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2024 DIGILAW 412 (PAT)

Md. Abbas Khan v. State of Bihar

2024-04-26

KHATIM REZA

body2024
ORDER This Civil Revision application has been filed against the judgment and order dated 20.02.2015 passed in Waqf Appeal No. 02 of 2012 by the learned Presiding Officer of Bihar Waqf Tribunal, Patna whereby, the order passed by the Chairman, Bihar State Sunni Waqf Board, Patna issued under Memo No. 1466 dated 23.01.2022 signed by the Chief Executive Officer, Bihar State Sunni Waqf Board, Patna, appointing the petitioner as Mutawalli of Waqf Estate No. 2474 namely, Madarsa Arabia Wasimul Uloom, Barahpura, Bhagalpur has been reversed/set aside. 2. Waqf Estate No. 2474 namely, Madarsa Arabia Wasimul Uloom has been created through registered Waqf deed by Wasim Fatima (wife of Deyanat Hussain) on 26.04.1995. The nature of Waqf mentioned as Fi Sabilillah (The beneficiaries of the Waqf is the general public) for establishing Madarsa Arabia Wasimul Uloom, Barahpura, Bhagalpur. From the recital of the deed, Md. Abbas Khan was entrusted with all powers to manage and control the Madarsa as ‘Mohtamim’ and also given powers to the Mohtamim to accept movable and immovable properties in form of donation for the benefit of the said Madarsa. He was also empowered to exercise discretion in the matter of constituting Advisory Committee. Mohtamim will also have power to get the property registered. It was written in the deed that Wakifa (dedicator) will not interfere in the working and management of the said Madarsa. It was further mentioned that anybody including her family members were precluded from interfering with the management of the said Madarsa and any such attempt shall be void. 3. The case of the appellant briefly stated is that just after creation of Waqf on 26.04.1995, all the rights in the properties passed out and vested in the almighty and the property came in the hands of the petitioner as Mohtamim (manager). The right of Wakifa was absolutely extinguished and passes in favour of the almighty and petitioner was appointed to administer the Waqf. It is further contended that since 26.04.1955, the petitioner has been working as Mohtamim/Mutawalli with utmost care, caution, honesty and sacrifice. Because of his sincere efforts the Madarsa attained a good reputation and people reposed confidence. People by and large made subscription and donation as a result of which the Madarsa flourished. There are persons who donated their lands for the benefit of said Madarsa. On 06.05.2000, a Waqf deed was created by Ibnul Hasan, Amiluddin, Md. Because of his sincere efforts the Madarsa attained a good reputation and people reposed confidence. People by and large made subscription and donation as a result of which the Madarsa flourished. There are persons who donated their lands for the benefit of said Madarsa. On 06.05.2000, a Waqf deed was created by Ibnul Hasan, Amiluddin, Md. Khurshid Anwar, Parwez Anwar to the Mohtamim of the said Madarsa (petitioner) with regard to land measuring 1 katha and 12 ¼ dhurs for the development of Madarsa and for construction of Masjid under the management of the petitioner. In all, 11 kathas of land through 4 Waqf deed were dedicated to the Madarsa and Masjid under the management of the petitioner. Name of the said Madarsa has been entered in the revenue records of Circle office Jagdishpur, District- Bhagalpur. Holding tax bearing Holding Tax No. 54A has been created and its up to date tax were paid by the petitioner. Tax receipts Form-H was issued on 21.02.2008. Possession and management of Waqf property under the petitioner as Mutawalli is established. The construction of the Madarsa building has been made entirely from the public subscription/donation and the offerings from ‘Zakat’, ‘Khairat’ and ‘Atia’. The Madarsa was flourishing under the honest, efficient and dedicated management of the founder and Mohtamim (Mutawalli) of the Madarsa and has achieved a mark of distinction among the Madarsa of Bhagalpur district and its adjoining area. Further case of the petitioner is that the husband of the Wakifa namely, Deyanat Hussain (respondent no. 7) had a greedy eye on the flourishing Madarsa and he was harboring to control the affairs of the Madarsa. The said Deyanat Hussain started interfering with the affairs of Madarsa by writing mischievous letters to the petitioner asking income and expenditure in the teeth of Waqf deed dated 26.04.1995. 