Md. Yusuf Chowdhury Vs. Administration of Waqf, VII ADC (2010) 474

Case No: Civil Petition for Leave to Appeal No. 2067 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Sk. Zulfiqur Bulbul Chowdhury,,

Citation: VII ADC (2010) 474

Case Year: 2010

Appellant: Md. Yusuf Chowdhury

Respondent: Administration of Wakf

Subject: Wakf,

Delivery Date: 2009-11-8

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Abdul Matin J
Abu Nayeem Mominur Rahman J
 
Md. Yusuf Chowdhury
……………….......Petitioner
Vs.
The Administration of Waqf of No. 4, New Eskaton Road, Ramna, Dhaka-1000 and Others
………..…….....Respondents
 
Judgment
November 8, 2009
 
Wakf Ordinance
Section 32(1)
Under section 32(1) of the Wakf Ordinance and appointed official mutawalli Motahar Hossain Chowdhury as regular mutawalli and thereafter the petitioner challenged the said judgment.…. (8)
It appears that the Administrator of Wakf by order dated 3.5.1986 held that the present petitioner being junior member cannot get any preference over the senior members for appointment  as mutawalli and that order was  not challenged by the present petitioner at any time and therefore the High Court Division committed no illegality in discharging the rule.….. (12)
 
Lawyers Involved:
Sk. Zalfiqur Bulbul Chowdhury, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner.
Abdul Wadud Bhuiyan, Senior Advocate instructed by Mrs. Sufi a Khatun, Advocate-on-Record-For Respondent Nos.4 & 6.
Not represented- Respondent Nos.1-3, 5.
 
Civil Petition for Leave to Appeal No.2067 of 2009.
(From the judgment and order date 23.07.2009 passed by the High Com Division in Writ Petition No.5351 of 2000.
 
JUDGMENT
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 23.07.2009 passed by the High Court Division in Writ Petition No.5351 of 2000 discharging the Rule and affirming the order dated 01.10.2000 passed by the Administrator of Waqf, Dhaka in B.C.No. 2323 (Chittagong) (Tofazzal Ali Chowdhury Waqf Estate) rejecting an application under Section 32(1) of the petitioner.
 
2. The facts, in short, are that the petitioner's predecessor Tofazzal Ali Chowdhury creat­ed "Tofazzal Ali Chowdhury Waqf Estate" by deed No.415 dated 22.01.1915 with the noble and pious object of proper manage­ment of two mosques and to meet the expenses for jiarat of the graveyard of the Wakif, his wife and his predecessors etc.
 
3. The Wakif got 2(two) wives and had 4 (four) sons and 1 (one) daughter through his first wife, namely (a) Islamil Chowdhufy,(b) Hamdu Meah Chowdhury,(c) Eazal Karim Chowdhury, (d) Dula Meah Chowdhury and (e) Aeaba Khatun and Wakif had 2 (two) sons and 3(three) daughters through his second wife, namely (a) Abul Hossen Chowdhury, (b) Ekhlasur Rahman Chowdhury, (c) Mazuma Khatun, (d) Rowshan Jamal and (e) Tahmina Khatun. During the life time of Wakif, his daughter Tahmina Khatun died before marriage. The Wakif Tofazzal Ali Chowdhury took his second wife at the fag end of his life and therefore, his two sons namely Abul Hossain Chowdhury and Ekhlasur Rahman Chowdhury through his second wife were more or less equal to Wakif’s grand sons in age and grand daughters through his first, second and third son through his first wife. The Wakif s son Ekhlasur Rahman Chowdhury was younger than the Wakif’s grand son Md. Sirajul Islam Chowdhury.
 
4. The Wakif was the first mutwalli of the Waqf Estate till 1943 and after the death of Wakif his son Abul Hossain Chowdhury was the mutwalli till 1976 and after his death both Ekhlasur Rahman Chowdhury and Motahar Hossain Chowdhury was the joint mutwalli of the Waqf Estate and due to misappropriation of waqf fund said Motahar Hossain Chowdhury was removed from the post of joint mutwalli by order dated 16.06.1980 and then said Eklasur Rahman Chowdhury was appoint­ed sole mutwalli from 16.06.1980 to 13.10.1982 and thereafter his first son Mahmudul Haque Chowdhury was the joint mutwalii with Mohammad Miah Chowdhury till 13.12.1985 and Mahamudul Hoque Chowdhury was removed for misappropriation and there­after Mohammad Miah Chowdhury was sole mutwalli till April 1986 and thereafter Motahar Hossain Chowdhury was appointed official mutwalli by order dated 03.05.1986 from the amongst 5 (five) aspirants including the petitioner for a period of 3 (three) years or until further order and the Administrator of the Waqf by the same order dated 03.05.1986 also constituted 5 (five) members advisory committee consisting of A.D.C. (Rev.), Chittagong as its Chairman and respon­dent No.2 being mutwalli its Member Secretary and Local Ward Chairman of Sulakbahar Ward, Mohammad Yusuf Chowdhury the petitioner and Abbas Uddin Chowdhury with a direction that the mutwalli would be responsible for the management of the Waqf Estate, submis­sion of accounts, payment of waqf contri­bution and other statutory liabilities and with a further direction that the Advisory Committee would at least sit together once in a month and they would guide the mut­walli in the management and development of the Waqf Estate.
 
