Judgment Radha Mohan Prasad, J. 1. In the present writ application the petitioner, who claims to be appointed as Mutwalli of the Waqf State situated at Mohalla muradpur, P. S Pirbahore, P. O. Backipur, Patna created under the Wakf deed executed by one Bibi Mannu Khanam Jan, prays for quashing of the order dated 6-10-1988 passed by the Special Officer, Bihar State Sunni Wakf board. Patna (hereinafter referred to as the Board), a ptoto copy where of has been annexed as Annexure 1 and, further, he has also sought for his appointment as Mutwalli of the said Wakf State. 2. In short, the case of the petitioner is that the aforementioned Wakf was created by existing Ekrarnama on 20th August, 1827. , It is slated that the original wakf deed was in Persain language and the Bihar Sunni Majlis and Wakf published an English translated version of the same. A photo stat copy of the English translated version of the Deed has been annexed as annexure 2. According to the petitioner the executant of the Deed appointed her husband Sheikh Azmatullah together with his children generation after generation both in the male and famele lines as Motwalli of Mosque and imambara and properties of the wakf dedicated to the Almighty. It is stated that the said wakf was registered as Wakf Estate No.15 and that Sheikh gulam Bari was the last Motwalli of the aforesaid wakf in the line of Sheikh azmatullah. The petitioner is the second son of the last Motwalli Sheikh gulambari. "3. It is alleged that the Management of the said wakf was taken over by the Board some time in the year 1949 and was being managed by the committee constituted by the Board. The last Managing Committee was re-constituted on 8th May, 1987. It appears that the petitioner thereafter filed an application before the Board for his appointment as Motwalli and approached the respondents several times. However, when the respondents did not pay any heed to the request made by the petitioner, they in the year 1987 filed a writ application in this Court being C. W. J. C. No.2225/87 praying therein to issue necessary direction to the authority concerned to appoint the petitioner as Motwalli. The Division Bench, vide order dated 24-5-88 with the consent of the parties disposed of the writ application with the following direction. The Division Bench, vide order dated 24-5-88 with the consent of the parties disposed of the writ application with the following direction. " "the petitioner will make an application to the special officer who is exercising the powers of the Board to appoint him as Mutwalli of the wakf in question in terms of the wishes of the wakf. In case such an application is filed then the concerned authority will examine whether the petitioner falls in the line of succession of the wakf and if he fails whether be is suitable to be appointed as Mutwalli or not. It is needless to say that in case he is found suitable then in terms of the wishes of wakf his case has to be considered but in case he is not found suitable then he can not be appointed as Mutwalli. It will also be proper if the concerned authority gives reason for the view he takes. . . " 3. While disposing of the writ application this Court specifically directed the concerned authority that he should examine whether the petitioner falls in the line of succession of the wakif and if he falls, then whether he is suitable to be appointed as Motwalli or not It was made clear by their Lordships that if he is found suitable, then in terms of the wishes of the wakif his case should be considered, but if he is not found suitable, he cannot be appointed as Motwalli. Their Lordships also directed that the reasons for the view which the authority takes, should be assigned by him. 4. Thereafter, the petitioner filed petition before the Board (respondent no.2) for his appointment as Motwalli under Sec.42 of the Wakf Act. The Special Officer of the Board heard both the parties and rejected the claim of the petitioner by the impugned order, 5. Mr. Mazumdar, learned senior Counsel for the petitioner submitted that the impugned order is bad inasmuch as, the reasons assigned by the special Officer for rejecting the claim of the petitioner are either non-est or wholly arbitrary. 6. It is contended that the Special Officer has rejected the claim of the petitioner on both counts. Mr. Mazumdar, learned senior Counsel for the petitioner submitted that the impugned order is bad inasmuch as, the reasons assigned by the special Officer for rejecting the claim of the petitioner are either non-est or wholly arbitrary. 