Waqfs Ordinance, 1962

Key Provisions of the Waqf Ordinance 1962

Section—32

An
application for removal of a Mutwalli may be filed by any person being
interested in the Waqf property. There is no bar in the Ordinance that once an
application for removal of the Mutwalli is rejected, a subsequent application
under section 32(2) cannot be filed. Therefore, the principle of res judicata
has no manner of application under section 32 of the Ordinance.

Md. Azizul
Hoq v. The Administrator of Waqf, Government of Bangladesh and others, 22 BLD HCD)
223.

 

Section—32(2)

 

Constitution
of Bangladesh, 1972, Article—102(2)

An
alternative remedy by way of appeal under a statute will not be a bar to a writ
petition under Article 102(2) of the Constitution if there is a non-relaxable
pre-condition for bringing the appeal.

In
the instant case the constraint of relinquishing the office of Mutawalli prior
to bringing an appeal is non-relaxable and as such the High Court Division was
wrong in summarily rejecting the writ petition merely because the appellant had
an alternative remedy under subsection (2) of section 32 of the Ordinance.

Tafizul Huq
Sarker Vs Bangladesh and others, 18 BLD (AD) 269.

Ref:
17 DLR (1965) 46; 19 DLR (1967) 592; 42 DLR (AD)167; 16 BLD (AD) 83; 46DLR(AD)
191; 1 5DLR(SC) 181—Cited.

 

Sections—32(2)
and 43

Sub-section
(2) of Section 32 of the Wakf Ordinance mandates that the removed Mutwalli is
to hand over charge and without complying with such requirement of the proviso
to sub-section (2) of Section 32, no appeal can be entertained by the court
against the order of removal.

In
this case the learned Judges of the High Court Division rightly found that the
appeals were filed against that order but in the memorandum the appellant
mentioned section 43 in order to mislead the court. The finding on merit
equally is based on consideration of materials that the order of removal was
passed for mismanagement of the Wakf Estate and for misappropriation of the
fund. These findings of the learned Judges of the High Court Division do not
call for any interference.

Maulvi Afsar
Uddin Haider and another Vs A.M. Mahiuddin & ors, 19 BLD (AD) 302.

 

Section—38

It
provides that for the purpose of an enquiry under the Ordinance, the Wakf
Administrator shall have the power to summon and enforce the attendance of the
witnesses, including the interested parties, to examine them, to compel the
production of necessary documents and to issue commissions for examination of
witnesses in the same manner as is available to a Civil Court under the Code of
Civil Procedure.

In
hearing an appeal from the order of the Wakf Administrator, the District Judge
is required to decide the dispute regarding the right to the office of the
Mutwalli claimed by the contending parties on hearing them and after taking
necessary evidence. The District Judge acted illegally in passing the impugned
judgment and order without examining any witness and the relevant documents in
connection with the disputes.

Md.
Afazuddin Mollah and others Vs. Mobarak Au Munshi and others, 14 BLD (HCD) 242.

 

Sections—35
and 50

Section
50 empowers the Wakf Administrator to determine the question as to whether a
particular property is wakf property or not. Any person aggrieved by the
decision or order of the Administrator may submit a petition to the District
Judge under Section 35(1) of the Ordinance within three months from the date of
such decision or order. Section 50 of the Ordinance provides an adequate and
sufficient relief in a proceeding to determine the character of the wakf
property. The jurisdiction of the Administrator and the District Judge or any
Civil Court are not parallel, alternative or cumulative.

 

Md.
Afazuddin Mollah and others Vs. Mobarak Au Munshi and others, 14 BLD (HCD)242

 

Section—50

Section
50 of the Ordinance provides that when there is a dispute as to the Wakf
character of a property raised whether before or after the enrolment of the
Wakfs, such dispute must be raised before the Administrator of Wakfs. The Wakfs
Ordinance being special statute providing special procedures. it must be availed,
of first and the jurisdiction of the civil Court in such cases is expressly
barred. It is thus found that the entire proceeding before the learned
Assistant Judge is a coram non-judice as he had no jurisdiction to entertain
the suit.

Chairman,
Santosh Islami University Vs. Nil Mahmud and others, 15 BLD (HCD) 542.

 

Section—64(1)
(2)

Against
an order of eviction passed under Section 64(1) of the Wakf Ordinance, an
appeal lies under Section 64(2) of the Ordinance before the District Judge
whose decision shall be final but it made no provision for appeal in case of
rejection of an application under Section 64 of the Ordinance.

Md.
Afazuddin Mollah and others Vs. Mobarak Ali Munshi and others, 14 BLD (HCD)242

Ref:
31 DLR(AD) 249; 40 DLR 428; 18 DLR 52; 39DLR 451—Cited

 

Section—102

It
provides that no decision or order of the Administrator shall be questioned in
any suit or proceeding in any Court except as otherwise expressly provided in
the Wakf Ordinance. This ouster of jurisdiction of the Civil Court is attracted
only after the Administrator has given a decision or order as to the character
of the disputed property.

When
the jurisdiction of the Wakf Administrator under Section 50 of the Ordinance is
not invoked, power of Section 102 is not attracted.

Md. Afazuddin
Mollah and others Vs. Mobarak Au Munshi and others, 14 BLD (HCD) 242.

 

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