Md. Tofazzal Ahmed Vs. Md. Jasim Uddin Haider Faruquee and others 2016 (2) LNJ 122

Case No: Civil Revision No. 2174 of 2011

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Mahbubey Alam,Md. Abdul Quayum,Mr. Ali Reza,Mr. Sk. Sharif Uddin,Mr. Abdul Momen Chowdhury,,

Citation: 2016 (2) LNJ 122

Case Year: 2016

Appellant: Md. Tofazzal Ahmed

Respondent: Md. Jasim Uddin Haider Faruquee and others

Subject: Civil Law,

Delivery Date: 2016-2-16

Md. Tofazzal Ahmed Vs. Md. Jasim Uddin Haider Faruquee and others 2016 (2) LNJ 122
 
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Borhanuddin, J
Judgment on
16.02.2016

}

 
Md. Tofazzal Ahmed
. . . Petitioner
-Versus-
Md. Jasim Uddin Haider Faruquee and others
. . . Opposite Parties

Waqfs Ordinance (I of 1962)
Sections 35(3), 47 and 50
Code of Civil Procedure (V of 1908)
Section 115
In this case, from the order passed by the Administrator of Waqf it appears that by filing applications on 12.12.1999 and 14.05.2000, the petitioner raises dispute regarding the previous enrolment of the property in E.C. no.16832 enrolled in the year 1991 as such it is not simply an application under section 47 for enrolment but the petitioner claims his right over the property under Section 50 of the Waqf Ordinance as such it can be said that the claim so lodged is a dispute. The Administrator decides the dispute after hearing the parties. In the instant case this role of the Administrator is quasi- judicial in nature. This quasi-judicial function ends up with a verdict and it can be taken to the court of District Judge under Section 35 for a full fledged judicial adjudication. Decision of the District Judge is appealable. The appeal lies to the High Court Division. As it appears from above that Section 35 (3) provides appeal to the High Court Division within 60 days against the decision of the District Judge under Sub-section (2), as such the instant civil revision is not maintainable. Civil revision does not lie against the order of the learned District Judge inasmuch as section 35(3) provides appeal to the High Court Division against the order of the learned District Judge, the High Court Division was not inclined to enter into the merit of the case.          . . . (11, 15, and 17)

Hari Miah Vs. The State, 10 DLR, 123; Syed Masud Ali and others Vs. Md. Asmatullah and others, 31 DLR, 249; Bangladesh Vs. Abdul Mannan and others, 29 DLR(SC), 17 and Syed Masud Ali and others Vs. Md. Asmatullah and others, 31 DLR (AD), 1979 ref.
Civil Revision No. 2174 of 2011.


Mr. Mahbubey Alam, with
Mr. Abdul Quaiyum,
Mr. Sk. Sharif Uddin,
Mr. Ali Reza, Advocates
. . . For the Petitioner
Mr. Abdul Momen Chowdhury, Advocate
. . . For the Opposite Parties
 