7) had a greedy eye on the flourishing Madarsa and he was harboring to control the affairs of the Madarsa. The said Deyanat Hussain started interfering with the affairs of Madarsa by writing mischievous letters to the petitioner asking income and expenditure in the teeth of Waqf deed dated 26.04.1995. It is further submitted that the Madarsa and the Mosque were constructed slowly by the petitioner and the Wakifa (Wasim Fatima) had no role to play either in the construction of Madarsa or in the construction of Mosque; each and every amount collected by way of subscription and donation was spent on the construction of the said Madarsa and Mosque and the payment to the teachers were also made out of the subscription, collection and donation and the expenses incurred on food and lodging for the students living in the hostel of the Madarsa was also out of subscription and collection. It is further contended that the petitioner filed an application before the Bihar State Sunni Waqf Board for registration of the Waqf giving particulars of the land donated under Waqf Deed dated 26.04.1995, 26.04.2000, 06.05.2000 and 06.11.2000 having a total area of 11 katha of land. The Wakifa namely Wasim Fatima also applied for registration of land under Waqf deed dated 26.04.1995 (area 3 kathas, 5 dhurs and 7 dhurki) exclusively. 4. The Bihar State Sunni Waqf Board after receiving the application filed by the petitioner as well as Wakifa entrusted enquiry to its Inspector, who made an enquiry on 25.10.2007 and submitted his enquiry report to the Bihar State Sunni Waqf Board on 26.12.2007. It is submitted that the Inspector of the Board in its report has given a description of all four Waqf deeds including the deed of 26.04.1995 and also submitted status report of the said Madarsa where 100 students were getting education. It is further submitted that the Inspector under the influence of the husband of Wakifa submitted a collusive report stating therein that the lands donated by Wasim Fatima be registered and registration certificate be issued and the husband of Wakifa be appointed as Mutawalli. On the basis of collusive report of the Inspector, the Board issued registration certificate vide Memo No. 492 dated 14.02.2008 bearing Waqf Registration no. 2474 with respect to the lands under the deed dated 26.04.1995 and directed Wakifa (Wasim Fatima) to manage the Waqf property till further order. 5. On the basis of collusive report of the Inspector, the Board issued registration certificate vide Memo No. 492 dated 14.02.2008 bearing Waqf Registration no. 2474 with respect to the lands under the deed dated 26.04.1995 and directed Wakifa (Wasim Fatima) to manage the Waqf property till further order. 5. Aggrieved by the said issuance of registration certificate and direction to manage the Waqf property by Wakifa as contained in memo no. 492 dated 14.02.2008, the petitioner filed CWJC No. 5138 of 2008 before this Court. It is further submitted that during the pendency of the writ petition, the Bihar State Sunni Waqf Board approved the constitution of Managing Committee for Waqf Estate no. 2474 vide memo no. 84 dated 03.04.2008, which was also challenged in the aforesaid writ application. 6. After hearing the parties, the said writ case was disposed of and liberty was given to the petitioner to move before the Waqf Tribunal since the Waqf Tribunal constituted under the Waqf Act, 1995 was functioning. Thereafter, the petitioner moved before the Waqf Tribunal vide Waqf Appeal No. 1 of 2008 and after hearing, the order under appeal was set aside and the matter was remanded to the Waqf Board for passing fresh order in the light of observation made on 10.11.2009 passed by the Waqf Tribunal. On remand, the Bihar State Sunni Waqf Board entrusted inquiry to District Waqf Committee regarding claim and counter claim of looking after the management of Waqf Estate No. 2474 and on receipt of the report of the District Waqf Committee, the Chairman Waqf Board in the light of Waqf Deed as well as enquiry report and wishes of Wakifa (dedicator) appointed the petitioner as Mutawalli of Waqf Estate No. 2474, by its order dated 23.01.2012 and further directed the Mutawalli to constitute Advisory Committee which shall be approved by the Waqf Board. Aggrieved by the order of the Chairman of the Bihar State Sunni Waqf Board, the Wakifa namely, Wasim Fatima has filed Waqf Appeal No. 02 of 2012 before the Waqf Tribunal, Patna. 