Habib Ahmed Shukur Morshed Vs. Wakf Administrator & ors., (Md. Ashraful Kamal, J.)

Case No: Writ Petition No. 10733 of 2012

Judge: Moyeenul Islam Chowdhury, J And Md. Ashraful Kamal, J

Court: High Court Division,

Advocate: Mr. Md. Khalilur Rahman, Advocate with Mr. Hasan Mohammad Reyad, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2014

Appellant: Habib Ahmed Shukur Morshed

Respondent: Wakf Administrator Bangladesh and others

Subject: Waqfs Ordinance

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J

And

Md. Ashraful Kamal, J

 

Judgment on

17.09.2014

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Habib Ahmed Shukur Morshed

. . . Petitioner

-Versus-

Wakf Administrator Bangladesh and others

... Respondents

Waqfs Ordinance (1 of 1962) 

Section 51

On a plain reading of the aforesaid section it is crystal clear that whenever any change needed in the management of an waqf’s property due to the death, retirement or removal of the mutawalli, the prospective mutawalli who is eligible or who considers himself to be eligible to succeed to the office of mutawalli in terms of the waqf deed shall forthwith notify such change to the Administrator of Waqfs. . . . (17)

Waqfs Ordinance (1 of 1962) 

Section 102

According to 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.                                         . . .(19)

Waqfs Ordinance (1 of 1962) 

Section 43

It is important to understand the intention of the Wakif.  In other words, the waqf-deed should be carried out in its totality and the waqf deed is the primary document for the procedure to be followed in the appointment of mutawalli. This is to be noted that after the death of Waqif mutawalli, the present respondent No. 3 Humayun Morshed was appointed mutawalli on 04.01.1982, while he had been working abroad. Moreover, the Waqfs Administrator by his order dated 05.07.1994 appointed a Naib mutawalli to assist the Respondent No. 3 in administering the affairs of the Waqf Estate. This position was known to all including the present petitioner and the same was duly accepted by all the beneficiaries at that time. The respondent No. 3 had continued in his office as mutawalli for long 11 years till 1993.  The respondent No. 3 has been residing in Bangladesh thus, he is neither incapable nor absent nor unwilling to hold the office of mutawalli and as such, there is no impediment in the present case. Thus, Section 43 of the Waqfs Ordinance does not have any manner of application in the present case. . . .(25, 27 and 28)

G. Nagewara Rao Vs. A.P.S.R.T Corpn (K. Subba Rao) 1959 AIR (SC) 306; 34 DLR (AD) 29; 48 DLR (AD) 10; 7 BLC (HC) 193; Showkat Ali Vs. Administrator of Waqfs, 29 DLR (SC) 276; 1995(1) All ER 315; R V. Crown Court and Amir Abdullah Khan Vs. Muhammad Attaullah Khan PLD 1990 (SC) 972 ref.

Mr. Md. Khalilur Rahman, Advocate with

Mr. Hasan Mohammad Reyad, Advocate

- - - For the petitioner

Mr. Mahbubey Alam, Senior Advocate with

Mr. Md. Ramzan Ali Sikder, Advocate

- - - For the respondent No.3.

JUDGMENT

Md. Ashraful Kamal, J: This Rule Nisi was issued calling upon the respondents to show cause as to why the order contained in Memo No. JfËx/Qxcx/(4)2(2) dated 02.08.2012 issued by the respondent No.2 removing the present mutawalli from the post of guardian mutawalliship and appointment of the respondent No.3 as mutawalli instead of the petitioner without giving any opportunity of being heard in accordance with law should not be declared to have been passed without lawful authority and is of no legal effect.

2.             Brief facts, necessary for the disposal of this Rule, are as follows;

On 13.07.1976 Mr. Shukur Uddin Ahmmed of 59, Abdus Sattar Road, Rahmatgonj, Chittagong for charitable purpose as well as for the maintenance and support of his children and wife made a deed of waqf appointing himself as the first Mutwalli and shall continue till his death. According to the said waqf deed, after the death of the waqif, his son Md. Humayun Morshed will be the next mutawalli and in case of his (Md. Humayun Morshed) absence, incapacity, inability or unwillingness, provisions has been made in the waqf deed for appointment of mutawalli.

