Administrator of Waqfs, Bangladesh and other Vs. Shah Mohammad Alinoor and others, VI ADC (2009) 930

Case No: Civil Petition for Leave to Appeal Nos. 1359-60 of 2008

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. A. J. Mohammad Ali,,

Citation: VI ADC (2009) 930

Case Year: 2009

Appellant: Administrator of Waqfs, Bangladesh

Respondent: Shah Mohammad Alinoor and others

Subject: Wakf,

Delivery Date: 2009-3-3

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Rahul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
 
Administrator of Waqfs, Bangladesh
……….…..Petitioner (In Civil Petitioner No.1359 of 08).
Shah Mohammad Hossain
..................Petitioner (In Civil Petitioner No. 1360 of 08)
Vs.
Shah Mohammad Alinoor and others
………......Respondents (In both cases)
 
Judgment
March 3, 2009.
 
General Clauses Act
Section 32(1), 21
The Waqf Ordinance 1962
Which was earlier initiated on the basis of complaint made by the beneficiaries due to the mismanagement of the waqf estate by the respondent No. 9 was reaching its finality and the petitioner took certain steps to save the waqf estate and he was remarked. …. (2)
Mutawalli is liable to be declared as without lawful authority and is of no legal effect... (2)
 
Lawyers Involved:
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Sufia Khatun Advocate-on-Record-For the Petitioner (In Civil Petitioner No. 1359 of 2008).
A. K. Badrul Huq, Senior Advocate instructed by Nurul Islam Bhuiyan, Advocate-on-Record- For the Petitioner (In Civil Petitioner No. 1360 of 2008).
A. J. Mohammad Ali, Senior Advocate instructed by Haridas Paul, Advocate-on-Record-For Respondent Nos. 1-5 (In both cases).
Not represented-Respondent Nos. 6-11 (In both cases).
 
Civil Petition for Leave to Appeal Nos. 1359-60 of 2008.
(From the judgment and order dated 12.5.2008 passed by the High Court Division in Writ petition No. 2003 of 2007).
 
JUDGMENT
 
Md. Tafazzul Islam J.
 
This petition for leave to appeal is directed against the judgment and order dated 12.5.2008 of the High Court Division Passed in writ peti­tion No. 2003 of 2007 making the Rule absolute and thereby declaring the order as contained in Memo dated 8.1.2007 Deputy Wakf Commissioner (In Charge) appointing Shah Mohammad Hossain, the respondent No.10, as Mutawalli of Hazrat Shah Mohammad Elias (R.A) Waqf Estate, as illegal and void.
 
