Waqfs
Ordinance [I of 1962]
Section 2(10)—
In the
absence of enrolment of a property as Waqf the Administrator cannot treat the
same as “waqf by user.”
In the
instant case neither the Mutwalli of the mosque nor persons interested in the
mosque filed any application under section 47(2) for enrollment of the mosque
as waqf. For want of enrolment of the mosque as waqf under section 47(1) of the
Ordinance neither the respondent No. 1 nor the respondent No. 2 had any
sanction of law to make the impugned orders.
Surat Ali vs
Administrator of Waqfs 45 DLR 218.
Sections 27 & 32—
There is no
power given to the Waqf Administrator either under section 27 or 32 of the
Ordinance empowering him to cancel a regular appointment of a mutwalli.
Abdul Hoque
(Md) vs Md Abdul Gani alias A Goni 52 DLR 295.
Section 32—
There is no
provision in the Ordinance authorising the Administrator of Waqfs to appoint a
3rd party to manage the Waqf Estate during pendency of the proceedings for
removal of the Mutwalli.
Abdul
Khaleque Shah vs Administrator of Waqfs and others 49 DLR 427.
Section 32—
There was no
scope of application of the provision of section 32(1) ofthe Waqf Ordinance for
removal of the petitioner from the office of mutawalli specially when no
allegation was brought against him.
Serajuddin
Shah (Md) vs Secretary. Ministry of Religious Affairs and others 51 DLR 479.
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 that once an application for
removal of the Mutawalli is rejected, a subsequent application cannot be filed.
The principle of res judicata has no manner of applkation under the Ordinance.
Azizul Hoq
(Md) vs Administrator of Waqf, Government of Bangladesh 54 DLR 561.
Sections 32 & 38—
Removal of
mutwalli—his right to be heard—by denying the mutwalli his right to be heard
the Administrator of Waqf has committed a breach of the mandatory provision of
the Ordinance—The function of the Administrator in carrying out the enquiry is
that of a civil Court which only means that he is to act judicially.
Tabarak Ali
Sikder vs Administrator of Waqfs 45 DLR 70.
Section 32(2)—
Suit
challenging removal of mutawalli—It is now well settled that no suit can be
maintained in the Civil Court challenging an order passed by the Administrator
removing a Mutawalli under section 32(2) of the Ordinance. The instant suit for
declaration that the order of the Administrator removing the petitioner from
Mutawalliship is illegal and not maintainable.
Md Yusaf vs
Bangladesh 42 DLR 521.
Sections 33, 56, 57—
The power of
the Administrator to transfer a part of the waqf property is made limited and
conditional. The underlining implied limitation must not be forgotten that the
law was never intended to validate a transfer even with sanction, which
ultimately results in injury, waste or loss of the waqf.
Hafizuddin
Ahmed vs M Aslam Miah and others 55 DLR 95.
Section 34—
Merely
because the respondent No.2 is still in service, the application under section
34 of the IRO cannot be maintained. In addition, the Labour Court has to come
to a finding that has some existing right guaranteed to him by or under any law
or any award or settlement.
Bangladesh
Biman Airlines Corporation vs Chairman, Second Labour Court and others 52 DLR
191.
Sections 34, 37 & 39—
Removal of
mutwalli —Section 37 gives the Administrator of Waqf an option either to remove
a mutwalli or to take over the waqf estate for its management and control or to
take any other action as he deems fit. Section 37 is however to be read with
sections 34 and 39. In the facts of this case the Waqf Administrator should not
have appointed a committee for management of the waqf estate in place of the
mutwalli.
Tobarak Ali
Sikder vs. Administrator of Waqfs. 45 DLR 70.
Section 35—
District
Judge as appearing in sections 50, 35 and 43 of the Waqf Ordinance means a
Court and not a persona designata. As such, it is not District Judge alone but
it includes the Additional District Judge.
AKM Abdullah
Harun vs Additional District Judge and others 56 DLR 654.
Sections 35(1) and 50—
When a
petition is presented before the District Judge challenging the decision of the
Waqf Administrator that the property is Waqf Property, the former does not
function as a Court of appeal—in dealing with such a petition he cannot refuse
to take oral or documentary evidence.
Yar Ali Khan
vs Moqbul Ahmed 45 DLR 147
Section 35(3)—
Petition
under section 35(1) of the Waqfs Ordinance seeking a further decision from the
District Judge as to whether the Administrator of Waqfs was correct in
declaring the character of the land was fully competent and again as against
the decision of the former the Second Miscellaneous Appeal before the High
Court Division under section 35(3) of the Ordinance is also competent.
Afajuddin
Mollah vs Mobarak Ali Munshi 46 DLR 587.
Section 38—
This section
empowers the Administrator of Waqfs and the District Judge to examine witness
and call for production of documents and issuance of process as provided in the
case of a civil Court under the CPC.
Afazuddin
Mollah vs Mobarak Ali Munshi 46 DLR 587.
Sections 38 & 32—
Removal of
mutwallihis right to be heard—by denying the mutwalli his right to be heard
the Administrator of Waqf has committed a breach of the mandatory provision of
the Ordinance—The function of the Administrator in carrying out the enquiry is
that of a civil Court which only means that he is to act judicially.
Tobarak Ali
Sikder vs Administrator of Waqfs 45 DLR 70.
Section 43—
The
petitioner will continue to take part in the affairs of the Estate as a Joint
Mutawalli in collaboration with the Chief Mutwalli after making over the charge
of the Waqf Estate to the Chief Mutwalli. No illegality and or irregularity has
been committed in issuing the impugned order.
