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2007 DIGILAW 466 (CAL)

MD. TARIQ v. AISHA BANU

2007-06-28

S.P.TALUKDAR

body2007
S. P. TALUKDAR, J. ( 1 ) JUDGMENT and order dated 31st January, 2006 passed in Appeal No. 9 of 2005 by the learned Presiding Officer, Wakf Tribunal, West bengal is under challenge in this application under Article 227 of the constitution. ( 2 ) GRIEVANCES of the petitioner/appellant may briefly be stated as follows: (a) Sk. Abdul Mannan was the Mutawalli of Sk. Abdul Karim Wakf Estate bearing E. C. Nos. 1582 and 1582a. He acknowledged the petitioner as his son and a General Power-of-Attorney was executed on 31st August, 2000 in favour of the petitioner. (b) The petitioner was, thus, entrusted to look after, manage the aforesaid wakf Estate and all other immovable properties whatsoever and to take all necessary measures for the betterment of the said property as his lawful attorney. (c) The petitioner was accordingly managing and administering the Wakf properties and was also Naib Mutawalli of the said Wakf Estate. Last recorded mutawalli Abdul Mannan expired on 25th September, 2001. The petitioner started administering and managing the Wakf Estate and was a Mutawalli in terms of section 3 (i) of the Wakf Act, 1995. (d) An application was made on 19th June, 2002 for notifying as well as recording the name of the petitioner with the Chief Executive Officer of the board of Wakfs. In the meantime, the petitioner was paying Wakf contribution and other amount for the said Wakf property and the office of the Board of wakfs duly received the same under section 72 of the Wakf Act, 1995 and granted receipts for the years 2001-2002, 2002-2003 and 2003-2004. Such acceptance of the contribution clearly indicates that the petitioner was accepted as a Mutawalli of the said Sk. Abdul Karim Wakf Estate for the said period. (e) The budget and submission of accounts of the Wakf being accepted by the Board of Wakfs from time to time in terms of provisions of the Wakf Act, it was no longer open for the Board to question the petitioner's status as Mutawalli and what was required to be done, was merely recording the name of the petitioners as Mutawalli in the Wakf Register. This task, however, was neither taken up by the Chief Executive Officer of the Board of Wakfs nor by the enrolment Committee. This task, however, was neither taken up by the Chief Executive Officer of the Board of Wakfs nor by the enrolment Committee. ( 3 ) CURIOUSLY enough, Aisha Banu and Golum Arif applied for being appointed as Joint Mutawallis of the said Wakf Estate thereby claiming that they were the descendants of the founder of the Wakf i. e. Abdul Karim. ( 4 ) AISHA Banu and Golum Arif applied for being appointed as Joint mutawallis of the said Wakf Estate. They claimed to be the descendants of the founder of the Wakf Abdul Karim though they had no documentary evidence. It was claimed that Abdul Karim had another wife by the name of Munna Bibi and two daughters and out of the two daughters, there were two sons, namely, golum Mustafa and Golum Rasul and Aisha Banu being the daughter of Golum mustafa and Golum Arif being the son of Golum Rasul, they were entitled to be the Joint Mutawallis of the Wakf Estate. Such claim had no basis whatsoever in the context of the Deed of Wakf and Wakfnama which reveal that at the time of making the Deed of Wakf, Abdul Karim had only one wife, Nekjan Bibi and daughter Funna Bibi. In absence of any other heir, the Mutawalliship devolved upon Nekjan Bibi after the demise of Abdul Karim, the Wakif and thereafter the Wakif s daughter, Funna Bibi became the Mutawalli. On the demise of Funna Bibi, Abdul Mannan being the son of Funna Bibi became the mutawalli of the said Wakf Estate and was accordingly carrying out and discharging the duties of a Mutawalli. ( 5 ) WHILE considering the claim of the petitioner for recording his name as mutawalli, the Enrolment Committee also took up the prayer for appointment of Aisha Banu and Golum Arif, the respondent Nos. 1 and 2 herein, for their appointment as Mutawallis in respect of the same Wakf Estate. Consideration was made in an arbitrary manner and the petitioner was not given the proper opportunity to represent his case. The said committee in a biased manner resolved that the names of such respondent Nos. 1 and 2 may be recorded as mutawallis for indefinite period in respect of the said Wakf Estate. Such recommendation was confirmed by the Board of Wakfs in its meeting held on 15. 02. The said committee in a biased manner resolved that the names of such respondent Nos. 1 and 2 may be recorded as mutawallis for indefinite period in respect of the said Wakf Estate. Such recommendation was confirmed by the Board of Wakfs in its meeting held on 15. 02. 