Sections — 2(6) and 43
Appointment of minor mutwalli and guardian of minor Mutwalli — Guardian of the minor Mutwalli can be appointed to act as Mutwalli till the minor attains majority.
It must be held that during the mimrlty of. a Mutwalli the guardian of the minor could be appointed to act as Mutwalli by the
Administrator of Waqfs till the minor attains majority.
Wasef Ali Chowdhnry and others Vs. Sekandar Rahman & ors., 4 BLD (HCD) 104.
Section — 32(2)
Waqf — Appeal of Mutuawalli against order of his removal is not incompetent on ground of his failure to handover charge prior to filing of appeal, if the failure is due to circumstances beyond his control or intervention of a Court of law—The appeal will simply not be heard until he cloud is removed and the appellant is in a position to hand over charge.
Abul Hashem alias Abul Hashem Talukder Vs. Administrator of Waqfs and others, 1BLD (HCD) 63
Sections —32 and 43
Wakf Administrator — Whether he is a Court subordinate to the civil Court — It cannot be said that just because the District Judge exercises appellate power over the Administrator under sections 32 and 43 of the Ordinance, the Administrator is a Court subordinate to the civil Court in respect of all other orders passed by him under the Ordinance.
Golam Ather Chowdhury Vs. The Administrator of Waqfs and others, 4BLD (HCD) 130
Sections — 32, 43 and 44
‘Official Mutawalli’—Whether the appointment of a committee of persons offends the provisions for official Mutawalli — Though the word official Mutwalli’ has been used in singular’ yet this expression includes its plural also under the General Clauses Act — So instead of one person appointed as the official Mutawalli a committee for five persons has been so appointed—Against an order under section 44 neither an appeal nor any revision lies — But appeal and revision shall lie if stigma is attached to the aggrieved party by such order — The order has not been challenged as arbitrary or capricious — This being an innocous order for the benefit of Wakf Estate no interference is called for.
Golam Ather Chowdhury Vs. The Administrator of Waqfs and others, 5BLD (AD)7
Sections —32 and 33
Exclusion of time in computing time of limitation to file a case — Whether exclusion prescribed under section 14 of the Limitation Act is applicable in a case of special law — If a person in good faith prosecutes his legal proceedings in a wrong forum he should be entitled to exclude this period in computing the period of limitation under a special law, such as the Waqf Ordinance in the instant case In the facts and circumstances, it cannot be said that the respondent started her proceeding in good faith and consequently she is not entitled to the benefit of section 14 of the limitation Act.
Syed Ainir Hossain Vs. Mrs. Nadera Rahman, 5BLD(AD)317
Ref: 53 C.W.N. 159; A.I.R. 1929 Cal 325; I.L.R. All XXXIV (1912)496—Cited.
Sections — 32, 43 and 47
Appointment of Mutawalli—Whether Administrator of Wakfs can appoint Mutawalli at the time of enrolment of Wakf — The Administrator can appoint a Mutawalli when another Mutawalli was removed or when there is no Mutawalli of a Wakf Estate or there is impediment in appointing a Mutawalli in terms of the Wakf deed or when the successor of the Mutwalli is a minor, insane or insolvent —-The Administrator has no jurisdiction to appoint Mutawalli under section 47 of the Wakf Ordinance while enrolling the Wakf.
Basiruddin Ahmed Vs. Abdur Rahman, 6BLD (HCD) 128
Sections — 32, 43 and 51
Appointment and removal of the Mutawalli—Whether Administrator after removal of a Mutawalli and appointment of another person in his place can review the said order and appoint another person as Mutawalli — When appointment of a Mutawalli is made under section 32(4) he cannot be removed until a regular appointment is made in a properly constituted suit in pursuance of the provisions of Muslim Personal Law — The Administrator acted without jurisdiction by arrogating to himself the
power of the civil Court by terminating the appointment of the petitioner and substituting respondent No. 2 in her place as Mutawalli.
Latifunnessa Bibi Vs. The Administrator of Wakfs, Bangladesh and others, 7BLD (HCD) 2I7
Section — 32
Erroneous finding—Where the parties were in litigation for a long time, the finding of the learned Additional District Judge to the effect that the provision of section 32 of the Waqf Ordinance has been violated has no basis at all in as much as the learned
Additional District Judge has totally misconstrued the judgment of the Appellate Division as well as the materials on record and thereby came to an erroneous finding to that effect that the provision of section 32 of the Waqf Ordinance has been violated in the instant case.
Amir Sultan Au Hyder Vs. Khorshed Alam alias Shah Alam and another, 12BLD (HCD)317
Sections —35 and 50
Condonation of delay in filing appeal — Whether delay in filing appeal within the time prescribed by a special law can be condoned by the Court — Delay in filing an appeal against the order of Administrator of Wakf cannot be condoned by the Court as
section 5 of the Limitat4on Act is not applicable in view of section 29 of the Limitation Act.