2. The respondent Nos.1 to 5 filed the above writ petition challenging the above Memo dated 8.1.2007 on the averments that late Shah Mohammad Elias created a waqf-ul-awlad in the name of Hazrat Shah Mohammad Elias (R.A) Wakf Estate by registered deed dated 28.2.1966 by dedicating his properties situated at hold­ing No.4, Maulavi Bazar Road, P.S. Lalbag, Dhaka, mainly for welfare and benefits of his children and descendants, maintenance of the mosque and carrying out other religious activities and appoint­ed Mr. Justice M.R. Khan, one of his dis­ciples, and also Shah Mohammad Afanoor, his eldest son and the respondent No.9 herein, as joint mutawallies and the above waqf was enrolled as EC-150335, on 7.3.1966 the waqif died leaving behind his heirs; after Justice M.R. Khan, who acted as a Senior Mutwalli died in the year 1990, the respondent No.9 could not man­age or perform his functions and the respondent No.10 somehow started man­aging the waqf estate on his behalf; when the proceeding under section 32, which was earlier initiated on the basis of com­plaint made by the beneficiaries due to the mismanagement of the wakf estate by the respondent No.9 was reaching its finality and the petitioner took certain steps to save the wakf estate, the respondent No. 10, with the view to grab the waqf property, managed to send the respondent No.9 abroad; however after a period of six years, upon hearing the parties, the Administrator of Wakf, the petitioner herein, by his order dated 4.7.2004 in the interest of the waqf estate, removing the respondent No.9 appointed the respondent No.1, another son of the Waqf, as Mutwalli and for smooth management of the waqf estate also formed a Committee comprising of seven heirs of the waqif including respondent No.10 and asked the respondent No.9 to handover, within seven days of receipt of the order, the charge of Mutawalli to the respondent No.1; earlier during the pendency of proceed­ing under section 32 of the Ordinance the respondent No.9. the sole Mutawalli, remained abroad for long time and there­by a dead-lock was created in the management of the waqf estate and so the peti­tioner by his order dated 8.2.2003 appoint­ed one official Mutawalli until disposal of the above proceeding and challenging the above order dated 8.2.2003 the respondent No.10 filed writ petition No.1778 of 2003 and obtained a Rule Nisi and against the above order dated 4.7.2004 appointing official Mutawalli the respondent No.10 also filed writ petition No. 4816 of 2004 and both the rules were ultimately heard analogously and by a common judgment and order dated 7.3.2006 both the Rules were discharged; then the respondent No.10 filed Civil petition Nos. 505 and 506 of 2006 before the Appellate Division and then upon an application filed by the respondent No.10, the Deputy Wakf Commissioner who was in charge, by his order dated 8.1.2007 appointed the respondent No.10 as Mutawalli but sub­ject to withdrawal of Civil petition Nos.138 and 139 of 2006 (might be Civil Miscellaneous Petition Nos. 138 and 139 of 2006) and then the respondent No. 10 filed an application for withdrawal of the Civil petition Nos. 505 and 506 of 2006 and on the basis of the said prayer, the Appellate Division by order dated 4.2.2007 dismissed the Civil Petition Nos. 505 and 506 of 2006 and after the above civil petitions having been dismissed as withdrawn at the instance of the respon­dent No. 10 and the respondent Nos.1-5 and /or the petitioner had no hand in the aforesaid withdrawal, the common judg­ment and order dated 7.3.2006 of the High Court Division passed in Writ Petition No.1778 of 2003 and Writ Petition No. 4817 of 2004 is still in force and the respondent Nos.1-5 are entitled to get the benefit of the above judgment and order and as such the impugned order dated 8.1.2007 appointing the respondent No.10 as Mutaualli is liable to be declared as with­out lawful authority and is of no legal effect.
 
