Thursday, January 24, 2019 | ePaper
Waqf estate should run by the terms of original deed
(Special Original Jurisdiction)
Md Rezaul Hasan J
Kashefa Hussain J
July 27th, 2016
Akhtaruzzaman (Md) .............. Petitioner
Administrator of Waqf, Waqf Administration of Bangladesh and others .... Respondents*
Waqf Ordinance (1 of 1962)
Sections 27(g) and 43
The ultimate objective of the estate being for the beneficiaries of the waqf nothing can be done which can cause any sort of detriment or can otherwise cause impediment to the smooth running of the administration of any waqf estate for the purpose of which the waqf was originally created. Section 34 presupposes a situation, circumstance etc. where the waqf administrator may by following due procedures take over and assume the administration, control etc. of any waqf estate inter alia any religious institution appertaining to such property. . .... (18 & 19)
Abdul Khaleque Sowdargar vs Abu Jafar, 12 BLD 426 ref.
Sherder Abul Hossain, with Tahmina Akther, with Md Saiful Islam, with AGM Moynul Hossain, Advocates-For the Petitioner.
Abdus Salam Mondal, Advocate-For the Respondent Nos. 3-5.
Kashefa Hussain J: Rule Nisi was issued in the instant writ petition under Article 102(1) and (2) of the Constitution of the People's Republic of Bangladesh calling upon the respondents to show cause as to why the Order vide memo No. ItcÃ–tÃ¯tkv1/1857-61 dated 26-12-2013 passed by the respondent No. 1 in deciding to manage the 2.83 acres of land property of EC No. 20327 by two separate Nothis i.e. 1.43 acres in original EC No. 20327 through petitioner's managing committee and 1.40 acres in newly created EC No. 20327 (ka) through Joint Mulawalli (annexure-D) should not be declared to have been passed having lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Facts relevant for disposal of the Rule in short, is that the property under EC No. 20327 is Waqfs properly since before the Cadastral Survey and was under the care of the trustee of the Waqfs and the CS Khatian was accordingly prepared in their name and subsequently it was recorded in the SA and RS Khatian in the name of the heirs of the trustee but at the time of BS Khatian the property was recorded in the name of the heirs of trustee and other third person as their personal property. The petitioners and most of the member of the appointed managing committee are the heirs of the recorded trustee.
The said property was managed by the petitioner's committee and also with the co-operation of local elites. The said Waqfs property was not registered with the Administration of Waqfs, Bangladesh and as recently the property was recorded as the personal properly of the heirs of trustee and other third persons and as the future existence is under question, the petitioner filed an application to the Administration of Waqfs for registration of the property as Waqfs property and accordingly after holding enquiry enrolled the property as Waqfs property under EC No. 20327 on 14-6-2013. The present respondent No.3 and 4 opposed the registration of the property as Waqfs property at the time of enrolment appearing before the Administrator.
3. The respondent Nos. 3,4 and 5 on 18-8-2013 filed an application to the Waqfs Administrator, Bangladesh praying for appointment of Mutawalli among the heirs of trustee.
4. On the basis of the application an enquiry took place and the enquiry officer submitted his report on 24-9-2013 opining that as the property is enrolled in EC No. 20327 and has been managed through the Managing committee, instead of appointing Mutawalli, the property may be managed reconstituting the managing Committee including the approved managing Committee.
5. The respondent No.1 upon hearing both the parties on 26-12-2013 passed the order that the 2.43 acres of land under EC No. 20327 will be managed by two separate Nothi with condition that the approved committee of the petitioner is upheld regarding 1.43 acres of land and the rest 1.40 acres of land will be managed by Joint Mutawalli Md Abdus Samad, Md. Ulfat Hossain and Md Younuch ali through EC No.20327(ka).
6. Being aggrieved by the Order dated 26-12-2013 passed by the respondent No. 1 the petitioners filed the instant Writ Petition in which Rule was issued upon the respondents by this court.
7. Learned Advocate Mr. Sherder Abul Hossain along with learned Advocate Ms. Tahmina Akther appeared on behalf of the petitioner while learned Advocate Mr. Abdus Salam Mondal re-presented the respondent Nus. 3,4 and 5.
8. Learned Advocate for the petitioner submits that the impugned order of the Waqf Administrator presently under challenge was unlawfully given and not binding up the petitioner. He assails that by virtue of the impugned order, the Waqf Administrator arbitrarily split up the Waqf property which was properly enrolled under section 47 of the Waqf Ordinance after following proper legal procedures. In support of his contention, he argues that nowhere in the scheme of the Waqf Ordinance is it contemplated that pursuant to the creation of a Waqf estate and after proper enrollment under the provisions of the Ad, the Waqf property maybe in any manner be split up into two parts. He asserts that the splitting up of the Waqf property followed by the appointment of Joint Mutawallis and the subsequently separate EC numbers were given without lawful authority without legal effect being beyond the jurisdiction of the respondent No.1 Administrator of Waqfs and therefore the Rule ought to be made absolute for ends of justice.
