Case No: Civil Appeal No. 9 of 1984
Judge: Shahabuddin Ahmed ,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Md. Aftab Hossain,,
Citation: 36 DLR (AD) (1984) 203
Case Year: 1984
Appellant: Golam Ather Chowdhury
Respondent: Administrator of Waqfs and others
Delivery Date: 1984-4-2
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
S Mohammed Mohsen Ali J
Golam Ather Chowdhury
The Administrator of Waqfs and others
April 2, 1984.
The Waqf Ordinance, 1962 (1 of 1962)
Sections 32, 43 and 44
The Waqf Administrator’s order under Section 44 of the Waqf Ordinance cannot be challenged in appeal or revision…….(7)
Though the word 'Official mutawalli’ has been used in 'singular', yet this expression includes its plural also under the General Clauses Act. So instead of one person being appointed Official mutawalli, a Committee of five persons has been so appointed. No irregularity has been committed by appointing the committee………..(6)
S.M Hussain, Senior Advocate, (K. Z. Alam, Advocate with him) instructed by Md. Aftab Hossain Advocate-on-Record—For the Appellant
Khondkar Mahbubuddin Ahmed, Senior Advocate, (Md. Hannan, Advocate with him) instructed by Abul Quasem, Advocate-on-Record-For Respondents No. 2.5.
Civil Appeal No. 9 of 1984
(From the judgment and order dated 24 January, 1984 passed by the High Court Division, Dhaka Bench, in Civil Revision No. 369 of 1983.)
Shahabuddin Ahmed J.
This appeal by a Mutawalli calls in question an order of the Administrator of Waqfs appointing a Committee of Official Mutawallis under section 44 of the Waqfs Ordinance, 1962. Earlier, this order was unsuccessfully challenged by revisional application before the District Judge and also the High Court Division.
2. The appellant was appointed mutawalli of the Bhatipara Waqf Estate—E.C. No 11917—and he has been performing his duties as such since 30 April 1974. Three beneficiaries and one member of the public filed a petition against him on 23 November 1981 before the Administrator bringing some allegations, such as breach of trust, mis-management and malfeasance, and prayed for his removal. The appellant appeared before the Administrator and denied the allegation. The Administrator examined some witnesses, heard both the parties and by the impugned order dated 31 March 1983, appointed a Committee of five persons including the appellant to administer and manage the waqf property, under section 44 of the Waqfs Ordinance. Appellant (existing mutawalli) was made Chairman of the Committee which included the persons who had filed the petition of allegation against the appellant. This order the appellant challenged before the District Judge by a revisional application under section 115(2) of the Civil Procedure Code But the application was rejected on the ground that no revision lies against the Administrator's order under section 44 of the Waqfs Ordinance since, under this section, the Administrator does not act as any Court subordinate to the District Judge or to the High Court. The appellant then moved the High Court Division by another revisional application, but this application was also rejected by a learned Single Judge of the High Court Division by an order, dated 24 January 1984 upholding the District Judge's view that the Administrator's order under section 44 cannot be challenged in revision. The appellant made an application for converting the revisional application to that of a Memorandum of Appeal under section 32 of the Waqfs Ordinance but the application was also rejected by the learned Single Judge.
3. Leave was granted by us to consider the question whether the Administrator's order Under section 44 of the Waqfs Ordinance appointing a Committee of Official Mutawallis amounted to removal of the existing mutawalli under section 32 of the Ordinance and as such is appealable.
4. Mr. S. M. Hussain, learned Advocate for the appellant, contends that the order appointing a Committee of Official Mutawallis is not contemplated in section 44 of the Waqfs Ordinance since the duly appointed mutawalli has been in office and unless this existing, mutawalli is removed there is no scope for appointing an official mutawalli. Secondly, Mr. Hussain argues, section 44 empowers the Administrator to appoint only one person an Official mutawalli; it does not provide for appointing a Committee of mutawallis. The learned Counsel has referred to section 34(3) of the Ordinance which empowers the Administrator to appoint a "managing committee" to manage and administer certain waqf property when a Wakf estate is taken over by him by a Notification under section 34(1) of the Ordinance; but no such situation has arisen in the instant case, it has been further pointed out, again, the learned Counsel contends that when there were allegation of breach of trust, mismanagement, malfeasance and misappropriation against the appellant and when evidence was also recorded against him in respect of these allegations, the impugned order appointing a Committee of mutawallis,—no matter it consisted of the appellant along with others-amounts to removal of the appellant by necessary implication; but to deprive him of his right to appeal against the removal the impugned order has been couched in the language of section 44 which does provide for appeal or revision.