JUDGMENT
 
Borhanuddin, J:
         This rule has been issued calling upon the opposite party no.1 to show cause as to why the judgment and order dated 11.05.2011 passed by the learned Additional District Judge, 2nd Court, Chittagong, in Miscellaneous Appeal No. 276 of 2002 allowing the appeal by setting aside order dated 30.09.2002 passed by the Waqf Administrator, Dhaka, in Miscellaneous Enrolment Case No. 01 of 2000 corresponding to E. C. No.16832, should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
  1. Facts relevant for disposal of the rule are that Miscellaneous E.C. no.01 of 2000 arose out of application dated 12.12.1999 and 14.05.2000 respectively filed by the petitioner M. Tofazzel Ahmed for enrolment of certain properties under Section 47 of the Waqf Ordinance which cause dispute with the properties enrolled earlier under E.C. no.16832. M. Tafazzel Ahmed, petitioner herein, filed an application on 12.12.1999 for enrolment of .19 acres of land as Waqf under Section 47 of the Waqf Ordinance; Concern Waqf Inspector was directed to inspect and submit report in Miscellaneous E.C. no.01 of 2000; Accordingly, Waqf Inspector submitted his report on 25.01.2000 stating that Mosharaf Ali and others dedicated .19 acres of land in favour of Eshatul Ulum madrasha and mosque by a registered deed of gift; As per condition of the Waqf deed, secretary of the madrasha managing committee has been supervising the same; But .12 acres of land appertaining to R.S. Plot no.12163 under the said deed of gift earlier enrolled in E. C. no. 16832 by one Jasim Uddin Haider Faruqui showing the land belongs to a mosque established by one Asharaf Ali Sareng; Pursuant to the report of the waqf inspector dated 25.01.2000, a notice under Section 47(5) of the Waqf Ordinance was served upon the Secretary of E. C. no.16832 Jasimuddin Faruqui to explain his position; Petitioner Tafazzal Ahmed filed another application on 14.05.20000 under section 47 of the Waqf Ordinance claiming that one Abu Bakar Siddique enrolled 0.36 acres of land including 0.12 acres of land appertaining to R.S. Plot no.12163 in E. C. no.16832 and got approval of a committee in violation of Waqf deed; On query, it reveals that a waqf deed relating to 0.24 acres of land appertaining to Plot no.13554 created in favour of the Rupchand Shah Fakir mosque committee vide registered deed dated 26.05.1990 and Wakifa Alfa Khatun gifted decimals of land in favour of the mosque; As such, petitioner Tafazzal Ahmed prays to cancel record of E.C. no.16832 and enroll 0.24 acres of land in the record of Misc. E.C. no.1 of 2000; Copy of the application sent to the Mutawalli/ Secretary of E. C. no. 16832 who filed a written reply stating that prayer of Tafazzal Hossain has no legal basis; Then the matter was taken up for hearing. In the hearing, petitioner submits that he has been served as principal of the Kagatia Eshatul ulum madrasha from 1957-1997 and also as Secretary of the Madrasha Managing Committee; Though he retired from the post of the Principal on 13.06.1997 but performing as Secretary of the Madrasha Managing Committee;  The opposite parties i.e. Moulana Abu Bakar Siddiquie and Md. Jasim Uddin Faruqui identifying themselves as President and Secretary filed application under section 47 of the Waqf Ordinance to enroll .36 acres of land on 26.07.1989 beyond knowledge of the madrasa committee; In column 6 of the application “Mosque” is written as name of the Wakif and in column 9 in place of date and year it is written “Mo. Binajury, Upazilla Raozan, Chittagong” and in 3rd page of the application “Hazrat Rupchand (Rah:) Fakir Masjid Committee” is written in place of the name of mutwalli; On the basis of such incomplete and wrong application, E. C. no.16832 has been enrolled as public waqf and a committee consisting of 15 members also approved on 25.11.1991 which was not disclosed for a long period; When the concern waqf inspector went to the area for inspection of another waqf estate then it is disclosed amongst public and thereafter the petitioner filed application for enrolment and cancellation of the earlier enrolment; In total .43 acres of land including .36 acres enrolled in E. C. no.16832 are waqf property of mosque and Madrasha; As such, the petitioner prays to enroll .43 acres of land in the record of Miscellaneous E. C. no.1 of 2000 by cancelling E. C. no.16832.
  2. On the other hand, the opposite party submits that application filed by M. Tafazzal Ahmed is contrary to the law and the statements made in the application are false and baseless as such, application is liable to be rejected.