3. The respondent No.10 opposed the Rule and filed an affidavit-in-opposition contending that there was no connivance or misappropriation or mismanagement of waqf estate by him; Justice M.R. Khan made a nomination on 6.7.1976 for his appointment as mutawalli and accordingly after the death of Mr. Justice M.R. Khan in 1990 he easily could have assumed the office of Senior Mutawalli but showing respect of the respondent No.9, his eldest brother, he did not use the nomination made by Justice M.R. Khan; earlier Justice M.R. Khan on 6.9.85 requested the petitioner for appointing the respondent No. 10 as Naib Mutawalli and the petition­er then vide letter dated 11.9.1985 appointed him as Naib Mutawalli on ad-hoc basis and until further order; after Justice M.R Khan died in 1990 the respon­dent No.9 became the sole Mutawalli and the petitioner vide Memo No. 706 dated 10.6.1990 accepted the respondent No. 9 as the sole Mutawalli and then the respon­dent No. 9 being too old and suffering from various physical problems, executed a General Power of Attorney dated 7.5.2002 appointing the respondent No.10 as his attorney for discharging the duties and functions of Mutawalli and enclosing a copy of the said Power of Attorney dated 7.5.2002 requested the petitioner to approve the same; the respondent No.9 before leaving for USA for treatment, as per the provision of clause 21 of the Waqf Deed, also executed a deed appointing him as the sole Mutawalli in his place and after his appointment, he, as Mutawalli, had several meetings with the beneficiar­ies and hence they had full knowledge of his acting as the Mutawalli of the waqf estate; however the petitioner, by order dated 8.2.2003, having appointed khondokar Abul Bashar as Official Mutawalli of the said waqf estate, he filed writ peti­tion No.1778 of 2003 and the High Court Division issued Rule and also stayed the operation of the said order and when the above writ petition was pending, the peti­tioner, again ignoring his appointment as Mutawalli, formed a seven member com­mittee and appointed the respondent No.1 as Mutawalli of the wakf estate and President of the said committee and he was also included in said committee and being aggrieved he filed Writ petition No.4816 of 2004 and after hearing both writ petition No.1778 of 2003 and Writ Petition No. 4816 of 2004 analogously, the High Court Division by common judg­ment and order dated 7.3.2006 discharged the Rules and vacated the order of stay granted earlier; however since the above seven member committee never took charge of the waqf estate and his appoint­ment as Mutawalli by the respondent No.9 was still in force, the petitioner by letter dated 2.3.2006 asked him to submit the audit report for the years 2001-02 to 2004-05 and also to take steps for collecting the waqf remittance which he fulfilled; then considering the prevailing circumstances, the waqf administration, recommended his appoint as Mutawalli as the respondent No.9 handed over his responsibility to him and since then he has been carrying out his responsibilities as Mutawalli like paying remittance, performing annual Urash and many other religious activities; no steps having been taken to activate the seven member committee and no direction had also been given by the High Court Division in the judgment dated 7.3.2006 to this effect and he could be appointed as Mutawalli; meanwhile, he against the judgment and order dated 7.3.2006 passed by the High Court Division in Writ Peti­tion Nos. 1778 of 2003 and 4816 of 2004 preferred Civil Petition Nos. 505 and 506 of 2006, and filed applications for stay before the Chamber Judge of the Appellate Division whereupon stay was granted and daring the pendency of the above petitions, the Petitioner by letter dated 8.1.2007, on the basis of the said recommendation, appointed hint as Mutawalli of the waqf estate with a condi­tion that the appointment would be effec­tive after die withdrawal of the Civil peti­tion Nos. 505 and 506 of 2006 and then he, with a good intention to bring an end to all these chaos and also to bring certain­ty in the administration of waqf estate withdrew the above civil petitions and by letter dated 8,1.2007 notified the said withdrawal to the petitioner and then the petitioner, by letter dated 12.2.2007, per­mitted him to operate bank accounts and to perform all functions as Mutawalli and thus the order dated 8.1.2007 has been acted upon; meanwhile the respondents.1-5, being aggrieved by the above order dated 8.1.2007 and also the order dated 26.2.2007 passed by the respondent No.4 filed the present writ petition No. 2003 of 2007 and on 27.2.2007 obtained Rule as well as an interim order staying operation of said order dated 8.1.2007 and also restraining the respondent No.10 from interfering with the functioning of the seven member committee appointed by the order dated 4.7.2004 and that after the expiry of said interim order of Stay dated 27.2.2007, he was performing the functions of Mutawalli and made applications for order empowering him for collection of rents from the tenants and to perform the functions of Mutawalli and the petitioner by his order dated 13.4.2008, asked him to collect rents and then he deposited TK. 1,38,593/- as sub­scription of the waqf estate for the years 2005-2006 and then by order dated 15.4.2008 the petitioner asked him to deposit subscription of TK. 1,09,181.00/-, which he complied on 20.4.2008 he also paid electric bills.
 
4. The High Court Division, after hearing, made the Rule absolute.
 
5. We have heard the learned advocate for the petitioner, and perused the petition, the impugned judgment and order of the High Court Division and also other connected papers.
 
6. As it appears the High Court Division made the Rule absolute holding that under the scheme of the Wakf Ordinance 1962 when a final order is passed by the Administrator of Wakf under section 32(1) of the Ordinance removing a Mutawalli that order cannot be cancelled by such Administrator or any body subordinate to him by resorting to section 21 of the General Clauses Act as since no such power of cancellation is available to him under the Ordinance and further after obtaining Rule Nishi twice on behalf of respondent No. 10 in writ petition Nos.1778 of 2003 and writ petition No. 4816 of 2004, against orders dated 8.2.2003 and 4.7.2004 it was not expected that no objection would be taken against the instant Rule obtained by the respondent Nos.1-5 Challenging the illegal and unau­thorized order of the Deputy Administrator of wakf dated 8.1.2007 and further the orders passed in quick succes­sion by the Assistant Administrator of waqf on 13.4.08, 21.4.08, 27.4.08 and 29.4.08, while the ad-interim order of stay granted by this Division on 27.2.2007 was in operation, the passing of the above order, exposed the jeal and interest of the wakf administration which was not in con­sonance with expected conduct of a statu­tory body and while the stay matter was pending before the Appellate Division, every body, statutory or others, was expected to act with care and particularly, not to change the status quo to the advan­tage of any party to such a case and such orders did not help and rather went against the interest of the waqf estate.
 
7. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infir­mity in the above decision so as to call for interference.
 
The petition is dismissed.
 
Ed.