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2017 Supreme(Pat) 1220
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Abdur Rahman S/O Late Abdul Ghani - Petitioner
Versus
The State of Bihar and Ors. - Respondents
Civil Writ Jurisdiction Case No. 22766 of 2011
Decided On : 07-11-2017
For the Petitioner: Mr. Md. Anis Akhtar, Mr. Arif Daula Siddiqui
For the Respondents: Mr. Ajit Kumar, Mr. Helal Ahmad, Mr. Khatim Raza
The main legal point established in the judgment is the authority of the Chairperson of the Board to pass orders under Section 27 of the Waqf Act, 1995, and the validity of the removal of a Mutawalli under Section 64(1) based on evidence of misappropriation of Wakf property.
Headnote:
Wakf - Removal of Mutawalli - Waqf Act, 1995 - Section 64(1) - Summary of Acts and Sections: Waqf Act, 1995 - Section 27, Section 64(1) - The court discussed the provisions of the Waqf Act, 1995, particularly Section 64(1) which empowers the Board to remove a Mutawalli for misappropriation of Waqf property. The court also highlighted the delegation of power to the Chairperson under Section 27 of the Act.
Fact of the Case:
The petitioner, a Mutawalli of a Wakf estate, was removed by the Bihar State Sunni Wakf Board and respondent no. 7 was appointed as Mutawalli based on allegations of misappropriation of the Wakf property. The petitioner challenged the orders before the Bihar Waqf Tribunal and subsequently in the High Court.
Finding of the Court:
The court found that the removal of the petitioner as Mutawalli and the appointment of respondent no. 7 were valid. The court upheld the decision of the Board and the Appellate Tribunal, stating that there was no illegality in the findings and the removal of the petitioner was justified under Section 64(1) of the Waqf Act, 1995.
Issues: The issues revolved around the removal of the petitioner as Mutawalli, the appointment of respondent no. 7, the jurisdiction of the Chairperson of the Board, and the interpretation of the Waqf deed regarding the line of succession for Mutawalli.
Ratio Decidendi: The court held that the Chairperson of the Board had the authority to pass the order under Section 27 of the Waqf Act, 1995, and the appointment of respondent no. 7 as Mutawalli was in accordance with the Waqf deed. The court also found that the petitioner's removal was justified based on evidence of misappropriation of the Wakf property.
Final Decision: The court dismissed the petitioner's application, upholding the removal of the petitioner as Mutawalli and the appointment of respondent no. 7 as Mutawalli. No costs were awarded.
The prayers of the petitioner in the writ petition read as under :-
(a) For issuance of an appropriate writ order or direction setting aside the order dated 27.09.2011 (Annexure-12) passed in Wakf Appeal No. 12 of 2011 by Sri Md. Akram Rizvi, Presiding Officer Bihar Wakf Tribunal, Patna whereby appeal filed by the petitioner against the order dated 03.11.2003 passed by the chairperson of the Bihar State Sunni Wakf Board (hereinafter called the Board) removing the petitioner from the post of Mutawalli of Hazi Gaushan Wakf Estate No-446 of Sharfuddin, District Muzaffarpur and appointing respondent no. 7 as Mutawalli of said wakf estate, has been dismissed.
(b) For issuance of an appropriate writ order or direction setting aside the order dated 03.11.2003 (Annexure-6) passed by the Chairperson of the Bihar State Sunni Wakf Board (hereinafter called the Board) removing the appellant from the Mutawalli of the Haji Gaushan Wakf Estate No. 446 of Sharfuddin, District Muzaffarpur and appointing respondent no. 7 i.e. Bibi Anisha Khatoon, as Mutawali of the said wakf estate.
(c) For issuance of an appropriate writ order or direction restraining the respondents from implementing or giving effect to the aforesaid orders or interfering in any manner in the management and administration of the said wakf estate by the petitioner.
(d) For issuance of appropriate writ order or direction granting any relief or reliefs to which the petitioner is found entitled in the facts and circumstances of the case in the opinion of this Hon’ble Court.”
2. Mr. Anis Akhtar, learned counsel has appeared for the petitioner, Mr. Helal Ahmad, learned counsel has appeared for the Bihar State Sunni Waqf Board (for short “the Board”), Mr. Khatim Raza, learned counsel has appeared for the private respondent no. 7 Bibi Anisha Khatoon and Mr. Ajit Kumar, learned A.C. to Government Advocate-7 has appeared for the State.
3. The brief facts of the case are that one Haji Gaushan Ali executed a registered deed of Waqf in favour of village mosque situated at village-Gopalpur @ Chak Haji Sunder on 09.07.1906 with respect to certain properties for upkeep of the said mosque and stipulated a line of succession. The said Waqf was registered in the Board as Waqf Estate No.446. Vide paragraph-5 of the said Waqf deed, it was stipulated that Haji Gaushan Ali shall remain as Mutwalli of the Waqf property during his lifetime and after his death Md. Haroon shall succeed as Mutawalli and after his death, Md. Ibrahim and, thereafter, Md. Yaqub shall be the Mutawalli and after the death of all those three persons, Aulad-e-Akbar from Md. Haroon shall become the Mutawalli and in case, Md. Haroon remained issueless then the Aulad-e-Akbar of Md. Ibrahim and if Md. Ibrahim remained issueless then Aulad-e-Akbar of Md. Yaqub shall become Mutawalli and this pattern of line of succession shall continue for the purpose of appointment of Mutawalli of the said Waqf Estate. Accordingly, as per recital of the Waqf deed, upon the death of Md. Haroon, the grandfather of respondent no. 7 Bibi Anisa Khatoon, her father Abdur Rahman was made Mutawalli. After death of Abdur Rahman, the petitioner Abdur Rahman, son of late Abdul Ghani was appointed as Mutawalli in 1996. Subsequently, respondent no. 7 Bibi Anisha Khatoon represented before the Board claiming that the petitioner is male descendant from Md. Ibrahim and by misleading interpretation of Waqfnama, he projected that there was no male child from the branch of Md. Haroon especially from Abdur Rahman and, hence, being the only male child from the branch of Md. Ibrahim, he was entitled to become Mutawalli. According to her, after demise of her father Abdur Rahman, it was to be seen as to who was legally entitled to become Mutawalli as per Waqfnama. Respondent no. 7 also made complaint against the petitioner for committing misappropriation of the Waqf Estate. On receipt of such complaint, the Board appointed one Md. Kalimuddin, an inspector of the Boar
