Waqf Ordinance (1 of 1962)
Section 32
From the judgment of the High Court Division it appears that the High Court Division made the Rule absolute mainly on the ground that the appeal filed before the District Judge which was heard and disposed of by the learned Additional District Judge was incompetent, as the removed mu- tawalli, that is, the present petitioner did not make over charge of waqf to the newly appointed mutawalli as man- dated in sub-section (2) of section 32 of the Waqf Ordinance, 1962 (the Ordi nance). Khurshed Alam vs. Abul Kalam (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 617
Section 32(1), 44- Original waqf deed shall prevail We would like to mention here is that by the appointment letter (ée-u¡Nfœ) dated 10.03.2004, the terms of the waqf deed cannot be altered. The registered appointment letter dated 10.03.2004 is strictly meant for appointment of Abdullah Md. Ehtesham as Mutwalli and for no other purpose. In all circumstances, the original waqf deed shall prevail. In the judgment under review, this Division has not stated anywhere that by the appointment letter dated 10.03.2004, the terms of the original waqf deed have been changed or altered. In the light of the findings made before, we do not find substance in this review petition and accordingly. Saifuddin Khan(Md.) VS Abdullah Md. Ehtesham. [6 LM (AD) 230]
Section 32(1)
Rejecting an application under Section 32(1) of the petitioner..............(1) Petitioner's predecessor Tofazzal Ali Chowdhury created "Tofazzal Ali Chowdhury Waqf Estate" by deed No.415 dated 22.01.1915 with the noble and pious object of proper man- agement of two mosques and to meet the expenses for jiarat of the graveyard of the Wakif, his wife and his predeces- sors etc. Md. Yusuf Chowdhury vs. The Administration of Waqf (Md. Abdul Matin J) (Civil) 7 ADC 474
Section 32(2)
Respondent No.1 who has been ap- pointed as joint mutwalli of the Waqf Estate along with the petitioner is func- tioning as joint mutwalli as such the question of handing over charge as pro- vided under Section 32(2) of the Waqf Ordinance does not arise and the appeal preferred by the petitioner was main- tainable in law. But the High Court Di- vision failed to consider the same which resulted in an error in the deci- sion and is liable to be set aside. Md. Enam Hossain vs. Kayesh Miah (Md. Abdul Matin J) (Civil) 7 ADC 184
Section 34(5)- Empowers legally the wakf administrator to make necessary amendment/change or variation of the "scheme"- We very meticulously considered the said provision of law and we are satisfied that the wakf administrator was very much within his legal ambit and jurisdiction to change/modify the scheme or byelaws as made by the wakf administrator which has been upheld by the High Court Division.....Afsar Uddin Sarker VS Md. Aftabuddin & others, [5 LM (AD) 412]
Section 35 and 50 The grounds on which leave was granted can be decided by reference to the deed of waqf. In the schedule to the deed of waqf, there are so many plots including the plot No.608 and 610 but plot No.609 is conspicuously absent. The waqif enlisted the land of the deed of waqf in E. C.No.2323 which did not contain the disputed land. Even if, the land was shown to have been recorded as waqf in R. S., S. A. and Bangladesh records, those records or actions of the beneficiaries would have no legal effect. Mr. Yusuf Chowdhury vs. Administrator of Waqf (Syed Mahmud Hossain J) (Civil) 10 ADC 222 Section 43-
Appoint Mutwalli- The High Court Division also failed to consider the age old legal principle that fraud vitiates everything. The High Court Division also failed to consider that in view of the provisions of section 17 of the Code, the District Judge, Nawabgonj had the jurisdiction to hear the appeal under section 43 of the Ordinance though some of the properties Waqf Estate were situated in District-Rajshahi. In view of the above, the impugned judgment and order cannot be maintained and must be set aside. The impugned judgment and order is set aside and those of the District Judge are restored. The Administrator of Waqfs is directed to appoint Mutwalli in respect of the Waqf Estate in question as expeditiously as possible, not beyond 3 (three) months from the date of receipt of this judgment, keeping in view the terms of the Waqf deed and the provisions of law notifying the concerned parties and hearing them. .....Rabiullah (Md) VS Md Mostafizur Rahman, [5 LM (AD) 73]
Section 47
An application under section 47 of the Waqf ordinance, 1962 for enrolment of the disputed properties as Waqf prop- erty which was said to have registered under diary No.6862/605 dated 16th October, 1979. Shah Ahmed Muhammad Abdullah (S.K. Sinha J) (Civil) 8 ADC 106
section 49
Mussalman Waqf Validating Act, 1913, Section 2(1)
