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2020 DIGILAW 637 (ALL)

Irshad Ali v. Hasrat

2020-02-27

ANJANI KUMAR MISHRA

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JUDGMENT : Anjani Kumar Mishra, J. 1. Heard learned Counsel for the revisionist. 2. This revision has been filed against the order dated 14.2.2012 of the Waqf Tribunal dismissing the revisionist's reference. It was the case of the revisionist that he was appointed as Mutawalli of Waqf in question. However, he was removed and replaced by Committee of Management. 3. Aggrieved by such appointment, he approached the Waqf Tribunal by means of an appeal/reference, which has been rejected by the impugned order. Hence this revision. 4. The dispute pertains to Waqf Nyaj Ali, 538 situated in Village Pachpeda, Post Office Syal, Pargana, Tehsil and District Meerut, which is a registered waqf. 5. The facts of the case are that the applicant was appointed as Mutawalli of the Waqf in question on 7.1.1993. The order of appointment clearly stipulated that it was a term of five years, which would expire on 6.1.1998 automatically. The order impugned appointing the Committee of Management for managing the affairs of the Waqf has been passed by the Board on 20.4.1998. 6. Upon exchange of pleadings in the reference as many as nine issues were framed including as to whether the revisionist was Mutawalli of the Waqf and whether the order dated 22.4.1998 passed by the Waqf Board was void and a nullity as also whether the revisionist had the right to file the reference, itself, it appears that the contention was that the revisionist alone was entitled to be appointed as Mutawalli of the Waqf in question and once appointed he could have been removed only after following the procedure prescribed under section 63 of the Waqf Act. This was opposed on the ground that the appointment was for a term of five years and that during his term as Mutawalli, the revisionist did not get the accounts of the Waqf audited. The income of the Waqf was not utilised for the benefit of the Waqf itself and it was misused. 7. The Tribunal also found that no documentary evidence that of any application for extension of the term of mutawalliship was produced by the revisionist, although such was claimed in his petition. It however, came to the conclusion that since the appointment itself was for a period of five years, it came to an end automatically on the expiry of the said period. 8. It however, came to the conclusion that since the appointment itself was for a period of five years, it came to an end automatically on the expiry of the said period. 8. Accordingly and since there was material on record to show that the duties of Mutawalli had not been discharged properly and the term of his appointment had not been extended beyond five years, the issue as to whether the revisionist is a Mutawalli was decided against him. Accordingly and for the same reason, the reference was, dismissed. 9. The contention raised before this Court is that the order of removal has been passed without any notice and without hearing the applicant and also without holding any inquiry against him. An order of the revisionist's removal could have been passed only after following the procedure laid down in section 64(3) of the Waqf Act, 1996 (Sic 1995). 10. The second contention raised was that a fresh appointment as has been made by the order dated 22.4.1998 could have been made only when the post of Mutawalli was vacant. The post was not vacant on the date, the appointment was made. It is reiterated that the revisionist was never removed from the post of Mutawalli and, therefore, there is no vacancy. 11. It is lastly contended that an appointment as Mutawalli is for life and that one of the members of the Committee appointed to replace the revisionist was already dead on the date of his appointment. 12. In this regard, reliance has been placed upon the judgment in Salahuddin v. Kazi Mohd. Raisuddin, 2014 (0) Supreme (Mah) 1918. 13. I have considered the submissions made by learned Counsel for the revisionist and perused the record. 14. It is no doubt true that an order for removal of a Mutawalli is to be passed after following the procedure prescribed under section 64(3) of the Waqf Act. However, in the case at hand, the revisionist was appointed as a Mutawalli on 7.1.1993. The order appointing him as Mutawalli clearly specified that the appointment was for a term of five years. This term would, therefore, expired on 6.1.1998. The order appointing a Committee of Management to manage the affairs of the Waqf has been passed on 20.4.1998. More than three months after the term of the revisionist's appointment came to an end. 15. The order appointing him as Mutawalli clearly specified that the appointment was for a term of five years. This term would, therefore, expired on 6.1.1998. The order appointing a Committee of Management to manage the affairs of the Waqf has been passed on 20.4.1998. More than three months after the term of the revisionist's appointment came to an end. 15. Therefore, the order impugned before the Tribunal was not an order of removal. It was merely an order appointment a Committee of Management to manage the affairs of the Waqf. 16. Under the circumstances, there was no requirement of following the procedure prescribed under section 64(3) of the Act as is the revisionist's contention. The procedure would have had to be followed only if on the date, the Board appointed the Committee of Management, the revisionist was continuing as a validly appointed Mutawalli. Such was not the case. 17. For the same reason, the order dated 20.4.1998 appointing the Committee of Management cannot be said to be illegal as the post of Mutawalli automatically rendered vacant on the expiry of the revisionist's term as Mutawalli on 6.1.1998. 18. Although, it is being contended that appointment of Mutawalli is always for life. Such contention cannot be accepted in view of the fact that the order appointing the revisionist as Mutawalli was for a fixed term only. Moreover, in case, one of the members appointed in the Committee of Management to manage the affairs of the Waqf was dead on the date of appointment, the same is a mere irregularity, which can always be cured. Such an illegality would not confer any right upon the revisionist who had ceased to be Mutawalli long before the order dated 20.4.1998 was actually passed. 19. In view of what has been stated above, the revisionist is not entitled to any benefit of the judgment cited by him, which has no application in the facts and circumstances of the instant case. 20. In view of the foregoing discussion and since the submissions made by learned Counsel for the revisionist have been repelled above, the impugned order calls for no interference. 21. The revision is without merit and is dismissed.