5. So far as the facts of the case are concerned, there were some vague allegations against the appellant, particularly, of mismanagement. But none of the allegations is found to have been established by evidence. There is no finding that the mutwalli is guilty of any act of malfeasance, misappropriation, mismanagement or breach of trust. One of the allegations against him was that he remains most of the time in Dhaka, far away from the Waqf property, and manages the property through other persons to whom the beneficiaries have no approach. The Administrator has found that the appellant remains away from the waqf-estate most of the time, but this absence has not been considered to be a disqualification for continuing in the management with assistance and co-operation of other persons. The learned Counsel for the appellant contends that in the face of this and other allegations, the appellant has been virtually removed from his office in the disguise of appointment of the Committee of management. But on perusal of the order of the Administrator we do not find that any allegation has been proved or the appellant has been held guilty of any offence. No stigma upon the appellant is attached to the order appointing the Committee. The Waqf Estate has been found to be a very big one the management of which by the appellant alone is not possible; that is why, the Administrator thought it expedient and necessary to appoint a Committee consisting of five persons including the appellant for administration and management of the Waqf Estate. The appellant has been made Chairman of the Committee and those beneficiaries who had sought his removal have been included in the Committee so that they can cooperate with the appellant, Chairman of the Committee, in the proper discharge of the duties as to administration and management of the Waqf Property. So the apprehension of the appellant that he has been virtually removed is baseless. The management of the waqf-estate has been entrusted now to a Committee of five persons instead of only one because of the enormity of the task of running the affairs of the estate.
6. The next question is whether the Administrator acted within his power and jurisdiction to appoint a Committee of persons to act as mutawalli under section 44. This section is quoted below:
"44. Appointment of Official mutawalli.- Notwithstanding anything contained in this Ordinance or in any other law for the time being in force or in any deed or instrument, the Administrator may, where considered necessary, appoint an official mutawalli on such terms and conditions as to remuneration and other matters as the Administrates thinks fit for the Administration and management of a waqf property and institution attached thereto."
It appears clearly that by this section the Administrator has been empowered to appoint an 'official mutawalli' notwithstanding anything contained in this Ordinance or in any other law in force or any in 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 above, 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. Though the word 'Official mutawalli has been used in 'singular', yet this expression includes its plural also under the General Clauses Act. So instead of one person being appointed Official mutawalli, a Committee of five persons has been so appointed. We do not find any irregularity in this order. The Committee has been appointed to administer and manage the estate for a period of two years. Inclusion therein of the rival pasties is intended for management of the estate, in a spirit of co-operation and goodwill keeping in view the interests of the waqf property and its beneficiaries.
7. Now coming to the question of appeal or revision, an order passed under section 32 removing a mutawalli is appealable before the District Judge, and thereafter, revision lies to the High Court Division against the District Judge's order in appeal. In case an order is passed under section 43, that is, when the Administrator appoints a mutawalli in certain special cases not covered by the Waqf Deed or where the Administrator finds difficulty to appoint a mutawalli in terms of the Waqf deed or where the successor to the office of the mutawalli is incapable of discharging his duties, appeal lies to the District Judge whose order is final. But against an order under section 44 neither any appeal nor any revision lies. Both the learned District Judge and the learned Single Judge of the High Court Division have concurred in the view that the revisional applications filed before them respectively are incompetent, particularly, when the Administrator did not act as any Court subordinate to either of them.
8. The decision of the Administrator under section 44 is not however immune from challenge when a stigma is attached to an aggrieved party inasmuch as that would be an order actually under section 32 which has provided an appeal and revision. Nor such decision can be couched in a language when in fact situation obtaining in the facts and circumstances of the case actually attracts the provision of section 43. The principle is what cannot be achieved directly should not be allowed to be done indirectly. In this case the order of the Administrator under section 44 has not been challenged as arbitrary or capricious. This being an innocuous order for the benefit of the waqf estate no interference is called for.
In the result, the appeal is dismissed. We do not however make any order as to costs.