Monday, July 22, 2019 | ePaper

Change in Waqf Management

Administrator Should Be Notified Duly

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High Court Division :
 (Special Original Jurisdiction)
Moyeenul Islam  
Chowdhury J
Md Ashraful Kamal J
Habib Ahmed Shukur     
Morshed……………Petitioner
        vs
 Waqf Administrator
Bangladesh and others
……………. Respondents
Judgment
September 17th, 2014      
Waqf Ordinance (I of 1962)
Section 51
On a plain reading of the Section it is crystal clear that whenever any change needed in the management of an waqf 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. .................................................. (16)
Waqf Ordinance (I of 1962)
 Section 102
According to Section 102 of the Ordinance, 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 Ordinance……………….. (18)


Waqf Ordinance (1 of 1962)
Section 43
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……………………………..(25)
G. Nagewara Rao vs APSRT Corpn (K. Subba Rao), 1959 AIR SC 306; Showkat Ali vs Administrator of Waqfs, 29 DLR (SC) 276 and Amir Abdullah Khan vs Muhammad Attaullah Khan, PLD 1990 SC 972 ref.
Md Khalilur Rahman with Hasan Md Reyad Advocates-For the Petitioner.
Mahbubey Alam Senior Advocate with 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. IcÖt/Pt`t/(4)2(2) dated 2-8-2012 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 13-7-1976 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 unwilling-ness, 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 29-6-1993 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 5-7-1994 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 5-7-1994, the proforma respondent No.5 filed a Writ Petition being No. 1733 of 1994, wherein the Rule issued was ultimately made absolute on 24-3-1998 and upheld by the Appellate Division on 30-4-2002.
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 mutawalli. 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 2-7-2012 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 7-7-2012 and on 12-7-2012 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 subjectmatter. Accordingly, the respondent No.4 conducted the inquiry on 24-7-2012 and after completion of the inquiry, he submitted the report on 28-7-2012. In consideration of the recommendation of the report dated 28-7-2012, the respondent No.2 on 2-8-2012 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 2-8-2012 passed by the respondent No.2, appointing the respondent No.3 as mutawalli, 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 submit that the respondent No.2 without giving an opportunity of hearing to the petitioner passed the order dated 2-8-2012. 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 24-3-1998 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. I 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. 24-7-2012 and made a report on 28-7-2012. 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 APSRT Corpn (K. Subba Rao) reported in 1959 AIR SC 306, 34 DLR (AD) 29, 48 DLR (AD) 10, 7 BLC 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 vs 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 5-7-1994 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 25-7-2012 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-(l) 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 waqfs 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 of other proceeding in any Court, except as otherwise expressly provided in the said Ordinance.
 (To be continued)

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