7. After hearing the parties and on the basis of the materials available on record, the Tribunal has held that the transactions in financial matters is not transparent. Md. Abbas Khan has failed to comply the wishes of Wakifa (dedicator) as enshrined in Waqf Deed. It is further held that as per Waqfnama, Md. 7. After hearing the parties and on the basis of the materials available on record, the Tribunal has held that the transactions in financial matters is not transparent. Md. Abbas Khan has failed to comply the wishes of Wakifa (dedicator) as enshrined in Waqf Deed. It is further held that as per Waqfnama, Md. Abbas Khan was appointed as Mohtamim and not Mutawalli. Original Waqf Deed was not having Mutawalli which was very soon supplemented by appointment of Mutawalli through Haji Deyanat Hussain. Mohtamim and Mutawalli are not one and the same word. Mohtamim is general word to describe manager where as Mutwalli is exclusively in respect of Waqf Estate. Mohtamim cannot be substitute of Mutawalli. There is no provision in the Waqf Act for removal of Mohtamim. Accordingly, the impugned order dated 23.01.2012 passed by the Chairman of the Bihar State Sunni Waqf Board was found not sustainable in the eye of law and fact and the same was set aside. The appeal was accordingly allowed. 8. Aggrieved by and dissatisfied with the judgment and order of Waqf Tribunal dated 20.02.2015 passed in Waqf Appeal No. 02 of 2012, the petitioner has filed the present revision application. 9. Learned counsel for the petitioner submitted that the learned Waqf Tribunal has failed to consider the recital of the Waqf Deed. The Waqf was created for the public, religious and charitable purposes. The beneficiaries of Waqf is the general public to be used for establishment and construction of Madarsa. It is submitted that the learned Waqf Tribunal misdirected itself that Mohtamim cannot be substitute of Mutawalli and Md. Abbas Khan was appointed as Mohtamim not Mutawalli. It is wrongly held that for removal of Mutawalli Section 64 of Waqf Act, 1995 has to be complied but in matters of Mohtamim there is no such requirement. It has further held that bylaws has the provision for removal of Mohtamim, if he does not perform decently. It is further contended that the learned Waqf Tribunal has failed to appreciate that Wakifa (Wasim Fatima) has no power to interfere with the management of Waqf after creation of aforesaid Waqf. Learned counsel for the petitioner submitted that he was appointed Mohtamim and he was given full right to manage the affairs of Madarsa and Waqf property and also given power to appoint successor Mohtamim and Advisory Committee. Learned counsel for the petitioner submitted that he was appointed Mohtamim and he was given full right to manage the affairs of Madarsa and Waqf property and also given power to appoint successor Mohtamim and Advisory Committee. From the recital of the Waqf Deed, it appears that Mohtamim has absolute power as Mutwalli like a Manager of the Estate. As per the wishes of Wakifa (dedicator) of the aforesaid Waqf mentioned in the Waqf Deed, the petitioner Mohtamim accepts the donation and gifts for the benefit of Madarsa. Three Waqf Deeds have also been created in favour of Madarsa through the Mohtamim. All the Waqf Deeds empowered the petitioner as Mohtamim to manage the affairs of the Madarsa as well as of Waqf Estate. It was argued that status of Mutawalli is like that of a manager appointed to look after the Waqf properties. Once the Waqf is created, the Wakifa stand divested of her title to the properties which after the creation of Waqf vests in the Almighty. So far allegation with regard to non-registration of Waqf Estate in the office of the Waqf Board is concerned, it is misconceived allegation. In fact, petitioner complied for not only present Waqf Estate (Madarsa Arabaia Wasimul Uloom) but also three separate registered Waqf deed created for the benefit of Madarsa Arabaia Wasimul Uloom, Barahpura, Bhagalpur. Till date only Waqf Deed dated 26.04.1994 has been registered in the office of the Bihar State Sunni Waqf Board. It is further submitted that the learned Tribunal completely ignored the inquiry report of the District Waqf Committee, Bhagalpur (Annexure 7), who requested the Waqf Board to register Madarsa and Masjid Abu Bakar jointly in the office of the Waqf Board. All the Waqf Deeds appointed Mohtamim to the same person namely, Md. Abbas Khan. 10. On the other hand, opposite party no. 6 (since dead) has 7 filed counter affidavit. Mr. Raghib Ahsan, learned senior counsel for the opposite party no. 6 and 7 vehemently argued that in the Waqf Deed dated 26.04.1995 executed by Bibi Wasim Fatima (opposite party no. Abbas Khan. 10. On the other hand, opposite party no. 6 (since dead) has 7 filed counter affidavit. Mr. Raghib Ahsan, learned senior counsel for the opposite party no. 6 and 7 vehemently argued that in the Waqf Deed dated 26.04.1995 executed by Bibi Wasim Fatima (opposite party no. 6), she donated 3 kathas 5 dhurs 7 dhurki land for establishing a Madarsa therein namely, Madarsa Arabia Wasimul Uloom but she did not appoint any Mutawalli of the said Waqf and as such in order to remove the lacunae in the deed of Waqf she appointed a new Mutawalli Haji