  3. After hearing the parties and perusing the relevant papers/documents, Administrator of Waqf passed an order on 30.09.2002 keeping the original E. C. record 16832 as it was appointing petitioner M. Tofazzal Ahmed as Mutwalli/Secretary of the Waqf estate, approving a 15 member committee of the estate as proposed by the petitioner for a period of 5 years and enroll the properties submitted by the petitioner in E. C. no.16832 renaming the Waqf estate as “Kagotia Eshatul Ulum Madrasha waqf estate” cancelling previous name “Hazrat Rupchand Shah (R) Fakir masjid Waqf estate”. 
  4. Being aggrieved, the opposite party as appellant filed Miscellaneous Appeal No.276 of 2002 in the Court of learned District Judge, Chittagong, which was ultimately heard and disposed of by the learned Additional District Judge, 2nd Court, Chittagong, who after hearing the parties and assessing the evidence on record allowed the appeal on 11.05.2011 by setting aside the order passed by the Administrator of Waqf holding that Rupchand Shah Mosque and Committee exists long before filing of miscellaneous E.C. no.1 of 2000 and the P. S. and B.S khatian recorded in the name of president of Rupchand Shah Mosque Committee who mutated the khatians on payment of rents and taxes to the Government exchequer.
  5. Having aggrieved by and dissatisfied with the judgment and order, the petitioner preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present rule with an order of stay.  
  6. Mr. Abdul Quaiyum, learned advocate appearing for the petitioner at the very outset submits that Miscellaneous Appeal filed by the opposite party as appellant against the order of administrator of Waqf is not maintainable under the waqf ordinance inasmuch as the administrator of Wakf passed the order under Section 47 of the Wakf Ordinance against which remedy lies only under Article 102 of the constitution and not considering this legal aspect appellate court below committed an error of law resulting in an error in the decision occasioning failure of justice. He also submits that appeal under Section 35 of the Wakf Ordinance available to the Mutwali or any person claiming any interest in the property in respect of which a notification has been issued under Sub-section (1) of Section 34 of the Ordinance and as such the appellate court below committed an illegality in passing the impugned judgment and order. He further submits that court below committed an error of law in not considering that appeal against order under Section 47 is not provided in the Waqf Ordinance and unless a right of appeal is clearly and expressly given by the statute, it does not exist, nor is there any scope for interfering such a right by implication. In this regard Mr. Mahbubey Alam supports contention of Mr. Quaiyum. Mr. Alam submits that since no provision of second appeal exists, the petitioner legally and correctly exhausts the forum of revisional jurisdiction. In support of his submissions, learned Advocate Mr. Abdul Quaiyum referred to the case of Hari Miah vs. the state, reported in 10 DLR 123; the case of Syed Masud Ali and others vs. Md. Asmatullah and others, reported in 31 DLR 249 and the case of Bangladesh vs. Abdul Mannan and others, reported in 29 DLR(SC) 17.
  7. On the other hand Mr. Abdul Momen Chowdhury, learned advocate appearing for the opposite party no.1 submits that the administrator of wakf passed the order after hearing the parties and perusing the evidence on record submitted by the parties as such it is not only an order relating to application for enrolment rather it is an order resolving a dispute between the parties after hearing and perusing relevant documents adduced by the parties which comes within the ambit of Section 50 of the Wakf Ordinance and as such appeal under Section 35 of the Wakf Ordinance was the appropriate forum against the order passed by administrator of wakf. He also submits that since section 35 provides an appeal against the order of the learned District Judge, instant revisional application is not maintainable and liable to be rejected. In support of his submissions, learned advocate referred to the case of Syed Masud Ali and others vs. Md. Asmatullah and others, reported in 31 DLR (AD) 1979.
  8. Dispute is to be resolved whether miscellaneous appeal filed by the opposite party against order of the Administrator of Waqf under Section 47 of the Waqf Ordinance was a competent one, if the answer is affirmative, whether this revisional application against judgment and order of the District Judge is maintainable.