Serajuddin and others Vs. Ahmed Fazlur Rahman and another, 6BLD(HCD)258
Ref. A.I.R. 1949 (Lah) 299; A.l.R. F980 (Kerala) 82; AIR. 1976 (SC)105; A.I.R.l978 (Madhya Prodesh) 245 — Cited.
Sections — 35, 50 and 102
Jurisdiction—Jurisdiction of the civil Court if ousted impliedly when the Administrator of Wakfs has been vested with the power to adjudicate whether a prbperty is Wakf property?—Whether civil Court can decide whether a property is wakf property or
not when such dispute was not raised before the Administrator of Wakfs—There is no express ouster of jurisdiction of the civil Court to entertain any suit to decide wakf character of a suit property. It is only when the Administrator of Wakfs gives a decision or order in relation to a property that Court’s jurisdictioir is expressly ousted—Wakf Ordinance provides for an adequate,
sufficient and comprehensive forum and procedure to decide the question as to whether a particular property is Wakf property or not — It is fit and proper that the Administrator should be seized with the determination of the limited questionof wakf character of the property and the aggrieved party may go to the District Judge and then to the High Court Division for redress — So there is an implied bar of ciyil Courts to decide such question.
Syed Shah Mohaminad Ojman Ghani Vs. Bangladesh and others, 8BLD(HCD)26
Réf: 1859 6 C.B.N.S. 336(356): 141 E:R. 486 (1897)AC 615(622) ILR3I Bom604 (609) AIR 1934 All 795 AIR 1937 All 365: A.I.R.1949 Lahore 131 (FB); (1959) All. E.R. (3) 1; (1957) 1 All.E.R. 825: (1908) 77 L J Ch 924 (1832) 8 .8mg 394 32 DLR (AD) 39 — Cited.
Section — 43
Appointment of Mutawalli—The Administrator can make an appointment for a specied period leaving the parties for adjudi cation of their disputes by a civil Court—Administrator cannot arrogate to himself function of the civil Court which is not authorised by law.
In the instant case respondents Anwar Hossain, informed the Administrator that after the death of. his father Moyna Mia he has assumed the office of Mutawalliship. When this claim was challenged by Altaf Mia, a cousin of Anwar Hossain, it was the duty of the Administrator to make an appointment in terms of section 43 for a specified period thereby leaving the parties for adjudication of the dispute by a civil Court. Instead, he made au enquiry and attempted to evaluate the claim of each candidate which the High Court rightly described as arrogating to himself the functions of the civil Court. Such action on the part of the Administrator is not authorised by law. [Majority view : Per B.H. Chowdhury, J; Munim, C.J. and A.T.M Masud, J. concurring].
Ref: A.I.R. 1961 (SC)1095 —Cited
Sections —43 and 51
Appointment of Mutwali—Administrator may decide the question of succession to mutawalliship — He is not to refer the
parties to civil Court by appointing one of the parties for a specified period for adjudication.
The learned Judge of the High Court Division unsuccessfully commented that the Administrator .has arrogated to himself the function of the civil Court in determining the competency between the two claimants. The remarks are unfair. The Administrator, in discharging his functions is required to decide the question of succession. In such a case he is not required to refer the parties to the Civil Court for determination of competency to the mutwalliship—If in such a case the Administrator instead of deciding the question of succession as contemplated under section 51, passed an order under section 43 in favour of one of the two persons to act as Mutwalli for a specified period, and thereby driving the parties to the civil Court for adjudication, in that case, he would be failing in his duties as conferred under the Wakfs Ordinance, 1961.
[Minority View : Per R. Islam, 3. (S. Ahmed, J concurring)]
Altaf Miah Vs. Md. Anwar Hossain and another, 3BLD (AD)212
Appointment of Mutwalli—Appointment of Mutwalli and issuance of notice to the persons interested in the Waqf — Issuance of notices prior to the appointment of Mutwalli is not necessary.
Wasef Ali Chowdhury and others Vs. Sekandar Rahinan and others, 4 BLD (HCD) 104
Order of Waqf Administrator — Question of finality — Administrator has the power to appoint a Mutawalli in certain cases Person aggrieved by such an appointment may appeal to the District Judge and the decision of the District Judge shall be final — Inspite of the case of the word ‘final’ a revision there- ‘after lies to the High Court Division.
Golain Ather Chowdhury Vs. The Administrator of Waqfs and others, 4BLD (HCD)130
Ref: 22 DLR 781; 34 DLR(AD)108: 17 DLR 246 — Cited.
Permanent Mutwalli—There is no scope for appointment of a permanent Mutwalli under section 43 of the Wakf Ordinance.
Abdul Khaleque Sowdagar Vs. Aba Jafar and others, 12BLD(HCD)426 .