Mohammad Ali
vs ADC (Revenue), Dhaka & others 53 DLR (AD) 27.
Section 43—
The appeal
as contemplated in section 43 could be heard and disposed of by an Additional
District Judge and no illegality has been committed in the case because the
same has been so disposed of by the Additional District Judge.
AKM Abdullah
Harun vs Additional District Judge 56 DLR 654.
Section 44—
Petitioner
was substituted as mutwalli in place of his father who was appointed ad-interim
mutwalli. By substitution petitioner cannot claim to have better status than
that of his father—he was liable to be relieved any moment by the
Administrator.
Serajuddin
Shah (Md) vs Secretary, Ministry of Religious Affairs and others 51 DLR 479.
Section 44—
The
provision of this section overrides all the other provisions of the
Ordinance—appointment of the official mutwalli by relieving the petitioner of
the office of ad-interim mutwalli is not without lawful authority.
Serajuddin
Shah (Md) vs Secretary, Ministry of Religious Affairs and others 51 DLR 479.
Section 50—
Whether a
plaintiff has the option to file a civil suit for declaration that a particular
property is waqf property in view of the provisions of section 50 of the
Ordinance.
SSM Osman
Ghani vs Bangladesh 39 DLR 451.
Section 50—
Plaintiff-petitioner
contends that the remedy provided in section 50 is cumulative, alternative or
parallel. Civil Court’s jurisdiction, he further contends, has not been ousted
by the Waqfs Ordinance, 1962.
SSM Osman
Ghani vs Bangladesh 39 DLR 451.
Section 50—
The
jurisdiction of the Administrator and the District Judge or any civil Court are
not parallel, alternative or cumulative and that power under section 50 of the
Waqfs Ordinance provides for art adequate and sufficient relief in the
proceeding . to decide whether the particular property is Waqf property or not.
Afazuddin
Mollah vs Mobarak Ali Munshi 46 DLR 587.
Section 50—
If the
dispute as to the waqf character of the property is raised either before or at
the time of enrolment or after the enrolment the jurisdiction to decide the
waqf character is with Waqf Administrator.
Mokbul Ahmed
vs. Shamsul Rashid and others 49 DLR 18.
Sections 50 and 64(1)—
The
Administrator of Waqfs having powers to determine the question as to nature of
waqf property to the exclusion of the jurisdiction of Civil Court should not
have exercised power casually taking greater care and caution in holding that
the petitioner is a trespasser.
Abdur Rashid
Lahi vs Mohd Yunus Gazi 40 DLR 428.
Sections 50 & 102—
Suii against
Administrator’s decision holding the disputed property to be Waqf
property—After hearing the parties the Administrator arrived at the finding
that the petitioner was treating the disputed property as personal secular
property though the same was waqf property and removed him from the office of
Mutawalli of the Waqf Estate. The submission that the order holding the
disputed property to be waqf property in a proceeding under section 32(2)
cannot be regarded as an order under section 50 can hardly be accepted. The
suit for a declaration that the finding and decision of the Administrator in
this regard is not maintainable.
Md Yusaf vs
Bangladesh 42 DLR 521.
Section 51—
The Waqf
estate is a purely Lillah waqf estate, and the appellant being the Imam of the
mosque and having the support of waqif’s only surviving daughter was found
better suited to be appointed as Mutwalli for the management of the Waqf
Estate.
Moulana
Abdul Mannan vs Halima Khatun 54 DLR (AD) 158.
Section 56(1)—
The court of
appeal fell in error of law in holding that the lease for a term exceeding 5
years even with sanction of the Administrator cannot be valid.
Moulana
Fariduddin Ahmed and another vs Md Kolimullah and others 55 DLR 49;
Section 64—
The remedy
of an appeal to the District Judge under section 64 (2) of the Waqfs Ordinance
is available to an aggrieved person only after his eviction by the Deputy
Commissioner concerned has taken place.
Shahidullah
(Md) vs Abdus Sobhan Talukder 50 DLR (AD) 146.
Section 64(2)—
There is no
scope for any appeal under section 64(2) of the Ordinance against an order of
rejection of prayer for eviction of person passed by the Administrator of
Waqfs.
Afazuddin
Mollah vs Mobarak Ali Munshi 46 DLR 587.
Section 102—
The express
ouster is attracted only after the Administrator has given a decision or order.
Under
section 102 of the Waqfs Ordinance, 1962 no decision or order of the
Administrator shall be questioned in any suit or other proceeding in any Court,
except as otherwise expressly provided in the said Ordinance. The express
ouster is attracted only after the Administrator has given a decision or order.
In the entire Ordinance we do not find any express ouster forbidding the Civil
Courts to entertain any suit as to the Waqf character of suit—property. It is
only when the Administrator of Waqfs gives a decision or order in relation to
the same that the bar of section 102 is attracted.
In the
present case, the plaintiff petitioner has not invoked the jurisdiction of the
Administrator under section 50 at all. The bar of section 102 is not expressly
attracted to his case.
SSM Osman
Ghani vs Bangladesh 39 DLR 451.
Section 102—
In view of
the case—law reported in 41 DLR 77, the general remedy of the suit under
section 9 of the Code of Civil Procedure is barred by section 102 of the Waqfs
Ordinance and clause ( d) of rule 11 of Order VII, CPC appears to be applicable
in the matter.
Shah Newaz
(Md) vs Shah Wali and another 54 DLR 375.