3.             After the death of the waqif Mr. Sukur Uddin Ahmed as first mutawalli, the respondent No.3 was appointed mutawalli of the waqf in question in accordance with the deed of waqf. After that, the proforma respondent No.5 (Mrs. Hasmot Ara Ahmed) applied before the Waqf Administrator for removal of the respondent No.3 from the post of mutawalli and to appoint her as guardian mutawalli. Upon consideration of the said application, the waqf administrator on 29.06.1993 appointed the proforma-respondent No.5 as guardian mutawalli of the said waqf property. Subsequently, upon an application filed by the respondent No.3, the waqf administrator by his order dated 05.07.1994 removed the proforma respondent No.5 (the guardian mutawalli) from the office and in her place appointed a Naib mutawalli nominated by the respondent No.3. Against the said order dated 05.07.1994, the proforma respondent No.5 filed a Writ Petition being No. 1733 of 1994, wherein the Rule issued was ultimately made absolute on 24.03.1998 and upheld by the Appellate Division on 30.04.2002.

4.             After that, the respondent No.3 on 10.12.2005 filed an application before the respondent No.1 for appointing him as mutawalli by removing the proforma respondent No.5 from the post of guardian mutwalli. At the same time, the petitioner also submitted an application before the waqf administrator for appointing him as mutawalli. After hearing the parties, the respondent No.1 (Waqf Administrator) rejected those applications on 02.07.2012 as the application were not filed as per  section 37 of the Waqfs Ordinance, 1962 and directed them to file fresh applications in accordance with law.

5.             Thereafter, respondent No.3 and the petitioner filed applications on 07.07.2012 and on 12.07.2012 respectively complying with the condition as per section 37 of the Waqfs Ordinance, 1962. Upon receipt of those applications, the respondent No.1 directed the respondent No.4 to conduct an inquiry about the subject-matter. Accordingly, the respondent No.4 conducted the inquiry on 24.07.2012 and after completion of the inquiry, he submitted the report on 28.07.2012. In consideration of the recommendation of the report dated 28.07.2012, the respondent No.2 on 02.08.2012 removed the proforma respondent No. 5 from the post of mutawalli and  appointed the respondent No.3 as mutawalli.

6.             Being aggrieved by the said order dated 02.08.2012 passed by the respondent No.2, appointing the respondent No.3 as mutawali, the petitioner preferred this Writ Petition and obtained the present Rule.

7.             Mr. Md. Khalilur Rahman alongwith Mr. Hasan Mohammad Reyad, the learned Advocates appearing for the petitioner submits that the respondent No.2 without giving an opportunity of hearing to the petitioner passed the order dated 02.08.2012. He further submits that appointment of the respondent No.3 and removal of the proforma respondent No.5 was challenged on earlier occasion in Writ Petition No. 1733 of 1994 which was declared without lawful authority and of no legal effect vide judgment and order dated 24.03.1998 passed by the High Court Division and affirmed by the Appellate Division in Civil Petition for Leave to Appeal No. 677 of 1998, but the respondent No.1 repeatedly passed the same order.       He further submits that the inquiry officer without notifying the petitioner by issuing written notice conducted the alleged inquiry promptly on the very next day i.e. 24.07.2012 and made a report on 28.07.2012. He also submits that since the petitioner and respondent No.3 are contesting for the post of mutawalli in question as per waqf deed, therefore, the duty of the administrator of waqfs is to direct the contesting parties to go to the civil Court for the purpose of appointing the permanent mutawalli.

8.             Mr. Rahman also submits that the respondent No.4 had conducted the enquiry in question by violating all norms of the inquiry for the purpose of depriving the petitioner of presenting his case. He further submits that the present petitioner is the only competent person to be appointed as mutawalli as per waqf deed since the respondent No.3 and other two elder brothers are permanently residing in the United States of America and Denmark and in view of the fact, the petitioner ought to have been appointed as mutawalli of the Waqf Estate in question.

9.             Finally, Mr. Rahman submits that the Waqfs Administrator did not assign any reason about the non-consideration of the application of the petitioner, therefore, the very impugned order is a nonspeaking order and liable to be declared to have been passed without lawful authority and is of no legal effect.