5. Thereafter the petitioner filed an appli­cation on 28.07.1993 under Section 32(1) of the Waqf Ordinance, 1962 for removal of the respondent No.2 Motahar Hossain Chowdhury from the post of mutwalli of the Waqf Estate. The respondent Nos.2 and 4 jointly filed another application under Section 32(1) of the Waqf Ordinance and respondent No.3 Mokhlesur Rahman Chowdhury also filed another application on 20.10.1991 under Section 32(1) of the Waqf Ordinance. The Administrator of Waqf took up the appli­cations under section 32(1) of the Waqf Ordinance for analogous hearing.
 
6. The earlier allegation under Section 32(1) of the Waqf Ordinance was inquired into by the Waqf Inspector and auditor who filed report on 26.11.1988 and the present allegation was again inspected by Md. Idris Hossain, Inspector of Waqf and he submitted enquiry report after holding enquiry on 09.01.1994 finding truth of allegation.
 
7. At the time of hearing of the application under Section 32(1) of the Waqf Ordinance depositions of 3 (three) wit­nesses were recorded on behalf of the peti­tioner Md. Yusuf Chowdhury 1 (one) of which was the elected local Ward Commissioner. The petitioner had more witnesses to examine, but the petitioner was constrained to pray for directing the mutwalli Motahar Hossain Chowdhury at least to cross-examine petitioner's witness No.2 Ahamadar Rahman Siddique, the local elected Ward Commissioner, because due to public function, the said witness may not appear before the Administrator of Waqf on the next dates and in that case, the petitioner will be highly prejudiced and his said prayer was verbally rejected and then the petitioner prayed for supplying the written objection filed by the mutwalli Motahar Hossain Chowdhury, but the Administrator of Waqf, compelled the petitioner and his learned Advocate to go out from the Court and the petitioner was not intimated the next date of the proceeding and then hav­ing no other alternative the petitioner filed an application to transfer the case to any other competent court for disposal and copies of that application was served upon the then Prime Minister, Religious Minister, Secretary, Ministry of Religious Affairs and also Administrator of Waqf, Dhaka through registered post on 24.12.1995 and 21.12.1995, but the respondent No.1 did not pay any hid to that application for transfer.
 
8. The respondent No.1 the Administrator of Waqf, Dhaka by order dated 28.07.1996 rejected the application under Section 32(1) of the Waqf Ordinance and appointed official mutwalli Motahar Hossain Chowdhury as regular mutwalli and thereafter the petitioner challenged the said judgment and order dated 28.07.1996 in Writ Petition No.3670 of 1996 and both Abbas Uddin, Mojaharul Haque Chowdhury jointly filed Writ Petition No. 3522 of 1996 against aforesaid judgment and order dated 28.07.1996.
 
9. Pending Writ Petition Nos.3670 of 1996 and 3522 of 1996 the Administrator of Waqf in connivance with Ashraf Uddin Chowdhury (respondent No.6) and Moklesure Rahman Chowdhury (respondent No.4) and others formed a Managing Committee by order dated 05.01.1998 appointing said Ashraf Uddin Chowdhury as Secretary behind the back of the petitioner, then this petitioner was constrained to file another Writ Petition No. 1300 of 1998 and the mutwalli Motahar Hossain Chowdhury also filed Writ Petition No. 1298 of 1998. The High Court Division was pleased to hear all the 4 (four) Writ Petition Nos. 3522 of 1996, 3670 of 1996, 1299 of 1998 and 1300 of 1998 analogously and disposed of the writ petitions by judgment dated 02.05.1999 declaring that the order dated 05.01.1998 was made without any lawful authority and also acceded that the judgment and order dated 28.07.1996 has merged with the impugned order dated 05.01.1998.
 
10. Being aggrieved by and dissatisfied with the judgment and order passed by the High Court Division the petitioner has preferred this petition for leave to appeal.
 
11. Heard Mr. Sk. Zulfiqur Bulbul Chowdhury, the learned Advocate appear­ing for the petitioner and Mr. Abdul Wadud Bhuiyan, the learned Counsel appearing for the respondent Nos.4 & 6 and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
12. It appears that the Administrator of Waqf by order dated 03.05.1986 held that the present petitioner being a junior mem­ber cannot get any preference over the senior members for appointment as mutwalli and that order was not challenged by the present petitioner at any time and therefore the High Court Division com­mitted no illegality in discharging the Rule.
 
We find no substance in this petition which is accordingly dismissed.
 
Ed.