Deyanat Hussain, husband of the Wakifa Bibi Wasim Fatima, on 10.08.1995. It is further submitted that Section 63 of the Waqf Act, 1995 lays down the power to appoint Mutawalli in certain cases which reads as under: – “When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of Waqf, 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 and on such conditions as it may think fit.” 11. The Waqf Board has power to appoint any person to act as Mutawalli for such period. In the present case since the Wakifa appointed opposite party no. 7 as Mutawalli of the said Waqf, no vacancy for the office of the Mutawalli arose. It is submitted that petitioner was appointed as Mohtamim for administering the proposed Madarsa namely, Madarsa Arabaia Wasimul Uloom and his duty has been specified by the Wakifa in the said Waqf Deed. It is submitted that petitioner was removed from the post of Mohtamim by the Wakifa by letter dated 10.06.2005 for misappropriation of the fund of Madarsa. Mohtamim is known as Manager and cannot be construed as Mutawalli. Learned senior counsel further submitted that as per the wishes and direction of the Wakifa, the present Waqf Estate need to be registered in the office of the Waqf Board but the petitioner never attempted for the same and misused the Waqf property. Lastly, the dedicator filed application for the same and thereafter, the petitioner filed said application for registration in the office of Waqf Board. 12. Lastly, the dedicator filed application for the same and thereafter, the petitioner filed said application for registration in the office of Waqf Board. 12. Learned senior counsel further submitted that Bihar State Sunni Waqf Board, Patna has rightly not considered the order of learned Waqf Tribunal dated 10.11.2009 passed in Waqf Appeal No. 1 of 2008 (Annexure 6) whereby it has been specifically stated that “consider the inquiry report, if any, and then pass order” but the Board has ignored the previous inquiry report and passed an order and appointed the petitioner as Mutawalli (Annexure 8). It is submitted that so far byelaws is concerned, it was made in the light of Waqf Deed and after execution of Waqf Deed, an undertaking was given by the petitioner on 29.04.1995 and at the time of execution of Waqf Deed dated 26.04.1995, the name of the Mutawalli has not been written in Waqf Deed by mistake. Therefore, the same was made by making supplementary deed (unregistered) dated 10.08.1995. The reliance has been placed in the case of Garib Das and Others vs. Munshi Abdul Hamid and Others reported in AIR 1970 SC 1035 . The Hon’ble Supreme Court in the aforesaid decision has held that for the validity of Waqf, it is not necessary that Mutawalli is appointed simultaneously. Mutawalli may be appointed subsequently. The Waqf Tribunal has rightly considered and set aside the order of Chairman of the Bihar State Sunni Waqf Board dated 23.01.2012 (Annexure 8). 13. Learned counsel for the Bihar State Sunni Waqf Board has also filed counter affidavit on behalf of the respondent nos. 3 to 5. It is submitted that the status of petitioner according to the recital of the Waqf Deed dated 26.04.1995 is Mohtamim i.e. Manager and post of Mutawalli is missing in the said Waqf Deed. Therefore, status of petitioner could only be decided in view of the statutory provision contained in Section 3(i) of the Waqf Act, 1995 (Amendment Act, 2013). The Waqf Deeds executed by Md. Ibrahim Anwar, Md. Jawed Anwar, Md. Ismail and Md. Raffi Azmi, all sons of Noorul Hasan along with Bibi Ayesha Khatoon, Bibi Shahnaz Begum and Bibi Sabila Khatoon, all daughters of Noorul Hasan dedicated 4 kathas 12¼ dhurs land to the Madarsa, Wasimul Uloom, Bhagalpur for the benefit of the said Madarsa. The Waqf Deeds executed by Md. Ibrahim Anwar, Md. Jawed Anwar, Md. Ismail and Md. Raffi Azmi, all sons of Noorul Hasan along with Bibi Ayesha Khatoon, Bibi Shahnaz Begum and Bibi Sabila Khatoon, all daughters of Noorul Hasan dedicated 4 kathas 12¼ dhurs land to the Madarsa, Wasimul Uloom, Bhagalpur for the benefit of the said Madarsa. The said Madarsa was governed by the Waqf Deed dated 26.04.1995 by which the said Waqf was created and subsequent dedication of Waqf in favour of the said Madarsa cannot alter or override recital of Waqf Deed dated 26.04.1995 rather only confines to the property subsequently dedicated. The petitioner had not complied the direction of the Wakifa which is mentioned in Waqf Deed dated 26.04.1995 with regard to registration of the Waqf property in the office of Waqf Board. Initially no step was taken by the petitioner for the registration of the said Waqf property either on the basis of Waqf Deed dated 26.04.1995 or along with three subsequent Waqf Deeds executed