  9. On perusal of the provisions of Section 47 of the Waqf Ordinance it appears that this section imposes a duty on the administrator to enroll all waqfs and maintain register. In the register the particulars to be recorded are enumerated. This duty under the Section is administrative in nature. When a waqf is enrolled and particulars are recorded in the register, description of the properties of the waqf are also to be recorded in the register. This register reflects the contents of the instruments of waqf if there be any. It is not an adjudication order. Once a property is entered into the register as waqf property, any person claiming any right over such property is not barred from raising the claim. But Section 50 of the Waqf Ordinance provides that the claimant has to submit his claim to the administrator. When a claim of this nature is submitted to the administrator, role of the administrator stands changed. He becomes an adjudicator and decides the claim which may be allowed or rejected. Contemplation of section 50 is that, the claim so lodged is a dispute. The administrator decides the dispute after hearing the parties. This role of the Administrator is quasi-judicial in nature. Quasi-Judicial decision under Section 50 on a dispute attracts the procedure of Section 35.
  10. In this case, from the order passed by the Administrator of Waqf it appears that by filing applications on 12.12.1999 and 14.05.2000, the petitioner raises dispute regarding the previous enrolment of the property in E.C. no.16832 enrolled in the year 1991 as such it is not simply an application under section 47 for enrolment but the petitioner claims his right over the property under Section 50 of the Waqf Ordinance as such it can be said that the claim so lodged is a dispute. The Administrator decides the dispute after hearing the parties. In the instant case this role of the Administrator is quasi- judicial in nature. This quasi-judicial function ends up with a verdict and it can be taken to the court of District Judge under Section 35 for a full fledged judicial adjudication. Decision of the District Judge is appealable. The appeal lies to the High Court Division.
  11. Section 50 of the Waqf Ordinance is as follows:
50. Decision if a property is waqf property- Any question whether a particular property is waqf property or not shall be decided by the Administrator:
            Provided that the mutawalli or any person aggrieved by any decision or order of the Administrator this behalf may, within three months from the date of such decision or order, submit a petition to the District Judge in accordance with the provision of sub-section (1) of section 35; and if such a petition is filed, the provisions of Section 35 shall apply.”
  1. In the case of Syed Masud Ali and others-Vs- Md. Asmatullah and others, reported in 31 DLR(AD) 249, our apex court held that inclusion of a property as waqf property in the register under section 47 is not a decision under section 50 denotes a person who has raised an objection as to the waqf character of any property to the administrator. And the expression “any person aggrieved” denotes the person, who is interested to challenge the order passed by the Administrator on a dispute as to the waqf character of the property.
  2. Again, Section 35(3) of the Waqf Ordinance runs as follows:
“35. Petition and appeal against notification or order by Administrator:
  1. ……………………………...
  2. ……………………………...
  3. Any person aggrieved by the decision of the District Judge under sub-section (2) may, within sixty days of the order, appeal to the High Court Division.”
  1. As it appears from above that Section 35 (3) provides appeal to the High Court Division within 60 days against the decision of the District Judge under Sub-section (2), as such I am of the view that the instant civil revision is not maintainable.
  2. It may be mentioned here that the learned advocate for the petitioner filed an application for seeking a decision whether this revisional application is to be converted into an appeal. This court is for adjudication of the matter under Section 115(1) of the Code of Civil Procedure but not for giving advice to the parties whether revisional application will be converted into appeal or not. Furthermore, learned advocate for the petitioner Mr. Abdul Quaiyum though filed the application but maintained his stand that revisional jurisdiction is appropriate forum inasmuch as the appeal filed by the opposite party against the order of the waqf administrator is not in accordance with law.
  3. Since I am of the opinion that civil revision does not lie against the order of the learned District Judge inasmuch as section 35(3) provides appeal to the High Court Division against the order of the learned District Judge, I am not inclined to enter into the merit of the case. 
  4. Accordingly, the rule is discharged without any order as to cost.
  5. Order of stay granted earlier by this court at the time of issuance of the rule is hereby vacated.
        Send down lower court records alongwith a copy of this judgment to the court concern at once.
Ed.