10.         In support of his submissions Mr. Rahman referred to the case of G. Nagewara Rao Vs. A.P.S.R.T Corpn (K. Subba Rao) reported in 1959 AIR(SC)-306, 34 DLR(AD) 29, 48DLR(AD)10, 7 BLC(HC) 193 and the case of Showkat Ali Vs. Administrator of Waqfs reported in 29 DLR(SC)276  and 1995(1) All ER, 315 in the case of R V. Crown Court.

11.         Mr. Mahbubey Alam, the learned Senior Advocate along with the learned Advocate Mr. Ramzan Ali Sikder appearing for the respondent No.3  at first submits that the facts and circumstances of the present case are different from those in the writ petition No. 1733 of 1994 and Civil Petition for Leave to Appeal No. 677 of 1998 because the High Court Division set aside the order dated 05.07.1994 on the basis that the proforma respondent No.5 had not been given any opportunity to be heard as required under section 32 of the Waqf Ordinance, 1962.

12.         He further submits that the inquiry officer after observing all the formalities according to the law and upon hearing both the parties on 25.07.2012 at the office of the Waqfs Administrator made his report. So the inquiry process was done thoroughly in compliance with the relevance provision of law and as such the writ petition is misleading, misconceived and the Rule is liable to be discharged as being not maintainable.

13.         We have gone through the writ petition along with annexures therein, affidavit-in-opposition along with annexures therein and considered the submissions made by the respective parties.

14.         Firstly, we have carefully examined the judgment and order passed in Writ Petition No. 1733 of 1994 and Civil Petition for Leave to Appeal No. 677 of 1995. After examination, it is crystal clear that Writ Petition No. 1733 of 1994 and Civil Petition for Leave to Appeal No. 677 of 1995 are absolutely different from the instant case and has no manner of the application in the present Writ Petition.

15.         Next, it is necessary to quote section 51 of the Waqfs Ordinance which runs as thus;

“ Notification of Changes in Enrolled Waqfs-(1) In the case of any change in the management of an enrolled waqf due to the death, retirement or removal of the mutawalli, the prospective mutawalli who is eligible or who considers himself to be eligible to succeed to the office of mutawalli in terms of the waqf deed or according to the custom or usage of the waqf, shall forthwith, and any other person may, notify the change to the Administrator.

(2) In the case of any other change in any of the particulars mentioned in section 47, the mutawalli shall, within six months from the occurrence of the change, notify such change to the Administrator.”

16.         On a plain reading of the aforesaid section it is crystal clear that whenever any change needed in the management of an waqf’s property due to the death, retirement or removal of the mutawalli, the prospective mutawalli who is eligible or who considers himself to be eligible to succeed to the office of mutawalli in terms of the waqf deed shall forthwith notify such change to the Administrator of Waqfs.

17.         In the present case, the petitioner as a prospective mutawalli, who is allegedly eligible and considers himself to be eligible to succeed to the office of the mutawalli in question as per waqf deed notified the Administrator as per section 51 of the Waqfs Ordinance. But the Waqfs Administrator rejected the same and appointed respondent No.3 as mutawalli.

18.         The Waqfs Ordinance being a special statute provides a special procedure to be followed. And according to 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.

19.         The one and only core ground taken by the writ petitioner is that the inquiry officer (respondent No.4) without notifying the petitioner conducted the alleged inquiry promptly and on the basis of the said report the respondent No.2 passed the impugned order dated 02.08.2012 which is a clear violation of the principle of natural justice.

20.         On a keen perusal of the record it appears that the respondent No. 4 duly conducted the investigation and submitted its Report dated 28.07.2012 to the respondent No. 1. Moreover, inquiry was carried out upon notifying the parties including the writ petitioner and also upon observing all formalities. Based on the aforesaid Inquiry Report and considering the submissions made by the parties on 25.07.2012 at the office of the Waqfs Administrator and examining the relevant documents, the respondent No. 2 appointed the respondent No. 3 as mutawalli. Therefore, the allegation of not affording any opportunity of being heard has no legs to stand upon.