2005 though such confirmation was made by only four members of the board. Thus, such recommendation was not confirmed by the majority of the members of the Board of Wakfs. Such recommendation as well as its confirmation was invalid, having no force of law. The present petitioner was managing and administering the Wakf at the time of Mutawalliship of the previous Mutawalli, Abdul Mannan and even thereafter, on his demise. The accounts and Wakf contributions amount were duly paid by the petitioner. His name thus deserves to be recorded as the Mutawalli. The said recommendation of the Enrolment committee virtually amounts to removal of the petitioner and this is beyond the authority of the said Committee. The Board of Wakfs is required to undergo the procedure as laid down under section 64 of the Wakf act for removal of Mutawalli and while doing so, enquiry is to be made and reasonable opportunity is to be given. ( 6 ) THE learned Wakf Tribunal by its judgment dated 31. 01. 2006 dismissed the Appeal No. 9 of 2005 and such dismissal was made without appreciating the materials in the proper perspective. ( 7 ) THE present application under Article 227 of the Constitution is directed against the said judgment and order dated 31. 1. 2006 passed by the learned presiding Officer of the Wakf Tribunal in Appeal No. 9 of 2005. ( 8 ) MR. Basu, appearing as learned Counsel for the petitioner, submitted that the learned Wakf Tribunal failed to appreciate the matter in its proper perspective and this resulted its coming to a wrong and illegal decision. ( 9 ) INVITING attention of the Court to the various materials on record which, of course, include copy of the General Power-of-Attorney, copy of the Deed of wakf, copy of the recommendation of the committee as well as copy of the impugned judgment and order of the learned Tribunal and others, it was submitted on behalf of the petitioner that the petitioner derives his authority from the said General Power-of-Attorney. It is not in dispute that such a power of-attorney was executed by the last recorded Mutawalli, Abdul Mannan. In the said power-of-attorney, the present petitioner had been described as 'son'. The petitioner was authorized to act and represent the said Mutawalli, Abdul mannan and discharge the functions of Mutawalli on his behalf. This was in this context of his failing health. It is claimed on behalf of the petitioner that even after the death of Abdul Mannan, the present petitioner continued to function and discharge the responsibilities of the Mutawalli and went on making wakf contributions under section 72 of the Wakf Act. Mr. Basu submitted that any right to raise dispute in this regard was thus waived. ( 10 ) ABDUL Mannan expired on 25. 9. 2001. On 19th June, 2002, the petitioner approached the Executive Officer of the Board of Wakfs for recording his name and appointing him as Mutawalli in respect of the said Wakf Estate. It was submitted that even after such approach was made, the Chief Executive Officer of the Board of Wakf s went on receiving further accounts of Wakf contributions from the petitioner. ( 11 ) ANY attempt to derive any strength on the basis of making such Wakf contributions will perhaps be an act of misadventure. Mere payment of such contributions and acceptance of the same cannot by itself give the petitioner the status of a Mutawalli. ( 12 ) IT cannot be denied that the petitioner himself in recognition to the authority of the Chief Executive Officer, Board of Wakfs approached for being appointed as Mutawalli. It is strange that the petitioner at the same breath challenged its authority and contended that it was outside the scope and jurisdiction of such authority to even recommend recording of the names of o. P. Nos. 1 and 2 as Mutawallis in respect of the Wakf Estate. ( 13 ) MUCH was submitted on behalf of the petitioner regarding taking up of the application filed by Aisha Banu and Golum Arif by the Board. According to the petitioner, the Board continued to receive Wakf contributions from the petitioner and as such, should not have entertained any approach made by any other person for appointment as Mutawalli. ( 13 ) MUCH was submitted on behalf of the petitioner regarding taking up of the application filed by Aisha Banu and Golum Arif by the Board. According to the petitioner, the Board continued to receive Wakf contributions from the petitioner and as such, should not have entertained any approach made by any other person for appointment as Mutawalli. It was then submitted that the names of the said Aisha Banu and Golum Arif did not also figure in the wakfnama and as such, there could be no justification for recording their names as Mutawallis. ( 14 ) MR. Munshi, as learned Counsel for the O. P. Nos. 1 and 2, laid emphasis on the stand of the learned Advocate for the petitioner as reflected in the resolution of the Board of Wakfs that the petitioner was not a descendant of the Wakif. There was no genealogical table before the Tribunal in support of any claim that the petitioner was a descendant of the Wakif. ( 15 ) ON the other hand, it was claimed in the memorandum of appeal filed before the Tribunal that the petitioner is the son of the sister-in-law of Abdul mannan. Even in the affidavit to the present application under Article 227 of the Constitution, the petitioner described himself as the son of one Md. Nesar, since deceased. The materials on record and the stand taken by the petitioner go a long way to give an impression that the petitioner suffers from a