According to Imam Abu Hanifa the meaning of Waqf is the detention of a specific thing in the ownership of Waqf and the devoting of its profit or products "in charity of poor or other good objects". Imam Abu Yusuf said, "Waqf signifies the extinction of the Waqif's ownership in the thing dedicated and detention of all thing in the implied ownership of the Almighty Allah, in such a manner that is profits may revert to or be applied 'for the benefit of Mankind.' .....(13)
Kazi Mohammad Nezamuddin vs. Md. Nasiruddin (Md. Nuruzzaman J) (Civil) 20 ADC 505
ধারা ৪৯
মুসলমান ওয়াকফ বৈধকরণ আইন, ১৯১৩, ধারা ২(১)
ইমাম আবু হানিফার মতে ওয়াকফের অর্থ হল ওয়াকফের মালিকানায় একটি নির্দিষ্ট জিনিস আটক রাখা এবং এর লাভ বা উৎপাদিত পণ্য "দরিদ্র বা অন্যান্য ভাল উদ্দেশ্যে দান করা"। ইমাম আবু ইউসুফ বলেন, "ওয়াকফ বলতে বোঝায় উৎসর্গীকৃত জিনিসের উপর ওয়াকিফের মালিকানার বিলুপ্তি এবং সর্বশক্তিমান আল্লাহর অন্তর্নিহিত মালিকানায় সমস্ত জিনিস আটক রাখা, এমনভাবে যেন এর লাভ 'মানবজাতির উপকারের জন্য' প্রত্যাবর্তন বা প্রয়োগ করা যায়।" .....(১৩)
কাজী মোহাম্মদ নিজামুদ্দিন বনাম মোঃ নাসিরউদ্দিন (মোঃ নুরুজ্জামান জে) (দেওয়ানী) ২০ এডিসি ৫০৫
Section 56- The property, in question, is waqf property and the same was not transferred by its actual owner, by the impugned deeds, title of the disputed waqf property had not been vested to the recipients of those deeds and those are mere papers transaction. ....Hafizuddin (Md.) VS Mozaffor Mridha, [5 LM (AD) 105]
Section 56(3) This sub-section provides that the transfer made by Mutawalli shall be declared void. For the word 'Mutawalli', the words, "heirs of waqif cannot be read in sub-section (3) of section 56 of the Waqfs Ordinance. If the transfer is made by Mutawalli such transfer shall be declared void and any transfer made by the heirs of waqif shall be void ab initio and is not required to be declared void by filing suit as is required for the transfer made by Mutawalli. It has already been stated above that there is no scope for reading the words, "heirs of the waqif for the word "Mutawalli" as mentioned in sub-section (3) of section 56 of the Waqfs Ordinance. The transferees of the heirs of waqif shall be deemed to be trespassers if they are found in possession of the waqf property. Sub-section (3) of section 56 of the Ordinance is not applicable to the transferees from the heirs of the waqif. The High Court Division was wrong in holding that the suit having not been filed within 3 years from the date of knowledge or from the date of such transfer, as the case may be, was barred and contrary to the provision of sub- section (3) of section 56 of the Ordinance. .....DC, Gaibandha =VS= Shafinaz Choudhury (Mst.), [3 LM (AD) 210]
Section 57 r/w section 56, 56(3)- Transfer the Waqfs Land- The finding of the Administrator of Waqfs to the effect that the predecessor of the appellant- plaintiff in the suit had consented to the transfer of the property in question is a finding of fact which could have been agitated by the plaintiff in a properly constituted challenge before the concerned District Judge. But he did not do so. Hence, the finding that the transfer was valid cannot be challenged by him since there is a bar under section 102 of the Ordinance. ....Aminul Islam Chowdhury -VS- Abdul Sukkur Sarker. [7 LM (AD) 34]
Section 64- Waqfs Administrator but he has failed to discharge his statutory power as required by section 64 of the Ordinance. Such indifference of the Deputy Commissioner in carrying out the order of the Administrator of Waqfs is deplorable. .....DC, Gaibandha VS Shafinaz Choudhury (Mst.). [3 LM (AD) 210]
Section 64- It has the power to interfere with the judgment only when there appears error of law apparent on the face of the record occasioning failure of justice. It has already been discussed earlier that under a proceeding arising out of section 64 of the Waqf Ordinance there is no scope to decide title or any dispute regarding the property. Only thing is to be looked into in such proceeding is whether the property belongs to a Waqf Estate and whether the occupier of it is an illegal occupier. The Administrator as well as the Deputy Commissioner in the present case after holding separate inquiries found the allegation of illegal occupation of 23 decimals of land by the present respondents, correct/proved and hence evicted the illegal occupants (present respondents No. 1 to 3) from the said property of the Waqf Estate. We are of the view that the High Court Division, while making the Rule absolute, failed to consider all these aspects and rather misdirected itself and as such came to an erroneous finding and conclusion which is required to be interfered with by this Division. Accordingly we find merit in this appeal. Alhaj Mosaddequl Isdani Dr. VS Chowdhury Abdullah Al Munsur Chowdhury, [5 LM (AD) 85]