9. Un the other hand, Mr. Abdus Salam Mondol learned Advocate appearing for the respondent Nos. 3, 4 and 5 by filing an affidavit-in-opposition submits that both the petitioner and the respondent Nos. 3, 4 and 5 are legal heirs of the original "Jimmader"(custodian) of the Waqf property under challenge here. He argues that contrary to the submissions of the petitioner, the impugned order passed by the respondent No. 1 was given within the ambits of the Waqf Ordinance itself. Relying upon his submission he takes us to Section 27(g) of the Waqf Ordinance 1962 contending that by virtue of the provision of Section 27(g), the respondent No. 1 is empowered to do all acts including splitting up the Waqf property into two parts and persists that he is also "empowered" to issue separate enrollment numbers subsequently after the original enrollment. In support of his contention he further takes us to section 49 of the Ordinance, whereby he persuades that the provisions of Section 49 "empowers" the Waqf Administrator to "amend" any matter relating to the Waqf estate including change of enrollment number or issuing two enrollment numbers pursuant to splitting up of the estate.
10. Learned Advocate for the respondents also tried to focus our attention on the "Grounds" taken by the petitioner in the Writ Petition. In particular he drew our attention to Section 34(3) of the Ordinance and contended that Section 34(3) is not at all applicable in the instant case. He asserts that the impugned order passed by the respondent No. 1 was lawfully issued and therefore the Rule ought to be discharged for ends of justice.
11. We have heard the learned Advocates for both sides perused the application and materials on records. We have examined the provisions of the Ordinance itself. Learned Advocate for the respondent had drawn our attention to Section 27(g) of the order. The provision of Section 27(g) and Section 49 of the Ordinance are reproduced below:
"Section 27(g): generally doing all such acts as may be necessary for the due control, maintenance and administration of waqfs."
"Section 49: The Administrator, on his own motion or on the petition of any person interested, verified in the manner referred to in sub-Section (8) of Section 47, may direct a mutawalli to apply for the enrolment of a waqf or to supply any information regarding a waqf, or may himself collect such information, and may cause any waqf to be enrolled, or may at any time amend the register of waqfs."
12. The provisions of the clauses of Section 27 including Section 27(g) upon which reliance was placed by the respondent gives a description of the powers and functions of a Waqf administrator in addition to any powers or functions he may be empowered to do elsewhere of the Ordinance.
13. A close reading of Section 27(a-f) either along with Section 27(g) does not indicate any provision which may entail the splitting up of the integral part or corpus of a Waqf estate. Nor is the exercise of such a power contemplated anywhere else in the Ordinance.
14. Drawing support from the other sections and the scheme of the Ordinance we are inclined to hold that it being a settled principle that to appreciate the true intent of a statute, it ought to be read in whole, therefore also relying upon such principle it is crystal clear that the contents of Section 27(g) which empowers the Waqf administrator to do all acts necessary for the due "control, management and administration" of Waqfs can by no degree of imagination or interpretation be extended to imply the power of the administrator split up the integral part, portion or the corpus of a Waqf estate.
15. We have also carefully scrutinized the provisions of the Sections 27(a-f). Upon perusal of these, we are of the considered opinion that the contention of the learned Advocate for the respondents is not correct. Coming upon Section 27(g) including the other clauses of this particular section and upon interpretation thereof it is clear that Section 27(g) does not empower any Waqf Administrator including the respondent No.1 to engage himself in any acts beyond those that are expressly provided for in the Ordinance and those that are incidental or/and ancillary to the due control maintenance and administration of any Waqf estate or enrolled under the provisions of the Ordinance. Nowhere in the scheme of the Ordinance have we found anything that might entail or contemplate "splitting up the corpus of a Waqf estate after a proper enrollment under the provisions section 47 of the Act.