crisis of identity. Any claim on the basis of the said power-of-attorney just loses its force, as there remains nothing after the death of Abdul Mannan thereby authorizing the present petitioner to act on his behalf. ( 16 ) MERE fact that the petitioner was described as a son in the said power-of-attorney does not establish his claim to be so. As indicated earlier, he claimed to be the son of the sister-in-law of the said Abdul Manan. ( 17 ) IT was next submitted on behalf of the petitioner that the Board of Wakfs had not removed the petitioner as Mutawalli of the Wakf Estate and no proceedings were drawn up for his removal. ( 18 ) THIS question can hardly arise as the petitioner was, in fact, never appointed as Mutawalli in respect of the Wakf Estate nor his name was so recorded. ( 18 ) THIS question can hardly arise as the petitioner was, in fact, never appointed as Mutawalli in respect of the Wakf Estate nor his name was so recorded. Mere payment of the Wakf contributions does not by any stretch of imagination amounts to his appointment as Mutawalli and as such, question of his removal following established procedure of law could hardly arise. ( 19 ) BELATED approach made by Aisha Banu and Golum Arif for recording their names as Mutawallis by itself cannot be a ground for brushing aside their claim. There could be little scope for controversy till the death of Abdul Mannan in September, 2001. Mr. Basu then challenged the authority of the Enrolment committee to adjudicate on the issue of appointment and/or recording of mutawallis in respect of a public Wakf Estate. This seems to be quite strange in the backdrop of the fact that the petitioner subj ected himself to such authority. ( 20 ) ON behalf of the petitioner, it was next contended that there could be no scope for any delegation of power thereby enabling the Mutawalli and Enrolment committee to virtually act as enquiring committee. ( 21 ) SECTION 27 of the Wakf Act, 1995 deals with delegation of powers by the board. It reads as follows: "the Board may, be a general or special order, in writing, delegate to the chairperson, any other member, the Secretary or any other officer or servant of the Board, or any area committee, subject to such conditions and limitations as may be specified in the said order, such or it's powers and duties under this Act, as it may deem necessary. " ( 22 ) FOLLOWING section 32 of the said Act, the Board is to appoint and removes mutawallis in accordance with the provisions of this Act. Learned Counsel for the O. P. Nos. 1 and 2 found no basis for any grievance regarding functioning of me Committee. Mere fact that section 27 of the Wakf Act, 1995 refers to "the chairperson, any other member, the Secretary or any other or servant of the board, or any area committee. " does not necessarily mean that the ME committee could not have gone into the controversy regarding of the names as mutawalli. ( 23 ) MR. Munshi, as learned Counsel for O. P. Nos. " does not necessarily mean that the ME committee could not have gone into the controversy regarding of the names as mutawalli. ( 23 ) MR. Munshi, as learned Counsel for O. P. Nos. 1 and 2, submitted that the claim of the petitioner that he is the acknowledged son of the last recorded mutawalli, Abdul Mannan, has little force in the eyes of law. Quite rightly it was submitted on behalf of O. P. Nos. 1 and 2 that law relating to office of mutawalliship is to be guided as per the line of succession mentioned in the wakf Deed. ( 24 ) DRAWING inspiration from the decision in the case of Aft. Aziza Khatun and Ors. vs. State of West Bengal and Ors. , reported in AIR 1984 Calcutta 326, it was submitted by Mr. Munshi that it is now an established principle of law that in making such appointment the concerned authority must try to give effect to the wishes of the Wakif and appoint Mutawallis from amongst the members of the family of the Wakif. If none is available from the family of the wakif or the last holder of the office of the Mutawalli, the Commissioner may appoint independent and disinterested persons to the office of Mutawalli. A stranger is not at all desirable to be introduced into Wakf Estate. ( 25 ) RELYING upon the decision in the case of Municipal Commissioner, calcutta and Ors. vs. Salil Kumar Banerjee and Ors. , reported in 2000 (4) SCC 108 , it was contended by Mr. Munshi that there could be no justification for raising any grievance on behalf of the petitioner regarding the functioning of the ME committee and the subsequent approval/acceptance of the recommendation by the Board. Mr. Munshi categorically submitted that post-hearing objection regarding constitution of the Tribunal is not maintainable after having submitted to the jurisdiction for the Tribunal and having taken a chance of a favourable order. Just because the petitioner suffered an adverse result, he cannot be permitted to raise his voice of protest. ( 26 ) IT was then contended by Mr. Munshi that this Court in response to an application under Article 227 of the Constitution is not expected to reappreciate the fact as the learned Wakf Tribunal entered into that aspect and come to