in the year 2000. The status of the petitioner is Mohtamim described in the Waqf Deeds and not Mutawalli unless he was appointed by Waqf Board. It appears from the Waqf Deed, office of the Mutawalli is missing in the waqfnama dated 26.04.1995. Deyanat Hussain, husband of the Wakifa was appointed as Mutawalli on 10.08.1995 through affidavit by the Wakifa which was not in accordance with the law and cannot be said a valid instrument under Section 3(s) of the Waqf Act, 1995 (Amendment Act, 2013) which provides “Waqf Deed” means any deed or instrument by which a Waqf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied, for altering stipulations of the Waqf Deed dated 26.04.1995. The learned counsel for the Board further submitted that the effort of the petitioner being Mohtamim (Manager) should be appreciated but at the same time, petitioner should remember that as per Waqfnama, it is the duty of the petitioner to perform his obligation decently. The management of the affairs of Waqf Estate, namely, Madarsa Wasimul Uloom is always guided by the wishes of the Wakifa. The management of the affairs of Waqf Estate, namely, Madarsa Wasimul Uloom is always guided by the wishes of the Wakifa. As per the recital of Waqf Deed dated 26.04.1995, the Mohtamim was directed to register the said Waqf Estate in the office of the Sunni Waqf Board, but the petitioner has applied for its registration belatedly. When the petitioner failed to take steps for registration of the Waqf property before the said Board, the Wakifa herself had approached the Waqf Board for its registration. 14. After hearing, the learned Tribunal allowed the appeal of the opposite party no. 6 and set aside the order dated 23.01.2012 passed by the Chairman, Bihar State Sunni Waqf Board, Patna. In compliance of the judgment and order of learned Waqf Tribunal dated 20.02.2015 passed in Waqf Appeal No. 2 of 2012 by the Presiding Officer of Waqf Tribunal, the Waqf Board vide order dated 16.02.2016 has appointed Haji Deyanat Hussain as Mutawalli of Waqf Estate No. 2474, Madarsa Wasimul Uloom, Brahpura, Bhagalpur with advisory committee consisting of seven persons for the period of three years or until further order. 15. The learned counsel for the Board further submitted that the judgment and order dated 20.02.2015 passed by the presiding officer of Waqf Tribunal which is impetuous without appreciating provision of law contained under Section 3(i) of the Waqf Act, 1995 which provides connotation of Mutawalli as well as Section 63 of the Waqf Act, 1995 which gives power to the Waqf Board to appoint Mutawalli in certain cases and further ignoring the provisions of Section 3(s) of the Waqf Act, 1995 and material on records. 16. Having considered the materials on record and submissions of learned counsel for the parties, I am of the view that the main question arising in the present case is that whether ‘Mohtamim’ comes under the definition of Mutawalli or not? Before deciding the issue, it will be proper to deal the relevant waqf laws for administration of Waqf and appointment of Mutawalli. 17. The word Waqf literally means a dedication of some property for a pious purpose in perpetuity. Waqf under the Muslim law owes its origin to a rule laid down by the Prophet and means “The tying up of property in the ownership of the God, the Almighty and the devotion of the profits for the benefit of human beings.” 18. The word Waqf literally means a dedication of some property for a pious purpose in perpetuity. Waqf under the Muslim law owes its origin to a rule laid down by the Prophet and means “The tying up of property in the ownership of the God, the Almighty and the devotion of the profits for the benefit of human beings.” 18. A person constituting the Waqf of his/her own properties is known as the founder of Waqf or Wakif/Wakifa. To become a Wakif, a person dedicating the property must be competent enough to do so according to the provisions of law. 19. Following are the conditions which need to be fulfilled to become a Waqif and constitute a Waqf: – (i) The person constituting the Waqf should be a Muslim? (ii) Should be a person of sound mind. (iii) Should have attained the age of majority. 20. The definition of Waqf envisaged in Section 3(r) of Waqf Act, 1995 reads as under: – ““waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes – (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication”. 