21.         It is necessary to quote the pertinent portion of the report dated 28.07.2012 which has been concluded as under;

Bfe¡l A¢g­pl ü¡lL ew JxfËx/QVx (cx)/30 a¡w 23/07/2012Cw f­œl ¢e­cÑnœ²­j f§­hÑ AhNa Ll¡Cu¡ Na 24/07/2012Cw a¡¢l­M p­lS¢j­e Ef¢ÙÛa qCu¡ ac¿¹ L¡S L¢lz E­õMÉ ®k, ac¿¹ L¡­m c¤CSe clM¡Ù¹L¡l£l HLSeJ Ef¢ÙÛa ¢R­me e¡z Ju¡Lg H­ø­Vl h¡s£­a hph¡pL¡l£ ®m¡LSe Ef¢ÙÛa ¢R­mez a¡l¡ S¡e¡e clM¡Ù¹L¡l£ c¤CSeC Y¡L¡u B­Re Hhw haÑj¡e A¢ii¡hL ®j¡a¡Ju¡õ£ h¡wm¡­c­n e¡Cz ac¿¹ Ll¡l fl ¢ce clM¡Ù¹L¡l£ c¤C SeC ¢e­jÀ ü¡rlL¡l£l A¢g­p Ef¢ÙÛa qe Hhw ¢eS ¢eS hš²hÉ ®ce Hhw ¢eS ¢eS clM¡­Ù¹l üf­r k¤¢š² J BCeNa pjbÑe ­cM¡­e¡l ®Qø¡ L­lez

22.         On a plain reading of the aforesaid portion of the report it transpires that the inquiry was carried out by not only notifying the parties including the writ petitioner and also upon observing all formalities. So the allegation of not affording any opportunity to the petitioner of being heard is not sustainable at all.

23.         For implication and legal position of the referential order dated 02.08.2012, it is necessary to quote the pertinent portion of the Amir Abdullah Khan –Vs- Muhammad Attaullah Khan reported in PLD 1990 (SC) 972 wherein the Hon’ble Supreme Court of Pakistan held as follows:

17. Contents or part of the contents of another document may be incorporated by reference, and in such cases the other document, so far as it is incorporated, is read with the document under consideration.”

24.         Since the impugned order dated 02.08.2012 was passed by making reference to and based on the inquiry report dated 28.07.2012, therefore, the said inquiry report should be read together with the impugned order dated 02.08.2012 as a referential order to understand the reason for appointment of the respondent No. 3 as mutawalli.

25.         It is important to understand the intention of the Wakif.  In other words, the waqf-deed should be carried out in its totality and the waqf deed is the primary document for the procedure to be followed in the appointment of mutawalli. Therefore, it is necessary to quote the Clause 1 and 2 of the Waqf-deed dated 13.07.1976, which runs thus:-

“(1) I appoint myself the first trusty for mutwali of this work during the time of my natural life and waqf shall all alone belong as the waqf state Shukur Uddin Ahmed son of late Amir Hossain of  59 Abdus Sattar Road, Rahmatgonj, Chittagong aged about 73 years by cash Sunni Muslim and by profession an Advocate Judge Court Chittagong.”

Clause (2) after my death or retirement, my son Md. Humayun Morshed shall be the second mutwalli of the waqf and if necessary, he will have the right to appoint of Naib Mutwalli for the management of waqf properties and for carrying on the administrative duties of the Mutwalli for him and his behalf.”

26.         On a plain reading of the aforesaid clause 1 and 2 of the Waqf Deed it is crystal clear that after the natural death of the Waqif mutawalli, the respondent No. 3 is the designated mutawalli of the Waqf Estate.

27.         This is to be noted that after the death of Waqif mutawalli, the present respondent No. 3 Humayun Morshed was appointed mutawalli on 04.01.1982, while he had been working abroad. Moreover, the Waqfs Administrator by his order dated 05.07.1994 appointed a Naib mutawalli to assist the Respondent No. 3 in administering the affairs of the Waqf Estate. This position was known to all including the present petitioner and the same was duly accepted by all the beneficiaries at that time. The respondent No. 3 had continued in his office as mutawalli for long 11 years till 1993. 

28.         The respondent No. 3 has been residing in Bangladesh thus, he is neither incapable nor absent nor unwilling to hold the office of mutawalli and as such, there is no impediment in the present case. Thus, Section 43 of the Waqfs Ordinance does not have any manner of application in the present case. 

29.         In the light of the above facts and circumstances, we find no substances in this writ petition. All the allegations made by the petitioner in its petition are amorphous, fallacious and absolutely based on erroneous notion. Accordingly, the Rule is liable to be discharged.

30.         In the result, the Rule is discharged without any order as to cost.

31.                Communicate the judgment and order at once.

Ed. 



Writ Petition No. 10733 of 2012