its finding. ( 26 ) IT was then contended by Mr. Munshi that this Court in response to an application under Article 227 of the Constitution is not expected to reappreciate the fact as the learned Wakf Tribunal entered into that aspect and come to its finding. In this context, reference was made to the decision in the case of Shama prashant Raje vs. Ganpatrao and Ors. , reported in 2000 (7) SCC 522 , wherein it was clearly laid down that the jurisdiction of the High Court acting in proceedings under Article 227 of the Constitution is supervisory and not appellate. ( 27 ) ON behalf of the petitioner, it was submitted by Mr. Basu that there was no scope for any delegation of authority by the Board. ( 28 ) THIS aspect has already been discussed and there is force in the submission made by Mr. Panja, appearing as learned Counsel for O. P. No. 3, that in the facts and circumstances of the present case it could not be said to be a delegation in the manner as sought to have been proj ected by learned Counsel for the petitioner. ( 29 ) MR. Panja relying upon the decision in the case of Pradyat Kumar Bose vs. Hon'ble Chief Justice of Calcutta High Court, reported in AIR 1956 SC 285 , submitted that an authority empowered by the legislature to dismiss an employee is competent to delegate the power to make an enquiry and report provided the ultimate decision is made by the statutory authority. In this context, Mr. Panja further referred to the 8th Edition of the 'administrative law' by H. W. R. Wade. ( 30 ) OBJECTION was raised on behalf of the petitioner on the count that the board was not duly constituted in accordance with the provisions of law since the Chairman is a disqualified person. Mr Panja contended that the petitioner did not take this point before the Tribunal and cannot be permitted to raise this issue at this stage and that too, within the scope and ambit of an application under Article 227 of the Constitution. It also cannot be said that the Chairman is a disqualified member of the Board and the petitioner could not place any material to the satisfaction of the learned Tribunal in order to establish such a claim. This cannot be agitated at this stage. It also cannot be said that the Chairman is a disqualified member of the Board and the petitioner could not place any material to the satisfaction of the learned Tribunal in order to establish such a claim. This cannot be agitated at this stage. ( 31 ) ACCORDING to Mr. Panja, the grievance that the decision taken by the board cannot have any legal foundation in absence of a quorum is a reflection of the misconceived notion on the part of the learned Counsel for the petitioner. ( 32 ) MR. Basu, as learned Counsel for the petitioner, invited attention of the court to the decision in the case of Mungoni vs. Attorney General of Northern rhodesia, reported in 1960 All England Law Reports 446. But the factual backdrop of the said case and the legal issues involved are significantly different from those of the present case. ( 33 ) IT is very difficult to appreciate as to how the petitioner can derive any support from the said decision. Mr. Basu referred to the decision in the case of quader Nowaz and Ors. vs. Commissioner of Wakfs, W. B. and Ors. , reported in air 1978 Cal. 92 , while submitting that the permanent Mutawalli cannot be appointed by the Board or by the Commissioner because section 40 does not cover a situation of that nature. ( 34 ) WHAT emerges from the materials available on record is that the last recorded Mutawalli, Abdul Mannan, never appointed the petitioner as a Naib mutawalli at any point of time. The learned Tribunal quite rightly held that the status of Naib Mutawalli is vanished with the death of the Mutawalli. Any claim on the basis of a power-of-attorney is rather a reflection of fantastically precise misconception. It has no value in the eyes of law after the death of the person who executes such a document. ( 35 ) LEARNED Tribunal quite rightly took into consideration the fact that the present petitioner did not ever claim as Naib Mutawalli of the Wakf Estate before the Board of Wakfs. Not a scrap of paper was placed in support of such claim. After due consideration of such relevant materials, the learned Tribunal did not find any basis for such claim of the petitioner. Not a scrap of paper was placed in support of such claim. After due consideration of such relevant materials, the learned Tribunal did not find any basis for such claim of the petitioner. Having regard to the fact that the petitioner is the son of the sister-in-law of the previous Mutawalli, abdul Mannan, there could be very little scope for him to establish the claim for being recorded as Mutawalli in respect of the Wakf Estate under reference. ( 36 ) IT appears from the impugned order that the learned Tribunal did not accept the claim of the petitioner that he is the acknowledged son of the last mutawalli. Materials placed before the learned Tribunal clearly indicate that the petitioner identified himself as the son of the sister-in-law of the said mutawalli, since deceased. In the affidavit to present application, he introduced himself