviso to section 50 clearly shows three different expressions have been used
in the same statute. The Legislature in the same statute has in different
context used different expressions. It is a well- accepted principle of
interpretation that where different language is used in the same statute
different intention is to be presumed unless there is in the context anything
to hold to the contrary. Ibid.
S. 50—The expression “any person aggrieved” in
sec. 50 means any person who is interested to challenge the order made under
this sub-section. Ibid.
—“In question’—What the word “question” means. The word “question” in
section 50 of the Waqf Ordinance means that either there is some challenge or
some dispute regarding the character of the waqf property or some determination
of the waqf character of the property is in question. Ibid.
—Mere enrolment of a property as waqf under section 47 or 49 is not a
decision under section 50 of the Ordinance as to waqf character of the
property. Ibid.
—A petition envisaged under section 50 of the Ordinance lies only when a
person is aggrieved by any decision or order of the Administrator.
In the present case, the Administrator’s order was directed against the
Mutawalli alone and so far as the Khadims were concerned the order was passed
ex-parte and the Khadims were not given the opportunity of being heard.
This being the position the Khadims has no cause of action for
presenting a petition under section 50 as the order was not binding on them.
Administrator of Wakfs Vs. Mohammad Irfan Mia (1968)20 DLR 150.
—The Administrator has been authorized to decide whether a property is
waqf or not when such a question is agitated. The persons involved in disputing
such property may be person not interested in the waqf and person who is a
total stranger to the waqf.
Syed Masud Ali Vs. Md. Asmatullah (1980) 32 DLR (AD) 39.
—Administrator’s jurisdiction attracted when dispute is whether a
property is waqf or not—Then question to be decided by the Administrator within
a reasonable time. Ibid.
—Expression “Any person interested” in S. 50 may be a person not
interested in the waqf. Ibid.
Proviso—”Any person aggrieved” means any person
interested to challenge the Order made u/s. 50. Ibid.
S. 51—A prospective Mutawalli, upon the death or
removal of a Mutawalli, is required to notify the change to the Administrator.
Amir Sultan Ali Hyder Vs. Md. K Alam (1977) 29 DLR (SC) 295.
S. 52—Every Mutawalli is bound to render
accounts for the period he is either singly or jointly in charge of the estate
not necessarily for the purpose of detection of mal-administration.
Yar Ali Khan Chowdhury Vs. Administrator of Wakfs (1968) 20 DLR 535.
S. 53—Allegation against a Mutawalli about
breach of trust is subject to the scrutiny by the auditor u/s. 53—A Magistrate
acts illegally if he assumes powers of scrutiny vested in an auditor u/s. 53.
Md. Showkat Rabbani Vs. Md. Showkat Osmani (1983) 35 DLR 176.
—A charge of criminal breach of trust against a Mutawalli could only be
maintained after an adjustment of account. Ibid.
—Vague allegations against the Mulawalli as to his failure to disburse
dues to the beneficiaries or other act of misappropriation by him do not make
out a case of breach of trust. Ibid.
S. 64—Section 4(1) of the Waqf Ordinance
provides for eviction of trespassers to waqf land—In a case where the
Administrator of Waqf prayed for eviction of the trespassers under section
64(1) of the Ordinance, the Magistrate has got no jurisdiction to draw up a
proceeding under section 107 C.r.P.C. against such trespassers ignoring the
specific provision of section 64(1) of the Ordinance which provides for
eviction of trespassers.
Hashi Meah Vs. Aminut Islam Chowdhury (1971) 23 DLR 184.
—S. 64(1)—Where persons alleged to have trespassed
into the waqf land are in fact in possession of the land in assertion of their
right of claim over the land it is not proper to draw proceeding against them
under section 107 CrPC. Ibid.
S. 83—Administrator has no power to fix rent of a wakf property which is
to be done by resort 10 Civil Court.
The Administrator has no authority to assess the rental of the wakf property.
On the other hand, under the provisions of section 83 of the Ordinance,
whenever it becomes necessary for the Mutawalli or for the Administrator to
realise any money due to the wakf property, resort has to be taken to institute
a suit or proceeding in a Court either against a stranger to the wakf or
against any other person.
Yar Au Khan Chowdhury Vs. Administrator of Wakfs (1968) 20 DLR 535.
S. 102—The deed shows that the wafk has
earmarked the income amounting to Rs. 19,200/- to be spent for maintenance of
his descendants. The Mutawalli has no discretion but to carry Out the direction
of the wakif in terms of the wakf deed. This amount is devoted to the purposes
of the wakf al-alaulad and according to the terms of the deed ‘applied’ to said
purpose.
Director of Taxation Vs. Mehdi Ali Khan Panni (1980) 32 DLR (AD) 140.
—If the Mutawalli or trustee has set apart or deemed to have set apart
the income of the wakf-alal-aulad according to the direction of the donor, he
has devoted it for the purpose of said wakf, and therefore he has ‘applied’ the
income ‘thereto’ for the purpose of the wakf. Ibid.
S. 102—Provisions in the Waqf Ordinance to be followed excluding those
of CP Code.
The Waqf Ordinance being a special statute providing a special procedure
to be followed the cognizance of the Civil Court is to that extent excluded.
The exclusion is again enacted in section 102 of the Ordinance.
Syed Masud Ali Vs. Md. Asmatullah (1980)32 DLR (AD) 140.