21. Section 3(s) of the Waqf Act, 1995 reads as under: – “waqf deed” means any deed or instrument by which a waqf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied;” 22. Essentialities of Mutawalli under Mohammedan Law reads as under: – “The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Essentialities of Mutawalli under Mohammedan Law reads as under: – “The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Such a person appointed has no power, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless he has been empowered by the waqf deed expressly to do so.” 23. According to the general rule, the founder of the Waqf appoints Mutawalli at the time of creation of the Waqf but in case a Waqf is created without the appointment of Mutawalli then the following persons are eligible to appoint the Mutawalli: – I. The executor of the founder. II. The mutawalli on his death-bed III. The Court/Waqf Board, which shall be guided by the following rules: – i. As far as possible, the Court/Waqf Board should not disregard the directions of the settlor. ii. Preference should be given to a member of the settlor’s family over an utter stranger. iii. In case of a contest between settlor’s lineal descendant and the one who is not a lineal descendant, the court/Waqf Board is free to exercise its discretion. 24. According to Ameer Ali a well known Islamic jurist often refers mutawalliship as tawliyat. Radd ul- Mukhtar (an authentic source of Islamic jurisprudence) states, wilayat (trusteeship) referring to mutawalliship. 25. The word Mutawalli is a derivative of Arabic word wila which literally means “trust”. Similarly wali means a trusted friend. Semantically Mutawalli is a friend entrusted with the responsibility of the management of a Waqf. Thus, mutawalli is a person upon whom confidence is reposed towards the fulfillment of the purpose of (Mansha-e-Wakf) Waqf. 26. The Mussalman Wakf Act, 1923 defines Mutawalli as “Mutawalli” means any person appointed either verbally or under any deed or instrument by which a Waqf has been created or by a Court of competent jurisdiction to be the mutawalli of Waqf. 27. The Wakf Act, 1954 defines Mutawalli as “Mutawalli” means any person appointed either verbally or under any deed or instrument by which a Waqf has been created or by a competent authority to be the “Mutawalli” of a Waqf by virtue of any custom or who is a naib mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act. (any person, committee or corporation for the time being managing or administering any Waqf or Waqf property). 28. The Waqf Act, 1995 defines mutawalli as “Mutawalli” means any person appointed, either verbally or under any deed or instrument by which a Waqf has been created, or by a competent authority, to be the mutawalli of a Waqf and includes any person who is a mutawalli of a Waqf sajjjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any Waqf or Waqf property. 29. The definition of Mutawalli in Section 3 (i) of Waqf Act 1995 reads as under: – “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of waqf by virtue of any custom or who is a naibmutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any waqf or waqf property.” 30. The petitioner was appointed through registered Waqf Deed as Sarparast and Mohtamim. The word Mohtamim in its literal meaning is referred to as Manager or Administrator or who manage the affairs and the word Sarparast in its literal meaning is referred to as Patron. 31. According to the Waqf, in question, which was created to establish Madarsa namely, ‘Madarsa Arabia Wasimul Uloom’, it is specifically mentioned in the Waqf Deed that Madarsa will run from the public subscription/donation without any help of Government fund. The nature of Waqf is ‘Fi Sabilillah’. This kind of Waqf is established for charitable and philanthropic purpose. The beneficiaries of such Waqf, is the general public. The Wakifa (donor) of the said Waqf at the time of creation of Waqf appointed the petitioner for the management and administration of Madarsa as Sarparast and Mohtamim till his life time and also empowered him to appoint successor Sarparast and Mohtamim as and when required. He was also empowered to constitute Advisory Committee for appointment and dismissal of teachers and staffs of the said Madarsa. He was also empowered to constitute Advisory Committee for appointment and dismissal of teachers and staffs of the said Madarsa. It was in clear terms mentioned in the said Waqf Deed and also authorized to register the properties of Waqf and formulate byelaws after the development of Madarsa by the Sarparast and Mohtamim of the said Madarsa to the best interest of the Waqf. He was also authorized to take all reasonable steps for the development of the said Madarsa and empowered to receive donation from the public. 