as son of one Md. Nisar. The genealogical table disclosed that the said abdul Mannan died without leaving any issue behind. Question of adoption could not arise, nor it is permissible. ( 37 ) MUCH was submitted regarding functioning of the present petitioner as a Mutawalli after the death of Abdul Mannan. Learned Tribunal, in this context, observed that if the petitioner continues to manage the Wakf Estate in question after the death of Abdul Mannan till the appointment or recording of Mutawalli, his status would be treated as caretaker and nothing more. In fact, the claim of mutawalliship on the basis of a General Power-of-Attorney cannot have any legs to stand upon. ( 38 ) IN response to the stand of the present petitioner as appellant before the learned Tribunal that the ME Committee of the Wakf Board has no legal authority to decide the dispute over appointment of Mutawalli on behalf of the board of Wakfs, the learned Tribunal quite rightly observed that the present controversy does not relate to removal of Mutawalli under section 64 of the wakf Act, 1995. ( 39 ) LEARNED Tribunal further held that the ME Committee was entrusted with the task to consider the claim of the parties for appointment as Mutawalli and after the said committee made its recommendation, the Board of Wakfs by resolution dated 15. 2. 2005 approved the same. There could be no scope for any grievance in this regard. ( 39 ) LEARNED Tribunal further held that the ME Committee was entrusted with the task to consider the claim of the parties for appointment as Mutawalli and after the said committee made its recommendation, the Board of Wakfs by resolution dated 15. 2. 2005 approved the same. There could be no scope for any grievance in this regard. ( 40 ) ON behalf of the opposite party No. 3 it was submitted by Mr. Panja that the eight members of the Board being present out of eleven, it could not be said that there was no quorum. He further submitted that the present petitioner approached the Board for his appointment as Mutawalli and subsequently raising the point that the Board does not have the right to appoint Mutawalli permanently exposes the hollowness of the grievance of the petitioner. ( 41 ) IT is well settled that while deciding the claim for appointment as mutawalli, the Board of Wakfs is required to follow the direction of the wakfnama. ( 42 ) PRIMARY right of appointment of a Mutawalli rests with the founder of the Wakf, known as Wakif. The principles which are followed are that the direction of the founder should not be ignored and a stranger should not be appointed so long as there is any member of the family of the founder. ( 43 ) SECTION 63 of the Wakf Act, 1995 deals with the power to appoint mutawallis in certain cases. When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as Mutawalli is disputed, the Board may appoint any person to act as Mutawalli for such period or on such conditions as it may think fit. ( 44 ) SECTION 32 (2) (g) clearly lays down that one of the functions of the Board is to appoint and remove Mutawalli in accordance with the provisions of the wakf Act, 1995. It was quite rightly submitted on behalf of the O. P. No. 3 that in the present case, the Board did not pass any independent order nor any stranger was appointed. The Board just complied with the direction of the wakfnama and the learned Tribunal quite rightly did not find any wrong in the same. It was quite rightly submitted on behalf of the O. P. No. 3 that in the present case, the Board did not pass any independent order nor any stranger was appointed. The Board just complied with the direction of the wakfnama and the learned Tribunal quite rightly did not find any wrong in the same. ( 45 ) IN the present case, after the death of Abdul Mannan, the last recorded mutawalli, there were conflicting claims. It was the statutory obligation on the part of the Board to resolve the dispute. While doing so, it only took the assistance of the ME Committee. It could not be said that the power to appoint mutawalli was by any stretch of imagination delegated in favour of the ME committee. ( 46 ) IT appears that Mr. Basu, as learned Counsel for the petitioner, sought to read more than what meets the eyes in the functioning of the ME Committee by way of making recommendation to the Board. ( 47 ) CONSIDERING all such facts and circumstances, it is found that the grievance, as ventilated on behalf of the petitioner, does not seem to have any rational basis. The petitioner by claiming to be the Mutawalli in respect of the wakf under reference, practically wanted to have an unarmed victory. There was no satisfactory material before the Board so as to justify acceptance of the claim of the present petitioner. In such circumstances, this Court is inclined to hold that the judgment and order of the learned Tribunal, which has been sought to be assailed, does not suffer from any manner of infirmity nor any jurisdictional error. The same accordingly does not call for any interference. ( 48 ) THE present application being C. O. No. 535 of 2006 be accordingly dismissed. Interim order, if any, stands vacated. Appeal dismissed. .