16. Learned Advocate for the respondent also relied upon Section 49 of the Ordinance. Upon examination of this section it is our considered view that the learned Advocate for the respondent has regrettably upon a mistaken understanding of the law mis-interpreted the word "amended" as it appears in Section 49 of the Ordinance. In this context it is clear and evident from the language of Section 49 itself that the Administrator may only "amend" the "register" of a Waqf. TheÂ· law does not contemplate anything beyond amendment of the register of Waqf. For our satisfaction we have gone through section 48 of the Ordinance which is the relevant provision for "register" of Waqf. From a perusal of Section 48 read along with Section 49 it is clear that amendment can be made in the register of Waqf only in respect of the particular criterias and which purposes has been laid down in section 48 itself and nothing beyond that is contemplated in section 49 or anywhere else in the Act. Section 49 is only a continuation of Section 47 which provides for inter alia the procedure for enrollment of a Waqf estate followed by section 48 which provides for the "register" of the Waqf to be maintained by the Waqf Administrator specifying the contents of the register. To be able to adopt a clear meaning of the laws and to appreciate the intention of the legislation all the sections must be read together along with the other provisions of this Ordinance.
17. Learned Advocate for the petitioner during his submission cited a decision of this court in the case of Abdul Khaleque Sowdargar vs Abu Jafar reported in 12 BLD (426) wherein he relics on the principle enumerated in that case. The relevant principle cited by the Learned Advocate for the petitioner is reproduced below:
"In the instant case it appears that the Administrator of waqfs and the learned Additional District Judge, both maintained that the petitioner was an elderly, pious and honest man and he was also a sardar of the Mahalia. So there was no impediment to his appointment as Mutawalli of the estate. They, however, found it feasible to appoint opposite party No.1 as joint Mutawalli with the petitioner only to mitigate the belligerence between the two groups of descendants of the original waqf who had been locked in litigations for long years to the detriment of the waqf. In my opinion such considerations are not visualised either under Section 43 or under Section 27(g) of the Waqfs Ordinance. Furthermore the logic weighing with the Administrator and the learned Additional District Judge is counter productive. Two inimical groups cannot be harnessed together for smooth administration of an estate or for any purpose whatsoever.
One is apt to sabotage the act of the other. Instead of harmonious administration, there will be a deadlock of it, however, sincere may be the intention behind the appointment of joint Mutawallis. I am sure it will not work out. Last but not the least, there is no scope for appointment of permanent Mutawalli under Section 43 of the Waqfs Ordinance."
18. We have gone through this Judgment and we find that virtually the only difference between the present case before us and the decision cited by the petition is that the case presently before us involves the question of creating new enrollment number and splitting up of the Waqf estate, while in the decision cited before us, the moot question was whether a Waqf Administrator is empowered to appoint Joint Mutawallis under Section 43 of the Ordinance or not. But apart from some of these factual aspects the principle of the decision in the 12 BLD case is applicable in the present case before us so far as the ultimate objective of a Waqf estate is concerned. In agreement with the principle cited in that decision by this court we are also of the view that the ultimate objective of the estate being for the beneficiaries of the waqf nothing can be done which can cause any sort of detriment or can otherwise cause impediment to the smooth running of the administration of any waqf estate for the purpose of which the waqf was originally created. Further the decision cited before us also held that Section 27(g) does not visualize any power of the Waqf beyond the scheme of the Ordinance.
19. Against the respondents' contention that the petitioner's reliance upon Section 34(3) is incorrect and misleading, we are in agreement with the learned Advocate for the respondents so far that Section 34(3) is not actually applicable in the instant case.
It is true that Section 34 presupposes a situation, circumstance etc. where the waqf administrator may by following due procedures take over and assume the administration, control etc. of any waqf estate inter alia any religious institution appertaining to such property and it docs appear that the petitioner's reliance upon the provisions of this section is mistaken and not applicable in this case.
20. Be that as it may, however that does not make the position of the Impugned Order dated 26-12-2013 any better for the reasons discussed elsewhere in the judgment. The impugned order dated 26-12-2013 passed by the respondent No. 1 is bad in the eye of law and does not bear any lawful basis and was issued exercising unlawful authority beyond the Jurisdiction conferred upon him by the statute and such unlawful order is liable to be quashed.
21. On an overall consider of the facts and circumstances and in the light of the observations made above and also upon agreement with the principle set out in the decision cited by the petitioner, we find merits in the Rule.
22. In the result, the Rule is made absolute without any order as to costs and the Order vide memo No. l(ItcÃ–tÃ¯tkv-1/1857-61) dated 26-12-2013 passed by the respondent No. 1 in deciding to manage the 2.83 acres of land property of EC No. 20327 by two separate Nothis i.e. 1.43 acres in original EC No. 20327 through petitioner's managing committee and 1.40 acres in newly created EC No. 20327 (ka) through Joint Mutawalli is hereby quashed.
23. The order of stay granted at the time of issuance of the Rule is hereby vacated.
Let a copy of this judgment be sent to the court concerned.