32. It is apparent from the record that after creation of the said Waqf on 26.04.1995, the management of the said Waqf property came in the hands of the petitioner as Mohtamim/Administrator/Manager. The building of the said Madarsa has been constructed entirely from the public subscription/donation under the management of the petitioner. It is admitted case of the parties that after creation of the said Waqf Estate, some property through three Waqf Deeds were created for the benefit and development of Madarsa Arabia Wasimul Uloom on 26.04.2000, 06.05.2000 and 06.11.2000 and the said Waqf Deed by the donors in the capacity of donee of the said Madarsa through its Mohtamim namely, Md. Abbas Khan (petitioner) received the properties. A Mosque for offering Namaz has been constructed near the Madarsa under the supervision of the petitioner from the fund donated by general public. 33. Considering all aspects of the matter and decisions of the Hon’ble Supreme Court as well as High Court and Waqf laws, I find that it is settled principle that the right of Wakif/Wakifa extinguishes and vests in the Almighty after endowment. The Wakif/Wakifa ceased to have any right, title and interest in the Waqf. In the present case, it appears from the recital of the Waqf Deeds that the Waqifa specifically mentions that she or her family will not interfere with the management of the Waqf. It is further mentioned that anybody including her family members are precluded from interfering with the management of the said Madarsa and any such attempt shall be void. 34. So far power and duties of Mohtamim described in the recital of the Waqf Deed is concerned, it fulfills all requirements of Mutawalli. Md. Abbas Khan (petitioner), in the instant case, is the Manager of the Waqf and, therefore, he is construed as Mutwalli. 34. So far power and duties of Mohtamim described in the recital of the Waqf Deed is concerned, it fulfills all requirements of Mutawalli. Md. Abbas Khan (petitioner), in the instant case, is the Manager of the Waqf and, therefore, he is construed as Mutwalli. In the case of Syed Mustafa Peeran Sahib and Another vs. State Wakf Board reported in AIR 1969 Madras 66, the Hon’ble Madras High Court has held that in the definition of ‘Mutawalli’ in Section 3(f) of the Muslim Wakf Act, 1954 (equivalent to Section 3 (i) of Waqf Act, 1995) will include a person, who for the time being manages or administers the Waqf property as such. 35. So far removal of Mutawalli/Mohtamim/Manager or Administrator and as far as Waqf jurisprudence is concerned, a wakif/wakifa can remove the mutawalli if he/she has reserved for himself/herself the right to remove a mutawalli or appoint a new mutawalli. In the present case, the Wakifa (Wasim Fatima) has not reserved the said power to remove the mutawalli or appoint a new mutawalli in the Waqf Deed. 36. Therefore, the Wakifa has no power to remove the Mohtamim/Mutwalli and to appoint her husband as Mutawalli. The power of removal of Mutawalli is envisaged under Section 64 of the Waqf Act, 1995. The petitioner has not been removed from the office of Mutawalli/Mohtamim in a proceeding under Section 64 of the Waqf Act, 1995. The right of Mutawalli for the management of the Waqf can be nullified only when an order of removal is passed under the aforesaid provision of the Waqf Act and in absence of such order of removal, it is difficult for me to conclude that the constitution of advisory committee and appointment of Mutawalli by the order dated 22.02.2016 passed by the Chairman, Bihar State Sunni Waqf Board in compliance of impugned order dated 20.02.2015 passed in Waqf Appeal No. 02 of 2012 itself would tantamount to an order of removal of Mutawalli without initiation of proceeding under Section 64 of the Waqf Act, 1995. The petitioner was appointed by the Wakifa as Sarparast and Mohtamim/Mutawalli through the Waqf Deed dated 26.04.1995. As per the above observation and discussion, the Mohtamim is construed as Mutawalli, who is the Administrator and Manager of the said Waqf “Madarsa Arabia Wasimul Uloom”. 37. The petitioner was appointed by the Wakifa as Sarparast and Mohtamim/Mutawalli through the Waqf Deed dated 26.04.1995. As per the above observation and discussion, the Mohtamim is construed as Mutawalli, who is the Administrator and Manager of the said Waqf “Madarsa Arabia Wasimul Uloom”. 37. Therefore, I am of the view that the learned Waqf Tribunal has committed jurisdictional error and illegality in passing the impugned order. Accordingly, the judgment and order dated 20.02.2015 passed by the Presiding Officer, Bihar Waqf Tribunal, Patna, in Waqf Appeal No. 02 of 2012 is hereby set aside. 38. In the result, this Civil Revision application is allowed. 39. In view of this order, the Board cannot take any contrary view and therefore, if committee/advisory committee including Mutwalli is appointed or has been appointed the same shall be non est in the eyes of law.