6. It is contended that the Special Officer has rejected the claim of the petitioner on both counts. In so far as the finding regarding the claim of the petitioner that he fails in the line of succession of the wakif is contrary to the records of ttie case it has been submitted that the Special Officer has noticed that the petitioner has an elder brother namely Amin, who is alive. But he was erroneously mentioned in the order that no cogent reason has been assigned as to why and how the petitioner being younger comes in the line of being appointed as Motwalli. Learned Counsel submitted that in fact, an affidavit was filed by his elder brother Aminurahman alias Amin in the Board stating that be has no objection in the appointment of the petitioner as motwalli of the said wakf estate for the reasons mentioned in the said affidavit. A photo copy of the affidavit sworn on 6-7-88 before the Notary public Patna has been annexed as Annexure 3. 7. Mr. Raghib Ahsan, appearing for the Board has not been able to dispute this fact that the affidavit of the elder brother of the petitioner was filed in the Board. He however, contended that as the said affidavit was not brought to the notice of the Special Officer, be has not considered the same in his order. However, Mr. Mazumdar, learned senior Counsel appearing for the petitioner has seriously disputed this contention and submitted that firstly there is no pleadings in this regard on behalf of the Board and secondly, that in fact, the entire matter including the affidavit aforementioned which was on the records of the case, was brought to the notice of the Special officer. 8. Thus, in my opinion, the ground for arriving at a finding aforementioned that no cogent reason has been assigned for appointment of the petitioner as Motwalli when his elder brother was alive cannot be sustained. 8. Thus, in my opinion, the ground for arriving at a finding aforementioned that no cogent reason has been assigned for appointment of the petitioner as Motwalli when his elder brother was alive cannot be sustained. Once the affidavit was there on the record of the case which is not disputed, it was the duty of the Special Officer to have considered the same before arriving at a finding that no reason has been assigned as to why the petitioner being younger comes in the line of being appointed as Motwalli when his elder brother is alive, 9. The reason assigned by the Special Officer for arriving at a finding that the petitioner cannot be held to be in the line to be appointed as motwalli of the wakf is this erronuous and fit to be set aside. 10. Mr. Mazumdar, learned Senior Counsel for the Petitioner has further that the reasons mentioned in the order of the special officer for arriving at a finding that the petitioner is not suitable for being appointed a motwalli are either vague or non est It has further bren contended that by living in the house of the wakf property, a person cannot be held to be disqualified for appointment as Motwalli. 11. In reply, Mr. Raghib Ahsan, learned Counsel for the Board, has submitted that a Motwalli is not entitled to reside in a portion of the wakf property or utilise the wakf property in any manner in his personal use unless the Deed creating wakf provides for any such provision. It has been submitted by the learned Counsel that admittedly, the petitioner has been living with his father in the house, which is a wakf property and thereby utilising the wakf property for his personol use. This itself, according to the learned Counsel, is sufficient ground for holding that the petitioner is not suitable for appointment as Motwalli. 12. In my opinion, Mr. Ahsan is right in his submission. A property, which is dedicated by creating wakf to the Almighty cannot be in any manner utilised for the personal use by any one including the person claiming appointment as Motwalli and if any person does so, then he cannot be held to be a suitable person for appointment as Motwalli of the wakf property. A property, which is dedicated by creating wakf to the Almighty cannot be in any manner utilised for the personal use by any one including the person claiming appointment as Motwalli and if any person does so, then he cannot be held to be a suitable person for appointment as Motwalli of the wakf property. Morever, as it appears from the impugned order, the petitioner is living in the house, which is a wakf property with his father and not that he is in occupation of the same independently. Thus, in my opinion, the petitioner cannot be held to be not a suitable person on the ground that the petitioner by living in the house was utilising the wakf property in his own use. Accordingly, the case pf the petitioner requires reconsideration by the Board for appointment as motwalli, if he vacates the said house and makes a fresh application for appointment as Motwalli. 13. Accordingly, the writ application is disposed of with the liberty to the petitioner to file a fresh application for consideration of his case for appointment as Motwalli after vacating the house in question and, if such an application is made by him before the Special Officer or the Bihar State Sunni wakf Board, Patna, as the case may be, then his case will be considered by him on its own merit without being prejudiced by the impugned order.